Complainant

Respondent

Parties

Audrey  Whelan

An Garda Síochána

Representatives

Fórsa

Employee Relations  

Act

Complaint 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-00047587-001

10/12/2021

The complainant works as a cleaner with the respondent.

A complaint seeking adjudication under the Protection of Employees (Fixed-Term Work) Act 2003 was received by the Workplace Relations Commission on 10 December 2021.

Delay and lack of engagement are evident throughout how the respondent has dealt with matters concerning the complainant, including its provision of submissions in this case and lack of information to the Commission in relation to how the relief cleaner panel operated.

The complainant’s union first raised the matter of contracts of indefinite duration with the respondent in January 2021.  Despite the respondent’s agreement on an entitlement to a contract of indefinite duration, the matter was not progressed by the respondent. 

The respondent’s lack of engagement with the complainant’s union resulted in the referral of this complaint to the Workplace Relations Commission.  The respondent’s failure to engage continued in 2022 and 2023.  The respondent issued a contract of indefinite duration to the complainant in February 2023 which it subsequently withdrew.  An amended contract issued in March 2023; this too was withdrawn.  The respondent issued a third contract of indefinite duration in April 2023.  The contract of indefinite duration was backdated to 2019 and provided for payment on a point of the cleaner salary scale, annual and sick leave benefits and pension scheme access.

It was submitted that the respondent had breached the Protection of Employees (Fixed-Term Work) Act 2003.  Compensation was sought for the breach, delay and disregard shown by the respondent.

Summary of complainant’s sworn evidence

The complainant applied for the role of relief cleaner at Garda Headquarters through an open competition in March 2016.  She was interviewed on foot of her application.  The complainant was not informed following the interview as to whether she had been successful in her application.  In August 2016, the complainant was contacted by the superintendent of cleaners to say that there was cover required for a 2-week period in Garda Headquarters.  The complainant did not hear anything subsequent to this period of work, so she contacted the respondent to see if there was any further work.  The complainant carried out a few different roles with the respondent from October 2016 up until Christmas 2016. From January 2017, the complainant has worked continuously, mostly covering persons on long-term leave.  Most recently, she covered a long-term absence in Garda Headquarters, which work continued after the person on leave retired.  The complainant was told she was working long-term and in a permanent location.  She remains working in Garda Headquarters. 

The complainant never received a written contract or statement of terms of employment and nobody from the respondent explained to her the details of her employment.  She did not receive paid annual leave.  There was a per annum lump sum payment for annual leave.  The complainant never took holidays, sick leave or any other type of leave.  The complainant asked the superintendent of cleaners about a contract after being there for a period of time and was told this was something she would have to contact her union about.  

The respondent did not offer witnesses and presented its case by way of submission.

Summary of written and oral submissions

The complainant is a relief cleaner with the respondent.  She was granted a contract of indefinite duration, backdated to 1 April 2019 with retrospective incremental progression offset against pension contributions.

The respondent referred to decisions in related cases before the Commission where the complainants were found not to have locus standi and submitted that the complainant’s case was no different.

In the alternative, it submitted that the complaint is already resolved and therefore has no merit.

Various ad-hoc arrangements for relief cleaner work were utilised by the respondent.  The respondent recognised that this could not continue and that there were entitlements to contracts of indefinite duration based on service.

The respondent accepted that there were delays in bringing the contracts to fruition but that it was a complex matter which required input from various units and agreement from the senior leadership team as to the terms and conditions of the contract. 

It was ultimately agreed by the senior leadership team to award a contract of indefinite duration, backdated to take effect from 1 April 2019, and to afford incremental credit from that date thereby placing the complainant on point 5 of the cleaner scale with effect from 1 April 2023.  Arrears owed were calculated and off-set against any superannuation payments owed by the complainant for pension credit under the Single Pension Scheme since 1 April 2019. 

There had been a satisfactory outcome to this matter, the complaint has been resolved, and any further penalty on the respondent would be disproportionate.

A complaint seeking adjudication under section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 (the “2003 Act”) was referred to the Workplace Relations Commission on 10 December 2021.

Compensation was sought on behalf of the complainant for the respondent’s failure to award the complainant a contract of indefinite duration in a timely manner, and for the respondent’s delay and disregard in acknowledging the complainant’s rights and entitlements under the 2003 Act.

The respondent submitted that the complaint was resolved and without merit as it had afforded the complainant a contract of indefinite duration as a relief cleaner backdated to 1 April 2019. 

The Factual Background

The complainant has worked as a cleaner with the respondent since 2016.   Her role was described by the respondent as a relief cleaner.

The respondent operated relief panels for cleaning staff at a time when it was unable to run competitions for permanent staff.  Various ad hoc arrangements developed for how relief cleaner work was utilised by the respondent.

When the complainant commenced working for the respondent in 2016, she was contacted as to when and what location the respondent required her for work. Since 2017, the complainant has worked consistently covering for persons on long-term leave.  The person the complainant was most recently covering for resigned and the complainant has continued in the role.

