Complainant

Respondent

Parties

Wesley  Gibbons

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-00047596-001

10/12/2021

The complainant worked 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 is 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 cleaner relief panel operated.

The complainant’s union first raised the matter of contracts of indefinite duration with the respondent in January 2021.  The respondent failed to engage on the matters raised. 

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 complainant has the requisite service for a contract of indefinite duration.  He commenced employment in May 2016 and worked consistently with the respondent from May 2016 until September 2020.  The complainant informed the superintendent of cleaners in September 2020 that he would be temporarily unavailable for work for personal reasons. The complainant is fit, willing and able to return to work.  The respondent did not terminate the complainant’s employment and the complainant remains on the respondent’s relief panel.    The complainant has not been awarded a contract of indefinite duration which is inconsistent with the respondent’s position that such contracts would be awarded to persons on the panel, regardless of length of service, and backdated from 1 April 2019.

A contract of indefinite duration was sought on behalf of the complainant in line with the respondent’s position in related cases, payment of arrears, the award of incremental progression, placement in the pension scheme, and the offer of work as per the relief panel operation.

It was submitted that the respondent has 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 commenced working for the respondent in May 2016.  He did not do an interview.  In terms of being assigned work, the complainant received a telephone call at the start of the week regarding work location. The hope was to get into a station and build on the time spent working in one location.  The complainant went from Garda Headquarters to one particular station where he was treated as full-time; he was based there for approximately a year.   The complainant subsequently returned to Garda Headquarters and worked there until September 2020.  The complainant took a step back from work for personal reasons in September 2020 and informed the superintendent of cleaners that he would be unavailable for a period of time.  The respondent ceased contacting him then about work.  There was no communication from the respondent to say he was no longer on the panel.  The complainant assumed there wasn’t work for him because of Covid.

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

Summary of written and oral submissions

The complainant worked as a relief cleaner with the respondent up until 18 September 2020.  The complainant only worked for a short period during 2020.

The relief panel which gave rise to the complainant’s employment is defunct.  All persons who were employed under the relief panel have had their employment regularised.  Relevant persons who were in the respondent’s employment at the time when the matter of contracts of indefinite duration was under review and finalised were offered contracts of indefinite duration.

The respondent submitted that the complainant does not have locus standi to maintain the complaint and, in the alternative, does not have sufficient service for a contract of indefinite duration.

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.

A contract of indefinite duration was sought on behalf of the complainant on the same basis as had been offered to others on the relief panel, along with compensation for the respondent’s delay and disregard in acknowledging the complainant’s rights and entitlements under the 2003 Act.

The complainant commenced working with the respondent as a cleaner under the relief panel in May 2016.

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, he was contacted as and when the respondent required him for work.  For personal reasons, the complainant informed the respondent’s superintendent of cleaners in September 2020 that he would be unavailable for work.  The complainant’s evidence was that he decided to take a step back from work for personal reasons.  It was submitted on behalf of the complainant that he remains in the respondent’s employment and that at no time was he informed of the termination of his employment.

The respondent’s position is that the complainant has not been employed by it since September 2020. 

I cannot adjudicate on this complaint by reference to the status of other complainants. 

I have carefully considered the factual matrix of this complaint, including the involvement of the complainant’s union representative in January 2021 and its representations to the respondent on an entitlement to a contract of indefinite duration. 

The complaint referred to the Workplace Relations Commission on 10 December 2021 was that the respondent had failed to grant a contract of indefinite duration to the complainant in accordance with section 9 of the 2003 Act. 

It was common case that the complainant has not undertaken any work with the respondent since September 2020 and that there had been no direct contact between the parties regarding work since September 2020. 

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;”

I cannot find on the evidence before me that the complainant was employed at the material time or in the cognisable period under 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.

Accordingly, I find that the complainant 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