FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES: LONGFORD COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - JOSEPH SHANLEY DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00028301 CA-00036312-001 This matter comes before the Court as an appeal by Joseph Shanley (the Complainant) against a decision of an Adjudication Officer made under the Protection of Employees (Fixed Term Work) Act,2003 (the Act) in his complaint against Longford County Council, (the Respondent). The Adjudication Officer decided that the complaint was not well founded. The Complaint The Complainant commenced employment with the Respondent on 25thJune 2018 as part of a Graduate Programme operated across the Local Authority Sector and administered by the LGMA. Under that programme the Complainant was engaged under a contract of employment for a defined fixed term of three years commencing on 25thJune 2018 and terminating 25thJune 2021. The programme, according to the submission of the employer, involved structured skills development programmes, a structured review of the placement between the employing local authority, the graduate and the LGMA as well as enrolment in industry recognised training in their chosen skills which would either be accredited and / or lead to membership of a professional body in the chosen field. The Complainant submitted that he was engaged in project related work to a significant degree for the first three months of his placement on the programme and was thereafter mainly involved in administrative work prior to the making of the within complaint to the WRC. The Complainant was interviewed for the post of Acting Staff Officer on 12thNovember 2019. He was successful in that competition and was offered the post of Acting Staff Officer on 23rd December 2019. In the letter conveying the offer the Complainant was advised that by accepting the role of Acting Staff Officer he would be resigning from his existing contract of employment which arose from his placement on the Local Authority Graduate Programme. The Complainant declined that offer of a post as Acting Staff Officer because he anticipated that the period of acting would be relatively short and, consequently, he would be out of contract approximately 15 months earlier than if his then current Graduate Programme contract was allowed to continue. The Complainant alleged that the requirement to terminate the contract of employment which he held arising from his participation on the Local Authority Graduate Programme amounted to less favourable treatment than was or would be afforded to a comparable permanent employee of the Respondent and consequently a breach of the Act. The Complainant did not identify a comparable permanent employee to the Court The Respondent rejected the contention that any breach of the Act had occurred and asserted that the requirement to resign from the Local Authority Graduate Programme contract arose because it would not be possible for the Complainant to continue as a participant in that programme while being employed full time as an Acting Staff Officer. The Respondent raised two issues which it submitted must be decided by the Court as preliminary matter. In the first instance the Respondent contended that, having regard to the provisions of section 2(1) of the Act, the Complainant was not a fixed term worker within the meaning of the Act; and secondly the Respondent contended that the appeal to the Court was submitted by the Complainant outside of the time limit of 42 days permitted by the Act of 2015. The Court heard the parties in relation to the preliminary and substantive matters and invited both parties to call witness evidence at their discretion. Both parties confirmed that they did not wish to place witness evidence before the Court. Preliminary matter 1. The Respondent submitted that the contract of employment of the Complainant was a contract which was concluded within the framework of the Local Authority Graduate Programme which was a specific publicly supported training programme. The vast bulk of the costs of the programme, including training and pay costs were met by the local authority sector with a small contribution from Enterprise Ireland. These characteristics meant that, within the meaning of section 2(1) of the Act, the Complainant was not included within the statutory definition of a “fixed term employee”. On this basis the Respondent contended that the Court should consider this issue as a preliminary issue to be decided before giving consideration to the substantive matters contended by the Complainant to amount to a breach of the Act. The Complainant did not object to this matter being dealt with as a preliminary matter which could be dispositive of the entire matter but contended that the exclusion contended for by the Respondent should not be upheld by the Court. The Complainant contended that the Court should regard the exclusion under Section 2(1) of the Act of 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’as being an exclusion of participants on programmes and schemes operated by, for example, the Department of Social Welfare, Solas or similar organisations. The Complainant was unable to put any authorities before the Court to support this interpretation of the Act. Approach of the Court The Court, following its hearing and having heard the parties in relation to both preliminary matters and the substantive matters, decided that it would first consider the matters contended by the Respondent to be preliminary matters. The Court, in making this decision, concluded that either preliminary matter could be dispositive of the entire matter and consequently, if the submission of the Respondent was upheld in respect of either preliminary matter, the Court need go no further in deciding the within appeal. Law relevant to preliminary matter 1 Section 2(1) of the Act provides in relevant part as follows:
The Court has considered the submissions of the parties and noted that neither party placed evidence or authorities before the Court in relation to preliminary matter 1. The Act at section 2, on plain reading, sets out that a person who holds a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme is not a fixed term employee within the meaning of the Act. The Complainant at all material times held a contract of employment which clearly stated that the employment was on the Local Authority Graduate Programme. The Complainant contended that the Local Authority Graduate Programme is not a publicly supported training programme in the sense that such programmes supported by the Department of Social Protection and similar bodies could be regarded as publicly supported programmes. The Respondent submitted that Local Authorities, the LGMA and Enterprise Ireland, are all public bodies deriving their resources from the public purse and that these parties were the parties which supported the Local Authority Graduate Programme. The Respondent submitted that the Local Authority Graduate Programme was a programme advertised in public and created to train graduates in skills and systems relevant to employment in the local authority sector. The Court has been provided with no authorities which can be relied upon in order to interpret Section 2 of the Act in relevant part. The Court therefore has considered the matter on the basis of the statute as written. It is, in the view of the Court, clear that the Local Authority Graduate Programme is a training programme. This view is based on the description of the programme as submitted and the undertakings given to participants on the programme by the Local Authority Sector including the undertaking to provide industry recognised training at intervals throughout the three-year defined period of a contract of employment provided to a person participating on the programme. It is clear that all costs associated with the Complainant’s contract of employment and associated training were undertaken by the Respondent with some support from Enterprise Ireland. It is clear that both of these bodies are publicly funded bodies. There is, in the view of the Court, no doubt that the Complainant’s contract of employment was issued to him as a sole result of his being successful in his application for placement on the Local Authority Graduate Programme. Having regard to these factors, the Court concludes that the contract of employment of the Complainant was concluded within the framework of a specific public or publicly supported training programme. Having reached that conclusion the Court must decide that, arising from Section 2(1) of the Act in relevant part, the Claimant was, at all material times, not a fixed term employee within the meaning of the Act. In those circumstances the Complainant did not enjoy the protection of the Act and consequently his appeal must fail. Decision The Court decides that the Complainant was, at all material times, not a fixed term employee within the meaning of the Act and his appeal therefore must fail. The decision of the Adjudication Officer is varied. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
