ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00015057
Parties:
| Complainant | Respondent |
Anonymised Parties | A Clerk | A Semi State Organisation |
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-00019518-001 | 31/05/2018 |
Date of Adjudication Hearing: 07/02/2019
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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).
Background:
The Complainant was seeking a contract of indefinite duration and compensation for the delay in providing the contract of indefinite duration. |
Summary of Complainant’s Case:
The Complainant is employed as a Clerk. The contract renewals were not provided in a timely manner. The fixed term contract dates were as follows; Contract 1; 18/5/2015 to 31/10/2015. Contract 2; 1/11/2015 to 30/11/2015 Contract 3; 1/12/2015 to 31/12/2015 Letter 1: letter stating the Complainant reverts to Casual status dated 15/2/2016 Contract 4: 21/6/2016 to 20/3/2017 Letter 2: letter stating the Complainant reverts to Casual status dated 6/1/2017 Contract 5; 16/1/2017 to 11/12/2017 Contract 6: 25/6/2018 to 31/8/2018 Contract 7: Appointed on Contract of Indefinite Duration on 20/8/2018. The Respondent is in breach of Section 8.2 of the Act by not advising the Complainant of the objective grounds to renew the fixed term contact and the reasons for not offering a contract of indefinite duration. The Complainant is seeking to have the date of his contract of indefinite duration brought back to an earlier date and compensation for the delays in issuing contracts and the delay in providing him with a contract of indefinite duration.
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Summary of Respondent’s Case:
It is accepted that the Complainant worked on a continuous basis and the provision of contracts was not speedily attended to. The Respondent has met its obligations under the Act by giving the Complainant a permanent contract of employment since August 20th 2018. The Respondnet has centralised the issuance of contracts recently. The Respondent does not agree that compensation is justified in the circumstances. |
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 8 (2) of the Act states that “Where an employer proposes to renew a fixed term contract, the fixed term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal”. The first issue to be dealt with in this case is the status of each contract. Contract 1 and 2 above are fixed term contracts. It is not necessary to deal with the further contracts as the above two contracts are critical to the decision in this case. The renewal of the fixed term contract commencing on the 1st of November 2015 does not contain any reference to “the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration”. Therefore this is “the date of contravention “ of the Act. The contract does address grounds in how the contract may be terminated but no justification for the renewal of the contract. Grounds contained in the contract for the termination of the contract are not grounds justifying the renewal. The Complainant continues in employment with the Respondent and does not appear to have suffered any economic loss and is now a permanent employee. Therefore, the only issue for resolution is the commencement date of his contract of indefinite duration. The Complainants case is that Section 8.2 of the Act was breached when the Complainant was provided with a second contract, commencing on the 1st of November 2015, which did not include any objective grounds justifying the renewal or the failure to offer a contract of indefinite duration. The claim was submitted to the WRC on May 31st 2018 and while the alleged contravention took place outside the six months (or twelve months) period allowed by Sections 14 .3 and 14.4 to submit a claim this issue has been ruled upon in HSE Dublin North East and Uli Umar (FTC/09/28) where it was held that the Complainant had obtained a contract of indefinite duration by virtue of Section (9)3 and the Complainant was not obliged to bring a complaint to the WRC in order to obtain such a contract and in Lorraine Kane and NUI Maynooth (FTC/15/12) where in a “continuing breach of the Act by way of failure to acknowledge the entitlement to a contract of indefinite duration” the Court accepted jurisdiction even though the claim was submitted outside the prescribed times in Section 14.3 and 14.4 of the Act. I find that the Respondent breached Section 8.2 of the Act on November 1st 2015 by not stating the “the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration” and the Complainant is entitled to a contract of indefinite duration from November 1st 2015. I see no grounds for awarding any compensation in this case as no economic loss was put forward to justify compensation. |
Dated: 29/05/19
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Fixed term renewal |