Complainant

Respondent

Anonymised Parties

Clerical Officer

Government Department

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00011354-001

16/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00011354-003

16/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011354-004

16/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00011354-006

16/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00011354-007

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-00011354-008

16/05/2017

The complainant commenced employment as a clerical officer with the respondent in January 2012 having previously worked in other Government organisations. The complainant went on sick leave in May 2014 and her employment was terminated on 30 December 2016 whilst still on sick leave. The employment was on a full-time basis with gross pay of €505.73 per week at the time of her termination.

The complainant was informed by letter that her employment was being terminated following a review of temporary positions.

The complainant has been in the employment of the Public Service since 2007 and her salary has been incrementally adjusted to take account of this service.

The complainant did not receive any holiday pay whilst absent on sick leave.

The complainant was not advised of changes to her terms and conditions of employment whilst on sick leave.

The complainant has not received any redundancy lump sum payment. The complainant believes that she was unfairly selected for redundancy.

The complainant was recruited as a temporary clerical officer in a branch office of a Government Dept. to cover the absence of a permanent staff member.

A decision was made to suppress that permanent post as a result of which the complainant’s contract was terminated in December 2016.

The complainant is due an amount in respect of annual leave. The complainant was also overpaid in relation to her sick pay entitlement and has not responded to requests to discuss repayment of this amount.

The complainant was not selected for redundancy as her employment ceased due to the objective decision to suppress the position for which she was providing cover. The respondent accepts that the complainant is due a redundancy payment.

The complainant was not treated less favourably than a permanent member of staff.

The complainant originally commenced employment in the Public Service in 2007 when she was appointed as a temporary clerical officer in the Dept. of Agriculture. In 2010 the complainant was appointed to a similar position in the Central Statistics Office (CSO). The complainant applied each year to the Public Service Appointments Commission for inclusion on their panel of vacancies in the Public Service. Whilst still working for the CSO in 2012 the complainant was advised of a position in a branch office of a Government Dept. which was closer to her home address and according to her evidence she was asked to transfer to that position.   The complainant agreed and as a result she finished with the CSO on a Friday and commenced with the new Dept. on the following Monday, 16 January 2012. The complainant was issued with a contract of employment as a temporary clerical officer. Paragraph 4 of that document stated:

“In accordance with the Protection of Employees (Fixed Time Work)Act 2003, your contract is a fixed purpose contract on the following grounds.

This appointment will commence on 16 January 2012 and will be for the purpose of covering a permanent staff member’s absence.

This appointment therefore cannot result in an offer of a contract of indefinite duration.”

The original pay rate specified in that contract was twice subsequently revised upwards in February 2012 to take account of the complainant's previous experience in the Public Service as a temporary clerical officer and amending letters issued.

The complainant had been suffering with a back problem for a number of years but in March 2014 this became a major issue. The complainant went on sick leave and returned to work in May as she felt her absence might impede her ambition for a permanent position in the Public Service.   Shortly afterwards she was advised that her back complaint required surgery and she again went out on sick leave.   The complainant states that when she commenced her sick leave the policy was that she would receive full pay for 6 months followed by half-pay for a further 6 months. The respondent contends that the sick pay policy applicable to the complainant was payment of full pay for 3 months and then half-pay for another 3 months. Due to an error, however, the complainant was paid full pay until December when the payments ceased. The complainant had meantime applied for a Critical Illness Payment which is a discretionary scheme governed by the terms of the Critical Illness Protocol.   Her application was turned down by the Chief Medical Officer and this decision was subsequently confirmed by the HR Division. I note that the complainant has been in receipt of Disability Benefit since 19 April 2016.

Whilst the complainant was on sick leave another temporary clerical officer was recruited to cover the complainant’s absence. The replacement C.O. resigned in September 2016 and according to the respondent a review of staffing requirements was undertaken and a decision made that that position would be suppressed and that the permanent officer be transferred to another location. This decision then meant that the position for which the complainant was recruited to cover no longer existed and that, as a result, the complainant was to be made redundant. A letter was sent to the complainant on 18 November 2016 to the effect that this review had taken place and that her contract would terminate on 30 December 2016.   The letter further stated that if the complainant had in excess of two years’ continuous service with the Department then she may be entitled to a statutory redundancy payment. The respondent accepts that the normal practice would be for a member of management to meet with the staff member concerned and advise them of the proposed termination of contract. In this instance a new manager had been recently appointed in the office where the complainant was employed who did not have the complainant’s mobile number and as a consequence there was no communication other than the formal letter.

