ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00012221

Parties:

Complaints:

Date of Adjudication Hearing: 17/05/2018

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

BACKGROUND.

The Complainant has been employed with a number of named Government Departments, employed as a Ministerial Driver with named Ministers from 21st November 2011 and he is currently employed as a Ministerial Driver with a named Minister in a Government Department on a Fixed Term Contract of Employment effective from 14th June 2017. His employment was terminated on 17th November 2017. He referred a complaint to the Workplace Relations Commission (WRC) on 18th December 2017 alleging he had been treated in a less favourable manner than a comparable permanent employee in respect of his dismissal. He is also claiming his entitlement to a Contract of Indefinite Duration and he was not issued with the objective grounds justifying the renewal of his fixed-term contracts. He was paid €631.00 gross per week and he worked 41 hours a week.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant was employed as a Ministerial Civilian Driver from 1st May 2011 until his employment was terminated on 17th November 2017. Historically Ministers and the Cabinet were afforded the use of Garda Drivers and vehicles. This changed in 2011 when members of the Cabinet were required to use their own vehicle and a Civilian Driver. The Complainant was employed by a named Minister for Health and he worked in this capacity from May 2011 until July 2014 when the Minister transferred to another named ministerial position on 11th July 2014 and the Complainant moved with the Minister and received his second fixed-term contract of employment until 6th May 2016. He was issued with his third fixed-term contract effective from 6th May 2016 working as Civilian Driver to another named Minister in a different Department. He continued to work as a Civilian Driver with this Minister when she moved to another Government Department and was issued with a fourth Contract effective from 14th June 2017..

The Complainant received an email dated 25th October 2017 from the named Personnel Officer of the Government Department where the Complainant was the Ministerial Driver to the Minister of that Department. This stated that his contract of employment included a probationary period of 6 months following which he may be confirmed in the post subject to satisfactory service. He was invited to attend a meeting on 25th October 2015 and that he could be accompanied by a union representative or staff member. The Complainant contacted his Union on 26th October 2015 and the named Union Official contacted the Personnel Officer. The Complainant received a letter dated 27th October 2017 from the Personnel Officer in which he was informed of the decision to terminate his contract with effect from 17th November 2017. Two reasons were cited as reasons for the termination, namely an alleged failure to comply with rules on travel and subsistence by providing sufficient information to support his claims and secondly that he will not be bound by the terms of his contract of employment in relation to annual leave. He was informed that as the Complainant did not have an opportunity to challenge this decision the issue would be referred to a Departmental Assistant Principal to review the decision. IMPACT wrote to the Personnel Office on 1st November 2017 requesting specific reasons for the decision. The Union also raised issues in relation to the annual leave issue under the Organisation of Working Time Act, 1997 and also raising the issue of dismissal without involving the disciplinary procedures and that the Complainant was entitled to rely on the 2016 Civil Service Disciplinary Code. The Personnel Officer responded on 1st November 2017 informing IMPACT that the Complainant had been informed of the reasons for his dismissal and that the Civil Service Code does not apply to staff on probation. He was also informed of his right to pursue any claim through the WRC. IMPACT also outlined issues in relation to Section 6 of the Fixed Term Legislation – that each contract of employment had a 6 month probationary clause – that he had been denied access to a disciplinary process and breach of the Annual Leave provisions.

IMPACT finally stated on behalf of the Complainant that he would adhere to all regulations and procedures in respect of claiming travel and subsistence and he would also adhere to any regulations and procedures regarding the taking of annual leave going forward.

The Personnel Officer responded to inform the Complainant that the issues had been referred for an internal appeal to an unnamed officer. The Decision to terminate the employment was confirmed.

Complaints under Section 7 and 8 – Failure to provide a written statement objectively justifying the continued use of the Fixed Term Contract. – Section 8(2) of the Act states that where an employer proposes to renew a fixed term contract the employee has to be informed in writing of the objective grounds justifying the renewal and the failure to offer a contract of indefinite duration. There was no letter setting out the objective justification for the renewal of his first contract in July 2014 -his second contract in May 2016 and again on 14th June 2017 in circumstances where the Complainant had been employed by the same employer or associated employer for a period in excess of 4 years.

The Complainant asserted that the Department of Public Expenditure and Reform produced guidelines on best practice for the recruitment and management of fixed-term employees in the Civil Service in April 2014 and this makes reference to the need for objective justification under Section 8(2) of the Act.

Complaint under Section 6 of the Act. – Section 6(1) of the Act provides that a fixed-term employee shall not be treated in a less favourable manner in relation to their conditions of employment than a comparable permanent employee. The comparator cited by the Complainant is any permanent civil servant who would have the protection of the 2016 Disciplinary Code applied in relation to any performance issues. This can be justified on objective grounds as provided under Section 6(2) of the Act but the Department has clearly stated the Code does not apply to the Complainant. The Departmental Objective justification was that Clause 9 of the Complainant’s Contract applies as he was on probation. The Complainant however had 5 years continuous service. The Complainant and his Trade Union asserted that the less favourable treatment complained of was that a permanent employee must undergo a 12 month probationary period while a fixed term employee must undergo a 6 month probationary period from the commencement of each contract. This is in breach of the DEPR Guidelines which provides that fixed-term employees must be subject to the same probationary period as a permanent employee.

