ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00013317
Parties:
| Complainant | Respondent |
Anonymised Parties | A security officer | An event company. |
Representatives |
Complaints:
Act | Complaint/Dispute Reference No. | Date of Receipt |
CA-00017515-001 | ||
CA-00017515-002 | ||
CA-00017515-003 | ||
CA-00017515-004 | ||
CA-00017515-005 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
Background:
The Complainant was employed as a security officer by the Respondent. Employment commenced on 01/11/2011 and ended on 26/09/2017. This complaint was received by the Workplace Relations Commission on 19/02/2018. |
Summary of Complainant’s Case:
Preliminary. 1. The Claimant will submit that the succession of contracts of employment of unspecified terminations dates and/or unspecified purpose are an abuse of Section 9 (1) and (2) of the Protection of Employees (Fixed Term Work) Act 2003. – (1) Subject to subsection (4ˡ), 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. 2. Thus, as per Section (9) (3) of the Act 2003 where any term of these contracts purports to contravene Section 9 (1) that term will have no effect and is void and the contract shall be deemed to be a contract of indefinite duration. 3. The Claimant has accrued 60 months service comprised of 7 contracts which exceeds the service requirement stated in Section 9(1) they are: a) November 2011 (no end date of purpose specified). b) November 2012 c) November 2013 d) Worked 16 March 2014 – 30 December 2014 but not contract issued for 2014 e) Worked 23 September 2015 – 7th December 2015 and no contract issued for 2015 f) February 2016 g) January 2017 4. His employment with the Respondent is continuous for the purposes of the 2003 Act notwithstanding any breaks or layoffs intervening. 5. His dismissal was wholly or partly connected with purpose of avoidance of a CID in contravention of S13 (1) (d) and/or 13 (2) (a) or otherwise of the 2003 Act. BACKGROUND: 1. The Complainant was employed as a security officer with the Respondent at a Theatre in Dublin and other locations in the Leinster area since 2011 on successive contracts of employment. 2. He received these contracts of employment of indefinite time and for varying amounts of hours during the course of his employment with the Respondent. 3. His average hourly pay amounted to €12.00. He never received paid annual leave holidays in breach of Section 19 of the Organisation of Working Time Act 1997 (“OWTA”) nor did he receive a Sunday premium/additional allowance, time off in lieu, increase in pay or combination of same for working Sundays, in breach of Section of 14 OWTA for the entire duration of his employment over 6 years. 4. He worked in this role for a considerable number of years and had the trust and confidence of his employer. 5. The Claimant will say that while working at the Theatre in Dublin, he noticed on employee of another company,(“R”) the contractor dealing with ticket sales at the Respondent’s Theatre venue, misappropriating cash from the cash register. He had apprehended “R” and reported this incident to the Contractor’s management. The Manager from the Contractor had implored the Claimant not to report this to the Respondent as they were fearful that this would jeopardise the contract that they had with the Respondent in relation to ticket sales. The Claimant complied with that request and was satisfied that the guilty party would no longer reoffend. 6. He was at this particular time employed under a temporary contract of employment from 9th January 2017. 7. Sometime thereafter and on or about 23rd September 2018 he was joking with R where a slight amount of play acting occurred. In the play acting he had jokingly verbally threatened to choke her by using his hands in a choke gesture; but did not place them on or near her. 8. The following day, 24th September 2018, he received a telephone call from the Respondent management stating that an allegation of assault had been reported by R. The Claimant was deeply shocked and surprised at this turn of events and did not believe that there was any seriousness to the charge. He was asked to respond in writing, to this allegation which he did on 26th September 2018 clarifying the situation. 9. On foot of this, the Respondent placed the Claimant on suspended paid leave as of 24th September 2018 while the Respondent purported to investigate the claim. 10. As is plainly evident in the email of 11th December 2017 from the Respondent to XXXXX the Respondent dismissed the Claimant and did not renew his contract as he “thought it wise not to ask him back for the new Exhibition due to start (30th September 2018). The Respondent going on to state that (he) “…. Never sacked the Complainant, his contract had run out and decided not to bring him back”.
