DJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010394
Parties:
| Complainant | Respondent |
Anonymised Parties | An Employee | An Education and Training Board |
Representatives | Colm Kelly, TUI Les Begley, TUI | Owen O’Donnell, Director Maria Brennan, Director Betty Corkey, HR Manager |
Complaint(s):
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-00013808-001 | 07/09/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00013808-002 | 07/09/2017 |
Date of Adjudication Hearing: 17/01/2018
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant states that contract to the provision of Section 6 of the Protection of Employees (Fixed Term Work) Act 2004 (the Act), she was paid less than and had less favourable conditions of employment than a named comparable employee.
Summary of Complainant’s Case:
The Complainant has been an employee of the Respondent from October 2015 to present. The Complainant was initially employed as a ‘Resource Worker’ to deliver tuition and undertake administrative duties on the Adult Basic Education [ABE] programmes in the local ABE in April 2015. The initial contract was for 3 months and was extended verbally up to September 2015. The grade of Resource Worker was a grade that had been national agreed for deployment in Youthreach programmes.
The Complainant stated that unlike other public service grades, the Youthreach Resource Person grade was considered a frontline grade in the Education Sector and so has never been subject to the public service moratorium on recruitment. On this basis a number of ETB’s began to use the grade outside of the Youthreach settings with a view to circumnavigating the moratorium on other grades, not considered frontline. There is no agreement on the use of the grade outside of the Youthreach programmes and the Department of Education and Skills, having been advised of this widespread undermining of the moratorium, instructed ETB’s to desist from this practise in early 2017.
In October 2015 the Complainant was appointed as a District Literacy Education Officer (DLEO) by the Respondent on a Fixed Term Contract. This DLEO grade and terms and conditions of service has been unique to the Respondent. In contracting persons to the DLEO grade the Respondent used a template contract for another grade, the Adult Literacy Organiser with a number of additional duties and with the insertion of the Resource Person salary scale. This grade was used by the Respondent to undermine the national moratorium on non-frontline grades i.e. the grade of Adult Literacy Organiser which is considered an administrative and non-frontline grade.
In October 2015 the ALO in the area was on a period of extended sick leave and the Complainant was appointed on a Fixed Term basis to replace this role. The original objective ground stated on the fixed term contract is: ‘post is to replace DLEO on leave’. The duties undertaken by the Complainant were those of a comparator. Further to querying this fact in light of the objective ground an amended contract was issued to reflect that the Complainant was not in fact covering for another DLEO. It is the position of the Complainant that she was employed and undertook the terms and conditions of service and responsibilities and duties of the comparator during her absence. The contract and job description for this period, including the advertisement for the post, are all consistent with the grade of Adult Literacy Organiser. Nonetheless, it is alleged that the Respondent made the appointment using the ostensible grade of DLEO, a non-agreed construct of the employer, while applying the pay-scale of a Youthreach Resource Person in a cynical effort to undermine the moratorium.
The Complainant remained employment as a DLEO on a full time basis covering sick leave of the comparator [an ALO] until her phased return to work commencing 23 January 2017. The Complainant gradually returned to her initial position of Resource Worker, remained on 10 hours in that position. On the 26 October 2017 the Complainant received correspondence from the Respondent stating that, although the person she had been covering had returned to work full time since March 2017 the Respondent had kept the Complainant on in a support role. It was confirmed the Complainants employment would cease on Friday 24 November 2017. The Respondent conceded that no new fixed term contract had issued from March 2017 and that the Respondent was in breach of the Terms of Employment Information Act, 1994. The Respondent conceded the Complainant had a reasonable expectation that her employment had reverted to her initial positon of Resource Worker which had commenced April 2015 and that she was currently in an implicit Fixed Term Contract with a conclusion date in April 2018. The Respondent communicated to the Complainant that they would extend her employment to this date but were not in a position to commit to there being any other work beyond this date.
The Complainant had queried her pay scale from the point of appointment to the position covering for the ALO. The Complainant had also contacted the Respondent in a personal capacity on the issue on 9 August 2016.
