ADJUDICATION OFFICER RECOMMENDATION
Adjudication Reference: ADJ-00012542
Parties:
| Complainant | Respondent |
Anonymised Parties | A Worker | Education Services Provider |
Representatives | Vernon Hegarty Workers' Rights Centre | Terry Mac Namara IBEC North West |
Complaint(s):
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-00016555-001 | 30/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00016555-002 | 30/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00016555-003 | 30/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00016555-004 | 30/12/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967 | CA-00016555-005 | 30/12/2017 |
Date of Adjudication Hearing: 11/02/2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 [and/or Section 14 of the Protection of Employees (Fixed- Term Work)Act ,2003 and/or Section 39 of the Redundancy Payments Acts 1967 - 2014 and/or Section 13 of the Industrial Relations Acts 1969] following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant made application for the position of Clerical Officer with the respondent in the Summer of 2015 and was appointed on a Specific Purpose Contract with effect from the 18th.June 2015 to the 28th.August 2015.The claimant was replacing a staff member availing of the shorter working year scheme.The claimant’s second contract was for a specific purpose and ran from the 27th.Jan. 2016-to the 27th.July 2016 – to replace a staff member on Maternity Leave.2 further contracts ensued – from 28th.July 2016 – 3rd.Jan. 2017 (Maternity Leave Cover ) and from the 4th.Jan.2017 to the 30th.June 2017 ( the contract will not be viable).It was submitted that the claimant approached the respondent at the end of June 2017 and was advised that she would have to reapply for Clerical Officer even though she had applied and was interviewed for the same position 2 years previousy.She applied and was unsuccessful and later learned that she had been effectively replaced by an agency worker who had provided occasional cover while the claimant was under contract.The union argued that the retention of agency staff – effectively displacing direct employees – ran contrary to the spirit of the Lansdowne Road Agreement and the provisions of the Fixed Term Contract Workers Act. Protection of Employees (Fixed-Term Work) Act, 2003 Section 6 It was submitted that the respondent was in breach of Section 6 in that she was treated less favourably than a comparable full time employee by being required to compete for the position she held - “ while agency staff were retained covering work at that grade – and where no objective grounds were put forward by the respondent.It was submitted that the assertion of not being viable was not borne out by the facts and that it did not constitute a legitimate objective that was either appropriate , objective or necessary. Section 8 It was further submitted that the respondent was in breach of Section 8 by failing to provide a written statement of a valid, effective , objective condition in respect of the contract which ran from the 4th.Jan.- 30th.June 2017.It was contended that the statement of non viability did not satisfy the requirements of this Section.It was advanced that it appeared that it was evidently ‘viable’ to retain full time and agency staff to do the work the claimant had done – bringing the breach into stark relief. Section 13 It was submitted that the respondent was in breach of the Act by establishing a Clerical Officer panel 2 years after the claimant , had applied and been appointed at that very grade with “ no purpose other than to frustrate a succession of fixed term/specific purpose contracts eventually acquiring indefinite status”..It was submitted that the fact that a further two years would have to run to acquire CID status was irrelevant in the context of surrounding circumstances. Industrial Relations Act, 1969 It was submitted that by requiring the claimant to reapply for the position of Clerical Officer “ even at a time when other roles within the workplace were available to fill , positions which she had previously worked in on a temporary basis , effectively displace the claimant from direct employment in favour of indirect employees.It was submitted that this was contrary to the provisions of the 2013-2016 National Agreement. Redundancy Payments Acts 1967 It was submitted that the claimant had acquired 2 years service by June 30, 2017 and that consequently she was entitled to statutory redundancy.It was submitted that the claimant had the requisite continuous service as provided for in the Minimum Notice and Terms of Employment Act 1973.It was submitted that FTD 185 was authority for this proposition. The union made the following later submission by way of response to the preliminary arguments: |
Response to Jurisdictional Objection by the Respondent
- Adjudication Officer, we submit that the complaints referred under the Industrial relations Acts and Redundancy Payments Acts are not affected by the Respondent’s jurisdictional objection and that on that basis they fall, without further consideration, to be determined by your Adjudication.
- As such, the only claims that are to be considered in terms of the time limitation objection by the Respondent are those made under the Protection of Employees (Fixed Term Work) Act, 2003.
