Complainant

Respondent

Parties

Cormac  Mc Guinness

The Courts Service

Representatives

Represented by Cliona Kimber SC, instructed by  Byrne Wallace

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-00055911-001

05/04/2022

The complainant states that he was employed as a Judicial Assistant by the respondent on a fixed-term 3 year contract of employment. The commencement date of same was 22 January 2018 and end date was 15 January 2021. The complainant states that a contract of indefinite duration has never been claimed and is not relevant in the within case.

The complainant states that he became aware through casual staff conversation that interviews were to take place on 21 December 2020 for the position of Temporary Judicial Assistant which was the job for which the complainant was employed at that time and was fully educated into. The complainant states that he formally applied on 11 December 2020 for inclusion as a candidate for interview on 21 December 2020. The complainant states that his application to be admitted to the panel for interview was not acknowledged prior to interview date. The complainant states that an undated letter was issued by the Personnel Officer stating: “It is not possible for appointments to be made other than through a competition”.  The complainant asserts that this statement does not comply with the Protection of Employees (Fixed-Term Work) Act 2003 particularly with regard to section 9(4).

The complainant states that he was informed by the respondent by way of letter dated 2 December 2021; “applicants were interviewed for the position of Judicial Assistant based in Limerick but none were deemed suitable”… “recruitment to the civil service is provided for in the Public Service Management (Recruitment and Appointments) Acts 2004 and 2013 and states all appointments must be run in compliance with the Code of Practice for Appointment to Positions in the Civil Service and Public Service prepared by the Commission for Public Service Appointments (CPSA)”

The complainant states that section 9(4) of the Protection of Employees (Fixed-Term Work) Act 2003 supersedes the Public Service Management (Recruitment and Appointments) Acts 2004 and 2013 given the primacy of EU law over national/domestic law. The complainant states that it is on this basis that he lodged his claim with the WRC in the belief that a further new Temporary 3 year work contract as a Temporary Judicial Assistant with the respondent with no implication of permanency should have resulted had the complainant’s application for interview been accepted, the objective grounds being “as none of the other candidates interviewed were deemed suitable”.    The complainant cites the case of Maurice Power v Health Service Executive [2021] IEHC in support of his case.

The complainant acknowledges that there is a time limitation period and that he is outside the required time period but stated that this was as a result of delay in receiving replies from the respondent to his correspondence. 

The respondent submits that the complainant asserts in his complaint form and in his submission that the respondent failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and failed to offer a contract of indefinite duration contrary to sections 8 and 9 of the 2003 Act. The respondent states that the WRC does not have jurisdiction to hear the within complaint as the complainant has not lodged his complaint within 12 months of the date of the alleged contravention as required under section 41 of the Workplace Relations Act 2015 which sets out the time limit for the submission of complaints under the 2003 Act. The respondent states that as a consequence, the complainant’s claim is statute barred. The respondent submits that without prejudice to this the complainant has failed to demonstrate that there has been a breach of the 2003 Act and accordingly the complaint is misconceived.

The respondent asserts that if a complaint is not referred within the statutory time period, the WRC has no jurisdiction to hear it, and it cannot be entertained by an Adjudication Officer.  While there is a discretion to entertain a complaint which is submitted after the 6-month period has expired, an Adjudication Officer has no power to extend the time limit beyond 12 months past the statutory date. The respondent states that the relevant provisions are contained in section 41 of the 2015 Act, which states as follows: (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.”

The respondent states that the complainant’s claim is that he was not offered a renewal of a fixed-term contract by being refused admittance to an interview held on the 21 December 2020. In particular, in his submission, he states that by being refused admittance to the interview, the complainant was denied a right to a successive contract of service in accordance with section 9(4) of the protection of employees (Fixed-Term Work) Act 2003. The respondent states that the complainant complains that the statement made by the respondent by letter dated circa 23 December 2020 that “It is not possible for appointments to be made other than through a competition” was contrary to section 9(4) of the 2003 Act. The respondent states that the complainant submitted his complaint to the WRC on the 5 April 2022. The respondent contends that these events occurred over 15 months before the complainant lodged his complaint on 5 April 2022. As the alleged contravention occurred outside the 12-month statutory timeframe within which a complaint can be heard under the 2003 Act, the respondent submits that this complaint is statute barred.