ISSUES TO BE DETERMINED: 1. Unfair dismissal (penalisation) in the manner of described in Section 13 (1) (d), 13 (2) (a) or (b) of the Act 2003 “….. by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration under section 9 (3). 2. Failure of the Respondent to pay the Claimant Sunday premium for working Sunday hours in accordance with Section 14 of the OWTA Act. 3. Failure of the Respondent to provide paid annual leave to the Claimant annual leave in breach of Section 19 of the Organisation of Working Time Act. 4. Upon dismissal, failure to pay the Claimant his entitlement to notice under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 amounting to five years approximately or 4 weeks. Dismissal in the manner of prohibited by Section 13 of the Act of 2003. PENALISATION UNDER THE FIXED TERM WORKERS ACT 1. The Protection of Employees (Fixed Term Work) Act 2003 (hereinafter referred to as “the 2003 Act”) was implemented in Irish Law in order to transpose Council Directive No 1999/70/EC concerning the framework agreement on fixed term work into Irish Law. WHAT IS FIXED TERM WORK 1. The scope of the Act is set out at Section 6 as the principle of non-discrimination as between a fixed term employee and a comparable fixed term employee, this is defined at Section 2 (1) as meaning: “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 ..” 2. In this situation the contracts make no specific mention of anytime for determination of the contract or the completion of a specific task or the occurrence of a specific event. It is conceded of course that the type of work involved security surrounding the various exhibitions at the Theatre (and other venues under the ownership of the Respondent). ENTITLEMENT TO A CONTRACT OF INDEFINITE DURATION 1. As stated Section 9(1) of the 2003 Act sets out the number and service requirement to deem a contract CID. The Claimant has 60 months by 7 contracts with accrued service and fulfils that definition of a deemed CID. 2. In HSE v Khan (2006) ELR 313, the Court made clear that the contract of indefinite duration should be identical in its terms, including any express or implied terms as to training and qualifications as the fixed term contract from which it was derived. The only term of the fixed term contract rendered void is that relating to the expiry of the contract by the effluxion of time. The Court held as follows: “Hence by operation of law, the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including, as in the instant case, any express or implied terms relating to training or the attainment of qualifications”. Objective justification (non-renewal and/or failure to apply fair procedures and its disciplinary policy) 1. S7 of the 2003 Act sets out what shall and shall not be regarded as objective justification. The concept applies both to defending what would otherwise be unequal treatment between a fixed term employee and a comparable permanent employee pursuant to section 6 and to refusing to grant a contract of indefinite duration pursuant to Section 9. 2. It is clear that the objective grounds relied on by an employer must be based on considerations other than the status of the employee as a fixed term worker. In this regard the email from the Respondent’s manager expressly states that he (thought it wise) “not to ask him back for the new Exhibition due to start (30th September 2018) and that (he) .. “never sacked the Claimant, his contract had run out and decided not to bring him back”. The reference to his contract running out and the fact that more and continued work was available means of course the justification for non-renewal (without prejudice to the fact that he as a CID by operation of S (9) was based on subjective and discriminatory grounds and not objective as permitted by the Act 2003. 3. It is also submitted that a comparable full-time employee in similar circumstances would have had the right to fair procedures and those prescribed in both the Claimant’s contracts and the handbook which were not afforded to the Claimant representing less favourable treatment which cannot be justified objectively or otherwise in contravention of the Act. It is noteworthy that no reasons were provided to the Claimant for terminating his employment but it must be presumed the incidence with R had informed that reason and whereso procedures should have been applied. This is without prejudice to the fact that the reason for dismissal was on account of his status which the Respondent assumed was precarious. 4. Further, it is abundantly clear that no confirmation of why repeated fixed/specific purpose contracts were issued to the Claimant in breach of Section 8 (1) of the Act of 2003. 5. It is submitted that when the adjudication of this issue arises that the inference at 8 (4) above must be negative and must weight favourably to the Claimant. 