Complainant

Respondent

Anonymised Parties

A Teacher

An Educational Institution

Representatives

Liam Riordan Mason Hayes & Curran

Act

Complaint/Dispute 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-00030157-001

10/08/2019

The Complainant commenced employment with the Respondent on the 30th August 2007. Between 2007 and the and 1st September 2018 she was employed on a series of fixed term contracts including specific purpose contracts. Thereafter the Complainant was granted a Contract of Indefinite Duration (CID). The Complainant’s complaint was received by the WRC on the 10th August 2019 and relates to her complaints of less favourable treatment as a fixed term employee pursuant to the Protection of Employees (Fixed Term Work) Act [2003-2020].

The Complainant stated that by August 2014 she had completed seven successive fixed term contracts with the Respondent during which she had received payment at her personal hourly rate of pay as per the teachers incremental salary scale and that had also received incremental credit as normal.  However the Complainant stated that from then on/ie from 2014 onwards, she was treated less favourably than a permanent employee in relation to her conditions of employment specifically in relation to her pay, hours, and periods of layoff.

The Complainant outlined her fixed term contracts during the period 2014 to 2018 which included a number of specific purpose contracts. The Complainant outlined the details of the less  comparable treatment she received and  she provided detailed information in relation to the financial impact on her during these years. The Complainant provided extensive details in relation to:

·        reductions in pay in 2014 and 2015 – which concerned the difference between the Complainant’s actual rate of pay/hour and what she submitted should have been her personal rate as per the teachers incremental salary scale – the Complainant acknowledged this was resolved from 2016 onwards;

·        reduction in hours for 2016, 2017 and 2018 in terms of her contractual hours;

·        periods of layoff in 2014, 2015, 2016, 2017 and 2018 which by and large related to school closure periods/Summer closures.

The Complainant stated that with the support of her union, the Teachers Union of Ireland (TUI) she was offered a CID for 15.33 hours on the 22nd March 2019 which was backdated to the 1st  September 2018. The Complainant stated that she obtained a scanned CID contract on the 22nd  March 2019. The Complainant summarised her complaint before the WRC as follows:

“AT THIS TIME, THE COMPLAINT WITH THE CURRENT CID CONTRACT, WHICH IS NOW ALMOST 12 MONTHS OLD, IS THAT IT SHOULD BE FOR 22 HOURS.….The complaint presented now in August 2019 refers to a CID which started on 23 August 2018 and to issues which arose before the recognition of the CID”.

The Complainant addressed the reason why her complaint was not presented to the WRC prior to 10 August 2019. In this regard the Complainant stated that the delay in presenting the complaint was “due to the ongoing and protracted negotiations before the CID was recognised”. The Complainant stated:

“The complaint presented in August 2019 refers to discrepancies in payroll which occurred before the CID was recognised on 22 March 2019. It was lodged within six months of receipt of the CID. The delay in presenting the complaint is due to the ongoing and protracted negotiations (facilitated by TUI representatives) which were endured before the CID was recognised. It was not possible to pursue the payment of wages issue for example in 2014 or 2015 before a CID was in place: to make a formal complaint then would have endangered the acquisition of the CID going forward. This was the first time it was safe to make the complaint about the pay reduction which related to Sept 2014 and Sept 2015. There are records of emails, letters and telephone calls seeking some redress by negotiating locally, these were to no avail and it would have been very imprudent to escalate the complaint to a formal level before the safety of a CID was in place. The repeated problem of reduced pay had to be suffered as the achievement of the CID was the primary objective and overriding consideration after which a resolution of legacy issues could be pursued. This was the advice at the time and in hindsight it could have been no other way”

It is the Complainant’s position that she is a fixed term employee who has been treated less favourably than a permanent full time comparator. The Complainant stated that she is very appreciative to the Respondent for having eventually obtained a CID and at the adjudication hearing she paid tribute to her union the TUI for their support. Since she obtained her CID the Complainant stated that she has been granted additional hours. Prior to receipt of the CID the Complainant stated that she actively sought to resolve matters with the Respondent but to no avail. She stated that she has no regrets in relation to not pursuing a formal complaint to the WRC prior to receiving the CID and that that was the advice of her union at the time.

