ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00039176

Parties:

	Complainant	Respondent
Parties	Conor Ryan	Commission Of Inquiry into Child Abuse

Representatives

Cliodhna McNamara Forsa Trade Union

Ms Claire Bruton BL instructed by Ms Bronagh Sawey; Ivor Fitzpatrick & Company Solicitors

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00050488-002	05/05/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00050488-003	05/05/2022

Date of Adjudication Hearing: 01/11/2023

Workplace Relations Commission Adjudication Officer: Jim Dolan

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The Complainant was employed by the Respondent from 8th June 2005 until 13th July 2022. The Complainant was initially employed as a Clerical Office.

This complaint was received by the Workplace Relations Commission on 5th May 2022.

Summary of Complainant’s Case:

Conor's Recruitment into the CICA

· Forsa recognises that in the public sector there are civil servants who serve government departments; civil servants who serve departments of State (civil servants of the Government) and those who serve other organs of State who are civil servants of the State. We recognise that while all civil servants are servants of the state, there are servants of the state who are not civil servants; those who serve a range of state bodies'

· The Commission of lnquiry into Child Abuse was established on 23 May, 2000, pursuant to the "Commission to lnquire into Child Abuse Act 2000" and given three primary functions: *to hear evidence of abuse from persons who allege they suffered abuse in childhood, in institutions, during the period from 1940 or earlier, to the present day; *to conduct an inquiry into abuse of children in institutions during that period and, where satisfied that abuse occurred, to determine the causes, nature, circumstances and extent of such abuse; and *to prepare and publish reports on the results of the inquiry and on its recommendations in relation to dealing with the effects of such abuse.

· Section 9 of the above referenced act provides for the 'Stoff of the Commission'. Section 9.-

(1) the Commission may, with the consent of the Minister and the Minister for Finance, appoint such and so many persons as the Commission may determine to be members of the staff of the Commission

(2) the Minister may, with the consent of the Commission and the Minister for Finance, second to the commission such and so many of his or her officers, as he or she may determine and the Minister for Health & Children may, with the like consents, second to the Commission such and so many of his or her officers as he or she may determine, and a person so seconded shall be deemed for the purposes of this Act, to be, during the period of the secondment, a member of staff of the Commission.

(3) A person appointed or seconded under this section to a position shall hold the position upon and subject to such terms and conditions as the Minister, or the Minister for Health and Children (if the person was seconded by him or her) may, with the consent of the Minister for Finance, determine, being, in the case of a person so seconded, terms and conditions not less favourable to the person that those applicable to him or her as an officer of the Minister or the Minister for Health & Children, as the case may be.

· Section 30 of the CICA Amendment Act 2005 held no amendment to Section 9 but provided reference to 'Employees' at Section 30.

Section 30. –

(1) The Board shall have such and so many employees as it may determine with the consent of the Minister and the Minister for Finance.

(2) the employees of the Board shall be paid by it such remuneration (including Superannuation) and allowances for expenses as the Board may, with the consent of the Minister and the Minister for Finance, determine

(3) Employees of the Board shall be subject to such other terms and conditions of employment as the Board may, with the consent of the Minister and the Minister for Finance determine.

· Despite the provisions of the legislation, it is our absolute understanding from our discussions with the Department of Education that the CICA falls under the aegis of the Department of Education and it is noteworthy that any discussions that were had with specific regard to renumeration in the form of an allowance for the admin grades for example involved discussions with the Department of Education and by extension the Department of Public Expenditure and Reform and we believe this is acknowledged by all parties and will not be disputed.

· At the time that Conor was recruited into the Commission, there were approximately five civil servants ranging in grade from Principal Officer to Clerical Officer and a larger number of non civil servants who were not administrative grades.

· Conor was directly recruited into the CICA and commenced employment on the 8th of June 2005. ln and around 20I3/20L4 when the National Shared Services Office was set up on an administrative basis under the Department of Public Expenditure and Reform or upon establishment of the National Shared Services Office in 2017 (a statutory Civil Service Office) Conor was paid by the NSSO and was on the Civil Service Clerical Officer pay scale under the Department of Education vote.