6. For a defence in treating the Claimant thusly it is also necessary that the less favourable treatment must be for the purpose of achieving a legitimate objective of the employer and must be appropriate and necessary for that purpose which is well settled law. SUCCESSIVE FIXED TERM CONTRACTS 1. The meaning of successive continuous fixed term contracts was considered by the Labour Court in the case of Department of Foreign Affairs v A Group of Workers (2007) 18 E.L.R. 332. The claimants had various periods of fixed term employment with breaks between contracts. Some of the breaks were as long as twenty-six weeks. The Act does not refer to successive contracts but rather refers in Section 9 to continuous contracts. However, the Labour Court pointed out that Clause 5 of the Framework Agreement annexed to the Directive refers to successive contracts. In rejecting the respondent’s submission that the claimants were not covered by the Act, the Court pointed out: “If the Respondent’s submissions are correct, Section 9 of the Act only applies to continuous employment relationships and successive relationships, which are separated in time no matter how short, are excluded. If that is the correct statement of the law, in light of the decision in Adeneler v Ellinikus Organismos Galaktus the conclusion is that the Framework Agreement has not been properly transposed in domestic law is inescapable. In that eventuality the court should not apply Section 9 of the Act in a way which would defeat the result envisaged by Clause 5 of the Framework Agreement”. 2. Ultimately, the Court upheld the decision of the Rights Commissioner that the periods between the claimants successive fixed term contracts could properly be classified as periods of lay off and therefore the entirety of the periods covered by the contracts were periods of continuous employment for the purposes of Section 9 of the Act. The Court concluded that it was: “reinforced in its view that this is a correct application of the law to the facts of this case as it produces a result which is in harmony with the object pursued by Clause 5 of the Framework Agreement as interpreted in Adeneler”. 3. In that regard there are periods of lay off or breaks within the entire tenure of the Claimants employment. These are: a) 2011: commenced 19/11/11 to 28/12/11 b) 2012: 4/1/12 – 29/8/12 (break of 7 days commencing) c) 2013: 7/1/13 – 9/1/13; 13/6/13 – 19/7/13; 16/8/13 – 4/9/13; 14/11/13 – 26/11/13; 7/12/13 – 10/12/13 break of 13 weeks. d) 2014: 16/3/14 – 30/12/14 ** break of 12 weeks e) 2015: 7/1/15 – 23/9/15 ** break of 8 days f) 2016: 24/2/16 – 9/11/16 17 weeks g) 2017: 18/1/17 – 27/9/17 9 weeks break
** 18 months continuous service. 4. Applying Department of Foreign Affairs, the Court stated that where the employee has a reasonable belief that he or she will be re-employed and this does in fact occur then the break in contracts do not negate the continuity the Court noted that: There appears, at first sight, to be a conflict between s 9 of the Act and Clause 5 of the Framework Agreement. This arises from the fact that Clause 5 of the Framework Agreement applies to fixed term contracts which are successive thus giving it a considerably wider scope than if its application was confined to employment relationships which were continuous. It seems to the Court that there is a significant qualitative difference between the concept of a continuous employment relationship and one which is successive. The former connotes an employment relationship without interruption whereas the latter indicates a series of relationships which follow each other but can be separated in time. |
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Summary of Respondent’s Case:
BACKGROUND: 1. The Complainant was one of just six staff retained by the Theatre and he provided security services when the Theatre was operating. His rate of pay was €12 per hour (inclusive of a Sunday premium). 2. Like five of the six staff employed by the Theatre, the Complainant was retained on a casual, part time contract but worked an average of 23.7 hours per week in the 29 weeks between commencing employment on 3rd March 2017 and finishing on 23rd September 2017. He was also retained on separate part time contracts (of between c. 1- and 8-months duration) between 2011 and 2016. 3. His last day of work was on 26th September 2017 when he placed his hands around the neck of a 19-year-old girl who sold a ticket to a customer after 6pm. He later claimed that this was a joke. MINIMUM NOTICE – CA 00017515-001 1. The Complainant has claimed that he did not receive payment in lieu of notice whereas, in fact he was paid 29.46 hours as payment in lieu of notice in the week ending 1st October 2017. 2. As he was paid in arrears, the Complainant’s pay statement shows that he was paid for 42.25 hours on 27th September and this covered his hours worked. In addition, he was paid for 45 hours on 4th October and this included (a) 15.14 hours in outstanding holidays and (b) 29.46 hours as payment in lieu of notice. This exceeded his entitlement of 23.7 or 17.9 hours pay in lieu of notice. ANNUAL LEAVE – CA 00017515-002 1. The Complainant has claimed that he did not receive his annual leave entitlement whereas, in fact, he was paid or granted a total of 55.25 hours annual leave. 2. Having worked for a total of 690.5 hours during his employment, he was entitled to 55.24 hours of annual leave, i.e. 8 per cent of the hours worked. FIXED TERM & PART TIME WORK – CA 00017515-004 1. Without providing specifics, the Complainant has claimed that he was treated less favourably than permanent employees. 2. The only permanent employee is the Manager who cannot be considered as a comparator. There being no comparator, the Complainant is not treated less favourably than a comparable permanent employee as alleged. 