Complainant

Respondent

Parties

John  Purcell

Kerry County Council,

Representatives

SIPTU Representative

 LGMA Representative

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-00060065-001

16/11/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00060065-002

16/11/2023

The Complainant is in an acting up position for a substantial number of years and sought a Contract of Indefinite Duration (CID) as a result.

The Complainant commenced employment with the Respondent on 23rd May 2005 as a temporary Executive Engineer. He was appointed Permanent Executive Engineer in May 2007. During the period 11th of June 2007 to the 30th of September 2010, he was appointed temporary resident engineer under several fixed-term contracts.

On October 1, 2010, he was appointed to the role of acting Senior Executive Engineer/ Facilities Manager with further acting up contracts issued continuously since then and ongoing. At no point was the Complainant not in receipt of the acting Senior Executive grade pay since his appointment in 2010. This matter is not in dispute by the Respondent. Since March 1, 2010, the Complainant has filled the post of Facilities Manager under 14 continuous fixed-term contracts.

His contracted hours are 35 hours per week and he is currently on the 2nd Long Service Increment of the Senior Executive Engineer Scale.

SIPTU wrote to the Respondent on October 5, 2023, seeking to have the Complainant issued a contract of indefinite duration. The correspondence specifically set out the failure to offer a written statement setting out the objective grounds justifying the renewal of the fixed-term contracts and the failure to offer a contract of indefinite duration after.  In a response e-mail dated October 5, 2023, the employer advised that they acknowledged receipt of the letter and ‘would revert shortly in that regard’. SIPTU wrote to the Respondent on November 7, 2023, to follow up on their previous correspondence. This letter notified the employer that they had failed to respond within a period of one month to SIPTU’s previous letter. Notification was given that this matter was being referred to the WRC as the employer had failed to respond.

The Supreme Court ruling of March 2022 in the case of Maurice Power V. Health Service Executive, provided that the Protection of Employees (Fixed-Term Work) Act 2003 extends to permanent employees who are appointed to more senior posts on a fixed-term contract basis.

The purpose of the Protections of Employees [Fixed Term Work] Act 2003 is: to provide for the improvement of the quality of fixed-term work by ensuring the application of the principle of non-discrimination (fixed-term workers may not be treated less favourably than comparable permanent workers) and to provide for the removal of discrimination against fixed-term workers where such exists and the establishment of a framework to prevent abuse arising from the use of successive fixed-term employment contracts.

The Complainant is, therefore, a fixed-term employee within the meaning of the Act. He has been issued with nine fixed-term contracts, the aggregate duration being in excess of four years. The Complainants contracts of employment includes no explanation as to why his post was an acting post and no objective grounds for its continuous renewal have ever been provided.

In this case, the employer has not provided objective grounds to the Complainant for refusing him a Contract of Indefinite Duration. It is clear that the Complainant has had concurrent fixed-term contracts in an acting position. The Complainant has also received increased remuneration for his acting-up role. It, therefore, cannot be stated that fixed-term contracts have not been given to the Complainant

From the contracts issued to the Complainant it is plain to see that these are no different from any typical fixed-term contracts and would in the eyes of any reasonable person be viewed as a fixed-term contract.

The Complainant has acquired a contract of indefinite duration in the role of Facilities Manager by operation of law since October 1, 2014, under Section 9 of the Protection of Employees (Fixed Term Work) Act 2003 as he has two or more continuous fixed-term contracts which are in excess of four years and the renewal of these contracts has not been objectively justified.

Therefore, we seek to have the Complainants contract of indefinite duration, and status in the role of Facilities Manager confirmed and for terms and conditions to remain the same.

We are also seeking to have the Respondent provide our member with an amended copy of his contract which includes the relevant amendments to any duration clause only that reflects his contract of indefinite duration status as of October 1, 2014, and that any associated benefits be made available to him.

ADJ-00048904 is comprised of two complaints made under section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003, submitted to the WRC on 16th November 2023: a. CA-00060065-001 – “My employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration.” b. CA-00060065-002 – “My employer has contravened the legal provisions in relation to the number of successive fixed term contracts that can be issued to me.”

The Complainant was initially employed by the Respondent as an Executive Engineer on a temporary basis on 23rd May 2005. He was made permanent on 24th May 2007. Since 1st October 2010 he has been in an Acting Senior Executive Engineer role.

He submitted a claim to the WRC on 17th November 2023 under section 14 of the Protection of Employees (Fixed Term Work) Act 2003.

Since the claim was submitted and the initial hearing on this matter which took place on 11th March 2024, the Respondent reviewed the complainant’s employment history and a CID contract was issued to the Complainant on 15th March 2024. The CID effective date is 1st October 2014 in accordance with the Act. 

Accordingly, the Respondent believes that the claim as submitted is now moot.

The complaint as submitted under Section 14 of the Act is that the Complainant became entitled to a CID over the course of his employment as the Respondent  contravened the legal provisions in relation to the number of successive fixed term contracts that can be issued and failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract. The Respondent has accepted this and a CID has been offered to the Complainant. However, the complainant has not accepted the offer and has issues with superannuation contributions and holiday entitlement.

The Law

The term “fixed term employee” is defined in section 2 of the 2003 Act as follows:

““fixed-term employee” means 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”.

“Successive fixed-term contracts

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 parties were in agreement that a Contract of Indefinite Duration  was due in the circumstances of this case in line with the Power V HSE Supreme Court decision.

In accordance with the redress provisions contained within the Act the Complainant should be issued with a Contract of Indefinite Duration with an effective date in the position held as of October 1st 2014. This decision applies to both CA- 00060065-001 and CA-00060065-002.

Contract of Indefinite Duration