· While Conor Ryan was not recruited through the normal recruitment process that civil servants are recruited under i.e., the Public Appointments Service (PAS), we propose that we will be able to demonstrate that Conor was for all employee purposes a serving civil servant by reason of pay and terms and conditions of employment. Notably, not all civil servants are recruited through the PAS anymore and a lot of government departments are recruiting clerical officers directly into their departments including the Department of Education.

· For the purposes of this claim and other claims, Conor's direct comparator in his employment is his former colleague, Deirdre Kellett. Deirdre was recruited through the PAS as an Executive Officer and was assigned directly to the CICA and is not on secondment from any government department. Deirdre is a serving Civil Servant and was recruited into the CICA on promotion in 2008. We reference Deirdre as a comparator as Conor had been assigned Executive Officer duties for the last three years of his employment which in our view demonstrates that they were interchangeable. Failing this being accepted, we would contend that Conor is comparable to all other Clerical Officers in the Civil Service.

Conor's Employment

· Conor was assigned Clerical Officer duties and tasks during the course of his employment.

· Conor progressed incrementally every year on the Clerical Officer pay scale in line with the terms and conditions of employment that applied to his colleague Deirdre Kellett and all other civil servants.

· At the time of his dismissal from employment he was on the maximum point of the Clerical Officer scale i.e. (LSl 2). Conor was also on an allowance for acting into Executive Officer (EO) duties in line with Civil Service terms and conditions of employment and agreed policies and practices in this regard. He had been acting into EO duties for approximately 3 years before his dismissal. He was acting into the EO role in the same way as Deirdre Kellett was acting into a Higher Executive Officer (HEO) role and the same terms applied to both acting roles in the context of the calculation of the allowance.

· As referenced briefly, the CICA falls under the aegis of the Department of Education and it is our clear understanding from our discussions with HR in the Department of Education, that all control, supervision and responsibility for the governance of the CICA lies with the Department of Education and by extension the Department of Public Expenditure and Reform and that any and all decisions made about renumeration and allowances for example are sanctioned by the Department of Education and by extension the Department of Public Expenditure and Reform and given our discussions on this matter to date with the Department, we do not believe this will be disputed.

· We propose that the test to establish who Conor's employer is/was hinges on who has the power to hire, who pay's the wages/salary, who has the power to dismiss and who has the power of control.

· Forsa contends that we have demonstrated that the Minister for Finance (i.e., the now Minister for the Department of Public Expenditure & Reform) has the power to hire and that pursuant to the Act of 2000 and the Amendment Act of 2005, the CICA could not hire without the consent of the Minister for Finance.

· We have established that Conor was paid as a Clerical Officer in the CICA, on the civil service Clerical Officer pay scale and paid by the National Shared Services Office, a statutory civil service department.

· lt is also clear that the Minister for Finance i.e., the now Minister for the Department of Public Expenditure and Reform has the power to dismiss and is the appropriate authority in this regard albeit not evidentially tested.

· lt is also clear, in our view that as it is accepted that the CICA is under the aegis of the Department of Education, and they are responsible for the governance of the CICA then they have the power of control

· What is also clear, is that the terms and conditions that Conor worked under were all that of the Civil Service. The FEMPI Act 2009 and all decisions that impacted on the terms and conditions of all civil and public servants also impacted on Conor in the same way as it did with every other civil servants and in the same way as it did with his colleague Deirdre Kellett.

Protection of Employees (Fixed-Term) Work Act, 2003

· Conor Ryan was employed with the Commission of lnquiry into Child Abuse (CICA) as a Clerical Officer with effect from the 8th of June 2005. Conor was on rolling contracts over a 17 year period and had a total of 48 contracts. During the course of his employment Conor was issued with an implied Contract of lndefinite Duration and is a fixed term worker for the purposes of the Protection of Employee's (Fixed Term Work) Act, 2003.

