Complainant

Respondent

Anonymised Parties

A worker

A government the respondent

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-00009060-001

13/01/2017

The complainant alleges that   she has been in continuous employment with the respondent from the 17th of   September, 2012 - to date.

In accordance with Section 7 of   the Act, she states that there are no objective grounds justifying less   favourable treatment and the respondents have breached Section 7 in this   regard. The failure of the respondent to offer and supply the complainant   with contracts of employment beyond 2012 demonstrates clearly that there are   no objective grounds for less favourable treatment other than the status of the   complainant as a fixed term worker.

In accordance with Section 9 of   the Act, the complainant is entitled to a Contract of Indefinite Duration   with effect from the 17th of September, 2016 by operation of law.

The complainant is a fixed term   worker employed with the respondent in Wexford. Her contract of employment   commenced on the 17th of September, 2012 for the purpose of covering a staff   member’s absence (as per the terms of the contract) and she has received no   further contract and no letters of extension and her contract has no end   date. She is performing the full range   of Clerical Officer duties. The complainant was initially assigned to work in   a particular payment section where she worked until February, 2014. While the complainant worked in the Payment   Section she was the only clerical administrative grade in the section at the   time. In February, 2014 she was transferred into Maintenance Section where   she worked until February, 2015. The   office in Wexford was set up in September, 2014 so when the complainant   transferred in February, 2015 from the Maintenance Section she was assigned   to work in the new Reception Area in the Office. At this time she was also   assigned duties in Fresh Claims. However, from July, 2015 to date she has   been assigned to work solely on Reception in the Office i.e. Integrated ‘one   stop shop’ reception service.

In February, 2016 the   respondent noted that there was an error in the complainant’s contract. The   wording “ the purpose of covering a permanent staff members absence” was   written into her contact in error. The complainant was asked to enter into a   new contact but she refused to do so as the new contract fundamentally   changed the reason for her employment.  

The complainant alleges she is comparable to   permanent employees performing Clerical Officer duties with the respondent   nationally within the meaning of Section 6 of the Act.

The objective grounds for the less   favourable treatment of the complainant, regarding her conditions of   employment, are based solely on the status of the complainant as a fixed term   employee.

Section 7 of the Act provides   that a ground is not regarded as objective “unless it is based on   considerations other than the status of the employee concerned as a fixed   term employee and the less favourable treatment which it involves for that   employee (which treatment may include the renewal of a fixed term employees   contract for a further fixed term) is for the purpose of achieving a   legitimate objective of the employer and the treatment is appropriate and   necessary for that purpose”.

Permanent Clerical Officers and   Temporary Clerical Officers perform the same duties across the respondent   entity. Fixed -term workers contracts refer to the fact that they can be   asked to perform all duties of a clerical nature, therefore if there are   means by which the employer could adequately pursue the objective other than   less favourable treatment then objective grounds would not be   established.

The complainant’s contract   states that the objective ground is that she is there to provide cover for a   permanent staff member’s absence therefore there is ‘no specific task or   occurrence of a specific event’.

The respondent has in fact   taken 2 permanent Clerical Officers into employment in this office in the   last 2 years. The complainant performs general clerical officer duties, which   can be carried out by any Clerical Officer so we do not believe that it was   necessary to retain The complainant on a temporary contract to achieve the   aim.

The complainant accepts there   will always be a need for fixed-term staff however, where an individual has   been employed in excess of 4 years, she contends that the respondent must provide   and clearly communicate very specific reasons as to why the contract should   not be converted to a contract of indefinite duration and this did not occur

The duties, the complainant has been   performing over the years do not strictly relate to her contract for the   reasons outlined and the terms of her contract are no longer relevant as   there can be no estimated time of an end date.

The complainant was never   furnished with clear specific reasons as to why her contract could not be   converted into one of a contract of indefinite duration.

Having completed more than 4 year’s   continuous employment on one fixed term contract that The complainant’s employer   has contravened Section 9(2) of the Act and, by operation of Section 9(3) of   the Act, her fixed term contract was transmuted into one of indefinite   duration by operation of law.

The complainant was recruited   on 17th September 2012, from the Temporary Clerical Office She was provided with a temporary contract   of employment from 17th September,2012

The complainant ’s initial   contract from 17 September 2012 contained a typographical error. The   complainant was recruited to facilitate the a particular project; however her   initial contract advised incorrectly that it was for the purpose of covering   the absence of a permanent staff member. This was a typographical error and   was not correct

The complainant was always   assigned to facilitate the project in   Wexford Office and that purpose   continues to date. The complainant has provided temporary cover to support   the project in Wexford Centre since   the start date of her contract. When the complainant brought the matter   regarding the error on her contract to the attention of HR Division in   February 2016, we immediately issued a revised and corrected contract from   17th September 2012 which confirmed the correct purpose from the original   date of assignment. She refused to sign   the new contract.

