Complainant

Respondent

Anonymised Parties

An employee

An educational establishment

Representatives

Darach McNamara BL instructed by Julie Mullan, McGrath McGrane Solicitors.

Niamh Ní Cheallaigh IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00029986-001

31/07/2019

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

CA-00029986-002

31/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00029986-003

31/07/2019

The Complainant is employed by the Respondent and has been so since October 2000.

This complaint was received by the Workplace Relations Commission on 31st July 2019.

The Complainant has made the following complaints:

CA – 00029986 – 001 A complaint pursuant to section 7 of the Terms of Employment (Information) Act 1994.

CA – 00029986 – 002 A complaint pursuant to section 14 of the Protection of Employees (Fixed – Term Work) Act, 2003.

CA – 00029986 – 003   A complaint pursuant to section 13 of the Industrial Relations Act 1969.

Background

The Complainant commenced permanent employment with the Respondent approximately 28 years ago.

At all material times, positions were to be advertised by the Respondent in an open and fair manner.

In or about early 2015, the Complainant was employed as a General Operative. However, he was offered a new contract of employment as a Culinary Operations Supervisor which he accepted around that time.   This new contract of employment commenced on 2nd February 2015. He was required to sign a new contract of employment at the time which he did on 26th February 2015 and which was signed on behalf of the Respondent on 2nd February 2015.

Clause 1 of this contract provided that it was a specific purpose contract to cover for Ms EO’C and would cease when that purpose ends.

Clause 3 of the contract set out the Complainant’s new duties which were far more extensive than those which he had been previously required to do under his old contract of employment. As well as involving more responsibility the role of Culinary Operations Supervisor also had a higher salary to that which he had been receiving under his old contract of employment.

On 11th October 2016, the Complainant signed a second specific purpose contract which was signed on behalf of the Respondent on 10th October 2016. This contract was similar to the previous contract in terms of its role and duties but differed from it in terms of the specific purpose that would determine it. This new contract, at paragraph 1, provided that the contract would end “pending a review of the Maintenance Staff requirements within the School in the context of relocation to a new location which is anticipated to be completed by September 2018”.

Ms W who was also a permanent employee holding the position of Assistant Housekeeper, when the role of Culinary Operations Supervisor first arose, did not apply for it, preferring to remain in her permanent employment. The Complainant applied for the role, in the knowledge that he would be relinquishing his permanent position as General Operative, because he was told that he could later interview for the new role of Head of Culinary Operations when that position came into being on the transition of the various colleges to the new campus. He was told this prior to first applying for the role and also when it was renewed.

During his time as Culinary Operations Supervisor, the Complainant was senior to Ms W who reported to him. She assisted the Complainant’s role by, for example, ordering goods for stores and filling out wage sheets on Fridays.

As is clear from FC’s email to Ms W and her response of 19th May 2016, Ms W had already been offered the Head of Culinary Operations role around that time. At that time, Ms W was a permanent employee whilst the Complainant was a fixed term worker.

In an email to PB and JM on 23rd October 2017, FC confirmed that the Head of Culinary Operations would in fact be advertised internally in the first instance, and thereafter, externally. In particular, he stated that he advised the Complainant that the post of Head of Culinary Operations would be so advertised and that, whilst there would be no guarantee that he would be appointed to that post, he would be invited to an interview for it. The email goes on to state as follows:

“It was a most unusual situation that a member of staff be unofficially offered a two-grade promotion without competition or interview and in particular when another member of staff is in the position as a specified purpose appointment”.

On 20th April 2018, the Complainant was informed by FC that the permanent Head of Culinary Operations role was to be filled by Ms W and that there would be no interviews or competition.

On 30th April 2018, the Complainant wrote setting out his complaint that he was not afforded an interview as promised.

On 28th November 2018, the Complainant met with FC who told him that the Respondent’s hands were tied and that the role had to go to Ms W on account of a binding Labour Court decision.

On 8th March 2019, the Respondent wrote to the Complainant informing him that the 2015 binding recommendation of the Labour Court would be implemented shortly which would result in his role as Culinary Operations Supervisor coming to an end.

