Complainant

Respondent

Parties

Shane  O'Hara

Sligo County Council

Complainant

Respondent

Anonymised Parties

Representatives

  The claimant represented himself

Amanda Kane Local Government Management Agency (LGMA)

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00050202-001

29/04/2022

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

CA-00050202-004

29/04/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00050202-005

29/04/2022

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

CA-00050202-006

29/04/2022

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

CA-00050202-007

29/04/2022

The claimant was employed as a General Operative with the respondent from the 6th.August 2019 – 31st.December 2021 when he submits he was unfairly dismissed .The claimant submitted that he made a formal grievance to the Council on the 1st.December 2021 following receipt of notice of termination of his contract. He was aggrieved with the manner in which his grievances were processed and alleged that he was hired under false pretenses . He asserted that his concerns regarding health and safety were ignored and asserted that the Council had failed to observe the Last in first out principle when he was let go in December 2021. According to the claimant when he was let go there were 2 additional G.O. positions approved for the following  year. The claimant complained that he was penalized for invoking entitlements under the Protection of Employees (Fixed Term Work ) Act 2003  . He submitted that the respondent failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and that the employer failed to offer him a contract of indefinite duration.  The claimant further alleged that the Council were in breach of the Act for failing to inform him of opportunities for permanent employment and appropriate training. He further  submitted that he was penalized   for making a complaint under the Safety , Health & Welfare at Work Act  , 2005.

The respondent denied  any breaches of the legislation referenced by the claimant and submitted that the complaints were without foundation.

 The complaints were the subject of 2 hearings and extensive documentation and correspondence was  received and exchanged between the parties and the WRC  up to August 2024.

The claimant was unrepresented and  did not furnish a submission particularising his complaints. In his complaint form he references complaints under the Unfair Dismissals Acts , the Protection of Employees (Fixed Term Work Act )2003  and the Safety Health & Welfare at Work Act.  In his documentation to the WRC , the claimant  included with his  complaint form a grievance that had been   submitted to the employer on the 1st.Dec. 2021  capturing his grievances   as follows :

“ As you are aware, I was issued with a fixed term specific purpose contract that stated I was being employed as a General Operative, employed to fill a position for a permanent employee who has been reassigned to a specific project, namely, the Western Distributor Road Phase 2 project.

As you are also aware, that employee was in fact never employed in the location I'm assigned to or has never worked on the team I am part of. My colleagues on my team told me in August 2019 that the person I actually replaced, was a worker who retired earlier that year.

In addition, the specified project that the “permanent worker” was deployed to (namely, the western distributor road phase 2 project) was completed in January 2021. I was not contacted at that time in relation to his return, given he never actually held my position to begin with. I was not contacted in relation to the termination of my contract or about an extension of the contract. I had to call the HR department soon after that project was concluded to ask where I stood. I informed HR at that time that I was aware that the  project named in my contract had come to an end. HR informed me that the permanent worker “may be getting assigned to a new project”. I enquired if I would be offered a permanent contract in that case but I was told I would not. In addition, I never received an updated fixed term contract since that phone call. As you are aware, a specific purpose contract is legally required to have a specific start date and a specific end date, even if only a projected end date.

I know that I was hired to replace a person who had retired and I know my contract is falsely claiming that I am covering for a permanent worker that was never on my team. Therefore, you have falsely claimed in my contract of employment that the unfair dismissals act does not apply. I have been advised that it does in fact apply in my circumstance as described above.

The second part of my grievance relates to the Health, Safety and Welfare at Work Act (2005) Section 5. Earlier this year, Mr.GC  requested me to plaster a wall in Achonry.  This is considered “tradesman” work and as a General Operative, this is not covered in my job description. This type of work is normally done by employees on a higher pay grade than a General Operative, so I informed Mr.GC  that I wouldn’t do that work when I wasn’t going to be paid accordingly for it. As a result of refusing to do this work, I was penalised by not getting any overtime when all my other General Operatives colleagues were getting overtime. As an additional punishment at that time, I was sent on my own with the patching unit which is against health and safety guidelines and procedures.

A few months later, my manager, Mr.B’OD  (GSS), requested that I sign off on SSWP H&S documents (Safe System of Work Plans) as well as Traffic Management Plans each morning, both of  which are not my responsibility, so I refused. As you know, these are required to be completed by the person in charge, on site. Which is not a General Operative. I was subsequently brought into Mr.DG’s ’s office (the area engineer) and reprimanded for refusing to do this. As far as I am aware, these forms are still not being completed by the required manager to date, which is also a breach of health and safety requirements. At this meeting, I informed the engineer that I was being unfairly treated by not getting any overtime and he said he would speak to the two supervisors. I heard nothing further and nothing changed in relation to my treatment.

Around July 2021, Mr.B O D  requested that I meet him at a job site in Cu.  He informed me that I was to pour foundations, block lay a wall, cap and plaster it. He  then insinuated that if I did not complete this work, it would be highly frowned upon and would affect my prospects in the County Council. I again refused to complete this work as tradesman work is not in the General Operative job description. Again, I was penalised further by not being given overtime when my all my other General Operative colleagues were. This discrimination was very upsetting.

