Complainant

Respondent

Parties

Joseph  Whelan

Zazzle Ireland Ltd

Representatives

  Self-Represented

 IBEC

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-00060394-001

06/12/2023

Mr. Whelan gave evidence on Affirmation.

Mr. Jamie Grogan, Customer Care Regional Manager, gave evidence on Affirmation on behalf of the Respondent.

Both parties relied on documentary evidence filed in advance of the hearing.

It was the Complainant’s complaint that he, as a fixed term employee, was treated less favorably than a permanent employee.

The Complainant, a Customer Service Agent, commenced employment with the Respondent on a fixed term contract on 2 October 2023. On 21 November 2023, during a Zoom meeting he was advised his contract was being terminated early on 1 December 2023.

Following this he spoke on the phone to Mr Grogan to gain a better understanding of the matrix. It was his evidence that while Mr Grogan was very helpful, he said he was unable to provide him with a copy of the matrix. It was only when the Respondent filed its submission that he had sight of the matrix for the first time.

It was the Complainant’s evidence that he was told the selection was on a last in first out basis and then within his pool of fixed term employees a matrix based on three key performance indicators was used to identify 6 of the 12 fixed term employees in his team that were being made redundant.

It was the Complainant’s evidence that the data relied upon for the matrix differed from the data contained in the monthly reports he was provided with from the Respondent. The Complainant submitted that if the data was incorrect for him, it may be incorrect for other employees with the overall data and therefore, selection of lowest scoring 6 employees was also incorrect. This would lead to an incorrect selection outcome thereby leading to a less favourable outcome for fixed term employees.

Mr Grogan, a manager with the Respondent with over 10 years’ experience, gave very clear evidence as to which data was used and how the fixed term employees were selected. He differentiated the monthly reports with the various KPI scores were based on whole numbers. In comparison, the scores used for the purposes of the matrix which true numbers, and this accounted for the difference.

In his evidence, Mr Grogan agreed that the telephone call with the Complainant was very amicable however he denied that he was asked for a copy of the data.

It was Mr Grogan’s evidence that the selection matrix was only used for fixed term employees as last in, first out was the first selection criteria applied.  Where the fixed term employees were recruited as a group at the same time, including the Complainant, a second selection criteria had to be devised to identify the lowest performers within that group. This criterion was based on their KPI scores.

Section 5 of the Protection of Employees (Fixed-term Work) Act 2003 requires a comparator with a permanent employee in order for a complaint by a fixed term worker to succeed: -

“5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—

(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term

employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly”

Section 6 provides:

“6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.”

The Complainant accepted the selection process of last in, first out. Having heard the undisputed evidence of the Respondent, it is accepted the application of this selection criteria resulted in the elimination of permanent employees, leaving a pool of fixed term workers only.

The Complainant’s submission is accepted, that the data relied upon for the calculation of the highest/lowest performers should have been the same as the monthly reports provided to the employees which would have allowed for a more transparent calculation. Similarly, it is also accepted that the matrix should have been shared with the Complainant as a matter of course.

However, for the purposes of Section 5 the Complainant has not provided a comparator of a permanent full time employee and as a consequence cannot satisfy Section 6 of the 2003 Act.

Therefore, I find the complaint is not well founded.

I find the complaint is not well founded.

Fixed term employees