· Conor was on rolling contracts with his employer and dismissed from employment by reason of redundancy on the 13th of July 2022 after 17 years.

· The CICA advised Conor that the position he was appointed to ceased to exist in the Commission.

· We contend that Conor's employer is the Department of Education and by extension the Department of Public Expenditure and Reform and his employer is in breach of the Protection of Employee's (Fixed Term Work) Act, 2003 (hereinafter referred to as the 'Fixed Term Workers Act' and Conor is in a position to identify a comparable permanent employee under Section 5 of the Fixed Term Workers Act and claims that he is being treated less favourably under Section 7 of the Act with no objective justification in respect of his conditions of employment under Section 6 other than on the basis of his status of employment.

The Employer

· As referenced previously, the CICA falls under the aegis of the Department of Education and it is our clear understanding from our discussions with HR in the Department of Education, that all control, supervision and responsibility for the governance of the CICA lies with the Department of Education and by extension the Department of Public Expenditure and Reform and that any and all decisions made about renumeration and allowances for example are sanctioned by the Department of Education and by extension the Department of Public Expenditure and Reform and given our discussions on this matter to date with the Department, we do not believe this will be disputed.

· We propose that the test to establish who Conor's employer is/was hinges on who has the power to hire, who pay's the wages/salary, who has the power to dismiss and who has the power of control.

· What is also clear, is that the terms and conditions that Conor worked under were all that of the Civil Service as the policies that applied to Deirdre applied to Conor. The FEMPI Act 2009 and all decisions that impacted on the terms and conditions of all civil and public servants also impacted on Conor in the same way as it did with every other civil servant and in the same way as it did with his colleague Deirdre Kellett.

The comparator

· Section 5 of the Fixed Term Work Act provides the following

5.-(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if-

(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

(b) in case paragraph (a)does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed term employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

· The following are the conditions mentioned in subsection (1)-

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters Pt.2 S.5 as skill, physical or mental requirements, responsibility and working conditions.

· We propose that Conor's named comparator is his colleague, Deirdre Kellett. Deirdre is a permanent civil servant, is not on secondment and was assigned to work in the CICA directly from a PAS Competition.

· Both Conor and Deirdre have the same working conditions and same terms and conditions of employment as set down by the Department of Education and by extension the Department of Public Expenditure and Reform. We would contend that their roles are interchangeable. Deidre is a substantive Executive Officer grade and has been working into an acting Higher Executive Officer Post for the last number of years. Conor is a substantive Clerical Officer grade and has been working into the Executive Officer grade for the last 3 years (approximately) demonstrating that their roles are interchangeable.

· Failing the acceptance of this point, we would contend that Conor is comparable to all other permanent Clerical Officers in the civil and public service.

Objective Grounds for less favourable treatment

6.-(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) lf treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

(5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

· The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee. (8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part lll of the Organisation of Working Time Act 1997.

· A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

· Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2)l be regarded as justified

· We contend that Conor has been treated less favourably by his employer when they:

· Dismissed him from employment by reason of redundancy

· Did not seek to redeploy him back into the Civil and Public Service

· Did not apply the Collective Agreement for Public Servants (Appendix C in previous claim) should redundancy stand

· Did not provide him with access to a pension scheme and if they considered him an 'excluded employee' then they had an obligation to provide him with access to at least one standard PRSA which they did not do.

We contend that there are no objective grounds for the less favourable treatment other than Conor's status as a fixed term employee.

Payment of Wages Act, 1991.

· The Payment of Wages Act 1991 at Section 5 - (1) provides that an employer shall not make a deduction from the wages of an employee unless - (see Appendix J)

· This is followed by a number of provisions which we contend do not fall into any category that would justify the deduction from Conor's wages.

· Conor Ryan was employed with the commission of lnquiry into child Abuse (CICA)as a clerical officer with effect from the 8th of June,2005.

· Conor progressed incrementally on the civil service Clerical Officer pay scale for the duration of his employment and was acting into an Executive Officer Grade post with effect from the 3rd of June 2019 until he was dismissed from employment on the 13th of July 2022.

· On the 14th of May, 2019 the then Secretary of the CICA, notes on file that Conor Ryan was to be in receipt of €37,487 which was point 6 on the Executive Officer scale with effect from 3rd of June 2019 and that this new scale will be an incremental scale based on the EO pay scale and should be reviewed and point 7 of the scale applied in 12 months’ time subject to the Commission remaining open subject to the normal requirements for the awarding of increments.

· lt is important to note at this juncture that there is no specific pay scale for the CICA and that the NSSO who have paid Conor his salary with effect from 2014 simply work from the civil service pay scales and do not calculate pay and overtime rates for example from a separate CICA pay scale.

· lt is also important to note that the expression 'subject to the normal requirements for awarding increments' refers to the standard practice across the civil service.

· We are claiming that in line with the 2007 Circular Conor should have progressed incrementally on the EO pay scale 3rd of June 2021, and 3rd of June 2O22 but he did not progress as no instruction was issued to salaries with regard to his progression.

· We originally calculated his total loss of gross pay at €7,694 ,based on the following breakdown:

DATE	EO PAYSCALE POINT	WEEKLY PAY	ANNUAL PAY	LOSS
03/06/2020	7	730.98	38,143
03/06/2021	8	776.00	40,492	2,349 (1 YEAR)
03/06/2022	9	824.47	43,021	4,878 (1 YEAR)
13/07/2022	9	824.47	43,021	467 (5 WEEKS)
				7,694 (TOTAL)

· However, in correspondence of the 2nd of March 2022 Payroll services in the National Shared Services Office note that Conor's pay on the EO Scale on the 3rd of June, 2020 should have been at €39076 so we may have mis- calculated as our starting point was €38,143 on the 3rd of June, 2020 so we will be guided by the National Shared Services Office in this regard.

· lt was all very difficult to establish as the National Shared Services Office could only advise Conor based on the instruction coming from his employer and they had not instructed the payment of his increment for 2021 or 2022.

· Notably the payment of an increment for any officer in 2021 is for the tasks and duties associated with it the previous year so payment in 2021, is for work completed from the 3rd of June, 2O2O – 3rd June 2021 and payment for 2022 is for work completed from the 3rd of June 2O2L- 3rd of June 2022.

· Forsa contends that Conor's employer has made deductions from Conor's wages under the payment of Wages Act, 1991.

· The deduction or payment was not required or authorised to be made by or under statute

· The deduction or payment was not required or authorised to be made under the term of the contract of employment and there was no advance written agreement from Conor.

Summary of Respondent’s Case:

Introduction

1.1 The within submissions are furnished in response to the following claims furnished on behalf of the Complainant:

The Payment of Wages Act 1991.

Protection of Employees (Fixed-Term Work) Act 2003; and

1.2 The Complainant appears to have submitted similar complaints to the Workplace Relations Commission as against the Department of Education and the Department of Expenditure and Reform.

1.3 For the avoidance of doubt, the Respondent’s position is the employer of the Complainant, the Complainant was not a civil servant at any stage during his employment with the Respondent and rather was an administrator engaged under a contract of employment directly with the Respondent.

1.4 The Complainant’s employment was lawfully terminated by reason of redundancy with effect from 13 July 2022.

1.5 In addition, the Respondent notes that the claims under the Payments of Wages Act 1991 and Unfair Dismissals Acts 1977, as amended are misconceived as they fall outside of the jurisdiction of the Workplace Relations Commission.

1.6 In addition, the Respondent notes that within the written Submissions furnished on behalf of the Complainant dated 17 April 2023, it is not clear, the basis on which any claim of breach of the Protection of Employees (Fixed-Term Work) Act 2003 arises against the Respondent albeit that it responds to this claim for the purposes of clarity.