On the 19th of November 2021, I was issued with a letter to inform me of the termination of my current contract. I am under no doubt that this action has been taken due to the issues mentioned above. I have also been informed through different colleagues that two new vacancies have been approved for my area. I understand that they have not yet been advertised however. When I started in my role in 2019, there were 10 people in my area. Due to transfers and retirements, there are currently only 9 people on the team, including myself. In addition, there was a General Operative hired on my team 12 months ago. The council operates a seniority basis, last in first out rule – which you are not abiding by, by terminating my contract ahead of this other employee.

Under the Minimum Notice Act, you are also obliged to inform me of my exact end date. You state in the letter that my contract will end on the 31st of December but that I must use TOIL and Annual Leave owed prior to this date. You therefore are required to inform me of my actual end date with the council taking TOIL and Annual Leave entitlements into consideration.

I have weighted up all my options and have decided to raise a grievance in relation to all of the above given the unfair treatment I have received and the abrupt ending of my contract. It is very upsetting to have firstly been given a contract under false pretences but my unfair treatment and reprimands over the last 12 months leaves me with no option but to raise this grievance. I very much hope that the termination of my contract will be reconsidered.

I hope to hear back from you within 5 working days (given the imminent ending of my contract) as this situation is already causing me and my family a lot of stress and anxiety.

Please note, I have taken professional advice about the above situation I am in. Thank you for taking the time to consider all of the information. As you can appreciate, this was a difficult letter for me to put together. Please also note that I consent to agree to the grievance process of Sligo County Council”.

The claimant was aggrieved with the response of his employer and referred his complaints to the WRC – these complaints were received by the WRC  on the 29th.April 2022.

The respondent’s response to the claimant’s grievances  was issued on the 15th.Dec. 2021 and is set out below :

I note the contents of your letter, however I wish to advise you that you have been employed  under a specific purpose contract.   You will be given every opportunity to avail of all your annual leave and Toil leave before your official end date on the 31st December 2021.  

In relation to the second part of your grievance which relates to the Health, Safety and Welfare at Work Act 2005 (Section 5), this section of the Act related to the expenses of the Minister. “The expenses incurred by the Minister in administering this Act, shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas”.   

I also wish to advise that all works requested to be undertaken by you would be within the particulars as outlined in point 5 of your contract:

Duties

You will be required to carry out all tasks assigned to you to specifications and on time.  Duties may include the construction and maintenance of pavements, roads, buildings; construction of manholes/meter chambers, digging out stopcocks and assisting plumbers in pipeline repairs, making of service connections, installation of valves and meters, and any other duties as may be assigned to you from time to time by the appropriate Area Engineer or Line Manager.  You will also be assigned to driving Council plant, as and when required, in the course of your employment.

However in reply to the issues you have outline, please find the following responses which I have received from the Area Engineer , Mr.DG:

·     Ach Wall – Due to the location of this wall abutting a National school, it was decided that this works would be undertaken outside of core hours. These works were discussed with all operative within the area and not just  the complainant . No party within the outdoor staff, T  Eng Area,  was interested in undertaking this works. Subsequently this project was completed by an external contractor.

·     All SLG cardholder within the  T  Eng Area attended a briefing season in the Council chamber,  on Thursday 27th May 21. On completion of this briefing, the complainant  did not feel comfortable in the development of the SSWP and TM plan for maintenance project.  He was asked to attend the Area office to discuss his concerns ( Wed 2nd June 21) . It was not possible to eliminate the complainant’s  concerns thus he has not been asked to develop daily SSWP / TM but must as part of the works team sign off on the  risks and control identified in the SSWP / TM for the job.

·     As part of this meeting, the complainant’s  professional development was also discussed and to this point I have requested further training for him  namely dumper driver, Location of underground services, Slinge/ Signaller training chainsaw and pole saw training. Due to the Covid restrictions this training  remains outstanding at this time.

·     Cu Wall – this project is similar to the Ach  project – all operatives were asked if they would be interested undertaken this project. The complainant was not interested in this works thus works were undertaken by other members of the T Eng Area.

·     Overtime and TOIL accumulated in 2021 – from review of timesheets for 2021, a total of 36 ¼ hours of overtime (equivalent) and 33 hours of TOIL were accrued  in the period January to start of December. The vast majority of the overtime was generated during the period April to October 21 which would be normal in any given year. It should be noted that additional overtime could have been accrued by the complainant  within this period but this was not possible due to his  personal / family circumstances – unable to works Saturdays or late evenings.

·     Leave utilised within the year to date – 5 weeks between annual leave and TOIL. The majority of this leave was taken in July and August.

·     Operation of the T  Road Maintenance Team –

Due to Covid 19, this office tries to operate a 3 pods system comprising of 2 drainage / road preparation & accommodation works pods (3 operatives per pod , JCB, dumper driver , pickup driver or 7.5  tonne pickup driver, LUGS cardholder, SLG cardholder, TM operatives) and a road maintenance pod (2 -3 operative task specific,  SGL cardholder, pickup driver and TM operatives) which undertake pothole repair, verge trimming and road sweeping within the Engineering Area. The pod system is operated to protect staff and to prevent the necessity to shut the entire T Maintenance Department should a Covid 19  outbreak occur inhouse or if a staff member is deemed a close contact of a third party.

As the complainant  is not a dumper driver, does not have LUGS  training, is not happy to do concrete works and  is not an active SLG cardholder, the complainant’s  skill set is best utilised within the road maintenance pod. Note that the SLG cardholder within the maintenance pod do not hold a driver licence thus it is essential that one pod member is able to drive a crew cab pickup to transport the SLG cardholder and TM signage for the project.