The Complainant also addressed the issue in relation to travel and subsistence and stated that the Department was aware that his home was not as quoted in Swords but was in Collinstwon, Co Meath. The Complainant asserted that a permanent employee would have had any claims for subsistence outside the Regulations dealt with by the Civil Service Overpayments Circular. The Complainant did confirm the issue had been raised with him on a number of occasions.

Complaint regarding a Breach of Section 9(2) of the Act. – The Complainant asserted he was entitled to rely on this Section of the Act in respect of his third Contract of Employment issued to him on 6th May 2016 and he was therefore entitled to a Contract of Indefinite Duration. The Complainant also asserted that Section 2 of the Act applies in relation to associated employer and it is clear the Complainant has been employed by Government Department on a continuous basis since 1st May 2011.

Organisation of Working Time Act, 1997. – The Complainant asserted that he had lodged a complaint under this Act. The Adjudication Officer showed the Complainant the complaint form submitted to the WRC on 18th December 2017. The Complainant accepted that no complaint under this Act had been referred to the WRC on 18th December 2017.

SUMMARY OF RESPONDENT’S POSITION.

The Complainant is bringing these complainants against a named Government Department where the Contract dated 14th June 2017 provides for a 6 month probationary period. Also the Respondent asserted that some of the complaints do not comply with Section 41(6) of the Workplace Relations Act, 2015. The position of a civilian driver to a Minister is a unique position in respect of which there is no comparable employee in the Civil Service. Also there are strong objective grounds that would justify any difference in treatment. Likewise, there are strong objective grounds to justify the failure to grant a contract of indefinite duration. There was no obligation on the Department, named in concluding it’s first and only contract with the Complainant to furnish any statement to justify the continuing use of a Fixed Term Contract of Employment. The Respondent also stated that that it was neither necessary or appropriate to address the underlying issues relating to termination of the Complainant’s employment which falls outside the scope of the 2003 Act.

The Complainant’s Contract of Employment, dated 14th June 2017 states clearly that the appointment was to “a temporary, unestablished position in the Civil Service” carrying “no entitlement to established status, by way of limited competition or otherwise” and that the term of office “will cease on the date that (named Minister) ceases to hold office as Minister (named Department)”.

Complaint – Less favourable Treatment as a Fixed Term Employee. Section 6(1) of the Act provides that a fixed term employee shall not be treated less favourably in respect to their conditions of employment unless this can be justified on objective grounds. Section 5 (1) and (2) defines when an employee is a comparable employee and Section 7 of the Act sets out the concept of objective justification. There is no permanent employee to whom the Complainant is comparable. The Complainant worked as a Civilian Driver and is appointed directly and specifically to a particular Minister and these appointments are subject to special rules and procedures and are set out by the Department of Public Expenditure and Reform in Instructions to Personnel Officers – Ministerial Appointments for the 32nd Dail. Given the nature of the appointment there can be many issues that might affect the duration of the term of office of a minister or Government. Once there is a change of a Minister or Government, the new Minister could not be expected to maintain in his/her employment personal staff directly appointed by the previous office holder.

Complaint – Section 9(1) of the Act. – This complaint is that on the third renewal of his contract after 4 years service he was entitled to a Contract of Indefinite Duration. The Respondent asserted that the different Departments are not associated employers or that any entitlement to a CID accrued on 6th May 2016. Also this complaint is statute barred under Section 41(6) of the Act of 2015. The Respondent also argued that without prejudice to this argument, the appointment of the Complainant on a Fixed Term Contract of Employment on 14th June 2017 can be objectively justified on the basis of the special characteristics of the role of a Civilian Driver to a named Minister

Complaint – This complaint against the named Respondent is also out of time as the Contract was issued on 14th June 2017 and the Complaint was lodged on 18th December 2017

The Respondent asserted there had been no breach of the Act of 2003.

FINDINGS AND CONCLUSIONS.

On the basis of the evidence, written submissions by both Parties, cross examination and questions from the Adjudication Officer I find as follows –

The Minister uses his/her own car and they can appoint two Drivers. The Minister provides the names of their Drivers to the Department for appointment. There is an exclusion order from the Recruitment and Appointments Regulations in relation to the appointment of the Civilian Driver as nominated by the Minister. The Driver is employed as a Civilian Driver to the Minister on a Fixed Term Contract of Employment being the Model Contract of Employment for the post of Civilian Driver as set down by the Department of Public Expenditure and Reform.

Section 4 – Tenure – of that Contract states as follows – “In accordance with the Protection of Employees (Fixed Term Work) Act, 2003, your contract is on a fixed-term contract basis only as your appointment is coterminous with that of the Minister of the Government or Minister of State”. This contract also provides at Section 9 for the appointment on a probationary basis of 6 months.