The assignment of a TCO for the   project is an additional resource provided to offices in order to facilitate   the delivery of the project. The   contract of employment provides that a TCO will be required to carry out general   Clerical Officer duties to facilitate the implementation of the project. It   is a matter for a manager to decide how best to use this additional resource   in order to deliver the project effectively in the office. It does not   necessarily follow that a TCO who has a contract whose objective reason is   connected to the project implementation will be doing project work only.   Specifically The complainant ’s contract provides for the following:

General Clerical duties to   begin the roll out of the project on a nationwide basis

This stated purpose allows the   assignment of the complainant to any clerical duties in the office, as   determined by her manager, so as to free up other staff to deliver the   project.

The respondent’s position is that while we acknowledge that   the complainant has over four years’   service, a contract of indefinite duration (CID) is not appropriate as the   complainant does not have the successive fixed terms contracts which are   required to have an entitlement to a CID under the Protection of Employees   (Fixed-Term Work) Act 2003.

Once the implementation phase is complete at   end-2017 approximately, the contract with the card issuer will cease and the   need for temporary staff to support this initial registration process will no   longer exist. The issue of the cards will then become part of the   respondent’s ongoing operations and   will be staffed on a permanent basis as part of the Department’s network.

As the objective reason for the   contract continues and as the complainant is still facilitating the   implementation of the project, it is the Department’s position that she is   not entitled to a contract of indefinite duration.

The fixed purpose contract which issued to the   complainant from 17th September 2012 advised:

This appointment will commence   from 17th September 2012 and will be for the purpose of “general clerical   officer duties, to begin the roll-out of the Public Service Card on a   nationwide basis”. This appointment   therefore cannot result in an offer of a contract of indefinite duration.

When the objective reason for   her contract ceases, The complainant will be given appropriate notice as   determined by employment law and her contract will cease. As she has been employed with the   Department for over 2 years, she will be due a statutory redundancy payment   based on the number of years’ service she will have at the end of her   contract.

The complainant’s contract of   employment, dated the September, 2012 specifically states “ will be for the   purpose of covering permanent staff member’s absence”. The complainant was   never told who she was covering for.   She did move into different sections. Initially she was assigned to work in a   particular payment section where she worked until February 2014. In February 2014 she was transferred into   Maintenance Section where she worked until February 2015. In February, 2015 she was transferred from   the Maintenance Section to the new Reception Area in the Office. At this time   she was also assigned duties in Fresh Claims. However, from July 2015 to date   she has been assigned to work solely on Reception in the Office i.e.   Integrated ‘one stop shop’ reception service.  

The respondent states that the   complainant was employed as a temporary clerical officer and that the TCO’s   are employed as an additional resource in order to facilitate the delivery of   the project. In 2016 the respondent   noticed an error in the complainant. They state that she was not in fact   employed to cover for absences but was employed to facilitate the roll out of   the project. They issued her with a   new contract of employment. The complainant refused to sign it.

The original contract of   employment was signed by both parties and it would seems from the   complainant’s evidence was acted on by both parties. The respondent cannot unilaterally   change the terms of the complainant’s contract. I am satisfied that the   original contract from September, 2012 is the relevant contract for the   purpose of this dispute.

The complainant’s contract has   no end date. The fact that she was employed to cover for absent employees can   only mean that there is no end date and no end purpose.

Section 2 (1) of the Act defines “fixed-term employee” as

“ 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”

Section 8.—(1) Where an employee is   employed on a fixed-term contract the fixed-term employee shall be informed   in writing as soon as practicable by the employer of the objective condition   determining the contract whether it is,

(a) arriving at a specific date

(b) completing a specific task, or

(c) the occurrence of a specific event.

The complainant’s September 2012 contract does not have an end date   or an end purpose. The respondent did not give to the complainant, as soon as   practicable , or at all, a notice in   writing of the objective conditions determining her contract of employment.   The reason for her employment is to cover for absent members of staff and   therefore by its very nature is ongoing and indefinite. Accordingly, I find   that the complainant is not a fixed term employee within the meaning of the   Act, she is in fact an employee.