ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021676
A Retail Company
Complaint 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: 22/10/2019
Workplace Relations Commission Adjudication Officer: Valerie Murtagh
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.
The complainant has brought a claim under section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 alleging that she has been treated less favourably than a comparable permanent employee in respect of her conditions of employment.
Summary of Complainant’s Case:
The complainant commenced employment with the respondent in March 1986 as a Retail Sales Advisor in Store A. The complainant submits that her employment remained uneventful until November 2017 when she transferred from Store A to the respondent’s new store on a temporary week to week contract (fixed term contract). The complainant contends that despite being transferred to the new Store in November 2017, the complainant was not presented with a backdated week to week contract of employment until May 2018.
The complainant states that in February 2019 the union Mandate and the respondent agreed a voluntary severance programme consisting of a 3 weeks ex gratia plus 2 weeks statutory package across 7 Stores. On 7 March the complainant’s union official wrote to the respondent’s Head of HR stating that the complainant wished to revert to her permanent contract in Store A (which was one of the 7 stores where the voluntary severance programme could be availed of) and also wished to explore her options regarding the severance scheme. The respondent’s Head of HR responded stating that prior to the opening of the new Store, the complainant applied for a temporary position within that store and was successful in her application and stated that the complainant continues to be employed on a temporary contract in the new Store.
The complainant is alleging that she has been discriminated against, in that, she has been treated less favourably than a comparable permanent employee in respect of her conditions of employment insofar as she was denied access to a severance scheme solely on the basis that she was a fixed term employee.
Summary of Respondent’s Case:
The respondent states that the complainant was employed by the respondent from 9 September 1985 to 2 November 1985 and 16 March 1986 to 24 May 1986 in a temporary capacity as a sales assistant. In June 1986, the respondent offered the complainant a permanent position with effect from 2 June 1986 and she has remained as a permanent employee since that time. In 2017 the respondent opened a new store with 17 temporary and 31 permanent sales advisor roles advertised internally with a closing date of 10 September 2017. The internal job advertisement clearly set out that there were permanent and temporary vacancies available and set out in great detail the specific hours/roster available for each of the vacancies and whether the vacancy was permanent or temporary. The advertisement also set out that “contracts will be reviewed 6 months post opening” which was explained to applicants at interview as meaning that all appointments were subject to store performance and that in the event that the store did not perform to plan that normal consultation with staff and the union would take place as regards any need to reduce hours or headcount. If the store performed to plan, then the normal 18-month review under the collective agreement would happen for any permanent staff who had taken a permanent position.
The respondent states that there were many applicants and while the complainant was initially unsuccessful for the temporary position, she was offered the position when the first choice internal candidate declined the offer. The respondent submits that the particular position that the complainant applied for was one where the hours suited her personal needs and this was a temporary position. The respondent states that all of the staff in the new store were brought together for an offsite induction programme before the store opened in late November 2017. At that induction, staff were given their contracts for consideration and asked to return them later. The respondent submits that the complainant did not sign and return her contract but did commence in her chosen role when the store opened. The respondent maintains that when the complainant moved from store A to the new store, she was aware that her contract was due to be made permanent in the new store in May 2019 in line with the collective agreement.
The respondent contends that a year after the new store opened, the store manager spoke with the complainant about her unsigned contract. The complainant said she was concerned about the temporary nature of her contract as she was very anxious to stay in the new store as she lived close by and it suited her personal circumstances much better than store A. The respondent states that the complainant was worried as she heard the store manager was leaving and it was he who had given her previous assurances about staying at the new store. The store manager stated that the new store had exceeded expectations, that there had been no need to adjust staffing at the six month post store opening review point and that she had only six months left until 18-month review of her temporary standing under the collective agreement. The store manager stated that he could not 100% guarantee that she would be confirmed as permanent in the new store at that 18-month review but as the store was trading so well, it was extremely likely that she would get a permanent contract for the new store.
The respondent states that after the complainant spoke with the store manager, she contacted the HR manager as she was concerned about maintaining the new store as her location because of the proximity to her home and because she heard that the store manager who gave her the assurances was moving to another store. The HR manager assured her that in line with the company/union agreement, she would be confirmed in the new store on a permanent basis at the agreed time unless something very significant changed at the store but she should be optimistic as the store was performing so well. The complainant then signed her temporary contract for the new store. The respondent submits that the contract that the complainant signed on foot of her conversations with the store manager and HR manager is titled “week to week” contract signed by the complainant on 12 November 2018. The respondent states that this contract was signed a year after she moved to the new store.
The respondent maintains that after 18 months in the new store, the complainant was offered a contract confirming her permanency in her sales advisor role in the new store in line with the collective agreement. The respondent states that the complainant initially declined the contract although she did subsequently sign this contract on 9 August 2019. Therefore, the complainant is now a permanent colleague in the new store. The respondent states that in February 2019 the union and the Company came to a collective agreement on a voluntary redundancy programme in 7 named stores one of which was store A which was the complainant’s former location. The agreement was reached in the context where sales were declining across the company in Ireland and there was a recruitment freeze which had meant that all entry level recruitment was on a temporary basis and unfortunately those conditions still exist for the business.
The respondent submits that as there were 93 more full time equivalent permanent staff across these particular 7 stores, there were opportunities for 93 full time equivalent voluntary redundancies by permanent staff that were in scope i.e. employed in the 7 stores and as allowed by the store model. The number of voluntary redundancies on offer was specified for each store in the collective agreement and where the staffing model was over at that time. The respondent submits that the calculations for the number of voluntary redundancies on offer in each of the 7 in scope stores was clearly based on the number of staff employed in each individual store at the time of the agreement and which did not include the complainant, or any of the other 19 colleagues from the in scope stores who had taken a position at the new store. The respondent contends that as the complainant was not based in one of the in scope stores, she was not eligible to apply for voluntary redundancy. The respondent asserts that there was categorically no need to seek voluntary redundancies in any of the 11 out of scope stores.
The respondent submits that after the collective agreement was concluded, the union locally raised the question of the complainant “reverting to her permanent status “in store A so that she could apply for voluntary redundancy. The respondent maintains that at no time since she moved to the new store did the complainant request a transfer back to store A. The respondent states that the request to be allowed apply for the voluntary redundancy was rejected on the basis that she was not based in store A and not in scope as she was now employed in the new store and had been employed at that location for approximately a year and a half at that point.
The respondent rejects the complainant’s claim in its entirety as misconceived considering that the complainant is in fact a permanent employee and precluded from protection under the (Fixed-Term Work) Act 2003.
Findings and Conclusions:
A fixed term worker is “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..”. Under the Act, a permanent employee is an employee who is not a fixed term employee.
Having considered all the evidence presented by the parties, I find that I have no jurisdiction in the within complaint as the complainant does not have locus standi to bring a complaint under the Act. In that regard, she is not a fixed term worker pursuant to the definition laid down in the Protection of Employees (Fixed-Term Work) Act 2003 as she holds a permanent position with the respondent company.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
The complainant does not have locus standi to bring a complaint under the Protection of Employees (Fixed-Term Work) Act 2003 and consequently, I have no jurisdiction to deal with the within complaint.
Workplace Relations Commission Adjudication Officer: Valerie Murtagh