Complainant

Respondent

Anonymised Parties

A Security Officer

A State Body

Representatives

Damien Kelly FORSA

Claire Bruton BL instructed by Brian Whitaker Solicitor, Whitaker & Co.

Act

Complaint Reference No.

Date of Receipt

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

CA-00028709-001

28/05/2019

The complainant was employed by the respondent as a temporary night watchman on successive fixed term contracts starting on the 2nd of February 2015. He is claiming that he has 4 years’ service and is entitled to a contract of indefinite duration pursuant to section 9 of the Protection of Employees (Fixed Term Work) Act 2003. 

The complainant said he was employed as a temporary night watchman on the 2nd of February 2015 and he was replacing a person who had retired. He said he was given a number of fixed term contracts the last of which was on the 28th of April 2019. He said the respondent had a competition for the post of night watchman in 2017. He said he applied for the position and he was placed number one on the panel, but he was never appointed. He said his union made a number of submissions to HR requesting that the appointment be made but this never happened. He said he was told that contract negotiations were ongoing, and he could not be appointed until these negotiations were completed. He said he came entitled to a contract of definite duration in February 2019, but his contract was extended again. The position for service officer was advertised in a Government Department.  He applied and was successful. He resigned from the Respondent’s employment in July 2019 and took up the new position immediately. He said he felt aggrieved at having to leave the Respondent’s employment because his overall earnings were down because of the loss of overtime. He accepted that his service with the Respondent from the 2nd February 2015 was recognised by the Government Department and his employment was regarded as continuous.

It was submitted that the complainant meets the test required by section 9 of the Act in that he has more than four years continuous service under more than two successive contracts of employment. It is for this reason the complainant is entitled to a contract of indefinite duration as a night watchman as he has service of over four years duration.

Submission

The Complainant was employed by the Respondent in the position of temporary night watchman-a security position from 2 February 2015 to the 14 July 2019. The Complainant resigned from his employment on 8 July 2019, his resignation taking effect on 14 July 2019 to take up a permanent position of services officer with a Government Department. 

The Complainant was engaged by the Respondent on a series of temporary fixed term contracts, some of which were extended by letters of extension. The final fixed term contract provided to the Complainant was dated 21st September 2017 and was for the period of September 2017 to the 15 January 2018.  The reason a fixed term contract was provided to the Complainant is clearly set out within the contract on the basis that the Respondent is “trialling a new 4 person security model. Whilst this trial is executing, it is not possible to fill security vacancies on a permanent basis.”

The Respondent had historically operated a 3 person security system at its headquarters on the basis of 24/7 cover.  One of the three permanent night watchmen retired in 2015 and the Complainant was appointed on a temporary basis pending the outcome of a review by the Respondent of the security model in place. This took some time as there were various negotiations regarding the new security model with the existing 2 permanent employees represented by their union.

In April 2017, an interim local bi-lateral agreement was reached with the union to explore and advance the operation of the new 4 person security model, and this was reached in an effort to deliver the necessary 24/7 security presence required by the Respondent and also in order to comply with the requirements of the OWT Act, 1997 and enhance the health and safety of its staff. The new 4 person security model commenced on 25 September 2017, and it provided for 4 watchmen working on average 43.25 hours per week over a 4 week roster. It was agreed with the union representing the night watchmen that this security model would be trialled over a period but there were impediments to the implementation of the new security model in relation to the two night watchmen’s permanent contracts. 

Protracted discussions between the parties failed to resolve the issues identified, and the outstanding issues were referred to the Civil Service Adjudication forum which took place on 4 October 2018.  Interim findings were made but the matter was adjourned to allow for further engagement between the parties.

This was the basis for the final fixed term contract provided to the Complainant, which was extended subsequently by letters of extension. It was not possible to appoint the Complainant to his position on a permanent basis, due to the necessity for the trial of the new model to take place and the uncertainty of required staff members in the night watchmen positions at the time or post the trial period.

Legal submissions

It was submitted that the complaint is moot. The Complainant claims that he is entitled to a contract of indefinite duration in the position of night watchman.  However, as he ceased his employment in July 2019 to take up a permanent position with a Government Department there is nothing to be gained by the Complainant in this claim. It is also unnecessary for a contract of indefinite duration to be awarded to the Complainant as he is a permanent employee of a Government Department and a CID with the Respondent would be of no benefit to him.

The issue of mootness of proceedings was considered by the Supreme Court in Goold v Judge Collins and Others [2004] IESC 38. Mr. Justice Hardiman described it in the following terms:

“A proceeding may be said to be moot where there is no longer any legal dispute between the parties. The notion of mootness has some similarities to that of absence of locus standi but differs from it in that standing is judged at the start of the proceedings whereas mootness is judged after the commencement of proceedings. Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs, the eventual decision would be of no practical significance to the parties.”

It submitted that the foregoing has a clear application to the instant case as there is no dispute between the parties as the Complainant has achieved a permanent position and has left his employment with the Respondent. This supersedes his claim and he has achieved the outcome he wished.

Objective justification

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 9 of the 2003 Act provides as follows:

(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.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to [2005] shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

In Del Cerro Alonso v Osakidetza - Servicio Vasco de Salud: C-307/05, the CJEU held;

“The Court held that that concept of ‘objective reasons’ must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (Adeneler and Others, paragraphs 69 and 70).”

