Complainant

Respondent

Anonymised Parties

Clerical Officers

Government Dept.

Representatives

   Civil Public & Services Union

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-00008098-001

10/11/2016

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

CA-00008099-001

10/11/2016

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

CA-00008109-001

10/11/2016

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

CA-00008114-001

10/11/2016

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

CA-00008115-001

10/11/2016

It was submitted that the purpose of the Act was to improve the quality of fixed term work by ensuring the application of the principle of non-discrimination and to establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships. It was submitted that given the claimants’ length of continuous service which exceeded 4 years , the respondent was in breach of Section 9(2) and that by operation of Section 9(3) of the Act , their fixed term contracts were transmuted into contracts of indefinite duration by operation of law.

The union set out the 2012 commencement date of each of the 5 claimants .In all cases the terms cited referred to “ for the purpose of general Clerical Officer duties in …. to   facilitate the implementation/ begin the roll out of the Public Service Card”.It was submitted that the claimants did not receive any renewal contracts or letters of extension from their employer since they commenced employment. It was submitted that the claimants were comparable to all permanent employees performing Clerical Officer duties in the Civil Service .It was contended that the objective grounds for less favourable treatment of the claimants was based solely on their status as fixed term workers. It was submitted that the claimants are performing the full range of Clerical Officer duties and that the respondent’s actions were not justifiable on objective grounds. The background to the issuing of public service cards was outlined and   while there was a target of 3 million cards by end 2017 , there is no specific end date on the claimants’ contracts. It was submitted that the work of PSC registration was ongoing and will not have a finite time.

Direct evidence was given by the claimants of their assignment to the full range of Clerical Officer duties and details of the work involved in renewals and processing of new cards was outlined. It was advanced that PSC work had become part and parcel of everyday work for the respondent’s staff and consequently did not meet a transient need. It was further asserted that the objective grounds no longer existed and have not existed for some time. It was argued that the respondent’s target dates were a moveable feast , that this was unfair and constituted a breach of the legislation.

The provisions of Inoue v NBK Designs [2003]14 ELR 98, C-212-04 Adelener and Ors V Ellinikos Organismos [2006]IRLR 716 , Case 476/99 Lommers v Minister van Landbou , Natuurbeheer en Visseri [2002] IRLR 430 were invoked in support of the unions position.

The union advanced that they “ accept that there will always be a need for fixed term staff , however, where an individual has been employed in excess of 4 years , we contend 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 in any of the claimants’ cases. We contend that the duties the claimants have been performing over the years do not strictly relate to their contracts for the reasons outlined and the terms of their contracts are no longer relevant as there can be no estimated time as to when each citizen will receive a Public Service Card”. This it was submitted is permanent work that has bedded in to everyday life. It was submitted that Case C-16/15 Maria Elena Perez Lopez v SErvicio Madrilene de Salud precludes national legislation which allows the renewal of fixed term contracts to cover temporary staff needs , when these needs are in fact permanent.

The respondent asserted that all of the claimants were recruited from the temporary Clerical Officer panel established and maintained by PAS.” All of the above officers were provided with a temporary contract of employment , where the stated purpose was to provide general clerical officer duties in their respective locations to facilitate the implementation of the PSC.

It was submitted that while the respondent acknowledged that each of the claimant’s had in excess of 4 years service , a CID was not appropriate as none of the claimants had the 2 or more successive fixed term contracts which are required in order to have an entitlement to a CID under the Act.The respondent set out the implementation arrangements for the roll out of the PSC.

It was submitted that the objective reason for the employment of the claimants was to facilitate the initial roll out of the PSC.It was submitted that when the objective reason ceases , each of the claimants will be given appropriate notice and their contracts will terminate.The contracts issued to the claimants advised that “ the appointment will commence from ….and will be for the purpose of ‘general clerical officer duties in ….. to begin the roll out of the Public Service Card ‘.This appointment therefore cannot result in an offer of a contract of indefinite duration.

Ref. CA-00008114

It was submitted that the claimant Mr.McC was previously assigned as a temporary CO by the PAS to the DSP from 27.06.11 to 19.11.11 on a fixed purpose contract .The objective reason was to work on the Back to School clothing and footwear allowance project.

The claimant competed and was successful in the 2012 competition and was assigned to the Dept. on the 30.07.12.It was submitted that the claimant could have been assigned to any Government Dept. in the County.It was submitted that the stated purpose of the claimant’s employment was to facilitate the implementation of the PSC.

Ref.C-00008098

It was submitted that the claimant Ms.G was recruited on the 30th.April 2012 from the temporary Clerical Officer Panel   established by PAS. It was submitted that the stated purpose of the claimant’s employment was to facilitate the implementation of the PSC.

Ref.C-00008099

It was submitted that the claimant Ms.OR was recruited on the 30th.April 2012 from the temporary Clerical Officer Panel   established by PAS. It was submitted that the stated purpose of the claimant’s employment was to facilitate the implementation of the PSC.

Ref.C-00008109

It was submitted that the claimant Mr.A was recruited on the 23rd.July.2012 from the temporary Clerical Officer Panel   established by PAS. It was submitted that the stated purpose of the claimant’s employment was to facilitate the implementation of the PSC.

Ref.C-00008115

It was submitted that the claimant Ms.M was recruited on the 5th.June 2012 from the temporary Clerical Officer Panel established by PAS. It was submitted that the stated purpose of the claimant’s employment was to facilitate the implementation of the PSC.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties. The Labour Court examined in detail the wording of Section 9 of the Act in the context of similar claims to the instant case and determined that the wording is directed at regularising the circumstances in which fixed term contracts are renewed in FTD 184.It was found accordingly that where a fixed term contract is not renewed there can be no contravention of Section 9 of the Act.

In the instant case none of the claimants had 2 or more successive   fixed term contracts – accordingly the matter of renewal does not arise. In such circumstances I find the complaints are unsustainable and uphold the position of the respondent. This is consistent with the deliberations and findings of the Court in FTD 184.