ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00025473

Parties:

Complaints:

Date of Adjudication Hearing:  02/02/2021

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The Complainant contends that contrary to provisions of the Protection of Employees (Fixed term work) Act 2003, the Respondent failed to provide the Complainant with written statement of objective grounds justifying the renewal of her fixed term contracts and the reasons for the failure to offer her a contract of indefinite duration.  The Complainant sought the provisions of the Redundancy Payments Act. At the hearing, the Complainant’s representative accepted that she did not have the required service with the Respondent to qualify for a statutory redundancy payment.

Summary of Complainant’s Case:

The Complainant was employed as a Literacy and Numeracy Instructor from September 2017. This position did not require a HDip at that time. She received a contract and signed it. In January 2018, she was informed that her contract was to be renewed. In September 2018, the manager informed her that her contract would expire on the last day of December 2018.  She did not receive a contract for that year until December 2018 which was not signed. In December the manager informed her that she would be kept on for the month of January and that the position would then be reviewed, this also occurred in February. On both occasions she did not receive a contract or terms of conditions of her employment. In March 2018, the manager informed the Complainant that her post was extended until August 2018 .   She did not receive a contract from the manager until June via an email. She highlighted that she could not sign the contract as the commencement date was wrong and also it stated at the top that the contract was for fixed term 1st Jan 2019 to 31st of Aug 2019 with commencement date starting Jan 2018. Updated contract was from March 2019 to August 2019 which the Complainant received in August 2019 and it was only signed by a board member in June 2019. The way the contract was handled caused the Complainant immense distress.  The Complainant received an increment in her salary in Sept 2018. She understood that by receiving this increment her post was to be made permanent. This could not be a fixed term contract if she received an increment.  The post advertised with a requirement of a HDip and for an English and Maths teacher. It is submitted that CTC centres do not teach English and Maths. They teach Communications and Maths.  The Complainant was employed as a Literacy and Numeracy Instructor a role she was qualified to teach. Presently, there is an instructor teaching Communications and Maths in the centre who we understand does not possess a HDip and has been teaching in the centre for numerous years.  The Complainant had also offered to do the HDip to further her qualifications. In July 2019 the Complainant attended a staff / learner trip to Cobh. On that day she was verbally abused by one of the staff members who was a male. The acting manager on the day did nothing to support her. The days and weeks that followed were very stressful, and the Complainant had to seek medical help.

Following on from same only one or 2 of the staff spoke to the Complainant. She believes this led to her contract not being renewed further unlike previous times. This incident (July 2019) was highlighted to the Board, no response was received until October 2019.

From her time working in the Respondent workplace, the Complainant carried out her roles and duties assigned to her in a professional manner.  She had excellent work ethic, was never disciplined or caused any trouble with the manager or staff.  However, she found her time in her place of work from January 2019 to August 2019 extremely stressful and has affected her emotionally, and mentally.

Post hearing, the Respondent was requested by the Adjudicator to make a submission on Sections 8 and 10 of the Act.  The Adjudicator also requested submissions on time limits.

Time Limits

It is argued that the Complainant received a fixed term contract dated from 1 March to 31 August 2019.  The Complainant lodged her complaint on 20 November 2019 which is within the time limit of six months.  Further, it is contended that the date wherein the Complainant became aware of her contract expiring was one week before the expiry of the contract on 31 August 2019.  She seeks to rely on the breach of Section 8 wherein she contends, and indeed it has not been established to the contrary, that she was not made aware in writing the failure to provide a contract of indefinite duration. 

With regard to Section 10, the Complainant again relies on the fact that she was advised one week before the expiry of her contract in August 2019 of the requirements of the HDip for the role now being a requirement.  This is despite an email from the manager advising the role advertised was the same role as she was employed in.  The Complainant would have been able to upskill and achieve her HDip had she been made aware of same when initially employed in September 2017.    She was at no point advised of this in writing which is the obligation under the Act.  The Complainant submits that the contravention occurred in the last week in August 2019, which would establish that her complaint was within the six-month time period.  It is further submitted that in advance of her complaint being lodged with the WRC in November 2019 all reasonable efforts were made by the Complainant to engage with the Respondent.

Finally, it should be noted that the Complainant attended her GP due to work related stress and medical issues secondary to this.  She has been very much affected by the entirety of this process, and she has engaged fully.  Any perceived delay, while not accepted to be the case, cannot be attributed to the Complainant as all reasonable efforts have been made by her to bring this matter to a conclusion.

Section 8

The Complainant contends that the Respondent was in breach of Section 8 of the Act, and specifically Section 8 (2) which provides:

(2) Where an employer proposes to renew a fixed term contract, the fixed-term employee shall be

informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term

contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

The fact that the Complainant was verbally informed by her manager that her contract would not be renewed and that she would not receive a contract of indefinite duration does not remedy the legal requirement that the employee shall be informed in writing (emphasis added).

