Complainant

Respondent

Parties

Kevin  Kielty

Inland Fisheries Ireland

Complainant

Respondent

Anonymised Parties

Representatives

Self-Represented

Mr. Michael McGrath, IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under the Protection of Employees (Fixed-Term Work) Act 2003

CA-00055886-001

31/03/2023

The Complainant commenced employment with the Respondent on 4th April 2022. At all relevant times, the Complainant was engaged as a “seasonal fisheries officer”. The Complainant was engaged under a fixed-term contract, with the term coming to a natural conclusion on 3rd October 2022.

On 31st March 2023, the Complainant referred present complaint to the Commission. Herein, he alleged that the Respondent had treated him less favourably in comparison to a comparable permanent employee. In particular, the Complainant alleged that an “unsocial hours” payment was unfairly reduced for those engaged on a fixed term contract. In denying this application, the Respondent submitted that the reduction was not less favorable as it was reduced on a pro-rata basis dependent on length of service.

A hearing in relation to this matter was convened for, and finalised on, 18th September 2023. Both parties issued submissions prior to the hearing, these submissions were expanded upon and contested in the course of the hearing. In circumstances whereby no material dispute existed as to the factual matrix referred by the parties, no direct evidence was called.

Prior to the hearing, the Respondent raised a preliminary issue as to jurisdiction. In circumstances whereby this matter may be determinative of the entire proceedings, this was considered in advance of the substantive matter.

At the outset of the hearing, the Respondent submitted that the complaint referred actually related to the Protection of Employees (Part-Time Work) Act 2001. In circumstances whereby the Complainant had not complied with the statutory requirements for the referral of such a complaint, they submitted that the complaint should fail.

In this regard, it is noted that on the originating complaint form, the Complainant ticked the box alleging a less favourable conditions than a comparable permanent employee. This box refers a complaint under the Protection of Employees (Fixed-Term Work) Act 2003. In the “details of your complaint” section of the complaint form, the Complainant set out a factual matrix which clearly and unambiguously related to such a complaint. However, in the following correspondence, and in all correspondence up to and including the invite to the hearing, the complaint reference above related to a complaint under the Protection of Employees (Part-Time Work) Act 2001. In such circumstances, the Respondent submitted that the matter was properly referred under that Act and requested that the same be dismissed on that basis.

Having reviewed the above sequence of events, it is apparent that the matter referred was in fact a complaint under the Protection of Employees (Fixed-Term Work) Act 2003. Thereafter, it is apparent that the correspondence issued thereafter erroneously referred to a complaint under the Protection of Employees (Part-Time Work) Act 2001. While I note that the Respondent was invited to hearing in relation to the latter legislation, it is noted that they issued a comprehensive submission in relation to the former legislation and suffered no prejudice in relation to the defence of the allegations as raised by the Complainant.

In the matter of County Louth Vocational Educational Committee v The Equality Tribunal and Pearse Brannigan [2009] IEHC 370, McGovern J. held that,

“I accept the submission on behalf of the respondent that the Form EE1 was only intended to set out, in broad outline, the nature of the complaint. If it is permissible in court proceedings to amend pleadings, where the justice of the case requires it, then a fortiori, it should be permissible to amend a claim as set out in a form such as the EE1, so long as the general nature of the complaint (in this case, discrimination on the grounds of sexual orientation) remains the same.”

McGovern, J. went on the state that,

"the respondent...must be given a reasonable opportunity to deal with these complaints and the fair procedures adopted by the Equality Officer must be fair and reasonable and in compliance with the principles of natural and constitutional justice."

In the matter of Clare County Council v Director of Equality Investigations [2011] IEHC 303 Hedigan J. held that,

“It is clear from the foregoing that because the EEI form is only designed to set out the generality of a complaint, complainants should be allowed to expand on matters not specified in the form. So long as respondents are not taken by surprise, or alternatively given adequate time to answer, there can be no injustice therein.”

Finally, in the matter of Galway-Mayo Institute of Technology v Employment Appeals Tribunal [2007] IEHC 210, Charleton J. held that,

“It follows from the foregoing that a judicial or quasi-judicial tribunal is not entitled to invoke a statutory remedy which no one has sought and in respect of which no one is on notice. For the purpose of fulfilling the requirements of natural justice, however, I would have thought that if any such tribunal does have jurisdiction to give a remedy under a particular Act, then if this remedy is sought in an originating document, for instance by ticking a box giving a choice of remedies, or if it is orally sought to in the course of the hearing, such a tribunal is entitled to make a choice in favour of it. If that happens, parties have to be taken as being aware that in the event that a decision goes a particular way the tribunal may look to a remedy claimed. In that regard, I would regard a written claim or an oral assertion seeking a particular remedy as being sufficient for the due administration of constitutional justice provided the tribunal has jurisdiction in respect of it. If remedies are complex, and a tribunal has rules as to notice in the form of simple originating documents, then it should abide by its own procedures or consider the grant of an adjournment to a genuinely surprised party.”