Your annual leave balance is 7 days and there is also a balance of 9.45 hours of TOIL accrued.   All overtime worked to-date has been paid in the relevant pay period.  Could I please advise that you would engage with your line manager to take his annual leave/TOIL before the end of the year. 

I trust these items are a response to your issues, however if you require any additional assistance please contact me”.

 In his final submission to the WRC , the claimant submitted as follows :

 As stated in all my previous submissions, I still contend that the vacancy  the  Council employed me for, was a post vacated by a Mr C who retired earlier that year in T. That is why the vacancy arose in T specifically. I worked in the same unit and with the same colleague that Mr C previously worked with for the majority of my time with the council. MC was only ever based in B and was reassigned to the Western  Distributor Road Phase 2 Project (the project commenced construction in January 2019 and was opened to traffic in January 2021).  If I was covering for MC in B, why was I not assigned to the B area to cover the work that he would have previously been completing? The council stated it was for operational reasons which is an easy way of getting out of issuing a permanent contract for a vacancy they had in T. 

To also reinforce their false claims – the Phase 2 project that MC was reassigned to, finished in January 2021. Why did MC not return to B or T at that time? My contract stated that I was employed for the duration of that project as temporary cover for a redeployed employee. If that project finished in January 2021 – I would ask the council to clarify where MC was based from Jan 2021 to December 2021? He was only reassigned to T in 2022 after I made my grievance to the council stating that I would be contacting the WRC about the unfair dismissal and that they issued a temporary contract under false pretences.  

 As stated in previous submissions, I contacted the HR department soon after that project was concluded in January 2021 to ask where I stood. I informed HR at that time that I was aware that the western distributor road phase 2 project named in my temporary contract had come to an end. HR informed me that the permanent worker “may be getting assigned to a new project”. I enquired if I would be offered a permanent contract in that case but I was told I would not. In addition, I never received an extension to, or an updated fixed term contract to reflect this change in circumstance. I was left in limbo by the council for the following 11 months. This also reiterates that I was never covering for MC and that the council issued that contract under false pretences.

Summary of Respondent’s Submissions on the Background to the complaints:

 2. Background

2.1 The claimant was employed by the Council as a temporary General Operative on 6th August 2019 on a specific purpose contract. This requirement arose due to the assignment of the existing postholder to the Western Distributor Road Phase 2 Project. The claimant was clearly informed of this and also that the contract would end “on the substantial completion of this project, at which time the permanent post holder will return to this post or upon the permanent filling of the post, whichever is the earlier”. (Appendix 2)

2.2 On 19th November 2021 the Council notified the claimant that his fixed purpose contract would cease on 31st December 2021 as the purpose for which he was employed would no longer exist i.e. “the permanent holder of the post of General Operative will return to this position on 1 January 2022…”. (Appendix 3)

 2.3 On 1st December 2021 the claimant submitted a grievance to the Council which outlined a number of complaints. (Appendix 4)

 2.4 On 10th December 2021, the Council acknowledged receipt of the grievance. (Appendix 5) A response was then issued to him on 15th December 2021, with a further response .

2.5 In response to his complaint that there was no cessation date in his original contract, HR confirmed that he was hired on a specific purpose basis. He was notified of the cessation date of his employment i.e. 31st December 2021 on 19th November 2021.

2.6 In response to the claim that operational issues of disagreement between him and his line manager led to the cessation of his contract, HR advised that all works requested of him were in line with point 5 of his contract i.e. “Duties You will be required to carry out all tasks assigned to you to specifications and on time. Duties may include the construction and maintenance of pavements, roads, buildings; construction of manholes/meter chambers, digging out stopcocks and 4 assisting plumbers in pipeline repairs, making of service connections, installation of valves and meters, and any other duties as may be assigned to you from time to time by the appropriate Area Engineer or Line Manager. You will also be assigned to driving Council plant, as and when required, in the course of your employment.”

 2.7 Also included in the response were details from the claimant’s area engineer in relation to specific complaints raised by the claimant.

 2.8 The Council informed the claimant of his annual leave balance (7 days) and also that he had a balance of 9.45 hours of TOIL accrued and advised him to engage with his line manager to take his annual leave/TOIL before the end of the year in line with existing practice. However, as the claimant, who was on sick leave from 16th November 2021, did not return to work prior to his cessation date of the 31st of December 2021, he was paid for all outstanding annual leave and time off in lieu.

 2.9 Seven complaints were subsequently lodged to the WRC on 29th April 2022.

 2.10 The claimant states in his complaint form that he commenced employment with another employer on 11th April 2022 and seeks compensation.

CA-00050202-001- Unfair Dismissals Acts 1977-20213.

In his complaint form the claimant stated

“ I was unfairly dismissed and have at least 12 months service (Unfair Dismissals Act ….)

The County Council claimed that the person I replaced on the T Team was returning to their role.This is a false reason as the person I replaced in August 2019 was a worker who retired and my initial contract was issued under false pretences to begin with.

I made a formal grievance with the Council on the 1st.Dec. 2021 after I received notice of the termination of my contract .They did not follow their own grievance procedure which states that a meeting should be held within 2 weeks. Instead I got a response from them  on the 15th.Dec. simply stating I had been hired under a specific purpose contract and that I would be given every opportunity to avail of my annual leave and TOIL before I finished on the 31st.They did not address the specifics of my grievance which was that I was hired under false pretences in Aug. 2019 , my concerns about H&S regulations they were not following , my unfair treatment when I refused to do work I was not contracted to complete.I also noted the last in first out rule used by the Council that they were not following on this occasion and the fact that staff had been told that there were 2 additional GO positions approved to be filled in the New year.