3. As with the 2001 Act, Section 13 (1) of the 2003 Act refers specifically to penalisation for (1) invoking any right relating to conditions of employment (b) opposing an unlawful act which is unlawful under the 2003 Act, (c) giving evidence in proceedings under the Act or intention to do so or (d) dismissing an employee if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration. 4. The Complainant was not dismissed but rather was not rostered for the following show. This was on account of his behaviour within the workplace and particularly for the incident with the young lady. PAY – CA 00017515-005 1. The Complainant has claimed that he did not receive a premium for Sunday working whereas in fact his rate of €12 per hour is inclusive of a Sunday premium. 2. This is clearly stated in the contract of employment which was signed by him and reads: “rate of pay - €12 per hour (Monday to Sunday) which is inclusive of a Sunday premium”. SUMMARY 1. The Complainant was not rostered for the following show as he had been involved in an incident with a 19-year-old girl. No dismissal took place nor has his representative sought at any stage to prove dismissal. 2. It is only alleged that the Respondent sought to avoid a fixed term contract being deemed to be a contract of indefinite duration. This is also without foundation and it is clear that the claimant would have been rostered for recent shows had he not been involved in the aforementioned incident. 3. It is clear and self-evident that there was no attempt to avoid a CID in contravention of the 2003 Act. By contrast, the Respondent is obligated to protect all staff from harm, menace or physical violence – not least a defenceless 19-year-old female. The Respondent’s actions were not wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration”. Such a claim is simply wrong. 4. Notwithstanding the fact that there is no comparator, there is also no doubt that a permanent employee would not have been rostered after such an act. Whether or not the company’s actions under such circumstances would be deemed to be fair and proportionate would be considered under the Unfair Dismissals Acts and not under any other legislation. 5. We understand that a separate claim has been lodged under the Unfair Dismissals Acts and trust that the Respondent will be afforded the opportunity to defend this claim in due course. We also note the Claimant’s contention that he has 60 months service and 52 weeks continuous service. 6. Payment in lieu of notice was applied on the expiry of his most recent contract and this was in excess of his entitlement. 7. Annual leave was paid / granted at a rate of 8 hours per 100 hours worked as per statutory entitlements. 8. The rate of pay which applied (€12 per hour) during 2017 was inclusive of a Sunday premium as outlined in his contract of employment and this was signed/ contractually agreed by the Complainant. This rate was significantly in excess of the minimum wage rate of €9.15 per hour which applied at the time. |
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Findings and Conclusions:
The Complainant has quite correctly provided the background and content to the Protection of Employee (Fixed Term Work) Act, 2003 with attention drawn to of Section 9 (1) and (2) of the Protection of Employees (Fixed Term Work) Act 2003. – (1) 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 Complainant has accrued 60 months service comprised of 7 contracts which exceeds the service requirement stated in section 9(1). The Complainant’s representative asserts that his employment is continuous for the purpose of the 2003 Act notwithstanding any breaks or layoffs intervening and that his dismissal was wholly or partly connected with the purpose of avoidance of a CID in contravention of S13 (1) (d) and /or S13(2) (a) or otherwise of the 2003 Act. It is very easy to accept that the Complainant should have been issued with a Contract of Indefinite Duration (CID) but was denied this right by the Respondent. In September 2016 the Complainant placed his hands around the neck of a young girl working in the same venue who sold a ticket to a customer after 6.00pm. He later claimed that this was a joke. The Respondent states that the Complainant was not dismissed but rather was not rostered for the following show. This was on account of his behaviour within the workplace and particularly for the incident with the young girl. I will now look at some points from the summary in the Respondent’s submission: · The Complainant was not rostered for the following show as he had been involved in an incident with a 19-year-old girl. No dismissal took place nor has his representative sought at any stage to prove dismissal. · It is only alleged that the Respondent sought to avoid a fixed term contract being deemed to be a contract of indefinite duration. This is also without foundation and the claimant would have been rostered for recent shows had he not been involved in the aforementioned incident. · It is clear and self-evident that there was no attempt to avoid a CID in contravention of the 2003 Act. By contrast, the Respondent is obligated to protect all staff from harm, menace or physical violence – not least a defenceless 19-year-old female. The Respondent’s actions were not wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration”. Such a claim is simply wrong. · Notwithstanding the