ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013256
Parties:
| Complainant | Respondent |
Anonymised Parties | An Art lecturer and Teacher | A Third Level Education Institute |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00017269-001 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017269-002 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017269-003 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017269-007 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017269-008 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017269-009 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017269-010 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017269-011 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017269-013 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00017271-001 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017271-002 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017271-003 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017271-004 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017271-005 | 05/02/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00017271-006 | 05/02/2018 |
Date of Adjudication Hearing: 09/05/2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.
The Complainant herein has referred matters for dispute resolution under Section 14 of the Protection of Employees (Fixed Term Work) Act of 2003. These Complaints include alleged contraventions of Section 6 which prohibits a fixed term worker from being treated less favourably than a comparable permanent employee, Section 8 where a fixed term employee is entitled to be informed of reasoning behind renewing fixed term Contracts and Section 9 failing to provide a Contract of Indefinite Duration after the fourth year.
Pursuant to Section 14 of the 2003 Act, an Adjudication Officer - in relation to a complaint of a contravention of the 2003 Act - shall do one or more of the following:
(a) declare whether the complaint was or was not well founded;
(b) require the employer to comply with the relevant provision;
(c) require the employer to re-instate or re-engage the employee (including on a Contract of indefinite duration);
(d) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years of remuneration in respect of the employee’s employment.
The Complainant has also referred matters for dispute resolution under Section 16 of the Protection of Employees (Part Time Work) Act of 2001.
The Complainant has also made several allegations of having been penalised for having tried to invoke his entitlements under the various Acts under which he has sought relief.
Summary of Complainant’s Case:
The Complainant provided me with a comprehensive submission which was opened to me in the course of the hearing. I also heard evidence form the complainant himself. By operation of law the Complainant says he is entitled to have been given a Contract of Indefinite Duration and that the subsequent purported termination of his Contract employment was not permissible. The Complainant further says he was penalised. The Complainant’s Workplace Relations Complaint Form cited 15 Complaints against the employer. The Complainant abandoned many of these claims in the course of his presentation. For example, all the complaints seeking relief under the Protection of Employees (Part Time) Act of 2001 were withdrawn in favour of the Protection of Employees (Fixed Term) Act of 2003. By a process of elimination, it was agreed that the Complainant continues to make the following Complaints:
CA 00017269-008 Section 8 – Where the employer failed to set out the objective Justification for the renewal of the fixed term Contract and the failure to offer a Contract of Indefinite Duration
CA 00017269-009 Section 9 - Where the Employee has completed three years under fixed term Contracts, the Employer can only impose one further Fixed Term Contract (of a year or less)
CA 00017269-010 Section 10 – Where the Employer is obliged to inform the Employee of opportunities of a permanent nature in the workplace
CA 00017269-011 Section 10 – Where the Employer failed to provide the Employee’s Representative with information about fixed -term work.
CA 00017269-003 Section 13 – The Employee claims that he was penalised for invoking rights in respect of conditions of employment as provided for by the Act and for being dismissed to avoid giving a Contract of Indefinite Duration.
I heard evidence in relation to the loss of the Complainant’s position which ceased to exist and was instead replaced by a Project Manager with a significantly more technological background in line with the changing needs of the programme. The Complainant gave evidence that he did not apply for this position as he was told in advance, that he would not be qualified. |
Summary of Respondent’s Case:
The Respondent sought clarification on whether the Complainant’s Complaint Form was submitted within six months of the termination of the employment. I have indicated that I am satisfied that the Complaint was within time. The Complainant was notified of the Employer’s decision not to renew his Contract in and around August or September of 2017. There was a Contractual entitlement to one month of Notice which meant that when the Complainant Form issued in February 2018 only some five months of time had elapsed. The Respondent sought to justify not providing the Complainant with a Contract of Indefinite Duration as the funding provider for the project on which the Complainant was working would not give a long-term commitment. |
Findings and Conclusions:
I have carefully considered the evidence adduced. The Complainant was engaged as a part time lecturer and administrator with the Respondent body from September 2012. In particular, the Complainant managed a project to teach digital skills to young people. The position was deemed to be fixed term in circumstances where his role was being financially supported by a third party (2HL) on an annual basis. There can be no doubt that from year to year the Employer did not know if the funding would come through. As it happens the funding never stopped and I understand that the funding is still available to this date. In any event the Complainant had the Fixed Term Contract of employment re-confirmed for the next four years so that in September of 2016 the Complainant had worked with the Respondent for four consecutive years and in fact he continued in his position of employment up to the end of the academic year – May of 2017. The Complainant was only advised at the start of the academic year September 2017 that he would not be re-need. By operation of the law, I must find that the Complainant became entitled to a Contract of indefinite duration in September of 2016 and that the Contract of employment which operated at that time, continued to provide the terms and conditions of his employment. I must consider the provision which references this to be a fixed term Contract to be severed from the operable Contract of Employment per Laffoy J. in the case of Minister for Finance -v- AcArdle 2007 18 ELR. The Respondent herein did not resist this finding. The Respondent has conceded that the Complainant is to be re-instated from September 2017 to date and that the Complainant’s lost income for this period of time is to paid to him. In this regard, I note that the correct and operable remunerative figure is €15,846.00 – being the Gross annual figure payable to the Complainant. I will not presume to break this down into hours of work. The Complainant’s claim under Section 9 must be considered therefore to have succeeded. I am on balance satisfied that Complainant’s complaint’s in respect of Sections 9 and 8 are well founded. Regarding Section 10 of the Protection of Employees (Fixed Term Act), 2003 I have to find that the Employer notified the Employee of the fact that a job opportunity had arisen in the workplace. I understand that the Complainant is of the view that he was told that he was inadequately qualified and unlikely to get the position, however I do not accept that he was in any way precluded from applying for the position and it is regrettable that he let the position which he had so successfully filled in previous years slip away from him. I heard no evidence in respect of the failure to provide the Employee’s Representatives with pertinent information about the fixed term work and I am therefore finding this complaint under Section 10 to be not well founded. The Complainant has brought a Complaint of the Employer having contravened this Act when the Employer penalised (by way of Dismissal) the Complainant who sought to have his entitlement to have a Contract of Indefinite Duration recognised by the Court pursuant to Section 13 of the Protection of Employees (Fixed Term Act), 2003. Any dismissal involving non-renewal of a fixed term Contract after the point when a Contract of Indefinite Duration becomes operable must amount to a penalisation as the act of Dismissal was for the purpose of avoiding a fixed term Contract being deemed to be a Contract of indefinite duration. On balance I find this Complaint to have been well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the various complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA 00017269-008 Section 8of the Protection of Employees (Fixed Term Act), 2003 I declare the complaint is well founded and I require the Employer to comply with the law by acknowledging a Contract of Indefinite duration to exist and I further require that the Complainant be re-instated into the workplace with his full remunerative entitlements being paid at the appropriate pro rata rate (€15,846.00 p.a.).
CA 00017269-009 Section 9 of the Protection of Employees (Fixed Term Act), 2003 I declare the complaint is well founded and I require the Employer to comply with the law by acknowledging a Contract of Indefinite duration to exist and I further require that the Complainant be re-instated into the workplace with his full remunerative entitlements being paid at the CA 00017269-010 Section 10of the Protection of Employees (Fixed Term Act), 2003 The Complaint herein is not well founded. The Complainant knew there were Employment opportunities arising.
CA 00017269-011 Section 10 of the Protection of Employees (Fixed Term Act), 2003 The Complaint herein is not well founded.
CA 00017269-003 Section 13of the Protection of Employees (Fixed Term Act), 2003 I find the Complaint herein to be well founded. The Complainant was penalised for invoking his rights. I award the Complainant compensation in the sum €6,500.00. The Balance of the Complaints are withdrawn by the Complainant in the course of the hearing. |
Dated: 13th August 2018
Workplace Relations Commission Adjudication Officer: Penelope McGrath