This case being ADJ-13317 concerned a security officer and an Event Company. The case involved a situation where the employee had been employed before for approximately 16 months. There had been periods where he had been effectively laid off. An incident occurred as a result in which the employee was not called back to work and the question was whether the employee was penalised under the Act.
The first issue which arose was whether the employee had a contract of indefinite duration. The representative for the employee quoted the case of Department of Foreign Affairs –v- A Group of Workers 2007 18 ELR-332. In that case the claimants had various periods of fixed term employment with breaks between contracts. Some of the breaks were as long as 26 weeks. It was pointed out that the Act does not refer to successive contracts but rather refers in Section 9 to continue with contracts. The Labour Court in the above case pointed out that Clause 5 of the framework agreement annexed to the Directive refers to successive contracts. In that case the Court pointed out;-
“If the respondent’s submission are correct, Section 9 of the Act only applies to continuous employment relationships and successive relationships, which are separated in time no matter how short, or excluded. If that is the correct statement of the law, in light of the decision in Adeneler –v- Ellinikus Organismos Galaktus the conclusion is that the Framework Agreement has not been properly transposed in Domestic Law is inescapable. In the eventuality the Court should not apply Section 9 of the Act in a way which would defeat the result envisaged by Clause 5 of the Framework Agreement.”
In that case the Labour Court held that the gaps could be treated as affectively periods of layoff.
The AO in this case held that the employee would have been entitled to a contract of indefinite duration.
There was no direct comparator but the AO in this case held that as the employee carried out the duties of the Security Officer then any Security Officer could be deemed to be a comparator.
The AO held that as the employee had not been called back after a period of layoff which he should have been that this amounted to penalisation.
This case is important in restating the law relating to the issue of fixed-term contracts and for reminding practitioners that breaks in service will be treated as layoff because of the way the Framework Agreement is drafted. When looking at the legislation it is not sufficient to simply look at the Irish Legislation which does not conform with the Directive and following recent case law an AO or the Labour Court must disapply Irish Law if it is not in conformity with a Directive or Regulation.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.