Complainant

Respondent

Parties

Conor  Ryan

Department Of Public Expenditure & Reform

Representatives

Cliodhna McNamara Forsa Trade Union

Aideen O’Brien

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00055378-001

12/02/2023

The Complainant was employed with the Commission of lnquiry into Child Abuse (CICA) as a Clerical Officer with effect from the 8th of June 2005, employment ended on 13th July 2022.

This complaint was received by the Workplace Relations Commission on 12th February 2023.

Introduction.

1. 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 and was on 48 rolling contracts for a period of 17 years. Conor's most recent contract of employment with the CICA. Although Conor was never issued with a formal Contract of lndefinite Duration there is an acceptance and understanding that he was on a Contract of lndefinite Duration at the end of his employment. We do not believe this will be disputed. Conor received correspondence on the 6th of April,2022 advising him that as a result of the’ significant reduction in the workload and the needs of the CICA, the position to which he was appointed pursuant to the CICA Act 2000, ceases to exist and that he is at risk of redundancy'... Conor was dismissed from employment on the 13th of July,2022.

2. The correspondence commences a consultation process but at no time were Forsa contacted with regard to the proposed redundancy situation that existed in the CICA despite the fact that the Secretary was aware that Forsa represented employees in the CICA.

3. Forsa contends that while the CICA claim that Conor was legitimately made redundant, the circumstances constituting the redundancy applies equally to all employees and Forsa are aware of least one of Conor's colleagues was not subject to any redundancy process and is still working in the CICA which implies that the redundancy process applied to what were deemed to be contract staff only, but this is still not clear.

4. As referenced, the employer did not consult with Forsa and therefore did not present an opportunity to Conor directly to discuss the selection process for redundancy with Forsa. Forsa are unaware of the actual selection process and what occurred despite having corresponded with the employer in this regard.

5. Forsa further contends that ultimately the Department of Education and the Department of Public Expenditure and Reform have responsibility for Conor as an employee and so if Conor had been legitimately selected for consideration of redundancy, then an alternative role in the public service should have been explored but it was neither discussed nor explored. As a state employee, we contend that ultimately Conor should have been redeployed back into the civil and public service.

6. Had a genuine consultation process taken place prior to reaching a decision as to redundancy and there was no other option but to make Conor redundant, then Forsa would argue that the Collective Agreement for Redundancy payments in the Public Service should have been applied and it was not.

Conor's Recruitment into the CICA

7. 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'

8. 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.

9. 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 o 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 os 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 os 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.

10. 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.

11. 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.

12. Conor was directly recruited into the CICA and commenced employment on the 8th of June 2005. ln and around 2013 / 2014 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.

 13. 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.

14. 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

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

16. 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.

17. At the time of his dismissal from employment he was on the maximum point of the Clerical Officer scale i.e. (LSl 2). 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.

18.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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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

24. 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 servant and in the same way as it did with his colleague Deirdre Kellett.

25. As referenced in our introduction, we contend that Conor was unfairly dismissed by reason of redundancy.

The relationship between the Department of Public Expenditure and Reform and the Department of Education with the Complainant is described in the submissions dated 20 April 2023 in the related case bearing adjudication number 00040405. In addition to what has been described in those submissions, neither of these two Departments were involved in the decision to dismiss the Complainant and were not part of the alleged consultation process which took place between the Complainant and CICA in respect of the redundancy process. For the avoidance of doubt, neither of these Departments played no active role in the decision to make the Complainant redundant.

PRELIMINARY OBJECTION

·       Section 42 of the Workplace Relations Act 2015 allows an Adjudication Officer to, at any time, dismiss a complaint referred to him or her if he or she is of the opinion that it is frivolous and / or vexatious.

·       Both the Department of Public Expenditure and Reform and the Department of Education submit that the Complainant’s complaint, seeking adjudication by the Workplace Relations Commission, is frivolous and / or vexatious for the following reasons:

o    Neither Department amounts to the Complainant’s employer; and/or

o   The complaint under section 8 of the UDA is statute barred.

