ADJ-00016896

Complainant

Respondent

Anonymised Parties

An Employee

A Local Authority

Representatives

LynnCoffeyFórsa Trade Union

 Local Government Management Agency

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00021920-001

18/09/2018

The Complainant commenced work with the Respondent, a Local Authority, on 4 June 2002. The Respondent was employed as a Temporary Clerk of Works, on a temporary contract which was due to terminate on 3 December 2002.  In recognition of the Complainant’s qualifications and previous experience he was placed on the 5th point of the Salary Scale.

From 13 May 2002 until 4 June 2006, the Complainant received 10 temporary contracts from the Respondent. He then received a further two Fixed Purpose Contracts. In total, the Complainant received 12 contracts during the period 2000 and 2009. Each of these contracts confirmed his position as Temporary Clerk of Works.

Each contract was for a duration of six months until the Complainant received the second Fixed Purpose Contract on 4 June 2007.  The Complainant continued to be employed by the Respondent under this contract until receipt of a Contract of Indefinite Duration [CID] which was provided to him on 13 May 2009.

With regard to remuneration, each contract, issued between 4 December 2003 on 3 June 2006 refers to a salary equivalent of Point 5 of the Clerk of Works Salary Scale  (i.e. €40,533 pa plus an all-inclusive allowance of €7,800.24 pa).  While subsequent contracts do not refer to the point on scale, the Complainant’s salary continued to reflect Point 5 of the salary scale and only differ in real terms due to the application of public service pay agreements.

The Complainant received a Contract of Indefinite Duration on 13 May 2009 in relation to a position of Site Technician Level ll/Clerk of Works. This contract stated that the Complainant will be paid at the Site Technician Level ll Salary of €47,823pa. The allowance for travel purposes, which attached to previous contracts, was replaced due to the supply of a vehicle.

In January 2017, the Complainant wrote to the Respondent pointing out that he had not received any increases in his salary since 2002. In this correspondence the Complainant highlighted that he had spoken with colleagues who were moved up the scale on signing new CID contracts which resulted in colleagues on a similar grade being at the top of their salary scale. The Complainant requested that the Respondent investigate any anomalies in his salary. The Respondent replied to this request by informing the Complainant that they would not investigate his individual request regarding anomalies within his own pay scale.

Following a number of attempts by the Complainant to resolve the matter with the Respondent, he sought the assistance of his Trade Union in this regard.  An exchange of correspondence then took place between the Trade Union and the Respondent. This culminated in a letter from the Respondent, dated 7 December 2017 in which it was stated that the Complainant had been employed, since 27 August 2015, as an Acting Site Technician Grade 1 and that he had accepted a fixed point on the salary scale on signing this contract. In conclusion, the Respondent advised the Complainant that they did not intend to alter the provisions of his CID contract which fixes the terms and conditions of his employment with them.

Having failed to have the matter addressed to his satisfaction at local level, the Complainant submitted his claim, under the Industrial Relations Act, 1969, to the Workplace Relations Commission on 18 September 2018.

At the Oral Hearing, the Complainant’s Trade Union representative made the following substantive arguments on his behalf.

1.       Specifications for the payment of salary for Site Technician Level l & ll are set out in Circular Letter (EL11/96). This circular states two ranges of payment or pay bands for the position. It further states that salary for each post should be determined by the Local Authority, within the band set out. These bands continue to exist today within the Department of Housing, Planning and Local Government, as set out on Circular EL04/2018.

2.       Under a Circular Letter LA(P) 4/96, the then Minister of Environment under the programme of “Devolution of Responsibility”, assigned matters of personnel to each of the local authorities, giving each Local Authority the responsibility to address salary payments, while keeping within public pay policy.

3.       The Local Authority in the within case has a salary scale for this particular grade, albeit, the salary scale spanned over an eight-point scale and kept within the financial amounts of the bands which are set out by the Department.

4.       By using this method, the Respondent, created a reasonable expectation for the Complainant that throughout his career within the Council he would be allowed to progress to the highest point of the scale (or band) as supplied to him by his employer. This expectation is further embedded in the fact that his numerous contracts stated that “details of the Salary Scale are available from the Accounts Section and the scale is subject to agreed increases.”

