LCR22466

1.Contract Of Employment.

BACKGROUND:

2. This dispute could not be resolved at local level and was the subject of Conciliation Conferences under the auspices of the Workplace Relations Commission. As agreement was not reached, the dispute was referred to the Labour Court on 22 April 2021 in accordance with Section 26(1) of the Industrial Relations Act, 1990. A Labour Court hearing took place on 16 September 2021.


UNION'S ARGUMENTS:

1. The failure to grant the Worker a contract of indefinite duration is not in line with the practices and the agreements that prevail withing the Higher Education Sector.

2. The work being carried out by the Worker is not temporary or transient and there is permanent need for this work.


COMPANY'S ARGUMENTS:

1. The entitlement to a contract of indefinite duration is based on very clear legal provisions which the Worker has not met.

2. The Worker was not employed on a continuous basis but instead received a series of successive contracts.

RECOMMENDATION:

The Court has given very careful consideration to the written and oral submissions of the parties.

The claimant in this matter is employed as a lecturer in education with expertise in English language and literacy. She is employed on a fixed term contract which carried an end date of 31^stAugust 2020. The parties agreed, without prejudice, that she would remain in employment until the resolution of the claim before the Court.

The employer, in late June 2020 following internal discussions, decided that the role being carried out by the claimant was a role for which there was a permanent need and that the position should be filled as a permanent post for the future. The employer decided that an open competition would be held to fill the post.

The Trade Union claims that because the Claimant is in post and had been carrying out the role for a period of two years at the time it was decided it should become a permanent position, she should be appointed to the role on a permanent basis. The Trade Union contends that it is not reasonable to require her to compete for the position in an open competition having regard to the circumstances.

The matter has not come before the Court as a complaint under the Protection of Employees (Fixed Term Work) Act, 2003 and the Trade Union made it clear that its claim was not based on a perceived entitlement under that Act.

The employer submitted that no basis existed for the filling of permanent positions other than by open competition or as a result of an employee acquiring an entitlement to a fixed term contract under the provisions of the 2003 Act. The employer made clear its view that the Claimant had not acquired a right to such a contract.

The employer also emphasised its view that any recommendation in favour of the claim of the Trade Union would have consequences within the college and across the third level sector generally. The Trade Union contended that no wider consequence will flow from any recommendation in the matter.

The Court was unable to establish the regulatory or agreement based obstacle to the concession of the Trade Union claim. The employer did assert that the Comptroller and Auditor General would have a concern if an appointment were made in the absence of an open competition. The Court was unable to establish the basis for any possible such concern.

Finally, the Court heard from the employer that situations such as the matter before the Court occurred regularly and that the normal procedure was to conduct an open competition notwithstanding that a fixed term worker was in post at the time a post became permanent. The Trade Union did not accept that assertion.

The Court is concerned that it is asked to make a recommendation in a specific case in the absence of a clear understanding as to the potential consequences which might flow across the third level / University sector generally or the regulatory or agreement based restrictions in being which restrict the employer’s capacity to respond positively to the Trade Union’s claim. The Court is also concerned that the employer and the Trade Union do not agree as to whether the situation the claimant finds herself in is a normal occurrence within the employer organisation.

In all the circumstances, the Court recommends that the parties should engage in a focussed way over a six month period to conclude an agreement to deal with situations such as the situation in which the Claimant find herself. Any agreement found should be applied to the Claimant.

Should the parties fail to find agreement, the claim before the Court can be referred back for a further hearing and a definitive Recommendation. Any such referral should take place against the background of a shared understanding a regards the key facts of the matter including potential wider consequences, practice within the employer organisation and any relevant regulations or agreements having a bearing on the employer’s capacity to address the claim.

The Court so recommends.

	Signed on behalf of the Labour Court
	Kevin Foley
CN	______________________
23 September 2021	Chairman