Complainant

Respondent

Parties

Samantha McDermott

An Garda Síochána

Representatives

Fórsa

 Industrial Relations Officer

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-00047597-001

10/12/2021

The complainant works as a cleaner wiht the respondent.

The complaint pursuant to the Protection of Employees (Fixed-Term Work) Act 2003 concerning the failure to provide the complainant with a contract of indefinite duration was referred to the Workplace Relations Commission on 10 December 2021.

A hearing of the complaint was held on 9 May 2023. 

In February and March 2023, prior to the hearing, the respondent issued to the complainant, and withdrew, two written contracts of indefinite duration, and offered a third contract of indefinite duration in April 2023.

The matter of a contract of indefinite duration for the complainant was first raised by the complainant’s union with the respondent in January 2021.  Despite meetings with the respondent, and agreement that there was an entitlement to a contract of indefinite duration, the matter was not progressed by the respondent. 

The respondent’s lack of engagement with either the complainant or her union on this issue resulted in the referral of this complaint to the Workplace Relations Commission.  The respondent’s failure to engage with the complainant’s representative continued in 2022 and 2023.  The respondent issued a contract of indefinite duration to the complainant in February 2023 which was subsequently withdrawn.  An amended contract of indefinite duration issued in March 2023; the amended contract was also withdrawn by the respondent.  The respondent issued a third contract of indefinite duration in April 2023. 

The respondent’s lack of engagement and delay in issuing a contract of indefinite duration has negatively impacted the complainant and been a cause of considerable upset and frustration. 

Summary of complainant’s evidence

The complainant commenced working as a relief cleaner with the respondent in 2010.   From 2010 to 2016, her place of work was between two garda stations.  A staff officer and manager with the respondent told the complainant which of the two stations to attend for work.  In 2016, the complainant was told that she would be permanently assigned to one of the two stations as she was needed there.  Since 2016, the complainant has worked as the main relief cleaner at that station.  The complainant always understood that she would be permanently there and have a permanent contract. 

The complainant never really had any dealings a panel.  The main issue for the complainant concerned her annual leave entitlements.   

Summary of written and oral submissions

The complainant’s role is classified as a relief cleaner.  The complainant was on a fixed rate of pay, aligned to the first point of the salary scale for the grade of cleaner. 

A contract of indefinite duration as relief cleaner, effective from 1 April 2019, was offered to the complainant having regard to the commencement date in employment and in an effort to regularise the complainant’s employment with the respondent.

A confined competition to regularise the complainant’s employment to a permanent vacancy is subject to governance measures.

Various ad-hoc arrangements for relief cleaner work were utilised by the respondent.  The respondent recognised that this could not continue and that there were entitlements to contracts of indefinite duration based on service.

The respondent accepted there were delays in bringing the contracts to fruition but it was a complex matter which required input from various units and agreement from the senior leadership team as to the terms and conditions of the contract.

It was ultimately agreed to award a contract of indefinite duration, backdated to take effect from 1 April 2019, and to afford incremental credit from that date thereby placing the complainant on point 5 of the cleaner scale with effect from 1 April 2023.  The arrears of pay will be calculated and off-set against any superannuation payments owed by the complainant for pension credit under the Single Pension Scheme since 1 April 2019. 

There had been a satisfactory outcome to this matter, the complaint was resolved, and any further penalty on the respondent would be disproportionate.

A complaint concerning the respondent’s failure to acknowledge the complainant’s entitlement to a contract of indefinite duration was referred to the Workplace Relations Commission on 10 December 2021. 

The respondent submitted that the complaint was resolved and without merit as it had afforded the complainant a contract of indefinite duration as a relief cleaner with effect from 1 April 2019.  At the hearing, issue was taken by or on behalf of the complainant with the respondent’s delay in putting in place a contract of indefinite duration and the disregard in acknowledging the complainant’s rights and entitlements under the 2003 Act.

Written and oral submissions on behalf of the complainant and the complainant’s evidence at the hearing referenced the complainant having been treated differently to other colleagues in relation to certain terms and conditions.  For the avoidance of any doubt, the sole complaint before me for adjudication is of a contravention of section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (the “2003 Act”), which concerns restrictions on an employer’s use of fixed-term contracts in certain circumstances.  

The Factual Background

The complainant has worked as a cleaner with the respondent since 2010.   Her role was described by the respondent as a relief cleaner.  The respondent operated relief panels for cleaning staff at a time when it was unable to run competitions for permanent full-time staff.  Various ad hoc arrangements developed for how relief cleaner work was utilised by the respondent.    

The complainant outlined working continuously at one station as a cleaner since 2016. She works five days per week, 37 hours per week. 

The complainant’s rate of pay was a fixed hourly rate aligned to the first point of the salary scale for the grade of cleaner.  The complainant did not receive incremental credit, paid sick leave or other leave entitlements to which permanent employees in the grade of cleaner were entitled.

The complainant’s employment with the respondent was not pursuant to any contract in writing or, if it was, no written contract or agreement was provided to me in my investigation of the complaint.  