The Complainants union representatives holds the position that the Complainant had an entitlement under Section 6 of the Protection of Employees (Fixed Term Work) Act, 2003 to be treated no less favourably than a comparable permanent employees.
The Complainant has named a comparator and both have been employed by the Respondent during the reference period for this complaint and thus satisfy the requirement of Section 5(1)(a) of the Act. The comparator is obviously an appropriate comparator for the Complainant as the Complainant was responsible for undertaking the comparators duties during the period of the comparators absence. The Complainant contents that the fact that she was contracted, specifically to cover a post of sick leave satisfies the requirement of Section 5(2)(a) of the Acts as it is unambiguous and indeed contractually explicit that the employees were employed to perform the same work and are interchangeable. This interchangeability is a matter of fact and is overtly documented in both contract and correspondence from the Respondent as the Employer. It is stated that the Complainant was, for the extent, of her employment, entitled to be treated in a manner no less favourably than the comparator.
The Complainants union representatives content that the Complainant should have been employed and progressed through the incremental pay scale of ALO as per Department of Education and Skills Circular Letter M15/01 paid on a pro-rata basis, commencing at point one of the post 2012 scale as an ALO and accruing an increment on the anniversary of her employment or on such date required by adjustments agreed to under the national collective agreements.
The Complainants union representatives seek that the Complainant would be compensated for the relevant difference in salary between the salary scale for Resource Persons and that for Adult Literacy Organiser with such scales being those that were in operation during the course of the Complainants employment, with any adjustments that would have been made over the course of that employment owing to increases in salary. The Complainants union representatives are additionally seeking that the Adjudicator would, having regard to the infringement on the Complainants statutory entitlements, require the Respondent to pay the claimant compensation appropriate to their liability in this regard.
Summary of Respondent’s Case:
The Complainant has been an employee of the Respondent from October 2015 to present. The Complainant was initially employed as a ‘Resource Worker’ to deliver tuition and undertake administrative duties on the Adult Basic Education [ABE] programmes in the local ABE in April 2015. The initial contract was for 3 months and was extended verbally up to September 2015. The grade of Resource Worker was a grade that had been national agreed for deployment in Youthreach programmes.
The Complainant stated that unlike other public service grades, the Youthreach Resource Person grade was considered a frontline grade in the Education Sector and so has never been subject to the public service moratorium on recruitment. On this basis a number of ETB’s began to use the grade outside of the Youthreach settings with a view to circumnavigating the moratorium on other grades, not considered frontline. There is no agreement on the use of the grade outside of the Youthreach programmes and the Department of Education and Skills, having been advised of this widespread undermining of the moratorium, instructed ETB’s to desist from this practise in early 2017.
In October 2015 the Complainant was appointed as a District Literacy Education Officer (DLEO) by the Respondent on a Fixed Term Contract. This DLEO grade and terms and conditions of service has been unique to the Respondent. In contracting persons to the DLEO grade the Respondent used a template contract for another grade, the Adult Literacy Organiser with a number of additional duties and with the insertion of the Resource Person salary scale. This grade was used by the Respondent to undermine the national moratorium on non-frontline grades i.e. the grade of Adult Literacy Organiser which is considered an administrative and non-frontline grade.
In October 2015 the ALO in the area was on a period of extended sick leave and the Complainant was appointed on a Fixed Term basis to replace this role. The original objective ground stated on the fixed term contract is: ‘post is to replace DLEO on leave’. The duties undertaken by the Complainant were those of a comparator. Further to querying this fact in light of the objective ground an amended contract was issued to reflect that the Complainant was not in fact covering for another DLEO. It is the position of the Complainant that she was employed and undertook the terms and conditions of service and responsibilities and duties of the comparator during her absence. The contract and job description for this period, including the advertisement for the post, are all consistent with the grade of Adult Literacy Organiser. Nonetheless, it is alleged that the Respondent made the appointment using the ostensible grade of DLEO, a non-agreed construct of the employer, while applying the pay-scale of a Youthreach Resource Person in a cynical effort to undermine the moratorium.