The respondent states that in the complainant’s submission, he acknowledges that there is a time limitation period and that he is outside the required time period. Notwithstanding this, he purports to rely on delay in receiving replies from the respondent to his correspondence. The respondent submits that even if it were possible to extend the time for submission of a complaint beyond 12 months, the reason put forward by the complainant does not establish any reasonable cause for failing to present the complaint. The respondent states that in December 2020 the complainant had all the information he needed to refer any complaint, as the events he alleges contravened the 2003 Act had already occurred. The respondent states that his fixed-term contract came to an end on 15 January 2021. The respondent submits that the complainant was legally qualified and was aware of the law. It states that even if the complainant was not aware of the law, 12 months is the maximum time frame within which the complainant is permitted to lodge a claim under the 2015 Act. The respondent asserts that this is a mandatory provision. It states that the WRC does not have discretion to extend the time beyond the 12-month period, as supported by the decision of the Labour Court in FTC/16/10 which set aside the decision of the Rights Commissioner under section 8 of the 2003 Act as it was submitted outside of the 12 month statutory time limit. The respondent submits that this claim cannot be entertained by the WRC and must be dismissed.

The respondent submits that the complaint referred is fundamentally misconceived. It states that the complainant asserts that the failure to appoint suitable applicants constituted “objective grounds” for offering the complainant a further fixed-term contract and that he was denied a right to a successive contract of service in accordance with section 9(4) of the 2003 Act. The respondent submits that the purpose of the 2003 Act and the Directive is to prevent abuse of fixed-term contracts and to promote permanent secure employment. While employers are permitted to offer fixed-term employment, the purpose of the legislation is to provide that they can only do so under certain constraints. The 2003 Act does not require the provision of a fixed-term contract, in fact it seeks to prevent and restrict the offering of such contracts. In particular, it provides that employers may not offer more than one fixed-term contract and may not renew or offer successive fixed-term contracts, unless it can justify the need to continue employment on a fixed -term basis as opposed to a permanent basis. The respondent states that objective justification only arises therefore where it is relied upon by an employer to offer continued non-permanent employment.

The respondent states that the complainant was not offered a second or successive fixed-term contract, therefore the issue of objective justification does not arise. It states that neither the 2003 Act or the Directive provide any right or entitlement to be offered a successive fixed-term contract. The respondent states that Section 42 of the 2015 Act provides an Adjudication Officer with the power to dismiss a complaint which is frivolous or vexatious. Section 42 states: 42. (1) “An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.”  The respondent argues that in circumstances where the claim is manifestly statute barred and acknowledged by the complainant to be out of time, and where the complainant discloses no cause of action, the respondent requests that the complaint be dismissed.

Background

The respondent states that the complainant commenced employment with the respondent as a Temporary Judicial Assistant on a fixed-term contract from 22 January 2018 until 15 January 2021, on which date his employment ended. The respondent states that prior to the termination of his contract, on 22 July 2020, the complainant wrote to the Head of HR DC, requesting a reference, which was furnished by DC by email dated 23 July 2020. This reference was provided on the sole basis that the complainant’s employment was concluding on 15 January 2021. The respondent states that the complainant wrote to DC again on 11 December 2020 asking to re-apply for the temporary Judicial Assistant role with the respondent, as he understood that interviews were taking place on 21 December 2020. However, as the closing date to apply for this competition had expired, the complainant was unable to apply for this competition. DC replied in or around 23 December 2020 stating as follows: “I refer to your letter of 11 December 2020 which includes an application from you for the position of judicial assistant in the Circuit Court. Competitions for judicial assistants are typically held in early Summer to coincide with the completion of academic courses. It is through these competitions that appointments to judicial assistant positions are made. It is not possible for appointments to be made other than through competition.” The complainant responded by letter dated 30 December 2020 as follows: “…I would again refer to our telephone conversation of Monday 16 November 2020 during the course of which you advised me that it was possible for me to reapply for the position of Judicial Assistant in the Courts Service and that just because It had never been done before, did not mean that it could not be done. It was on the basis of our telephone conversation of Monday 16 November 2020 that I submitted my application on the 11 December 2020. I have noted in your undated letter that you state; “It is not possible for appointments to be made other than through competition.” “I would suggest that; I. A competition requirement is a rule of The Courts Service II. A competition requirement is not covered in Protected of Employees (Fixed-Term Work) Act 2003 III. Section 8 (2) Protection of Employees (Fixed Term Work) act 2003 specifically permits the renewal of a Fixed Term Work Contract IV. Every state body, both public and civil, can use its’ discretion on specific individual cases (e.g. The Revenue Commissioners). I trust that the foregoing is an accurate reflection of our telephone conversation of Monday 16 November 2020 and the Protection of Employees (Fixed Term Work Act 2003.”