2. Factual Background

2.1 The Respondent is the Commission to Inquire into Child Abuse (CICA). The Respondent was established pursuant to the Commission to Inquire into Child Abuse Act 2000 to hear evidence of abuse from persons who allegedly had suffered abuse in childhood; to conduct an inquiry into the abuse of children in institutions during that period and; where satisfied that abuse occurred to determine the causes, nature and circumstances and the extent of such abuse and; publish reports on the results of its inquiry and its recommendations in relation to dealing with the effects of such abuse.

Commencement of employment

2.2 At all material times the Complainant was a member of staff at the Respondent, commencing his employment on 8 June 2005. It is accepted that the Complainant was on a number of rolling fixed term contracts for a period of 17 years. A copy of all of these fixed term contracts was made available at the hearing.

2.3 The Complainant was engaged and interviewed directly by the Respondent and was appointed and recruited by the then Secretary of the Respondent with approval from the Chairperson. At no time were either of the other Respondents, being the Department of Education and the Department of Public Expenditure Reform, involved in the selection and recruitment process and no approval for his appointment was obtained or required. The Complainant was not appointed through the public appointment process and at no time was he appointed as a clerical officer or executive officer.

Contract of indefinite duration

2.4 A contract of indefinite duration – which the Complainant accepts he was engaged pursuant to – was provided to the Complainant in January 2021.

2.5 This contract of employment provides that the employer was clearly the Respondent, the Respondent appointed the Complainant and his position was that of an administrator. His hours of attendance were 9:30-5:30pm, five days a week, and the working week was 35 hours exclusive of a lunch break. The Complainant’s annual leave period per year was 22 working days per annum and his salary was €39,076 per annum with effect from 3 June 2020.

2.6 The contract also provides at paragraph 12 thereof that the employee was required to adhere to the Respondent’s specific protocols/policies. The contract also provided that the Complainant’s redundancy entitlements were calculated at the statutory rates as per the Redundancy Payments Act 2003, with the commencement date of 2005.

Employer of the Complainant

2.7 It is not the case that the Complainant was appointed as a clerical officer or executive officer, rather the previous secretary to the Respondent in May 2019 allocated additional duties to him. The reason for these duties provided to the Complainant was, on the basis of the wind down of the Respondent, another member of staff was to be redeployed by the Civil Service and as a result of the reducing working of the Commission winding down and there being little work for him to undertake, he could take on these extra administrative functions.

2.8 It is accepted that the Complainant received an additional allowance in return for these duties albeit that it is not accepted that he was an executive officer. A copy of the note for file of 14 May 2019, as per the submission of the Complainant is accepted to be accurate in this regard.

2.9 The terms and conditions of employment of the Complainant were not set and/or approved by the Department of Education and/or Minister for Education and/or the Department of Public Expenditure and Reform. The Respondent does not hold a Public Sector Recruitment Licence from the Public Appointment Service so it does not have the ability in fact to recruit public or civil servants. In any event there are a number of differences between the terms and conditions of employment of the Complainant and a civil servant as follows:

2.9.1 The Complainant was not appointed following a public service appointment process;

2.9.2 The Complainant was appointed and recruited directly by the Respondent;

2.9.3 The Complainant did not receive the same annual leave entitlements as civil servants – as per his contract of employment he received 22 days annual leave per annum whereas had he been a civil servant he would have received at least 26 days annual leave;

2.9.4 The annual leave of 22 days was calculated on the basis of 20 days as per his commencement of employment with two additional days in 2011 being added to compensate for loss of privilege days;

2.9.5 The Complainant was not captured by the Haddington Road Agreement and the increase in hours within this agreement. His hours of employment remained as per his contract of employment being 35 hours per week;

2.9.6 The Complainant was not subjected to the PMDS procedure as per the civil service and rather his performance reviews were less rigorous in nature;

2.9.7 The Complainant was not captured or within the application of Circular 05/2018 being the arrangement for sick pay applicable to civil servants and rather was captured by the Respondent’s sick leave policy which had a number of differences to the civil service circular including he was not subject to a chief medical officer examination, he did not have access to the employee assistance programme within the civil service, he did not have access to the critical illness protocol and he was not entitled to retire on grounds of ill health;

2.9.8 The Complainant was not a member of the civil service superannuation scheme applicable to pre 2012 civil servants;

2.9.9 As is evident from his contract of indefinite duration, the Complainant was subject to the Respondent’s specific policies.