The Complainant remained employment as a DLEO on a full time basis covering sick leave of the comparator [an ALO] until her phased return to work commencing 23 January 2017. The Complainant gradually returned to her initial position of Resource Worker, remained on 10 hours in that position. On the 26 October 2017 the Complainant received correspondence from the Respondent stating that, although the person she had been covering had returned to work full time since March 2017 the Respondent had kept the Complainant on in a support role. It was confirmed the Complainants employment would cease on Friday 24 November 2017. The Respondent conceded that no new fixed term contract had issued from March 2017 and that the Respondent was in breach of the Terms of Employment Information Act, 1994. The Respondent conceded the Complainant had a reasonable expectation that her employment had reverted to her initial positon of Resource Worker which had commenced April 2015 and that she was currently in an implicit Fixed Term Contract with a conclusion date in April 2018. The Respondent communicated to the Complainant that they would extend her employment to this date but were not in a position to commit to there being any other work beyond this date.
The Complainant had queried her pay scale from the point of appointment to the position covering for the ALO. The Complainant had also contacted the Respondent in a personal capacity on the issue on 9 August 2016.
The Complainants union representatives holds the position that the Complainant had an entitlement under Section 6 of the Protection of Employees (Fixed Term Work) Act, 2003 to be treated no less favourably than a comparable permanent employees.
The Complainant has named a comparator and both have been employed by the Respondent during the reference period for this complaint and thus satisfy the requirement of Section 5(1)(a) of the Act. The comparator is obviously an appropriate comparator for the Complainant as the Complainant was responsible for undertaking the comparators duties during the period of the comparators absence. The Complainant contents that the fact that she was contracted, specifically to cover a post of sick leave satisfies the requirement of Section 5(2)(a) of the Acts as it is unambiguous and indeed contractually explicit that the employees were employed to perform the same work and are interchangeable. This interchangeability is a matter of fact and is overtly documented in both contract and correspondence from the Respondent as the Employer. It is stated that the Complainant was, for the extent, of her employment, entitled to be treated in a manner no less favourably than the comparator.
The Complainants union representatives content that the Complainant should have been employed and progressed through the incremental pay scale of ALO as per Department of Education and Skills Circular Letter M15/01 paid on a pro-rata basis, commencing at point one of the post 2012 scale as an ALO and accruing an increment on the anniversary of her employment or on such date required by adjustments agreed to under the national collective agreements.
The Complainants union representatives seek that the Complainant would be compensated for the relevant difference in salary between the salary scale for Resource Persons and that for Adult Literacy Organiser with such scales being those that were in operation during the course of the Complainants employment, with any adjustments that would have been made over the course of that employment owing to increases in salary. The Complainants union representatives are additionally seeking that the Adjudicator would, having regard to the infringement on the Complainants statutory entitlements, require the Respondent to pay the claimant compensation appropriate to their liability in this regard.
Findings and Conclusions:
The Complainant has been an employee of the Respondent from October 2015 to present. The Complainant was initially employed as a ‘Resource Worker’ to deliver tuition and undertake administrative duties on the Adult Basic Education [ABE] programmes in the local ABE in April 2015. The initial contract was for 3 months and was extended verbally up to September 2015. The grade of Resource Worker was a grade that had been national agreed for deployment in Youthreach programmes.
The Complainant stated that unlike other public service grades, the Youthreach Resource Person grade was considered a frontline grade in the Education Sector and so has never been subject to the public service moratorium on recruitment. On this basis a number of ETB’s began to use the grade outside of the Youthreach settings with a view to circumnavigating the moratorium on other grades, not considered frontline. There is no agreement on the use of the grade outside of the Youthreach programmes and the Department of Education and Skills, having been advised of this widespread undermining of the moratorium, instructed ETB’s to desist from this practise in early 2017.
In October 2015 the Complainant was appointed as a District Literacy Education Officer (DLEO) by the Respondent on a Fixed Term Contract. This DLEO grade and terms and conditions of service has been unique to the Respondent. In contracting persons to the DLEO grade the Respondent used a template contract for another grade, the Adult Literacy Organiser with a number of additional duties and with the insertion of the Resource Person salary scale. This grade was used by the Respondent to undermine the national moratorium on non-frontline grades i.e. the grade of Adult Literacy Organiser which is considered an administrative and non-frontline grade.