The respondent states that the complainant’s role ended in accordance with his contract on 15 January 2021. Subsequently, the complainant applied for the following judicial assistant roles with the respondent: • The role for Judicial Assistant, Limerick Circuit Court was advertised on 4 March 2021. The complainant applied for this role on 20 March 2021. The complainant was informed by email dated 6 May 2021 that his application would not be progressing as he was unsuccessful in his exam. • The role of Judicial Assistant, Dublin South West Region was advertised on 31 May 2021. The complainant reapplied for this role on 16 June 2021. The complainant was informed by email dated 12 August 2021 that his application would not be progressing as he was unsuccessful in his exam. The respondent states that the complainant engaged in correspondence commencing on 25 August 2021, requesting feedback in relation to the interview processes for the subsequent jobs that he applied for. The respondent submits that these interviews have no relevance to the claim before the WRC. The respondent asserts that the complainant commenced correspondence on 6 September 2021, looking for information on the 21 December 2020 interviews, which are the subject of this complaint to the WRC. The respondent states that NS, a HR representative for the respondent, replied by letter dated 2 December 2021 to both sets of queries. NS apologised for the delay in replying to the complainant. The respondent states that in her detailed reply, she states as follows: “ A competition to appoint judicial assistants to the Circuit Court was advertised on 01 August 2020 and the closing date for applications was 12noon on 18 August 2020. A number of appointments were made from this competition and applicants were interviewed for the position of Judicial Assistant based in Limerick but none were deemed suitable.”  The respondent states that the complainant engaged in further correspondence with the respondent thereafter, before informing the respondent by letter dated 4 April 2022, that he would be referring a complaint to the WRC under the 2003 Act. The respondent states that the complainant submitted his complaint on 5 April 2022.  It states that a temporary judicial assistant role was advertised on the Courts Service website on 4 April 2022. The complainant reapplied for this role on 2 June 2022 but was not successful as he applied past the closing date of 3 May 2022. This was confirmed to the complainant by email dated 3 June 2022.

The respondent states that without prejudice to the fact that the complaints made by the complainant are statute barred, and misconceived, the respondent submits that the complainant has failed to demonstrate that there has been a contravention of sections 8 and 9 of the 2003 Act. The respondent states that Section 8 of the 2003 Act sets out certain conditions that must be applied when offering or renewing a fixed-term contract. Section 8(1) of the 2003 Act confers an entitlement on fixed-term employees to be informed in writing as soon as practicable by the employer of the objective condition determining the contract, whether that condition is the arrival at a specific date, completion of a specific task, or the occurrence of a specific event. Section 8(2) provides that where an employer proposes to renew a fixed-term contract, the fixed term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the contract on a fixed-term basis and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal. The respondent states that the relevant portion is as follows: 8 (1) “Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is— (a) arriving at a specific date, (b) completing a specific task, or (c) the occurrence of a specific event. (2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal..”.  The respondent states that it complied with section 8(1). The contract of employment in 2017 clearly set out that the contract was fixed-term and had an end date of 15 January 2021. The respondent states that it did not propose to renew a fixed-term contract; therefore section 8(2) does not apply.

