FTD193

This case has been delayed in progressing due to High Court proceedings and it was finally heard by an Adjudication Officer of the WRC in January 2018.

The Claimant was appointed as a permanent Clerical Officer by the respondent in 2000 and was promoted as a permanent Assistant Staff Officer in January 2003. In May 2004 the Claimant was assigned to the role of ‘acting’ Manager of the Regional Training Centre in Ballincollig for an initial period of three years. While in this role she was paid on the Grade VI pay scale. She continued to accrue incremental credit on her substantive Grade IV scale in this period. In April 2008, the Claimant was notified that she would not be returning to the role of ‘acting’ Manager and she was returned to her substantive grade.

The Claimant lodged a case under the Protection of Employees (Fixed-Term) Work Act 2003 that she was entitled to be re-instated as Manager of the Ballincollig Regional Training Centre.

The Adjudication Officer of the WRC concluded that the Claimant was a permanent employee of the Respondent and, therefore, outside of the remit of the Act.

The Claimant appealed this decision.

Preliminary issue

The Respondent argued that the appeal was statute barred as the appeal was not received within 42 days of the decision of the Adjudication Officer, as provided for in s. 44(2) of the Workplace Relations Act 2015. Upon examination of the facts, it was established that an appeal had been received on the 42^ndday so that, while the administrative section had corresponded with the Claimant regarding some incomplete information in the appeal form leading to a re-submission of the form, it was clear that an appeal had been received in time and, having heard the parties, the Court was satisfied that there was a valid appeal.

Claimant’s arguments

1 The Claimant is entitled to a contract of indefinite duration from June 2007 when her fixed term contract expired.

2 The Respondent provided no written statement setting out written grounds for non-renewal of the contract.

3 As the contract provided for possible extension after 3 years, a contract of indefinite duration should have been offered.

4 The Claimant was prevented from returning to her position as Manager.

5 The Claimant was not given valid documentation detailing why she was not permitted to return as Manager.

Respondent’s arguments

1 The Claimant is not a fixed term worker, she is a permanent employee of the Respondent. At no time was she ever given a changed contract of employment. Therefore, she has nolocus standiunder the Fixed Term Workers Act.

2 A number of cases were cited to illustrate that a person cannot be both a permanent employee and a fixed term worker in the same role at the same time.

3 Assignment on an ‘acting’ basis is common practice throughout the local government sector. No permanent entitlements to remain in the higher position accrue and, in this case, the correspondence with the Claimant makes it clear that upon cessation of the ‘acting’ arrangement, the Claimant would return to her substantive grade. Indeed, in that period she continued to accrue incremental credit in her substantive grade.

4 The Claimant was aware at all times that the position was temporary in nature. It is clear from the letter of assignment that the position was temporary and that once it reached an end the Claimant would return to her substantive grade.

5 The Respondent has treated the Claimant fairly and in accordance with the terms under which she was assigned.

The Law

For the Claimant to ground a case in the Act, she must establish that she is a fixed term worker within the meaning of the Act.

s.2(1) of the Act defines a fixed term worker as ’..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…’.

That same section goes on to define a permanent employee as ‘..an employee who is not a fixed term employee’

Issues for consideration

It is clear from the section of the Act quoted that an employee cannot be both ‘permanent’ and ‘fixed term’ in the same role. It is conceivable, but irrelevant to this case, that an employee could have two separate roles within one employment, one as a permanent employee on certain days or times and another at different days or times as a fixed term employee. In this case, the Claimant is seeking to be regarded as a fixed term employee in respect of what she claims was an employment contract of that sort when she was assigned temporary responsibilities in a role at a higher level than her substantive role. It hardly needs noting that if the Claimant is not deemed to be a fixed term employee she can have no claim under the Act. The definitions quoted are clearly intended to limit the protections of the Act to those that require them as fixed term employees.

It is not in dispute that the Claimant was engaged on a permanent contract, that her permanent status continued since she took up employment with the Respondent and that she reverted to her substantive grade as a permanent employee upon the cessation of her ‘acting’ assignment. The only issue for consideration, therefore, is whether she enjoyed a contract, (fixed term) within a contract, (permanent). It seems to the Court that if it was intended to provide for such within the Act, this would have, (and would need to have), been set out explicitly within the Act.

These cases are not uncommon but the position of the Court has been clear, consistent and entirely in keeping with the logic of the legislation. The purpose of the Act is to offer certain protections to fixed term workers who, by nature of their status, could, otherwise, be treated less favourably than permanent employees. It is not the purpose of the Act to offer additional protections to permanent employees in respect of temporary arrangements within their contracts of permanency. The Respondent in this case quoted the case of Dun Laoghaire Rathdown County Council v. Joe Burns (FTD 173 ) in which this Court observed of the Claimant that ‘At no material time was his employment with the Respondent at risk or under threat’. In that case and others, the Court declined to extend the definition of fixed term employee to permanent employees who were assigned to ‘act’ at higher levels for temporary periods. A similar point was made by the Court in Louth County Council v. Paul Kelly (FTD1320) in which the Court observed that ‘A complainant who reverts to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act’. In Railway Procurement Agency v. Allan Bell and others, (FTD097), the Court noted that ‘the protection of the Act is conferred solely on fixed term employees and a complaint under the Act can only be entertained if it relates to a period of fixed term employment’. The circumstances in Sligo County Council v. Louise Gallagher , (FTD1425), bear some similarities to the instant case. In that case the Court concluded, as follows;

‘In conclusion, the Court finds that at all material times the Complainant remains a permanent employee of the Respondent. While the functions she carries out are on an ‘acting’ basis, the Court is of the view that this does not alter the nature of her employment status as a permanent employee’.

In the instant case, the Court concurs with this conclusion.

Determination

The decision of the Adjudication Officer is upheld.

Signed on behalf of the Labour Court



Tom Geraghty
CC______________________
19 February 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.