In October 2015 the ALO in the area was on a period of extended sick leave and the Complainant was appointed on a Fixed Term basis to replace this role. The original objective ground stated on the fixed term contract is: ‘post is to replace DLEO on leave’. The duties undertaken by the Complainant were those of a comparator. Further to querying this fact in light of the objective ground an amended contract was issued to reflect that the Complainant was not in fact covering for another DLEO. It is the position of the Complainant that she was employed and undertook the terms and conditions of service and responsibilities and duties of the comparator during her absence. The contract and job description for this period, including the advertisement for the post, are all consistent with the grade of Adult Literacy Organiser. Nonetheless, it is alleged that the Respondent made the appointment using the ostensible grade of DLEO, a non-agreed construct of the employer, while applying the pay-scale of a Youthreach Resource Person in a cynical effort to undermine the moratorium.
The Complainant remained employment as a DLEO on a full time basis covering sick leave of the comparator [an ALO] until her phased return to work commencing 23 January 2017. The Complainant gradually returned to her initial position of Resource Worker, remained on 10 hours in that position. On the 26 October 2017 the Complainant received correspondence from the Respondent stating that, although the person she had been covering had returned to work full time since March 2017 the Respondent had kept the Complainant on in a support role. It was confirmed the Complainants employment would cease on Friday 24 November 2017. The Respondent conceded that no new fixed term contract had issued from March 2017 and that the Respondent was in breach of the Terms of Employment Information Act, 1994. The Respondent conceded the Complainant had a reasonable expectation that her employment had reverted to her initial positon of Resource Worker which had commenced April 2015 and that she was currently in an implicit Fixed Term Contract with a conclusion date in April 2018. The Respondent communicated to the Complainant that they would extend her employment to this date but were not in a position to commit to there being any other work beyond this date.
The Complainant had queried her pay scale from the point of appointment to the position covering for the ALO. The Complainant had also contacted the Respondent in a personal capacity on the issue on 9 August 2016.
The Complainants union representatives holds the position that the Complainant had an entitlement under Section 6 of the Protection of Employees (Fixed Term Work) Act, 2003 to be treated no less favourably than a comparable permanent employees.
The Complainant has named a comparator and both have been employed by the Respondent during the reference period for this complaint and thus satisfy the requirement of Section 5(1)(a) of the Act. The comparator is obviously an appropriate comparator for the Complainant as the Complainant was responsible for undertaking the comparators duties during the period of the comparators absence. The Complainant contents that the fact that she was contracted, specifically to cover a post of sick leave satisfies the requirement of Section 5(2)(a) of the Acts as it is unambiguous and indeed contractually explicit that the employees were employed to perform the same work and are interchangeable. This interchangeability is a matter of fact and is overtly documented in both contract and correspondence from the Respondent as the Employer. It is stated that the Complainant was, for the extent, of her employment, entitled to be treated in a manner no less favourably than the comparator.
The Complainants union representatives content that the Complainant should have been employed and progressed through the incremental pay scale of ALO as per Department of Education and Skills Circular Letter M15/01 paid on a pro-rata basis, commencing at point one of the post 2012 scale as an ALO and accruing an increment on the anniversary of her employment or on such date required by adjustments agreed to under the national collective agreements.
The Complainants union representatives seek that the Complainant would be compensated for the relevant difference in salary between the salary scale for Resource Persons and that for Adult Literacy Organiser with such scales being those that were in operation during the course of the Complainants employment, with any adjustments that would have been made over the course of that employment owing to increases in salary. The Complainants union representatives are additionally seeking that the Adjudicator would, having regard to the infringement on the Complainants statutory entitlements, require the Respondent to pay the claimant compensation appropriate to their liability in this regard.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint is well founded. The Adjudicator awards the Complainant compensation in the sum of €15,000 compensation for the infringement of her rights under the provision of Section 6 of the Act.