It is submitted that the Complainant was not aware when she took on the role, that it was a co-operation hours role and the that the requirement of a HDip attached to the position.  She only became aware of this in September 2018 and that any future post would require a HDip.  It is submitted that she was not advised of the requirement for the teaching qualification HDip when she was employed.  It is submitted that the same position the Complainant held was being advertised and this is supported by the fact that she was advised by email on 22nd August 2019 that “the intention is that the Literacy Support person employed .. will be assigned the same role as your current position as Literacy and Numeracy support for learners.”   

Section 10

It is submitted that the Respondent is in breach of Section 10 of the Act:

10.—(1) An employer shall inform a fixed term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general

announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to

appropriate training opportunities to enhance his or her skills, career development and

occupational mobility.

The Complainant was advised by telephone call of the new position one hour before closing date for applications on 26th January 2019.  She never received same in writing as is the Respondent’s obligation under the Act.   

It is not accepted, as contended by the Respondent, that another entity is the employer.

The Complainant has suffered greatly by the treatment she received by the Respondent, has lost an opportunity for long term employment/life security and pension entitlements.  She contends that she effectively lost her job as a result of a complaint she made regarding an incident which occurred in July 2019.

Summary of Respondent’s Case:

The Claimant was recruited in a support role as a “Literacy Support Instructor” on a fixed-term basis until a “Teaching” post could be sourced via the Education and Training Board (ETB).

The Claimant does not have the required service under the Act for the Redundancy entitlement.

The Claimant commenced employment with the respondent on 18th September 2017 and her employment was terminated on the 31st August 2019. 

While the Complainant does not qualify for a redundancy payment under the Act, she was made redundant as per the definition in the Act (Section 7(2)(d)):

“Where an employer has decided that the work for which the employee has been employed (or had been doing before his dismissal), should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained.”

The Claimant was hired to fill the role as a Literacy Support Instructor due to the difficulty

of the funding ETB in sourcing a qualified Mathematics and English Teacher in the industry.

The Respondent’s ETB continued to advertise the Teaching role throughout the Claimants

time in her Support role but unfortunately it was to no avail.

The Claimant states in her claim form that the role still exists. This is inaccurate

statement, as the role exists of a qualified “Teacher” directly employed by the ETB and

allocated to the Respondent/CTC which has been filled as of 9th September 2019. This role is

allocated to the Respondent under an “hours in co-operation” arrangement as is industry

norm and is determined by funding structures.

The role is not being filled by another support worker, who could be deemed in a

same/similar position as the Claimant, therefore the Claimant’s role was declared genuinely

redundant. The Claimant’s ETB was not able to fill the required Teaching vacancy due to the

different qualifications needed for the Teaching position.

The Claimant’s contract expired on August 31st 2019 and was not renewed due to the role of

Support Instructor no longer being required by the Respondent/CTC. The Respondent is

heavily reliant on funding for teaching positions, which is provided by the affiliated ETB.

Protection of Employees (Fixed Term Work) Act 2003

Section 9 of the Act states:

(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee

completes or has completed his or her third year of continuous employment with his or her

employer or associated employer, his or her fixed-term contract may be renewed by that

employer on only one occasion and any such renewal shall be for a fixed term of no longer

than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is

employed by his or her employer or associated employer on two or more continuous fixed term

contracts and the date of the first such contract is subsequent to the date on which this

Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that

term shall have no effect and the contract concerned shall be deemed to be a contract of

indefinite duration.

The Claimant alleges she was not told the objective justification for the renewal of her

fixed term contract. It is the Respondent’s position that the Claimant was verbally told

that her contract was being extended due to the lack of (the local ETBs) success in hiring

a qualified teacher. The Claimant further states she was not offered a contract of

indefinite duration. The Claimant was employed on 3 fixed term contracts; however, this

fell over a period not exceeding 2 years.

The Act states an employee is entitled to a contract of indefinite duration if employed

on 2 or more fixed term contracts exceeding a 4-year period. The Respondent could not

offer her a contract of indefinite duration due to no active CTC vacancy at that point in

time, the post engaged in [teaching post] was an ETB/Department of Education & Skills

post for which the Claimant did not have the required qualifications for the teaching

position being advertised.

It is also the Respondent’s position that the Claimant was aware that the Respondent

would be allocated a Teacher to carry out a Mathematics and English position rather

than a Literacy and Numeracy role which is the role the Claimant had been carrying out.

The Respondent liaised with the affiliated ETB to seek clarification on the requirements

of the teaching post. The Respondent forwarded the ETB’s correspondence to this effect

to the Claimant on 20/12/2018.