The respondent submits that Section 8(2) of the 2003 Act applies where the employer “proposes to renew a fixed-term contract.” It states that no such proposal arose in this case, as the respondent did not propose to renew the complainant’s fixed-term contract. The respondent states that the complainant asserted as follows: “An undated letter was issued by the Personnel Officer, The Courts Service, to the complainant on the 23 December 2020 as verified by the post mark on the envelope. The Personnel Officer stated; “It is not possible for appointments to be made other than through a competition”. It is asserted that this statement does not comply with the Protection of Employees (Fixed-Term Work) Act 2003, particularly Section 9 (4).  The respondent states that by letter from The Courts Service dated 2 December 2021, the complainant was advised; “…..applicants were interviewed for the position of Judicial Assistant based in Limerick but none were deemed suitable”. The respondent states that the complainant maintains that the forementioned statement constitutes objective grounds. The complainant asserts that the Protection of Employees (Fixed-Term Work) Act 2003 (in particular S. 9 (4)) giving effect to the European Directive 1999/70/EU supersedes the Public Service Management (Recruitments and Appointments) Acts 2004 and 2013 given the primacy of EU law over national / domestic law.  The complainant has asserted that as a direct consequence of the details outlined, the complainant was deprived of a further fixed term 3-year contract of employment and deprived of the income attached thereto.”

The respondent states that Section 9 of the 2003 Act applies in circumstances where an employee has been offered successive fixed-term contracts. The respondent states that it did not propose to renew the complainant’s fixed-term contract, and he was not employed on two or more continuous fixed-term contracts, therefore section 9 has no application. The respondent submits that in the circumstances, the assertion of the complainant in his submission that the respondent has contravened section 9(4) of the 2003 Act is fundamentally misconceived. The respondent submits that there has been no breach.  The respondent submits that the complainant has failed to demonstrate that it has contravened the 2003 Act, and the complaint should be dismissed.

Conclusion

The respondent submits that the complainant’s claim is statute barred as it was submitted outside the 12 month time limit under the 2003 Act. The respondent states that 12 months is the maximum time frame within which the complainant is permitted to lodge a claim under the 2015 Act. It states that the WRC does not have discretion to extend the time beyond the 12 month period and the complaint must be dismissed.  The respondent submits that the complainant’s case is fundamentally misconceived and should be dismissed. 

The preliminary issue to be determined is whether or not I have jurisdiction to hear the complaint. Section 41(6) Workplace Relations Act 2015 states “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 six months beginning on the date of the contravention to which the complaint relates. Section 41(8) of the 2015 Act empowers an adjudication officer to extend the initial six months limitation period by no more than a further six months, if he or she is satisfied that the failure to present the complaint within the initial period 'was due to reasonable cause'.

Without prejudice to the above argument “reasonable cause” has been considered in a number of cases. In Salesforce.com v Alli Leech, the Labour Court set out in detail the legal principles to establish whether reasonable cause has been shown for an extension of time.  The Court stated “The established test for deciding if an extension should be granted for reasonable cause shown is that formulated by this Court in Labour Court Determination DWT0338 Cementation Skanska v Carroll.” 

“It is the Court’s view that in considering if reasonable cause exists it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.  The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.  In the context of which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the Claimant at the material time.  The Claimant’s failure to present the claim within the six month time limit must have been due to the reasonable cause relied upon.  Hence there must be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability that had those circumstances not been present he would have initiated the claim on time. In the context in which the expression reasonable appears in the statute it imports an objective standard but it must be applied to the facts and circumstances known to the claimant at the material time. The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown, the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

In the case of A Bank v A Worker EDA104, the Labour Court stated that the requirement on the complainant to demonstrate that there were reasons which both explained the delay and afforded an excuse for the delay was an “irreducible minimum requirement”.

It is clear from the authorities that the test places the onus on the complainant on an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay.  

In the within matter, the complainant’s claim is that he was not offered a renewal of a fixed-term contract by being refused admittance to an interview held on the 21 December 2020. The complainant submitted his complaint to the WRC on the 5 April 2022. The complainant has acknowledged that there is a time limitation period and that he is outside the required time period but stated that this was as a result of delay in receiving replies from the respondent to his correspondence. Having carefully examined the matter, I find that the complaint was not lodged within the one year period from the date of contravention therefore even If I was to extend the time pursuant to Section 41(8), the complaint would still be a further three months out of time.  Consequently, I find that the within complaint is statute barred and I do not have jurisdiction to hear the complaint.  

I find that I have no jurisdiction to hear the within complaint as the claim is statute barred. 

Time limits, jurisdiction