Complainant

Respondent

Anonymised Parties

A Driver

A Gas Company

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-00011945-001

16/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00011945-002

16/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00011945-003

16/06/2017

The Complainant was employed on a series of Fixed-Term Contracts of Employment from 12th November 2012 until his employment was terminated in January 2018. He was paid €860.00 per week and he worked 40 hours a week. The Complainant referred two complaints to the Workplace Relations Commission on 16th June 2017 under the Protection of Employees (Fixed-Term Work) Act, 2003 alleging the Respondent had breached Sections 9 and 13 of the Act. A further complaint under the Protection of Employees (Part-Time Work) Act, 2001 was also referred.

The complaint under the Protection of Employees (Part-Time Work) Act, 2001 CA-00011945-003 was withdrawn at the Hearing.

The Complainant commenced employment with the Respondent on a Fixed-Term Contract of Employment on 12th November 2012 and he continued to work with the Respondent Company on a series of Fixed-Term Contracts of Employment until the employment was terminated on 27th May 2017. Copies of these contracts were provided to the Hearing. Between these fixed-term contracts the Complainant continued to work for the Respondent on a casual basis, without any precise terms and conditions of employment but he was provided with a minimum of 30 hours a week. The Complainant worked between 40-48 hours a week between October and April/May each year and then he worked on average between 35-40 hours a week from then until October of the same year. There was no break in his service and continued to work for some 5 years with the Respondent. The offering of casual work to the Complainant was in line with an agreement reached between SIPTU and the Respondent.

The Respondent knew that his fixed-term contracts would reach the fourth year in November 2016 and this is evidenced in internal emails on November 2015 and February 2016 – copies provided. These show that the Respondent was fully aware that the Complainant was entitled to a Contract of Indefinite duration.

Permanent posts were advertised in May 2016, the Complainant applied but was unsuccessful. He lodged a grievance which he alleged was not heard, he appealed but there was no appeal hearing. The Complainant was the subject of an investigation but no disciplinary process in February 2017 and he was issued with a final written warning later withdrawn due to the unfair process.

The Complainant received a dismissal letter dated 12th May 2017 indicating that he was on a fixed-term contract which was due to expire on 27th May 2017 and he was informed there may be a need for temporary cover over the summer period. SIPTU contacted the Respondent on 22nd May 2017 in which they stated that the Complainant was a permanent employee and questioning the termination of the employment. SIPTU contacted the Respondent again on 29th May 2017 but there was no response. However the Respondent continued to provide the Complainant with work, on a casual basis. The Complainant stated that he had sought a contract on a number of occasions but was then issued with a fixed-term contract dated 24th January 2017 to cover the period from 28th November 2016 to 24th March 2017.

The Complainant is alleging a breach of Section 9 of the Act and they referenced a number of Labour Court Decisions.

In relation to the complaint of penalisation, the Complainant asserted that he had requested a contract of indefinite duration on a number of occasions but had been issued with a dismissal letter dated 12th May 2017. The Complainant alleges this was penalisation under Section 13 of the Act.

The Respondent raised a preliminary issue in relation to the Time Limits and asserted that Section 14(3) of the 2003 Act says a complaint must be lodged within six months of the date of the alleged contravention. The Respondent asserted that the Complainant was not employed on a series of fixed-term contracts for a duration of four years and that the date the alleged contravention arose was the date on which the Complainant ought to have offered a contract of indefinite duration was 13th November 2016 and the complaint should have been lodged by 13th May 2016. The complaint was not lodged until 16th June 2017 some 7 months later. Section 16(4) of the Act of 2003 does allow for an extension of time if reasonable cause can be shown.

The Respondent argued that there was no entitlement to a contract of indefinite duration as the aggregate duration of the fixed-term contracts do not exceed four years. The Respondent argued that due to the nature of their business their requirement for Bulk Drivers varies depending on the weather and demand from customers. The Complainant was employed on a fixed-term contract as a seasonal/casual Bulk Driver and during the periods between his fixed-term contracts there was no operational need for the Respondent to employ above its core of Bulk Drivers. Therefore, the Complainant’s breaks between his contracts are objective and justified for operational reasons and as such were not an attempt by the Respondent to avoid the Complainant accruing 4 years service. Therefore the Complainant was employed on five fixed-term contracts for a total duration of some 663 days.

