FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES: LONGFORD COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY) - AND - JOSEPH SHANLEY DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00031735 CA-00042116-002 This matter comes before the Court as an appeal by Longford County Council (the Respondent), against a decision of an Adjudication Officer made under the Protection of Employees (Fixed Term Work) Act,2003 (the Act) in a complaint made by Joseph Shanley (the Complainant) against the Respondent. The Adjudication Officer decided that ‘the Complainant was treated less favourably under the Act and that this complaint is well founded’. The Complaint The Complainant commenced employment with the Respondent on 25thJune 2018 as part of a Graduate Programme operated across the Local Authority Sector and administered by the LGMA. Under that programme the Complainant was engaged under a contract of employment for a defined fixed term of three years commencing on 25thJune 2018 and terminating 25thJune 2021. The programme, according to the submission of the employer, involved structured skills development programmes, a structured review of the placement between the employing local authority, the graduate and the LGMA as well as enrolment in industry recognised training in their chosen skills which would either be accredited and / or lead to membership of a professional body in the chosen field. The Complainant submitted that he was engaged in project related work to a significant degree for the first three months of his placement on the programme and was thereafter mainly involved in administrative work prior to the making of the within complaint to the WRC. The Complainant submitted that from May 2019 onwards he had taken up the duties normally carried out by a Procurement Compliance Officer. He submitted that in normal circumstances an acting allowance would be paid to staff covering more senior roles and that an allowance in respect of the role of Procurement Compliance Officer had previously been paid to a permanent member of staff. He submitted that the failure to pay an acting allowance to him constituted less favourable treatment of him than the treatment which would have been afforded to a permanent member of staff. The Respondent submitted that the Complainant had at no time been appointed to the role of Acting Procurement Compliance Officer and that if an acting allowance was to become payable to a person acting into that role it must arise (a) where an acting post had been identified and (b) an appointment made as a result of a competition. No acting post had been identified at any material time for the within complaint and no competition had taken place. Two employees had been appointed to an acting role in the post in question previously following the conduct of two confined competitions. The Respondent also submitted that the Complainant was not at any material time carrying out the duties of Procurement Compliance Officer. The Respondent raised an issue which it submitted must be decided by the Court as preliminary matter. The Respondent contended that, having regard to the provisions of section 2(1) of the Act, the Complainant was not a fixed term worker within the meaning of the Act. The Court heard the parties in relation to the preliminary and substantive matters and invited both parties to call witness evidence at their discretion. Both parties confirmed that they did not wish to place witness evidence before the Court. Matter arising from Section 2(1) of the Act. The Respondent submitted that the contract of employment of the Complainant was a contract which was concluded within the framework of the Local Authority Graduate Programme which was a specific publicly supported training programme. The vast bulk of the costs of the programme, including training and pay costs were met by the local authority sector with a small contribution from Enterprise Ireland. These characteristics meant that, within the meaning of section 2(1) of the Act, the Complainant was not included within the statutory definition of a “fixed term employee”. On this basis the Respondent contended that the Court should consider this issue as a preliminary issue to be decided before giving consideration to the substantive matters contended by the Complainant to amount to a breach of the Act. The Complainant did not object to this matter being dealt with as a preliminary matter which could be dispositive of the entire matter but contended that the exclusion contended for by the Respondent should not be upheld by the Court. The Complainant contended that the Court should regard the exclusion under Section 2(1) of the Act of employees with a contract of employment which has been concluded‘within the framework of a specific public or publicly-supported training, integration or vocational retraining programme’as being an exclusion of participants on programmes and schemes operated by, for example, the Department of Social Welfare, Solas or similar organisations. The Complainant was unable to put any authorities before the Court to support this interpretation of the Act. Approach of the Court The Court, following its hearing and having heard the parties in relation to both preliminary matters and the substantive matters, decided that it would first consider the matter contended by the Respondent to be a preliminary matter. The Court, in making this decision, concluded that the preliminary matter could be dispositive of the entire matter and consequently, if the submission of the Respondent was upheld in respect of the matter, the Court need go no further in deciding the within appeal. Relevant law Section 2(1) of the Act provides in relevant part as follows:
Discussion and conclusion in relation to preliminary matter 1 The Court has considered the submissions of the parties and noted that neither party placed evidence or authorities before the Court in relation to the interpretation of Section 2(1) of the Act. The Act at section 2, on plain reading, sets out that a person who holds a contract of employment which has been concluded within the framework of a specific public or publicly supported training, integration or vocational retraining programme is not a fixed term employee within the meaning of the Act. The Complainant at all material times held a contract of employment which clearly stated that the employment was on the Local Authority Graduate Programme. The Complainant contended that the Local Authority Graduate Programme is not a publicly supported training programme in the sense that such programmes supported by the Department of Social Protection and similar bodies could be regarded as publicly supported programmes. The Respondent submitted that Local Authorities, the LGMA and Enterprise Ireland, are all public bodies deriving their resources from the public purse and that these parties were the parties which supported the Local Authority Graduate Programme. The Respondent submitted that the Local Authority Graduate Programme was a programme advertised in public and created to train graduates in skills and systems relevant to employment in the local authority sector. The Court has considered the matter on the basis of the statute as written. It is, in the view of the Court, clear that the Local Authority Graduate Programme is a training programme. This view is based on the description of the programme as submitted and the undertakings given to participants on the programme by the Local Authority Sector including the undertaking to provide industry recognised training at intervals throughout the three-year defined period of a contract of employment provided to a person participating on the programme. It is clear that all costs associated with the Complainant’s contract of employment and associated training were undertaken by the Respondent with some support from Enterprise Ireland. It is clear that both of these bodies are publicly funded bodies. There is, in the view of the Court, no doubt that the Complainant’s contract of employment was issued to him as a sole result of his being successful in his application for placement on the Local Authority Graduate Programme. Having regard to these factors, the Court concludes that the contract of employment of the Complainant was concluded within the framework of a specific public or publicly supported training programme. Having reached that conclusion the Court must decide that, arising from Section 2(1) of the Act in relevant part, the Claimant was, at all material times, not a fixed term employee within the meaning of the Act. In those circumstances the Complainant did not enjoy the protection of the Act and consequently his appeal must fail. Decision The Court decides that the Complainant was, at all material times, not a fixed term employee within the meaning of the Act and his appeal therefore must fail. The decision of the Adjudication Officer is varied. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |