ADJUDICATION OFFICER Recommendation on dispute under Industrial Relations Act 1969
Investigation Recommendation Reference: IR - SC - 00001245
Parties:
| Worker | Employer |
Anonymised Parties | Executive Assistant | A university |
Representatives | Barnaba Dorda SIPTU | Brian Joyce IBEC |
Dispute(s):
Act | Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | IR - SC - 00001245 | 06/04/2023 |
Workplace Relations Commission Adjudication Officer: John Harraghy
Date of Hearing: 04/09/2023
Procedure:
In accordance with Section 13 of the Industrial Relations Act 1969 (as amended)following the referral of the dispute(s) to me by the Director General, I inquired into the dispute(s) and gave the parties an opportunity to be heard by me and to present to me any information relevant to the dispute(s).
Background:
The worker commenced employment with the employer on 23/11/2015 as an Executive Assistant on a Fixed Term Contract. He was appointed to a similar role in another department on 01/10/2018. He applied for another role on same team and was appointed on a secondment basis. The worker submits that this was renewed on a few occasions and therefore he should now be issued with a Contract of Indefinite Duration (CID). The employer submits that the worker accepted his contract and all the terms and conditions associated with each of his roles and that the objective grounds for his current contract remain and therefore he has no entitlement to a CID. |
Summary of Workers Case:
The worker commenced employment on 23/11/2015 as a “Temporary Executive Assistant”. This was a five-year fixed term contract and for ease of reference this contract will be referred to as Contract 1. In 2018 the worker applied for a similar role but in another department and was offered another five-year contract which commenced on 01/10/2018 and for ease of reference this contract will be referred to as Contract 2. Another role was advertised by the employer for a Senior Executive Assistant on the same team and the worker applied for and was appointed to this role. This was a specific purpose contract, and it did not have an expiry date. However, it was generally understood that this was to be for a maximum of two years. Again, for ease of reference this contract will be referred to as Contract 3. The purpose of this contract was to provide cover for another worker (Ms X) who moved to another role on a temporary secondment basis. As the worker was moving to this new role, he was given an assurance that when Contract 3 expired he would return to his previous role, and he was issued with another contract to confirm this. This contract will be referred to as Contract 4. This contract did not have a start date or any specific duration. In January 2021 the worker was informed that his Senior Executive contract [Contract No 3] would be renewed for a further twelve months. This was further renewed in 2021 and 2022 for a further twelve months. It was submitted on behalf of the worker that the employer’s secondment policy states that if a secondment is for a period greater than two years or is renewed, thereby taking it over two years a worker’s substantive post will not be retained. A worker’s permanent status would not be affected but the substantive role may be assigned in another department or unit. Given the applicable law and the employer’s policy it is the worker’s position that he is entitled to a Contract of Indefinite Duration for the role of Senior Executive Assistant. There were a number of reasons put forward on behalf of the worker to justify this: a) The employer knew in January 2021 that Ms X was not returning to her substantive post from her secondment and therefore by application of the employer’s policy her substantive post was no longer available to her. b) In January 2021 the employer decided to extent the workers contract [Contract no 3] for a further six months even though they knew that Ms X would not be returning to her substantive role within the two-years prescribed time. In that context there was no objective justification for any further extension of the worker’s contract. c) Given this sequence of events the worker’s contract became a contract of indefinite duration from February 2021. d) The additional extensions of the workers contract in November 2021 and November 2022 did not contain any objective justification for these extensions. e) The worker was offered his latest extension in November 2022, and this was for a further twelve months. At that stage the total accumulation of his fixed term contracts exceeded four years and by application of Section 9(2) of the Fixed Term Work Act his contract for the role of Senior Executive Assistant became a contract of indefinite duration with effect from November 2022. The worker is seeking a recommendation that he is entitled to a contract of indefinite duration and that the employer should amend his contract to give effect to this. |
Summary of Employer’s Case:
The employer refutes the claim that the worker is entitled to a contract of indefinite duration. It is the employer’s position that the worker is a fixed term worker. He was issued with two fixed term contracts and one specified purpose contract and all of which contained objective grounds. The worker and the employer signed the contracts for each role. It was submitted on behalf of the employer that the following is a sequence and summary of the worker’s employment history: a) 23/11/2015: Temporary Executive Assistant on a five-year contract. The worker left this role after two year and ten months. (Contract 1) b) The worker’s second role was for Executive Assistant in another department. This was also a five-year fixed term contract. The worker left this role after four months. (Contract 2) c) The worker’s third and current contract is for a Senior Executive Assistant and the purpose is to provide cover for the substantive postholder who is on secondment. (Contract 3) Each of these roles was advertised and the worker applied and was successful in obtaining these roles through a competitive process. The worker has over seven years’ service with the employer and continues to be