Definition of employer for the purposes of the UDA

·       Pursuant to section 8 of the UDA, a “claim by an employee against an employer for redress” can be referred to the WRC. Pursuant to section 7, the WRC can order the re-instatement and/or re-engagement by the employer of the employee or can direct that the employer pays compensation towards the employee. Therefore, if an employee has been unfairly dismissed, it is clear, pursuant to section 7 and section 8, that liability rests with the employer and the WRC may make an order against the employer.

·       An “employee” for the purposes of the UDA “means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and, in relation to redress for a dismissal under this Act, includes, in the case of the death of the employee concerned at any time following the dismissal, his personal representative”.

·       An “employer” for the purposes of the UDA means “in relation to an employee, means the person by whom the employee is (or, in a case where the employment has ceased, was) employed under a contract of employment and an individual in the service of a local authority for the purposes of the Local Government Act, 1941, shall be deemed to be employed by the local authority”.

·       “Contract of employment” for the purposes of the UDA means a contract of service or of apprenticeship, whether it is express or implied and (if it is express) whether it is oral or in writing.

·       It is submitted that the employer amounts to the person who has entered a contract of employment with the employee. Therefore, CICA amount to the employer of the Complainant and not the Second and/or Third Named Respondent. Furthermore, it is clear that liability rests with the employer, who is CICA.

Relevant authorities

·       The relevant authorities have been set out in the submissions dated 20 April 2023 in the related case bearing adjudication number 00040405. As can be seen from the Minister for Education and Skills & anor -v- Boyle & anor [2018] IESC 52, the Supreme Court consider the definition of “employer” for the purposes of the Protection of Employees (Part – Time Work) Act 2001 (the “2001 Act”). The 2001 Act defined an “employer” as “the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment…” anddefined “contract of employment” as, inter alia, a “contract of service”. The Supreme Court found that in order to amount to a contract of service, the employee must work under the control of the employer and the employer is the person who can direct the type of work that the employee is required to do. The definition of “contract of employment” for the purposes of the UDA is similar to the definition contained in the 2001 Act. In circumstances where it was CICA, and not the Second and/ or Third Named Respondent, who had control over the particular type of work that would be carried out by the Complainant and directed the type of work that the Complainant did, CICA amount to the body which is in a contract of service with the Complainant and, therefore, applying Boyle, amount to the “employer”.

The complaint under section 8 of the UDA is statute barred

·       The Complainant’s complaint must be made within six months of the alleged breach of the Act. This period of time can be extended by a further 6 months if the failure to present the complaint or refer the dispute within the initial 6-month period was due to reasonable cause.

·       The Complainant identifies the date of dismissal as 13 July 2022. The Complaint form is dated 12 February 2023. Therefore, more than 6 months have elapsed since the date of dismissal and the issuing of the complaint and the Complainant has not identified any cause, reasonable or otherwise, for failing to present his complaint within the 6 – month time limit.

CONCLUSION

·       It is submitted that the Complainant’s complaint should be dismissed for the reasons advanced above

The first question that has to be addressed is the identity of the employer – who was Mr Ryan employed by?

At all material times the complainant was a member of staff at the Commission to Inquire into Child Abuse (CICA). He was engaged and interviewed directly by CICA and was appointed and recruited by the then Secretary of CICA with approval of the Chairperson. At no time were either of the Department of Education or the Department of Expenditure and 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. The complainant’s representative has highlighted the number of fixed-term contracts (48) issued to the complainant. Each of these contracts quite clearly state that the appointment is employment as “Clerical Support”.

It is very clear to me that the Complainant was an employee of the Commission to Inquire into Child Abuse (CICA). The named Respondent in this complaint is Department of Public Expenditure and Reform - this Department were never the employer of the Complainant.

This complaint as submitted is not well found. There is no case to be answered by this Respondent.

This complaint as submitted is not well found. There is no case to be answered by this Respondent.