From 2016 until 2023, the complainant’s rate of pay was a fixed hourly rate aligned to the first point of the salary scale for the grade of cleaner.  The complainant did not receive incremental credit, paid sick leave or other leave entitlements to which permanent employees in the grade of cleaner were entitled. There was no written contract or statement of the complainant’s terms of employment with the respondent in respect of this period.  

The complainant’s union raised the matter of contracts of indefinite duration for relief cleaners with the respondent in January 2021.  The issue was not progressed to the satisfaction of the complainant and the within complaint was referred to the Commission in December 2021.

At the time of the hearing, the respondent had offered the complainant a contract of employment of indefinite duration, which had been accepted by the complainant.  That contract makes provision for more favourable terms and conditions than those held by the complainant previously, including provision for pay with incremental credit, superannuation and paid sick leave.

The uncertainty the complainant experienced in employment, the shortcomings in how her employment was managed and the delays in addressing these issues were acknowledged at the hearing by the respondent’s representative.

Locus Standi

Given the interaction between the parties on the matter of the complainant’s employment, it is understandable how the complainant considered herself to be a fixed-term employee and the decision was taken to refer this complaint under the 2003 Act.  However, my jurisdiction derives from the 2003 Act and is not conferred by the agreement or acquiescence of the parties.  I must be satisfied that the complainant was a fixed-term employee within the meaning of the 2003 Act at the material time of referral of the complaint or in the cognisable period because otherwise she can have no legal standing to maintain a complaint under the 2003 Act. 

Section 2 of the 2003 Act defines a fixed-term employee as:-

“… a person having a contract of employment entered into directly with an employer where 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 but does not include –

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;”

This definition was considered by Laffoy J. in Nerney v Thomas Crosbie Holdings Ltd [2013] ELR 238.  The plaintiff in that case was employed in 2004 pursuant to what was described as an executive contract.  The contract was expressed to be for a period of four years and to continue for periods four years unless the defendant gave notice of an intention not to renew at least 6 months before the expiry of any four-year period.  An issue for Laffoy J. to determine was whether the plaintiff was a fixed-term employee within the meaning of section 2 of the 2003 Act from the commencement of his employment with the defendant under the executive contract.  In the following extract from the judgement, Laffoy J. explains the essential characteristic of fixed-term employment, namely that it be determined by an objective condition:-

“The application of the definition of fixed-term employee to the plaintiff as an employee of the defendant under the Executive Contract raises the question whether the end of the Executive Contract is determined by an objective condition.  Having regard to the examples of “objective condition” set out in the definition, and also in s.8(1) of the Act of 2003, I understand “objective condition” to mean a condition which is identifiable by reference to the object, that is to say, the condition, without reference to the view or perception or intervention of either party to the contract.  A contract, such as an Executive Contract, the term of which is expressed to be from the commencement date for a period of four years and continuing for further periods of four years unless determined by six months’ notice from the employer given at least six months before the expiration of any four year period cannot be said to be determined by an objective condition, because the intervention of the employer, which may or may not happen, and in this case did not happen over a period of eight years is necessary to give rise to and identify the determining event.”

Application of the Law

The descriptors “relief cleaner” and “relief panel” might reasonably be understood to mean that persons on the panel were drawn down to provide cover or replacement for core or unavailable staff members.   However, there was no real clarity provided as to how the relief panel operated or of the employment status of persons on the panel.  On the evidence before me, I am satisfied that the complainant was employed to meet an ongoing and continuing need for cleaning personnel in the respondent organisation, and that the uncertain nature of her role stemmed from how the panel was managed and employment law compliance issues. 

Whilst the complainant had different terms and conditions of employment to other staff members who were engaged in similar work, this is not conclusive of fixed-term employment.  There was no documentation or information provided to the complainant relating to the terms of her employment from 2016, and no official communication from HR or management in this regard.  This was a highly undesirable situation.

I cannot find on the evidence before me that the complainant was employed at the material time on a contract of employment determinable by an objective condition such as reaching a specific date, completing a specific task or the occurrence of a specific event.  The complainant’s work arrangements from 2017 are not consistent with fixed-term employment.  Whilst the complainant may initially have been employed to provide cover for core or unavailable staff, I am not satisfied that this was the position from 2017 onwards.  There was also no evidence of the relief panel having been established for a fixed period of time, specific purpose or until the occurrence of a specific event, nor indeed did the respondent’s representative assert this to have been the case. 

In the circumstances, I find that the complainant was not a fixed-term employee within the statutory meaning of that term and accordingly lacks the legal standing to maintain this complaint under the 2003 Act.

I find that the complainant does not have the legal standing to maintain the complaint under the Protection of Employees (Fixed-Term Work) Act 2003 for the reasons set out above.

In such circumstances, my decision is that this complaint is not well founded.

Protection of Employees (Fixed-Term Work) Act 2003 – Locus standi