The Claimant cites that she was not included for the competition even though the role

still exists. Firstly, the role does not continue to exist for a support role for what the

Claimant was hired in. Secondly, the Claimant does not encompass the required

teaching qualifications and the vacancy was not a CTC vacancy, therefore the Claimant

would not have been successful in obtaining the position.

The Claimant was told on numerous occasions that the purpose of the role was

temporary until a qualified hire was found by the funding ETB. Two other applicants

applied for the role but were turned down due to lack of qualification.

The qualifications for the teaching post are:

A relevant 3rd level degree qualification

A higher diploma in education

Post Primary Teaching council registration.

The Claimant did not have a higher diploma in education, and when she requested to

further upskill to obtain a higher diploma, the Board of the CTC supported her

application for same to the ETB as the funders. Unfortunately, the ETB outlined that

their CPD policy covers ETB staff only and therefore would not apply to a CTC staff

member.

It was made clear to the Claimant that the position could only be filled by an individual

with the relevant qualifications, as prescribed by the ETB. The Claimant was well aware

that her role as a support worker was temporary and was an interim position whilst the

funding ETB was hiring for the teaching position.

In relation to the Claimant’s allegations that she was “verbally abused” by fellow

colleagues on a staff trip in July 2019 - the Respondent strongly refutes the following

allegations:

- The above incident in July 2019 had any bearing on the non-renewal of the

Claimant’s fixed-term contract post 31st August 2019.

- The matters raised by the Claimant were not addressed by management. In fact, as

per the Respondent’s duty of care towards employees and in line with company

procedures, a full investigation was carried out to ensure the Claimant’s complaint

was taken utmost seriously. The Respondent rolled out refresher Dignity at Work

training for all staff which was successfully completed.

In respect of the Claimant’s allegations under the Redundancy Payments Act 1967, the

Respondent contends that given the Claimant’s aggregate length of service with the Respondent  she does not qualify for a statutory redundancy payment. Her commencement date with

the Respondent was 18 September 2017.

With regards to the Claimant’s allegations under the Protection of Employees (Fixed-Term)

Work Act 2003, the Respondent opposes that the Claimant was entitled to a contract of

indefinite duration, namely by virtue of the fact that (i) the Claimant was aware of the

temporary nature and respective end dates of her fixed-term contracts and (ii) the Claimant was

issued fixed-term contracts over a period of two-years, not exceeding a total duration of four

years to trigger a permanent contract.

Post hearing, the Respondent was requested by the Adjudicator to make a submission on Sections 8 and 10 of the Act.  The Adjudicator also requested submission on time limits.

Time Limits

The Respondent confirms that the Complainant’s contract of employment terminated/naturally expired on 31 August 2019.

Section 8

The Respondent contends that they have complied with the provisions of Section 8. in respect of

notifying the Claimant on all occasions when her contract would (i) arrive at a specific date and (ii)

occurrence of a specific event.

For the purposes of a comprehensive background, the chronology of events for the Claimant’s

employment with the Respondent is contained below:

Position Advertised: June 2017.

Interview Date: 12th September 2017

Contract issued 18th September 2017 to 31 December 2017.

Contract issued 1st January 2018 to 31 December 2018.

September 2018 – CTC Manager verbally informed the Complainant that

contract would not be renewed in January 2019. The Complainant was issued with a copy of

the ETB draft job spec for new position also.

December 2018 – At a Business Plan review meeting the ETB  Board agreed to extend funding to the CTC which allowed the CTC to offer the Claimant a further fixed-term contract to end January 2019, due to difficulty in filling the position of a “Teacher”. The Claimant was informed and agreed to the 1-month extension.

18th January 2019 – Further agreement received from TETB to retain the Claimant for a

further month i.e., up to February 2019. The Claimant was informed and agreed to this 1

month extension.

20th Feb 2019 – Agreement from TETB to issue a contract until September 2019. The

Claimant was informed and agreed to the 6-month extension.

Contract issued 1st March 2019 to 31st August 2019  

July 2019 – Confirmation from TETB that position is being advertised again for the ETB

funded “Teaching” post.

31st August 2019 – The Claimant’s contract came to a natural end and was informed verbally

by the Manager in advance, that the contract would not be renewed and that a contract of

indefinite duration will not be provided. The Claimant was also informed of the rationale

behind this decision i.e., the funding ETB had successfully recruited an ETB funded Teacher

who was due to be allocated under the “hours in-cooperation arrangement”.

The Manager verbally notified the Claimant that her contract would end on 31st August 2019, at

least one-month in advance of the expiry of the fixed-term contract.   The Claimant was informed

prior to the summer holiday period which is August annually.

Section 10

In relation to the provisions contained in Section 10(2)(1): The Respondent company was the

“employer” of the Claimant with respect to her “Literacy Support Instructor” role, but would not have been deemed as the “employer” of the “Teacher” who was wholly and mainly recruited and assigned temporarily by the ETB to the CTC.

