ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00005068
A Care Worker
A Health Sector Employer
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
Date of Adjudication Hearing: 27/03/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Summary of Complainant’s Case:
The claimant has been employed continuously as a Social Care Worker with the respondent since April 2009.In her complaint form she asserts that she sought a CID from her employer in 2013 – no response was forthcoming and raised the matter again in 2016.She submitted that the respondent agreed that she was entitled to automatic permanency but despite negotiations agreement could not be reached on working hours, work base and security of tenure.The claimant was seeking to have her current working hours recognised in the CID and was seeking to be provided with a permanent base.The claimant has been on maternity leave since November 2016.
When it was accepted by the respondent that the claimant had an entitlement to permanency a dispute arose with respect to the terms and conditions of her Contract of Indefinite Duration.
The terms of the CID which were issued to the claimant in August 2016 provided that the claimant would remain on the temporary panel – covering sick leave and annual leave with working hours calculated at 17.8 hours which were to be “managed” within an agreed time frame.The hours were apparently calculated on the basis of average hours worked from 2012 to Oct. 2015.The calculation excluded maternity cover the claimant had provided in 2009/2010 and 2012/2013.The claimant had less access to Sunday work than her permanent colleagues.The matter was referred to the WRC on the 26th.Sept. 2016 as no agreement could be reached between the parties.
It was submitted that the main issues in dispute were the failure to include the maternity cover hours in the hourlyl calculation , the non provision of security of tenure by retaining the claimant on a relief panel , losses of pension entitlements arising from the delay in honouring the claimant’s entitlements and unequal access to Sunday work. It was submitted that the claimant cannot be treated less favourably than her comparable permanent colleagues and that she be awarded maximum compensation because of the accrued loss in pension entitlements arising from the delay in resolving the dispute.
Summary of Respondent’s Case:
The respondent set out an overview of the respondent organisation and its staffing arrangements.The service provision extends over 24 hours seven days a week and consequently there is a significant requirement for relief staff.It was submitted that when staff acquire 4 years service they are processed for permanent appointment and it is a “ continual struggle to identify permanent posts on fixed rosters as staff reach their entitlements.It was submitted that as a consequence permanent relief staff have become a feature of the organisation.The respondent set out a chronology of the claimant’s employment history and it was acknowledged that the claimant’s right to automatic permanency was not disputed.The ensuing exchanges and meetings between the parties were presented.It was submitted that the claimant was ultimately offered
Permanent status in the organisation
Pension on her permanent hours – including the employers contribution
Permanent relief staff member covering sick leave and annual leave
17.8 hours per week - managed by her line manager over a 4/6 week cycle
“In relation to Sunday hours , no staff has an actual entitlement to Sunday hours – in cases where staff are filling a roster line , then they may be part of their roster .In this type of situation , the hours are across the week , based on the needs of the service and what replacement cover is required.
It was submitted that the claimant had raised numerous queries in relation to work base and vacancies that might arise and remained dissatisfied with the clarification issued by the respondent.
It was submitted that the claimant was employed initially as an if and when worker , earned permanency in the role and has been offered a permanent contract in this regard.It was contended that the respondent had been more than fair in the offer made and that there was no breach of the Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
As the claimant became entitled to a CID by operation of law in April 2013 , the matter of locus standi arises.This matter was considered by the Labour Court in FTC/12/27 – the claimant has never accepted the draft CIDs issued by the respondent - she continues to be employed as a fixed term worker - consequently I am satisfied that she is entitled to rely on the provisions of the Act .
The matter of CIDS for relief workers in the health sector was considered in detail by the Labour Court in FTD0611 – it was determined that the said contracts “ must be on the terms and conditions of employment , including terms as to working hours , as the fixed term contracts from which they are derived.It follows that in order to meet its obligations under the Act the Respondent should provide each of the claimant’s with a contract of indefinite duration specifying a number of normal weekly hours which is not less than those specified in their final fixed – term contract….. the Court concurs with the finding of the Rights Commissioner who decided that the respondent should be required to provide these complainants with contracts of indefinite duration based on their normal weekly hours in the previous 12 months”.It has consistently been found by the Court in FTD064 and FTD 063 that the terms and conditions of a contract of indefinite duration must be the same as those contained in the fixed term contract from which it derives. Accordingly I require the respondent to issue the claimant with a CID which reflects the average no of total hours worked over the 12 month period preceding the 12th.April 2013 and that she be admitted to the pension scheme with effect from the 12th.April 2013.As there was no guaranteed access to Sunday working in the claimant’s fixed term contracts , I cannot uphold this element of the complaint.I further require the respondent to pay the claimant €1,500 compensation within 42 days of the date of this decision.
Dated: 13th July 2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea