ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00028301
Parties:
| Complainant | Respondent |
Anonymised Parties | A Graduate Recruitment Administrative Officer | A local authority |
Complaint:
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-00036312-001 | 22/05/2020 |
Date of Adjudication Hearing: 23/06/2021
Workplace Relations Commission Adjudication Officer: Patricia Owens
Procedure:
In accordance Section 41 of the Workplace Relations Act following the referral of the dispute to me by the Director General, I inquired into the dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the dispute.
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings on 22nd July 2021. No technical issues were experienced during the hearing.
Background:
The Complainant commenced employment with the Respondent on 25th June 2018 on a fixed term contract under the Graduate Recruitment Programme. The programme provided for a range of work experiences and training under the Data Analytics Stream. He submitted a claim to the Workplace Relations Commission under the Protection of Employees (Fixed term Work) Act claiming that he was treated less favourably that comparable permanent employees in relation to a competition for a promotional post. The Respondent was a local authority. The Respondent denied the allegations in relation to less favourable treatment of a fixed term worker. The Respondent contended that, in accordance with Section 2(1) of the Protection of Employees (Fixed Term Work) Act, the Complainant was not comprehended by the Act, as he was employed on a training scheme. The Respondent further contended that in accordance with Section 14(3) of Act the Complainant’s case was out of time. Furthermore, the Respondent rejected the complaints and submitted that no breach of the Act had taken place. Preliminary Issues: Issue 1 The Respondent submitted that the complaints to the WRC were submitted on 22nd January 2021, that the Complainant’s allegations were in relation to 2019 and early 2020 and that any issues raised in the WRC Complaint Form under the Protection of Employees (Fixed term Work) Act before 23rd August 2020 were out of time. In this position the Respondent relied upon Section 14(3) of the Act which states that the Adjudication Officer “shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.” The Respondent pointed out that the Complainant had the benefit of legal advice during the processing of his grievance and that, in those circumstances, he should have been aware of the time limits for making a complaint. Issue 2 The Respondent submitted that the Complainant was recruited as part of a Local Government Graduate Recruitment Initiative and was placed on the Local Authority Sector specific graduate programme, undertaking an industry recognised accredited training course as per his contract of employment. (A copy of the contract was appended to the submission). The Respondent relied upon Section 2(1) of the Act which states that “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 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.” The Respondent contended that, as such, in accordance with the provisions of Section 2(1) of the Act, the Complainant is not a fixed term employee as defined in the Act, that the Act does not apply to the Complainant and the Adjudicator cannot hear the case. |
Summary of Complainant’s Case:
CA – 00036312-001 The Complainant submitted that he was treated less favourably than a comparable permanent employee in relation to his conditions of employment. He submitted that in September 2019, staff in the Finance Section of the Respondent were notified by email of up-coming short-term acting posts which were to be filled by confined competition. He submitted that the period of acting was expected to be circa 3 months duration until a permanent appointment could be made. In his submission he stated that he sought and received clarification from HR that he was eligible to apply, and he proceeded to submit his expression of interest on the same day (i.e., 9th September 2019). He further submitted that on 26th September 2019 he received an email from HR, inviting him to apply for the post and that he did so ahead of the closing deadline. He further submitted that HR accepted and evaluated his application and that he was shortlisted for interview based on the merits of his application. He confirmed that he was interviewed for the post on 12th November 2019 and was subsequently placed 1st in order of merit and that he expected to receive an offer of the post. In his submission the Complainant that in the weeks after the interview HR informed him that an unsuccessful candidate had raised a query through their union in relation to his eligibility for acting posts and that HR had referred the query to the Local Government Management Agency who had clarified that he would have to resign from his Graduate contract in order to take up the acting post. The Complainant submitted that he did not agree with this position as it would place him at a disadvantage to other applicants and so he sought clarification directly from LGMA himself, but that he received a similar response. The Complainant submitted that on 3rd December 2019 staff were again notified of the advertising of the same post, this time on a permanent basis and he proceeded to apply for the position, with interviews scheduled to take place on 26th March 2020. In the context that the permanent interviews were imminent the Complainant stated that he advised HR that he had no option but to decline the offer of the acting post. He submitted that he received the formal written offer on 23rd December 2019 and so he formally declined the offer on 3rd January 2020 on the basis of the conditions attaching to the offer. The Complainant submitted that the interviews for the permanent position were then delayed due to Covid 19 and that, what was originally expected to be a short-term acting of 3-4months remained in place for a much longer period of time. The Complainant submitted that he had been unfairly treated by his employer as the Respondent changed the conditions regarding the treatment of candidates after the recruitment process had been completed and that this effectively made a distinction between him and all other candidates who were members of the permanent staff. In this submission, the Complainant pointed out that none of the conditions imposed were contained in the advertisement for the acting post, the description of his role, the local authority acting policy or his contract of employment and that action was only taken following the intervention of the union. The Complainant submitted that the actions of the Respondent in this regard constituted a breach of the Protection of Employees (Fixed term Work) Act, 2003. |
Summary of Respondent’s Case:
CA – 00036312-001 The Respondent outlined the following sequence of events by way of background to the case: · that the Complainant commenced employment with the Respondent on 25th June 2018 under the Graduate Recruitment Programme, on a Fixed-term contract for 3 years · that on 12th November 2019 a confined competition was held for the position of Acting Staff officer and the Complainant came first on the panel for the competition. The Complainant was offered the post but declined and the post was subsequently offered to the candidate who finished 2nd on the panel, who took up the offer · that a further confined competition was advertised with a closing date of 17th December 2019 for 2 newly sanctioned permanent Staff Officer vacancies. · That it is normal recruitment practice that for newly created posts, confined competitions are held for appointment to those posts and any further posts would result in a new competition and panel for appointment to those further posts. · That due to Covid restrictions interviews for the competition took place in late June/early July and a panel was formed with the Complainant coming 3rd on the panel. The two permanent vacancies were offered and accepted by the candidates who had been placed 1st and 2nd on the panel. The panel was then expired for any further permanent vacancies and remained in use for any further acting appointments that arose within the lifetime of the panel. · That on 22nd May 2020 the Complainant submitted a grievance on the matter and following the examination of the grievance it was not upheld. The decision was appealed on 6th July 2020 and again was not upheld. The Respondent submitted that this complaint was lodged on 22nd January 2021 and that therefore the cognisable period of the complaint is 23rd August 2020 to 22nd January 2021. The Respondent asserted that the Complainant’s allegations relate to 2019 and early 2020 and that any issues raised under the Protection of Employees (Fixed term Work) Act before 23rd August 2020 are out of time as per Section 14(3) of the Act. Additionally, and as set out under Preliminary Issues above the Respondent submitted that the Complainant does not have standing to pursue a claim under the Act based on Section 2(1). The Respondent further submitted that the Complainant was recruited as part of the Local Government Graduate Recruitment Initiative and was placed on the Local Authority Sector specific graduate programme, undertaking an industry recognised training course as per his contract of employment. In these circumstances, the Respondent contended that the Complainant was not a fixed term employee as defined in the Act and accordingly the Act did not apply to him and the Adjudication Officer could not hear the case. In the alternative, and without prejudice to the above position, the Respondent submitted the following: · That the start of the issues raised by the Complainant began with the Acting competition held in November 2019, where the Complainant was placed 1st on the panel and was offered the post but declined, with the post subsequently being offered and accepted by the candidate who was placed 2nd on the panel. · That this post was a short-term acting post, pending the return of another employee on career break. The employee continued on career break until they eventually resigned their post on 21st January 2021. It is the normal and accepted practice in the Respondent employ that employees who are appointed into acting posts remain in that post until the period of acting ends and that it is not normal or accepted practice to return acting appointments to their substantive posts due to subsequent competitions occurring after their acting appointments. · That following the competition in relation to acting post in November 2019, the Respondent had 2 new permanent vacancies which were advertised through confined competition in December 2019 and which the Complainant was placed 3rd on the panel. The 2 vacancies were offered to and accepted by the candidates who were placed 1st and 2nd on the panel. This panel was then expired for further permanent posts but remained in place for any further Acting posts that arose during its’ lifetime (but not to fill acting posts that were already filled previously). The Respondent submitted that the Complainant was not disadvantaged in relation to the competition for the acting post, that his application had been accepted, he had been shortlisted for interview and ultimately had been placed No 1 on the panel for the position. The Respondent submitted that following enquiry from the union clarity had been sought in relation to the contractual implications of the acting arrangement with the Local Government Management Agency who had confirmed that the Complainant could not hold both contracts at once, confirming that he would have to resign from the Graduate contract in order to take up the acting appointment. The Respondent submitted that this was clarified to the Complainant verbally by HR and followed up by a formal offer setting out those same details. The Respondent submitted that the Complainant, based on all the available information declined to accept the offer of the acting post. |
Findings and Conclusions:
CA – 00036312-001 Preliminary Issue I noted that the Respondent considered the issue to be out of time on the basis that the cognisable period of the complaint was 23rd August 2020 to 22nd January 2021 and that the competition which gave rise to the complaint took place in November 2019, with subsequent competitions taking place in December 2019. I noted that Section 14(3) of the Protection of Employees Fixed term Work Act states that and Adjudication Officer “shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of contravention to which the complaint relates.” I noted further that Section 14(4) provided for an adjudication officer to extend that period to not later than 12 months where the Adjudication Officer was satisfied that the “failure to present the complaint within that period was due to reasonable cause.” Having reviewed the very detailed submissions provided by both parties and from the evidence adduced at hearing I noted the following sequence of events: · That the Acting Staff Officer position was advertised on the basis that the duration of the acting arrangement was until the post was filled on a permanent basis · November/December 2019 – the Complainant was successful at interview for an Acting Staff Officer position in Finance (new post) · 17th December 2019 – the Complainant applied for a permanent Staff Officer posts (one of which was the permanent filling of the above new post) · 23rd December 2019 – the Complainant received the offer of the Acting position with the condition that he was required to resign from his Graduate contract in order to take up the acting post. · 3rd January 2020 – the Complainant declined the offer · Interviews for the permanent position which were scheduled for March 2020 were deferred to June/July 2020 due to Covid 19. · 22nd May 2020 – The Complainant initiated a grievance in relation to the Acting appointment · July/August 2020 - The Complainant was panelled number 3 in that competition; · July/August 2020 - no’s 1 and 2 from the panel were appointed to the permanent positions · 21st July 2020 – the final outcome of the internal Grievance Procedure issued · 22nd January 2021 - the Complainant submitted his complaint to the WRC. I noted that based on the date of submission of this complaint the cognisable period of the complaint is 23rd August 2020 to 22nd January 2021. On the basis that the competition which gave rise to the complaint took place in November/December 2019, that indeed the internal grievance procedure in relation to the matter concluded on 21st July 2020 and on the basis that no explanation was provided that would explain the delay in submitting the complaint I find that this complaint is out of time. |
Decision:
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.
CA – 00036312-001 I have found that this complaint was out of time and therefore it is my decision that the complaint is not well founded. |
Dated: October 6th 2022
Workplace Relations Commission Adjudication Officer: Patricia Owens
Key Words:
Fixed term work; graduate programme |