The complainant’s union raised with the respondent the matter of a contract of indefinite duration for the complainant in January 2021.  There was agreement by the respondent that the complainant was entitled to a contract of indefinite duration but the matter was not progressed by the respondent to the satisfaction of the complainant and the within complaint was referred to the Commission in December 2021.

At the time of the hearing, the respondent had issued the complainant with a third version of the contract of indefinite duration it was offering to the complainant.  I was not provided with a copy of the contract of indefinite duration but it was not disputed that the contract offered makes provision for more favourable terms and conditions than those held by the complainant, including provision for pay with incremental credit, superannuation and paid sick leave.

Locus Standi

Given the interaction between the parties on the matter of the complainant’s employment, it is understandable how the complainant considered herself to be a fixed-term employee and the decision was taken to refer this complaint under the 2003 Act.  However, as I explained to the parties at the hearing, my jurisdiction derives from the 2003 Act and is not conferred by the agreement or acquiescence of the parties.  I must satisfy myself that the complainant was a fixed-term employee within the meaning of the 2003 Act at the material time of referral of the complaint or in the 6-month cognisable period because otherwise she can have no legal standing to maintain a complaint under the 2003 Act.  It is this particular issue that I will consider in the first instance.

Section 2 of the 2003 Act defines a fixed-term employee as:-

“… 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;”

This definition was considered by Laffoy J. in Nerney v Thomas Crosbie Holdings Ltd [2013] ELR 238.  The plaintiff in that case was employed in 2004 pursuant to what was described as an executive contract.  The contract was expressed to be for a period of four years and to continue for periods of four years unless the defendant gave notice of an intention not to renew at least 6 months before the expiry of any four-year period.  An issue for Laffoy J. to determine was whether the plaintiff was a fixed-term employee within the meaning of section 2 of the 2003 Act from the commencement of his employment with the defendant under the executive contract.  In the following extract from the judgement, Laffoy J. explains the essential characteristic of fixed-term employment, namely that it be determined by an objective condition:-

“The application of the definition of fixed-term employee to the plaintiff as an employee of the defendant under the Executive Contract raises the question whether the end of the Executive Contract is determined by an objective condition.  Having regard to the examples of “objective condition” set out in the definition, and also in s.8(1) of the Act of 2003, I understand “objective condition” to mean a condition which is identifiable by reference to the object, that is to say, the condition, without reference to the view or perception or intervention of either party to the contract.  A contract, such as an Executive Contract, the term of which is expressed to be from the commencement date for a period of four years and continuing for further periods of four years unless determined by six months’ notice from the employer given at least six months before the expiration of any four year period cannot be said to be determined by an objective condition, because the intervention of the employer, which may or may not happen, and in this case did not happen over a period of eight years is necessary to give rise to and identify the determining event.”

Application of the Law

The description of the complainant as a “relief cleaner” and of the panel as a “relief panel” might reasonably be understood to mean that the complainant and panel were used to provide cover and replacement personnel for core or unavailable staff.   However, neither party was in a position to clarify for me at the hearing how the relief panel operated.  The respondent did not avail of the opportunity given to submit post-hearing any information relating to the establishment and operation of the relevant relief panel, including information pertaining to the employment status of persons on the panel.   I note the lack of documentation and information provided to the complainant concerning her employment with the respondent from 2016 and the terms thereof, which is a further source of ambiguity.  

The complainant’s evidence of going to a particular station to provide cover when someone was out sick or on holidays is consistent with the understanding of the role outlined above.  It is possible that the complainant was employed on a series of separate fixed-term contracts for those particular assignments.  It is however also possible that the complainant was employed on a single contract, with no determining objective condition, and that the periods where she provided cover at the particular station were part and parcel of her terms and conditions of employment as a relief cleaner.

Whilst the complainant had different terms and conditions of employment to other staff members, this is not conclusive of the complainant being a fixed-term employee. 

I cannot find on the evidence before me that the complainant was employed at the material time on a contract of employment determinable by an objective condition such as reaching a specific date, completing a specific task or the occurrence of a specific event.  The complainant’s work arrangements from 2016, the complainant’s evidence that she knew there was always going to be work for her and the terms of the contract offered by the respondent in April 2023 are not consistent with fixed-term employment or the complainant having been a fixed-term employee within the meaning of the 2003 Act.  There was also no evidence of the relief panel having been established for a fixed period of time, specific purpose or until the occurrence of a specific event, nor indeed did the respondent’s representative maintain this position. 

In the circumstances, I find that the complainant was not a fixed-term employee within the statutory meaning of that term and accordingly lacks legal standing to maintain this complaint under the 2003 Act.

I find that the complainant does not have the legal standing to maintain the complaint under the Protection of Employees (Fixed-Term Work) Act 2003 for the reasons set out above.

Accordingly, my decision is that this complaint is not well founded.

Protection of Employees (Fixed-Term Work) Act 2003 – Locus standi