In circumstances whereby the initial complaint was one under the Protection of Employees (Fixed-Term Work) Act 2003, and this complaint was fully defended without any prejudice arising, I find that the references to the Protection of Employees (Part-Time Work) Act 2001 arise from an administrative error. In such circumstances, it would be grossly unfair to prevent the complaint from proceeding on this basis and jurisdiction is assumed under the Protection of Employees (Fixed-Term Work) Act 2003.

By submission, the Complaint stated that he was engaged with the Respondent on a fixed term contract from April to October 2022. As part of the Complainant’s contractual terms, he was entitled to an “unsocial hours” allowance for certain work completed outside of normal working hours. This allowance provided for a certain increase in the Complainant’s hourly rate when such work was assigned and completed. During the Complainant’s six-month term, he worked in excess of 400 such hours.

Towards the end of the Complainant’s employment, he sought payment for the hours worked. At this juncture, the Complainant was informed that the payment of unsocial hours is determined by contract length. In this regard, employees engaged under a six-month contract can receive payment for 200 such hours, while a permanent employee can received payment for 400.

The Complainant submitted that the Respondent had failed to pay him for 200 unsocial hours, a payment to the value of approximately €3,000. He stated that the only reason that this payment was refused was due to the fact that he was engaged under a fixed-term contract, and that a comparable permanent employee would be entitled to receive payment in respect of the same. 

In denying the Complainant’s allegation, the Respondent accepted much of the factual matrix presented by the Complainant.

Notwithstanding the foregoing, the Respondent submitted that the Complainant fundamentally misunderstood how the scheme was operated and applied. In this regard, the allowance is payable at a certain level per week once a certain threshold of such hours has been reached. Regarding the present case, the Complainant easily reached that threshold and consequently received the maximum payment allowable under the contract. While a comparable permanent employee might receive a greater payment over the course of the year, the are entitled to the same weekly payment. In such circumstances, a comparable permanent employee has a higher minimum threshold of hours worked to receive such a benefit, this being the 400 hours referred to by the Complainant. In this regard, it was submitted that this threshold is double that of a six-month contract- a pro-rata increase.

In the present case, the Complainant has alleged that the Respondent refused to pay an unsocial hours allowance. He submitted that once he queried the same, it became apparent that the payment was not made as a consequence of his fixed term status. He submitted that such a position breaches the impleaded Act and that consequently he is entitled to a form of redress in respect of the same.

In this regard, Section 6(1) of the Act provides that,

“…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.”

Regarding the present complaint, the relevant provision in the contract of employment states that the Complainant is entitled to,

“An unsocial hours allowance …for the period of the contract will be payable should you work a minimum of 200 plus unsocial hours”.  

In this regard it is apparent that a comparable permanent employee’ contract has an almost identical provision, with the minimum hours required being 400 plus.

The Complainant’s issue in this regard is that he worked in excess of 400 hours during his six-month term but did not receive payment in receipt of the same. While it is apparently agreed that the Complainant did work this amount of hours, the operation of the contractual provision quoted above does not provide for an hourly rate in respect of such work. Rather, the provision allows for an allowance to be paid once a minimum threshold of unsocial hours has been completed. This is the same provision for a comparable permanent employee, with the minimum hour requirement doubled on a pro-rata basis.

Having considered the foregoing, it is not apparent that the Complainant was treated in a less favourable manner than a comparable permanent employee. The Complainant received the maximum contractual unsocial hours allowance for the duration of his employment. The position regarding a comparable permanent employee is not that they would receive, or were in any way entitled to, an increased rate, but that the entry requirements for the receipt of same were increased on a pro-rata basis. While the Complainant may well hold the view that the application of the scheme is unfair, having regard to the evidence presented, it is apparent that the same is equally unfair to a comparable permanent employee.

Having regard to the foregoing, I find that the complaint is not well-founded.

I find that the complaint is not well-founded.

Fixed-Term, Conditions of Employment, Comparable Permanent Employee