- Prior to the hearing on 11 February last the Respondent had not objected on any jurisdictional ground. We refer you to correspondence from the Respondents dated 13 February, 2018, in this regard .
- When the Respondents raised the jurisdictional objection at the hearing we submitted that as the employment had ended on 30 June 2017 (the last day of the sixth month), and the matter was referred and received by the WRC on 30 December 2017 (the second to last day of the twelfth month), on a literal interpretation of the section 41 – assigning to the terms used their ordinary meanings – the referral was within the six months period allowed (the six month period then expiring on the last day of the twelfth month).
- In the even that the Adjudicator determines that the above is not the case and that the referral was late by one day, without prejudice to the above submission, we submit that reasonable cause existed at the time which explains the delay and that an extension (by one day) under section 41(8) is appropriate. We make this submission in response to the supplementary submissions by the Respondent on this matter, and after having had opportunity to review the circumstances in which the referral was made in late December 2017 (there having been no prior notice of objection by the Respondents on the issue prior to hearing).
- The Claimant’s Representative’s last two working days before the Christmas break were Thursday and Friday, 21st and 22nd December 2017. The referral was to be submitted in these days in closing off requisite tasks prior to the Christmas-New Year break. By Wednesday I had become quite ill having contracted Cellulitis and I scheduled an appointment with my GP for the 21st (next day). My doctor put me on a week’s course of antibiotics and various other medications, advising that I keep my hands and feet clear from any possible further infection. My hands, lower arms, feet and lower legs were badly infected, and I could not do any work of any kind.
- By 27th December the infection had been only slightly relieved, and I again attended the doctor where she put me on another week of antibiotics while continuing on the other medications. I attach a letter from the doctor confirming my attendance on these dates and record of some of the medications prescribed on both the 21st and 22nd.
- As my doctor has failed to identify the actual condition in her letter I am afraid I have no alternative but to attach photographs of my hands and feet taken on the 27th – after attending the doctor, as she asked me to record the condition for the purposes of bringing to a further appointment in the New Year to a specialist dermatologist in Sligo, for follow-up. I caution that the photographs are quite graphic in that the show hands and feet in a very advanced state of infection.
- I could not have submitted any referral on the 27th, 28th or 29th, but by the 30th I felt that the infection was beginning to clear a little bit and having seriously considered that I wanted desperately to ensure that the referral did not go ‘out of time’, I made the online referral (very carefully and painstakingly) – albeit against all medical advice at the time.
- We submit that these circumstances are such that satisfy the tests for reasonable cause for a one day extension of the time limit, due to unforeseen and unforeseeable illness, that constitute the requirement that the illness both caused the delay and explains it (see attached case which sets out the test and its underlaying principles as it developed in law).
- We submit that it is not credible that a Representative will hold off submission of a WRC referral so that they can make the referral over a Christmas break, in a period where neither they, the Respondent nor the WRC offices will be on actual duty. In actual fact, it would have been reasonable to have waited until I had been returned to work – medically certified fit to work - in the New Year, and to submit the referral then, but I elected not to as I had been disappointed that I had not been in a position to get it done on the 21st or 22nd as I had initially intended.
- Other aspects of the Respondents’ supplementary submission
- We refer you to the submissions already made on these matters – both written and orally at hearing – on these matters.
The union asserted that when the claimant was asked to move to recruitment , the claimant was being asked to take on duties outside of her grade and she had sought clarity on what line management structure was in place.It was submitted that any instruction to move must be reasonable and should not operate to the detriment of the claimant.It was further submitted that whether the claimant’s recruitment was through formal or informal processes , the claimant had a legitimate expectation of ongoing work.
