ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00010004

Parties:

Complainant               Anonymised Parties        Respondent

An Employee                                                          A Local County Council

Representatives

Linda Kelly, Assistant General Secretary, IMPACT

Complaint(s):

Act             Complaint/Dispute Reference No.           Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00013065-001 10/08/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00013065-002 10/08/2017 Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00013065-003 10/08/2017  

Date of Adjudication Hearing: 17/11/2017 Workplace Relations Commission Adjudication Officer: Caroline McEnery

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 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 is an employee of the Respondents organisation which is a county council. The Complainant claims she is a fixed term employee and has, in respect to her conditions of employment, been treated less favourably, than a comparable permanent employee. The Complainant has taken a case in respect to her employment as confirmed below under the Protection of Employees [Fixed-Term Work] Act, 2003.

The Complainant alleged that she is a fixed term employee and has, in respect to her conditions of employment, been treated less favourably, than a comparable permanent employee [Section 6(1)].

The Complainant alleged that the Respondent has failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and failure to offer a contract of indefinite duration [Section 8(2)]. The Complainant alleged that the Respondent has contravened the legal provisions in relation to the number of successive fixed-term contracts that can be issued to the Complainant [Section 9].

The Complainant seeks the following remedies:

The Complainant seeks the issuance of a contract of indefinite duration with no less favourable terms and conditions than comparable employees.

The Complainant seeks placement on the appropriate point on the Grade 7 Salary Scale with immediate effect.

The Complainant seeks compensation in the amount of the lost earnings owed to the Complainant due to the Respondent breaching the act by treating the Complainant less favourably than other comparable permanent employees.

Summary of Complainant’s Case:

The Complainant commenced employment as a Co-Ordinator with the Respondent on the 21 September 2006. Funding for this role was provided for by a third party fund. This was a fixed term contract until 31 March 2008. Remuneration for the post was confirmed in the contract as Grade 7 Administrative Scale. Additionally, the contract stated that “increments are paid annually subject to satisfactory attendance, conduct and performance”. This was confirmed in a cover letter additionally. In 2007 the Complainant sought a review of her starting salary on appointment The Board of the funding provider. It was recommended that the Complainant progress through the incremental scale to point 6 of the Grade 7 scale. This was accepted and implemented by the Respondent.   On 1 April 2008 the Complainant was issued with a further fixed term contract with the end date 31 March 2010. Additionally, the contract stated that “increments are paid annually subject to satisfactory attendance, conduct and performance”. Despite the contracts indicating annual increments, the Complainant was not paid increments in 2007, 2008, 2009 or 2010.  

On the 29 March 2010 the Complainant was issued with a third fixed purpose contract. On the 1 July 2010 the Complainant was issued with a fourth fixed purpose contract for a period of two weeks. On the 9 July 2010 the Respondent received sanction from the relevant Minister for their staffing request to fill three posts. On the 13 July 2010 the Complainant was issued with a fifth successive fixed purpose contract which “will continue indefinitely for as long as the [funding partner] exists and is supported and funded as appropriate”. The 2010 contract removed any reference to increments under section 9 remuneration. The Complainant believed this omission was due to the short term nature of the contract. However, when the same omission occurred in the contract on the 13 July 2010 the Complainant raised her concerns in writing. The Complainant continued to raise this issue between 2011 and 2016. The issue could not be resolved through direct negotiations.  

On the 8 December 2016 the Complainants Union Representative wrote to the Respondent. No response was received. On the 31 December 2017 the Complainants Representative again wrote to the Respondent. Despite repeated communication the Respondent did not respond until 20 April 2017. A meeting between the Complainant and the Respondent took place on the 18 May 2017. The Respondent agreed to consider the points raised by the Complainants Representative and revert in two weeks’ time. By the 4 July 2017 no response had been received. On the 4 July 2017 the Complainants Representative wrote to the Respondent seeking response. On the 14 July 2017 the Respondent offered a settlement. The Complainant did not accept the offer as it did not address the significant loss of earnings experienced by the Complainant due to the failure of the Respondent to award increments over a ten year period. On the 10 August 2017 the case was referred to the WRC for solution.  

It is the Complainants case that it is clear that the Respondent has always been the Complainants employer. This is stated unequivocally in all contracts issued. The contract of employments in 2006, 2008 and 2010, all list the Respondent as the Employer. In addition, all matters related to the Complainants employment were dealt with by the Respondent. Moreover pay, leave and all associated matters, including induction in 2006, were dealt with by the Respondent.  

The Complainant representatives state the Respondent never issued Complainant with a Contract of Indefinite Duration nor have they provided either Complainant with a copy of this Contract or the terms and conditions associated with same. The Complainant asserts that the Respondent is in breach ofSection 6 (1) of the Act by treating the Complainant, in respect of her conditions of employment, in a less favourable manner than a comparable permanent employee. The Complainant has not been awarded increments as they fell due since 2007. Comparable permanent employees have received increments in line with public sector pay policy annually. The Complainant put forward three groups of comparable permanent employees for consideration by the Adjudicator. All of the groups of comparable employees have received increments on an annual basis in line with public sector pay policy. The Complainant is of the belief that she has been clearly treated less favourably than these comparable permanent employees.  

The Complainant contends that the Respondent is in breach of Section 8 (2) of the Act by failing to inform her in writing of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration. In offering the Complainant a fifth fixed purpose contract in July 2010, the Respondent did not set out in writing the objective grounds as to why a contract of indefinite duration was not being offered.  

