Complainant

Respondent

Parties

Linda  O'Regan

Health Service Executive(  HSE South)

Representatives

 The Complainant appeared in person on the first day of hearing. She was accompanied by a friend as support on 13 March 2023.  

Maria Daly, Employee Relations Manager

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-00052765-001

08/09/2022

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

CA-00052765-002

08/09/2022

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

CA-00052765-003

08/09/2022

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

CA-00052765-004

08/09/2022

On September 8, 2022, the Complainant, a Lay Litigant, submitted 4 complaints under the Protection of Employees (Fixed Term Work) Act, 2003 to the WRC.

It is an important consideration in both the context and background in this case that I reflect that both parties approach this case following a number of past cases at Rights Commissioner Service and Labour Court and the case is set against an extended period of absence through illness on the complainant’s part since April 2004.

The Complainant has endeavoured to return to work but has raised concerns regarding not being classified as “permanent “worker in possession of a specifically titled contract of indefinite duration. The issue at the center of this case is the contention by the Complainant that she has been overlooked for a permanent appointment as a Band 3 Multitask Attendant. This has been disputed by the Respondent.

The complaints received on September 8, 2022:

CA-00052765-001   My employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and the failure to offer a contract of indefinite duration.

CA-00052765-002 My employer has contravened the legal provisions in relation to the number of successive fixed term contracts that can be issued to me.

CA-00052765-003 My employer failed to inform me (a fixed term employee) of opportunities for a permanent employment or appropriate training opportunities.

CA-00052765-004 My employer failed to provide to employees representative s information about fixed term work.

On the first day of hearing, the complainant sought to augment the complaint to include a complaint on less favourable treatment in accordance with the Protection   of Employees (Fixed Term Work) Act, 2003. This was contested by the Respondent in the case.

 I have not accepted the request to augment the complaint. The Complainant had introduced her case as having Trade Union input at the outset. This changed later in the case, when the complainant introduced herself as a lay litigant.

 Earlier Complaints raised in ADJ 35664 under Part time Legislation in October 2021 were withdrawn by the complainant at hearing on 5 December 2022.

This case was originally scheduled to proceed on October 3, 2022. However, I was on sick leave on that day and sought an early resumption   in the case.

At the outset of the hearing, I addressed the Parties on my previous tenure as a Union Official for INMO where I had represented Nurses at the Residential Setting and asked if either party had any objection to my continuing in the case? The Complainant first responded that she did object to my continuing and then clarified that she had not heard me when I explained that I had represented Nurses and no other grades. She withdrew the objection and the case proceeded with both parties’ acceptance of my role as Adjudicator in the case.

The Complainant submitted her outline submission in the case on 27 September 2022. She made a number of subsequent written submissions.

The Respondent operates the Irish Public Health Service in the South of Ireland and is represented by their Employee Relations Manager, Ms. Maria Daly. The Respondent filed their outline submission in the case on 29 September 2022.

The Respondent introduced a Preliminary Issue regarding Statutory time limits.  

I met with both parties at hearing on December 5, 2022. On this occasion, the Complainant presented in person. The Respondent attended in the company of an Employee Relations Manager and Director of Nursing at the Centre.

I listened carefully to both parties.

The Complainant gave evidence under oath. The Respondent did not offer witnesses and made their case by submission.

Dear Ms O ‘Regan,

I write in follow up to the hearing held in the above matter on December 5 last. ADJ 35664 was withdrawn on that day.

At hearing, I heard both parties on the preliminary and substantive issues in the case.

However, during the course of the hearing, I paused the process on two occasions to speak informally to the parties to seek to explore the relevance and/or applicability of LCR 22336 dated 5 January 2021 to this case.

I am mindful that you are presenting your own case as a Lay Litigant.

I explained that this is a Superior Court Recommendation and I wished to gauge the Parties positions on whether the Recommendation had been successfully implemented.

I learned that it had been accepted by both parties but was no mutual agreement on implementation had followed as yet.

In light of the overlap of facts in both cases and the Labour Court Recommendation arriving first in time. I have recorded that the Respondent has made a formal request to engage with you on the terms of LCR 22336. I have recorded your acceptance to engage in this process.

I agreed to hold on issuing my decision in ADJ 40269 until I hear from you on or before January 16, 2023.