I have since been told by previous colleagues that they have redeployed a worker from another area into T – this man never worked in T before but I’m sure it is their attempt to make it look like he is the returning employee to that area .I can provide a copy of all correspondence

Under “details of your Complaint “ the claimant submitted :

“ I was issued a specific purpose contract in Aug 2019 under pretence that  I was being employed to replace a permanent employee that had been redeployed to a specific project elsewhere. My team in T  informed me when I started work that nobody had been redeployed, the only person who had left the team was a worker who had retired earlier that year. My contract also didn’t state an end date, even if just a projected date. However, as my contract named the specific project this permanent worker had been sent to, I was able to follow up with HR when I knew that road project was completed in January 2021.They informed me that the permanent employee may be getting assigned to another project. I asked if I would get a new contract and was informed that I would not.

During 2021, I  refused to complete work that fell outside completed by Trades men and is paid for at a higher rate. As a result, I was penalised by  not been given overtime when all my other general operative colleagues were getting overtime. As an additional punishment  at that time , I was sent on my own with the patching unit which is against health and safety guidelines and procedures.

A few months later, I refused to sign off on safety plans and traffic management plans. Under H&S legislation, these are required to be filled in by the responsible person on site (this is not a general operative). I was reprimanded by the area engineer about this. These continued to be filled in by the supervisors in the office each morning without them going on site, which is a breach of H&S legislation.  At that meeting with the area engineer, I  informed him of my unfair treatment and  of not getting overtime. He said he would speak to the supervisors but nothing changed in that regard.

In  July 2021, I was asked again to complete tradesman work, and the supervisor making the request insinuated that if I did not complete this work, it would be frowned upon and could affect my prospects in the  County Council. After declining this work again, I was punished again by not being given overtime.

I firmly believe that notice of my termination received on the 19th of November was a direct consequence of the different issues listed above. I lodged a formal grievance on the 1st of December noting all of the above. The county council did not follow their own grievance procedure and did not adequately address the issues raised.

I also noted with them that when I started in my role there was 10 people on my team in T. Due to transfers and retirements, there were currently only 9 people on the team including myself. In addition, there was a general operative employed 12 months prior. The council operates a seniority basis, last in first out. They did not abide by this in relation to my dismissal by terminating me ahead of this other employee. I can provide all correspondence if required”.

 In his direct evidence the claimant set out a chronology of the various appointments to the T team and asserted that the original allocation to the team involved 10 personnel and there were only 8 personnel working on the team when he was dismissed. He asserted that they were using the assignment of Mr.MC to the WDR project as an excuse in effecting the termination of his employment. The claimant said the person he replaced was Mr.C who was a permanent GO and had retired earlier that year. . The claimant said Mr.MC was never in the T area. The claimant asserted that the vacancy remained whether Mr. MC returned or not. He asserted that when he left the vacancy was still there and he was entitled to be made permanent in the post. The claimant said that when he left 8 GO posts remained and accordingly the complement was 2 less than previously .The claimant said that after he lodged his complaint , Mr.MC was sent to T for a few   months and that he applied for and got promotion to a post in a neighbouring local authority.The claimant confirmed he was not in the union and no meeting took place. He referred to the Last In First Out policy and asserted it should have applied to him.The claimant did not respond to the respondent’s contention that the workforce plan was contingent on capital payments and the assignment of individuals to posts depended upon the nature of the capital projects. The claimant asserted that he was penalised for refusing to do tradesman’s work .The claimant reiterated that the position he was filling was that of Mr.C who retired from a full time position earlier in 2019 and that consequently , he was issued with a temporary contract under false pretenses.

The council responded as follows :

 3.1. The Council believes that no liability arises under the Act relying on section 8 of the Unfair Dismissals Act 1977 where it states:

 2 (2) This Act shall not apply in relation to –

 (b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and  provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

 3.2 Section 2(2)(b) of the Unfair Dismissals Act was considered by the Labour Court in the case of Malahide Community School v Dawn-Marie Conaty UDD1837. The Court set out the criteria for the application of Section 2(2)(b): a) The contract must be in writing; b) The contract must be signed by or on behalf of the employer; c) The contract must be signed by the employee; d) The contract must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed-term or the cesser of the specified purpose.

3.3. The claimant’s contract of employment complied with criteria outlined above and section 4(b) of that contract states: “the provisions of the Unfair Dismissals Act 1977-1993 will not apply to termination of this contract where such termination is by reason only of the completion of the specified purpose herein. The Council cannot offer you a permanent contract as you are being employed in a post which is only vacant due to the temporary re-assignment of the holder of the post to a specific capital project.”

 3.5 The claimant’s specific purpose contract ceased with the return of the permanent postholder. The respondent honoured the provisions of this temporary contract and the claimant’s temporary employment ceased solely due to the fact the purpose for which he was employed came to an end.

3.6 In this case the Council decided to backfill a role on a specific purpose basis as the postholder was being re-assigned to work on a specific project i.e. the Western Distributor Road Phase 2 Project. Given the nature of the project, the Council determined that a specific purpose contract was appropriate. The claimant was clearly notified of this in writing at the time of his offer of employment and accepted it on that basis.

