FTD195

The Appellant appealed the Adjudication Officer’s decision carrying the reference number CA-00016364-001 on 11th September, 2018. A Labour Court hearing took place on 8^thNovember 2018 and final papers were received from the parties on 21^stJanuary 2019.

Background

The Appellant was employed as a Civilian Ministerial Driver by a number of Government Departments in the period from 6^thMay 2011 until the termination of his employment on 17^thNovember 2017.

The details of the contracts issued to the Appellant are as follows:

• 
  •The Appellant entered into a contract with the Department of Health on 6^thMay 2011 to serve as a civilian driver to the then Minister of Health.

  •When that Minister moved to the position of Minister for Children and Youth Affairs the Appellant entered into a contract with the Department of Children and Youth Affairs on 11^thJuly 2014.

  •On 6^thMay 2016 the Appellant entered into a contract with the Department of An Taoiseach to serve as civilian driver to the Government Chief Whip.

  •When the Chief Whip became Minister for Social Protection the Appellant entered into a contract with the Department of Social Protection on 14^thJune 2017 to serve as civilian driver to the Minister for Social Protection.

The Law

The principal statutory provisions applicable in this case are to be found at sections 2, 5, 6 and 7 of the Act.

Section 2 provides

• Employers are deemed associated if-

  A) one is a body corporate of which the other (whether directly or indirectly) has control, or

  b) both are bodies corporate of which a third person (whether directly or indirectly) has control.

• 5.(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—
  • (a)the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

    (b)in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or

    (c)in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

• (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

  (b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

  (c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

• 6.(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

  (2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

• 7.(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

  (2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6 (2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.

The combined effect of these statutory provisions is that a fixed-term employee is entitled to be treated no less favourably, in respect to his or her conditions of employment, than a comparable permanent employee, unless the difference in treatment is justified on objective grounds.

Associated employers

The first matter for the Court to consider in the within appeal is the question as to whether the Government Departments who issued fixed term contracts to the Appellant were, within the meaning of the Act at Section 2(2), associated employers.

The Act at section 2(2) provides as follows:

2(2) Employers are deemed to be associated if—

• (a) one is a body corporate of which the other (whether director indirectly) has control, or

  (b) both are bodies corporate of which a third person (whether directly or indirectly) has control.

The Court concludes that the nature of Government Departments is decided by Government, the functions assigned to Government Departments are assigned by Government and the funding for Government Departments is decided by Government. The Court must therefore conclude that Government does (directly or indirectly) have control over each of the Government Departments.

It follows that the four Government Departments are associated employers for the purpose of Section 2 (2) of the Act.

The nominated comparators

Section 5 of the Act provides that in choosing a comparator the Complainant must under section 5(1)(a) first examine their own employer and any associated employer for a valid comparator. If unsuccessful then the Complainant must then proceed under Section 5(1)(b) to examine any employees employed under a collective agreement, which agreement which also affects them. If not successful under Section 5(1)(a) or 5(1)(b) then under Section 5(1)(c) the Complainant may seek a comparator in the same industry or sector of employment with the proviso that the selected comparator must be engaged in the same or similar work or in work of equal or greater value.

The Appellant has put forward a range of roles in various employments as appropriate comparators. Specifically, the Appellant has nominated (1) Garda Civilian Drivers, (2) civilian drivers in the Courts Service, (3) permanent service officers across Government Departments, (4) permanent clerical officers in the Civil Service and (5) permanent executive officers in the civil service.

The Appellant has put forward permanent Clerical Officers, Executive Officers and Service Officers in the civil service as comparators and submits that, in accordance with the Act at Section 5(2)(c) these comparators carry out work which is equal in value to the work of the Appellant.

These permanent employees are, in accordance with the Court’s finding above, employed by the same or associated employers as the Appellant. The Court has been provided with detail of pay rates for these nominated comparators and it is clear that they correspond at certain points with the rate of pay of the Appellant.

The Respondent submits that the Appellant has no permanent civil service comparator.

