Complainant

Respondent

Anonymised Parties

A Consultant

A Health Service Provider

Representatives

Appeared in Person

hilip Lee Solicitors

Act

Complaint 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-00023689-001

03/12/2018

A Complaint under the Protection of Employees (Fixed Term Work) Act 2003, was received by the WRC on 3 December 2018.

The Complainant submitted that she had been treated less favourably than a permanent employee during her time spent working in a Hospital between October 2012 and October 2015.

The Claim was contested by the Respondent, a large Health Provider.

A Hearing was set down for 25 April 2019 and both parties were invited to attend dated 27 March. The Respondent came on notice on 11 April and submitted a written submission on 24 April which was copied to the Complainant.

On arrival at hearing, the Complainant expressed her disappointment that the Respondent had made such a late submission and believed that she was “being deliberately trialled by ambush”. She submitted that she had insufficient time to prepare her case and sought an adjournment. She explained that she was pressurised for time as she had seen her last patient at 5.20pm the day earlier and she had had an extended commute to the hearing. She said that she needed adequate time to prepare.

She expressed a disappointment that a letter sent to a Senior Official at the Respondent service had gone unanswered since September 2018. Had this been addressed she may not have had to attend a hearing.

Counsel for the Respondent in opposing the request for Adjournment explained that the legal team had only been notified and had prepared submissions accordingly.

I considered both responses and refused an adjournment. I was conscious that everyone had travelled long distances to address this issue which was referred over four months previously. I proposed to commence with an outline from the parties on the details of the case an if the complainant wished to submit a written submission, I would accept this and share it with the respondent prior to completing my decision.

I proceeded to hear the case which commenced on a Preliminary issue raised by the Respondent.

The Background to the case concerns the Terms of Settlement of retrospective payments to a certain cohort of the Respondent employees who worked as Consultants both on a fixed term and permanent basis.

These payments have a staged payment plan attached. The Complainant is aggrieved that she has been less favourably treated by the Respondents rejected of her application for inclusion in the Terms of Settlement. The Respondent disputes this and argues that she cannot maintain eligibility on the criteria set down in a National Agreement.

Preliminary Issue:

The Complainant, a Lay Litigant contended that she has the legal standing to take this case. She listened carefully when introduced to Section 41(6) and 41(8) of the Workplace Relations Act, 2015 and submitted that perhaps there was another argument to be made in response to the Respondents arguments on locus stands and statutory time limits? She expressed a strong sense of outrage at the way she was being treated by the Respondent. The Complainant contended that she too had committed to the Irish and EU Health Services and shouldn’t have been purposefully excluded from the Terms of Settlement. This had caused her a high level of financial disadvantage and loss.

The Complainant sought an extension of time to prepare and submit a written submission on the Preliminary Issue. She undertook to forward this to PRU within 4 weeks of date of hearing.

The Complainant confirmed that the High Court Proceedings on breach of contract were still in being but did not offer any detail on their substance.

Substantive Case:

The Complainant outlined that she worked as a Consultant under a fixed term/specified contract in the Southern Part of the Country between October 2012 and October 2015.

From October 2015 and July 2016, she worked in a UK Hospital, an EU entity.

Since September 2016, she has been employed under a permanent contract of employment in Ireland. She works wholly with Public Patients and presents as holding a very strong sense of injustice regarding her claim.

The Respondent has agreed to pay “retrospective payment of remuneration “to eligible Consultants, following the implementation of the consultant Contract,2008, through a phased implementation plan. Legal Challenges had followed non-implementation in 2014.

This culminated in an Agreement in June 2018, whereby those who legally challenged and those who did not were to receive retrospection in stage payments June 2019 -May 2020.

The Complainant applied for access to the Terms of Settlement on 13 September 2018. She submitted that she has been informed that she does not meet the “Eligibility clause” to avail of the terms of the offer. The Complainant understands that she has been refused payment directly related to her time spent on a fixed term contract in the Hospital in the southern part of the country.

The Complainant relied on a definition of eligibility:

A Consultant who is or was employed under the Consultants Contract 2008 and who first signed or been interviewed for any version of contract in the period between 25 July 2008 and 30 September 2012.

The Complainant asserted that she had interviewed for her position and accepted it on June 22, 2012, which was within the reference period. There were some blips with this as posts offered were reviewed and a start date was delayed.

The Complainant went on to say that she has been excluded from the Terms of Settlement on the basis that she was deemed a Fixed Term Worker. She argues that this is a contravention of Section 6 of the Act. She has submitted that the “Terms of Settlement “expressly exclude fixed term workers, outside those detailed above, from being recognised as Eligible Consultants.

