Complainant

Respondent

Anonymised Parties

Temporary Clerical Officer

Government Department

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-00008111-001

10/11/2016

The Complainant was employed as a Temporary Clerical Officer from 28th November 2011 to 3rd February 2017. She was paid €452.63 per week. She has claimed a contract of indefinite duration.

The Complainant was employed continuously from 28th November 2011 to 3rd February 2017. In accordance with Sec 7 of this Act there were no objective grounds justifying less favourable treatment. In accordance with Sec 9 she was entitled to a contract of indefinite duration with effect from 28th November 2015 by operation of law. She was a fixed term worker performing the full range of clerical duties. The purpose of her contract was covering a staff member’s absence and she has received no further contract and no letters of extension and her contract has no end date. Under Sec 6 of this Act she is comparable to permanent employees performing clerical officer duties. Under Sec 7 of this Act the objective grounds for less favourable treatment regarding her conditions of employment are based solely on her status as a fixed term worker. She is entitled to a contract of indefinite duration with effect from 28th November 2011 by operation of law. She performed a full range of clerical officer duties until she was dismissed from her employment on 3rd February 2017. The Respondent’s actions are not justified on objective grounds. Permanent and temporary clerical officers perform the same duties across the service. Her contract states that she is there for the purposes of covering a permanent staff member’s absence and it is her argument that there is no specific task or occurrence of a specific event in these circumstances. She may very well have been indirectly covering a staff member’s absence, however she has no knowledge of who that is and it is most unlikely it was for the same person as she was permanently assigned to a particular section for 5 years and 2 months before she was dismissed. It would be most unusual that somebody would be absent for that period of time. The fact that she was employed to cover for an absent employee means that there is no end date and no end purpose. She was never advised who she was covering for and had no communication with her employer since the commencement of her employment.

The objective grounds being relied upon by the Respondent was for the purpose of covering a permanent staff member’s absence. The Labour Court in Inoue v NBK Designs [2003] 14 ELR 98 stated that the test for objective grounds requires the employer to show that impugned measures correspond to a real need, are appropriate and necessary. It is her position that covering for an officer who is absent does not in itself satisfy objective grounds for less favourable treatment and in this regard, she referred to the European Court Adeneler case. The European Court made it clear that the work performed must relate to real and concrete circumstances to which the contract relates. In the Labour Court case FTD 1610 it stated that the objective grounds relied upon by the same Department were vague and equivocal. The grounds being relied upon are the very same. In this case the Complainant is relying upon Sec 9(1) of this Act. She also cited European Court case 476/99 and the Labour Court case FTD 097 in support. It is accepted that there will be a need for fixed term contracts however where an individual has been employed for over 4 years it is contended that the Respondent must provide and clearly communicate very specific reasons as to why the contract should not be converted to a contract of indefinite duration and this did not occur. She was never given clear specific reasons as to why her contract could not be converted into a contract of indefinite duration. It is clear that the employment of temporary workers is only to meet transient and purely temporary needs and it is never intended to meet the fixed or permanent needs of the employer. In deciding upon a breach of Sec 7 it has to be considered that the Respondent has not at any time communicated the objective grounds since she commenced and so it can be contended that it can be inferred that the objective grounds were in reality based on her temporary status.

It is her position that the Respondent has breached Sec 9(1) of this Act as she has more than four years’ continuous employment on one fixed term contract and so by operation of Sec 9(3) her contract was transmuted into one of indefinite duration by operation of law.

There are no objective grounds justifying less favourable treatment. She is entitled to a contract of indefinite duration with effect from 28th November 2015.

Summary of Respondent’s Case:

The Complainant was employed as a temporary clerical officer to cover the absence of a permanent member of staff. The objective reason for the temporary contract is stated as follows; “The appointment will commence from 28th November 2011 and will be for the purpose of covering a permanent staff member’s Absence. This appointment therefore cannot result in an offer of a contract of indefinite duration”. The absence referred to, began in August 2011 and ended in May 2017. For data protection purposes the Complainant was not given the name of the absent employee. In November 2016, it was decided to limit the period of absence for which temporary cover could be provided in the Department. It was then decided that after two years of absence the position becomes a permanent vacancy to be filled through the recruitment/promotion of a permanent member of staff. In introducing this policy, it became necessary to terminate any contracts which covered absences of greater than two years. For this reason, the Complainant received notice that her temporary contract would terminate on 3rd February 2017. She was entitled to statutory redundancy and she received €5,087.85. It should be noted that without this policy change her contract would have come to an end in May 2017 once the staff absence being covered came to an end. They cited Sec 9(1) and (2) of this Act. They stated that she was in receipt of only one contract of employment and was not employed on two or more continuous fixed term contracts. Her contract cannot therefore be deemed to be a contract of indefinite duration. She was issued with a contract to cover the absence of a permanent staff member and that it relates to a very specific purpose. A policy change in the Department restricted the cover to two years. Even without such a change her contract would have come to an end when the underlying purpose no longer existed. This claim is rejected.

I note that the stated purpose of the contract was of covering a permanent staff member’s absence.

I note that this person’s absence continued till the Complainant’s employment was terminated.

I note that the termination was effected by a change on the Respondent’s policy which meant that absences of two years or more had to be filled.

I note that due to data protection the absent staff member was not named but available to the Commission.

I note that the purpose of the contract is clear, however I note that the Complainant was never spoken to about the continuing absence until she was advised that the contract was to end.

I note that the Complainant is relying upon Sec 9(1) of this Act which states, “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”.

I find that it is clear that this section of this Act refers to contracts in existence at the passing of the Act which was 2003.

I find that the Complainant cannot rely upon this section to establish a contract of indefinite duration.

I note that the Respondent has relied upon Sec 9(2) which states “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.

In this case the Complainant had only one contract and so does not meet the requirements as set out in 9(2) above.

What has to be decided is, if the purpose of the contract was genuine and meeting a real need.

I find that the Complainant was employed on a fixed purpose contract to meet a real need of an absent staff member.

I note that it was a change of policy that brought about the termination of the contract. This meant that as the position of the absent employee that was being covered had to be filled through the normal selection process rather than by affirmation of the Complainant.

I find that even without such a change of policy the Complainant’s contract would have come to an end when the underlying purpose of it no longer existed.

Therefore, I find that the purpose of the contract related to precise and concrete circumstances, that is the cover for an absent employee.

For the above stated reasons, I have decided that the complaint fails.

Contract of Indefinite Duration