FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : C.I.T. - AND - CATHERINE DAWSON DIVISION : Chairman: Mr Haugh Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal of a Rights Commissioner's Recommendation r-149631-ft-14 JOC
BACKGROUND:
2. This case is an appeal of a Rights Commissioner's recommendation No: r-149631-ft-14 JOC made pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act 2003. A Labour Court hearing took place on 13 July 2016. The following is the Court's Determination:
DETERMINATION:
Background
This is Ms Dawson’s (“the Complainant”) appeal from a decision of a Rights Commissioner (r-149631-ft-14/JOC) which is dated 8 July 2015. The representatives for Cork Institute of Technology (“the Respondent”) cross-appealed the Rights Commissioner’s decision in respect of the quantum of compensation he had awarded to the Complainant.
The Rights Commissioner held that the complaints referred by the Complainant were well founded. He awarded the Complainant a contract of indefinite duration (CID) for 14 hours per week from 1November 2010 and compensation of €20,000.00.
The appeal was originally listed for hearing by the Court in Cork on 11 November 2015. On that occasion, the Court did not open the hearing but requested both parties to make additional written submissions in relation to the Complainant’s status as a fixed-term employee or otherwise and clarifying on what basis the Complainant believed there had been an infringement of section 9(2) of the Protection of Employees (Fixed-Term Work) Act 2003 (“the Act”) in her case. The additional submissions were received as requested from the parties and the matter was rescheduled for 13 July 2016.
Complainant’s Status
The Complainant referred her complaint to the Rights Commissioner Service of the Labour Relations Commission (as it then was) on 9 October 2014. Section 14 of the Act provided (at the time the instant complaint was referred) for a limitation period of 6 months for complaints under the Act which period could be extended by a further 12 months where the Rights Commissioner was satisfied that the failure to present the complaint within the initial 6-month period was due to reasonable cause. It follows that the Complainant in this case-in order to present a valid complaint under the Act - must have been a fixed-term worker up to a date no earlier than 6 months prior to referring her complaint or, where she had sought and been granted an extension of the period for bringing her complaint under section 14(4), a date no earlier than 18 months prior to the date of the complaint. No such application to extend time appears to have been made before the Rights Commissioner.
It is evident from their respective submissions that both parties accept that the Complainant became entitled to a CID by operation of law on 1 November 2010. i.e. almost 4 years before she submitted her complaint under the Act.
Complaint
In response to questions from the Court, the Complainant accepted that her core complaint related to the terms and conditions of the contract of indefinite duration to which she had become entitled by operation of law on 1 November 2010. The Rights Commissioner accepted that this was a live issue when the complaint fell to be determined by him. The parties informed the Court, however, that the Respondent has addressed this issue in the period between the date the Complainant’s appeal was referred to the Court and the date of hearing. The Complaint is now engaged under a contract of indefinite duration dated 20 October 2015 that provides for 14 hours’ teaching per week.
Discussion and Conclusions
It follows from the sequence of events outlined above, that the Complainant does not havelocus standito maintain this appeal before the Court in circumstances where she is no longer a fixed-term employee and the terms and conditions of her contract of indefinite duration have been set out and clarified in writing by the Respondent. The decision of the Rights Commissioner is varied accordingly.
The Respondent’s cross-appeal was received by the Court on 21 August 2015 i.e. outside the 6-week time limit provided for (at the material time) in section 15 of the Act. The Respondent’s representative conceded that its cross-appeal was out of time.
The Court so determines.
Signed on behalf of the Labour Court
Alan Haugh
22 July 2016______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.