On 25th June 2019, the Respondent wrote to the Complainant informing him that his specific purpose would come to an end on 24th July 2019.

On 15th July 2019 the Complainant’s Solicitor wrote to the Respondent articulating his grievances.

On 19th July 2019 the Respondent wrote to the Complainant informing him that his specific purpose contract would cease on 23rd July 2019 and that he would revert his “substantive position as CID Wholetime General Operative” with effect from 24th July 2019 on the lower salary scale commensurate with that position which was approximately €7,000 less per annum.

By operation of section 9 of the 2003 Act, the Complainant was deemed to have converted his fixed term contract into a contract of indefinite duration on the expiry of the second such contract and the Complainant will take such steps as are necessary to correct his predicament in due course.

The Complaints

The Complainant has made the following complaints

1) A complaint pursuant to section 14 of the 2003 Act that the Respondent discriminated against the Complainant by not offering him the role of Head of Culinary Operations or even an interview for that post in circumstances where it had been offered to a permanent comparable employee.

2) A complaint pursuant to section 5 of the Terms of Employment (Information) Act 1994 arising out of the Respondent’s failure to notify him of a change to his section 3 statement of terms and conditions of employment.

3) A complaint pursuant to section 13 of the Industrial Relations Act 1969 arising out of the Respondent’s failure to offer him the said role or an interview for it.

The Law

Section 2 of the 2003 Act provides for the following definitions:

“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 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.

The relevant provisions of section 5 of the 2003 Act provides as follows:

1) for the purposes 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 referred to in subsection (2) is satisfied in respect of those employees ….

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 inter-changeable 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 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.

Section 6(1) and (2) of the 2003 Act provide as follows:

1) subject to subsections (2) and (5) a fixed term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

2) If treating a fixed term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds than that employee may, notwithstanding subsection (1) be so treated.

Section 7 of the 2003 Act provides as follows:

1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed term employee’s contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

2) Where, as regards any term of his or her contract, a fixed term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2) ) be regarded as justified on objective grounds, if the terms of the fixed term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment.

Section 12 of the 2003 Act provides as follows:

Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void insofar as it purports to exclude or limit the application of, or is inconsistent with, any provisions of the Act.

Section 14 of the 2003 Act as amended provides as follows:

A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of this Act shall do one or more of the following namely –

a) declare whether the complaint was or was not well founded.

b) require the employer to comply with the relevant provision.

c) require the employer to reinstate or re-engage the employee (including on a contract of indefinite duration) or

d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication offer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment.

In Dublin Institute of Technology v Scott FTD 17/2014 the complainant was found by the Labour Court to have acquired a contract of indefinite duration in July 2008 by operation of law. Nevertheless, the Institute “ignored that reality” and continued to treat the Complainant as a fixed term employee by providing him with a specified purpose contract expiring in July 2013. The Court held that the Institute “could not seek to benefit from its own behaviour and deprive the complainant of the benefit of permanency by treating him as a fixed term worker while simultaneously benefiting from his loss of locus standi under this Act” and ordered the complainant’s reinstatement.

Application of the Law

The definition of a “fixed term employee” in section 2 of the 2003 Act is clear. There must be (i) a contract of employment, (ii) entered into directly with an employer, (iii) where the end of the contract of employment concerned is determined by an objective condition.

It is submitted that each of these three ingredients were clearly in place when the Complainant took up his first specific purpose contract with the Respondent. In the first contract, the end of the contract was to be determined by the return of Ms O’C to that post. In the second, the end of the contract was to be determined when there was a review of the Maintenance Staff requirements. It is further submitted, therefore, that the Complainant was a fixed term employee at all material times.

The Respondent submits that it is the Complainant’s position that he was both a permanent employee and a fixed term employee. With respect, that is not the case. The Complainant’s position is that, prior to entering into the fixed term contracts, he was a permanent employee. However, on commencing his fixed term contract, he was no longer a permanent employee. He relinquished that position in an effort to advance his career in circumstances where he had always been promised an interview for the Head of Culinary Operations role when it would be created. The June 2009 contract referred to in the Respondent’s submissions was superseded by the 2015 fixed term contract.