5.       When the Complainant was initially employed on a temporary basis, his qualifications and years of experience within similar works were taken into consideration. This acknowledgement placed the Complainant on the Point 5 of the pay scale as provided to him by the Respondent.

6.       During the period from 2002 to 2009, the Respondent failed to acknowledge the years of experience gained while working for the Respondent, as they did not progress him on the salary scale which they provided to him.

7.       After carrying out continuous employment for a seven-year period, the Respondent again did not recognise years of service and continued to place the Complainant on the same point in the scale as his 2002 temporary contract when commencing him on the CID contract in May 2009.

8.       If the Respondent had rightly taken into account the Complainant seven years of experience while working with them he should, on commencement of the CID contract, have been correctly placed at the top point of the pay scale as there are eight points within that scale.

9.       The Respondent has recognised similar work experience gained external to its own organisation. The Respondent refused to recognise its employees seven added years of experience within its own organisation when issuing the CID contract in 2009. The Respondent has continued to refuse to recognise works that have been carried out with all employee for a period of nearly 17 years, citing that signing a CID contract places an employee on a fixed point on the scale. By doing so, the Respondent is making a difference between a CID contract and a contract for a permanent employee, even though no such difference exists.

Conclusion:

In summing up the Complainant’s position, his Trade Union representative stated that he had been failed by the Respondent on a number of points:

·         Nonrecognition of years of works carried out for the Respondent whilst on temporary contracts for a period of seven years.

·         Failure to recognise seven years of experience when issued with a CID.

·         Citing a CID contract restricts an employee to remaining on one point of the salary scale.

·         Creating an expectation for the employee by stating in his contract of employment that: “Details of the Salary Scale are available from the Accounts Section and the scale is subject to agreed increases.”

·         Refusal to honour acknowledge this section of the Complainant’s contract of employment.

·         Dismissive manner in which the Complainant was treated by the Respondent when he made an individual request with regard to an investigation of his own salary and the length of time the management took to respond to him and his representative with regard to this issue.

In summary, the Complainant’s Trade Union representative stated that he had been financially at a loss due to the failure of his employer to act in an expected, honourable manner with regard to his salary.  

Consequently, it was submitted that the Complainant is seeking to be rightly placed on the correct point on the salary scale, i.e. Point 8.  The Complainant is also still seeking acknowledgement that the Respondent acted in error by not appointing him to the proper point on the scale when the CID contract issued on 13 May 2009.

The Complainant is further seeking a refund of all monies due to him as he would have rightly earned over this 10-year period. The amount in question is calculated at €33,781Point 50. In addition, the Complainant is seeking compensation, in monetary terms, for the stress caused to him while trying to deal with this issue and for the disrespectful manner in which his employer treated him in this regard.

On that basis, the Complainant seeking a favourable recommendation from the adjudication process.

Background:

The Respondent submitted that the Complainant commenced employment in 2002 and was employed as a Site Technician Grade 2, on a temporary contract of employment, at Point 5 of the incremental scale.

It was further submitted that the Complainant remained working for the Respondent on a number of successive fixed term contracts (all at Point 5 of the incremental scale) until 2009, when he was awarded a Contract of Indefinite Duration (CID)in accordance with the Protection of Employees (Fixed-Term Work) act, 2003. In this regard, the Respondent made specific reference that the contract  in question was awarded in line with Section 9 (3) of the Act whereby it is stated: “where any term of a fixed term contract purports to contravene subsections (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration”.

The Respondent further submitted that consequently, in accordance with the Act, the Complainant was provided with a CID contract on the same terms as his previous contract of employment from 2007, where he was also on Point 5 of the scale.

Respondent’s response to the Complainant’s substantive claim:

The Respondent submitted that the Complainant was not successful in competing for a permanent position, but rather was provided with a CID contract under the Protection of Employees (Fixed-Term Work) Act and where it has been well established that the entitlement under this Act is for the employee to be provided with the CID on the same terms only. It is further submitted that it does not entitle the Complainant to a better contract or terms than he was on or entitled to under the Act.

According to the Respondent, the Complainant did not start work on the minimum point of the scale back in 2002 but was appointed on a temporary contract on Point 5 of the Scale. While acknowledging that there were increases in the rate over the years of the Complainant’s employment, the Respondent contended that at all times he remained on Point 5 of the Scale up to 2009, when he was awarded a CID in accordance with the Protection of Employees (Fixed-Term Work) Act.

 The Respondent submitted that it considers the awarding of the Complainant’s contract in 2009 to be correct and proper at the time. It was further submitted that if the Complainant had any issues with the terms of the contract claim under the Protection of Employees (Fixed-Term Work) Act he should have raised them at the time. In this regard, the Respondent submitted that the aforementioned Act would be the proper legislation under which to have taken his case. However, the Respondent stated that a claim under the Act at this stage would be out of time.

Legal Arguments:

According to the Respondent’s submission, it has been well established, through case law, that fixed term workers cannot accrue a better contract than that which he or she held on a fixed term basis, other than in respect of the circumstances in which the contract comes to an end. The Respondent further submitted that, accordingly, an employee appointed to a set salary/point of scale on fixed term contracts could not accrue entitlements to access to increments and higher pay under the Act, where no entitlement existed under the previous fixed term contracts.

In this regard, the Respondent cited the case of Kerry County Council v James Walsh and others [FTD 154] wherein reference was made to the High Court decision in the case of  Minister for Finance v McArdle [2007 ELR 165]  and the judgement of the CJEU  in the case of Huet v Universite de Bretagne  Occidentale [C-251/11].

The Respondent also cited the Labour Court case of Siobhan O’Donoghue v Rice College [FTD1240], where there are strong similarities to the within case, wherein the Respondent is submitting that there was no contractual access to incremental credit progression to higher points of the scale beyond Point 5 under the Complainant’s fixed term contracts and none was provided after his Contract of Indefinite Duration was issued.

Finally, in support of their position, the Respondent cited the Labour Court case of TCD v Elaine Moriarty [FTD125].  The Respondent used this case to make the point that the Complainant only gained a Contract of Indefinite Duration by virtue of the Protection of Employees (Fixed-Term Work) Act and, in that regard, the Respondent submits that they have fully provided the Complainant with his entitlements under that Act. The Respondent further submits that there is no entitlement to better terms than that which were enjoyed under the previous Fixed Term Contract, including pay or increments higher than that which was legally gained under the Act.

Conclusion:

In concluding their submission, the Respondent raised the question as to the jurisdiction of the Adjudicator in this case. The Respondent pointed out that the case was raised under the Industrial Relations Act.  The Respondent contends in this regard that the fact that the case relates to the Complainant’s Contract of Indefinite Duration gained some 10 years ago under the Protection of Employees (Fixed-Term Work) Act, the claim should have been raised under the relevant Act at that time. The Respondent submitted that such a claim is now out of time.

The Respondent submitted that for the adjudicator to make a recommendation in this case now, would be contrary to the provisions and entitlements provided under the Protection of Employees (Fixed-Term Work) Act, which were provided for at the time by the Respondent at the time.

In summary, the Respondent requested that the Complainant’s claim be rejected and the position of the Respondent be upheld.

Preliminary Point:

In their submission at the Hearing, the Respondent raised an issue in relation to my jurisdiction, as Adjudication Officer in this case. The Respondent contends that, had the Complainant any issue with the awarding of his CID under the Protection of Employees (Fixed-Term Work) Act, 2003, he should have raised his concerns under the Act at the time the contract issued, which was on 13 May 2009. According to the Respondent, the fact that the Complainant did not raise any issues in relation to the CID in 2009, he is now out of time to raise the issue and, as a result, that the Adjudicator in the case has no jurisdiction to hear his complaint.

The Complainant has raised his complaint under Section 13 of the Industrial Relations Act 1969. He has not raised the complaint under the Protection of Employees (Fixed-Term Work) Act, 2003.  In that context, I am satisfied that the question of jurisdiction relates to whether or not I can hear the Complainant’s complaint under the Industrial Relations Act.

