Complainant

Respondent

Parties

Alyson  Marley

Entry Point North Ireland Designated Activity Company Entry Point North Ireland

Representatives

  N/A

Muireann McEnery, IBEC

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-00042164-001

27/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042164-002

27/01/2021

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

CA-00042164-003

27/01/2021

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

CA-00042164-004

27/01/2021

The Complainant began her employment with the Respondent on 1 January 2014 and was engaged on a series of contracts. She claimed that she was entitled to a contract of indefinite duration and suffered financial loss in 2021 as a result of the Respondent’s refusal to provide such a contract.

The Complainant is employed as a simulator pilot with the Respondent. She began her employment on 1 January 2014 and was engaged on a series of contracts. She asserted that she was entitled to a contract of indefinite duration on January 1 2018 and claimed that she suffered financial loss from January to July 2021 as a result of the Respondent’s refusal to provide such a contract.

The Respondent stated that the following contracts were furnished to the Complainant:

1. Mutual Agreement 1st January 2014

2. FTC - 9th January 2017 to 8th January 2019

3. FTC - 1st January 2019 to 31st December 2020 Page 22

4. Mutual Agreement 1st January 2021 to 31st December 2021

It was asserted that the contract furnished to the Complainant on 1 January 2014 was not a fixed term contract as defined in the Act but rather a contract of Mutual Agreement where the hours of work were determined by mutual agreement. Specifically, the Respondent did not guarantee hours and the Complainant had the freedom to accept or reject hours without negative consequences. In addition, the end of the contract was not determined by any objective condition. This arrangement was to facilitate the Respondent’s business model where student enrolment on the various training courses fluctuated and the consequent requirement for simulator pilots also fluctuated as a result.

It was accepted that by the Respondent that contracts 2 & 3 were Fixed Term Contracts, the first one commencing on 9 January 2017 and the second one ending on 31 December 2020 and that an entitlement to a CID therefore arose on 9 January 2021.

The Respondent asserted that there were sound, objective justifications for giving the Complainant a further fixed term contract on 1 January 2021, however, namely;

·       The Aviation industry came under extraordinary pressure as a result of the Covid-19

Pandemic

·       The market was very uncertain causing serious costs constraints resulting in both

staffing and budget reviews.

The Respondent also highlighted that the Complainant was offered the option of either a fixed term contract or redundancy along with an assurance that should any permanent roles arise she would be advised of same and offered the opportunity to apply.

In effect the Complainant’s full-time role was redundant due to the cancellation of classes and the uncertainty around the pandemic and how it would develop meant that there was no line of sight with regards to when classes might resume. In those circumstances, as an alternative to redundancy, the Complainant was also offered a contract of mutual obligation which didn’t guarantee any hours, nor oblige her to accept any hours offered but had the advantage of her remaining in employment and being allocated any hours that might become available. It also achieved the legitimate objective of the Respondent in having contingency staff available to address potential short notice absences as a result of Covid.

It is the Respondent’s position that its decision to not furnish a CID and instead offer the option of either redundancy or a fixed term contract of mutual obligation was very much objectively justified and met the requirements as set out in section 7 of the Act.

Specifically, the decision not to furnish a CID was as a result of the impact of the Covid-19 pandemic, and not the Complainant’s fixed-term status, for the purpose of offsetting the financial losses incurred as a result of the cancellation of classes. The renewal of the contract on a fixed term basis was appropriate and necessary and it allowed the Complainant to work any hours that became available, whilst maintaining her continuity of service. The Complainant was also offered redundancy in recognition of the reduction in hours and given assurances that she would be offered a permanent contract should a position arise in the future.

CA-00042164-001:

Given that the Respondent set out in writing the reasons for not offering the Complainant a permanent contract of employment on December 7 2020, I find that this complaint is not well founded.

CA-00042164-002:

I have carefully reviewed the Complainant’s fixed term contract of employment which began on 1 January 2021 and do not find that she was underpaid by the Respondent in respect of this contract for any hours she worked until 27 January 2021, the date on which the complaint was referred to the Workplace Relations Commission.

CA-00042164-003:

Section 41 of The Workplace Relations Act 2015 states:

(6) 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.

(8) 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.

While the Complainant asserted in her evidence that she became entitled to a CID in 2018, I note that this complaint was not referred to the WRC until 27 January 2021 and, in accordance with the Act at s. 41 (6) and (8) cited above, can only therefore consider any alleged contravention that arose as a result of the Respondent’s failure to give her a contract of indefinite duration in January 2021.