The case of Louth County Council v Kelly relied upon by the Respondent can be distinguished from the present case for the following reasons:

a) There was no evidence in that case, as there is here, that the Complainant gave up his previous role to take on the more senior role. Here, the Complainant deliberately applied for the role because he wanted to interview for the Head of Culinary Operations role when it came up.

b) Unlike the position in Kelly, the Complainant’s fixed term contracts did contain specific clauses regarding termination of the contract on the happening of specific objective events.

c) Unlike the position in Kelly, the Complainant did not revert to his permanent role afterwards.   Rather, the Complainant is deemed to have a contract of indefinite duration by operation of section 9 of the 2003 Act and the Complainant will prosecute a new complaint to that effect in due course if the Respondent does not take steps to address his current predicament.

The Respondent also seeks to rely on clause 1 in each of the fixed term contracts which states that on the expiry of the specific purpose, the Complainant will then revert to his substantive post. It is submitted that this provision constitutes a breach of section 12 and is therefore void. It will be recalled that section 12 serves to render void any agreement which seeks to circumvent the operation of the 2003 Act. By seeking to rely on Clause 1 the Respondent is seeking it both ways.   On the one hand, the Respondent wants to avail of the Act’s provisions to offer contracts to employees such as that offered to the Complainant, but in the same breath, wants to ensure that none of the protections afforded to employees under that legislation is available to them. Therefore, it is submitted that section 12 operates here so as to render the attempts of the Respondent to avoid the operation of the Act void with the result that the Complainant is entitled to the protection of the 2003 Act for the purposes of advancing his discrimination complaint. As the Labour Court held in DIT V Scott above, an employer cannot “seek to benefit from its own behaviour and deprive the complainant of the benefit of permanency by treating him as a fixed term worker while simultaneously benefiting from his loss of locus standi under this Act”. In the same way, it is submitted the Respondent cannot seek to have the Complainant fill an important role for it on a temporary basis but then not afford him the rights that go with that temporary status.

As regards the Respondent’s contention that it was bound by a Labour Court recommendation, the Complainant was not bound by it when he acted on the Respondent’s representations that he would be offered an interview of the new role when he was considering the specific purpose contracts on offer. If the Respondent entered into a separate agreement with the Unions regarding Ms W’s entitlement, that is a matter between them and does not concern the Complainant. The only issue that arises in this case is whether the Complainant was discriminated against by virtue of his status as a fixed term worker vis a vis Ms W who was the permanent comparable employee that was offered that role.

The document on which most reliance is placed by the Respondent is a report of a Joint Working Group comprising representatives from the Respondent and the unions. It is notable that Ms W herself was part of the subgroup that reviewed the Housekeeping service. A recommendation recommends aligning the Assistant Housekeeper to the Head of Culinary Operations role. There are a number of points to note as follows about this recommendation and the Labour Court decision:

a) the recommendation is dated May 2014. Ms W did not apply for the role of Culinary Operations Supervisor when it was advertised in 2015 and in circumstances where, as pointed out by FC in his email that position was the temporary version of the position that would become the Head of Culinary Operations. Therefore, in not applying for that role and permitting the Complainant to do so, Ms W acquiesced to this state of affairs and the Respondent was no longer then obliged (if it was ever) to offer her the role.

The recommendation was superseded by the assurances given to the Complainant as referred to by FC.

The recommendation is only a recommendation and is clearly non-binding. It merely recommends that Ms W be so appointed. The fact that FC could not find an official HRC approved offer is consistent with this fact. So is his insistence in the email that the position be advertised.

At the Labour Court, the Union argued that the May 2014 Report was aimed at realising significant savings. The Labour Court was convinced by the figures that they produced and so approved the proposals in the report. However, the Labour Court’s decision approved the proposals insofar as they related to the cost savings that would result. However, that decision was impersonal. The Labour Court did not stipulate that Ms W, or any other people were to be appointed to the roles mentioned in the report. To interpret the Labour Court’s decision in this way is highly disingenuous. This makes sense as, similar to Ms W, had the Complainant been appointed, he would have been paid at the appropriate rate of approximately €40,000 and the aim of the Labour Court’s decision would have been honoured in exactly the same way. It is submitted that the Labour Court’s recommendation would not have been breached had the Head of Culinary Operations role been offered to the Complainant as the spirit of the recommendation would have remained intact.