Dated: 5th April, 2018
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Key Words:
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ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00010394
Parties:
| Complainant | Respondent |
Parties | Jasmin Stallard | Kerry Education And Training Board |
| Complainant | Respondent |
Anonymised Parties | An Employee | An Education and Training Board |
Representatives | Colm Kelly, TUI Les Begley, TUI | Owen O’Donnell, Director Maria Brennan, Director Betty Corkey, HR Manager |
Complaint(s):
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-00013808-001 | 07/09/2017 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00013808-002 | 07/09/2017 |
Date of Adjudication Hearing: 17/01/2018
Workplace Relations Commission Adjudication Officer: Caroline McEnery
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant states that contract to the provision of Section 6 of the Protection of Employees (Fixed Term Work) Act 2004 (the Act), she was paid less than and had less favourable conditions of employment than a named comparable employee.
Summary of Complainant’s Case:
The Complainant has been an employee of the Respondent from October 2015 to present. The Complainant was initially employed as a ‘Resource Worker’ to deliver tuition and undertake administrative duties on the Adult Basic Education [ABE] programmes in the local ABE in April 2015. The initial contract was for 3 months and was extended verbally up to September 2015. The grade of Resource Worker was a grade that had been national agreed for deployment in Youthreach programmes.
The Complainant stated that unlike other public service grades, the Youthreach Resource Person grade was considered a frontline grade in the Education Sector and so has never been subject to the public service moratorium on recruitment. On this basis a number of ETB’s began to use the grade outside of the Youthreach settings with a view to circumnavigating the moratorium on other grades, not considered frontline. There is no agreement on the use of the grade outside of the Youthreach programmes and the Department of Education and Skills, having been advised of this widespread undermining of the moratorium, instructed ETB’s to desist from this practise in early 2017.
In October 2015 the Complainant was appointed as a District Literacy Education Officer (DLEO) by the Respondent on a Fixed Term Contract. This DLEO grade and terms and conditions of service has been unique to the Respondent. In contracting persons to the DLEO grade the Respondent used a template contract for another grade, the Adult Literacy Organiser with a number of additional duties and with the insertion of the Resource Person salary scale. This grade was used by the Respondent to undermine the national moratorium on non-frontline grades i.e. the grade of Adult Literacy Organiser which is considered an administrative and non-frontline grade.
In October 2015 the ALO in the area was on a period of extended sick leave and the Complainant was appointed on a Fixed Term basis to replace this role. The original objective ground stated on the fixed term contract is: ‘post is to replace DLEO on leave’. The duties undertaken by the Complainant were those of a comparator. Further to querying this fact in light of the objective ground an amended contract was issued to reflect that the Complainant was not in fact covering for another DLEO. It is the position of the Complainant that she was employed and undertook the terms and conditions of service and responsibilities and duties of the comparator during her absence. The contract and job description for this period, including the advertisement for the post, are all consistent with the grade of Adult Literacy Organiser. Nonetheless, it is alleged that the Respondent made the appointment using the ostensible grade of DLEO, a non-agreed construct of the employer, while applying the pay-scale of a Youthreach Resource Person in a cynical effort to undermine the moratorium.
The Complainant remained employment as a DLEO on a full time basis covering sick leave of the comparator [an ALO] until her phased return to work commencing 23 January 2017. The Complainant gradually returned to her initial position of Resource Worker, remained on 10 hours in that position. On the 26 October 2017 the Complainant received correspondence from the Respondent stating that, although the person she had been covering had returned to work full time since March 2017 the Respondent had kept the Complainant on in a support role. It was confirmed the Complainants employment would cease on Friday 24 November 2017. The Respondent conceded that no new fixed term contract had issued from March 2017 and that the Respondent was in breach of the Terms of Employment Information Act, 1994. The Respondent conceded the Complainant had a reasonable expectation that her employment had reverted to her initial positon of Resource Worker which had commenced April 2015 and that she was currently in an implicit Fixed Term Contract with a conclusion date in April 2018. The Respondent communicated to the Complainant that they would extend her employment to this date but were not in a position to commit to there being any other work beyond this date.
The Complainant had queried her pay scale from the point of appointment to the position covering for the ALO. The Complainant had also contacted the Respondent in a personal capacity on the issue on 9 August 2016.