 3.7 Despite the claimant’s contention that the specific purpose given to him was incorrect, the Council’s position in terms of the backfill requirement was clear at the outset of the contract and has not varied. Once the post-holder completed the project he was assigned to, he returned to his substantive post as a General Operative on 1st January 2022 which accordingly ended the claimant’s contract.

 3.8 The claimant’s temporary employment ceased solely due to the fact the purpose for which he was employed came to an end. The claimant was not unfairly dismissed as the dismissal consisted only of the legitimate expiry of a fixed purpose contact and exclusion under Section 2(2)(b) of the Unfair Dismissals Act applies. The Unfair Dismissals Act does not apply in this instance.

 3.9 The Council is satisfied that no breach has occurred and would ask the adjudicator to dismiss this complaint.

 In addition to the submissions furnished in writing the  respondent asserted that the claimant was employed on a fixed purpose contract and that the Last in First out policy did not apply to fixed term/ fixed purpose contracts.

The respondent’s representative asserted that the employer was responsible for a work force plan and the assignment of individuals was based on the work  programme in place , the funding for the project and capital payments .

Evidence was given by Mr.G that the duration of a contract depends on the nature of the capital projects .He submitted that the assignment of individuals depended  on the circumstances in placeat the time and that he had to take account of backfill requirements. At the time at issue the substantive postholder was acting up as a technician  on the WDR project.In response to the request from the WRC for clarification on how many of the complement of 10 positions were filled at the end of Dec. 2021 when the claimant was let go , the respondent responded “ at 31.12.21 , the staff complement was 9GOs and 2 GSS.s.” Mr G said the overall complement remained constant throughout the entire County.He referred to a General GO competition which would be organised within a few months and stated  it was open to the claimant to apply for same.It was submitted that any vacancies would be filled from the panel and that regardless of where any vacancy arose the  claimant’s fixed purpose contract would have ceased.

The respondent set out an outline of the varying appointments in the T area and asserted that the claimant  could  not pick and choose where he was assigned to.It was submitted that the employer did not at this time fill the handyman position and were awaiting the filling of the post from a confined competition from amongst existing staff.It was submitted that the Council could only fill a permanent vacancy from a permanent panel – the claimant had an opportunity to apply for same but did not do so.It was submitted that when the claimant raised concerns about SWPs and the completion of Health & Safety documentation  that the line manager  tried to facilitate him with alternative assignments.It was submitted that the assignment to patching on a solo basis depended on the number of staff on site.

The respondent clarified that the substantive postholder who had been assigned to the WD project returned in late 2022 and remained in the post for a number of months before  obtaining promotion in a neighbouring local authority.

In their final submission to the WRC the respondent submitted as follows :

·        The reason for the temporary vacancy arising was due to the reassignment of MC to another work project as outlined in the Council’s submission

·        The claimant was informed of this reason in his contract of employment

·        MC was based in the B area prior to his assignment to the capital project

·        The Council took the decision to base the complainant in the T area in line with operational requirements at that time.  Once the capital project ceased, the substantive postholder i.e. MC was assigned to the T area where he remained until the cessation of his employment.  He did not return to the B area.

I  have reviewed the evidence represented at the hearings and taken account of the submissions from both parties. While I  acknowledge that the claimant believed he had an entitlement to be appointed permanently to any vacancies that arose during his tenure  , I must accept the respondent’s submissions regarding the provisions of the Act which specify  that the Act shall not apply to a dismissal consisting only of the expiry or cessor aforesaid .. and  excludes  workers on a specified purpose contract from  relying on the Act where the duration of the contract was  limited but was – at the time of its making –incapable of precise ascertainment . Accordingly find that the claimant does not have locus standi under the Act. Consequently  , I do not uphold the complaint  of unfair dismissal.

CA-00050202-004 – Protection of Employees (Fixed Term Work Act) , 2003

The claimant asserts that he was “ penalised by his employer for invoking entitlements under the Protection of Employees (Fixed Term Work )Act or for refusing to cooperate with a breach of that Act to avoid giving a contract of indefinite duration”.

The claimant said that he made this complaint on foot of advice from the WRC to the effect that his contract was illegal owing to the absence of an end date and that consequently he was entitled to a CID. The claimant advised that he later learned that this advice was incorrect .

When asked to elaborate on his complaint of penalisation  under the Act the claimant said he was not given an end date in his contract and did not receive training , opportunities or given courses and referenced  access to overtime.

The claimant referred to completion of TM and Health & Safety forms and said they were not completed in the morning and not completed by Supervisors or overseers – he said he completed them himself.

The claimant went on to complain about the council’s patching operations and asserted he was assigned to work on his own on a number of occasions .He was not in a position to identify dates but said the information would be on the SSWP system.

I note that in his   initial complaints to the respondent the claimant contended that he was penalised and punished for refusing to undertake the work of a tradesman  as opposed to making a complaint under the Act.

The respondent submitted as follows :

 6.1 The current complaint relates to an allegation of penalisation taken under the Protection of Employees (Fixed-Term Work) Act 2003.

