Complainant

Respondent

Anonymised Parties

A Temporary Assistant Officer

A County Council

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-00011369-001

16/05/2017

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

CA-00011369-002

16/05/2017

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

CA-00011369-003

16/05/2017

The Complainant commenced employment on a two-year Graduate Programme in May 2015.

Just prior to the completion of this contract she was offered a six-month contract for an Assistant Staff Officer which she accepted. She was of the opinion that she was due a contract of indefinite duration.

The complaint was submitted to the Workplace Relations Commission on 16th May 2017.

CA – 00011369 – 001 – Complaint referred under section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003.

The Complainant commenced in the County Council in the graduate schemefor which she was issued a 2-year fixed-term contract. The Complainant alleges that her contract was being ‘renewed’ and she was issued with a fixed-term contract for 6 months and her title was ‘temporary assistant staff officer’.

The Complaint maintains that the duties she was allocated under this 6-month contract were exactly the same as those she had been doing during her 2-year graduate programme.

The Complainant requested a statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration. She was informed that this was a different contract and therefore the legislation did not apply.

CA -00011369 – 002 - Complaint referred under section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003.

When a member of the team left the Complainant had to take on a number of her duties in addition to her own work. The Director of Corporate, communications and Governance requested the creation of a temporary Assistant Staff Officer position due to the number of vacancies in his department. The Complainant at this time feels that she was offered a lowered paid and grade than the person she was replacing. When other full-time employees ‘act up’ they are recognised with an acting up allowance and role, this was not the case with the Complainant.

The Complainant also feels that she has been denied the opportunity to interview for the open grade 5 competition, despite fulfilling the criteria.

It would appear that having applied for a position the Complainant was not invited to interview for the position for which she feels she is suitably qualified and her previous experience, she feels, was not taken into consideration.

CA – 00011369 – 003 - Complaint referred under section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003.

The Complainant accepted a two-year contract with the local authority as part of the graduate scheme. All graduates taken on were told that they would be allowed to apply for internal and open competitions as they arose.

Internal competitions arose and the first initial grade 5 position that she attempted to apply for she was informed that she could not apply as the competition was limited to employees currently in ‘acting positions’ at that point in time and thus the Complainant could not be shortlisted for such positions.

The Complainant was permitted to apply for another specialist post analogous to grade 5 and was successfully placed on a panel. At the same time, she had applied for a grade 5 position with another County Council and had been placed on a panel for this position.

The Complainant was aware that her contract on the Graduate programme was for a two-year duration however she feels that she was told in December that she would be kept on. The Complainant alleges that “for the purpose of the scheme my job did not match what was outlined in the opportunity and my line manager was not even aware of the scheme and what my role should be. I literally filled in the gaps”.

The Complainant requested on numerous occasions to have her role clearly defined, this did not happen.

The Complainant was then offered a six-month contract and was told it would be on the same pay. The Complainant believed that she would soon be able to apply for the internal competitions and be made permanent if she secured one of these. The Complainant then received a letter informing her that she was not being shortlisted for such a position. This was the cause of surprise not only to the Complainant but also her line manager and director. The Decision not to shortlist the Complainant was upheld on appeal.

The Complainant feels that the six-month contract issued at the end of her graduate contract was an extension to the graduate contract but was informed that this was not the case as they were two totally different contracts.

The representative for the Respondent made it very clear that in relation to the Graduate Programme the duration of the contract is two years and it is impossible to extend this period.

The contract issued for a six months period and commencing on 10th May 2017 and expiring on 9th November 2017 or until alternative arrangements were made, whichever is the earlier.

By email dated 4th May 2017 from the Administrative Officer, Human Resources Recruitment and sent to the Complainant, clearly points out the following:

“The Director of Corporate, Communications and Governance, requested the creation of a temporary Assistant Staff Officer position due to the number of vacancies in his Department. This request has been acceded to on the basis that it is a new temporary position and is not a continuation of the Graduate Placement which has a definitive end date of 9th May 2017”.

This email also points out:

“There is no need to issue a written statement as requested below as this is a new contract and not a renewal contract”.

There was a moratorium on recruitment throughout this entire period, this was never lifted. In order to recruit any staff a Workforce Plan and this would have to be approved at Dept of Environment level.

I note that the Complainant has made all three complaints under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 and I have to address each of the complaints under this legislation.

CA – 00011369 – 001 – Complaint referred under section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003.

In relation to the first complaint it has been pointed out that the issue of a contract for a six-month period commencing on 10th May 2017 was a new contract and this was communicated to the Complainant by email dated 4th May 2017.

Section 9 (1) of the Act states:

“Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed – term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year”.

In this instant case the Graduate contract issued was for a period of two years – it is against this background that I must decide that the complaint under section 14 of the Act is not well found and therefore fails.

CA -00011369 – 002 - Complaint referred under section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003.

The Complainant is claiming that the she was issued with a six-month contract on the departure from the department of a level 5, the Complainant’s pay was lower than the departing employee and yet she was expected to perform the same work.

Section 6 (1) of the Act reads as follows:

(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 employee.

If, as contended by the Complainant, she was doing the same work as the grade 5 employee she was replacing, she should be paid at the same grade as the departing employee.

My decision in relation to this part of the complaint is that the Complainant should be paid at the entry grade 5 level for the duration of her six months contract. The Respondent should now arrange to pay the Complaint the difference between the two rates of pay for this period.

CA – 00011369 – 003 - Complaint referred under section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003.

The Complainant appears to challenge the result of a recruitment campaign where she had applied for an internal position and was not selected for short listing.

Under the Protection of Employees (Fixed Term Work) Act 2003 I do not have jurisdiction to address this complaint. Under this legislation the complaint is not well founded and therefore fails.

As outlined above.