The Complainants union representatives holds the position that the Complainant had an entitlement under Section 6 of the Protection of Employees (Fixed Term Work) Act, 2003 to be treated no less favourably than a comparable permanent employees.
The Complainant has named a comparator and both have been employed by the Respondent during the reference period for this complaint and thus satisfy the requirement of Section 5(1)(a) of the Act. The comparator is obviously an appropriate comparator for the Complainant as the Complainant was responsible for undertaking the comparators duties during the period of the comparators absence. The Complainant contents that the fact that she was contracted, specifically to cover a post of sick leave satisfies the requirement of Section 5(2)(a) of the Acts as it is unambiguous and indeed contractually explicit that the employees were employed to perform the same work and are interchangeable. This interchangeability is a matter of fact and is overtly documented in both contract and correspondence from the Respondent as the Employer. It is stated that the Complainant was, for the extent, of her employment, entitled to be treated in a manner no less favourably than the comparator.
The Complainants union representatives content that the Complainant should have been employed and progressed through the incremental pay scale of ALO as per Department of Education and Skills Circular Letter M15/01 paid on a pro-rata basis, commencing at point one of the post 2012 scale as an ALO and accruing an increment on the anniversary of her employment or on such date required by adjustments agreed to under the national collective agreements.
The Complainants union representatives seek that the Complainant would be compensated for the relevant difference in salary between the salary scale for Resource Persons and that for Adult Literacy Organiser with such scales being those that were in operation during the course of the Complainants employment, with any adjustments that would have been made over the course of that employment owing to increases in salary. The Complainants union representatives are additionally seeking that the Adjudicator would, having regard to the infringement on the Complainants statutory entitlements, require the Respondent to pay the claimant compensation appropriate to their liability in this regard.
Summary of Respondent’s Case:
The Complainant has been an employee of the Respondent from October 2015 to present. The Complainant was initially employed as a ‘Resource Worker’ to deliver tuition and undertake administrative duties on the Adult Basic Education [ABE] programmes in the local ABE in April 2015. The initial contract was for 3 months and was extended verbally up to September 2015. The grade of Resource Worker was a grade that had been national agreed for deployment in Youthreach programmes.
The Complainant stated that unlike other public service grades, the Youthreach Resource Person grade was considered a frontline grade in the Education Sector and so has never been subject to the public service moratorium on recruitment. On this basis a number of ETB’s began to use the grade outside of the Youthreach settings with a view to circumnavigating the moratorium on other grades, not considered frontline. There is no agreement on the use of the grade outside of the Youthreach programmes and the Department of Education and Skills, having been advised of this widespread undermining of the moratorium, instructed ETB’s to desist from this practise in early 2017.
In October 2015 the Complainant was appointed as a District Literacy Education Officer (DLEO) by the Respondent on a Fixed Term Contract. This DLEO grade and terms and conditions of service has been unique to the Respondent. In contracting persons to the DLEO grade the Respondent used a template contract for another grade, the Adult Literacy Organiser with a number of additional duties and with the insertion of the Resource Person salary scale. This grade was used by the Respondent to undermine the national moratorium on non-frontline grades i.e. the grade of Adult Literacy Organiser which is considered an administrative and non-frontline grade.
In October 2015 the ALO in the area was on a period of extended sick leave and the Complainant was appointed on a Fixed Term basis to replace this role. The original objective ground stated on the fixed term contract is: ‘post is to replace DLEO on leave’. The duties undertaken by the Complainant were those of a comparator. Further to querying this fact in light of the objective ground an amended contract was issued to reflect that the Complainant was not in fact covering for another DLEO. It is the position of the Complainant that she was employed and undertook the terms and conditions of service and responsibilities and duties of the comparator during her absence. The contract and job description for this period, including the advertisement for the post, are all consistent with the grade of Adult Literacy Organiser. Nonetheless, it is alleged that the Respondent made the appointment using the ostensible grade of DLEO, a non-agreed construct of the employer, while applying the pay-scale of a Youthreach Resource Person in a cynical effort to undermine the moratorium.
