ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00045769
Parties:
| Complainant | Respondent |
Parties | Aleksandra Matuszewska | Mk All About Food Limited |
Representatives | Self-represented | Thomas Ryan Peninsula |
Complaint:
Act | Complaint/Dispute 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-00056545-001 | 09/05/2023 |
Date of Adjudication Hearing: 11/12/2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complaint is that the Respondent failed to provide the Complainant with a written statement of objective grounds for justifying the renewal of her fixed-term contract and the failure to offer a contract of indefinite duration.
Summary of Complainant’s Case:
The Complainant was employed as a Shop Assistant from 6th February 2022 to 31st January 2023. During the period she was provided with three written fixed-term contracts. Her employment was terminated on 31st January 2023 when the Respondent employed two new staff. She was told that her position was being replaced by a Supervisor.
Summary of Respondent’s Case:
The summary of the Complainant’s employment is as follows:
Commenced Employment: 6th February 2022
Employment Ended: 31st January 2023
Lodged Claim: 9th May 2023
Hours: 36 hours per week
Wages: €987.50 gross per Fortnight
MK All About Food Limited (hereinafter referred to as ‘Respondent’) operates a Shop and has a number of employees. Aleksandra Matuszewska, (hereinafter referred to as “the Claimant”) has taken a claim against the Respondent. The claimant worked as a shop assistant with the Respondent.
The claimant was engaged on a series of short Contracts/ Fixed Term Contracts commencing on the 6th February 2022. The claimant’s employment/engagement with the Respondent concluded on the 31st January 2023. The claimant has made a claim under Section 14 of the Protection of Employees (Fixed Term work) Act 2003, [hereinafter referred to as the “the Act”]
In particular the Claimant claims that she is entitled to a ‘contract of indefinite duration’ under ‘the Act’. This is denied by the Respondent.
Preliminary Application:
It is respectfully submitted that the Adjudicator does not have jurisdiction to hear the complaint for reasons set out hereunder:
The Law Applicable
Section 9 of the Act provides the circumstances in which a fixed-term employee can accrue an entitlement to a contract of indefinite duration. This Section provides: -
9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.
The effect of Section 9(2) is to provide that where (after the passing of the Act) a fixed-term worker has completed four years of continuous employment on two or more fixed-term contracts, the aggregate duration of such contracts shall not exceed four years.
The Claimant does not even have one year’s service.
Findings and Conclusions:
The Complainant was employed on 3 fixed-term contracts from 6th February 2022 until 31st January 2023. As the aggregate duration of the contracts did not exceed 4 years, the provision of Section 9 (2) of the Act does not apply in this case. However, the Complainant specifically cited in the complaint form, the failure of the Respondent to provide a written statement of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration. It is to this complaint, I address my findings.
Section 8 of the Act provides:
8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is— |
(a) arriving at a specific date, |
(b) completing a specific task, or |
(c) the occurrence of a specific event. |
(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal. |
(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act. |
(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act— |
(a) that an employer omitted to provide a written statement, or |
(b) that a written statement is evasive or equivocal, |
the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances. |
In this case, the Complainant contends that by the failure to provide a written statement of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, the Respondent has breached the terms of Section 8 (2) of the Act
Time limit for submitting complaints
Section 41 (6) of the Workplace Relations Act 2015 provides:
“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 the period of 6 months beginning on the date of the contravention to which the complaint relates.
In this case, the Complainant was provided with three written contracts. The first contract was issued in compliance with Section 8 (1) (a) of the Act. The second written contract, issued on 1st May 2022 provided that the fixed term contract was for a specific period but failed to state the objective grounds justifying the renewal and the failure to offer a contract of indefinite duration. The Complainant was provided with her third written contract in or around 1st August 2022. This contract was not available for examination.
In any event, in order for the Complainant’s complaint to be entertained, the latest date for receipt of the complaint in relation to the latest written contract provided to the Complainant was 31st January 2023. As the complaint was received on 9th May 2023, I find the complaint is out of time and is not well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
For the reasons stated, I have decided that the complaint is out of time and is not well founded.
Dated: 16th of February 2024
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Fixed-Term Work, contracts, failure to provide objective grounds, complaint out of time. |