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-00013004-001

08/08/2017

The Complainant is employed as a Temporary Clerical Officer since 22nd April 2013. He is paid €524.90 per week. He is seeking a contract of indefinite duration.

The Complainant’s contract of employment commenced on 22nd April 2013 with a purpose cited but with no specific end date in the contract. He has not received any contracts or letters of extension from her employer since 22nd April 2013. Under Sec 6 of this Act he is comparable to all permanent employees performing clerical officer duties. He claims that under Sec 7 of this Act the objective grounds for less favourable treatment is based solely on his status as a fixed term worker. He is entitled to a contract of indefinite duration by operation of law. He has performed a range of clerical officer duties and has been trained to reach the required standard of performance for the full range of clerical officer duties. The Respondent’s actions are not justifiable on objective grounds. Sec 7 and 8 of this Act was cited. Permanent and temporary clerical officers perform the same duties. It is accepted in case law that fixed term workers should be recruited for the purpose of meeting a temporary and /or transient need only but this is not what is occurring in this case. The project that the Complainant is involved in is the PSC card. The objective is to issue three million such cards by the end of 2017 but there is no specific end date on the contract. The purpose of this contract was “for the purpose of general clerical officer duties to begin the roll out of the PSC on a nationwide basis”. This work is on-going and will not have a finite time as it is proposed that every citizen will receive such a card. The Complainant was assigned to a local office. Upon commencement, he performed a range of general clerical duties before he was assigned to the PSC. Each year he was assigned training duties for new staff. It is his position that the PSC has become part and parcel of everyday life in the Department and no longer meets a transient need. The work is on-going and long since bedded in. The objective grounds suggested by the Respondent no longer exist and have not existed for quite some time. So clearly the question is when is a project no longer a project? It is his position that the PSC can no longer be deemed a project or transient or temporary work, as it pertains to fixed term workers legislation and there are no objective grounds. The less favourable treatment is solely based on his status as a fixed term worker. It is his position that having completed more than four years continuous employment on one fixed term contract the Respondent has contravened Sec 9(1) and by operation of Sec 9(3) the contract has transmuted into one of indefinite duration by operation of law. 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. In the Adeneler case the European Court made it clear that the work performed must relate to real and concrete circumstances to which the contract relates. The work that he is performing is now part of the daily work of the Department. There are no objective grounds justifying the less favourable treatment. The employment is not for the purpose of achieving a legitimate objective and/or appropriate and necessary and is based solely on her status as a fixed term worker. He is entitled to a contract of indefinite duration.

Summary of Respondent’s Case:

While it is accepted that the Complainant has in excess of four years continuous service a contract of indefinite duration is not appropriate as he does not have two or more successive fixed term contracts required in this Act, the Protection of Employees (Fixed term work) Act. The purpose of his contract is to facilitate the implementation of the PSC card. This is the objective reason of his employment and is stated in the contract of employment. The demand for the PSC card generated by these commitments means that the Department will be continuing to issue large volumes of new cards until the end of 2018. Once the implementation phase is completed the need for temporary staff to support this initial registration process will no longer exist. The issue of PSC s will then become part of the Department’s on-going operations and will be staffed on a permanent basis. That date is still unknown. As the objective reason for the contract continues and as he is facilitating the implementation of the PSC project it is the Department’s position he is not entitled to a contract of indefinite duration. Her contract specifically stated “This appointment will commence from 5th June 2012 and will be for the purpose of general clerical officer duties to begin the roll-out of the PSC. This appointment therefore cannot result in an offer of a contract of indefinite duration”. When the objective reason for this temporary contract ceases, he will be given appropriate notice as determined by employment law and his contract will terminate. He will also receive statutory redundancy.

This claim is rejected.

Findings and Conclusions:

I note that the Complainant was issued with a contract of employment on 22nd April 2013.

I note that he was not issued with any other contracts or extensions to his contract of employment.

I note that this contract, purportedly a “fixed purpose” contract was “for the purpose of general clerical officer duties to begin the roll-out of the PSC on a nationwide basis.

I note that the contract also stated, “This appointment therefore cannot result in an offer of a contract of indefinite duration”.

The Protection of Employees (Fixed Term Work) Act 2003 in Section 2 “fixed term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event.

Also 8 (1) states “Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—(a) arriving at a specific date, (b) completing a specific task, or(c) the occurrence of a specific event”.

I find that this contract of employment is not determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event.

This contract only states. “for the purpose of general clerical officer duties to begin the roll-out of the PSC.

Therefore, I find that this is not a fixed term contract.

I note that in Sec 9(2) it 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 I find that there were not two or more continuous fixed term contracts.

Therefore, I conclude that this was not a fixed term contract of employment and the Complainant has not had two or more continuous fixed term contracts.

I find that the Complainant was not a fixed term worker.

I find then that the Complainant has not got” locus standi” and I do not have jurisdiction to hear this case.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I have decided that the Complainant was not a fixed term worker and has not established locus standi and therefore I do not have jurisdiction to hear this case.

Fixed Term Worker?   Locus standi