FTD232

1. Appeal Of Adjudication Officer Decision No. ADJ-00031735 CA-00042116-001

BACKGROUND:

2. The Worker appealed the Adjudication Officer’s Decision to the Labour Court on 16 November 2022. A Labour Court hearing took place on 10 January 2023. The following is the Labour Court's Determination:-






DETERMINATION:

Background

This matter comes before the Court as an appeal by Joseph Shanley (the Complainant) against a decision of an Adjudication Officer made under the Protection of Employees (Fixed Term Work) Act,2003 (the Act) in his complaint against Longford County Council, (the Respondent).

The Adjudication Officer decided that the complaint was not well founded.

The Complaint

The Complainant commenced employment with the Respondent on 25^th June 2018 as part of a Graduate Programme operated across the Local Authority Sector and administered by the LGMA. Under that programme the Complainant was engaged under a contract of employment for a defined fixed term of three years commencing on 25^th June 2018 and terminating 25^th June 2021.

The programme, according to the submission of the employer, involved structured skills development programmes, a structured review of the placement between the employing local authority, the graduate and the LGMA as well as enrolment in industry recognised training in their chosen skills which would either be accredited and / or lead to membership of a professional body in the chosen field.

The Complainant submitted that he was engaged in project related work to a significant degree for the first three months of his placement on the programme and was thereafter mainly involved in administrative work prior to the making of the within complaint to the WRC.

The Complainant applied for the permanent post of Staff Officer on 17^th December 2019. He was placed third on the panel for appointment following that competition. The candidates who were placed 1^st and second in that competition were appointed to posts in July and August 2020.

The Complainant expected that, as a result of his placement on the panel for appointment that he would, for reasons he outlined to the Court, be appointed to an acting post following the appointment of the successful candidates to permanent positions. That did not occur and instead a person who was already holding an acting position continued to hold that position.

Upon being asked by the Court to clarify his complaint under the Act, the Complainant confirmed that he was not of the view that he was treated differently than a permanent post holder was or would have been treated in terms of appointment to an acting position had such a person been placed third in the competition. He offered no further clarification as to the nature of his complaint under the Act.

The Respondent rejected the contention that any breach of the Act had occurred and submitted that in light of the Complainant’s confirmation that he did not contend that he was treated less favourably than a permanent post holder was or would have been treated in the same circumstances no defence to the complaint was required.

The Court invited both parties to call witness evidence at their discretion. Both parties confirmed that they did not wish to place witness evidence before the Court.

Discussion and conclusion

The Court has considered the submissions of the parties and noted that neither party placed evidence or authorities before the Court.

The Act provides protection to a fixed term employee against less favourable treatment when compared to the treatment afforded to a comparable permanent employee.

The Complainant has confirmed to the Court that he makes no complaint that, in the circumstances giving rise to his complaint, he was treated less favourably than a comparable permanent employee was or would have been treated.

In circumstances where no submission has been made by the Complainant that he has been treated less favourably than a comparable permanent employee the within appeal must fail.

Decision

The Court decides that, for the reasons outlined above, the appeal fails.

The decision of the Adjudication Officer is varied.

The Court so decides.

	Signed on behalf of the Labour Court
	Kevin Foley
OC	______________________
27 February 2023	Chairman