fact that there is no comparator, there is also no doubt that a permanent employee would not have been rostered after such an act. Whether or not the company’s actions under such circumstances would be deemed to be fair and proportionate would be considered under the Unfair Dismissals Acts and not under any other legislation. · We understand that a separate claim has been lodged under the Unfair Dismissals Acts and trust that the Respondent will be afforded the opportunity to defend this claim in due course. We also note the Claimant’s contention that he has 60 months service and 52 weeks continuous service. In response one has to look at section 5 of the 2003 Act. The Respondent is stating that there is no comparator. The Act at section 5 reads as follows: 5. (1) For the purpose of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if – (a) The permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions are referred to in subsection (2) is satisfied in respect of those employees, (b) In case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purpose of this Part as a permanent employee in relation to the relevant fixed-term employee, or (c) In case neither paragraph (a) or (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, And references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly. (2) The following are the conditions mentioned in subsection (1) – (a) Both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work, (b) The work performed by one of the employees concerned is of the same or similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and (c) The work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions. There is no disagreement to the fact that the Complainant was employed as a security operative and held the appropriate licence to carry out the functions of this position. Any security officer carrying out the duties of a security officer may be deemed as a comparator. In this instant case the Complainant is deemed to be a permanent employee with a Contract of Indefinite Duration. The Complainant was not called back after a period of lay-off where he should have been. The Complainant has drawn attention to point 16 of his submission which reads: “As is plainly evident in the email of 11th December 2017, from one of the Respondent’s management to another, he “thought it wise not to ask him back for the new Exhibition due to start on 30th September 2017”. He then goes onto say “never sacked the Complainant, his contract had run out and decided not to bring him back” Section 13 (2) of the Act reads as follows: (2) For the purposes of this section, an employee is penalised if he or she – (a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or (b) is the subject of any other action prejudicial to his or her employment. The Complainant was dismissed from employment, I find this is an act of Penalisation under this Act. CA – 00017515 – 001 Complaint made under section 11 of the Minimum Notice and Terms of Employment Act, 1973. The Complainant contends that he had accrued 6 years’ service with the Respondent and was therefor entitled to 4 weeks’ notice. Based on his P45 figures this would equate to €2,783.11 CA – 00017515 – 002 Complaint made under section 27 of the Organisation of Working Time Act, 1973. The Complainant contends that he never received holiday pay while working for the Respondent. Section 2 of the Act defines the leave year as being a year beginning on any 1st day of April. Section 27 (4) of the Act reads as follows: 27 (4) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates. In this instant case the complaint was received by the WRC on 19/02/2018, the relevant period is therefore the period from 20th August 2017 until 19th February 2018. The Complainant’s final day was 26th September 2017. We are looking at a period from 20th August 2017 until 26th September 2017. The Respondent has stated that the Complainant received a total of 55.25 hours annual leave. This being the case this complaint is not well founded. CA – 00017515 – 003. This complaint was withdrawn at hearing. CA – 00017515 – 004. Complaint referred under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003. I have considered this complaint in detail – please see above. CA – 00017515 – 005 Complaint made under section 27 of the Organisation of Working Time Act, 1973. The Complainant contends that he was not paid a Sunday premium. The contract of employment reads “Rate of Pay” - €12 per hour (Monday to Sunday) which is inclusive of a Sunday premium. The contract has been signed by the Complainant. This complaint is not well founded and therefore fails, |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA – 00017515 – 001 I award the Complainant the sum of €2,783.11 representing 4 weeks pay in lieu of notice. CA – 00017515 – 002 This complaint is not well founded and therefore fails. CA – 00017515 – 003 This complaint was withdrawn at hearing. CA – 00017515 – 004 I find this complaint to be well founded. The Complainant was penalised. Under section 14(2) (d) of this Act I now order the Respondent to pay to the Complainant compensation in the amount of €7,500. CA – 00017515 – 005 This complaint is not well founded and therefore fails. |
Dated: May 20th 2019
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Protection of Employees (Fixed Term Work) Act, 2003. Penalisation. |