The Respondent stated that the Complainant is a permanent teacher employed by the Respondent under a CID with effect from the 1st  September 2018. The Respondent outlined that the terms of the Complainant’s CID were negotiated with her and her union and were agreed by both parties. Accordingly the Respondent submitted that the Complainant’s claim was misconceived in that she is not a fixed term employee and therefore, does not have standing to bring a complaint of less favourable treatment pursuant to the Protection of Employees (Fixed Term Work) Act [2003-2020].

In addition, the Respondents submits that as the Complainant’s complaints related to the time period between 2014 and 2018 when the Complainant was employed under various fixed term contracts, these  complaints are now out of time. In that regard, the Respondent cited Section 41 (6) of the Workplace Relations Act 2015. The Respondent further stated that even if the limitation period was extended to 12 months pursuant to section 41 (8) of the Act, it would make no material difference as it would simply bring the time period back to September 2018 when the Complainant was awarded her CID. The Respondent stated that it relied on the Labour Court decision in Cementation Skanska V a Worker [DWT 0425] in terms of the onus lying with the Complainant to show there were reasons to both explain and excuse the delay.

It is the Respondent’s position that as the Complainant holds a CID she is no longer a fixed term employee and that accordingly, the WRC does not have jurisdiction to adjudicate the claim. Without prejudice the Respondent further submits that the complaint is out of time. The Respondent added that it had invested considerable time and resources with the Complainant and her union in seeking to resolve matters and had believed they were resolved in 2019 when the terms of the CID were sanctioned with effect from 1 September 2018. The Respondent further stated that the Complainant was granted additional hours and arrears back to 1 September, 2018 for work not done.

I have given careful consideration to the parties oral and written submissions. The Complainant has asserted that she is a “fixed-term employee and have, in respect of [her] conditions of employment, been treated less favourably than a comparable permanent employee”. The Respondent has rejected this and has raised two jurisdictional matters – in relation to time limit and the status of the Complainant for the purpose of pursuing her complaints under the Protection of Employees (Fixed Term Work) Act [2003-2020]. I propose to consider both of these as preliminary jurisdictional matters and if I decide I have jurisdiction, I will then proceed and make a finding in respect of the relevant complaint(s). I explained this to the parties at the adjudication hearing.

Preliminary Matter (1) in respect of time limit:

Section 41 (6) of the Workplace Relations Act 2015 provides that:

“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.”

Section 41 (8) of the Workplace Relations Act 2015 provides that:

“An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

The Complainant’s complaint was received by the WRC on the 10th August 2019.  It is clear from Sections 41(6) and 41(8) of the Workplace Relations Act 2015, that I as the Adjudication Officer, am legally precluded from entertaining a complaint presented to the WRC later than six months from the date of the contravention complained of, save where a Complainant has demonstrated reasonable cause for the delay.  In the interests of completeness, I wish to consider the matter of reasonable cause. In Cementation Skanska v Carroll [DWT 0425], the Labour Court set out the following:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.”

In the case of HSE and Dr Abdul Rauf [Labour Court Determination No. FTD 0817], the Labour Court stated that “A Complainant…..must also demonstrate that there are reasons but for which the case would have been referred in time”.