This pause is to allow the parties space to engage in the first in time Labour Court Recommendation and is without prejudice to the completion of my decision.

I wished the Parties well in their discussions and advised that if mutual agreement on the resolution is reached, I would respectfully request that you communicate a withdrawal of this complaint, ADJ 40269 before the WRC.

I will copy this letter to Ms Daly for her file.

I have requested sight of the letter relied on at hearing from January 2005. I have since located the June 2019 letter in the Respondent submission at appendix 19.

I wish both parties a Happy Christmas.

I have included this text in full to explain the trajectory of this case.

The Parties were unable to reach agreement on the implementation of LCR 22336. I gave the parties an extension of time and wrote to the parties on February 7, 2023.

On this day, I set out an issue paper to accompany the planned resumption in hearing.

I have allowed time and extended that time in deference to the Labour Court and the parties now presenting before me.

LCR  22336, issued by the Chair of the Labour Court, is an extremely prescriptive and directional recommendation and it has been in the ownership of both parties since   6 January 2021. It is regrettable that the parties cannot agree on implementation.

It is time for me now to press on in my own case and work towards a decision.

The Issues between the parties stand at

Locus Standi / Legal standing on which to run the case.

To date, the HSE has relied on submissions that the Complainant is a permanent employee by operation of law. I have not seen any corresponding documentation in support of that view. instead, I have been given a reference to that process.

The Complainant has maintained a position that she is a temporary worker and has come to the WRC in September 2022 seeking the protection of the Act. Her case to date has reflected the absence of a contract of employment of any duration.

The contents of the letter dated 12 June 2019 are disputed.

Time Limits under Section 41(6) of the Workplace Relations Act, 2015

The Respondent has submitted the complaints are out of time and cannot be saved by an extension of Section 41(8) Workplace Relations Act, 2015.

The Complainant has submitted that she was reassigned to another grade, which does not tally with her job description, and she cannot accept this. She has submitted that the Act has been in continuous contravention since 21 March 2004 in her case.

The Complainant has not been paid from January 2005 and receives a disability payment.

In order for me to make a decision in this case. I will now invite the parties back to address the following outstanding matters.

As you will both recall, the Complainant under cross examination under oath expressed her desire to return to work.

At that point, the HSE asked for time to explore options to reach that point. The Complainant agreed to attend with a support person.

I will now resume the hearing and allow Ms Daly to conclude her cross examination and provide any witnesses to the hearing.

The Complainant will retain the right to cross examine those witnesses.

The Complainant is welcome to introduce any relevant witness in the case.

I will address both parties on whatever clarifications I need following that process.

Both parties will then be invited to make closing statements, inclusive on any case law or legal points.

We have already discussed some of the legal cases. I am open to hearing more.

I would invite submissions during the resumed hearing on

Waterford City Council and Andrew Kennedy FTD 1235(enc)

Blackrock College and Valerie Coyle FTD 222(enc)

Board of Management Malahide Community school and Dawn Conaty; 2019, IEHC 486 (discussed on first day of hearing)

I would also be grateful to receive any relevant and recent occupational health reports from either party.

I would also request DSP records on payment of disability linked to an employment status.

I ask for these to probe the nature of the employment understood 2004 -2022.

I will then conclude the hearing and move to decision in due course.

I will now approach the scheduling office to arrange another hearing slot in the very near future.

I look forward to welcoming the parties back to hearing.

 The parties returned to hearing on 13 March 2023.

I had hoped to have this decision concluded earlier. I apologise for the delay.

The complainant had outlined a brief historical backdrop to the case on her complaint form. She described her role as a Lay Litigant and required all correspondence to be forwarded to her. An earlier association with a Union had ceased in July 2022.

The Complainant introduced herself as a Temporary Attendant (Carers duties and Housekeeping).

The Complainant described that she had commenced work with the Respondent in a local Centre which cared for clients with disabilities on 16 May 2000.

The normal range of scope of duties permitted to a temporary attendant role    at that time rested between kitchen, dining hall and laundry. However, six weeks into her temporary service, she was rostered to ward work, which was met by surprise and disbelief by her colleagues.

She continued in this vein across Residential and Community, in receipt of an escalated acting allowance, albeit not in a specific substantive post from 2001   to 21 March 2004.

