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CID must have identical terms to that of previously issued fixed term contract

Facts: The Complainant was on a specific purpose contract as a care assistant from 29th April 2014. As of 18th October 2014, he commenced a new contract working 47.8 hours fortnight. The Complainant’s Union wrote to the Respondent on 1st November 2018 seeking ‘contract of indefinite duration’ (“CID”) under the Protection of Employees (Fixed Term Work) Act 2003 (“Act”). The Respondent offered a new contract as a Care Assistant for 22.66 hours per fortnight, which the Complainant refused because of substantial change in the terms. While the Complainant claimed that he was entitled to CID on the terms agreed under fixed contract, the Respondent argued that it is not possible for it to give the Complainant two contracts which would permit the Complainant to work in excess of the maximum hour allowable per work.

Findings: In determining the granting of valid CID, the Adjudicating Officer (“AO”) referred to Health Service Executive v Khan [2006] FTD 4/2006 where the Labour Court ruled that the CID which a fixed term employee becomes entitled to, must be “identical in its terms, including any express or implied terms as to training and qualifications, as the fixed term contract from which it resulted from”. The AO also referred to Trinity College Dublin v Moriarty [2012] FTD 5/2012 where the Labour Court held that the Respondent “cannot carve out a part of a contract and create an entirely new contract for the purposes of the Act”. The AO noted the Labour Court’s inclusion of sleepover time as working time and held that, in this case, granting of CID would not be in breach of provisions of the Organization Working Time Act as the sleepover time was not specifically quantified in the Complainant’s contract and that the sleepover was provided to facilitate the scheduling. Hence the Respondent was required to comply with the relevant provisions of law and issue CID to the Complainant.

Note to the Employers: Fixed term Employees become automatically entitled to a CID if their second or subsequent fixed term contracts exceed a 4 years period. This is calculated from the date of first employment contract. It is also interesting to note that the terms of the CID should not be less favourable or more favourable to the terms of the previously issued fixed term contract as this may result in claim from the employee who has obtained CID or employees who are still on similar fixed term contracts, respectively. As seen in this case, the terms of the CID issued must be identical to the terms of previously issued fixed term contract, failing which the employee will have a claim to have his/her contract amended to reflect the terms of previously issued fixed term contract.

https://www.workplacerelations.ie/en/cases/2019/october/%20adj-00017926.html

1st October 2019

Anne O’Connell Solicitors

Fitzwilliam Hall

Fitzwilliam Place

Dublin 2.

www.aocsolicitors.ie

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