2.10 The Respondent will rely on the sick leave policy and the civil service sick leave policy as attached by the Complainant in his written submission to the Workplace Relations Commission.

Wind down of Respondent

2.11 The Respondent’s report, known as the Ryan Report (the chair of CICA being Mr Justice Sean Ryan), was published its report in 2009. Thereafter the Respondent commenced a period of wind down and for the period of 2009-2019 it was engaged in the payment of legal fees for attendees before the Respondent and to clarify the issue of the retention of the records collated during the conduct of the Respondent’s inquiries.

2.12 At its height the Respondent had over 70 staff, five or six of whom were civil servants and the remainder were contract staff. At all times the Complainant was engaged as a contract staff member and worked alongside other contract staff members such as CK – who had her employment terminated by redundancy at the same time as the Complainant, PB who had his employment terminated by reason of redundancy in May 2021 and COD who had employment terminated by reason of redundancy in March 2019.

2.13 The last of the legal payments were paid by the Respondent in 2019 and since that time the only work within the Respondent (and for the Complainant) was to prepare the records for storage pending legislation and these files have now been placed off site in a secure facility only accessible by the Commission.

2.14 Since 2019, there has been very little work for the Complainant to undertake and indeed it is noted that at the first consultation meeting in the redundancy consultation process conducted by the Respondent, the Complainant admitted same. A copy of the notes of this meeting of 13 April 2022 are attached at appendix 3 of these Submissions.

2.15 In the course of 2021, the secretary to the Respondent, Hugh McLain, conducted a staff review. This followed the termination of employment of a previous contract employee, PB, by reason of redundancy. The Complainant was informed there was a finite amount of work within the Respondent, but the Respondent was seeking additional work from the Department of Education and Skills. The Complainant was also informed at this time that there was no change in his role at that time but there may be a reduced working week or voluntary redundancy towards the end of 2021. A copy of the minutes of this meeting of 31 May 2021 are attached at appendix 4 to these Submissions.

2.16 In December 2021 and January 2022 the Complainant was informed by Mr McLain that there was no further information available regarding his position but that additional work from the Department of Education had been sought.

Legal Submissions

Payment of Wages Act 1991

· The complaint form furnished on behalf of the Complainant was received by the Workplace Relations Commission on 5 May 2022. Therefore, pursuant to section 41(6) of the Workplace Relations Act 2015 provides that the cognisable period and jurisdiction over which the Workplace Relations Commission can accept any claim under the Payment of Wages Act is for the period of 6 November 2021 to 5 May 2022.

· Section 41(6) provides as follows:

“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 a period of six months beginning on the date of contravention to which the complaint relates…”

· As per the decision of the Workplace Relations Commission in Baitson v ESB Networks the only period the adjudication officer can consider is a six month period ending on the date on which the complaint was received by the Workplace Relations Commission. There is no power, therefore for any prospective wages sought to be recoverable under the Payment of Wages Act 1991. In this regard the decision of A Public Servant v A Public Authority held that:

“There is no prospective power under the Payment of Wages Act 1991 and each claim is for a period retrospective to the date the complaint form was received by the Workplace Relations Commission. The retrospective period is limited to a period of six months prior to the relevant complaint being lodged as per section 41(6) of the Workplace Relations Act 2015.”

· The foregoing is relevant having regard to the alleged increment to the Complainant sought under the Payment of Wages Act 1991, as per section 67 of his written legal submissions being due on 3 June 2021 and 13 July 2022. In other words, even on the Complainant’s own complaints and case the wages properly payable arose in June 2021 (in excess of a period of six months from the date of lodging of the claim) and after the claim was lodged in May 2022.

· On the basis of the foregoing alone the complaint should be found to be not well founded and outside of the jurisdiction under section 51(6) of the Workplace Relations Act 2015.

