State misinterprets its own employment laws

The Government has been told to re-hire a former staff member of the Department of Employment — after it failed to correctly interpret its own employment laws.

In its ruling, the Labour Court even found that Government officials had issued “unlawful instructions” in relation to the woman’s employment.

The court made the ruling in the case of Ashling Abbott who was employed by three Government departments for six years up to 2012. Ms Abbott started working for the Department of Finance in 2006 as a “temporary unestablished auditor”.

In May 2008, she resigned from that position and a few weeks later joined the Department of Enterprise, Trade, and Employment as a temporary non-established auditor in the European Social Fund Financial Control Unit.

That unit was later transferred to the Department of Education as part of a Government decision. Ms Abbott was employed on a fixed-term contract which terminated in Jun 2012.

In her submission to the court, Ms Abbott argued that she was employed successively by the finance and employment departments and then, due to a Government decision to transfer her role, by the Department of Education.

She said the total length of her successive contracts was more than four years and under section 9(2) of the Protection of Employees (fixed-term work) Act 2003, she was entitled to a contract of indefinite duration.

However, the Government, through the Department of Education as Ms Abbott’s last employer, said she was employed by different employers — the three departments. It said the case did not therefore come within the scope of Section 9(2) of the act.

It also argued that Ms Abbott resigned her position with the Department of Finance and that by doing so voluntarily left her employment. On that point, the complainant said she was told by figures in the department that she had to resign her position with it in order to take up a post with the Department of Enterprise, Trade, and Employment.

Those individuals gave evidence confirming they had said that.

The Labour Court adjudged that: “Both witnesses formed this view on the basis that they each genuinely, though mistakenly, believed that each of the departments was a separate employer and that the complainant was required to terminate her employment with one in order to take up employment with the other... the court finds that the respondent instructed the complainant to resign her post with the Department of Finance and that having done so it cannot seek to benefit from the consequences of its own unlawful instructions.”

It found the complainant was employed “in the service of the State” in relation to each of the roles.

“Accordingly the court finds that the complainant is deemed to be employed by the State or Government at the relevant time for a period of in excess of four years and comes within the scope of section 9(2) of the act,” it said.

Labour Court deputy chairman, Brendan Hayes, who heard the case concluded: “The court finds that the complainant became entitled by operation of law to a contract of indefinite duration with effect from Jun 16, 2008.

“The court orders the respondent to reinstate the complainant with effect from Jun 16, 2012.”