ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00023413

Parties:

Complaint(s):

Date of Adjudication Hearing: 23/10/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

CA-00030023-001

CA-00030170-001

Protection of Employees (Fixed-Term Work) Act 2003

Preliminary Issue.

The claimant commenced employment with the respondent on the 13th February 2009 on a 23-month fixed-term contract of employment. The claimant submitted that respondent appointed 13 General Operators in permanent positions in 2013.

On the 17th of July 2014 the claimant commenced a new fixed-term contract and on the 11thof December 2015 he received a long-term contract (contract of indefinite duration) and a €10 pay cut.

The claimant submitted a complaint under section 14 of the Protection of Employees (Fixed-Term Work) Act 2003

The claimant submitted additional points in relation to pay matters;

Findings

14.— (1) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened any provision of this Act in relation to the employee and, if the employee or such a trade union does so, the commissioner shall—

(a) give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,

(b) give a written decision in relation to the complaint, and

(c) communicate the decision to the parties concerned.

(2) 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;

and references in paragraphs (a) to (d) to an employer shall be read in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.

(3)          A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.

(4) Notwithstanding subsection (3), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

(5)          A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.

(6) A copy of a notice under subsection (5) shall be given to the other party concerned by the rights commissioner.

(7) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.

(8) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner under subsection (1).

(9) The Minister may be regulations provide for any matters relating to proceedings under this section that the Minister considers appropriate.

Findings

I find that the claimant received a contract of indefinite duration on the 11th December 2015. The claimant was no longer a Fixed Term Worker at that point.

The complaint was received by the Workplace Relations Commission on the 8th April 2019

I find that the claimant was a permanent employee when the complaint was received and not a fixed-term worker as defined by the 2003 Act.

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 find the complaints are not well-founded and falls,

Dated:   3rd December 2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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