I note firstly the definition of a fixed term employee contained in section 2 of the Act is

A Person having a contract of employment entered into directly with an employer where the end of that contract is determined by an objective condition, such as arrival at a specific date, completion of a specific task or the occurrence of a specific event.

I also have regard to the Labour Court decision in Irish Museum of Modern Art V Stanley FTD 146 (2014) where it was stated that:

The defining characteristic of fixed term contract or fixed term employment is that it is determined by an objective condition which is identifiable without reference to the view or perception or intervention of either party to the contract.

I also note in Adeneler & Ors -v- Ellinikos Organismos Galaktos (2006) IRLR 716 the statement that, “the 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”.

I note in the instant case that around the time of the expiry of the Complainant’s fixed term contract the financial performance of the Respondent was poor as a result of the downturn in business due to the pandemic and that the outlook for the short term was bleak. I also note that as a direct result, the Complainant was offered the option of redundancy but declined to avail of this and that the Respondent as an alternative chose to re-engage her on a fixed term contract from 1 January 2021 to 31 December 2021 with no guarantee of any hours.

Having heard and reviewed all of the evidence in relation to this contract, I find that there was no clearly determinable objective condition attached to it and that the decision to issue  a new fixed term contract on 1 January 2021 was based on the Respondent’s subjective assessment of their financial position.

Section 7 of the Protection of Employees (Fixed Term Act) 2003 states inter alia that

(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.

When determining whether the renewal of the Complainant’s fixed term contract comes within the scope of section 9(4) of the Act therefore, it is necessary to consider whether it had the purpose of “achieving a legitimate objective of the employer” and it must be appropriate and necessary for that purpose.

Specifically, while the Respondent in the instant matter has stated that the provision of the fixed term contract was for the purpose of achieving a legitimate objective, namely to reduce the losses which had been incurred as a result of the pandemic and to have contingency staff available to address potential short notice absences as a result of Covid, I must consider whether it was appropriate and necessary for that purpose.

In this regard, I note that the Labour Court has stated in the matter ofMc Namara v Teagasc (FTD 138) that:

“There are many forms of economic activity in which the viability of employment is dependent on funding generated by individual contracts or projects. That is the case in practically all employments providing professional services and in such industries as construction and civil engineering. That type of activity is dependent on a continuing supply of separate once-off contracts or projects in order to maintain employment. If it were to be held that the use of successive fixed-term contracts could be used indefinitely in such employments so as to protect the employer against the possibility of an insufficient supply of work at some point in the future the effectiveness of the Directive and the Act would be seriously subverted. If, due to economic circumstances or fall-off in demand, there is no longer sufficient work in order to maintain a worker in employment the employer’s remedy lies in making surplus staff redundant. It follows that while the requirement to balance staff levels with available funding is a legitimate objective the continuing use of fixed-term contracts is not always a proportionate and necessary means of achieving that objective.”

While I recognise that the Respondent found itself in a dire financial situation, common to any business operating in the airline industry over the last eighteen months, and considered the need to manage payroll costs to be a legitimate objective, I find, in line with the Labour Court decision above, that the use of fixed term contracts is not a necessary means of achieving that objective. Specifically, employers can make roles redundant or offer alternatives, such as temporary lay-off, reduced working hours or pay cuts in respect of permanent employees instead of engaging employees on fixed term contracts indefinitely.

While I also note the Respondent’s assertion that that there was a requirement to have contingency staff, such as the Complainant, in place to manage absences as a result of Covid I note that this was not specifically set out as a reason either in the letter of 7 December 2020 explaining that she would not be offered a permanent contract of employment or in the fixed term contract that began on 1 January 2021.

Bearing all of the above in mind, I find that, in the absence of any objective justification for the continuing usage of fixed term contracts, this complaint is well founded.

CA-00042164-004:

Given that there was no evidence of penalisation presented to me, I find that this complaint is not well founded.

CA-00042164-001:

I find that this complaint is not well founded for the reasons set out above

CA-00042164-002:

I find that this complaint is not well founded for the reasons set out above.

CA-00042164-003:

I find that this complaint is well founded.

As the Complainant has, since referring her complaint under the Act, been issued with a permanent contract with the Respondent, any claim for a contract of indefinite duration does not arise and I must therefore only concern myself with the question of compensation.

In the case of Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891 the European Court of Justice stated that the remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive”. Therefore, in all the circumstances of this case, I find that the Complainant should receive compensation in the amount of €15,000 in respect of the contravention of Section 9 of the Act.

This award is wholly comprised of compensation for the breach of the Act and contains no element of loss of earnings.

CA-00042164-004:

I find that this complaint is not well founded for the reasons set out above

Fixed term contract; contract of indefinite duration