Complainant

Respondent

Anonymised Parties

A civil servant

A 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-00015699-001

10/11/2017

The Complainant is a temporary Clerical Officer employed by the Respondent Department since 30/04/2012.

In November 2016, a complaint was lodged on behalf of the Complainant and a number of other Clerical Officers under Sections 7,9, and 10 of the Fixed Term Workers Act. This complaint was heard on 8th November 2017 by an Adjudication Officer from the Workplace Relations Commission (WRC).

The Adjudication Officer at the time did not proceed with the complaint under Section 10 of the Act as the Complainant’s trade union had not indicated that there was a complaint under Section 10 of the Act on the complaint form. The Respondent department also indicated that they were not in a position to respond to this element of the complaint.

A new complaint was lodged with the WRC on 10TH November 2017 claiming a breach of Section 10 of the Act.

Since the original hearing in November 2017 the Respondent Department have conceded that the Complainant and others are in fact entitled to Contracts of Indefinite Duration and although no decision has issued on the original case the Respondent Department have offered a Contract of Indefinite Duration to the Complainant which has been accepted, the Complainant has not yet received the written contract.

This complaint relates specifically to an alleged breach of Section 10(3) of the Act.

Department of Finance Circular 23/2007 addresses the subject of Post – Entry - Refund of Fees, Study Leave and Examination Leave. This Circular sets out the arrangements to facilitate Departments / Offices in building appropriate skill and expertise levels and in supporting officers’ efforts in the area of self-development and life-long learning. In the context of the on-going need to develop new skills and new ways of working, these measures are directed at enhancing workplace performance in the Civil Service and they recognise that assisting officers’ career development is a worthwhile investment.

The Circular at Section 14 provides that it is applicable to all Civil Servants and does not differentiate between permanent / temporary, established or un-established.

In or around June 2017 the Complainant spoke with a manager in the Staff Development Unit of the Department and discussed the possibility of participation in a course she was interested in doing and whether or not it might be covered under the Refund of Fee’s Scheme.

In response, the Complainant received an email dated 2nd June 2017 which read as follows:

“Unfortunately, the news on a refund of fees is not as positive. Part of the criteria for a refund of fees say that you must be able to pay back in time the amount of time for which you’ve been refunded, i.e. if you attend a one year course, you must be able to work for one year afterwards, or two years for a two-year course, etc. As you are temporary, and do not know when your contract will end, you cannot give such a commitment”.

Conclusion.

It is contended that the employer has breached Section 10(3) of the Act by failing to facilitate access by the Complainant to appropriate training opportunities to enhance her skills, career development and occupational mobility solely on her status as a fixed term worker.

The basis of this complaint is that the Complainant, a fixed term worker was refused access to the Refund of Fees scheme that is operated in the Department and as outlined in Circular 23/07 “Post-Entry Education – Refund of Fees, Study Leave and Examination Leave”.

Department Position.

The Complainant was assigned as a Temporary Clerical Officer (TCO) in the Departments Sligo Office on 30th April 2012. The Personnel Officer has recently approved contracts of indefinite duration to certain TCO’s who are currently employed by the Department and who are assigned to this specific project.

The Contract of Indefinite Duration for the Complainant is effective from 9th April 2018.

The Complainant is now eligible to avail of the above referenced scheme.

The decision in this complaint sits within two documents, the Protection of Employees (Fixed-Term Work) Act 2003 and Government Circular 23/07 Post-Entry Education – Refund of Fees, Study Leave and Examination Leave.

Section 10(3) of the Act states:

“As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility”.

Circular 23/07 - Post-Entry Education – Refund of Fees, Study Leave and Examination Leave. Clause 14 reads as follows:

“This circular applies to all civil servants. The decision to grant a refund/advance of fees or leave under this circular is a matter for the Head of each Department / Office”.

Section 14 (2) of the Protection of Employees (Fixed-Term Work) Act 2003 states:

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.

1.       I find that the complaint is well founded and the Respondent in refusing the Complainant access to the Refund of Fees scheme on the grounds that she was a temporary employee is a breach of Section 10(3) of the Protection of Employees (Fixed-Term Work) Act,2003.

2.       I note (per the Respondent’s submission) that the Complainant can now avail of the above referenced scheme.

3.       I order the Respondent to pay compensation in the amount of €1,000 to the Complainant, such amount should be paid within 42 days from the date of this decision.

Finally, I would like to thank both parties for the professional way in which they conducted themselves at this hearing.

Protection of Employees (Fixed-Term Work) Act,2003.