Complainant

Respondent

Parties

Martin  Browne

Teagasc

Representatives

  self

 Tanya Egan, Employee Relations/Caroline Maher Recruitment

Act

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

CA-00066605-001

10/10/2024

The Complainant brings this case alleging that the following term has not been applied equally to permanent and fixed purpose/fixed term employees by the Respondent:

“I am directed by the Minister for Public Expenditure and Reform to set out the revised arrangements applying to starting pay on promotion and appointment in the Civil Service for existing civil and public servants. Government policy continues to be that starting pay on recruitment from open competition for all posts within the public service should be at the minimum of the relevant salary scale and should not be subject to negotiation [Duffy letter 23 December 2010”

The Circular number is Number: 08/2019.

 The Complainant was employed by Teagasc as a Technologist (Grade 1) since 22nd March 2021 until 31st August 2024 and was based at the Research Centre in Moorepark, Fermoy, Co. Cork.

He was employed on a temporary contract of employment on the VistaMilk funded project. His contract of employment on the VistaMilk project ended on 30th August 2024. This was in line with the duration of employment as outlined in the sanction given by the parent department, Department of Agriculture, Food & Marine. (DFAM).

At the time of his employment ending, the Complainant was paid on the 5th point of the Technologist Grade 1 payscale - €50,767 per annum.

 On 30th August 2024, the Complainant attended for interview in Teagasc for the role of a temporary Mastitis Specialist which was at Technologist grade 1. He was panelled 2nd for this role. The candidate who was panelled first was offered the post. References were sought for this individual. However, this candidate decided not to progress with the offer of employment and on 4 th September 2024 confirmed to Teagasc that she would not be accepting the role. Her reason for rejecting the offer was because she was on a higher rate of pay in her current role (in another non-public sector organisation) and could only be offered the first point of the Technologist Grade 1 payscale.

As the Complainant was the next candidate ranked on the panel he was offered the position.  On 24th September 2024 he was confirmed by email to Teagasc that he was not willing to accept the offer of employment on the first point of the pay scale.

The Complainant details his case as follows:

He finished a 3 ½ year fixed term (specified purpose) contract with his public sector employer at the end of August. On the last working day of that contract, he was interviewed for a similar position which was recruited based on another specified purpose contract. In September He received a formal offer of employment for that position. However, it was based on recommencing employment with the employer on the minimum point of the salary scale.

 He unsuccessfully argued that he should retain his previous conditions of employment. Although the organisations' candidate information booklet stated that the requirement to commence a contact on the minimum point of the salary scale may not be required if a candidate had been employed in a similar role within the public sector within the previous 26 weeks, when he queried this, they stated that a government circular now obliges them to consider any break between contracts as a break in service necessitating people in that situation to recommence on the minimum point of the salary scale.

 He believes that he has grounds to contest the above contention. He believes he was justified in assuming, whilst completing his previous specified purpose contract, that he had a reasonable expectation of re-employment by the organisation. In such circumstances he contends that the cessation of employment should not have been regarded as permanent and should be treated by the employer as a lay-off rather than a termination.

He therefore maintains that he should be regarded as having continuity of service from when he finished his specified purpose contract on August 31st, 2024, and received a formal offer of employment on another specified purpose contract at the same grade on September 13th, 2024. With that being the case, he should have been allowed to preserve his previous conditions of employment in the new offer of employment including the point that he had reached on the salary scale.

While the Candidate Information Booklet which the Complainant accessed on the Teagasc jobs portal (TOPjobs) stated that offers above the minimum of the payscale could be offered if the break in service was less than 26 weeks, this information was unfortunately out of date – and has since been rectified. However, the Technologist Information Booklet does contain the up-to-date information regarding starting pay. This booklet was attached to the job specification at the time of advertising the vacancy.

Since 2018, Teagasc has been bound by Government Circular 08/2019, which states that starting pay must be at the minimum point of the scale unless the person is already serving in the Public Service immediately prior to appointment.  When making the offer to the Complainant, Teagasc adhered to this Circular, as the Respondent is bound to do. Teagasc does not have discretion to apply any other terms to an offer of employment.  Further, in both February and May 2025, Teagasc HR queried if there was discretion to appoint a previous serving staff member to a higher point on the payscale. The responses from DAFM is very clear in its instructions to Teagasc that no such discretion is available.

Teagasc confirms that the Complainant has been treated the same as any other applicant for a role who is not a current serving public servant, including a person who was employed on a Permanent basis. No exceptions to this have been made since the commencement of Circular 08/2019. A total of 18 current serving staff in Teagasc had to return to the first point of the payscale on commencement of their current contracts of employment

 While Teagasc understands and appreciates The Complainant’s upset and frustration with the situation, Teagasc is bound by government rules on starting pay, as set out in Circular 08/2019. This clearly states that starting pay must be at the minimum point of the scale unless the person is already serving in the Public Service immediately prior to appointment. Teagasc does not have discretion to deviate from this in any way, as is confirmed in the recent correspondence from DAFM. As the Complainant was not a current serving public sector employee at the time of the offer of employment being made in September 2024, it was unfortunately not possible for him to be appointed at his previous rate of pay and he could only be appointed at the first point of the Technologist Grade 1 payscale. Teagasc respectfully asks that the Adjudicator consider the case put forward and reject this claim

The Act define Comparable Worker as follows:

Comparable permanent employee.

5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—

(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

(2) The following are the conditions mentioned in subsection (1)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

In this case the Fixed Term/Purpose contract has ended, and the subsequent contract was rejected; although rejected for reasons outlined.

The Act provides the following protections to a Fixed Term/Purpose Employee:

6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

(5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.

(8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part 111 the Organisation Working Time Act 1997.

The first fixed purpose contract had ended, and the Complainant failed to accept the new Contract.

The failure to accept the new fixed purpose contract means that no right exists to the Complainant to pursue this complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 as he was not a fixed purpose/term employee until he accepted the new contract.

The Act defines a fixed term employee as:

“fixed-term employee” means 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 but does not include”

I note that the Respondent states:

Teagasc confirms that Mr Browne has been treated the same as any other applicant for a role who is not a current serving public servant, including a person who was employed on a Permanent basis

The Act only refers to 6.— (1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee, which includes a serving public servant.

I note that in C-212/04 Adeneler v ELOG relating to a case heard by the JUDGMENT OF THE COURT (Grand Chamber) which addressed specific questions are also applicable in this case about successive fixed term contracts having regard to short breaks between fixed term contracts:

89. In light of the foregoing reasoning, the answer to the third question must be that clause 5 of the Framework Agreement is to be interpreted as precluding a national rule, such as that at issue in the main proceedings, under which only fixed-term employment contracts or relationships that are not separated from one another by a period of time longer than 20 working days are to be regarded as 'successive' within the meaning of that clause.

This means that short breaks cannot be used, unless objectively justified, to reset terms and conditions. No objective justification has been provided for the practice to reset back to the starting salary after a short break between fixed term contracts.

The Complainant in this case did not accept the second successive contract and his first contract had ended. The short-term break in his new contract would not have broken continuity. That does not mean it became a contract of indefinite duration. However, it would have meant that he should have retained his incremental point as if the employment continued. This follows as no break in service would have occurred and it should not have been treated as a new contract, rather it would have been successive. This means that his terms should not have been negatively impacted like a comparable permanent employee who had a short break in service.

The Act does provide for objective justification of difference in terms and conditions:

Objective grounds for less favourable treatment.

7.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part 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 employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.

However, that case has not been made out.

Section 42 of the Workplace Relations Act 2015 provides for a claim to be dismissed:

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

(2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court.

(b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal.

(c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought.

These are legal technical terms and as explained Delaney and McGrath on Civil Procedure 4th Edition 2018 mean:

The meaning of the words “frivolous or vexatious” as used in the context of s.10(1)(b)(ii) of the Data Protection Act 1988 as amended was considered by Birmingham J in Nowak v Data Protection Commissioner,28 where he stated that “frivolous, in this context does not mean only foolish or silly, but rather a complaint that was futile, or misconceived or hopeless in the sense that it was incapable of achieving the desired outcome.” This description was referred to by Irvine J in her judgment in the Court of Appeal in Fox v McDonald,29 where she stated that “the word ‘frivolous’ when used in the context of O. 19 r, 28 is usually deployed to describe proceedings which the court feels compelled to terminate because their continued existence cannot be justified having regard to the relevant circumstance.”

Pursuant to section 42 as I have formed the opinion that the Complainant was not a fixed term employee:

“fixed-term employee” means 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 but does not include”

This arises as he rejected the new fixed term contract, and he no longer had a contract of employment. It is important to note that his first fixed term contract had ended. There was a short break of about 3 weeks between the end of the contract and being offered a new fixed term contract.

 If he had accepted that contract, allowing for the protections provided for under the Protection of Employees (Fixed-Term Work) Act, 2003 his employment would have been deemed to have continued and that has clear consequences when compared to a comparable permanent employee

 I dismiss the complaint as explained it is legally frivolous and misconceived as the Complainant is not a fixed term employee as he rejected the new fixed term contract, and his first fixed term contract had ended.

Pursuant to section 42 as I have formed the opinion that the Complainant was not a fixed term employee:

“fixed-term employee” means 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 but does not include”

This arises as he rejected the new fixed term contract. That means the complaint cannot be heard as his first contract had ended.

 If he had accepted that contract, allowing for the protections provided for under the Protection of Employees (Fixed-Term Work) Act, 2003 his employment would have been deemed to have continued and that has clear consequences when compared to a comparable permanent employee.

 I dismiss the complaints as I have determined that it is legally frivolous and misconceived as the Complainant is not a fixed term employee as he rejected the new fixed term contract. As his first fixed term contract had ended, he no longer was a fixed term employee.

Misconceived.