Complainant

Respondent

Anonymised Parties

A Clerical Officer

A Government Department

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-00026637-001

27/02/2019

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

CA-00026637-002

27/02/2019

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

CA-00026637-003

27/02/2019

The complainant commenced employment on March 5th 2018 as a temporary clerical officer (“TCO”).   A copy of his contract was submitted in evidence, which shows that he was employed for the specific purpose of assisting a government department to prepare for the introduction of the General Data Protection Regulations (GDPR). He and four others were employed on specified purpose contracts to provide clerical support to the Department’s data protection project implementation team.   In November 2018, a decision was made to terminate the contracts of the five TCOs and the complainant and his colleagues finished up on January 4th 2019.

In breach of the Protection of Employees (Fixed-term Work) Act 2003, the complainant alleges that he was treated less favourably than civil servants employed on permanent contracts of employment.

CA-00026637-001

This is a complaint related to the fact that, when he was employed with the Department, the complainant was not entitled to sick pay for all the days he was absent due to illness. He claims that the effect of this is that he was employed on less favourable terms than a permanent employee.

CA-00026637-002

The complainant alleges that, as a TCO, he was not informed of training opportunities or opportunities for permanent employment.

CA-00026637-003

The complainant alleges that he was not provided with information in relation to fixed-term work.

CA-00026637-001

Having commenced employment on March 5th 2018, the complainant was on probation for three months. During this period, he was absent five times for 20 days. In accordance with the provisions of Civil Service Circular 5 of 2018 and the Public Service Management (Sick Leave) Regulations 2014 (SI 124 of 2014), he was entitled to six days’ paid sick leave while he was on probation. As he accumulated six days of absence by April 25th, the complainant was not entitled to be paid for any further absences during his probation.   He was absent again for 14 days between May 1st and June 1st and, as a result, he was overpaid by €797.12.   In accordance with the Sick Leave Regulations, he was required to reimburse the Department for this overpayment.

The National Shared Services Office (NSSO) manages the transactional elements of human resources, including absence management. On August 29th 2018, the NSSO informed the complainant of the effect on his pay of his absences and on October 1st, he was notified of the amount of the overpayment that he was required to repay to the Department.   On October 30th, he informed the HR section by email, that he would make the repayment by offsetting the amount due to him for untaken annual leave at the termination of his contract.

It is the respondent’s case that the sick leave rules and the way they apply are clear. The Department had an obligation to apply the rules and when it was discovered that the level of sick leave taken by the complainant meant that he owed money to the Exchequer, the Department had no option, but to recoup this money. For the respondent, Mr Quinn said that the Department acted properly and in accordance with its obligations under employment lay and the relevant regulations and circulars governing sick pay and overpayments.

CA-00026637-002

In relations to training, the complainant attended his initial instruction and demonstration-based training course on March 12th 2018, one week after he commenced employment in the Department. The complainant was also informed by his line manager about the Civil Service online training and development programme, “One Learning.”

Following the initial training, the complainant was trained in the GDPR procedures by external consultants, he received GDPR awareness training and he completed a GDPR training programme specifically for employees of the Department to which he was assigned.

On his first day in the job, the complainant’s manager asked him if he required training in Microsoft Excel and the complainant confirmed that he didn’t require this training. He was encouraged to take advantage of the online training available on the Staff Development website. The complainant did not approach his managers to ask for further training and he and his colleagues were continuously reminded of the training that was available.

Regarding opportunities for permanent employment, the Department does not conduct recruitment for its own or any other civil service department. All recruitment is carried out by the Public Appointments Service, “PAS,” which, according to Mr Quinn, is well known to all civil servants and to the complainant. He was recruited for his temporary position in the Department by the PAS. Any person interested in working in a government department is free to register with the PAS to be kept aware of permanent and temporary opportunities that may suit their experience or for which they may want to apply.

During the period that the complainant was employed in the Department, all staff were issued with a notice advertising an Executive Officer competition which was being conducted by the PAS. This notice was sent to all employees without any distinction, and regardless of whether they were fixed-term or permanent staff and the complainant was eligible to apply for this position.

CA-00026637-003

The complainant alleges that he was not provided with information regarding fixed-term work.   It is the Department’s case however, that the complainant was provided with a fixed-term contract which set out the specific purpose of his assignment. It was clear from the provisions of the written contract that it would cease when the specific purpose of preparing for the Department’s GDPR responsibilities came to an end. A decision was taken in mid-November 2018 that the purpose of the contract had ceased and, on November 19th, formal written notice was issued to five temporary clerical officer, including the complainant.

CA-00026637-001

In accordance with the Protection of Employees (Fixed-Term Work) Act 2003 (“the Act”), an employer is obliged to ensure that a fixed-term worker is not treated in a less favourable manner compared to a permanent employee in the same job.   This responsibility is clearly set out in the Labour Court decision which was referred to in the respondent’s submission, Prasad v the Health Service Executive FD 062.

Section 7(3) of the Public Service Management (Sick Leave) Regulations 2014 (SI 124 of 2014) provides as follows:

“It shall be a condition for the payment of remuneration during a period of sick leave on a relevant person’s part, being a person who is serving with the relevant employer on a probationary or temporary basis, that no rule, practice or custom of the relevant employer precludes the payment of such remuneration to a person serving with the employer in such a capacity.”

From the evidence submitted by the parties, I am satisfied that the complainant was entitled to sick pay on a pro-rata basis in respect of his temporary contract. In seeking to recoup the overpayment of sick pay paid to him during his probation, he was treated in the same manner as a permanent new clerical officer on probation in the Department.

CA-00026637-002

It is evident from the respondent’s submission, that, during his employment with the Department between March 2018 and January 2019, the complainant had a variety of opportunities for training and development available to him. In his complaint to the WRC, he did not specify any training that he required to carry out his job and he did not identify training that was available to his permanent colleagues that was not available to him.

It is my view that, as a person who was recruited into the Department as a result of an application to the PAS, the complainant was always aware that access to a permanent job was available to him by applying for any suitable vacancy advertised by the PAS.

Having considered this element of his complaint, I find that the complainant has not identified any training that was available to a permanent employee that was not available to him. I find also that he has not identified any vacancy that he was prevented from applying for because of his fixed-term status.

CA-00026637-003

Having examined the contract of employment that was submitted in evidence at the hearing, I am satisfied it contains each of the items of information required under Section 3 of the Terms of Employment (Information) Act 1994.  

In relation to information to be given to employees on fixed-term contracts, section 8(1) of the Protection of Employees (Fixed-term Work) Act provides as follows:

“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.”

I am satisfied that, when he was informed on November 19th 2018 that his contract would end on January 5th 2019, the Department acted in accordance with the requirements of this section. A decision was made in November to terminate the fixed-term employment of the complainant and his four colleagues and they were notified to this effect on November 19th.

I have concluded that, in respect of this complainant, there has been no breach by the Department of his rights under the Protection of Employees (Fixed-term Work) Act 2003 and I decide therefore, that these complaints are not upheld.

Fixed-term work