Complainant

Respondent

Anonymised Parties

Security Officer

Services Company

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-00031605-001

16/10/2019

The Complainant contends that his hours of work were given to a new staff member.

The Complainant stated that he was employed as a Security Guard at a site which was previously serviced by Company A and the Respondent took over the contract in July 2019.   The Complainant stated that he worked two nights a week. He stated that a full-time employee was taken on in late 2019 and that the Complainant was not given the opportunity to apply for this position.

It is the Respondent’s position that the Complainant’s complaint under the Protection of Employees (Part-Time Work) Act 2001, where the Complainant states that he “was never informed that there was a full time position available” is not a breach under the Act and as such the Respondent has no case to answer. The Complainant is employed on a permanent casual contract working 26 hours a week. His contract states that “Hours, days and place of duty shall vary from week to week ..” However, generally the Complainant has been working two nights a week. When the Respondent took over the site, there were 2 full time and 3 part-time members of staff. During the course of the transfer, the full-time members of staff indicated that there was an issue regarding cover for them for holidays and sick leave. The Operations Manager addressed this by changing the staffing to 3 full time and 2 part time staff. The Manager held a meeting with staff to inform them of the change. The Complainant did not attend this meeting.   The Manager phoned the Complainant and updated him on the meeting. The Complainant informed him that he was not in a position to work other than the 26 hours he was working. The Manager continued to offer the Complainant hours but the Complainant did not attend the site despite being rostered. The Manager continued to offer the Complainant work but he did not respond to emails. It is submitted that 1) The Respondent was informed of the availability of a full time position, 2) there is no obligation on the employer under the Protection of Employees (Part-Time Work) Act 2001 to inform part time employees of the availability of full time positions. It is possible that the Complainant may have mistakenly conflated the obligations of the employer under the Protection of Employees (Part-Time Work) Act 2001 and the Protection of Employees (Fixed-Term Work) Act 2003.

The Complainant submitted his complaint under the Protection of Employees (Part-Time Work) Act 2001. He stated that he was told his hours would be given to a new employee and he would be retained on a part-time basis. He was not given the opportunity to apply for the full time post.         The evidence given by the Respondent was (a) that the Operations Manager did inform the Complainant of the full time vacancy and (b) the Complainant was contacted on several occasions and offered work to fulfil his 26 hours. I note that it is likely that the Complainant’s availability was confined to the working hours he was previously rostered and which suited his needs, and therefore his usual regular hours were being changed in light of the new arrangements. While I have some sympathy for the predicament in which the Complainant found himself, I am obliged to consider his complaint under the relevant legislation.

The applicable law

Section 16 of the Protection of Employees (Part-Time Work) Act 2001, under which this adjudication decision is issued, provides for the presentation of a complaint that the employer has contravened Sections 9 or 15 of the Act.

Section 15 of the Act provides inter alia that an employer shall not penalise an employee for invoking their rights under the act or for refusing to accede to a request by the employer to transfer from full-time to part-time work or from part-time to full time work.  

Section 9 provides that 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:

“9- (1) Subject to subsections (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..”

In order for the Complainant to succeed in his case, he must first prove that he has been treated in a less favourable manner than a comparable full-time employee. The Complainant, in this case has made no such case.

The Act does not provide for an obligation on the employer to inform the employee of full-time work opportunities. In this regard I concur with the Respondent’s point about conflation of two Acts and I find that the Complainant may have considered in error the application of Section 10 of the Protection of Employees (Fixed Term Work) Act 2003, which provides that an employer shall inform a fixed-term employee in relation to vacancies to ensure that he or she shall have the same opportunities to secure a permanent position as other employees.

In the context of the applicability of the law, and for the reasons cited, I find that this complaint is misconceived under the Act, and the complaint is not well founded.

Part-Time Work Act, Complaint not well founded