ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00006578
| Complainant | Respondent |
Anonymised Parties | Clerical Officer | Public Sector Employer |
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-00008824-001 | 16/12/2016 |
Date of Adjudication Hearing: 22/06/2017
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following 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:
It was submitted that the claimant was in the continuous employment of the respondent Dept. from the 19th.March 2013 – 30th.Dec.2016 and that the claimant was dismissed for the purpose of avoiding the acquisition of a Contract of Indefinite Duration under Section 9 of the Act. The claimant was employed to perform the full range of Clerical Officer duties for the respondent Dept. and a chronology of his contracts were set out in his submission. His first contract of employment commenced on the 19th.March 2013 and he was given one further contract which was terminated on the 30th.Dec. 2016. There was no end date on the claimant’s initial contract and no end date on his final contract. The first contract stated that the claimant was employed “to cover a permanent staff member’s absence”. The union set out an account of the various locations to which the claimant was assigned. The union submitted that the respondent’s actions were not justifiable on objective grounds. It was argued that temporary and permanent Clerical Officers perform exactly the same duties across the Civil Service and it was contended consequently that “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 initial objective grounds referred to “covering a staff member’s absence “and it was emphasised that the claimant was unaware that he was covering for a colleague on sick leave until he received an email from the respondent on the 8th.Aug. 2016. Despite the fact that the claimant was covering Ms. G’s work in theory he was not assigned to her substantive position. It was argued that in these circumstances the objective grounds were vague and equivocal. While the claimant’s second contract cited objective grounds as covering a permanent staff member’s absence, he was verbally advised that he was providing maternity leave cover but was assigned to work at a different location to the maternity vacancy. It was submitted that when the claimant’s first contract finished on the 26th.Aug. 2016 at the front desk location, he walked back into the same office the following Monday “as if he had been off for the weekend”. It was submitted that the objective grounds relied upon were yet again vague and equivocal. It was submitted that in the absence of an end date on the contract, the contract should clearly reflect a specific task or the occurrence of a specific event – neither contract was clear in this respect. The claimant’s last contract commenced on the 29th.August for the purpose of a permanent staff member’s absence – with no end date. On the 18th.Nov.2016, the claimant received a letter advising him that his contract would end on the 30th.Dec. 2016 – 78 days before he would have acquired a contract of indefinite duration. The question was raised as to why the claimant’s employment was terminated in circumstances where the contract could be deemed to have not met the test of objective grounds – a specific end date, a specific task or the occurrence of a specific event. While the employer’s email referred to redundancy it was submitted that the job continued to exist and the claimant’s duties were covered on a rotational basis by his colleagues. The respondent subsequently assigned another temporary CO to the claimant’s duties. In response to the post hearing submission made by the respondent the union asserted that: “We believe this information confirms the detail we submitted on the day of the hearing i.e. when the claimant’s contract was terminated on the 30th.Dec. 2016, the work was and is ongoing and the duties continued to be performed by a temporary employee. Duties Assigned to a Temporary CO We do not accept the employer’s proposal in this regard as it pertains to the claimant’s contract. The employer had their opportunity at the hearing to set out their arguments and position with regard to this point and there is no acceptance by this union that this employer or any other employer can decide at will on any given week where a temporary Clerical Officer will perform their duties based solely on the business need at any given point in time. The terms of the contract determine same. The Fixed Term Worker’s Act is very specific in this regard and the Act, our submission and our detailed case law refers in this regard.” |
Summary of Respondent’s Case:
The respondent set out a chronology of the claimant’s employment history – it was asserted that the claimant was specifically recruited to cover the sick leave of a permanent officer; the officer retired on the grounds of permanent ill health on the 9th.Aug. 2016 and as this was now a permanent vacancy, the claimant was given notice of termination of his contract to take effect on Fri.26th.August 2016. The claimant was issued with a further temporary contract from the 29th.August to cover the temporary maternity leave of a Clerical Officer as the claimant was next on the PAS TCO panel. It was submitted that arising from budgetary considerations in the last quarter of 2016, it was decided that a number of temporary contracts would be terminated earlier “than had been initially anticipated”, including the claimant’s. It was contended that if finances had allowed the contract to run to the end of the maternity leave, the claimant would still not have had the 4 years service required to qualify for a CID. On this basis it was argued that there was no basis for a complaint under Section 13. The permanent officer resumed on the 20th.Feb.2017. It was contended that the ending of the temporary contracts were made solely on the business needs in each location. It was submitted that the decision was made to comply with D/PER sanction and was not taken for the purpose of circumventing the law or employment rights. By virtue of the claimant’s 2 years continuous service, he was issued with a statutory redundancy payment. In a post hearing submission the Dept. advised as follows in relation to the assertion by the union that the claimant had been replaced by another temporary CO: “The complainant’s representative had stated that the post the claimant vacated on 30 December 2016 has subsequently been filled by another Temporary Clerical Officer (TCO). I was not in a position to confirm this on the day and have since made enquiries and the following is the situation.
