Complainant

Respondent

Anonymised Parties

An Employee

A Public Agency

Representatives

Padge Reck

- 

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-00007700-001

17/10/2016

The complainant had been employed by the respondent gathering statistics from 2000 until he retired in October 2016.

He had initially been employed on a ‘temporary part-time’ basis but he was placed on a Contract of Indefinite Duration (CID) in 2005.

He was excluded from the civil service benchmarking process and complains that this was discriminatory treatment contrary to the protection of The Employees (Part-Time Work Act 2001. (hereafter The Act).

The complainant says he declined a contract of indefinite duration in 2005 and believed he continued to be employed under his original 2000 contract. He says he should have been given a CID in 2003.

He was denied the benefits of benchmarking because of the interpretation of an official directive to his employer which was justified as excluding him because he was a ‘piece worker’.

He says this represents unlawful discrimination against him as a part time employee.

The complainant works an average of thirteen hours per week and, while there are some seasonal variations he does a morning ‘shift’ of four hours, in the summer there is a midday shift of two hours, and occasionally an evening shift.

He submits claims for payment to his employer on a ‘per shift basis’.

The complainant retired on October 28th 2016 and made his complaint some days earlier on October 17th

The respondent confirms that the complainant was excluded from benchmarking on foot of a directive to it which it had to observe and which stated that

‘persons paid on a fee, contract or piece work basis were not entitled to bench marking’.

The respondent also says that the complaint falls outside the time limits provided for in the Act..

The circular on which is exclusion was based was issued in May 2003.

Discussions with the complainant continued on a sporadic basis and the respondent gave a final statement of its position to the complainant on August 2nd 2013.

The complainant referred the complaint to the WRC only on October 17th 2016, some two and a half years after the position was clarified for him. This was in a letter from the HR department dated August 2nd 2013,

The complainant was offered a Contract of Indefinite Duration (CID) in 2005.

For reasons that he could not satisfactorily explain to the hearing he declined to accept it, or at least refused to sign it. He says he is still employed on his original contract.

Fortunately for him this became operative as a matter of law and that is became his contractual position from then on.

He claims that he should be entitled to the benefits of benchmarking but at the time it was introduced in 2003 a Civil Service Circular Letter was interpreted as excluding him.

A copy of the Circular dated May 1st 2003 reads; at Paragraph 4b.

This circular does not apply to; (inter alia)

Persons paid on a fee, contract or piece work basis or employed casually or on infrequent or nominal duties e.g. caretakers.

However, the question is why such increases as arose under benchmarking were not applied to him once his status changed. If increases were generally applied to grades within the respondent employment, once the complainant escaped the strictures of the Circular Letter referred to above it is not clear why his salary was not adjusted accordingly, and for example increments paid to him.

In any event, nothing was done and he raised the matter with the respondent in October 2012. He received the reply already referred to on August 2nd 2013.

As noted, the respondent has submitted that this put it outside the time limits provided for the referral of cases to the WRC; generally six months.

The Act deals with the time limits at section 16 as follows;

3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.

This additional provision relating to the termination of the contract of employment is not a common one in our employment legislation. However, it is of no comfort to the complainant unless it is earlier than the date of the contravention to which the complaint relates.

Unfortunately for the complainant it is not.

The respondent submitted that the applicable date was on August 2nd 2013, the date on which he was formally notified as to the reasons why ‘benchmarking’ had not applied to him.

However, that is not the ‘date of the contravention’ as specified by the legislation.

In my view, the date of the contravention was in 2005 when the complainant was given a CID and comparability with the permanent co-workers became valid. At that point the complainant, somewhat imprudently but apparently on advice to the effect that it could adversely affect his rights, declined, or failed to take advantage of the opportunity presented by his then new-found status to prosecute the complaint he now makes. Had he done so he would have had the advantage of being within the time limits, subject to whatever other merits he might have advanced.

As it is, the complaint is not within the time limits specified by The Act and must fail.

For the reason outlined in detail in my findings I do not uphold complaint CA-00007700-001 and it fails.

Time limits.