The Complainants issue as stated on the complaint form is that she had not been afforded the opportunity to be made permanent in her “legal job description “. This was a confusing statement as the Complainant had led with the overarching backdrop to her employment as lacking in a contract of employment or statement of terms and conditions.

The Complainant made an overall disapproving commentary on the Industrial Relations climate at the Centre when mixed messages had issued from both Union and Management on access to “a contract of indefinite duration “following the enactment of the Protection of Employees (Fixed Term Work) Act, 2003. She wrote that her name had been added to a conversion panel alongside 11 others for the position of “permanent domestic grade attendant “and she stated that she was at risk of losing her job if she did not accept that role. It was the Complainant case that she was forced into this position.

 The Complainant described earlier competitions for this grade 2000-2002, where she had not applied. She outlined she wished to remain in her “working grade of MTA” It was the complainant case that she sought conversion to permanency in this grade and was refused.

The Complainant made her written outline submission on 27 September 2022.

Evidence of Complainant at hearing:

The Complainant commenced work as a Temporary Attendant at St Raphael’s Centre on 16 May 2000. She began work at Kitchen Hall and Laundry before moving to ward work as a junior for a 4-year period. She submitted that she had not been provided with any contract of employment.

Around Christmas, 2003, the Union of which the complainant was a member, announced that permanent positions in the grade of Domestic Grade 1 by conversion were in the pipeline for the most senior tenured attendants. The Complainant understood from her inquiries that if she did not accept this that she would lose her job.

She told the hearing that she made inquiries from the then Director of Nursing and was told that “letters were on the way and contracts drawn up “

The Complainant contended that the Respondent had sought to force a new job description on her, to which she was not amenable.

She was opposed to a conditional return to work.  The Complainant was actively seeking to resume work.

The Complainants response to the preliminary issue:

The Complainant rejected the argument on time limits and submitted that she was relying on a continuous breach in the legislation from July 2003 in support of her claims.

On 18 June 2004, the Complainant had a workplace accident and has not returned to the workplace. The Complainant confirmed that she had resolved a personal injuries case in her favour, details of which were shared in submissions.

The Complainant acknowledged that she had pursued two cases under the former Rights Commissioner Service Adjudication and Labour Court.

The Complainant understood that she had secured positive outcomes at all fora and had come to the WRC in this case to secure a permanent appointment on her correct job description of Multitask Attendant Grade 3.

It was the complainant case that the Respondent had deliberately misclassified her job description, and this had been injurious to her in securing her much sought after permanent contract. she had received her last payment in January 2005.

During cross examination, the complainant confirmed that her outline submissions mirrored her earlier cases taken under the Industrial Relations Act. She reaffirmed that she was not prepared to take up domestic duties. The Complainant argued that she had been poorly treated in her compulsory redeployment at the Centre, which in turn was the obstacle to her accepting appointment.

The Complainant did not accept that her original post had been subject to change over the 18 years of absence.

Ms. Daly sought to secure the complainants focus on a real time opportunity to engage in a return to work, when she spoke to her directly in that vein.

Ms. Daly offered to have a local engagement with the Complainant on the topic of the LCR 22336 and the Complainant agreed.

Ms. Daly recommenced cross examination on 13 March 2023

The Respondent submitted that the instant complaints were out of time. Ms. Daly for the Respondent outlined that the complainant had not been available for work since 2004, when she experienced a workplace incident which culminated in a Personal Injuries Action settled in the complaints favour.

 The Respondent case that the Complainant was “already permanent “and was being recorded as having “an inactive employment record “. Ms. Daly submitted that the complaints were significantly out of time and while no argument had been advanced to cover a reasonable cause extension, this would not cure the time deficiency.

The   complainant then raised what went on to become the point of most difference between the parties, when she stated that the job description being offered to her “is not my description “She denied having “permanency “and sought access to being classified as “a continuous breach of the fixed term workers acts from July 2003.  She stated that she had not been paid by the respondent after January 2005.

The Complainant had offered summaries to the case law placed before her on the issue paper but confirmed that she did not recognise any application to the facts of the instant case.

In closing remarks, the Complainant denied being permanent by operation of law. She contended that her Employer was not entitled to disturb her pre-existing job description and she was completely opposed to this approach. She contended that she had experienced a continuous breach of the Act since 14 July 2003 and sought an order of permanency i.e., a contract of indefinite duration.