Integrated Reception duties
I have been informed that to December 2016, the claimant worked in the integration reception desk, alongside a permanent member of staff (COR). Following the termination of his contract and where assistance was required, a rota system operated from a pool of permanent officers.
This continued until February 2017 when a TCO (LF) was assigned to the office as an additional resource for the office as a permanent staff member had availed of maternity leave. A business decision was made to assign this TCO (LF) to the integrated reception duty in order to free up the pool of permanent and more experienced members of staff who were included in the above mentioned rota. She worked alongside the permanent officer (COR). This TCO’s (LF) contract terminated in June 2017 and the permanent officer who had resumed from Maternity leave is now assigned to the integrated reception to provide support, alongside (COR).
Duties assigned to a Temporary CO
As I advised on the day, the contract of employment (COE) states that the objective reason for the offer of this temporary contract was to cover a staff members absence. For data protection reason we will never specify who this officer is in the temporary contract. HR maintain a digital record of which Temporary Clerical Officer is matched to what particular permanent staff members absence and the position is reviewed regularly by HR Division. It is open for any Labour inspector to observe this digital record if required.
The COE provides that a TCO may be required to perform any duties which may be assigned to them. We would consider it entirely appropriate for a manager to assign a TCO where the business need dictates.
The assignment of a TCO is an additional resource that is provided to the office. As with the assignment of a permanent member of staff, it is a local management decision as to how any resource is deployed and this is dependent on the business requirement in the location. Permanent staff are also moved laterally in offices where the business need calls for this.
Therefore, it does not necessarily mean that the TCO will be doing the work of the permanent officer who is absent. There is a variety of situations that may occur where this is not appropriate:
· The officer on leave is of a higher grade and a higher duty allowance (HDA) is payable to a Clerical officer. In this situation the TCO may be (but not necessarily) assigned to the duties of the clerical officer on the HDA and who is not the officer on leave.
· Where a Clerical officer is on leave and a TCO is assigned, the manager may move a permanent and more experienced member of staff in to the position vacated by the officer on leave and the TCO may backfill this person’s position or be assigned to another role as determined by the Manager.
· In some locations managers may amalgamate a number of absences to warrant one TCO for a longer period. ( e.g. 3 periods of shorter working year leave for 10 weeks may be covered by 1 TCO for 30 weeks. This TCO will be assigned to any role within the office as determined by the Manager”.
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Decision:
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.
I have reviewed the evidence presented at the hearing, the submissions made and the post hearing submissions and noted the respective positions of the parties. Essentially what is being argued by the union is that the claimant’s contract was terminated to avoid his acquisition of rights to a CID. Section 13 (1)(d) refers to “wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration”. While it was not clear in evidence that the respondent was aware as to the return date of the substantive postholder, the respondent has submitted that “the ending of the temporary contracts were made solely on the business needs in each location “and not to circumvent any acquired employment rights. The respondent further asserted that if finances had allowed the contract to run to the end of the maternity leave, the claimant would still not have had the 4 years service required to qualify for a CID. On this basis it was argued that there was no basis for a complaint under Section 13. It has since been confirmed by the respondent that the substantive postholder returned from maternity leave on the 28th.Feb. 2017 and not as asserted at the hearing on the 20th.Feb.2017. Apparently, the individual took an additional week’s annual leave at the end of her maternity leave. It has been confirmed by the respondent that cover is only provided in circumstances where a staff member is taking an extended period of post maternity leave and that a staff member is required to give 4 weeks notice in advance of the expiry of maternity leave to avail of extended time off. As a consequence, it is reasonable to conclude that when the Dept. reviewed their “temporary positions“, they would have not been aware of the return date of the post holder as she still had at least another 6-8 weeks before she was required to give notice of any potential extended period of leave. Accordingly, in light of the foregoing and the fact that the claimant’s contract had no end date, it is conceivable that the claimant could have acquired a CID - the respondent’s defence in this regard is unconvincing as the return date of the substantive postholder would not have been known at the time the claimant was notified of termination of his contract on the 18th.Nov. 2016. In this context, I note the fact that the position vacated by the claimant was subsequently filled by a temporary clerical officer who continued in that position until June 2017. Given the background to the termination of the claimant’s employment i.e. a review of all temporary positions with a view to reducing staff numbers in the context of the Dept. having exceeded the DPER approved end of year staffing allocation and as outlined in the respondent’s own submission – the imperative “to ensure that there would be no overrun on the 2017 delegated sanction which involved a reduced budget and staffing allocation , 2017” I consider it reasonable to conclude that the termination of the claimant’s contract was “partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration under Section 9(3)”. I consider this finding to be consistent with the principles adopted by the Labour Court in FTD 164 James Wogan and Dublin Institute of Technology. I am upholding the complaint of a breach of Section 13 and require the respondent pay the claimant €10,000 compensation within 4 weeks of the date of this decision. |
Dated: 18.09.18
Workplace Relations Commission Adjudication Officer: Emer O'Shea