In April 2017 the complainant was written to by the HR Service informing her that she had been overpaid to the value of €10, 419.79 (gross) but that she was due €3,388.46 as a redundancy payment and a further €4,036.70 in annual leave payments. It was suggested that the complainant use these payments as an offset against the overpayment which would leave her owing the Department a sum of €2,994.63. Two further similar letters were issued in May and June. The calculation of annual leave entitlement was based on an outstanding balance of 37 days which conflicted with a calculation of 50.5 days outstanding which had been notified to the complainant in February 2017 by the HR Service. The complainant referred her complaints to the WRC on 16 May 2017.

Complaint No. CA-00011354-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. The complainant in her submission states that the purpose set out in the contract was “covering a permanent staff member’s absence.” The complainant submits that the individual concerned is not named nor is an end date specified. The complainant further argues that the complainant was in the employment of the Civil Service since 2007, that the complainant’s salary was adjusted incrementally to take account of her employment in the Civil Service and that the complainant therefore was entitled to permanent status within the service. It was further pointed out that the complainant moved from the CSO to the respondent at the request of the Public Service Appointments Commission with no break in service. Finally it was claimed that the complainant was unfairly selected for redundancy.

The respondent supplied the following data with regard to the complainant’s employment in the Civil Service:

Dept. of Agriculture:       9 July 2007 to 10 October 2008

                                         22 June 2009 to 28 August 2009

CSO                                   13 December 2010 to 13 January 2012

Respondent Dept.             16 January 2012 (commenced)

I cannot accept the argument that the complainant has been an employee of the Civil Service since 2007.   During that time she worked for different employers within the broader Public Service with significant breaks between employment. The Public Service Appointments Commission is not itself an employer but acts as an agent for different employers within that service. In this instance they contacted the complainant regarding a vacancy in an office of a Government Dept. which was near to her home address and which they felt might be if interest to her and the complainant agreed to transfer her employment to a new employer. The complainant signed a new contract to that effect. The application of an incremental scale based on previous experience in the Public Service does not provide grounds for claiming continuity of service.

According to the Protection of Employees (Fixed-Term Work) Act 2003 the definition of a fixed-term employee is “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…”. In the case before me the purpose was to cover a permanent staff member’s absence and it is apparent that no specific date of termination could apply in that regard.   I also accept the position of the respondent that inclusion of the identity of the permanent staff member in the contract would constitute a breach of confidentiality. In the normal course of events, therefore, the termination of the contract would coincide with the return to duty of the permanent staff member. In this case, however, following the resignation of the temporary clerical officer replacing the complainant and in view of the fact that there had been an absence in excess of two years, the respondent instituted a review of staffing requirements which resulted in a decision to abolish that specific position and transfer the permanent member to another location. The result for the complainant was that the requirement for cover then ceased and her contract was terminated. Clause 7 of the complainant’s contract specifically excludes the application of the Unfair Dismissal Acts to the termination of employment by reason only of the expiry of the fixed-term contract without it being renewed.

Unfortunately for the complainant, and not for the only time in this chain of events, the communication process between herself and management was defective. The complainant had, as noted, been absent on sick leave for over two years at this stage but it is accepted that best practice would have ensured that a meeting or conversation would have been initiated by management to ensure that this sequence of events would have been explained to the complainant and queries answered. Instead the complainant received a letter which merely stated that her contract was due to end following a review of temporary positions within the Department. In the absence of an explanation the complainant formed the view that her absence was the sole reason for the termination of her contract. I do not accept the excuse put forward as to the failure to verbally contact the complainant and agree with the complainant’s view that little or no effort was made in this regard.

This, however, does not change the situation regarding the termination of the complainant’s contract in that I find that there was an objective reason for that termination based on the fact that the underlying purpose of the contract, i.e. to provide cover for a permanent member of staff, no longer existed and that this specific event brought about the termination of the contract. The claim under the Unfair Dismissals Acts is not well founded and accordingly fails.