Summary of Respondent’s Case:
The respondent set out an overview of the educational service provided by the respondent. It was submitted that the claimant when initially recruited was assigned to a fixed term opportunity which presented itself at the training centre location when a staff member was off for a period of 10 weeks.It was submitted that the termination of the claimant’s employment was wholly due to the expiry of her final fixed term contract and for no other reason.It was submitted that the accompanying letter issued with the final contract indicated the objective grounds why a CID was not being awarded – “This contract will not be viable beyond the 30th.June 2017”.It was submitted that the claimant did not challenge or express a grievance about this while in employment. Preliminary Matter of Jurisdiction It was submitted that the claimant’s employment ended on the 30th.June 2017 and that the 6 month time limit for submission of complaints to the WRC would have ended on the 29th.Dec. 2017.The provisions of Salesforce.com v Alli Leech EDA 1615 , Cementation Skansa v Carroll and Donal O ‘Donnell and Catherine O’Donnell v Dulaoghaire Corporation [1991]ILRM were invoked in support of the respondent’s assertion that no reasonable cause existed for the delay in making the complaint. Protection of Employees (Fixed term Work) Act 2003 It was denied that the claimant was the subject of any less favourable treatment under Section 6. It was submitted that the termination of the claimant’s employment was wholly attributable to the expiry of the claimant’s contract and that the respondent had complied in full with the Act.The respondent had funded a course for the claimant in career guidance at NUIM at a cost of €2,500.It was contended that the position the claimant applied for in June 2017 was for Clerical Officer Grade 111 to fill a number of panel positions which had arisen during the recruitment embargo.This was an open objectively assessed competition and the claimant was unsuccessful.”The process by which appointments were made to the panel for Clerical Officer Grade 111 was made through the approved recruitment process which was objectively justified to ensure openness , objectivity and transparency in the making of such appointments.In doing so , the objective of the respondent was to maintain confidence in the system of making appointments to the ETB and to appoint the best available person which undoubtedly constituted a legitimate objective.The policy of filling Clerical Officer Grade 111 panel posts by open competition was undoubtedly appropriate as a means of achieving the objective”. Section 8 It was submitted that objective grounds for not awarding a CID were communicated to the claimant and the respondent had no case to answer in this regard. Section 13 It was submitted that the respondent complied in full with the Act and that no issues were raised as per Section 13 until after the termination of employment of the claimant on the 30th.June 2017.It was contended that the claimant knew from the 28th.July 2016 that the employment would come to an end on the 30th.June 2017.The claimant did not dispute this or invoke the grievance procedure in this connection.It was further argued that the claimant had only 17 months service which was nowhere near the level of service required for a CID. It was submitted that the claimant’s rights under Section 10 did not confer an unspecific right to make an application for a vacancy in preference to some other workers in the permanent employment of the undertakiing or indeed any general applicants in a normal competitive recruitment process. Industrial Relations Act , 1969 It was submitted that there was no breach of the Public Service Stability Agreement 2013-2018.It was submitted that any agency workers employed by the respondent were employed over a short duration of time to fill any gaps during the Clerical Officer Grade 111 recruitment process and were not employed as replacement of direct labour.It was submitted that in April 2017 , the claimant was asked to move from a position in Contracted Training to Recruitment and refused to do so. Redundancy Payments Act 1969-2014 It was submitted that the claimant had no entitlement to redundancy as she did not have the requisite 24 months service.It was submitted that there was a break in service from the 29th.August 2015 to the 26th.January 2016 and that Par 4 of Schedule 3 of the 1967 Act provides “For the purposes of this Schedule employment shall be taken to be continuous unless terminated by dismissal or by the employee’s voluntarily leaving the employment but for the purposes of this paragraph 2dismissal” does not include a dismissal within the meaning of the Unfair Dismissals Act 1977 and in respect of which redress has been awarded under Section 7(1)(a) or 7(1)(b) of that Act”. In a post hearing submission , the respondent made the following submission regarding the preliminary matter of jurisdiction: The respondent invoked the provisions of Frank Donaldson v South West Regional Tourism Authority UD 1309/2004 where the date of dismissal was 22nd.May 2004 and the complaint form was received by the Tribunal on the 22nd.Nov. 2004.The tribunal noted “ It is acknowledged by both parties that the RP51A which was received by the Tribunal on the 22nd.Nov. 2004 was outside the 6 month period for lodging a claim as required by Section 8(2)(a) of the Act”.This principle was also followed in ADJ -00007606 and it was contended that this confirmed the case made by the respondent at the hearing that the date of receipt of the instant complaint ended on the 29th.Dec. 2017.
With respect to continuity of service in the context of the redundancy claim it was submitted that the claimant’s initial period of employment of 10 weeks was for a very specific purpose and not for recruitment to a formal panel of Clerical Officers .It was an informal recruitment process where a DESP Case Officer encouraged people from the live register to apply.The contract terminated on the 28th.August 2015 and it was submitted that there was no legitimate expectation on the part of either party for further employment at a future date.The intervening 5 month period could not constitute a lay off as submitted by the union .It was reiterated that the continuity of service was broken by the dismissal of the claimant in August 2015.