It is submitted that section 5 of the 2003 Act is also satisfied here. Ms W was at all material times a permanent comparable employee whilst the Complainant was at all material times a fixed term employee.   More particularly, they were both employed by the same employer and the work performed by them was of a similar nature or their roles could be filled by the other. Alternatively, the Complainant’s work was equal or greater in value to the work performed by Ms W within the meaning of section 5(2) (c).

Conclusion

The Complainant’s second specific purpose contract was terminated by the Respondent on 31st July 2019.

Ms W a permanent employee at the time, was offered the new role of Head of Culinary Operations without interview.

The Complainant, a fixed term employee at the time, was never offered the role or even an interview for the role.

It is therefore submitted that the Complainant was treated less favourably than a comparable permanent employee contrary to section 6.

The Respondent has failed to offer any objective justification for this discriminatory treatment other than to rely on an out of date document which recommended that another employee be offered the job.

Without prejudice to the foregoing, if the Complainant is found to be a fixed term employee within the meaning of the 2003 Act, it is submitted that the manner in which he has been treated is contrary to good industrial relations practice and he is deserving of redress under the 1969 Act.

Preliminary Argument

The Complainant has brought a claim under the Protection of Employees (Fixed-Term Work) Act, 2003 setting out that he is a fixed-term worker and has been treated less favourably than a comparable permanent employee in relation to his conditions of employment.

The Protection of Employees (Fixed-Term Work) Act, 2003 defines a fixed-term worker as “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…”. It is not possible by law that an employee can be both a permanent employee (which the Complainant is) and a fixed term employee of the same employer. The Complainant is in fact a permanent employee of the Respondent as evidenced by his signed contract of employment dated June 2009.

In 2015 the Complainant applied for and was appointed to a specified purpose contract to cover the role of Culinary Operations Supervisor. The contract clearly set out that it was specified purpose, to cover the temporary re-assignment of a colleague and that the Complainant would revert to his substantive post when the purpose ended. This colleague was subsequently permanently appointed to another role so in October 2016 the Complainant was issued with a second specified purpose contract to cover the role of Culinary Operations Supervisor. This contract clearly set out that it was a specified purpose pending the review of the Maintenance Staff requirements in the context of the relocation to another location in September 2018 and that the Complainant would revert to his substantive post of General Operative when the purpose ended.  

In the case Louth County Council and Paul Kelly FTC/13/8 FTD1320 the Labour Court determined that “In order to come within the ambit of the Act a Complainant must have the status of a fixed term worker. The Court interprets that to mean that a Complainant’s employment must be coterminous with the expiry of a fixed term or fixed purpose contract of employment. A complainant who reverts to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act. In this case the Complainant was at no point a fixed term worker within the meaning of the Act. At all times he held a contract of indefinite duration as an Executive Engineer. At times he applied for and was appointed to temporary assignments and was remunerated accordingly. However, at all times he continued to hold a contract of indefinite duration and his employment status was never at risk while on temporary assignment.”

As the Complainant is a permanent employee of the Respondent, he cannot seek protection under this Act and therefore the Workplace Relations Commission (WRC) does not have the jurisdiction to hear his claim under the Act.

Background to the claim

The Complainant commenced employment with the Respondent on 6 October 2000 as a General Operative. On 6 June 2009 he was awarded and accepted a contract of indefinite duration. Since then he has been a permanent employee.

In February 2015 he was appointed to the role of Culinary Operations Supervisor on a specified purpose basis to cover the temporary reassignment of a colleague. This colleague was subsequently permanently appointed to another role so in October 2016, the Complainant was issued with a second specified purpose contract to cover the role of Culinary Operations Supervisor pending the review of the Maintenance Staff requirements in the context of the relocation to another location in September 2018. Both specified purpose contracts explicitly set out that when the purposes ended, the Complainant would revert to his substantive post of General Operative.

