FTD202

1.Appeal of Adjudication Officer Decision No: ADJ-000017926, CA-00023143-001/002

BACKGROUND:

2.Both the Employer and the Employee appealed the Adjudication Officer’s Decision to the Labour Court on 5 November 2019 and 9 November 2019 respectively. A Labour Court hearing took place on the 16 September 2020. The following is the Labour Court's Determination:


DETERMINATION:

This is a joint appeal by Brothers of Charity Services Ireland – South East Region (the Respondent) and Mr Arshad Awan (the Complainant) against the Decision of an Adjudication Officer ADJ-00017926 in a claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Complainant submitted two claims to the Workplace Relations Commission on 11^thNovember 2018, alleging that the Respondent was in breach of sections 8 and 9 of the Act.

Mr Shay Clinton, F�rsa, on behalf of the Union claimed that the Respondent had breached section 8 of the Act as the Complainant was not informed of the objective condition determining his contract, when his fixed term contract expired in September 2016. Furthermore, he claimed that there was a breach of section 9 of the Act as the Complainant was not furnished with a contract of indefinite duration on the same terms as previously existed.

The Adjudication Officer upheld both claims however, he did not award any redress under section 8 and with respect to the claim under section 9, he decided that the Respondent should issue a contract of indefinite duration in line with the previous existing terms and conditions.

Mr Robin Mc Kenna, Ibec, on behalf of the Respondent, stated that when the Complainant’s fixed term contract expired, his contract became, in effect, a contract of indefinite duration and consequently he had no entitlement to bring the claim under the Act.

The Facts

The Complainant was issued with a fixed term (specified purpose) contract on 18^thOctober 2014. It informed him that the contract was for the specific purpose of covering the career break of a permanent employee [name of employee was given] and that it would cease on the return of that named permanent employee. That employee resigned her employment with the Respondent on 21^stSeptember 2016. The Complainant continued in the role and on 1^stNovember 2018, he sought a contract of indefinite duration and claimed that he had not been furnished with the objective grounds for his contract since September 2016.

At the hearing before the Court, Mr Clinton informed the Court that the Complainant was not furnished with a fixed term/specified contract post September 2016. He had simply continued in his role with no change to his terms and/or conditions of employment, until he was issued with a permanent contract on 1^stNovember 2018.

Conclusions of the Court

The Court is of the view that as no fixed term/specified contract was issued to the Complainant when the 2014 contract came to an end by the cessation of the specified purpose, then he was no longer a “fixed term worker” within the meaning of the Act and in fact he was on a permanent contract from that point on. While the Respondent did not issue him with a contract informing him that his employment was permanent until 1^stNovember 2018, this does not alter the nature of his employment status from September 2016.

Determination

The Court finds that the Complainant was on a permanent contract of employment from September 2016 and therefore has nolocus standito maintain the complaints under the Act.

Accordingly, the Court determines that it has no jurisdiction to hear the complaints.

Therefore, the Court overturns the Decision of the Adjudication Officer and upholds the Respondent’s appeal.

	Signed on behalf of the Labour Court
	Caroline Jenkinson
NJ	______________________
17 September 2020	Deputy Chairman