In University College Dublin v McConnon FTD1423, the Labour Court noted that

“There is no closed category of circumstances in which that can arise. It may be that an employee is employed for a fixed term to perform work which corresponds to the fixed and permanent needs of the employer, but they do so in order to provide cover for another employee who is temporally absent. It could also arise in circumstances where a regular workforce has to be augmented so as to meet some temporary exigency of the business. In that regard, while the Framework Agreement on Fixed-Term Work annexed to Directive 99/70/EC (upon which the 2003 Act is based) recognises that while employment contracts of indefinite duration are to be regarded as the general form of employment relationships, fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers (see Recitals 6 and 8 in the preamble to the Framework Agreement).”

In case C-212/04 Adeneler and Ors. V Ellinikos Organismos Galaktos [2006] IRLR 716 the CJEU made it clear that the grounds relied upon must be objectively justified by reference to the work actually performed and the circumstances under which it is performed. The Court said at pars 69-70 of its judgment: -

“[T]he concept of 'objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.”

Finally, in C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071, the CJEU drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category.

It is submitted that on the basis of the foregoing case law the fixed term contracts furnished to the Complainant were objectively justified as per s. 7 and 9(4) of the 2003 Act.

The provision of security operations at the Complainant work was under review in relation to the shift pattern and the manner of provision of security services at the Respondents premises. These considerations were short term in nature and specific to the position held by the Complainant. There were specific and short term reasons requiring the provision of a fixed term contract to the Complainant by reason of the review of the security operations including negotiations and trialling the new model post its agreement.

The reason justifying the provision of fixed term contracts to the Complainant was specific both to his role and the review of the security operations which was temporary in nature and not part of the permanent requirements of security operations within the Respondent. The provision of fixed term contracts to the Complainant were appropriate in the circumstances.

Therefore, it is submitted that as per section 9(4) of the 2003 Act, there were objective reasons justifying the provision of fixed term contracts to the Complainant beyond the 4 year period.

On the basis of the foregoing, the claim of the Complainant should not succeed.

The complainant is claiming that he was entitled to a contract of indefinite duration after he completed 4 years on fixed term contracts in February 2019.  The Respondent submits that there were objective reasons to justify not offering the complainant a contract of indefinite duration and in any event his claim is moot as he left the temporary security position to take up a permanent position.

Objective Justification

The complainant commenced work as a temporary night watchman with the Respondent on a fixed term contract on the 2nd February 2015 and that contract was extended a number of times up until the 1st of July 2017.  He was given another contract of employment from that date up until the 24 the September 2017 and another contract on the 25th of September 2017 and this contract was extended a number of times and the last extension was granted on the 29th April 2019 and was due to expire on the 29th September 2019. Therefore, to qualify for a CID the Complainant had completed 4 years continuous service in February 2019 in accordance with Section 9(1) cited above. I note that the complainant accepted and signed the contracts and raised no query about the extensions to the contract.

Section 9(4) provides that this period can be extended provides for objective grounds to justify an extension:

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

Section 7(1) provides:

(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.

I note the 25th September 2017 contract stated the Respondent “are currently trialling a new 4 person security model. While this trial is executing it is not possible to fill security vacancies on a permanent basis.”

The Respondent submitted that there were ongoing discussions with the unions to increase the security model from a 3 person team to a 4 person team.  Agreement was reached but during the trialling of the 4 person security model difficulties arose in the implementation in relation to the 2 permanent night watchmen contracts and this was referred to the Civil Service Arbitration.   It was for this reason the final fixed term contract issued to the Complainant and was extended. It was not possible to appoint the Complainant to a permanent position before trialling the new model given the implications of the outcome of the negotiations and the uncertainty around the number of permanent staff required.  

I note inDel Cerro Alonso V Osakidetza Servicio Vasco de Salud C-307/05,

“The justification relied upon must be based on objective transparent criteria which in fact respond to a genuine need, are appropriate for achieving, the objective pursued and are necessary for that purpose.”

I am satisfied that the Respondent after a review of the security arrangements was endeavouring to increase the security team from a 3 person team to a 4 person team and encountered delay due to protracted negotiations which had not concluded when the final extension of the September 2017 contract was granted on the 29th April 2019.  It is also clear that the Respondent could not offer a permanent contract to the Complainant until they had trialled the new model of security to determine its operational outcomes. I am satisfied that the Complainant was aware of the reasons for the extension.

I am satisfied therefore that the Respondent has established objective justification for not offering the Complainant a CID when his contract was extended in April 2019.

The Respondent also submitted that the complaint is moot as there is no dispute between the parties and the Complainant has achieved a promotion and permanent position the outcome he was seeking, and this supersedes his claim.

I note that the Complainant was successful in obtaining a permanent service officer post in a Government Department and he resigned from the Respondents employment on the 8th July 2019 and took up his new employment on the 14th July 2019.  As both are State bodies within the Civil Service the Complainant’s service with the Respondent was carried forward to his new position and he is now on a higher salary.  It is astounding that the Complainant is seeking a CID to return to a less secure and a lower grade job than the one he now occupies.

For the above reasons I find that the complaint is not well founded.

 I find that the complaint is not well founded.

Protection of Employees (Fixed Term Work) Act 2003, Fixed Term Contract, CID. Objective Justification