employed under Contract 3. It is the employer’s position that the worker was unambiguously aware at all times of the nature of his contracts and signed each contract to confirm his agreement to the terms set out. The current position is that as Ms X has not returned from secondment the worker’s specified contract is still active. The employer notes that while the within claim is taken under the Industrial Relations Act, the Protection of Employees (Fixed-Term Work) Act, 2003, outlines the circumstances of successive fixed-terms contracts and specifically that the aggregate duration of such contracts shall not exceed four years. The employer acknowledges that the worker has been employed on three fixed term contracts with over four years’ service, but these contracts were not continuous. The worker terminated Contract 1 and Contract 2 and took up new roles with the employer. The worker has seven years continuous service, but the roles are not continuous, and they each had separate job descriptions, separate terms and conditions and the employer held objective grounds in each contract. It is the employer’s position that the worker’s three fixed term contracts do not entitle him to a contract of indefinite duration or constitute abuse under the Act. The employer’s representative made a number of legal submissions in relation to the application of the Protection of Employees (Fixed-Term Work) Act 2003 but acknowledged that these were submitted as “persuasive rather than binding authority”. The employer’s position is that there is no breach under any legislation. The worker accepted the three different positions and performed his duties in accordance with the job description for each role. The objective grounds in each contract were appropriate and necessary to achieve a legitimate business objective. There is no entitlement to a contract of indefinite duration under the Industrial Relations Act. |
Conclusions:
In conducting my investigation, I have taken into account all relevant submissions and considered the information presented to me by the parties.
This is a trade dispute referred by the worker under section 13 of the Industrial Relations Act, 1969. Consequently, there is no complaint under any employment rights statute or any matter of law before me in this referral. By way of clarification this is a voluntary process and there is no formal evidence taken, and no witness evidence. In that context there are no findings of fact made.
The role of an Adjudicator is to make a recommendation to try and resolve this dispute.
A fulsome account of how the parties perceive matters to sit between them because of this dispute was outlined in the submissions and the response to those submissions provided at the hearing.
The worker in this case is a fixed term employee who has given seven years continuous service and was issued with four contracts of employment. It is the worker’s position that by application of the law and the employer’s secondment policy his third contract should have become a contract of indefinite duration no later than November 2022 if not earlier, i.e., February 2021.
The employer’s position is that the workers third contract remains valid as the worker whose role he is providing cover for (Ms X) has not returned from secondment and consequently there is no entitlement to a contract of indefinite duration.
The worker has highlighted that the objective justification in Contract was to provide cover for Ms X and the contract stated: “The contract will end on the return to this post of [Ms X] or their resignation contract expiration or retirement, whichever first occurs”. Ms X is a permanent employee. The relevant extract from the employer’s secondment policy states: “Where a secondment is less than 2 years duration you will return to your substantive post and grade at the end of the appointment”. If the secondment is greater than 2 years duration (or is renewed, thereby taking it over 2 years), your substantive post will not be retained. Your permanent status is unaffected, and your will return to your substantive grade but not necessarily to you home School/Unit. Assigned duties will be consistent with their grade”. The employer acknowledges that the contract of employment for Ms X does not reflect the above policy. However, it is their position that they are legally bound by the terms and conditions in the contract of employment. The position the worker finds himself in is entirely due to the employer’s failure to adhere to the provisions of their secondment policy. The employer’s failure to issue a contract of employment to Ms X which was consistent with that policy has resulted in the complication that has led to this dispute. The worker commenced on the contract to provide cover for Ms X on 19/02/2019 and remains on this contract. |
Recommendation:
Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to the dispute. I am recommending:
- a) that the employer engage with Ms X within four weeks from the date of this recommendation to remind and/or appraise her of the relevant policy and secure a definitive response in relation to her intention to either remain in her seconded role or to return to her substantive role. If that is not possible then I am recommending that the next renewal of Ms X’s contract should be on the basis that it reflects the employer’s secondment policy.
- b) If Ms X confirms that she wishes to remain in her seconded post, then by application of the employer’s secondment policy the substantive post becomes available. Given the fact that the worker has held this post for over four years I am recommending that he is then issued with a contract of indefinite duration for this role with effect from the last renewal or extension date.
- c) In the event that Ms X wishes to return to her substantive post then I am recommending that the employer ensures that this is date specific, and that the employer promptly engages with the worker in relation to what options and implications this may generate for him.
Dated: 14th September 2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Contract of indefinite duration. Successive contract. Secondment. |