The Complainant wants to be a permanent worker but has not been offered care duties as requested.

The Complainant confirmed the IR processes of 2005 and 2009 and LCR 22336 from January 2021 and sought a decision in her favour.

CA-00052765-001    written statement

CA-00052765-002 successive fixed term contracts

CA-00052765-003 opportunities for permanency

Ca-00052765-004 Information to Employee Representative

The Respondent operates the Public Health Service in the South of Ireland and has rejected the claims.

In reading the prepared submission for hearing, Ms Daly for the Respondent raised a Preliminary Issue of Statutory Time Limits

Preliminary Issue:

The Respondent submitted that the complaints lodged were submitted outside the statutory time frame of Section 41(6) of the Workplace Relations Act, 2015. In relying on Cementation Skanska v Carroll in DWT 0338 before the Labour Court, Ms Daly submitted that the complainant had been on sick leave and no argument under either Section 41(6) or 41(8) of the Workplace Relations Act, 2003 could save the claims. They were manifestly out of time.

The Respondent also relied on Muirosa Foundation v Christina Humphreys FTD 221 in support of the argument.

The Respondent sought that the case fall on non-adherence to statutory time frames.

Substantive Issue:

CA-00052765-001    written statement

CA-00052765-002 successive fixed term contracts

CA-00052765-003 opportunities for permanency

Ca-00052765-004 Information to Employee Representative

It was common case that the Complainant commenced work as a Temporary Attendant in April 2000. The Respondent identified that date as 30 April 2000.

The Respondent outlined that the duties in Group 1 Attendant were reclassified as Band 4, Support Services by means of a National HSE/ Union Agreement in June 2005.

Job Profile and Job Specification for Domestic Staff was submitted.

The Complainant has not been present in the workplace since the date of her injury on 18 June 2004.

The Respondent has endeavoured to engage with the complainant seeking her return to work, but this has not yielded progress.

During the complainant’s absence, the Centre sought interest in promotional opportunities for Healthcare Assistant posts. These positions were advertised nationally but did not attract an application from the complainant.

By June 2005, the Respondent wrote to the complainant seeking administrative documents to advance her conversion to permanency. she did not respond.

A Settlement in the Personal Injuries case was concluded in 2009. The Respondent understood as the complainant was deemed medically unfit for a return to her role at the Centre and a loss of earnings component had been incorporated in the settlement, that the complainant would not be returning.

The Respondent recalled that the parties had attended a rights Commissioner hearing in 2005 which concluded with an informal next step approach. The Respondent exhibited the submissions from both parties at this time which did not include a cause of action under the instant legislation.

The Respondent outlined that the Centre has undergone major change programme during the time of the complainant’s absence. Posts such as the Complainants have been reconfigured. Specific training is now necessary to assume a Care Assistant position.

During 2019 and 2019, the Respondent engaged in a scoping out exercise aimed at getting the complainant back to work.

The Respondent exhibited several inter party correspondence with the Complainants Union at that time, culminating in a letter dated 12 June 2019 from the Complainant herself.

“Following last Fridays meeting with the above individuals, I have considered the various options put forward by yourself and have some concerns re same. I am anxious to return to work as an Attendant but as my job description is not available at this time, I would consider your offer of a position of Attendant until such time as my own job description of attendant becomes available ……”

The matter went forward to third party and in January 2021, the Labour Court issued an IR Recommendation LCR 22336

I think it important to the integrity of the case that I record this Decision in full.

DECISION:The Court has given very careful consideration to the extensive written submissions of the parties and to their oral submissions made at the hearing of the court.

The Court has been assured by the Claimant that she wishes to return to work and has been assured by the Respondent that it wishes the Claimant to return to work.

Both parties accepted before the Court that the Claimant’s return to work must be to a job which actually exists and for which the Claimant is qualified. In that context the Respondent has identified the following as options available to Claimant to achieve a return to work:

• •A carer role with support from the Respondent to undertake training to achieve the required Fetac Level 5 qualification

•A housekeeping role

•An attendant grade role in Youghal Community Hospital

•An assignment to Day Services

The Respondent has confirmed that if the Claimant chooses one of these options, then she would be facilitated with a direct take up of such a role rather than having her take up any other role first.

The Respondent also confirmed that it would be agreeable to engage with the Claimant so as to explore all options in terms of existing job roles in which the Claimant is qualified and could be accommodated.

The Claimant, at the hearing of the Court, agreed that the approach set out by the Respondent seemed reasonable.

In all of the circumstances, the Court recommends that the Claimant should agree to take up one of the options identified by the Respondent or to engage in a solution-based discussion with the Respondent which would realistically focus only on real roles which actually exist, and which would be available for the Claimant to take up. While the Court recognises that this level of facilitation is highly unusual in any employment, it is clear that the dispute before the Court is unusual in itself and justifies an unusual approach. That engagement, if required, will result in the Claimant being able to take up the best available option for a return to her employment.

The Court so decides.

The Respondent submitted that they were committed to working with the Complainant to secure her return to work, but she had not demonstrated a commitment to this negotiation. Instead, she had placed some blocks on the process by setting down a pre-determined outcome that she would be accommodated back in the role she vacated through sick leave in 2004. The Respondent declared that this was simply impossible.

The Respondent contended that the Centre has gone through an elaborate regulatory and governance change since that date and this outcome was simply not achievable. The Respondent exhibited elaborate job descriptions for the positions currently available to the complainant.

When requested to address the February 2023 Issue Paper, the Respondent re-affirmed the statutory time limits argument on which the case opened. The Respondent argued the direct application of Coyle the facts of the instant case.

The Respondent submitted in a strident manner that the Complainant was deemed a permanent employee by operation of law, notwithstanding the frailties in the case surrounding the lack of visible supporting contractual documents, and her lack of response or engagement with previous attempts to resolve this issue for her.

The Respondent wanted the WRC to know that it had now exhausted all offers to engage in good faith and wished it known that they had tried in good faith to welcome the complainant back to work, but they believed she was mistaken in her interpretation of the law.

In conclusion, the Respondent communicated a clear disappointment that the complainant had not acceded to their invitation that she returns to work.

They restated that the complainant was out of time. Ms Daly also submitted that the Respondent had reached out to the complainant inviting her to submit administrative documents necessary to process her permanency in June 2005, but this invitation was not responded to.

The Respondent concluded that the Complainant has not been passed fit for work by Occupational Health Department. The Respondent held the view that the Personal Injuries settlement had included an enhanced component on loss of earnings.

The Respondent communicated that they had extended multiple hours at multiple fora with this complainant and to the employer at least a scenario of res adjudicata was occurring across the Industrial Relations and Employment Rights landscape with Ms OReagan. The Respondent communicated a certain exhaustion on the topic and communicated a belief that they were not being heard by the complainant in the case in relation to the offers made in good faith to return her to the workforce.

The Respondent concluded that they could not put the matter further and would await a decision in the case.

I have been requested to reach a decision in the above four complaints. In arriving at those decisions, I have listened carefully to each of the parties. I have had regard for the written submissions and the evidence adduced by the Complainant. I have also considered the oral and written submissions of the Respondent.

I am an Adjudicator appointed to hear this case under Section 40 of the Workplace Relations Act, 2015,  independent of those bodies who have previously been involved in the events of the complainants employment from April 2000.

 Section 40(8) An adjudication officer shall be independent in the performance of his or her functions.

This is the first occasion that the Complainant has submitted a complaint to the WRC in respect of the presiding legislation of Protection of Employees (Fixed Term Work) Act, 2003.

The Complainant has approached this case seeking to secure a contract of indefinite duration.

The Respondent has rejected the claim and has submitted that the Complainant is recognised by the Employer as having a contract of indefinite duration by operation of law. They have balanced that response by a further declaration that efforts to advance the transition to a contract of indefinite duration were obstructed when the complainant did not engage in requests for associative administrative documents in 2005 and her name was removed from an internal panel.  They have put that forward as a defence to the absence of a material contract of indefinite duration.

They went further in stating that the parallel proceeding surrounding the personal injury claim created a distance between the parties as the respondent understood that a comprehensive provision had been made for loss of earnings in the settlement. The Respondent said that they did not have a fitness to resume work certification from the Occupational Health Dept.

