Complainant

Respondent

Anonymised Parties

A Care Assistant

A Care Service provider

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-00023143-001

09/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00023143-002

09/11/2018

The Complainant claims that he is entitled to a Contract of Indefinite duration under the Protection of Employees (Fixed Term Work) Act under the same terms and conditions as his previous fixed term contract.

The Respondent said that granting the Complainant a Contract of Indefinite duration with the same terms and conditions as his previous fixed term contract would be a breach of the Organisation of Working Time Act 1997.

The following is a summary of the Complainant’s case.

The Complainant said that he commenced employment with the Respondent as a Locum Relief Care Assistant on 29 April 2014 and he was placed on a specific purpose contract as a Care Assistant. As of 18 October 2014, he commenced a new contract as a Care Assistant working 47.5 hours per fortnight.

The Complainant said that his union wrote to the Respondent on 1 November 2018 seeking a contract of indefinite duration (CID) under the Protection of Employees (Fixed Term Work) Act. He said that on 8 November 2018 the Respondent acknowledged his letter and a few weeks later offered him a new contract as a Care Assistant for 22.66 hours per fortnight.

The Complainant said that he refused the offer on the basis that there was a substantial change to the terms and conditions of his contract. Namely his previous contract was 47.5 hours per fortnight and this offer was only for 22.66 hours per fortnight. He said that the CID should be on the exact same terms and conditions as the previous contract.

The Complainant said that the Respondent’s rationale in reducing his hours is based on a Recommendation from the Labour Court in September 2014, that determined that the “sleepover time” was to be considered as working time under the Organisation of Working Time Act, 1997. However, he argued that as part of this recommendation, the Labour Court sought all parties involved to engage and find a solution on this matter. The Complainant said that this discussion is still ongoing, and no solution has been delivered as yet.

The Complainant stated that under the Protection of Employees (Fixed-Term Work) Act he is entitled to a CID with the same terms and conditions that prevailed. He said that the other matters including how “sleeping time” is not an issue in this claim. He said that will be remedied eventually, probably at a national level decision.

The Complainant said that there was a breach of section 8 of the Protection of Employees (Fixed-Term Work) Act, 2003 as the employer failed to inform the Complainant of the ongoing reason for his employment on a temporary basis. He said that the permanent employee he was replacing had resigned for some time and he was not informed of the changed situation.

The following is a summary of the Respondent’s case.

The Respondent is a voluntary not-for-profit organisation, providing day and residential services to people with intellectual disabilities.

The Respondent said the Complainant commenced employment with it on 19 July 2013 initially employed as a locum. He was issued with a temporary part time Care Assistant position (Contract 1) effective 18 October 2014 in order to cover for a permanent employee who was taking a career break. The contract was for a period of 2 years and provided for 47.5 hours work per fortnight.

Following a recruitment campaign, the Complainant was successful in obtaining a role as a permanent part time Social Care Worker (Contract 2) with effect from 2 January 2017. This contract provided for 39 hours and up to 5 sleepovers per fortnight. (He was doing 4 sleepovers per fortnight).

As the career break of the permanent employee Care Assistant, the position that the Complainant was covering, continued after October 2016, the Complainant maintained that position on the temporary hours contract.

The Respondent said that due to the conflict between the two contracts, Contract 1 as a Care Assistant and Contract 2 as a Social Car Worker, the number of hours being worked as a Care Assistant had to be reduced in order to manage the possibility of breaches of hours worked contrary to the Organisation of Working Time Act 1997. The Respondent said that the Complainant was fully aware of these changes.

The Respondent said that towards the end of October 2018 the Respondent was advised that the permanent Care Assistant, that the Complainant was covering for, would not be returning to work following her career break.

The Respondent said that on 1 November 2018 the Complainant’s representative wrote to the Respondent and sought a contract of indefinite (CID) duration based on the two temporary Care Assistant contracts (Contract 1), under the Protection of Employees (Fixed Term Work) Act, 2003.

The Respondent met with the Complainant and his representative when it was brought to its attention that he was entitled to a CID and a new permanent contract for the part time Care Assistant was issued to the Complainant, for a 25 hours per fortnight contract. Thus, the contracts combined (Contract 1 and Contact 2) brought him up to 96 hours per fortnight and 48 hours per week.

