Case Number: ADJ-00009932. Workplace Relations Commission

• Docket Number: ADJ-00009932
• Hearing Date: 13 November 2017
• Date: 01 April 2018
• Court: Workplace Relations Commission
• Parties: complainant v Respondent
• Respondent: Local Authority

ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00009932

Parties:

	Complainant	Respondent
Anonymised Parties	Engineer	Local Authority

Complaint(s):

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-00012997-001	08/08/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00012997-002	08/08/2017

Date of Adjudication Hearing: 13/11/2017

Workplace Relations Commission Adjudication Officer: Marguerite Buckley

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).

Background:

The facts of this case were not in dispute between the parties. The Complainant was recruited following an open competition for the position of resident engineer on a departmental funded capital project for a watermain rehabilitation project on the 29th of July 2013 (Contract 1). The contract was a specific purpose contract. While working in this position, the Complainant was appointed acting senior resident engineer when the then senior resident engineer resigned. The Respondent advertised to recruit two temporary executive engineers on fixed term contracts by way of open competition. The Complainant came high on the panel and was offered the post. This fixed term contract as temporary executive engineer was to expire on the 25th of August 2017. (Contract 2) The Complainant then wrote to the Respondent confirming that he was resigning his post as resident engineer or acting senior resident engineer (Contract 1) in order to take up the position of temporary executive engineer (Contract 2). The Complainant’s case is that he is entitled to a contract of indefinite duration in respect of Contract 2 for the following reasons: a) Section 9 of the Protection of Employee’s (Fixed-Term Work) Act 2003 (The Act)applied and in particular the Complainant relied on Sections 9 (2) and 9 (3). b) The Complainant’s case is that Section 9(3) operates so as to sever the term in the Contract providing for its expiry on the 25th August 2017. The contract was converted to one of indefinite duration from the date of its commencement.

Summary of Complainant’s Case:

The Complainant’s employment began on the 29th of July 2013 and ceased on the 25th of August 2017 and comprised a total of four years and twenty-seven days. He submitted that the second fixed term contract brought the duration of his successive employment over the four-year period set out in Section 9(2) of the Act. The Complainant relied on the labour court determination of National University of Ireland Maynooth and Lorraine Keane (FTD1512) and Clare County Council and Rionach Power (FTD0812). In addition, at the hearing of the claim, the Complainant raised a complaint of penalisation as per section 13(1)(d) of the Act.

Summary of Respondent’s Case:

The Respondent accepted that the Complainant was employed continuously on fixed contracts for more than the four years normally permitted by Section 9(2). However, it contented that there were objective grounds justifying the employment beyond the period referred to in Section 9(2) and the extension beyond 4 years was thus saved by Section 9(4). The Respondent also argued that Contract 2 was not a renewal. It was a contract he had obtained through competition and he resigned from Contract 1 to take it up.

Findings and Conclusions:

The fact of dismissal was not in dispute. For the purposes of the Act a fixed-term contract is one in which the end of the contract of employment is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event (see s.2 of the Act). I find that the Complainant was employed on two fixed term contracts. The Complainant commenced his employment with the Respondent on the 29th of July 2013 and worked the following contracts Start Date Finish Date Position 29th July 2013 22nd September 2015 Resident Engineer + Acting Senior Resident Engineer 23rd September 2015

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