ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00007026

Parties:

	Complainant	Respondent
Anonymised Parties	Employee	Public Authority

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969	CA-00009324-001	26/01/2017

Date of Adjudication Hearing: 02/05/2017

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 13 of the Industrial Relations Acts 1969 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The complainant has been in the employment of the respondent as an executive engineer since 30th of April 2007 on a specified purpose contract expressed to cease on the return of a named colleague to his substantive post or upon the permanent filling of the specific post. The dispute concerns the refusal to grant a contract of indefinite duration. The parties made written and oral presentation to the hearing.

Summary of Complainant’s Case:

The complainant submits that the respondent refused her application for a CID in March 2014 on the basis that s. 9 of the Protection of Employees (Fixed Term Work) Act 2003, (hereinafter the 2003 Act), did not apply in the circumstances presented. The matter was the subject of a previous recommendation of an adjudication officer however the internal grievance lodged thereafter did not conclude. The complainant has now been employed on a single fixed term contract for a ten-year period. There are no circumstances which justify such a long term temporary or transient need on the respondent’s part obviating a normal contractual relationship between the parties. The situation is both unfair and unreasonable.

Summary of Respondent’s Case:

The respondent submits that the herein dispute is properly referable under the 2003 Act and that the granting of a CID under the IR Act would be most unusual insofar as entitlement or not arises as a matter of law. It is noted that there are widespread implications as it relates to the respondent’s staff in general if a positive recommendation were to issue. In any event, such a recommendation would undermine the application of the 2003 Act. An earlier recommendation issued concerning this matter and as result a grievance meeting was arranged but was aborted on foot of the unacceptable conduct of the complainant’s representative on the day. The matter was subsequently referred for adjudication. The complainant’s contract provides that “Your employment is necessary to provide assistance while Mr X, Executive Engineer is Acting Senior Engineer and shall cease upon the return of Mr X to his substantive post or upon the permanent filling of the post whichever is the earlier.” The respondent submits that it has been constrained in the matter by virtue of the operation of the moratorium however the complainant has benefitted from the fact that the respondent has been able to arrange for temporary cover. The practice in the sector is for the permanent filling of posts through competition and that no other mechanism applies for promotion or appointment save as otherwise dictated by law. There are many other incidences of long term acting arrangements, in some cases for ten or more years across the sector.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.

Prior to coming to a recommendation in this matter I should say that the alleged behaviour of the complainant’s representative is a matter between the institutions and has no bearing whatsoever on that recommendation.

The circumstances described are extremely unusual and I am therefore disposed to recommend in favour of the complainant to the extent that in recognition of that fact the respondent should offer a contract of indefinite duration from a current date without precedent.

Dated: 4.1.18