Complainant

Respondent

Anonymised Parties

A Community Employment Scheme Participant

A Charitable Organisation

Representatives

In person

Stephen O’Sullivan B.L. instructed by TP Robinson Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00033408-001

23/12/2019

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

CA-00033408-002

23/12/2019

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

CA-00033408-003

23/12/2019

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

CA-00033408-004

23/12/2019

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

CA-00033408-005

23/12/2019

The complainant participated on a Community Employment (CE) Scheme with the respondent for approximately five years until 15th November 2019. The complaints were submitted to the Workplace Relations Commission on 23rd December 2019 and relate to alleged breaches of the Protection of Employees (Part-Time Work) Act, 2001 and the Protection of Employees (Fixed -Term Work) Act, 2003. The cognisable period of the complaint is from 24th June 2019 to 15th November 2019.

Note

In correspondence submitted after the adjudication hearing had concluded, the respondent confirmed that there were three rates of pay applicable to directly employed full time drivers; €13.72 per hour, €15.20 per hour and €16.72 per hour. In response to this correspondence the complainant confirmed that his chosen comparator employed at the same location was paid €15.20 per hour and it was this figure that the complainant wished to use for the purpose of his complaint.

The complainant contends to have been treated less favourably by the respondent on the basis of his employment status as both a part-time and a fixed -term worker. The complainant stated that he was employed as a Van Driver and was paid approximately €10 per hour. The complainant stated that the directly employed Van Driver was paid €15.20 per hour at the material time. The complainant stated that he raised this issue and the issue of his inability to claim travel expenses with the respondent on a number of occasions but that the respondent did not follow its own procedures in relation to his grievances and that matters were unresolved when his participation on the Scheme ended in November 2019.

The respondent refutes the complaints. In relation to the claim for travel expenses, the respondent stated that having raised the issue locally, the complainant was paid his travel expenses in relation to the incident he complained of.

In relation to the complaints of less favourable treatment on the grounds of the complainant’s employment status, the respondent stated that the complainant cannot be regarded as a fixed term worker in line with the provisions of Section 2 of the Protection of Employees (Fixed Term Work) Act, 2003 as he was engaged on a contract of employment which was “concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme. The respondent cited the cases of City of Dublin VEC v Rafferty and Cooney FTD 1224 and FTD 1226 in support of its position in that regard.

In relation to the complaints alleging less favourable treatment in breach of the provisions of the Protection of Employees (Part Time Work) Act, 2001, the respondent stated that the complainant must chose a specific comparator and demonstrate that he is engaged in “like work” with his chosen comparator. The respondent stated that choosing a directly employed comparator for the purposes of the complaint is misconceived as the directly employed employee is paid by the respondent organisation while the complainant is paid on the basis of a grant payment which is set and paid by the Department of Employment Affairs and Social Protection (DEASP). The respondent stated that any difference in the level of pay received by the complainant is based on the fact that he is a CE Scheme participant and not on the basis of his status as a part time employee. The respondent further contends that any less favourable treatment of the complainant is objectively justified in line with Section 9 of the Act on the basis that the respondent is seeking to maintain the Integrity of the CE Scheme by paying the complainant the funds it receives from the DEASP grant.

Protection of Employees (Part Time Work) Act, 2001 complaint

The Applicable Law

Sections 7(2) and 7(3) of the Protection of Employees (Part-Time Work) Act, 2001 states as follows:

7(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if—

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

( b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.

(3) The following are the conditions mentioned in subsection (2)—

(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 a 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 part-time 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.

Section 9 (1) and 9(2) of the Protection of Employees (Part-Time Work) Act, 2001 states as follows:

9(1) Subject to subsection (2) and (4) and section 11(2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

(2) Without prejudice to section 11(2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

Having considered the provisions of the legislation, I am satisfied that the full time Driver is an appropriate comparator for the purposes of the within complaint, within the meaning of section 7(3)(a) of the Act. I have reached this conclusion on the basis that the uncontradicted evidence is to the effect that the work performed by the complainant and that of his comparator as the same in all material respects.

I have also considered the respondent’s contention that maintaining the integrity of the CE Scheme by discharging the DEASP grant objectively justifies the complainant’s rate of pay. Section 9(2) of the Act allows an employer to treat a part-time employee less favourably in respect to a particular condition of employment less favourably than a comparable full-time employee where there are objective grounds for so doing. This provision allows for a derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the subsection (see the dictum of the CJEU to that effect in Case 476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visseri [2002] IRLR 430, (at par 39).

In case C-307/05, Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud [2007] IRLR 911, a case in which a difference in employment conditions as between fixed-term workers and comparable permanent workers was at issue, the CJEU in relation to objective grounds, at par 58: -

“....that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”

In this case the respondent merely asserts that paying the complainant less than his nominated comparator is necessary in order to maintain the integrity of the CE scheme under which he was engaged. However, no evidence was adduced, nor were any submissions advanced, to support that assertion. I am satisfied that a mere assertion, unsupported by evidence, is wholly insufficient to make of the defence of objective justification of the impugned difference in pay as between the complainant and his nominated comparator,

Accordingly, I am of the view that the respondent has not put forward any objective reasons that justify the less favourable treatment of the complainant. I have calculated that the complainant (on the basis of a 19.5 hour working week) was paid €101.40 less per week than the comparator which for the cognisable period of the complaint totals €2,109.12. In relation to the payment of travel expenses, I note that the complainant was paid the expenses in relation to the incident in question.

Protection of Employees (Fixed-Term Work) Act, 2003 complaints.

The Applicable Law

Section 2 of the Protection of Employees (Fixed Term) Work, Act, 2003 at relevant parts states as follows:

“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;

As the complainant was a participant on a Community Employment Scheme and in line with the provisions of Section 2 of the Protection of Employees (Fixed Term Work) Act, 2003, I find that the complainant is not a fixed term worker and does not have locus standi to bring complaints under that piece of legislation. Accordingly, the complaints cannot succeed.

Protection of Employees (Part Time Work) Act, 2001 complaint

Having considered the submissions of both parties, I find that complainant application CA-00033408-001 is well founded. Thc respondent is directed to pay the complainant €2,109.12 in respect of the breach of the legislation.

Protection of Employees (Fixed-Term Work) Act, 2003 complaints.

On the basis that the complainant is not a fixed term worker, I find that Complaint Applications: CA-00033408-002, CA-00033408-003, CA-00033408-004 and CA-00033408-005 are not well founded and I decide accordingly.

Part time employee, fixed term employee, less favourable treatment