In relation to the complaint of penalisation under Section 13 of the Act, the Respondent argued that the termination of a fixed-term contract of employment is not in and of itself penalisation as Section 13(1)9D0 of the Act provides – “the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section9(3)”

On the basis of the evidence and written submissions from both Parties I find as follows –

The Complainant was employed on his first Fixed-Term Contract of Employment from 25th November 2012 to terminate on 8th February 2013 and the Complainant continued to work on a casual basis . He was issued with a second Fixed Term Contract from 4th November 2013 to expire on 21st February 2014. This Contract was extended in March 2014 to expire on 30th April 2014. The Complainant continued to work on a casual basis. The Complainant was employed on his third Fixed-Term Contract from 5th December 2014 to expire on 1st March 2015. This Contract was extended in March 2015 to expire on 20th March 2015 and again extended in April 2015 to expire on 30th April 2015. The Complainant continued to work on a casual basis with the Respondent. The Complainant was issued with his fourth Fixed-Term Contract on 30th October 2015 to expire 26th February 2016. This contract was extended on 25th February 2016 to expire on 2nd April 2016. The Complainant continued to work both as a Bulk Driver and on casual work until 24th January 2017 when he was issued with his fifth Fixed-Term Contract with a commencement date of 28th November 2016 to expire on 24th March 2017.

Preliminary Issue – Time Limits – Section 41(6) and Section 41(8) of the Workplace Relations Act, 2015.

Section 41(6) of the 2015 Act provides as follows – “Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates”. Section 41(8) provides as follows – “An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration) as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute was due to reasonable cause”.

The Complainant commenced employment on 25th November 2012 according to his first Fixed-Term Contract of Employment. Section 9(3) of the Protection of Employees (Fixed-Term Work) Act, 2003 provides as follows “ 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 four years” Section 9(4) provides as follows – “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”.

The Complainant had completed four years continuous service with the Respondent by 24th November 2016 as both parties confirmed that the Complainant continued to work on a casual basis with the Respondent between each Fixed-Term Contract issued. The complaint was submitted to the WRC on 16th June 2017 outside the six month time limit for lodging complaints under Section 41(6) of the 2015 Act. I now have to consider Section 41(8) of the Act of 2015 to establish if the Complainant has shown “reasonable cause” for the delay. The evidence was that the Complainant resumed working as a Bulk Driver effective from 28th November 2016 as established in the Fixed-Term Contract of Employment issued to the Complainant dated 24th January 2017 effective from 28th November 2016 but the Complainant had assumed that he was permanent as he had not been issued with a further Fixed Term Contract in November 2016 when he commenced working full-time as a Bulk Driver but with no contract. SIPTU on behalf of the Complainant sought to clarify the Complainant’s position on 22nd and 29th May 2017 after he had received a letter dated 12th May 2017 from the Respondent which states in part – “I am writing to you to confirm that your fixed-term contract of employment as a Casual Bulk Driver expires on 27th May 2017……There may be a need fortemporary cover over the summer period, details as follows, per letter to SIPTU dated 6th May 2014”. This relates to a Collective Agreement between the Respondent and SIPTU in relation to the continued employment of seasonal drivers (like the Complainant) over the summer months.   I also note the exchange of emails internally between Management where on 3rd Nov 2015 it states as follows – “please see start dates for seasonal drivers. Based on the attached email – in Nov 2016 there will be three drivers who will reach the four year mark for contracts of indefinite duration”. The complainant is clearly named as one of these Drivers. A further email dated 26th February 2016 again clearly states as follows –“Please note that this November we will have 3 that will have been in (named) for 4 years” and the Complainant is again named. Thus it is clear that the Respondent Company were aware of their obligations under the 2003 Act in relation to Contract of Indefinite Duration.

I decide to give an extension of time under Section 41(8) of the 2015 . I find that the Complainant became entitled to a Contract of Indefinite Duration by operation of the law effective from 26th November 2016 and I find that the Respondent breached Section 9 of the Act.

Penalisation – Section 13 of the Act. SIPTU on behalf of the Complainant argued that because the Complainant had requested a Contract of Indefinite Duration a number of times he received a letter of dismissal dated 12th May 2017 effective from 27th May 2017. There was no evidence presented to me at the Hearing in relation to these requests by the Complainant and the evidence at the Hearing was that the Complainant’s Fixed-Term Contract had come to an end as a Bulk Driver as it had done each previous year but that the Complainant had continued to be employed by the Respondent until he was dismissed in January 2018. I therefore find that the Complainant has not established evidence to support an allegation of penalisation.  

CA-00011945-001

In accordance with Section 41 of the Act of 2015 and in view of my findings above I declare this complaint is well founded in part. I decide that the Respondent has breached Section 9 of the Act of 2003 in relation to a Contract of Indefinite Duration which is effective from 26th November 2016 by operation of the law.

CA-00011945-002

In accordance with Section 41 of the Act of 2015 I decide that the Respondent has not breached Section 13 of the Act.

I direct the Respondent to pay the Complainant compensation of €5000.00 for breach of Section 9 of the Act of 2003 and this to be paid to the Complainant within 42 days of the date of this Decision

Breach of Section 9 of the Act of 2003 – compensation of €5000.00 - No breach of Section 13, Penalisation