The Respondent has raised a preliminary issue on time limits in this case, which has been opposed by the Complainant, who has relied on a contention on the presence of a subsisting breach argument from 14 July 2003, the date of implementation of the legislation.

Locus Standi:

I have identified a more pressing matter of locus standi as a preliminary issue and I have shared my concerns on this important foothold with the parties at hearing. I also outlined it in the Issue paper of February 2023 and sought responses.  I referenced relevant case law for comment.

The Complainant is strident in her submission that she remains a temporary multitask attendant. She has correctly argued that she has not been provided with any contract from 2000 onwards or at all. She gave evidence of a high level of confusion surrounding the approach adopted by the Respondent in relation to the transitionary arrangements for accessing contracts of indefinite duration under the Act, 2003 -2004. The Complainant submitted that she was being forced to surrender her multitask attendant position in return for permanency. The Respondent pointed to a more objective process outlined in letters exhibited from 2005 which reflected the complainant ringing the Head Quarters of HSE herself and receiving a follow-on letter from Human Resources seeking documentation.

It is important that I comment on the extended time frame 2004-2017, where the complainant was deemed inactive on the employer’s workforce. During this time, she concluded a Personal Injuries case, in 2009, which the Respondent, in good faith presumed did not provide for a return to work.

The Complainant has been attempting to return to work from 2017. In support of this she believes that she has the authority of a previous third-party recommendation. I inquired, but neither party had this written authority.

In a sense, there is an analogy to the mythical Oisins return from Tír na Nóg, to the Emerald Isle, which had changed utterly in the 300-year interim.  The Respondent employment locations have also undergone change.

It is clear to me that the complainant carries a high level of upset following her earlier experiences at the Centre. I find that she had not embraced the real time concerted efforts of the Respondent to accommodate her safe return to work. I observed the genuine invitation extended by the Respondent in this regard. I tried to give the parties protected time to resolve this issue, particularly in the shadow of the LCR2236, outstanding.

I have reflected on the evidence and oral submissions in this case. I have considered the 2005 correspondence where the Respondent sought the return of documents to advance conversion to permanency. I am also influenced by the Respondent letter dated January 17, 2005

“… It is noted that both staff have claimed that their job descriptions were changed without negotiation or discussion. Firstly, we would like to clarify that the change to both of their posts was a conversion to permanency that came about due to their eligibility under the Protection of Employees (Fixed Term Work) Act, 2003 “

This for me, while not capable of being probed at hearing, was an illustration of a record of action to convert to permanent appointment in 2004.

I understand that the status of this letter was to inform the first Rights commissioner case in 2005.

The Protection of Employees (Fixed Term Work) Act, 2003 is an Act to provide for the implementation of Directive No 1999/70/EC of 28 June 1999

Scope (clause 2)

1.       This agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each member state.

It is not disputed that the complainant had an employment relationship with the Respondent from April 2000. The parties are not at one on the actual date. The Complainant said 14 April and Respondent 30 April. The employment relationship is still live as neither party has brought it to an end by resignation or termination.

The employment relationship has been home to a now 19-year absence through illness.

Both parties have told me they wish to interrupt this by an agreed return to work.

The Labour Court is on record as making a strong Recommendation to that effect in January 2021. This Recommendation under the IR Act remains in the domain of the parties. I allowed a brief recess to both parties to action this insightful recommendation, but this was not successful.

Section 1(3) provides that.

(3) A word or expression that is used in this Act and is also used in the Framework Agreement has, unless the contrary intention appears, the same meaning in this Act as it has in the Framework Agreement.

I am satisfied that the complainant is an employee for the purposes of the Act. I am satisfied that the Respondent is her employer for the purposes of the Act.

It is my honest opinion, based on a careful listening exercise, that the complainant mistook just who held the authority to action her seamless transition to a contract of indefinite duration in accordance with Section 9(1) of the Act.

I believe that the complainant “is stuck “in that mistake and is finding it very difficult to move forward in the case. She has shared at hearing that in her opinion, governance issue was less than ideal at the centre in 2004 and she explained honestly that she got lost in that process to the point where her recollections are heavily personalised and are serving to hold her back.

The Centre is now managed by a new Lead Manager and the submissions demonstrate that she has endeavoured to welcome the complainant back into a real time post.

In order to advance a claim under the Act, I must be satisfied that the complainant is actually a fixed term worker as provided for in Section 1 of the Act. Board of Management, Malahide Community School and Dawn Marie Conaty [2019] IEHC 486, applied.

“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.

“Framework Agreement” means the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the European Communities;1.

I have turned to Section 9 of the Act to guide me in this as these details at S 9(1) the transitionary arrangements which applied once the Act became law in July 2013.

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.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

In this case, I accept that the complainant started work on 14 May 2000 and worked continuously in a number of clinical settings until her injury at work in June 2004. She stated that she was not paid after January 2005.

The law deals with the employment relationship and I have accepted payslips as evidence of that relationship.  I have found that the complainant was employed as a multitask attendant. This role has since been reconfigured by National Agreement to a revised and more favourable banding. In Waterford City Council and Andrew Kennedy FTD 1235, a fixed term case at the Labour Court in October 2012. Chairman, Kevin Duffy, writing for the Court and re-instating Mr Kennedy, the Court engaged in an in-depth review of the passage of Mr Kennedys employment relationship in tandem with the provisions of the Act.

I particularly like the application of Justice Laffoys observations in Minister for Finance v Una McArdle [2007] 18 ELR 165, where Section 9(3) was considered, and I quote:

That section applies to a situation where an employee is given a renewed fixed term contract in contravention of subs (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term to one of indefinite duration.

A major contributor to the confusion in this case is the lack of accompanying documents to the complainant’s employment from May 2000. She had a continuous period of employment.

The respondent helpfully exhibited a modern-day Job specification for Multitask Attendant Grade code 6015. This role has a defined eligibility criterion. It is this “stepped approach of agreeing to additional training “that has caused the complainant to continue to identify herself as a temporary worker.

I believe that in so doing, she has done herself a disservice. It is clear from the volume of correspondence on file that the complainant has identified her interests to upskill on a number of occasions in the past.

It is now time for me to identify shortfalls in the administration surrounding the complainant’s entitlement to transition to a contract of indefinite duration in May 2004. Nobody should have been left behind.

I accept that the Respondent did try to obtain the requisite administrative documents from the complainant, March to June 2005, which she refused to provide, in my view mistakenly and to her detriment. It was the employment relationship that stood to be formalised not the area of work.

At hearing, I asked the complainant is she could draw a reference from the Act which guaranteed permanency in a specific location. She could not.

I have found some application of the facts in the 2010 Labour Court Case of HSE South and Asem Hamdy FTD 1014. Mr Hamdy was a Temporary Consultant Surgeon, in possession 9 temporary contracts before he received notification that his employment was to terminate on permanent appointment through the public appointments commission.

In that case, the Complainant submitted that he held a contract of indefinite duration pursuant to S. 9(3) of the Act and argued against the Respondent being able to rely on objective justification inherent in Section 7 of the Act.

Former Deputy Chair, Brendan Hayes, writing for the Court, held the complainant in the case became entitled to a contract of indefinite duration by operation of law and that he held such a contract at the date of his dismissal by the synapse that occurred from the application of Section 9(3) and Section 9(2) on aggregate service.

In the instant case, I am satisfied that the Complainant had served 4 years by May 14, 2004, and by operation of the transitionary provisions on the law in section 9(1) and Section 9(3) she is deemed to have been in receipt of a contract of indefinite duration by operation of law on that that day. The administrative lag, that followed cannot be found to diminish this absolute right under the transitionary arrangements in law.

I must, therefore, find for the Respondent on this preliminary issue of locus standi.

 I have found that the complainant was deemed to be an employee in possession of a contract of indefinite duration ( and not a fixed term worker ) in the position of Multitask Attendant (as referenced in the letter dated April 4,2000) and pay slips exhibited.

“Thank you for attending for interview for the post of Attendant, St Raphael’s Centre …… You have been placed on a temporary panel “

By operation of law SS 9(1) and 9(3) refers, the Complainant is a worker in possession of a contract of indefinite duration from 14 May 2004.

I am strengthened in my view of this when I draw from Deputy Chair Alan Haugh, BL decision in the case of Valerie Coyle and Blackrock College FTD 222 in July 2022 when he outlined a transition to a contract of indefinite duration in 2004.