· Without prejudice to the foregoing there are no wages properly payable to the Complainant as per section 5(6) of the 1991 Act. The Complainant’s contract of employment of January 2021 provided that his salary was €39,076 and this was the remuneration he received.

· Section 5(6) of the Payment of Wages Act 1991 that in order for a claim to lie under the Act, the wages must be ‘properly payable’. Section 5(6) provides as follows:

“(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act)…”

· InDunnes Stores Cornelscourt Limited v Lacey the High Court made it clear in considering a claim under the 1991 Act, an adjudicator must have regard to the importance of establishing what remuneration was “properly payable”. The High Court found that the Tribunal had erred in law in determining that the employees were entitled to a long service payment in circumstances where there was no evidence of any agreement by the employer to make that payment to them. In that case, the employer withdrew a long service payment and replaced it with a long service increment. The employer made it clear that it was entitled to change this payment whereas the employees said their consent was required. Finnegan J overturned the decision of the EAT on the basis that there was no evidence that there was a contractual entitlement to the payments:

“I am satisfied upon careful perusal of the documents relied upon by the Respondentsthat the same cannot represent the agreement or an acknowledgement of the agreement contended for but rather contain a clear denial of the existence of any such agreement. No other evidence of an agreement was proffered. In these circumstances I am satisfied that the Employment Appeals Tribunal erred in law in failing to address the question of the remuneration properly payable to the Respondents such a determination being essential to the making by it of a determination. Insofar as implicit in the determination of the Employment Appeals Tribunal is a finding that the Appellant agreed to pay to the Respondents service pay and a long service increment then such finding was made without evidence and indeed in the face of the evidence: I am satisfied that there has been no deduction of pay from the Respondents within the terms of the Act but rather their remuneration has been unilaterally increased by the Appellant making a payment which recognises their long service in excess of that which was payable prior to the 18th September 2002. In either case there has been an error or law. Accordingly, I allow the appeal.”

· More recently, the High Court has held, in light of the Dunnes Stores judgment, “the proposition that the first matter which should be addressed by the Labour Court is to determine what wages are properly payable under the contract”.

Protection of Employees (Fixed-Term Work) Act 2003

· Whilst it appears as per the written submissions furnished on behalf of the Complainant, that his claim is as against the Department of Education and/or the Department of Public Expenditure and Reform, the Respondent disputes same and the Complainant is clearly an employee of the Respondent.

· In addition he is not a civil servant. The judgment of Murphy v Minister for Social Welfare[1]held that:

“The correct test to be applied in determining whether the applicant was a civil servant would appear to be whether he was a servant of the State in its political capacity, and in my opinion he was. He was a State civil servant exercising an important function in the area of industrial relations; he was paid out of monies voted by the Oireachtas for the Department of Labour (now Business Enterprise and Innovation) and he was under the control of the Minister for Labour who could remove him from office for stated reasons…”

· There was no power of the Minister for Education and/or the Minister for Public Expenditure and Reform to terminate the employment of the Complainant and no consent was required. The Complainant did not work under the control of any individuals within the Department of Education and Skills (now Department of Education) and/or Department of Public Expenditure and Reform. At all times he worked under the control of individuals who had been seconded to the Respondent pursuant to section 9(2) of the 2000 Act and/or civil servants. Section 9(1) of the 2000 Act provides that the Commission “may, with the consent of the minister and Minister for Finance, appoint so many persons as theCommission may determineto be members of staff of the Commission”. This is the section which covers the Complainant.

· It is not correct for the Complainant to assert as per section 9(3) of the 2000 Act that anyone appointed to the Commission should not have any less favourable terms and conditions of employment than those seconded. In fact, section 9(3) provides that it is only people who are seconded to the Respondent that cannot have their terms and conditions provided on a no less favourable basis to those applicable to him as an officer of a relevant government department.

· Without prejudice to the foregoing, and as is accepted by the Complainant within his written legal submissions, he was engaged pursuant to a contract of indefinite duration. The position of the Respondent is that this took place in January 2021.