 6.2 Section 8.1 of the Act states 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.

 6.3 The Council informed the claimant at the very outset of his employment as a temporary General Operative that he was employed on a specific purpose contract and that the requirement for the contract arose due to the assignment of the postholder to the Western Distributor Road Phase 2 Project – see section 4.a of employment contract. (Appendix 2)

 6.4 The claimant was also clearly informed in his employment contract that the contract would end “on the substantial completion of this project, at which time the permanent post holder will return to this post or upon the permanent filling of the post, whichever is the earlier”. (Appendix 2)

 6.5 Once the purpose for which he was employed was concluding, the Council notified the claimant accordingly. On 19th November 2021 the Council informed the claimant that his fixed purpose contract would cease on 31st December 2021 as the purpose for which he was employed would no longer exist i.e. “the permanent holder of the post of General Operative will return to this position on 1 January 2022…”.

 6.6 The claimant was employed on one fixed purpose contract which commenced on 9th August 2019 and ceased on 31st December 2021. He did not meet the criteria under the Act for a CID and no penalisation of the claimant occurred.

. 6.7 The Council were at all times very clear with the claimant in terms of the requirement for his post i.e. that it was a temporary requirement due to the substantive postholder being assigned to another work area and that it would cease once this requirement no longer existed.

 6.8 The Council is satisfied that no breach of the Act has occurred and would ask the adjudicator to dismiss this complaint.

On  the basis of the evidence presented , it appears that the claimant was confused with respect to the terminology of penalisation and when pressed to particularise his complaint he  referenced an engagement with the WRC about the legality or otherwise of his contract .In his correspondence to the Council he makes allegations of penalisation arising from his decision to refuse to take on tradesman’s work – which is remunerated at a higher level than general operative.

Section 13 of the Act provides

(1)   An employer shall not penalise an employee-

(a)    For invoking any right of the employee to be treated , in respect of the employee’s conditions of employment in the manner provided by this Part,

(b)   For having in good faith opposed by lawful means an act which is unlawful under this Act,

(c)    For giving evidence in any proceeding under this Act or for  giving notice  of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b) or

(d)   By dismissing the employee from his  her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration under Section 9(3)

(2)     For the purposes of this Section , an employee is penalised if he or she –

(a)    Is dismissed or suffers any unfavourable change in his or her conditions of employment or an unfair treatment Including selection for redundancy),or

(b)    is the subject of any other action prejudicial to his or her employment.

The claimant’s complaint  was received by the WRC on the  29th.April 2022 – accordingly the cognisable period for the complaint is the 30th.Oct 2021- 29th.April 2022.I have  noted  the details submitted in the complaint form  and the fact that the claimant did not return to work after the 16th.Nov. 2021.I have also taken into account the grievances documented to the respondent dated the 1st.December 2021  wherein the claimant references  penalisation arising  from  a dispute about taking on handyman’s duties- this document post dated the notice of termination of the claimant’s employment on the 19th.Nov.2021. As regards the matter of an extension of the time frame for consideration of the complaint the claimant said I was already being penalised for not doing work outside of my contract.

The test for reasonable cause for delays in pursuing complaints is set out by the Labour Court in Cementation Skansa v Carroll DWT0338. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would    have initiated the claim in time.

 The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

 “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint   would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the   delay ceased to operate before the complaint was presented, that may undermine a    claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of rnableness on an   applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

Having considered the respective position of both parties I find the claimant has not met the test of reasonable cause for extending the timeframe for consideration of the complaint beyond the 17 day  period from the 30th.Oct. 2021 – 16th.November  2021 when he went on sick leave and did not return to work. On   the basis of the claimant’s complaint to the WRC and the chronology of events as set out  in his complaint form I find that no compelling evidence was advanced to support his contention that he was penalised during the cognisable period   for having made  a complaint under the Act. In this regard I have taken into  account the chronology of events submitted by him and the respondent’s defence of the complaints as well as  their redacted reports on overtime payment to the claimant and his colleagues.Accordingly I find against the claimant and do not uphold the complaints.

CA-00050202-005  - Safety , Health  & Welfare at Work Act 2005

The claimant further asserts that he was “ penalised for complying with or making a complaint under the Safety , Health and Welfare at Work Act 2005 “.The claimant’s reference to Health & Safety matters in his complaint form states :

“A few months later, I refused to sign off on safety plans and traffic management plans. Under H&S legislation, these are required to be filled in by the responsible person on site (this is not a general operative). I was reprimanded by the area engineer about this. These continued to be filled in by the supervisors in the office each morning without them going on site, which is a breach of H&S legislation.  At that meeting with the area engineer, I  informed him of my unfair treatment and  of not getting overtime. he said he would speak to the supervisors but nothing changed in that regard.”

At the hearings and in his correspondence to the WRC the claimant also referenced issues he had with SSWP’s (Safety System of Work Plans) , traffic Management Sheets and safe work practises with a high velocity patcher and sought various documents from the respondent – which were furnished including SSWP’s on pothole repairs and road Surveys  , the Council’s Corporate Safety  Statement  and Safety Management Systems for Road , Marine and Structures.He referred to being reprimanded for raising issues about the signing off on safety and traffic management plans and asserted that he was treated less favourably with respect to overtime and was assigned to work alone on a patcher contrary to health and safety requirements.The claimant complained that the Council had failed to furnish copies he had sought of all SSWPs and Traffic Management Sheets signed by him between the 1st. of April 2021 and the 1st.Nov. 2021 .He disputed the Council’s statement that he had signed 54 of these as the responsible person on site.

The claimant challenged the Council’s assertion that their policies do not preclude this work being carried out on a solo basis and asserted that the Health & Safety Officer on site documented  that no less than 2 people should be assigned to the machine at any one time.The claimant referenced his requests for SOPs for various items of machinery and equipment and referred to a particular day where he and his colleagues were retarring the front of a house and while the engineer had estimated 3 staff were sufficient to do the work ,  the claimant estimated the safe number was 4.

7. The Council’s Position CA-00050202-005

 7.1 The Safety, Health & Welfare at Work Act 205, section 28 (4) states:

 (4) A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of the contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.

7.2 The Complaint was submitted to the WRC on 29th April 2022. Therefore, the cognisable period for any penalisation complaint to the WRC is the period between 30th October 2021 and 29th April 2022.

 7.3 The alleged incidents are outlined by the claimant as:

 1. Ach Wall – Q4 2020

 2. SSWP H&S documents (Safe System of Work Plans) as well as Traffic Management Plans – 27th May 2021

 3. Cu Wall – July 2021 7.

7.4 The Council believe that the complaint is out of time as all of the alleged incidents took place outside of the cognisable period.

7.5 However should the adjudicator not agree, in order for the complaint to succeed, the claimant must show that he committed a protected act and that he suffered a detriment as a result, as per the ruling set out by the Labour Court in O’Neill v Toni 9 and Guy Blackrock Ltd HSD095.

 7.6 Therefore, there are two issues to be considered:

1. Whether or not the claimant made a complaint or representation within the meaning of Section 27.

2. Whether or not he suffered a detriment and was penalised as result within the meaning of Section 27.

 7.7 In Q1 2021, the area engineer required some work to be carried out on Ach Wall which adjoined a National School. This was within the T Engineering Area where the claimant operated. These works were to be completed outside of core time and would have been paid via overtime. It was discussed with all operatives within the area however, none of the outdoor staff were interested in undertaking these works. Subsequently the work was completed by an external contractor on by the end of 2020. There was no penalisation of any of the staff who declined the work including the claimant.

 7.8 On 27th May 2021, a briefing session was held for all relevant staff within the T engineering area in relation to the development of the Safe System of Work Plans (SSWP) and Traffic Plans (TM) for maintenance projects. The claimant states in his grievance that both of these “are not my responsibility” and he brought this to the attention of his line manager at the time. He was asked to attend a meeting with the Area Engineer which took place on 2nd June 2021. As it was not possible to eliminate the claimant’s concerns at this meeting, he was not required to develop daily SSWP/TM plans but must as part of the works team sign off on the risks and control identified in the SSWP/TM for the job completed each particular day. This is the same process required for all employees engaged in outdoor work projects. There is no breach of health and safety legislation in being required to sign the risk statements daily, rather it is a requirement under the relevant legislation.

7.9 On 11th June 2021, similar to the first project listed above, all staff in the area were asked if they were interested in completing work required on Cu wall. The claimant declined but the work was undertaken by some of the other staff in his section. The claimant was not penalised for this, but he was not paid overtime for work which he declined.

7.10 There was other overtime available on occasion which would take place generally on Saturdays from 8am to 2pm. This would be brought to the attention of all relevant staff in the section and it is their decision to avail of it subject to their availability for the full shift. The Council understands that the claimant declined this overtime on occasion as he was not available.

 7.11 In terms of the overtime completed by the claimant, an examination of the number of hours overtime paid to him shows an increase in 2021 compared to 2020 – a total of 244.5 hours overtime in 2020 compared to 230 hours. (Appendix 7)

7.12 The claimant’s temporary employment ceased solely due to the fact that the purpose for which he was employed came to an end i.e. the substantive post-holders temporary reassignment ended and he returned to his post effective from 1st January 2022.

 7.13 The Council is satisfied that no breach of the Act has occurred and would ask the adjudicator to dismiss this complaint.

Preliminary Matter of Jurisdiction and Time Limits :

 The claimant’s complaint  was received by the WRC on the  29th.April 2022 – accordingly the cognisable period for the complaint is the 30thOct .- 29th.April 2022.I have  noted  the details submitted in the complaint form  and the fact that the claimant did not return to work after the 16th.Nov. 2021.The claimant catalogues allegations of punishment which he is grounding as retaliation for having made a complaint under the Safety , Health & Welfare  at Work Act, 2005 as well as for refusing to do tradesmen duties..When asked about the delay in making the complaint , the claimant responded that he had already been penalised for not doing work outside  of his contract and so he did not want to make things worse and he sought a transfer to a different area.

In his correspondence to the WRC the claimant digressed to make a number of allegations                            regarding poor Health & Safety Practises within the employment ranging from signing off on               safe system of work practises to undertaking patching duties alone     and sought and was furnished with documentation and written replies to same .He did contend that the documentation was not sufficiently comprehensive and challenged the overtime records produced by the council and alleged they were selective. The claimant asserted that the Council figures supported his allegation of discriminatory treatment. The claimant maintained that the H&S Officer advised that no less than 2 people should be assigned to this machine at any one time. The claimant asserted that the H&S officer failed to record her discussion with the claimant and a colleague about working alone on patching duties. The employer strongly disputed these assertions and argued that the velocity patcher is a self  operating one person operation. The claimant sought  copies of the Council’s SOPs  - the Council advised that during the claimant’s employment SOPs were not part of the Council’s Safety Management System. In his  submission to the WRC of the 23rd.April 2024 , the claimant asserts that the basis of his complaint was that he was let go “from my position for raising these concerns with the Council”.