Complaint No. CA-00011354-003:

This is a complaint under the Organisation of Working Time Act, 1997 to the effect that the complainant has not received payment for annual leave accrued. As noted above the HR Service had written to the complainant advising of an overpayment and suggesting that money owed to her as annual leave payments might be used to offset some of that overpayment. There was confusion as to the actual amount due to the complainant as two figures had been communicated to her in this regard.   The complainant stated that she had not received any payslips from the respondent during her sick leave. I note that in their submission the respondent states that the annual leave entitlement could not be withheld unless agreed to by the complainant. The complainant’s employment terminated in December 2016 but it was April 2017 before any communication was received from the HR Service and this in the context of seeking to recover an overpayment to the complainant. It is clear that the complainant did not agree to the proposal to offset her annual leave payment against this alleged overpayment.

The respondent was requested to clarify the complainant’s entitlement to a payment in respect of annual leave. The respondent subsequently provided a detailed breakdown which can be summarised as follows:

20 days statutory accrued during the 2015 / 2016 leave year

15.5 days statutory accrued during the 2016 / 2017 leave year

1.5 days non-statutory

Total: 37 days

I note that in a submission in relation to these figures on behalf of the claimant it is submitted that she is entitled to be paid for the entirety of the annual leave that she had accrued.

Complaint No. CA-00011354-004:

This is a complaint under the Terms of Employment (Information) Act, 1994, to the effect that the complainant was not notified in writing of a change to her terms of employment. The complainant’s position is that she originally went absent on sick leave in March 2014 and returned to work for a short period in May 2014. Her requirement for an operation resulted in her resuming sick leave and, as detailed above, her employment was terminated whilst still absent in December 2016. When the complainant commenced her original sick leave she had an entitlement to 6 months’ at full-pay followed by 6 months at half-pay. According to her evidence she was not informed of any change to these terms. The first the complainant knew of the issue was when her payments ceased without notice on 19 December 2014. The HR Service claimed that a letter had been sent to her in November notifying her that her payments should have ceased on 9 September 2014 but the complainant never received this letter. To compound her difficulties, the complainant’s state illness benefit was still being paid directly to the Dept. which was due to communication issues between them and the HR Service and which were not resolved until February 2015 during which time the complainant was left without payment. Following on from her termination of employment the complainant received the correspondence commencing in April 2017 regarding overpayments. According to her evidence it was only then that the complainant became fully aware of the change to the terms of the sick pay scheme.

On the 27 March 2014 the Dept. of Public Expenditure and Reform issued Circular 6/2014 informing all staff of changes to the Paid Sick Leave Scheme as set out in Regulation S.I. 124 of 2014 and which were effective as of 31 March 2014. In summary the regulations now provided for a maximum of 92 days sick leave on full-pay followed by a maximum of 91 days on half-pay subject to a maximum of 183 days paid sick leave in a rolling four year period. As noted the complainant was absent on sick leave at that time. The final sentence of the circular states: “Managers should ensure that this notice, the circular and Regulations are brought to the attention of staff on any form of leave and staff without direct access to Department computer systems.”

Section 5(1) of the Act states:

Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

(a)    1 month after the change takes effect….

Sick pay is specifically covered by Section 3(1)(k) of the Act.

The respondent in reply argued that this circular and another internal departmental circular issued at the same time constituted the written notice required by the legislation. The complainant returned to work between 1 May 2014 until she resumed sick leave on 22 May 2014 and the respondent stated that the notices were available for perusal by her during this period. I do not accept this argument. The onus is on the employer to proactively take steps to ensure every employee receives notification within the period specified. The circular itself instructs managers to ensure that staff on any form of leave are informed of the changes. The period when the complainant returned to work is outside the time frame set out in the Act. I therefore find that this complaint is well founded. I also find that because of acts or omissions on behalf of the respondent or its agents the complainant suffered a detriment in this regard.

