FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : MARKS AND SPENCER IRELAND LIMITED (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - MS ALISON MOORE (REPRESENTED BY MANDATE) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00021676 CA-00028426-001. The Complainant worked in the Respondent’s Mary St., Dublin, store from 1986 until November 2017 when she transferred to a new store in Omni Park, Santry, Dublin. The Complainant contends that in the new store she was a fixed term employee on a week to week contract. In February 2019, the Respondent agreed a voluntary severance scheme with the MANDATE union in 7 stores, including Mary Street. The Complainant indicated a wish to revert to her permanent contract in this store in order to avail of this scheme. The Respondent indicated that this was not possible as the Complainant was a temporary worker in the Omni store. The Complainant lodged a claim with the Workplace Relations Commission under the Act claiming that she was treated less favourably than a comparable permanent employee by being denied access to the severance scheme. The Adjudication Officer, ‘AO’, found that the Complainant was a permanent employee and not a fixed term employee and, therefore, the Complainant did not have ‘locus standi’ to bring a case under the Act and that the AO did not have jurisdiction to hear any such case brought by the Complainant. The Complainant appealed this decision to this Court. At the Court hearing, the Court heard submissions on this preliminary point regarding its jurisdiction. The Court reserved its position on this matter pending consideration. The Court also heard argument on the substantive point and the parties were advised that consideration of this would arise only if the Court, having deliberated on whether the Complainant had ‘locus standi’ to bring a case under the Act, determined that it had jurisdiction to consider the substance of the case. Summary of Complainant’s arguments on the preliminary point The contract given to the Complainant upon moving to Omni Park, states that she is being offered a ‘Fixed Term’ position and, further, that the Unfair Dismissals legislation is not applicable where the only reason for ending the contract is the expiry of the fixed term. The contract has, as per the requirements of the Act, a start date. It is described as a ‘week to week’ contract and, therefore, it has a finish date at the end of each week. On 11 March 2019, the Respondent’s Head of HR, wrote to MANDATE regarding the Complainant to say that she ‘..continues to be employed on a temporary contract in our Omni Park store’. When MANDATE replied to suggest that it would be absurd to think that the Complainant would relinquish a permanent contract to apply for a temporary contract, the Head of HR responded to say that ‘The fact that you think that Ms. Moore relinquishing a permanent contract for a temporary contract would be absurd, that is absolutely what happened and was completely Ms. Moore’s decision at that time…..’ It was the position of the Respondent that the Complainant was no longer a permanent employee, as a result of which she was ineligible to avail of the voluntary severance scheme. In the case ofSaint Catherine’s College for Home Economics v Helen Maloney (2009) 20 E.L. R. 143,a case with all but identical parallels to this case, the Labour Court held that employees could not be denied access to a voluntary severance scheme because of their fixed term status. Summary of Respondent’s position on the preliminary point When the Omni store opened, internal applicants for positions there were advised at interview that all appointments to there were subject to store performance and that contracts would be reviewed after 6 months. If the store performed to plan, then the normal 18 month review under a collective agreement would happen for any permanent staff who had taken a temporary position. The Complainant delayed signing her temporary contract for Omni because she had concerns that a temporary contract could have implications for her staying there. Having been re-assured by managers about the store’s performance, she signed the contract. After 18 months in that location, the Complainant was offered a permanent contract there in accordance with the collective agreement. Having initially declined the contract, the Complainant signed it in August 2019. In the meantime, in February 2019, MANDATE and the Respondent reached a collective agreement on a voluntary scheme of redundancy for 7 stores, including Mary St. but not including Omni. Neither the Complainant or any other employee who had transferred out of the 7 stores were eligible to be part of this scheme. The Complainant was excluded because she was not in a store that was part of the scheme. The Complainant is not a fixed term employee. The Complainant had a permanent contract with the Respondent throughout the relevant period. Under the Act a permanent employee is any employee who is not a fixed term employee. Although the Complainant’s contract for the Omni store refers to a ‘fixed term’ in the opening line that is not further mentioned or explained. There is no doubt that the Respondent would fare badly if it attempted to rely on this document as a fixed term contract in an unfair dismissal case. In the Omni store at the time, the Complainant was in a temporary capacity awaiting permanent confirmation at the appropriate time. Although her employer referred to her as ‘temporary’, the Complainant’s legal position was that of a permanent employee. The Complainant’s terms and conditions of employment did not change when she moved to Omni. Her accrued rights as a permanent employee in respect of pay, leave and membership of the Respondent’s pension scheme remained in place. InMalahide Community School v. Conaty UD17/78 2018, the Labour Court set out clearly that, if a permanent employee is giving up permanency and valuable employment rights in order to take up a fixed term contract, the agreement has to stipulate clearly what is being waived. The Court also explained that a fixed term contract is one where a date of commencement and a date of termination are capable of being ascertained. In this case, it was not necessary to meet the stipulation requirements set by the Court as the Complainant was not being asked to waive her employment rights as a permanent employee and her week to week contract in Omni did not have a termination date. InIrish Museum of Modern Art v Stanley FTD 146(2014), the Labour Court described the defining characteristic of fixed term employment is that it is an objective condition which is identifiable without reference to views or perceptions. Although her employer referred to her as temporary, the Complainant’s legal status is clearly that of permanent employee. The Complainant could not have been given notice to terminate her employment if she was not needed, as she had the employment rights of a permanent employee. The Respondent does not have a specific transfer policy. As a permanent employee, if the Complainant had applied to move store, she would have had to apply for a vacancy in that store and to compete for it. Despite the fact that the Complainant had a week to week contract in the Omni store, she had no basis for implying that she had fixed terms status. The Applicable law Protection of Employees (Fixed Term Work) Act 2003 Interpretations
Deliberation and Determination on the preliminary point It is a curiosity of this case that the Complainant was refused access to an agreed voluntary severance scheme that applied in the Mary Street store because, in the view of her employer, she was deemed to be on a temporary contract in the Omni store but then, subsequently, the Respondent argues to the Court that the Complainant was, at the material time, actually a permanent employee. The Complainant and her representative might be forgiven for being confused and the decision to utilise this particular Act as a basis for claimed discrimination is, in the circumstances, understandable. However, the first requirement on the Court is to determine objectively whether the terms of the Act are applicable to the Complainant and the changed views of the Respondent on that issue are, ultimately, irrelevant to that consideration. The purpose of the Act is to protect fixed term employees from being treated less favourably than permanent equivalents across a range of employment rights. It goes without saying that for an employee to enjoy the protections afforded by the Act, the employee must, in fact, be a fixed term employee. If a complainant cannot establish this to the satisfaction of the Court, then that complainant is not protected by the Act as they lack ‘locus standi’ to take a case under the Act and, in such circumstances, the Court lacks jurisdiction to hear any case that they might seek to make under the Act. In considering this matter of the Complainant’s status, the Court took into consideration all of the case law cited by the parties. As the Complainant’s representative placed so much emphasis on the ‘Saint Catherine’s College’case, (see reference above), the Court gave this particular attention. In the view of the Court, that case’s circumstances are considerably different to those of the instant case. There was no dispute that the employees in that case were, in fact, fixed term employees, and the Court determined that they could not be treated less favourably, for the purposes of determining the scale of redundancy payments, than the treatment afforded to permanent employees. It is not disputed in the instant case that the terms and conditions set out in the Complainant’s contract as a permanent employee were unaffected by her transfer to the Omni store. She continued to enjoy benefits accrued as a permanent employee in respect of pay, leave and pension. While it is hypothetical, and the Court must always take care not to over project hypotheses, it seems likely that, had the Omni store closed, the Complainant would have been treated as a permanent employee and not as a fixed term employee. This Court has dealt with situations in the past where permanent employees were assigned temporarily within the relevant employment, while continuing to be treated as permanent employees. The crucial question for the Court is whether the permanent contract was terminated. In the‘Malahide’case cited by the Respondent, the Court was very clear that such termination could not arise casually but, rather, required, very specific understandings to be reached between the parties before a worker could be deemed to have surrendered a permanent contract for a temporary contract. It was not argued for the Complainant that these understandings had been sought, let alone reached. In fact, the core of the Complainant’s substantive case is that she retained her links to the Mary St. store, where she was a permanent employee, such that she should have been eligible to participate in the scheme of voluntary severance. The Court set out its view in the case ofLouth County Council v. Paul Kelly FTD1320.In that case, the Complainant sought to rely on a case from Northern Ireland calledMcComb v. Belfast Education and Library Board (2011), NIIT 0 1251 1 OITto establish that a permanent employee appointed to a post within the relevant employment on a fixed term basis enjoyed the protection of the EU Directive on fixed term workers and, therefore, of the relevant Act. The Court, in considering this argument, noted the crucial and, ultimately, determinative fact that the Complainant in the ‘McComb’case had, in fact, resigned her substantive post, which distinguished that case from that put forward on behalf of Mr. Kelly. In the ‘Kelly’case, this Court offered a number of observations that are applicable to the instant case. In noting that the Council had never terminated the Complainant’s permanent contract and that at no stage was his employment with the Council contingent on the relevant temporary projects, the Court observed that, at all times, the Complainant remained a permanent employee; that to come within the terms of the Act, a complainant must have the status of a fixed term employee and that the Court interpreted that to mean that a complainant’s employment must be coterminous with the expiry of a fixed term or fixed purpose contract of employment. The Court observed that the contract given to the Complainant while he was assigned temporarily to particular projects, was supplemental to his contract as a permanent employee and did not replace that permanent contract. In the instant case, while there are some differences between the factual circumstances of the case and those of the‘Kelly’case, the Court is of the view that the principles enunciated are equally applicable. The simple and over-riding fact is that the Complainant was, and apparently continues to be, a permanent employee of the Respondent company. She was not a fixed term employee at the relevant time, cannot enjoy the coverage of the terms of the Act and does not have ‘locus standi’ to take a case under the Act. Quite simply, therefore, the Court does not have jurisdiction to hear the case. Arguments made on behalf of the Complainant that, as a permanent employee, she should have been afforded the opportunity to participate in the scheme of voluntary severance are outside of the scope of the Act under which the matter was referred to the Court and, therefore, have not been considered by the Court. It was explained to the parties that these arguments would be considered only if the Court determined that the Complainant was a fixed term employee at the relevant time. The decision of the Adjudication Officer is upheld.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