Therefore, although no obligation should arise on the employer/Respondent in this case to notify or

inform by “means of general announcement at a suitable place in the undertaking or establishment”

the Claimant of any vacancies which are not CTC vacancies, the Respondent did in-fact make

the Claimant aware of the ETB seeking to recruit a “Teacher” with the following qualifications:

(i) A relevant 3rd level degree qualification

(ii) A higher diploma in education

(iii) Post-Primary Teaching council registration

Furthermore, as specified in the Respondent’s original submission, the Claimant did not have a higher diploma in education, and when she requested to further upskill to obtain a higher diploma, the Board of the CTC supported her application for same to the ETB as the funders. Unfortunately, the ETB outlined that their CPD policy covers ETB staff only and therefore would not apply to a CTC staff member.

The Respondent believes this satisfies Section 10(3) of the Act.

Findings and Conclusions:

CA-00032343-001           Protection of Employees (Fixed-Term Work) Act 2003

The Representative of the Respondent raised a preliminary point regarding the matter of whether the Respondent cited in this case was actually the Employer for the purposes of Section 10 of the Act, specifically stating:  In relation to the provisions contained in Section 10(2)(1): The Respondent company was the “employer” of the Claimant with respect to her “Literacy Support Instructor” role, but would not have been deemed as the “employer” of the “Teacher” who was wholly and mainly recruited and assigned temporarily by the ETB to the CTC.

I find the definition of employer as provided for in the Act is:

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

The Complainant was employed on a series of fixed-term contracts from 18th September 2017 to 31st August 2019.  In each written contract the employer is cited as the Respondent in this case. I do not accept that there should be a differentiation between the Respondent employer and another employer in respect of the obligation that an employer shall inform a fixed term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

I therefore find for the purposes of this complaint that the Respondent is the employer and the correct Respondent cited for the purposes of the obligations conferred under Section 10 of the Act.

Time Limits

Section 41 (6) of the Workplace Relations Act 2016 provides:

“Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

The complaint in this instant case that the Respondent failed to provide a written statement of the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration was received by the WRC on 20 November 2019. 

The Complainant received a number of fixed term contracts as follows:

1. 18 September 2017 – 31 December 2017 (signed on 9 October 2017)
2. 1 January 2018 – 31 December 2018
3. 1 March 2019 – 31 August 2019 (signed and dated 26 June 2019).

I find that, as the last contract the Complainant received was signed and dated 26 June 2019, the within complaint under Section 8 of the Act was presented within the period of 6 months beginning on the date of the contravention to which the complaint relates.

The applicable law

Section 8

Section 8 of the Protection of Employees (Fixed term work) Act provides:

8.—(1) 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.

(2) Where an employer proposes to renew a fixed term contract, the fixed-term employee shall be

informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term

contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

Having reviewed the written contract covering the period 1 March 2019 to 31 August 2019, signed and dated on 26 June 2019, I find that the Respondent did not discharge its obligation under Section 8 (2) of the Act to inform the Complainant   in writing of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration.

I find the complaint under Section 8 (2) to be well founded.

Section 10

Section 10 of the Act provides:

10.—(1) An employer shall inform a fixed term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general

announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to

appropriate training opportunities to enhance his or her skills, career development and

occupational mobility.

I note that the Respondent informed the Complainant in or around September 2018 of the imminent recruitment of a Teacher and provided a job spec regarding same, and I find this action complies with Section 10 (1) of the Act.   

I note that the Claimant did not have a higher diploma in education, and when she requested to further upskill to obtain a higher diploma, while the Board of the Respondent supported her application for same, the ETB did not support it on grounds that such support applied to ETB staff only.  I find that the Respondent employer had a duty to facilitate access to the Complainant to appropriate training opportunities to enhance her skills and contribute to her career development, specifically in this case to be eligible for the new position.

I find that the Respondent acted in breach of Section 10 (3) of the Act.

CA-00032343-002        Redundancy Payments Act 1967

It is common case that the Complainant in this instant case, having less than two years’ service with the Respondent did not qualify for a redundancy payment.

Decision:

CA-00032343-001           Protection of Employees (Fixed-Term Work) Act 2003

Based on the evidence and submissions, and the findings above I have decided that the Respondent did not discharge its obligations under Section 8 (2) and 10 (3) of the Act and that the Complainant’s complaints under these sections are well founded.

As provided for in Section 14 (2) of the Protection of Employees (Fixed term work) Act 2003, I require the Respondent to pay to the Complainant the sum of €10,000 compensation which I consider to be appropriate in all the circumstances.

CA-00032343-002           Redundancy Payments Act 1967  

As the Complainant does not qualify for a redundancy payment, I have decided that the claim is not well founded.

Dated:   8th June 2021

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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