In November 2018 the Head of School (HOS), School of Culinary Arts and Food Technology, the Complainant’s manager at the time, met with the Complainant to advise that his specified purpose contract would be coming to an end in 2019. He was advised that the end of the contract was in no way a reflection on the work the Complainant had been doing and that he would be entitled to apply for promotion to a Lab Assistant role that would be available as part of the ongoing review of the staffing requirements in the context of the relocation to another location.

At this meeting the Complainant explained that he had been advised that he would be entitled to apply for an upcoming Grade V position of Head of Culinary Operations. The HOS explained that as a result of a binding Labour Court recommendation in 2015 (LCR21012) this role would not be subject to open advertisement as a named staff member had already been designated to take up the role.

It should be noted that LCR21012 determined that a named employee of the Respondent should be appointed to the role of Head of Culinary Operations upon the completion of the staffing review and move to another location.

In March 2019 the Respondent wrote to the Complainant to advise him that his specified purpose contract would be coming to an end in the subsequent months and advised again that he could apply for a Lab Assistant position if he wished. It also set out that following the appointment of the full cohort of Lab Assistants the outstanding issue of appointing a staff member to the role of Head of Culinary Operations in line with LCR21012 would be implemented. The letter clearly set out that should the Complainant not wish to apply for a Lab Assistant role, he would revert to his substantive post of General Operative as is normal practice

On 25 June 2019 a further letter was sent to the Complainant to advise that the Lab Assistant recruitment process and the implementation of the Labour Court recommendation would be in place by 24 July 2019 at which point he would revert to his substantive position of General Operative.

The Respondent received a letter from the Complainant’s legal representative dated 15 July 2019 in which they set out their contention that the Complainant should be afforded protection under the Protection of Employees (Fixed-Term Work) Act, 2003 and that he should be entitled to compete for the Head of Culinary Operations role as it was ‘his role’ and therefore his.

The Respondent wrote to the Complainant again on 19 July 2019 to confirm that his specified purpose contract would cease on 23 July and that he would revert to his substantive post of General Operative.

On 1 August 2019, the Respondent responded to the Complainant’s solicitors’ letter of 15 July and clearly set out that the Complainant was a permanent employee of theirs and that he had been covering roles under a specified purpose contract for a number of years but that this did not afford him protection under the Protection of Employees (Fixed-Term Work) Act, 2003

On 24 July 2019 the Complainant reverted to his substantive post of General Operative as per the cessation of his specified purpose contract.

Respondent’s position

Terms of Employment (Information) Act, 1994

1.       Section 5 of the Terms Employment (information) Act, 1994 provides for notification of changes:

“whenever a change is made or occurs in any of the particulars of the statement by an employer under section 3, 4 or 6 the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

a)      1 month after the change takes effect or

b)      Where the change is consequent on the employee being required to work outside the state outside the state for a period of than 1 month, the time of the employee’s departure.”

It is the Respondent’s position that the Complainant was provided with written confirmation of all terms & conditions of employment of both his substantive post and the specified purpose contracts.

It is therefore the Respondent’s position that it has complied fully with Section 5 of the Terms of Employment (Information) Act 1994 in that the Complainant was provided with written notice of the provisions of the Contract under which he is an employee of the Respondent’s, and accordingly the Complainant cannot establish a breach of the Terms of Employment (Information) Act 1994.

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

It is the Respondent’s position that the WRC does not have jurisdiction to hear this claim as the Complainant is a permanent employee of the Respondent. Notwithstanding this preliminary point, the Respondent refutes that they contravened any provision of the Protection of Employees (Fixed Term Work) Act 2003. The Complainant was informed in a letter dated 25 June 2019 that the specified purpose contract which he signed in October 2016 would cease on 23 July 2019 due to the conclusion of the specified purpose and that he would revert to his permanent substantive post of General Operative. The fixed-term contract has therefore concluded in accordance with its terms and no contravention of the Act has occurred.

Industrial Relations Act, 1969

The Complainant contends that he should have been entitled to interview for the Head of Culinary Operations position. Whilst the Respondent accepts that in the normal scheme of things, such a role would be subject to open competition, on this occasion the role of Head of Culinary Operations was a new Grade V position which was created and covered by a binding recommendation of the Labour Court. This Labour Court recommendation further approved the appointment of a named person to this post, which the Respondent is obliged to honour.