The jurisdiction of the WRC in relation to the Act is set out in Section     27 of the Safety , Health & Welfare At Work Act 2005 

   As set out previously   the claimant’s complaint  was received by the WRC on the  29th.April 2022 – accordingly the cognisable period for the complaint is the 30th.Oct2021- 29th.April 2022.I have  noted  the details submitted in the complaint form  and the fact that the claimant did not return to work after the 16th.Nov. 2021.I have also taken into account the grievances documented to the respondent dated the 1st.December 2021  wherein the claimant references  penalisation arising  from  a dispute about taking on handyman’s duties- this document post dated the notice of termination of the claimant’s employment on the 19th.Nov.2021.  The claimant based his allegations of punishment/penalisation on adverse treatment regarding the allocation of overtime and being assigned on a solo basis to work on patching dutes. The time frame  for consideration  of this complaint is the 30th.October 2021 – 16th.November 2021 when the claimant went off sick and did not return to work.As regards the matter of an extension of the time frame for consideration of the complaint the claimant said I was already being penalised for not doing work outside of my contract.

The test for reasonable cause for delays in pursuing complaints is set out by the Labour Court in Cementation Skansa v Carroll DWT0338. In Cementation Skanska (formerly Kvaerner Cementation) v Carroll DWT0425, the Labour Court considered “reasonable cause” in the following terms:

“It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would    have initiated the claim in time.

 The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the claimant has a good arguable case.”

Subsequently, the Labour Court in Salesforce.com v Leech EDA1615 held as follows:

 “It is clear from the authorities that the test places the onus on the applicant for an extension of time to identify the reason for the delay and to establish that the reason relied upon provides a justifiable excuse for the actual delay. Secondly, the onus is on the applicant to establish a causal connection between the reason proffered for the delay and his or her failure to present the complaint in time.   Thirdly, the Court must be satisfied, as a matter of probability, that the complaint   would have been presented the complaint in time were it not for the intervention of the factors relied upon as constituting reasonable cause. It is the actual delay that must be explained and justified. Hence, if the factors relied upon to explain the   delay ceased to operate before the complaint was presented, that may undermine a    claim that those factors were the actual cause of the delay. Finally, while the established test imposes a relatively low threshold of reasnableness on an   applicant, there is some limitation on the range of issues which can be taken into account. In particular, as was pointed out by Costello J in O’Donnell v Dun Laoghaire Corporation [1991] ILRM 30, a Court should not extend a statutory time limit merely because the applicant subjectively believed that he or she was justified in delaying the institution of proceedings.”

Having considered the respective position of both parties I find the claimant has not met the test of reasonable cause for extending the time frame beyond the period of the 30th.October 2021 – 16th.Nov2021. On the basis of the claimant’s complaint to the WRC and the chronology of events as set out  in his complaint form I find that no compelling evidence was advanced to support his contention that he was penalised during the reckonable  period   for having made complaints under the Act. In this regard I have taken  account  of the chronology of events submitted by him and the respondent’s defence of the complaints and their redacted reports on overtime payment to the claimant and his colleagues. The claimant has not produced evidence to support his contention that he was being penalised for having made complaints regarding Health & Safety and fails to meet the “but for “ test which requires the claimant to establish that the alleged  penalisation arose as a result of having made the complaints.The claimant presented  no evidence of having been  penalised  for having made any such complaints  during the  forementioned time frame . Based on the records of overtime furnished by the respondent  with respect to the cognisable period  , there is no evidence of the claimant having singularly being denied overtime  or treated less favourably than a number of his other colleagues.

Accordingly I find against the claimant and do not uphold the complaint.

CA-000502-006 Protection of Employees (Fixed Term Work )Act , 2003

The claimant asserted “ 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”.

The respondent’s position is set out below :

8.1The claimant was employed on one specified purpose contract  which ceased once the temporary reassignment of the substantive postholder was no longer required .

8.2The claimant’s period of employment with the Council was from 6th.August 2019 until 31st.Dec 2021.The contract was not renewed during this period of employment.

8.3The claimant’s specified purpose contract clearly stated the purpose of his employment and that it would cease upon the return of the post holder.

8.4The Council is satisfied that no breach of the Act has occurred and would ask the adjudicator to dismiss this complaint.

Given the chronology of events submitted by both parties, I find the matter of contract renewal did not arise .Having considered the submissions of both parties and having regard to the claimant’s length of service ,  I find  that the claimant had not acquired rights to a contract of indefinite duration and consequently I  do not uphold the complaint.

CA-000502-007 Protection of Employees (Fixed Term Work) Act , 2003

The claimant complained that his employer failed to inform him (a fixed term employee) of opportunities for (a) permanent employment or (b) of appropriate training opportunities .

The claimant did not particularise any specific examples of these alleged breaches of the Act

The respondent denied any breach of the Act and submitted that any vacancy that arises is communicated to all staff via email and that consequently he had equal opportunity as all other employees to apply for vacancies within the organisation.

It was further submitted that the claimant was included in all relevant training which was provided for others in his area and submitted a record of the training completed by the claimant.

Having reviewed the submissions of the parties, I am satisfied that the respondent met their obligations under the Act with respect to notification of vacancies and training opportunities and consequently, I do not uphold the complaint.