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County Council employee awarded €48,153.86

Workplace Relations Commission reference ADJ-00010004 – An employee v A local County Council – seeking adjudication under the Protection of Employees (Fixed-Term Work) Act 2003.

Facts
The Complainant commenced employment as a Co-ordinator with the Respondent in September 2006. Funding for this role was provided for by a third party fund. This was a fixed term contract until March 2008. Remuneration for the post was confirmed in the contract as Grade 7 Administrative Scale. Additionally, the contract stated that “increments are paid annually subject to satisfactory attendance, conduct and performance”. The Complainant was subject to five fixed term contacts up until the year 2010 and she was not paid increments throughout those years. The 2010 contract was a fixed purpose contract which stated it “will continue indefinitely for as long as the funding partner exists and is supported and funded as appropriate.”

This contract removed any reference to increments and the Complainant raised her concerns in writing regarding this omission and continued to do so between 2011 and 2016. The Complainant’s Union representative wrote to the Respondent on numerous occasions regarding this and no response was received until July 2017 when the Complainant was offered a settlement. She did not accept the offer as it did not address the significant loss of earnings she experienced due to the failure of the Respondent to award increments over a ten year period.

The Complainant brought claims alleging the following:
1. That she is a fixed term employee and has, in respect to her conditions of employment, been treated less favourably, than a comparable permanent employee.
2. That the Respondent has failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed term contract and failure to offer a contract of indefinite duration.
3. That the Respondent has contravened the legal provisions in relation to the number of successive fixed-term contracts that can be issued to the Complainant.

In support of the above claims, the Complainant submitted evidence that three groups of comparable permanent employees had received increments on an annual basis in line with public sector policy. The Respondent stated that the issuing of consecutive fixed term contract was an error and confirmed that the Complainant is employed under a contract of indefinite duration affording her the same rights and entitlements as anyone employed in a similar capacity on a permanent basis. The Respondent stated that the Board of an associated funding body determined the Complainant’s remuneration, from September 2006, initially when she commenced employment.

The Respondent claimed this Board was her employer but at the hearing it accepted that it was her employer. It was noted at the hearing that in July 2010 the Respondent had an obligation under the Act to issue the Complainant with a Contract of Indefinite Duration as the Complainant had completed her third year of continuous employment and had already been issued with four successive fixed term contracts. The Respondent accepted it breached the Act in this regard and accepted the Complainant is a full time employee.

Conclusion:
The WRC ordered the Respondent to place the Complainant on the appropriate corresponding grade she should be on if she had received her yearly incremental review of her salary since she commenced employment, with immediate effect. In addition, the WRC ordered the Respondent to provide the Complainant with back pay of €48,153.86.

Case Link: http://www.workplacerelations.ie/en/Cases/2018/January/ADJ-00010004.html

For any queries, please contact Anne O’Connell Solicitors at info@aocsolicitor.ie or +353 1 2903580
5th February 2018

Anne O’Connell
Solicitors
1-3 Burton Hall Road
Sandyford
Dublin 18
www.aocsolicitors.ie

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