FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DUNLAOGHAIRE RATHDOWN COUNTY COUNCIL - AND - JOE BURNS DIVISION : Chairman: Mr Foley Employer Member: Mr Marie Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Decision No: ADJ00002808.
BACKGROUND:
2. The Appellant appealed the Adjudication Officer’s Decision to the Labour Court on the 28 March 2017. A Labour Court hearing took place on the 30 May 2017. The following is the Labour Court's Decision:
DETERMINATION:
This matter comes before the Court as an appeal of an Adjudication Officer decision by Joe Burns (the Appellant) in his complaint that his employer, Dunlaoghaire Rathdown County Council (the Respondent) had breached the Protection of Employees (Fixed Term Work) Act 2003 at Sections 5(1)(a), 5(2)(a)(b) and (c), and at Section13 in respect of his appointment as a Temporary Senior Staff Officer and subsequent return to the Grade of Staff Officer.
The Adjudication Officer in a decision dated 15thFebruary 2017 decided that the Appellant’s complaint could not succeed as he was not a Fixed Term Employee within the meaning of the Act.
Background
The Appellant was employed by the Respondent as a permanent pensionable employee in October 2000 and continued to be so employed at the date he made his complaint to the Workplace Relations Commission on 3rd March 2016 and at all times between those dates.
The Appellant was employed at the grade of Staff Officer in May 2012. At that time the Respondent advertised a competition for the appointment of Temporary Senior Staff Officers for a period of up to three years. The Appellant applied for a position of Temporary Senior Staff Officer. He was notified by letter dated 30thJuly 2013 that he was being offered an appointment as a ‘Senior Staff Officer – Temporary Appointment’ with effect from 6thAugust 2013. He was subsequently appointed to the position of Temporary Senior Staff Officer.
The Appellant was returned to his grade of Staff Officer in early 2016.
Preliminary matter
The Respondent submitted to the Court that the Appellant was not a Fixed Term Employee within the meaning of the Act at any material time and consequently could not maintain a complaint under the Act.
The Court decided to consider this matter at the outset in view of the fact that, were the Court to determine that the Appellant did not in effect have locus-standi to make the within complaint, then the entire matter before the Court would fall.
Position of the Appellant
The Appellant maintained that he never understood that he could be returned to the Grade of Staff Officer at any time after his appointment as a Temporary Senior Staff Officer. He submitted that his contract as a Temporary Senior Staff Officer was in effect a Fixed Term Contract. He maintained that was assigned to a position previously held by a permanent Senior Staff Officer.
Position of the Respondent
The Respondent submitted that the Appellant was never employed as a Fixed Term Worker and was at all material times employed on a permanent pensionable contract of employment which amounted to a contract of indefinite duration within the meaning of the Act. The Respondent submitted that at no material time was the Appellant’s status or position as a permanent member of the staff of the Respondent at risk or under threat.
The Respondent submitted the cases of Kelly v Louth Council [FTD1320] and Gallagher v Sligo County Council [FTD1425] as authority for the proposition that the Appellant did not have locus-standi under the Act for the making of the within complaint.
The Law
The Protection of Employees (Fixed Term Work) Act 2003 transposes Council Directive No. 1999/70/EC into Irish law.
The Directive states at paragraph 14 and (17) as follows
- (14) The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
(17) As regards terms used in the framework agreement but not specifically defined therein, this Directive allows Member States to define such terms in conformity with national law or practice as is the case for other Directives on social matters using similar terms, provided that the definitions in question respect the content of the framework agreement;
Article 1
- The purpose of the Directive is to put into effect the framework agreement on fixed-term contracts concluded on 18 March 1999 between the general cross-industry organisations (ETUC, UNICE and CEEP) annexed hereto.
- The purpose of this framework agreement is to:
- (a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;
(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
- (a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;
- 1. This agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.
- 1. For the purpose of this agreement the term "fixed-term worker" means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.
Interpretation
- The meaning of the term fixed term employee for the purposes of the 2003 Act is expressed in terms identical to the meaning set out in the Directive
- “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include ….
- “the protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period of fixed-term employment.
- Accordingly the Court finds that the Complainant was at all times a permanent employee of the Respondent Council. In order to come within the ambit of the Act a Complainant must have the status of a fixed term worker. The Court interprets that to mean that a Complainant’s employment must be coterminous with the expiry of a fixed term or fixed purpose contract of employment. A complainant who reverts to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act.
The Appellant in the within Appeal appears to accept that at all material times he was employed by the Respondent as a permanent employee and consequently employed on a contract of employment of indefinite duration. However he also maintains that he was for a time during the same period a Fixed Term Worker employed on a Fixed Term contract of employment by the Respondent. These contentions are irreconcilable. This is not a case of the Appellant being employed in two different capacities at different times by the same employer. The Appellant in the within appeal was employed by the Respondent in only one capacity at any one time. At no material time was his employment with the Respondent at risk or under threat.
The Court concludes that at all material times the Appellant was employed as a permanent employee on a contract of employment of indefinite duration by the Respondent and consequently he does not have locus-standi to maintain the within appeal.
Determination
The Complaint of the Appellant is not well founded and the Appeal fails. The decision of the Adjudication Officer is affirmed.
Signed on behalf of the Labour Court
Kevin Foley
CR______________________
2nd June, 2017Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.