Complaint No 1 – Less favourable treatment of a Fixed Term Employee.

Section 6 (1) of the Act provides that, subject to subsections 2 and 5 “a fixed-term employee shall not in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”.

Section 5 (1)(a) defines what a “comparable permanent employee is as follows – “a permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees”.

Section 5(2) provides as follows – “(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work”.

The Complainant did not identify any comparable permanent employee in the context of this Section but referred to all permanent employees as the comparator.

(b)” the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant”.

The Complainant did not identify any comparator that would satisfy Section 5 (2)(b) of the Act but relied on all permanent employees in the Civil Service as comparators.

(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions”.

The Complainant did not identify any permanent employee/s who were doing work of equal value to the Complainant.

I find that the Complainant has failed to satisfy Section 5 of the Act. I therefore find the Respondent has not breached Section 6 (1) of the Act of 2003.

Complaint No 2 – Contract of Indefinite Duration.

Two preliminary issues arise in relation to this complaint. Firstly, the Complainant was initially employed by a named Government Department as Civilian Driver to a named Minister from May 2011 to July 2014. He was provided with a second Fixed Term Contract of Employment working as a Civilian Driver to a named Minister in a different Government Department from July 2014 to May 2016. He was issued with a third Contract of Employment working as a Civilian Driver to a named Minister in a different Government Department from May 2016 to 14th June 2017 when he again was provided with a fourth Fixed Term Contract of Employment working to the same Minister but in a different Government Department – the named Respondent. The issue of whether the different Government Departments are associated employers for the purposes of Section 2(2) of the Act arises. This provides as follows “Employers are deemed to be associated if – (a) one is a body corporate of which the other (whether directly or indirectly) has control, or (b) both are bodies corporate of which a third person (whether directly or indirectly) has control”.

This issue has been addressed by the Labour Court in their Decision HSE v Abdel-Haq FTD 219/2009. I find that the Government Departments where the Complainant has been employed on four separate fixed-term contracts of employment are associated employers as they are controlled by the Government and or the Department of Public Expenditure and Reform.

The second preliminary issue relates to the Complaint lodged with the WRC on 18th December 2017 in relation to an alleged breach of Section 9(2) of the Act which provides as follows – “…where after the passing of this Act, a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years”. The Complainant in his written submission and at the Hearing asserted that the Complainant became entitled to a Contract of Indefinite Duration on 6th May 2016.

Section 41(6) of the Workplace Relations Act, 2015 provides that a complaint must be lodged with the WRC within the period of 6 months of the date of the alleged contravention to which the complaint relates. Section 41(8) does allow for an extension of time due to reasonable cause. The Complainant and his Trade Union did not seek an extension of time under Section 41(8) of the Act of 2015.

I find I do not have jurisdiction in relation to this complaint as it does not comply with Section 41(6) of the Workplace Relations Act, 2015.

Complaint No. 3 – Breach of Section 8 of the Act of 2003.

Section 8(1) of the Act provides as follows –“ Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practible by the Employer of the objective condition determining the contract whether it is – (a) arriving at a specific date, (b)\ completing a specific task, or (c) the occurrence of a specific event”.

His Contract of Employment of 14th June 2017 provides as follows at Section 3 Tenure as follows – The appointment is to a temporary, unestablished position in the Civil Service…….Your term of office will cease on the date that (named Minister) ceases to hold Office as Minister for (named Government Department)”.

I find that this complies fully with Section 8(1) of the Act.

I find I have no jurisdiction in relation to the complaints as they relate to the Contracts issued to the Complainant on 11th July 2014 and 6th May 2016 as these complaints do not comply with Section 41(6) of the Workplace Relations Act, 2015 in relation to Time Limits for lodging complaints.

Unfair Dismissal.

The Complainant raised a complaint that he had been unfairly dismissed without fair procedures and natural justice as would have been afforded a civil servant covered by the Civil Service Code. The Complainant accepted at the Hearing that no complaint under the Unfair Dismissals Act, 1977 – 2015 had been lodged with the WRC. I find I have no jurisdiction to hear a complaint of unfair dismissal under the Protection of Employees (Fixed-Term Work) Act, 2003

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

COMPLAINT NO.1 – CA-00016364-001

On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015, I declare this complaint is not well founded as the Complainant has failed to establish a Comparator as required by Section 5 of the Act of 2003.

Complaint NO 2 – CA-00016364-002

On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015, I declare I do not have jurisdiction to hear this complaint as it does not satisfy Section 41(6) of the Workplace Relations Act, 2015 in relation to time limits

COMPLAINT NO 3 – CA-00016364-003

On the basis of the evidence, my findings above and in accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare this complaint is not well founded as the Respondent has complied fully with Section 8(1) of the Act.

Dated: 14th August 2018.  

Workplace Relations Commission Adjudication Officer: Rosaleen Glackin

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