CA – 00029986 – 001.

A complaint pursuant to section 14 of the 2003 Act that the Respondent discriminated against the Complainant by not offering him the role of Head of Culinary Operations or even an interview for that post in circumstances where it had been offered to a permanent comparable employee.

In relation to this complaint the Respondent has stated that:

Section 5 of the Terms Employment (information) Act, 1994 provides for notification of changes:

“whenever a change is made or occurs in any of the particulars of the statement by an employer under section 3, 4 or 6 the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than –

c)       1 month after the change takes effect or

d)      Where the change is consequent on the employee being required to work outside the state outside the state for a period of than 1 month, the time of the employee’s departure.”

It is the Respondent’s position that the Complainant was provided with written confirmation of all terms & conditions of employment of both his substantive post and the specified purpose contracts.

It is therefore the Respondent’s position that it has complied fully with Section 5 of the Terms of Employment (Information) Act 1994 in that the Complainant was provided with written notice of the provisions of the Contract under which he is an employee of the Respondent’s, and accordingly the Complainant cannot establish a breach of the Terms of Employment (Information) Act 1994.

The Complainant was issued with updated contracts in 2009, 2015 and 2016. I conclude that the Complainant at all material times was kept fully informed of his contractual entitlements, that the statement of particulars of his employment was updated and issued to him and therefore there has been no breach of section 5 by the Respondent. The complaint as presented by the Respondent is not well founded.

CA – 00029986 – 002.

A complaint pursuant to section 14 of the Protection of Employees (Fixed- Term Work) Act 2003 that the Respondent discriminated against the Complainant by not offering him the role of Head of Culinary Operations or even an interview for that post in circumstances where it had been offered to a permanent comparable employee.

The Respondent has made a preliminary argument that it is not possible in in law that an employee can be both a permanent employee and a fixed term employee of the same employer. I note that the Complainant contends that prior to entering into the fixed-term contracts, he was no longer a permanent employee. He relinquished that position in an effort to advance his career in circumstances where he had always been promised an interview for the Head of Culinary Operations role.

The contracts issued to the Complainant in 2015 and 2016 clearly state that the Complainant will revert to his substantive post when the purpose of the specified purpose contract ends. The Respondent has included the case of Louth County Council and Paul Kelly FTC/13/8 FTD 1320 in which the Labour Court stated:

“In order to come within the ambit of the Act a Complainant must have the status of a fixed term worker. The Court interprets that to mean that a Complainant’s employment must be coterminous with the expiry of a fixed term or fixed purpose contract of employment. A complainant who reverts to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act. In this case the Complainant was at no point a fixed term worker within the meaning of the Act. At all times he held a contract of indefinite duration as an Executive Engineer. At times he applied for and was appointed to temporary assignments and was remunerated accordingly. However, at all times he continued to hold a contract of indefinite duration and his employment status was never at risk while on temporary assignment.”

The complaint as presented is not well founded.

CA – 00029986 – 003

A complaint pursuant to section 13 of the Industrial Relations Act 1969 arising out of the Respondent’s failure to offer him the said role or an interview for it.

The Complainant had been advised by FC that the permanent position of Head of Culinary Operations would be advertised and that he could apply for same, there was no guarantee that he would be appointed to the position.

It then transpired that another employee was offered the position without any competition taking place. The reason cited by the Respondent for this course of action was to accommodate the implementation of a Labour Court Recommendation.

As far as the Complainant is concerned this course of action was unfair and I believe contrary to the Respondent’s Equal Opportunities Policy.

The complaint as presented is well founded.

From information submitted at the hearing the Complainant’s earnings will drop by approximately €7,000 on return to the substantive post.

I recommend that a ‘loss of earnings’ payment is made to the Complainant of 1.5 times the annual loss i.e. a gross payment of €10,500.

Such payment should be made within 42 days from the date of this recommendation.

As outlined above.

Terms of Employment (Information) Act, 1994; Protection of Employees (Fixed-Term Work) Act, 2003; Industrial Relations Act, 1969.