Complainant

Respondent

Parties

Zivan  Petrovic

Tech Mahindra Business Services Ltd

Representatives

  Self represented

Robin McKenna, 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-00044859-001

30/06/2021

The complaint was submitted under Section 14 of the Protection of Employees (Fixed Term Work) Act 2003 that the Respondent treated the Complainant less favourably than a comparable permanent employee.

The Complainant submits that he and another employee received permanent contracts to work in a Department and with less than 24 hours notice, that offer was withdrawn from him.  He understands that the complaint may have been submitted under the wrong act.  However he could not see what other Act was of relevance.  He submitted a letter he received from the Respondent confirming his ‘secondment’ to a Department which would be reviewed.

The Respondent submits that the claimant was not at the time of entering his claim, nor has he ever been, a fixed-term worker, nor has he ever had a fixed-term contract, nor has he ever been employed in that guise.

He had been employed since 2019 as a permanent employee, and continued in the employment, with that status, at the time the claim was entered to the WRC, and thereafter until he resigned his employment in September 2021.

No jurisdiction

It is therefore submitted that no claim can arise under this legislation, that in consequence the WRC has no jurisdiction or remit in this matter, and that the claim should therefore be set aside.

In order to assist the WRC in understanding how this claim has come to be entered, the following is set out, by way of explanation only:

As a business services provider Tech Mahindra is required to be very responsive and flexible in meeting customer requirements/demands. It occurred that a major customer required the appointment of two additional ‘Gatekeepers’ - these being positions which act as a second-level escalation of technical support before issues are passed to a third party.

The positions were advertised internally and the claimant and one other employee were appointed. The other employee had already been carrying out this role on secondment.

The Customer Care role and Gatekeeper role are paid the same salary.

The customer changed their requirement in short order and consequently only one of the positions was required on an ongoing basis. The other employee retained the position.

The selection decision was made on the basis of seniority, in the role and in the company.

The claimant was presented with two options:

a) To return to his original position as a Customer Care Associate

b) To accept a 6 month secondment (commencing July 2021) in a promotional role as a Collections Associate

The claimant chose option b), the promotional secondment to Collections Associate, a role with higher pay potential than both Customer Care and Gatekeeper (having a commission structure yielding up to €240 per month), and favourable working hours - no weekend work.

At no stage was there a loss of salary, diminution of conditions of employment, or any undermining of the claimant’s status as a permanent employee.

It is submitted that the WRC has no jurisdiction in the matter.

In order to be eligible to bring his complaint under the Protection of Employees (Fixed Term Work) Act 2003, the Complainant must fit the definition of a Fixed Term employee as defined in the Act.    Section 2 (1) of the Act defines such an employee 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 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..”

The Respondent submitted in evidence at the hearing a copy of the permanent contract of employment dated 21st October 2019 which stated that his employment, subject to certain conditions would continue until he would reach the retirement age of 65.  The contract also provided that the Company reserved the right to send him on secondment, transfer or assignments and that the Company may provide him with new terms and conditions for any period of secondment/transfer.

I find that the Complainant, not being a Fixed Term Employee as defined in the Act is not entitled to seek redress for his complaints under that Act.  The complaint therefore is not well founded.  

Fixed term employee, not meeting the definition, complaint not well founded.