The Respondent said that prior to this contract the Complainant was already in possession of a contract for Social Care Worker (Contract 2) for 39 hours per fortnight plus 4 sleepovers. The Respondent cited Labour Court Recommendation LCR20837 which stated that sleepover hours constitute as working time. The net result is that the Complainant would have a total hour calculation as a Social Care Worker (Contract 2) at 71 hours per fortnight.

The Respondent said that it was mindful that under section 15(1) of the Organisation of Working Time Act 1997, as the Employer, it is bound not to permit an employee to work more than an average of 48 hours over 7 days in a reference period.

The Respondent said that it is not possible for it to give the Complainant two contracts which would permit the Complainant to work in excess of the maximum hours allowable per week. It also said that such a situation would also place the Respondent in difficulty in relation to arranging its Rosters.

The Respondent said that were it to offer the Complainant a CID on the full terms and conditions in the Care Assistant position added to the Social Care Workers contract it would be in breach of the Organisation of Working Time Act, 1997.

The Relevant Law

Written statements of employer

8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date

(b) completing a specific task, or

(c) the occurrence of a specific event

(2) 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.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances

Successive fixed-term contracts

9.—(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.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

The facts of the case are not in dispute.

Section 8

The Complaint under Section 8 states that the Respondent failed to inform him of the ongoing reason for his employment on a temporary basis. He said that the permanent employee he was replacing had resigned for some time and he was not informed of the changed situation. The Respondent said that in October 2018 it was advised that the permanent member of staff, that the Complainant was covering for in the temporary contract, was not returning and due to an administrative error it failed to issue him with a CID until it was brought to its notice on 1 November and it sought to correct that immediately. The reason for the new contract on the basis of the CID with different terms namely reduced hours was explicitly provided for by the Respondent.

Having considered the matter I am satisfied that the failure was for a very short period, which was addressed once the Respondent’s attention was drawn to the matter. I deem it insufficient and no redress is just and equitable in the circumstance.

Section 9

Both parties are in agreement that the Complainant is entitled to a CID with regard to the Care Assistant position (Contract 1).

The Complainant claims that the terms and conditions of which must be exactly the same as the terms and conditions he held previously including the allocation of hours. The possible consequences of this regarding the breach of the Organisation of Working Time Act 1997 will be resolved in a different forum – trade union and management discussion. In the meantime, he claims he is entitled to a CID on his previous terms and conditions.

The Respondent said that the Complainant is entitled to a CID as he now has had two consecutive Care Assistant contracts and due to an administrative oversight was entering a third contract. However, the Respondent said that the terms and conditions of the CID had to reflect the legal reality the Respondent was facing. Granting a CID based on the terms and conditions of the previous contracted hours was a breach of the Organisation Working Time Act 1997.

I have considered the matter and note that a “contract of indefinite duration” is not defined in the Act but it has been well established in case law as meaning as identical in terms to the one the contract that existed existing before. I note in Health Service Executive v Khan [2006] FTD 4/2006 (reported at [2006] E.L.R. 313), the Labour Court ruled that the contract of indefinite duration to which a fixed term employee might become entitled “is identical in its terms, including any express or implied terms as to training and qualifications, as the fixed term contract from which it resulted from”.

I also take note in Trinity College Dublin v Moriarty [2012] FTD 5/2012, where the Labour Court ruled that the Respondent cannot “carve out part of a contract of employment and create an entirely new contract for the purposes of the Act”.

I understand the arguments as presented by the Respondent and the possible consequences of granting the Complainant a CID when both of his contracts are combined and taken together and the possible Roster implication. I note the decision of the Labour Court in the calculation of sleepovers as working time. However, from a cursory glance at both Contracts I note that the Complainant would not fall foul of the Organisation Working Time Act necessarily by granting the CID. The issue as to breaches to the Organisation Working Time Act only arise in the application of the sleeping over hours requirement. I note that the sleepover is not actually quantified in his Social Care Workers contract and there is room to manoeuvre with scheduling.

I find that the complaint is well founded.

I find that the complaint is well founded, and I require the employer to comply with the relevant provisions of the Act and issue a contract of indefinite duration in line with the previous existing terms and conditions.

Protection of Employees (Fixed Term Work) - contract of indefinite duration - well founded