In the present case, the Complainant has made it clear that she was aware of the delay in presenting her complaints to the WRC. In this regard, the Complainant has stated:

“The delay in presenting the complaint is due to the ongoing and protracted negotiations (facilitated by TUI representatives) which were endured before the CID was recognised. It was not possible to pursue to the payment of wages issue…. before a CID was in place: to make a formal complaint then would have endangered the acquisition of the CID going forward”

Taking all the submissions and evidence into account, I am satisfied that the Complainant prioritised obtaining a CID before deciding to submit her complaints to the WRC about unfavourable treatment as a fixed term worker.  Whilst this may not have been an unreasonable position for the Complainant to adopt and was one which she stated at the adjudication hearing she did not “regret”, I am satisfied that she made a considered judgement and choice in this respect. I also note from the Complainant’s own evidence that she had the benefit of union advice at the time. Accordingly, I find that the reason her complaints were not presented within the six month time limit does not amount to the circumstances contemplated in Cementation Skanska v Carroll nor does it satisfy the “but for” test cited in the Rauf case.  Consequently, I find that the reckonable period for the purpose of the Complainant making her complaints to the WRC was within the six months prior to the 10th August, 2019.

In light of the foregoing, I find that the following complaints have been lodged outside the time limit prescribed by Section 41(6) of the Workplace Relations Act 2015, as more than six months has elapsed between the alleged dates of contravention and the submission of the complaints to the WRC on the 10th August 2019:

·        Complaints in relation to reductions in pay in 2014 and 2015;

·        Complaints in relation to reductions in hours related to 2016, 2017 and 2018;

·        Complaints in relation to periods of layoff in 2014, 2015, 2016, 2017 and 2018.

Accordingly, I do not have jurisdiction to inquire into these complaints.

Preliminary Matter (2) in respect of the Complainant’s CID:

The Complainant’s complaint has been made pursuant to the Protection of  Employees (Fixed Term Work) Act [2003-2020] which provides at paragraph 6 that “a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”.  The Complainant has stated that her complaint relates to her CID as follows: “AT THIS TIME, THE COMPLAINT WITH THE CURRENT CID CONTRACT, WHICH IS NOW ALMOST 12 MONTHS OLD, IS THAT IT SHOULD BE FOR 22 HOURS”.

I have considered all the evidence in relation to the awarding of a CID to the Complainant including the letter sent to her by the Respondent on the 22nd March 2019 and the Contract of Indefinite Duration which she signed on the 3rd April, 2019. As a result I am satisfied that the commencement date of the Complainant’s CID was the 1st September, 2018.  A CID by its nature and title is not a fixed term contract. In that regard, the Protection of Employees (Fixed Term Work) Act [2003-2020] specifies at Section 2 the specific circumstances which determines the end of a fixed term contract and that a permanent employee is not a fixed term worker. Section 2 states as follows:

“ ‘fixed term employee’means a person having a contract of employment…..where the end of the contract….concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event….”.  

 “ ‘permanent employee’ means an employee who is not a fixed-term employee”.

I also note that paragraph 5 of Circular Letter 0024/2015 to which the Complainant was referred to by the Respondent in its letter of the 22nd March 2019 states:

“(5) CID and permanent status

A teacher employed on a contract of indefinite duration holds an employment status that is

equal to that of a permanent teacher”.

In its determination FTD 192, the Labour Court cited the judgment of  Laffoy J. in Minister for Finance v Una McArdle 2007 E.L.R 165 which concerned the form and content of a contract of indefinite duration. The Labour Court noted that in the course of her judgement Laffoy J. accepted that:

“The expression ‘contract of indefinite duration’ should be understood in contradistinction to a contract of definite duration or a fixed-term contract…..”

In light of the foregoing and based on the evidence and submissions, I find the Complainant was not a fixed term employee on the 10th August 2019 when she submitted her complaint to the WRC about her CID nor was she a fixed term employee in the six months preceding that date, and nor was her complaint about her CID made within six months of her being a fixed term employee. As I have found that the Complainant was not a fixed term employee, her complaint about her CID and less favourable treatment in that regard, is outside the parameters of the Protection of Employees (Fixed Term Work) Act [2003-2020] and therefore I do not have jurisdiction in the matter.

CA-00030157-001

For the reasons outlined, I find I do not have jurisdiction to inquire into the complaints made by the Complainant. I find that the complaints are not well founded.

Fixed Term Employee; Less Favourable Treatment; Contract of Indefinite Duration