Complaint No. CA-00011354-006:

This is a complaint under the Redundancy Payment Acts, 1967 – 2012 to the effect that the complainant has not received a redundancy payment. The complainant has argued that she has been in the employment of the Civil Service and on an incremental salary scale since 2007.   The respondent in reply states that the complainant became their employee on 16 January 2012. As regards redundancy, there was not a direct decision to terminate the complainant’s employment, rather there was a decision to suppress a permanent position within the workplace and this led to the decision to terminate the complainant’s employment in line with the terms of her contract. Given that the complainant had in excess of 104 weeks’ service with the respondent it is accepted that she qualifies for a redundancy payment. For reasons already outlined I find that the complainant was employed by separate organisations within the broad public service and that the calculation for redundancy purposes should be based on her service with the respondent. As set out above the respondent has not actually paid any amount in respect of redundancy as it was suggested to the complainant that her redundancy lump sum be utilised to partially offset an overpayment made by the respondent to the complainant.

Complaint No. CA-00011354-007:

This is a complaint under the Redundancy Payments Acts, 1967 – 2012 to the effect that the complainant has not received the correct redundancy payment. As previously noted the respondent advised the complainant that she was due a redundancy payment of €3,388.46 without giving details as to how this was calculated. This payment has been withheld as detailed above. As the complainant has not received any payment in regard to redundancy I will deal with this matter in conjunction with Complaint No. CA-00011354-006 above.

Complaint No. CA-00011354-008:

This is a complaint under the Protection of Employees (Fixed-Term Work) Act, 2003. The complaint is to the effect that the complainant was treated less favourably than a comparable permanent employee.   In her submission the complainant states that her employment was terminated even though the purpose of her contract, to provide cover for a permanent staff member’s absence, remained outstanding as that staff member was still absent at the time her contract was terminated. I have already found that the contract terminated because the permanent position for which the complainant had been employed to cover had been suppressed and no longer existed and therefore the requirement to provide cover also no longer existed. Section 6(1) of the Act states:

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.

It is conceded that there were serious shortcomings in the manner in which the respondent and/or the HR Service dealt with the complainant with the respondent’s representative accepting that the HR Service in particular was difficult to deal with. However, no specific evidence was submitted in relation to the complainant being treated in a less favourable manner because she was a fixed-term employee as compared to how a comparable permanent employee was treated. I find this complaint therefore to be not well founded.

Complaint No. CA-000011354-001:

This is a complaint under the Unfair Dismissals Acts, 1977 – 2015. For the reasons set out above I find this complaint of unfair dismissal not to be well founded and it accordingly fails.

Complaint No. CA-00011354-003:

This complaint was submitted on 16 May 2017 under the Organisation of Working Time Act, 1997.   The complainant’s employment terminated on 30 December 2016. Section 20(1)(c) and Section 23(1) of the Act contains provisions for the accrual of annual leave while on sick leave. Based on the evidence before me I find that the complainant has an annual leave entitlement to 20 statutory days in holiday year 2015/16 and 15.5 statutory days in holiday year 2016/17.  I therefore find this complaint to be well founded and order the respondent to pay to the complainant the sum of €3,590.68 as compensation in this regard.

Complaint No. CA-00011354-004:

This is a complaint under the Terms of Employment (Information) Act, 1994. For the reasons set out above I find this complaint to be well founded and I order the respondent to pay to the complainant the sum of €1,250.00 as compensation in this regard.

Complaint No. CA-00011354-006:

This is a complaint under the Redundancy Payments Acts, 1967 – 2012, in respect of the non-payment of a redundancy lump sum. As detailed above I find that this complaint is well founded. The complainant is therefore entitled to a redundancy payment based on the following criteria:

Date of Commencement:       16 January 2012

Date of Termination             30 December 2016

Gross Weekly Pay:                 €505.73

The award is made subject to the complainant having been in insurable employment under the Social Welfare Acts during the relevant period.

Complaint No. CA-00011354-007:

This is a complaint under the Redundancy Payments Acts, 1967 – 2012, in respect of the non-payment of the correct redundancy payment. This matter has been dealt with in Complaint No. CA-00011354-006 above.

Complaint No. CA-00011354-008:

This is a complaint under the Protection of Employees (Fixed-Term Work) Act, 2003. For the reasons outlined above I find this complaint not to be well founded.