The Court finds that no information has been put before it which would support the contention that these nominated comparators meet the requirements of the Act at Section 5(2)(a). In order therefore to be accepted as comparators within the meaning of the Act the nominated comparators would have to meet the requirements of the Act at Section 5(2)(b) and 5(2)(c). In essence, the nominated comparators would require to be carrying out similar work to that of the Appellant and be carrying out work which is of equal value to that of the Appellant. The Court has been provided with no information which would support a conclusion that these nominated comparators carry out work of the same or a similar nature to that performed by the Appellant and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant. The Court therefore is unable to conclude that these nominated comparators meet the requirements of the Act at Sections 5(2)(b) and 5(2)(c).

The Court consequently finds that these nominated comparators are not comparators within the meaning of the Act.

The Court concludes that the Appellant has not identified a comparator within the meaning of the Act who, in accordance with the Act at Section 5(1)(a), is employed by his own or an associated employer.

The Court has been given no information which suggests that, in accordance with the Act at Section 5(1)(b), any of the five nominated comparators are specified in a collective agreement, being an agreement that at the material time had effect in relation to the Appellant, to be a type of employee who is to be regarded for the purposes of this part of the Act as a comparable permanent employee in relation to the relevant fixed-term employee. The Court therefore concludes that the Appellant has not identified a comparator within the meaning of the Act at Section 5(1)(b).

The Appellant has nominated Garda Civilian Drivers as an appropriate comparator within the meaning of the Act. No submission has been made that such drivers are employed by the same or an associated employer to the Appellant. The Court finds that Garda civilian drivers are employed in the same industry or sector of employment as the Appellant. The Court finds therefore that this nominated comparator meets the requirements of the Act at Section 5(1)(c).

In order therefore for the Court to find that Garda Civilian Drivers are an appropriate comparator within the meaning of the Act the Court must consider whether this nominated comparator meets the requirements of Section 5(2) of the Act.

The Respondent submits that the Appellant has submitted no evidence as to the duties carried out by Garda Civilian Drivers and that is difficult to make any meaningful comparison of the duties of that post and the post occupied by the Appellant.

The court has been provided with no detail of the duties of a Garda Civilian Driver. The Court has been provided with an undated document which purports to show the general conditions of employment of a Garda Civilian Driver. It appears that such drivers are employed on a five-day week basis and receive overtime for additional hours worked for example. The Appellant by contrast appears to have been required to work seven days on followed by seven days off with no limitation as to hours worked while on duty and no provision for overtime. The Court has not been provided with definitive evidence of these matters and draws the above conclusion from the submissions of the parties to the degree that such matters have been addressed therein.

In all of the circumstances the Court concludes that the Appellant and the nominated comparator do not perform the same work under the same or similar conditions and neither is each interchangeable with the other in relation to the work. The Court therefore concludes that the nominated comparator does not meet the requirements of the Act at Section 5(2)(a).

In order therefore to be accepted as a comparator within the meaning of the Act the nominated comparator would have to meet the requirements of the Act at Section 5(2)(b) and 5(2)(c). The work performed by the Appellant must be the same or a similar nature to that performed by a Garda Civilian Driver and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant. The Court has been provided with no information as regards the work of Garda Civilian Drivers and consequently has no basis, other than the use of the word ‘Driver’ in the job title, to conclude that these nominated comparators carry out work of the same or a similar nature to that performed by the Appellant and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant work. The Court therefore is unable to conclude that these nominated comparators meet the requirements of the Act at Section 5(2)(b.

The Court consequently finds that this nominated comparator is not a comparator within the meaning of the Act.

For completeness, the Court notes that it has been given no information that Garda Civilian Drivers have access to the Disciplinary Code for the Civil Service and consequently would have a significant challenge in assessing whether the Appellant could sustain his complaint of less favourable treatment when compared with this nominated comparator which is based on the denial to him of such access.

The final comparator nominated by the Appellant is that of Driver in the Courts Service. The Court has no information at all in relation to this post or the conditions attaching thereto and is unable to find that this post is a valid comparator within the meaning of the Act at Section 5.

Determination

The Court determines that the Appellant has failed to identify a comparator within the meaning of the Act at Section 5. The within appeal therefore fails and the decision of the Adjudication Officer is affirmed.

Signed on behalf of the Labour Court



Kevin Foley
MK______________________
4 April 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.