Former ministerial driver fails in claim that department breached workplace legislation

A government ministerial driver who served in his post for six years has failed in his claim that a government department breached workplace legislation concerning his role.

Paul Kiernan - who worked as a driver for former Minister for Health, James Reilly for five years - was serving under Minster for Employment Affairs and Social Protection, Regina Doherty when his work ended as a Ministerial driver in November 2017.

Last year, Mr Kieran failed in an unfair dismissal action against the Dept of Employment Affairs and Social Protection claiming that that he had been unfairly dismissed without fair procedures and natural justice as would have been afforded a civil servant covered by the Civil Service code.

However, the Workplace Relations Commission (WRC) found that it has no jurisdiction to hear the unfair dismissal claim as Mr Kiernan accepted at the WRC hearing that no unfair dismissal claim had been lodged with the WRC.

Mr Kiernan also lodged claims concerning suffering less favourable treatment than a fixed term employee and a separate contract claim.

Those claims were also dismissed by the WRC as not being well founded, out of time or that the WRC didn’t have the jurisdiction to hear the claims.

Now, Mr Kiernan has appealed that ruling to the Labour Court claiming that the Dept had breached the Protection of Employees (Fixed Term Work) Act, 1993 in that it had failed to afford him a contract of indefinite duration.

In the case, the driver first served for Minister for Health, James Reilly between 2011 until July 2014 - Ministers can appoint two drivers to the role.

The civilian driver moved with Minister Reilly to his new post of Minister for Children and Youth Affairs in 2014.

Following Minister Reilly losing his Dáil seat and later his Ministry in July 2016, the driver was issued with his third fixed-term contract working as civilian driver for Minister Regina Doherty - first in her role as Government Chief Whip and then later as Minister for Employment Affairs and Social Protection.

In his claim, Mr Kiernan claimed that by operation of employment law, his contract became a contract of indefinite duration with effect from May 6th 2015.

In rebutting Mr Kiernan’s claims, the Dept of Employment Affairs stated that “the nature of the relationship between a Minister and his or her driver is one of special trust and discretion reflective of the fact that Minister conducts political and Government business while travelling in his or her car”.

The Dept stated: “That very particular and personalised relationship is reflected in the uncontested fact that it is the Minister who identifies to the Department the individual which the Minister wishes to have appointed as his or her civilian driver for the duration of his or her term of office.”

The court stated that it noted in this case the process of Mr Kiernan being appointed to his first position as a civilian driver commenced with a visit to the Minister in his constituency upon his appointment as Minister.

The Labour Court stated that “it is persuaded that the inherent characteristics of the role of civilian driver to a Minister involves a particular relationship such that the Minister is capable, by virtue of the level of trust placed in the driver, of carrying out Government and political business during what both parties acknowledge are extended period of working time spent in the Minister’s car with the driver”.

The court found that “it is common case that each contract provided to the Appellant specified that the contract was directly related to and would end upon the conclusion of the named Minister’s term of office”.

In its findings, the court found that the issuance of a fixed term contract to a civilian driver chosen by the individual Minister “is a legitimate and proportionate means of achieving the aim of facilitating the conduct of Government and political business by a Minister and is not persuaded that any alternative of a less discriminatory nature is available”.

Dismissing Mr Kiernan’s claim, the Labour Court stated that the Dept was not in breach of the Act by issuance of successive fixed term contracts to Mr Kiernan.

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