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Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
The claimant’s representative has asserted that the claimant acquired an entitlement to statutory redundancy on the basis of having acquired in excess of 2 years service.The respondent has submitted that the first 10 weeks of employment has to be discounted for computation purposes as “dismissal occurred on the termination of the first fixed term contract on the 28th.Auugust 2015”.I have considered all of the submissions made and while I acknowledge that the claimant’s initial recruitment was through an adhoc recruitment process , I find the claimant’s argument that her service from her initial appointment should be deemed continuous to be convincing and consistent with the deliberations of the Labour Court in FTD.185.Accordingly I am upholding the complaint under the Redundancy Payments Acts 1967-2012 and find that the claimant is entitled to a redundancy payment based on the following criteria :
Date of Commencement :18.06.2015
Date of Termination : 30.06.2017
Gross Weekly Pay : €409.33per week
This award is made subject to the claimant having been in insurable employment under the Social Welfare Acts during the relevant period.
Section 14 of the Protection of Employees ( Fixed- Term Workers) Act, 2003of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under the Act
Section 6
Preliminary Matter of Jurisdiction
I accept the respondent’s contention that this complaint is out of time by one day – however , I am satisfied on the basis of the compelling medical evidence submitted by the claimant’s representative that there was reasonable cause in the delay in making the complaint and accordingly I find the complaint to be in time.
The crux of this complaint relates to tenure - the matter as to whether tenure is addressed under Section 6 has been dealt with at length in the Minster for Finance v.Una McArdle and it was found by Justice Laffoy that conditions of employment did not deal with contract duration. Accordingly, I find against the claimant and do not uphold the complaint.
Section 8
Preliminary Matter of Jurisdiction
The claimant was furnished with her final contract of employment on the 4th.April 2017. The claimant’s complaint was received by the WRC on the 30th.Dec. 2017 .Accordingly , the complaint is out of time and I have no jurisdiction to investigate this element of the complaint.
Section 13.
Preliminary Matter of Jurisdiction
I accept the respondent’s contention that this complaint is out of time by one day – however , I am satisfied on the basis of the compelling medical evidence submitted by the claimant’s representative that there was reasonable cause in the delay in making the complaint and accordingly I find the complaint to be in time.
Having reviewed the evidence presented at the hearing and noting the extensive submissions made by the parties , I find that no compelling evidence was advanced to justify the assertion that the claimant’s dismissal was wholly or partly for or connected with the purpose of avoidance of a fixed term contract being deemed to be a contract of indefinite duration under Section 9(3).Accordingly, I find against the claimant.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.
It was submitted by the claimant’s representative that the respondent breached the provisions of the Public Service Stability Agreement by terminating the claimant’s employment and requiring that she reapply for the position when other roles were still available to fill and she was displaced in favour of indirect employees.The respondent denied any breach of the National Agreement and submitted that the respondent had met their obligations in full by issuing her with a fixed term contract in which they had set out why it was justified and submitted that the termination of employment was wholly due to the expiry of her fixed term contract and no other reason.It was submitted that agency workers were “ employed over a short duration of time to fill any gaps during the Clerical Officer Grade 111 recruitment process and were not employed as a replacement of direct labour”.
I have considered all of the submissions made and accept that the union’s contention of a breach of the National Agreement has some merit in circumstances where the claimant was let go and ongoing work – all be it for a short period – was performed by agency staff.I recommend the parties engage with a view to agreeing on a consultative forum which provides for regular and meaningful consultation between the parties on any further outsourcing proposal.
At the hearing an issue was raised regarding a request made by the respondent to the claimant to move to recruitment – as this was not referred to in the claimant’s complaint form , I do not propose to issue any recommendation on the matter.
I have considered the legitimacy of any expectation by the claimant with respect to ongoing work and accept that it was not unreasonable that she would have an expectation of an option of ongoing temporary work in circumstances where agency staff were assigned such work – all be it for short period of time.I consider it unfair to the claimant not to have been given this option during the Clerical Officer recruitment process and accordingly I am upholding her complaint.I recommend in full and final settlement of this element of the complaint that the respondent pay the claimant a compensatory amount of €2,500.
Dated: 23rd July, 2019
Workplace Relations Commission Adjudication Officer: Emer O'Shea