Case Number: ADJ-00000098. Workplace Relations Commission

• Docket Number: ADJ-00000098
• Date: 01 May 2016
• Court: Workplace Relations Commission
• Parties: Employee v Employer

ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000098

Complaint(s)/Dispute(s) for Resolution:

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-00000107-001	06/10/2015

Date of Adjudication Hearing: 11/02/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and /or Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003, following 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).

Complainant’s Submission and Presentation:

Dear Sir or Madam, I wish to apply for the Rights Commissioners Service to investigate a dispute that I have with the Respondent Education and Training Board with regards my application for a Contract of Indefinite Duration (CID) under the Protection of Employees (Part-Time Work) Act, 2001. The correspondence archive (with a CE number for referencing) is contained in the Appendices of my submission to you, however, if I may summarise the matter as follows... I started working for the Respondent as a Life Model in the Respondent College of Further Education in the Arts Department, on 06 February 2008 on a part time casual basis. I applied for a Contract of Indefinite Duration (CID) on after completing 5 years service with the Respondent on 12 July 2013 (CE7). I was first offered a zero hours contract on 19 May 2014 (CE19). After a number of letters from me to the Respondent, I was then offered a CID with only 200 Hours per year on 16 January 2015 (CE24). I dispute the method by the Respondent of calculating the hours to be allotted to my CID. I wrote to HR on 03 February 2015 (CE28) using the Respondent’s own version of calculating the years of service. I contend that 2007/08 is my first year of service; therefore 2010/11 is my 4th year of service. The P45 dated 02 May 2008 (CE3) confirms the end of the 1st year of service. My understanding is that a CID must be awarded in the fifth consecutive year of service (i.e. after four consecutive fixed term contracts). The number of hours in the CID will be based on the number of hours one holds in the fourth contract. The Respondent has disregarded the year 2007/2008 and calculated from 2008/2009 as the 1st year of service – to see please table below. Years of Employment Academic Year Eligible Hours worked & paid in the Academic Year Criteria 1st 2007/08 54 Disregarded by the Respondent 2nd 2008/09 397 3rd 2009/10 379 4th 2010/11 338.30 Completes the 4th consecutive year of employment 5th 2011/12 200 CID issued at the commencement of the 5th year, calculated on hours delivered in 4th year The Respondent in their letter of 01 April 2015 (CE32) offered a complex method of calculating the hours and what constituted the 4th/5th years of service. They also stated that this is the method of calculating CID hours they apply to all staff who work the academic year. It must be reminded that at first the Respondent offered me a zero hours contract (CE19 & CE20) – again based on the Respondent’s own method of calculating hours for a CID. Since the Respondent raised the matter themselves, of how they calculate CID hours (CE32), I asked them to substantiate the hours allotted to the other Life Models in my letter of 07 April 2015 (CE34). In particular the 687 hours allotted to a colleague – which is a mathematically impossible calculation as there is simply not that amount of hours a person could work or could have worked – given the class hours and timetable restrictions. I believe the Respondent has made a mistake in their calculation of these hours. I offered the Respondent to go to arbitration with this matter, but my letter of 07 April 2015 (CE34) went unresponded to. Accordingly, I gave notice, in my letter dated 03 September 2015 (CE38) that I now take leave to seek recourse to the Office of the Rights Commissioner Service. No objection to this was raised by the Respondent in their letter to me dated 21 September 2015 (CE39). I would ask that the method of calculating the CID hours allotted to me is independently assessed and calculated, taking into account the submitted criteria in my letters to the Respondent and their responses. I would be grateful if you could contact me if you require any further information or clarification on matters or issues presented in this application. I thank you for your time and would be appreciative for the consideration of my application. Yours faithfully, ------------------------------------------- Complainant

Respondent’s Submission and Presentation:

The Respondent submitted that the claim was in effect misconceived – the Complainant is not a Fixed term Worker and the provisions of the Protection of Employees (Fixed-Term Work) Act, 2003 do...