Bringing a Claim under the Protection of Employees (Fixed Term Work) Act, 2003

Introduction

An interesting case was recently decided wherein the Workplace Relations Commission (WRC) found that an employee, Amy Farrell, could not bring a complaint against An Garda Siochana under Section 14 of the Protection of Employees (Fixed Term Work) Act, 2003 (see Amy Farrell v An Garda Síochána ADJ-00036366). 

By way of background, Ms Farrell was employed as a cleaner with An Garda Siochana. Ms Farrell commenced employment in August 2016. During 2016 and 2017 she worked at Garda Headquarters and different stations providing relief cover. Since 2017 she had continuously worked at the same station doing the same work five days per week, working a total of 37 hours per week.

In 2018, Ms Farrell spoke to a member of management about getting a permanent contract of employment. She was advised that she had to be there four years before this could be considered. An Garda Siochana issued Ms Farrell a contract of indefinite duration in February 2023 which was subsequently withdrawn. An amended contract of indefinite duration was issued in March 2023. That amended contract was also later withdrawn by the respondent. A third contract of indefinite duration was issued in April 2023.

A hearing of the complaint was held on 09 May 2023. 

Legislation and Case Law

Ms Farrell brough a complaint seeking adjudication by the Workplace Relations Commission under section 14 of the Protection of Employees (Fixed-Term Work) Act 2003.

Given the interaction between the parties on the matter, the Adjudication Officer noted that it was understandable how the complainant considered herself to be a fixed-term employee and the decision taken to refer this complaint under the 2003 Act. However, the Adjudication Officer explained to the parties at the hearing, that their jurisdiction derives from the 2003 Act and is not conferred by the agreement or acquiescence of the parties. Accordingly, the Adjudication Officer, before progressing the complaint, needed to satisfy themselves that the complainant was a fixed-term employee within the meaning of the 2003 Act at the material time of referral of the complaint or within the 6-month cognisable period because otherwise she would have no legal standing to bring a complaint under the 2003 Act. 

Section 2 of the 2003 Act defines a fixed-term employee as:-

“… a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include –

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;”

This definition was considered by Laffoy J. in Nerney v Thomas Crosbie Holdings Ltd [2013] ELR 238. The plaintiff in that case was employed in 2004 pursuant to what was described as an executive contract. The contract was expressed to be for a period of four years and to continue for periods four years unless the defendant gave notice of an intention not to renew at least 6 months before the expiry of any four-year period. An issue for Laffoy J. to determine was whether the plaintiff was a fixed-term employee within the meaning of section 2 of the 2003 Act from the commencement of his employment with the defendant under the executive contract. In the following extract from the judgement, Laffoy J. explains the essential characteristic of fixed-term employment, namely that it be determined by an objective condition:-

“The application of the definition of fixed-term employee to the plaintiff as an employee of the defendant under the Executive Contract raises the question whether the end of the Executive Contract is determined by an objective condition. Having regard to the examples of “objective condition” set out in the definition, and also in s.8(1) of the Act of 2003, I understand “objective condition” to mean a condition which is identifiable by reference to the object, that is to say, the condition, without reference to the view or perception or intervention of either party to the contract. A contract, such as an Executive Contract, the term of which is expressed to be from the commencement date for a period of four years and continuing for further periods of four years unless determined by six months’ notice from the employer given at least six months before the expiration of any four year period cannot be said to be determined by an objective condition, because the intervention of the employer, which may or may not happen, and in this case did not happen over a period of eight years is necessary to give rise to and identify the determining event.”

The description of the complainant as a “relief cleaner” and the panel as a “relief panel” might reasonably be understood to mean that the complainant and panel were used to provide cover and replacement personnel for core or unavailable staff.  Neither party was in a position to clarify at the hearing how the relief panel operated. The respondent did not avail of the opportunity given to submit post-hearing any information relating to the establishment and operation of the relevant relief panel, including information pertaining to the employment status of persons on the panel.  The Adjudication Officer noted the lack of documentation and information provided to the complainant concerning her employment with the respondent from 2016 and the terms thereof, which was a further source of ambiguity.

In the circumstances, the Adjudication Officer found that the complainant was not a fixed-term employee within the statutory meaning of that term and accordingly lacked the legal standing to maintain this complaint under the 2003 Act. Accordingly, their decision was that this complaint was not well founded.

Conclusion

The Adjudication Officer noted that the description of the complainant, Ms Farrell, as “a relief cleaner” and the panel as a “relief panel” might reasonably be understood to mean that the complainant and the panel were used to provide cover and replacement personnel for core unavailable staff. Neither party was in a position to clarify to the adjudication office at the hearing how the relief panel operated. The respondent, An Garda Siochana, did not avail of the opportunity given to submit post hearing any information relating to the establishment and operation of the relief panel including information pertaining to the employment of status of persons on the panel. The Adjudication Officer noted the lack of documentation and information provided by An Garda Siochana to the complainant concerning her employment with that organisation from 2016 onwards. The sense of ambiguity on the part of the complainant was understandable. However, for a number of reasons, most notably the fact that a contract of indefinite duration had been issued to the complainant, meant that the complainant was not a fixed term employee within the statutory meaning of that term and, accordingly, lacked the legal standing to maintain a complaint under the 2003 Act. Accordingly, the Adjudication Officer found that the complaint was not well founded. This is a most unfortunate set of circumstances as the confusion around the employee’s status was obvious to all. There may have been the possibility that Ms Farrell could have brought a complaint under different legislation, including the Terms of Employment (Information) Act or a trade dispute under the Industrial Relations Act. However, one positive from this decision is that the WRC did consider Ms Farrell to have a contract of indefinite duration, therefore, any further attempts to unilaterally amend or terminate that agreement, would most likely be construed against that organisation.