The Complainant remained employment as a DLEO on a full time basis covering sick leave of the comparator [an ALO] until her phased return to work commencing 23 January 2017. The Complainant gradually returned to her initial position of Resource Worker, remained on 10 hours in that position. On the 26 October 2017 the Complainant received correspondence from the Respondent stating that, although the person she had been covering had returned to work full time since March 2017 the Respondent had kept the Complainant on in a support role. It was confirmed the Complainants employment would cease on Friday 24 November 2017. The Respondent conceded that no new fixed term contract had issued from March 2017 and that the Respondent was in breach of the Terms of Employment Information Act, 1994. The Respondent conceded the Complainant had a reasonable expectation that her employment had reverted to her initial positon of Resource Worker which had commenced April 2015 and that she was currently in an implicit Fixed Term Contract with a conclusion date in April 2018. The Respondent communicated to the Complainant that they would extend her employment to this date but were not in a position to commit to there being any other work beyond this date.
The Complainant had queried her pay scale from the point of appointment to the position covering for the ALO. The Complainant had also contacted the Respondent in a personal capacity on the issue on 9 August 2016.
The Complainants union representatives holds the position that the Complainant had an entitlement under Section 6 of the Protection of Employees (Fixed Term Work) Act, 2003 to be treated no less favourably than a comparable permanent employees.
The Complainant has named a comparator and both have been employed by the Respondent during the reference period for this complaint and thus satisfy the requirement of Section 5(1)(a) of the Act. The comparator is obviously an appropriate comparator for the Complainant as the Complainant was responsible for undertaking the comparators duties during the period of the comparators absence. The Complainant contents that the fact that she was contracted, specifically to cover a post of sick leave satisfies the requirement of Section 5(2)(a) of the Acts as it is unambiguous and indeed contractually explicit that the employees were employed to perform the same work and are interchangeable. This interchangeability is a matter of fact and is overtly documented in both contract and correspondence from the Respondent as the Employer. It is stated that the Complainant was, for the extent, of her employment, entitled to be treated in a manner no less favourably than the comparator.
The Complainants union representatives content that the Complainant should have been employed and progressed through the incremental pay scale of ALO as per Department of Education and Skills Circular Letter M15/01 paid on a pro-rata basis, commencing at point one of the post 2012 scale as an ALO and accruing an increment on the anniversary of her employment or on such date required by adjustments agreed to under the national collective agreements.
The Complainants union representatives seek that the Complainant would be compensated for the relevant difference in salary between the salary scale for Resource Persons and that for Adult Literacy Organiser with such scales being those that were in operation during the course of the Complainants employment, with any adjustments that would have been made over the course of that employment owing to increases in salary. The Complainants union representatives are additionally seeking that the Adjudicator would, having regard to the infringement on the Complainants statutory entitlements, require the Respondent to pay the claimant compensation appropriate to their liability in this regard.
Findings and Conclusions:
The Complainant has been an employee of the Respondent from October 2015 to present. The Complainant was initially employed as a ‘Resource Worker’ to deliver tuition and undertake administrative duties on the Adult Basic Education [ABE] programmes in the local ABE in April 2015. The initial contract was for 3 months and was extended verbally up to September 2015. The grade of Resource Worker was a grade that had been national agreed for deployment in Youthreach programmes.
The Complainant stated that unlike other public service grades, the Youthreach Resource Person grade was considered a frontline grade in the Education Sector and so has never been subject to the public service moratorium on recruitment. On this basis a number of ETB’s began to use the grade outside of the Youthreach settings with a view to circumnavigating the moratorium on other grades, not considered frontline. There is no agreement on the use of the grade outside of the Youthreach programmes and the Department of Education and Skills, having been advised of this widespread undermining of the moratorium, instructed ETB’s to desist from this practise in early 2017.
In October 2015 the Complainant was appointed as a District Literacy Education Officer (DLEO) by the Respondent on a Fixed Term Contract. This DLEO grade and terms and conditions of service has been unique to the Respondent. In contracting persons to the DLEO grade the Respondent used a template contract for another grade, the Adult Literacy Organiser with a number of additional duties and with the insertion of the Resource Person salary scale. This grade was used by the Respondent to undermine the national moratorium on non-frontline grades i.e. the grade of Adult Literacy Organiser which is considered an administrative and non-frontline grade.