· In this regard the Complainant lacks the standing to bring a claim under the 2003 Act by virtue of him not being a fixed term employee. The claim of the Complainant under the 2003 Act is clearly premised on there being alleged less favourable treatment as compared to DK, a civil servant. Section 6(1) of the 2003 Act provides as follows:

“A fixed term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee”.

· Therefore, the Complainant must be a fixed term employee at the relevant time to ground any such claim of less favourable treatment.

· Section 2(1) of the 2003 Act provides the following definition of a fixed term employee:

“A fixed term employee means a person having a contract of employment entered into directly with the employer where at 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…”

Conclusions

The following is submitted:

· At all times the Complainant is not a civil servant and rather was a contract worker engaged as an administrator within the Respondent and the Respondent is the appropriate respondent to all of the three claims lodged with the Workplace Relations Commission.

· The Payment of Wages Act 1991 complaint is misconceived in circumstances where there is no such jurisdiction to consider this claim and/or no wages are properly payable to the Complainant.

· The claim under the Protection of Employees (Fixed-Term Work) Act 2003 is misconceived as the Complainant lacks the standing to bring the claim.

Findings and Conclusions:

CA – 00050488 – 002

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The representative for the Respondent has stated the following:

· Section 41(6) provides as follows:

The Respondent utilises incremental pay scales. Increments are awarded annually and paid in accordance with the pay frequency, in the instant complaint, fortnightly.

As the deductions occur every pay day, I therefore find that they were continuous and must now conclude that the complaint as presented is well found and would draw attention to the file note (dated 14th May 2019) attached at appendix H of the complainant’s submission. This is a file note written by the Secretary to the Commission clearly stating that the Complainant was being placed on an incremental pay scale and should be reviewed in 12 months’ time if the Commission remains open…… The Commission did remain open, the Complainant continued working for the Commission for a period of three years post the writing of this file note.

I conclude that this complaint is well founded.

I note that the representative for the Complainant has made an effort to calculate the deduction experienced by the Complainant but has also stated that they would be guided by the National Shared Services Office.

I now order the Respondent to establish the amount of the under payment (with the assistance of the National Shared Services Office) agree this amount with the Complainant’s representative and make the payment to the Complainant within 42 days from the date of this decision.

CA – 00050488 – 003 - Protection of Employees (Fixed-Term) Work Act, 2003.

The Complainant commenced employment with the Respondent on 8th June 2005. Employment ended on 4th May 2022. During this period the Complainant was issued with 48 Contracts of Employment. Forty-seven of these contracts were of a fixed term nature and included a start date and a finish date. The final contract was signed by both the employer and employee on 12th January 2021 and the first paragraph of this contract reads as follows:

“The Commission to Inquire into Child Abuse (the Commission) appoints Conor Ryan (address redacted), (the Employee) on specific purpose contract basis subject to the following terms and conditions:”

The Protection of Employees (Fixed-Term Work) Act 2003, definition reads as follows:

An Act for the implementation of Directive No. 1999/70/EC/ of 28th June 1999, of the Council of the European Communities concerning the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP, to amend the Employment Agency Act 1971, the Organisation of Working Time Act 1997 and the Protection of Employees (Part-Time Work) Act 2001 and to provide for related matters. [14th June 2003].

The Respondent’s representative argued that the Complainant was not a fixed term employee, from at the very latest January 2021 and therefore has no standing under the Act to make a complaint. I note that the complaint was received by the Workplace Relations Commission on 5th May 2022, at this time the Complainant was not a fixed-term employee.

I must now conclude that the Complainant has no standing to make this complaint and find the complaint as submitted is not well-founded.

Decision:

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

CA – 00050488 – 002

Complaint submitted under section 6 of the Payment of Wages Act, 1991.

The complaint is well founded – please see above.

CA – 00050488 – 003 - Protection of Employees (Fixed-Term) Work Act, 2003.

The complaint is not well found.

Dated: 13-08-2024

Workplace Relations Commission Adjudication Officer: Jim Dolan

Key Words: