SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003
REHAB GROUP TRADING AS REHABCARE
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
Chairman: Ms O'Donnell
Employer Member: Mr Murphy
Worker Member: Mr McCarthy
1. An appeal of an Adjudication Officer's Decision No(s) ADJ-00016566 CA-00021534-004
2. The Employee appealed the Decision of the Adjudication Officer to the Labour Court on 21 May 2019. A Labour Court hearing took place on 23 October 2019. The following is the Court's Determination:
This is an appeal of a decision of an Adjudication Officer' decision under the Protection of Employees (Fixed-Term Work) Act 2003-2015 (the Act) by the Complainant Mr Tim Desmond The Adjudication Officer held that the claim failed.
The Complainant commenced employment with the Respondent on the 19thFebruary 2018 on a six- month fixed term contract as a Relief Care Worker. It is the Complainant’s case that he was discriminated against because he was a Fixed-Term Worker. The Complainant lodged his claim with the WRC on the 3rdof September 2018. The cognisable period for the purpose of the Act is 4thMarch 2018 to 3rdSeptember 2018.
The Complainant told the Court that his comparator was a full-time Care Worker. He identified what he believed to be two acts of discrimination within the cognisable period.
1) He was not invited to attend team meetings. He was told of a team meeting on the 16thApril 2018 and it is his submission that Relief staff were not invited to attend.
2) Person x who was a qualified Care Worker was sent for external training, but he was not sent for external training.
The Complainant as a Relief Worker was assigned to cover three houses and therefore would not be invited to team meetings. In some cases, Relief workers are assigned to one house and in those circumstances, they would be invited to team meetings. Permanent staff are normally assigned to one house and therefore would attend team meetings. The deciding factor as to whether or not you were invited to a team meeting was the number of houses you were covering. If you are covering more than one house it would not be practical to attend the team meetings.
In relation to the second issue Relief Worker’s including the Complainant received all mandatory training. The external training referenced was for a different role in a different service.
Conditions of employment for fixed-term employees.
- 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 III ofthe Organisation of Working Time Act 1997.
The Complainant accepted that Relief Care Workers assigned to only one house would be invited to Team meetings therefore that element of his claim must fail as the decision in relating to whether or not you are invited to a team meeting is linked to a factor other than the persons Fixed Term status. In relation to the second issue the Complainant did not dispute that he had received all the mandatory training nor did he dispute the Respondent’s submission that the external training was for a different role. The Complainant has failed to demonstrate a link between his Fixed-Term Status and the fact that he was not sent on an external training course therefore this element of his claim must fail.led to demonstrate a link between his Fixed-Term Status and the fact that he was not sent on an external training course therefore this element of his claim must fail.
The Complainant has failed to establish a link between the two incidences raised and his Fixed- Term status therefore the Complainant’s appeal cannot succeed and is dismissed. The Decision of the Adjudication Officer is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
19 November 2019Deputy Chairman
Enquiries concerning this Determination should be addressed to David Campbell, Court Secretary.