The Complainant made an oral submission on the circumstances which surrounded her delayed start in the South , where her offer of employment was withheld and caught up in the Moratorium until eventually unravelled following a direct approach to the then Minister for Health .The Complainant explained that she had discussed the refusal to grant access to the Terms Of Settlement with her current Medical Manager but remained disappointed that the Respondent had not engaged directly with her .

The Complainant undertook to compile and submit a written submission on or before May 23, 2019 in response to the Preliminary Arguments on Time Limits. I waited for receipt of this document, but it did not materialise.

The Respondent outlined a response to the claim. Counsel submitted that the Complainant is presently a permanently employed Consultant and has held this role since 19 September 2016. The Respondent drew the hearings attention to the Complainants fixed term contract 15 October 2012 to 15 October 2015.

The Respondent outlined that the complainant has already issued High Court Proceedings against the Respondent two others “seeking damages for breach of contract”. There appeared to be an overlap in the two issues.

Preliminary Issue:

The Respondent argued that the complainant did not hold the Locus standi to progress this case as she is not a Fixed Term Worker. Secondly, the Respondent argued that the claim was out of time.

1 Fixed Term Worker:

The Respondent submitted that the Complainant had not been a fixed term worker for 3 years prior to submitting her claim. She is instead a permanent employee.

In drawing on the objectives of The Framework Agreement (Council directive 1999/70), The Respondent emphasised that the purpose of the framework agreement is to improve the quality of the fixed term work and to establish a framework to prevent abuse from the use of successive fixed term employment contracts.

The Act addresses equal treatment of temporary workers and recognition for changed status for fixed term workers.

In relying on a Labour Court Case of Railway Procurement Agency and Bell et al FTD 097, Counsel submitted that the Act protects fixed term workers and claimants must be covered by that title. The Complainant in this case is outside that category.

In Dublin Port V Mc Grath, labour Court Case, Counsel argued that the Act cannot be called on to correct anomalies in pay outside a fixed term standing. This case covered circumstances of mobility from temporary contracts and contracts of indefinite duration on behalf of Marine pilots. The CID generated different terms and conditions and not permitted the protection of red circling permitted to their colleagues in historical possession of the CIDs.

The Respondent submitted that the Complainant left the Respondent employment for a period of 11 months before taking up a permanent position. She cannot now reasonably seek the protection of the Act to “parachute terms from a different contract into one she actually holds “.

It is common case that the complainant was recategorized as “Non-New Entrant” and her pay scale upwardly adjusted accordingly.

In a second preliminary argument, The Respondent submitted that the complainant is calling on time spent at work 2012-2015 as the basis of her claim. This is outside all statutory time limits allowed.

Substantive Case:

The Respondent denied that the complainant had been treated less favourably within the meaning of the Act.

The Background to the claim follows Terms of Settlement reached on 15 June 2018. This involved both Trade Unions for Consultants in the main and followed a period of litigation where “10 lead Plaintiffs” were deemed a representative pool. 9/10 Plaintiffs were Union members. The Complainant was not a member of this cadre

The Respondent submitted extensive detail on the incremental stages which led to the June 2018 Agreement and submitted a copy of the Terms of Settlement incorporating the Eligibility Criteria.

The Agreement was made available to non-litigating Consultants who fitted an eligibility criterion. The Complainant is not covered by the eligibility clause as

1 she had not signed a permanent version of Consultant Contract 2008 between 25 July 2008 and 30 September 2012

Or

2. She had not signed a permanent version of Consultant Contract 2008 on or after 1 October 2012 but who had been successfully interviewed for the relevant permanent post between 25 July 2008 and 30 September 2012

Or

3 Was not employed on a permanent basis under Consultant Contract 1991 0r 1997 or who held a permanent Consultant contract in the public service of another EU member state and who on or after 1 October 2012 and before 15 June 2018, without breaking service signed any version of Consultant Contract 2008.

The respondent contended that the Complainant had broken service which ruled her out of eligibility.

Or

Was employed on 30 September 2012 on a fixed term version of fixed term/ specified purpose Consultant Contract 2008

And

Had been employed continuously for at least 6 months immediately prior to that date

And

And subsequently and without break in service and before 15 June 2018 signed a permanent t version of the Consultant 2008 contract. The Agreement concluded in an exclusion clause for all others. A Career Break did not disentitle a claim.

The Complainant in this case applied for he Terms of Settlement on 13 September 2018, she placed a rider on her application that she suspected that she may not have been eligible. She did not apply as a Temporary Worker.

On 25 October 2018, the Respondent advised the complainant that she did not fulfil the eligibility criteria for an “Eligible Consultant” under the Terms of Settlement. The Respondent confirmed at hearing that there no appeals mechanism, however, Queries were accepted.

The Primary considerations for selection for application of the “Terms of Settlement” are dates of recruitment, continuity of service in addition to wording of the contractual terms held.

The Respondent relied on a 2018 ECJ decision in Horgan and Keegan v Minister for Education and Skills, where difference in treatment in new entrant salaries was not found to be discriminatory on age grounds as the treatment was found to have resulted from a neutral factor. The Respondent rebutted the complainant’s assertion that contemporary male colleagues in the Southern Division had secured the Terms of Settlement, when she had not.

The Respondent concluded by arguing that the Special period in Irelands history had been correctly reflected in the Horgan and Keegan Judgement, where Ireland had to respond to an economic crisis and to adhere to collective agreements prohibiting reduction in pay as objective grounds of justification for the differential treatment of teachers.

The Respondent submitted that the claim be dismissed on four grounds.

1 Locus Standi

2 Outside the Statutory Time Limits

3 There has not been less favourable treatment under the Act.

4 If there has been less favourable treatment, the treatment is objectively justified.

Preliminary Issue:

I have listened very carefully to both parties’ arguments advanced in this case. I have read and considered the written submissions. I have studied the Terms of Settlement Guidance Note and Contracts of employment submitted by the Respondent. I have considered the case law relied on by the Respondent. It is not disputed that the Complainant has held a permanent contract of employment in Ireland since 16 September 2016. This has been her legal employment status from that date.

The Protection of Employees (Fixed Term) Act, 2003 has had a far-reaching positive effect on employee’s tenure in Ireland. The Respondent is correct on the stated objective of the Legislation. It cannot be disputed that permanent appointment to positions through a measured four-year rule is a powerful vehicle of equity and fairness.

The Complainant has not secured any of her appointments through a conversion from temporary to permanent status through the effluxion of time. It is accepted that she competed for all her posts. It is also accepted that 2008 to 2016 served as a very busy and highly mobile time in the Complainants working life as she began to build her career and her family life simultaneously. This is also the parallel period from where the Terms of Agreement arose, which corresponded with the worst economic crisis this country has ever seen. The Complainant was not participant in any of the ventures which culminated in the Terms of Settlement in 2018.

The Complainant approached the case without a grounding in the parameters in the Protection of Employees (Fixed Term) Act, 2003 or the Statutory Limitation contained in Section 41(6) or 41(8) of the Workplace Relations Act, 2015. I did explain the relevant sections of the legislation at the beginning of the hearing.

Section 1 of the Act defines a Fixed Worker.

 “fixed-term employee” means 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 but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

The Act goes on to define a permanent employee further in Section 1:

“Means an employee who is not a fixed term employee “

It is clear to me that the Complainant has maintained permanent status since 16 September 2016. Therefore, she was not a fixed term worker in the six months or by extension 1 year prior to the date on which she made her complaint on 3 December 2018.

During the hearing, the complainant explained that her issues arose from the delayed management of her offer of employment contract while she was in the Southern Area 15 October 2012 to 14 October 2015. She confirmed that she wished to run the case from that period of fixed term employment.

The Respondent submitted that this was simply impossible

I have reflected on the complainant’s position and find that it conflicts with the strict time limits in Section 41(6) of the Workplace Relations Act, 2015. I was under the impression that the complainant had agreed to furnish supplementary arguments on time limits, but this did not materialise within the promised period or within two weeks in its wake.

I must hold that I do not hold the jurisdiction to progress this complaint as the complainant was not a fixed term worker during the cognisable period of the claim. She was refused eligibility for the Terms of Settlement in October 2018, while an actively permanent employee. I cannot accept the period of employment October 2012 to October 2015 as the springboard for this claim. The claim is manifestly out of time in that regard.

It be tangential, but I noted that the complainant did not apply on the official application form which set out the eligibility criteria.

Any counter approach to the October 2018 refusal should have been advanced  through the Respondent Grievance procedure.

Finally, it is regrettable that the parties have not had any face to face discussions on this issue outside of a third-party setting. I would urge the parties to talk to each other and listen to each person’s viewpoint as a first step. The Terms of Settlement are highly complex and require careful explanation by the Respondent and a careful consideration by the complainant.

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.

Section 14 of the Protection of Employees (Fixed Term) Workers Act 2003 requires that I make a decision in accordance with the terms of the Act.

I have found that the complainant does not possess the locus standi to advance this complaint. She has held a contract of indefinite duration since September 2016 and is not a fixed term worker. She cannot rely on her historical status as a fixed term worker 2012 -2015 to ground this claim as it is Statute Barred. I lack the jurisdiction to advance this complaint to decision on the substantive case.

Less Favourable Treatment of Fixed Term Worker.