The Complainant contents the Respondent is in breach of Section 9 of the Act by contravening the legal provisions in relation to the number of successive fixed term contracts that can be issued. In July 2010, the Respondent had an obligation under the Act to issue the Complainant with a Contract of Indefinite Duration as the Complainant had completed her third year of continuous employment and had already been issued with four successive fixed term contracts.  

The Complainant has had a significant loss of earnings, circa €50,000, as a result of breaches of Section 6 of the Act. Had the Complainant been awarded increments in the normal manner, she would now be paid in accordance with LSI 2 of the Grade 7 salary scale - €61,418. Instead the Complainant has had her remuneration unfairly set at €54,321 since 2008 and has been treated less favourably than comparable employees.

Summary of Respondent’s Case:

At the hearing the Respondent accepted they were the Complainants employer from the commencement of her employment. The Respondent stated that the issuing of consecutive fixed term contracts was an error. The Respondent confirms that the Complainant is not a fixed term employee.

The Respondent confirmed that the Complainant is employed under a contract of indefinite duration affording her the same rights and entitlements as anyone employed in a similar capacity on a permanent basis.

The Respondent states their position is as per their letter dated 20 April 2017. The Respondent stated that the Complainants remuneration, of 21 September 2006, was determined by the Board of an associated funding body initially when she commenced employment. The Respondent claims this Board was her employer however at the hearing the Respondent accepted they were the employer. It is stated that none of these decisions would have accorded with any of the rules relating to pay in the public sector/ local government sector, or indeed with the Respondents internal rules and policies.

The terms and conditions of employment which applied were made clear to, and accepted by, the Complainant. The Complainant was offered and accepted employment on the basis of a fixed point salary scale. This fixed point was equivalent to her then salary. The Complainants pay was not equivalent to an Administrative Office and the Complainant is not transferable to any such position. It was higher at the time than any comparable employee however she didn’t receive incremental increases since 2007.

The Respondent stated the Complainant is not the same as administrative employees who only come in at the starting rate based on experience nor can the Respondent get a review of the same currently so they are not comparable.

Findings and Conclusions:

  1. The Complainant alleged that she is a fixed term employee and has, in respect to her conditions of employment, been treated less favourably, than a comparable permanent employee [Section 6(1)].

6.—(1) 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. 

It is alleged that the Complainant has not been awarded increments as they fell due since 2007. This current outstanding issue is in respect to what grade the Complainant should be on now. The Complainant is on Grade 7: point 6. This has not been reviewed since 2007. The contract of employment states she would get an incremental review.

The Respondent states the Complainants starting rate was higher when the Complainant commenced employment, than employees she had used as comparators. This wouldn’t have been the case in the Respondent Company, as they have very strict entry. However as the rate was decided by the funding partner it was offered and paid to the Complainant. Therefore from the outset the Complainant hasn’t been treated comparably. The pay review the Complainant received, from the outset, was authorised by the Partnership, and not by the Respondent. However, it was implemented by the Respondent.

Evidence further states that had the Complainant been awarded increments in the normal manner she would now be paid in accordance with LSI 2 of Grade 7 salary scale at €61,418.

2. The Complainant alleged that the Respondent has failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and failure to offer a contract of indefinite duration [Section 8(2)].

Section 8 (2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

The Respondent offered the Complainant a fifth fixed purpose contract in July 2010. The Respondent did not set out in writing the objective grounds as to why a contract of indefinite duration was not being offered. A copy of indefinite duration contract has not been provided nor was it detailed to the Complainant why there was a failure to offer a contract of indefinite duration. It was accepted by the Respondent that it has breached the Act in this regard and accepted that the Complainant is a full time employee.  

3. The Complainant alleged that the Respondent has contravened the legal provisions in relation to the number of successive fixed-term contracts that can be issued to the Complainant [Section 9].

9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.(2) Subject to subsection (4), 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.(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

In July 2010, the Respondent had an obligation under the Act to issue the Complainant with a Contract of Indefinite Duration as the Complainant had completed her third year of continuous employment and had already been issued with four successive fixed term contracts. The Respondent accepts they breached the Act in this regard and accept the Complainant is a full time employee.  

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.

(2) A decision of a rights commissioner under subsection (1) 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 remuneration in respect of the employee's employment;

It is well founded that the Respondent failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and failure to offer a contract of indefinite duration [Section 8(2)].  

It is well founded that the Complainant is a fixed term employee and has, in respect to her conditions of employment, been treated less favourably, than a comparable permanent employee [Section 6(1)]. The Complainant seeks the issuance of a contract of indefinite duration. This was accepted on the day by the Respondent. The Adjudicator requires the Respondent is to provide the Complainant with a contract of indefinite duration. 

The contract of employment clearly states that she would receive annual incremental reviews of her salary, which did not occur since 2007. The Respondent alleges this did not occur due to the fact that she wasn’t their employee. However, based on the evidence presented by the Complainant and based on the contract of employment it was clear, and the Respondent conceded that the Complainant was an employee of the Respondent. The Complainant commenced employment with the Respondent on a more favourable entry salary than comparators and the Respondent argued she is not comparable as a direct result of the same. Notwithstanding this, the contract of employment is clear, it is founded that the Complainant has been an employee since the commencement of her employment and despite her higher entry salary was entitled to an incremental review which all employee receive. I require the Respondent to place the Complainant on the appropriate corresponding grade she should be on if she had received her yearly incremental review of her salary since she commenced employment, with immediate effect. In addition, I require the Respondent to provide the Complainant with back pay of €48,153.86.  

Dated:   11th January 2018 Workplace Relations Commission Adjudication Officer: Caroline McEnery  

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