In October 2015 the ALO in the area was on a period of extended sick leave and the Complainant was appointed on a Fixed Term basis to replace this role. The original objective ground stated on the fixed term contract is: ‘post is to replace DLEO on leave’. The duties undertaken by the Complainant were those of a comparator. Further to querying this fact in light of the objective ground an amended contract was issued to reflect that the Complainant was not in fact covering for another DLEO. It is the position of the Complainant that she was employed and undertook the terms and conditions of service and responsibilities and duties of the comparator during her absence. The contract and job description for this period, including the advertisement for the post, are all consistent with the grade of Adult Literacy Organiser. Nonetheless, it is alleged that the Respondent made the appointment using the ostensible grade of DLEO, a non-agreed construct of the employer, while applying the pay-scale of a Youthreach Resource Person in a cynical effort to undermine the moratorium.
The Complainant remained employment as a DLEO on a full time basis covering sick leave of the comparator [an ALO] until her phased return to work commencing 23 January 2017. The Complainant gradually returned to her initial position of Resource Worker, remained on 10 hours in that position. On the 26 October 2017 the Complainant received correspondence from the Respondent stating that, although the person she had been covering had returned to work full time since March 2017 the Respondent had kept the Complainant on in a support role. It was confirmed the Complainants employment would cease on Friday 24 November 2017. The Respondent conceded that no new fixed term contract had issued from March 2017 and that the Respondent was in breach of the Terms of Employment Information Act, 1994. The Respondent conceded the Complainant had a reasonable expectation that her employment had reverted to her initial positon of Resource Worker which had commenced April 2015 and that she was currently in an implicit Fixed Term Contract with a conclusion date in April 2018. The Respondent communicated to the Complainant that they would extend her employment to this date but were not in a position to commit to there being any other work beyond this date.
The Complainant had queried her pay scale from the point of appointment to the position covering for the ALO. The Complainant had also contacted the Respondent in a personal capacity on the issue on 9 August 2016.
The Complainants union representatives holds the position that the Complainant had an entitlement under Section 6 of the Protection of Employees (Fixed Term Work) Act, 2003 to be treated no less favourably than a comparable permanent employees.
The Complainant has named a comparator and both have been employed by the Respondent during the reference period for this complaint and thus satisfy the requirement of Section 5(1)(a) of the Act. The comparator is obviously an appropriate comparator for the Complainant as the Complainant was responsible for undertaking the comparators duties during the period of the comparators absence. The Complainant contents that the fact that she was contracted, specifically to cover a post of sick leave satisfies the requirement of Section 5(2)(a) of the Acts as it is unambiguous and indeed contractually explicit that the employees were employed to perform the same work and are interchangeable. This interchangeability is a matter of fact and is overtly documented in both contract and correspondence from the Respondent as the Employer. It is stated that the Complainant was, for the extent, of her employment, entitled to be treated in a manner no less favourably than the comparator.
The Complainants union representatives content that the Complainant should have been employed and progressed through the incremental pay scale of ALO as per Department of Education and Skills Circular Letter M15/01 paid on a pro-rata basis, commencing at point one of the post 2012 scale as an ALO and accruing an increment on the anniversary of her employment or on such date required by adjustments agreed to under the national collective agreements.
The Complainants union representatives seek that the Complainant would be compensated for the relevant difference in salary between the salary scale for Resource Persons and that for Adult Literacy Organiser with such scales being those that were in operation during the course of the Complainants employment, with any adjustments that would have been made over the course of that employment owing to increases in salary. The Complainants union representatives are additionally seeking that the Adjudicator would, having regard to the infringement on the Complainants statutory entitlements, require the Respondent to pay the claimant compensation appropriate to their liability in this regard.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
This complaint is well founded. The Adjudicator awards the Complainant compensation in the sum of €15,000 compensation for the infringement of her rights under the provision of Section 6 of the Act.
Dated: 5th April, 2018
Workplace Relations Commission Adjudication Officer: Caroline McEnery
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