Case Number: FTD149. Labour Court

• Judgment Date: 01 May 2014
• Year: 2014
• Docket Number: FTD149
• Court: Labour Court (Ireland)

FULL RECOMMENDATION FTC/14/13 DETERMINATIONNO.FTD149 (R-135121/135122/135123-FT-13/SR); INDUSTRIAL RELATIONS ACTS, 1946 TO 1990; SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 ; PARTIES : DUBLIN INSTITUTE OF TECHNOLOGY; (REPRESENTED BY IBEC); - AND -; JAMES WOGAN; (REPRESENTED BY SHERWIN O ' RIORDAN SOLICITORS); DIVISION : Chairman: Mr Duffy; Employer Member: Ms Doyle; Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner's Decision R-135121/135122/135123-Ft-13/SR


BACKGROUND:

2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 27th February, 2014. A Labour Court hearing took place on the 1st May, 2014. The following is the Labour Court's Determination-



DETERMINATION:

This is the determination of a preliminary issue arising in the appeal by James Wogan (hereafter the Claimant) against the decision of a Rights Commissioner in his claim against Dublin Institute of Technology (hereafter the Respondent). The claim was taken under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).

The preliminary question under consideration relates to whether a claim that the Claimant was penalised by the Respondent, contrary to s.13(1)(d) of the Act, was properly before the Rights Commissioner and consequently whether that matter is properly before the Court.

The Issue
The background against which this issue arose is as follows.

The Claimant was employed by the Respondent pursuant to a series of fixed-term contracts between April 2009 and 31^stDecember 2012. He thus accrued three years and nine months service as a fixed-term employee by the date his employment terminated.

The Claimant made a number of complaints specifically alleging contraventions of sections 6, 8 and 9 of the Act. He did so using the originating form known as ‘The Workplace Relations Complaint Form’. This is the form now used for initiating all complaints under employment rights statutes.

This form invites complainants to outline in detail the specifics of their complaints. In relevant part the Claimant stated the following on this form: -

• In my view DIT breached Section 9 of the Protection of Employees Fixed-Term Work Act 2003. I was issued with 6 contracts by DIT.

  The objective ground in my last contract was that “the position is subject to the continuation and availability of EU funding…which is envisaged to cease on the 31^stDecember 2012. The claimant should have been issued with a CID rather than being issued with a P45. The funding for the project is continuing.

The official processing the form interpreted both paragraphs of this narrative as containing a complaint that s.9 of the Act had been contravened. The form was processed accordingly and the relevant aspect of this complaint was referred to the Rights Commissioner as coming within the ambit of s.9 of the Act. It was given a reference number referable to that section.

It appears that at the hearing before the Rights Commissioner the Claimant contended that this aspect of his claim was that he had been dismissed for the purpose of avoiding his fixed-term contract being deemed to be a contract of indefinite duration. If that were so, the complaint properly fell within the terms of s.13(d) of the Act.

The hearing before the Rights Commissioner was held on 8^thOctober 2013. The Rights Commissioner held that the complaint form did not raise a claim under s.13 of the Act. The Rights Commissioner further held that a complaint under that section was first presented at the hearing and was therefore out of time. The Rights Commissioner refused an application by the Claimant to extend time in accordance with s.14(4) of the Act.

Position of the Parties
The Respondent contends that the only complaint referable to s.13 of the Act was made on the day of the Rights Commissioner hearing on 8^thOctober 2013. That was more than six months’ from the occurrence of the event to which the complaint relates, namely, the termination of the Claimant’s employment on 31^stDecember 2012. Consequently, the complaint was outside the statutory time limit and statute barred at the time of its making. The Respondent further submitted that there are no reasonable grounds upon which the Court could extend the time for the making of this complaint.

The Claimant submitted that the narrative used on the form clearly indicated that the substance of his complaint was that he had been dismissed in circumstancesin which the funding for the project on which he had been employed was continuing. In these circumstances he contends that the termination of his employment on 31^stDecember 2012, at which point he had accrued three years and nine months continuous fixed-term employment, was wholly or mainly for the purpose of avoiding his fixed-term contract being deemed to be one of indefinite duration in accordance with s.9(3) of the Act.

The Applications Made
The Claimant made two applications to the Court. Firstly, he applied to have the form amended so as make explicit that his claim relates to s.13 of the Act. According to the Claimant, that is already implicit from what he contended on the form. In the alternative, the Claimant sought an extension...