Complainant

Respondent

Parties

Mary Burke

Carlow County Council

Representatives

Ms. Lisa Connell, Assistant General Secretary, Forsa Trade Union

Mr. Keith Irvine, Local Government Management Agency

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-00040925-002

11/11/2020

The Complainant was employed by the Respondent as a Temporary Clerical Officer on a specific purpose contract from 28 September, 2015 until 29 December, 2020 when her employment was terminated.

The Complainant claims that she was incorrectly provided with a specific purpose contract on her appointment as a Temporary Clerical Officer and should have been provided with a fixed term contract. The Complainant contends that if she had been provided with a fixed term contract when she commenced employment that she would have been eligible for a contract of indefinite duration pursuant to section 9 of the Protection of Employees (Fixed Term Work) Act 2003 with effect from September, 2019. The Complainant also claims that the Respondent has contravened the provisions of section 10(1) of the Protection of Employees (Fixed Term Work) Act 2003 by failing to provide her with information in relation to vacancies which became available during her tenure and thereby denying her the opportunity to convert her status to that of a permanent nature.

The Respondent disputes the claim that it has contravened the provisions of sections 9 and/or section 10(1) of the Protection of Employees (Fixed Term Work) Act 2003 in relation to the Complainant’s employment. The Respondent contends that the Complainant was employed on a specific purpose contract in 2015 to cover the period of maternity leave and subsequent career break of another employee. The Respondent contends that the Complainant’s specified purpose contract was terminated when the absent staff member officially informed the Respondent that she would not be returning from his career break.

The Complainant submits that she was appointed by the Respondent to the position of temporary Clerical Officer (Grade III) on 28 September, 2015 after she had applied through a national competition which was advertised by the Public Appointment Services in late 2014/early 2015. The Complainant submits that she was issued with a specific purpose contract by the Respondent on the commencement of her employment. However, she contends that at no point in the application process was she informed that she would be employed pursuant to a specific purpose contract.

The Complainant submits that she had been employed in this position for over five years in September, 2020, and therefore, made representations to the Respondent to establish if her contract could be converted from a specific purpose contract to a permanent contract. The Complainant contends that if she had been provided with a temporary contract/fixed term contract when she commenced her role with the Respondent that she would have been eligible for a Contract of Indefinite Duration (CID) with effect from September 2019 by application of the provisions of section 9 of the Protection of Employees (Fixed-Term Work) Act 2003.

The Complainant submits that the Respondent informed her on 20 October, 2020 that she was not entitled to a CID on the basis that she had been covering the post of a person who was initially on maternity leave and her subsequent absence on a career break. The Complainant queried this matter further with the Respondent on 22 October, 2020 and requested to be moved onto a CID if the staff member had indicated that she would not be returning or alternatively that she would be moved onto a fixed term contract if the staff member was returning to her post. The Complainant was informed by the Respondent on 27 October, 2020 that the employee whose post she had been covering had decided not to return to work, and therefore, the Complainant’s employment would be terminated on 29 December, 2020. The Complainant was also informed that the position she was covering would be filled through the Grade III permanent panel which held a number of external applicants.

The Complainant made further representations to the Respondent on 30 October, 2020 that she should be placed into a permanent role to fill this vacancy which would be in keeping with the spirit of the 2003 Act and that it would be unfair to cease her employment and to fill the role she had been undertaking for five years with an outside person who had never worked for the Respondent. The Complainant submits that seniority is an accepted practice within the relevant sector, but the Respondent failed to recognise the service that she had provided and her contribution during her period of employment.

The Complainant subsequently invoked the internal grievance procedures in relation to this matter, but her grievance was not upheld, and her employment was terminated with effect from 29 December, 2020.

The Complainant also claims that the Respondent has contravened the provisions of section 10(1) of the Protection of Employees (Fixed Term Work) Act 2003 by failing to provide her with information in relation to vacancies which became available during her tenure and thereby denying her the opportunity to convert her status to that of a permanent nature.

The Respondent submits that the Complainant was employed on a specific purpose contract on 28 September, 2015 which unequivocally stated that the purpose of her employment was to cover the vacancy created by the extended maternity leave of a specific employee.

The Respondent submits that the Complainant’s contract of employment stated that the other employee may avail of a career break following her extended maternity leave and in the event that this occurred, the Complainant’s contract of employment would be extended to cover the period of the other employee’s career break. The contract of employment also stated that if the other employee resigned her post with the Respondent that the permanent vacancy would be filled in accordance with normal recruitment practice.

The Respondent submits that the other employee applied for a career break following the expiry of her maternity leave which was granted and commenced on 30 December, 2015. The other employee’s career break was subsequently extended for a further period of 1 year for each year from 2015 to 2019. The Complainant was informed in writing by the Respondent each year from 2015 to 2019 about the situation and that her specific purpose contract was being extended on each occasion for a further period of one year to cover the other employee’s career break.

The Respondent submits that the Complainant was notified in writing on 27 October, 2020 that her specific purpose contract would be coming to an end on 30 December, 2020 as the other employee had decided to resign her position.

The Complainant initiated a formal grievance under the Respondent’s internal grievance procedures in relation to this matter and the grievance was not upheld by the Respondent. The Respondent stated that the Complainant’s employment was terminated on 29 December, 2020 in accordance with the terms of her specific purpose contract.