The Act was signed into law by the President on 14 July 2003. It does not contain a commencement provision and is, therefore, deemed to have been commenced at midnight prior to the President signing it. Section 9(5) provides that “[t]he First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous”. Having regard to the First Schedule to the 1973 Act, there can be no doubt but the Complainant’s service, on a series of fixed-term contracts with the Respondent since 1984, brought her within the parameters of section 9(1), upon the commencement of the Act. It follows, therefore, that the Respondent could only lawfully issue the Complainant thereafter with one further fixed-term contract of employment “for a fixed term of no longer than one year” (unless the Respondent could rely on objective grounds for a further renewal on a fixed-term basis as provided for in section 9(4)).The Respondent did issue the Complainant with a further fixed-term contract after the passing of the Act for the period 1 September 2003 to 4 June 2004. The Complainant continued in the Respondent’s employment after 1 September 2004. Having regard to section 9(1), and in the absence of any invocation by the Respondent of section 9(4), it follows that by operation of law that the Complainant acquired a contract of indefinite duration that took effect on 1 September 2004. It was not necessary for either the Complainant or the Respondent to take any particular action in order for this entitlement on the part of the Complainant to crystallize. As it happens, the Respondent did issue the Complainant with a written contract of employment with a commencement date of 30 August 2004. That contract does not contain an end date (save that it provides for a normal retirement age). It is the Respondent’s position that this written contract was confirmation of its acceptance that the Complainant had, at that time, acquired contract of indefinite duration status by virtue of the operation of the Act. 

There are some overlaps in the chronological order of both that case and the instant case.

I appreciate that the events in the complainant’s case occurred many years before the Supreme Court considered the facts of Maurice Powers acting up tenure in April 2022. Maurice Power v HSE at the Supreme Court, 2022

I find that the complainant does not have the standing of a fixed term worker necessary to advance this case under the chosen Act.

The next arguments on time limits and the substantive case are now moot. It is of note that Coyle ruled that the submitted complaints were out of time.

The claims advanced under the Protection of Employees (Fixed Term Work) Act 2003 are not well founded as the complainant is deemed in law to have secured a contract of indefinite duration.

 CA-00052765-001    written statement

The Complainant does not possess the legal standing (locus Standi) to prosecute this case. Her claim is not well founded. The Complainant has a contract of indefinite duration by operation of SS 9(1) and 9(3) of the Act.

CA-00052765-002 successive fixed term contracts

The Complainant does not possess the legal standing (locus Standi) to prosecute this case. Her claim is not well founded. The Complainant has a contract of indefinite duration by operation of SS 9(1) and 9(3) of the Act.

CA-00052765-003 opportunities for permanency

The Complainant does not possess the legal standing (locus Standi) to prosecute this case. Her claim is not well founded. The Complainant has a contract of indefinite duration by operation of SS 9(1) and 9(3) of the Act.

Ca-00052765-004 Information to Employee Representative

The Complainant does not possess the legal standing (locus Standi) to prosecute this case. Her claim is not well founded. The Complainant has a contract of indefinite duration by operation of SS 9(1) and 9(3) of the Act.

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

Section 14 of the Protection of Employees (Fixed Term Work), Act, 2003, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.

I have found that the complainant has held a contract of indefinite duration by operation of law since May 14, 2004.

The claims are not well founded.

CA-00052765-001    written statement

The Complainant does not possess the legal standing (locus Standi) to prosecute this case. Her claim is not well founded. The Complainant has a contract of indefinite duration by operation of SS 9(1) and 9(3) of the Act.

CA-00052765-002 successive fixed term contracts

The Complainant does not possess the legal standing (locus Standi) to prosecute this case. Her claim is not well founded. The Complainant has a contract of indefinite duration by operation of SS 9(1) and 9(3) of the Act.

CA-00052765-003 opportunities for permanency

The Complainant does not possess the legal standing (locus Standi) to prosecute this case. Her claim is not well founded. The Complainant has a contract of indefinite duration by operation of SS 9(1) and 9(3) of the Act.

CA-00052765-004 Information to Employee Representative

The Complainant does not possess the legal standing (locus Standi) to prosecute this case. Her claim is not well founded. The Complainant has a contract of indefinite duration by operation of SS 9(1) and 9(3) of the Act.

I would encourage the parties to return to discussions on finalising the complainants return to work date .