Section 13 (2)  of the 1969 Act states as follows:

(2) “Subject to the provisions of this section, where a trade dispute (other than a dispute connected with rates of pay of, hours or times of work of, or annual holidays of, a body of workers) exists or is apprehended and involves workers within the meaning of Part VI of the Principal Act, a party to the dispute may refer it to a rights commissioner”.

 Having carefully considered  the Complainant’s complaint I am satisfied that it is consistent with the provisions as set out in subsection 2 of the Act above. The essence of the Complainant’s claim relates to the Respondent’s failure to recognise his service and experience in the almost 17 years he has been  in employment with them.  As set out in his submission, the Complainant’s dissatisfaction in this regard relates equally to the periods before and after he was provided with the CID in May 2009.

The Complainant is further claiming that the Respondent unreasonably created expectations of progression when he was informed of the details in relation to his Salary Scale and that the scales were subject to agreed increases, only for this  expected progression to be denied to him.

In addition, I note from the Complainant’s submission that he feels aggrieved with the manner in which the Respondent dealt with his subsequent raising of his grievance. In this regard he referenced both the nature of the response and the length of time it took to receive same. In his submission the Complainant also makes reference to colleagues whom he contends were moved up their scale on signing new CID’s. Further references were made to colleagues on a similar grade who are at the top of the salary scale for those grades.

Clearly, the  Complainant considers there to be anomalies in relation to his salary and he’s seeking to have these investigated as an individual trade dispute under the Industrial Relations Act, 1969.

Having carefully considered all of the evidence adduced in this regard I am satisfied that the Complainant’s complaint represents a valid dispute with his employer. Based on this, I am satisfied that I have the jurisdiction to investigate the Complainant’s complaint under the 1969 Act and issue a recommendation subsequent to my consideration of the complaint and the respective submissions made in that regard.  That recommendation will be one that endeavours to facilitate a compromise between the  respective positions of the parties in an effort to solve this industrial relations dispute. The recommendation will not however, impact on the Respondent’s ability to rely on the provisions of the Protection of Employees (Fixed-Term Work) Act, 2003, into the future, should they so wish.

 Substantive Issue:

Having carefully considered all of the evidence adduced in this case, it is clear that the Complainant feels aggrieved that while he has been working for the Respondent for 17 years, they have failed to recognise, in salary terms, his service and/or his experience. While the Respondent recognised the Complainant’s qualifications and prior experience by placing him on Point 5 of the Site Technician (Level ll)/Clerk of Works Grade when he was initially employed in 2002, he has made no progress through the respect of salary scale in the intervening 17 years.

Against a background of continued good service/work performance, as evidenced by his  appointment, in 2015, to an acting Site Technician Level l role, it is not difficult to understand the Complainant’s dissatisfaction with the situation. In addition, I can see how this dissatisfaction is further increased where the Complainant perceives that he is being treated less favourably than colleagues in a similar position.

While I can also understand the Respondent’s concerns in relation to the creation of CIDs pursuant to the provisions of the Protection of Employees (Fixed-Term Work) Act, 2003 and protecting the position in that regard, I am satisfied that an appropriate resolution to this dispute can be achieved by the application of a degree of goodwill on the part of all parties.

Consequently, having carefully considered all of the evidence and the respective positions of the parties, I am of the view that the anomaly in relation to his salary, as perceived by the Complainant, could be resolved by placing him on Point 8, of his substantive grade, that of Site Technician Level ll.

Cognisant of the Respondent’s position in relation to the application of the Protection of Employees (Fixed-Term Work) Act, 2003, I am of the view that the placing of the Complainant on Point 8 of his grade should be with immediate effect and that no retrospection should apply. However, in all the circumstances, I am of the view that a small compensation payment might be considered by the Respondent as a gesture of  goodwill and in recognition of an employee who has given good and loyal service over the last 17 years.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I recommended as follows:

·         That the Complainant is placed on Point 8, which is top of the Salary Scale for the Site Technician Level ll grade, with effect from the date of this Recommendation.

·         That the Respondent make a payment of €4,000 to the Complainant, as a goodwill gesture, on the basis that he accepts this recommendation as full and final settlement of his grievance.

 That concludes my recommendation.

Industrial Relations Act

Protection of Employees (Fixed-Term Work) Act