The Respondent submits that the Complainant was employed on a specific purpose contract in accordance which was fully compliant with the relevant provisions of the Protection of Employees (Fixed-Term Work) Act, 2003. The Respondent submits that the Complainant was made fully aware that she was being employed on a specific purpose contract at the outset of her employment and accepted the offer of temporary employment for that purpose. The Respondent states that a fixed term contract was not offered to the Complainant as it was not clear how long the other employee would be on leave and as such the correct and most suitable type of contract was a specific purpose contract.

The Respondent disputes the Complainant’s claim that it has contravened the provisions of section 10(1) of the Protection of Employees (Fixed Term Work) Act 2003 by failing to provide her with information in relation to vacancies which became available during her tenure and thereby denying her the opportunity to convert her status to that of a permanent nature. The Respondent submits that a general e-mail notification system which was circulated to all employees to inform them about vacancies for permanent positions that arise at any given point in time. The Respondent submits that the Complainant was included on the circulation list for all such notifications during her period of employment and therefore had the same opportunity as all other employees to apply for permanent positions within the organisation.

The Law

The term “fixed term employee” is defined in section 2 of the 2003 Act as follows:

““fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment 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 but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme”.

“Successive fixed-term contracts

9. (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.”

Information on employment and training opportunities.

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.”

The first issue that I must consider relates to the claim that the Respondent has contravened the provisions of section 9 of the Act in relation to the Complainant’s employment. The Complainant claims that she was incorrectly provided with a specific purpose contract on her appointment as a temporary clerical officer and should have been provided with a fixed term contract. The Complainant contends that if she had been provided with a fixed term contract when she commenced employment that she would have been eligible for a contract of indefinite duration pursuant to section 9 of the Protection of Employees (Fixed Term Work) Act 2003 with effect from September, 2019.

The Respondent disputes the claim that it has contravened the provisions of section 9 of the Act in relation to the Complainant’s employment and contends that she was employed on a specific purpose contract in 2015 to cover the period of maternity leave and subsequent career break of another employee. The Respondent contends that the Complainant’s specified purpose contract was terminated on 29 December, 2020 after the absent staff member had resigned her position.

In considering this matter, the first question that I must address is whether the Complainant was employed by the Respondent as a fixed term employee within the meaning of section 2 of the Act. In considering this issue, I note that it was not in dispute that the Complainant was issued with a contract of employment on 23 September, 2015 which stated that she was being appointed to the post of Temporary Clerical Officer on a specific purpose contract to cover the vacancy created by the extended maternity leave of another employee and that her contract of employment would be extended to also cover the absence of this employee in the event that she subsequently availed of a career break. In the circumstances, I am satisfied that the nature of the contractual relationship between the Complainant and the Respondent was that of a fixed term employee within the meaning of section 2 of the Act.

The question then turns to the issue of whether the Complainant’s contract of employment became a contract of indefinite duration by operation of the provisions of section 9(3) of the Act based on the duration of her period of employment with the Respondent. In order to determine this matter, it is necessary to consider whether the entire duration of the Complainant’s employment with the Respondent was encompassed by the contract of employment issued to her in September, 2015 or if she was issued with successive contracts in subsequent years that ultimately altered the nature of the relationship between the parties.

Having carefully considered the evidence and submissions of both parties on this matter, I find that the Complainant was employed at all material times pursuant to the contract of employment issued to her by the Respondent in September, 2015 for the purposes of covering the absence of a permanent member of staff who was initially absent on maternity leave which was immediately followed by a career break. I am satisfied that at no time was the Complainant issued with any further or additional contract of employment.

In the circumstances, I find that the Complainant is not entitled to rely upon the provisions of section 9 of the Act as she has not established that she was employed on two or more successive contracts. It is clear from the evidence adduced that the Complainant was employed on one specified purpose contract which endured for the entire period of her employment from September, 2015 until December, 2020. Accordingly, I find that the Respondent did not contravene the provisions of section 9 of the Act in relation to the Complainant’s employment and that she was not entitled to a contract of indefinite duration. Accordingly, I find that this element of her complaint is not well founded.

The next issue I must consider relates to the Complainant’s claim that the Respondent contravened the provisions of section 10(1) of the Act by failing to provide her with information in relation to vacancies which became available during her tenure and thereby denying her the opportunity to convert her status to that of a permanent nature.

In considering this issue, I note that the Respondent adduced evidence that it was standard practice within the organisation for the HR Department to circulate general e-mails to all employees to notify them about any vacancies or competitions to fill such vacancies that arise at any given point in time. I further note that the Complainant accepted that she received such general e-mails from the Respondent in relation to job vacancies that arose during her period of employment. In the circumstances, I find that the Respondent has satisfied its obligations to the Complainant under section 10 of the Act in relation to the provision of information to ensure that she had the same opportunities as other employees to secure permanent employment. Accordingly, I find that this element of her complaint is not well founded.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

I find that the Respondent did not contravene the provisions of sections 9 or 10 of the Protection of Employees (Fixed-Term Work) Act 2003 in relation to the Complainant’s employment. Accordingly, I find that her complaint is not well founded.

Protection of Employees (Fixed-Term Work) Act 2003 – Section 9 – Contract of Indefinite Duration – Specified Purpose Contract – Section 10 - Information on Employment and Training Opportunities