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FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HEALTH SERVICE EXECUTIVE
(REPRESENTED BY PADRAIC LYONS, B.L., INSTRUCTED BY BYRNE WALLACE SOLICITORS) - AND - MAURICE POWER (REPRESENTED BY RAY RYAN, B.L., INSTRUCTED BY MACSWEENEY & COMPANY SOLICITORS) DIVISION :
SUBJECT: 1. Appeal of Adjudication Officer's Decision No(s). ADJ-00019988 The Adjudication Officer in a decision dated 10th February 2020 decided that the Appellant’s complaints could not succeed as he was not a Fixed Term Employee within the meaning of the Act. Background Both sides are agreed that the facts of the matter before the Court are as set out hereinafter. The Appellant is employed by the Respondent as a permanent pensionable employee since July 1999. He was appointed as the Chief Financial Officer of the Saolta University Healthcare Group, a unit of the Respondent, in January 2012 and occupied that role at the date of the hearing of the Court. It is common case that the Appellant, at the invitation of the Respondent, took up the role of Interim Group Chief Executive, Saolta University Healthcare Group on 5th October 2014. On 20th November 2014 the Respondent wrote to the Appellant confirming his appointment on a temporary basis until 31st March 2015 or until the role was filled on a permanent basis whichever occurred sooner. He was also advised in that letter that when his temporary role as Group Chief Executive ceased, he would revert to his ‘substantive terms and conditions as a permanent employee of the Health Service Executive’. The Appellant was advised by letter dated 7th May 2015 that his appointment was extended until 31st December 2016. He was subsequently advised in December 2016 that his appointment as interim Group Chief Executive was being extended until 31st December 2017. He was advised again in January 2018 by the Respondent that his appointment was extended to the end of 2018. In September 2018 the post of Group Chief Executive for a five-year term was advertised in a competition administered by the Public Appointments Service on behalf of the Respondent. The Appellant was an unsuccessful candidate in that competition. The Appellant resumed his position as Chief Financial Officer of the Saolta Group in September 2019. Preliminary matter The Respondent submitted to the Court that the Appellant was not a Fixed Term Employee within the meaning of the Act at any material time and consequently could not maintain a complaint under the Act. The Court decided to consider this matter as a preliminary issue in view of the fact that, were the Court to determine that the Appellant did not have locus-standi to make the within complaint, then the entire matter before the Court would fall. In reaching this decision the Court took account of the fact that the factual matrix of the issue before the Court was not in dispute. Summary Position of the Appellant The Appellant submitted that, by operation of Section 9 of the Act, he has an entitlement to a contract of indefinite duration as Chief Executive Officer of the Saolta Hospital Group. Directive 1999/70/EC is applicable to the Appellant because in his work as CEO of the Saolta Group he was providing remunerated services to the Respondent in the context of a fixed term contract. He submitted that the Court must construe the 2003 Act in light of the Directive which gives effect to the Framework Agreement annexed to the Directive. A vitally important aim of the Directive was to prevent the misuse of successive fixed term contracts to fill what are permanent, established employment needs. The Respondent has a legal obligation to definitively fill a vacant post such as the CEO post which was vacant in 2014. He submitted that contracts issued to him in respect of the CEO role must be seen as contracts of employment pertaining to that role and that there is no other legally correct way of characterising them. He submitted that ‘in law’ he was not “acting up” or occupying some temporary interim arrangement. He submitted that the contracts issued to him as CEO were precisely the subject of Clause 5 of the Framework Agreement and that he came within the definition of Fixed term employee set out Section 2 of the Act. He submitted that the Act did not exclude him from its provisions and that, were it to do so, it would be contrary to the Directive. He referred to Section 1 of the Act which defines a permanent employee as ‘an employee who is not a fixed term employee’ and submitted that the obvious legislative intention of this definition was in the context of non-discrimination. The Appellant submitted that in Del Cerro Alonso v Osakidetza-servicio Vasco de Salud C307/05 [2007] ECR I-7109 and in a large number of subsequent cases the CJEU had ‘forcefully emphasised’ that:
The Appellant submitted that the Framework Agreement had the purposes both of preventing discrimination against fixed -term workers and of preventing the abuse of successive fixed term contracts. He submitted that an interpretative obligation rests upon this Court to apply national law in conformity with the law of the EU. He submitted that it is a fundamental principle of EU law that a member state cannot apply rules which are liable to jeopardise the achievement of the objectives pursued by a Directive and thus deprive it of its effectiveness. A finding that the Appellant has no standing would prejudice the effectiveness of the Directive and undermine the objectives of the framework agreement. He submitted that to exclude holders of permanent contracts of employment from the protections afforded by the Directive to fixed term workers would be unduly restrictive and contrary to the jurisprudence of the CJEU. He drew the Court’s attention again to Adeneler and Del cerro Alonso as well as Valenza v Autoritate Garante della Concorrenza e del [2013] CMLR 37 and Huet v Univversitate de Bretagne Occidentale (C-25111) [2012]. He also cited the CJEU decision in Perez-Lopez v Servisio Madrilena de Salud (Communidad de Madrid) (C-16/15) which he said deprecated the use of fixed term contracts to fill permanent employment needs. He referred to the NI Industrial Tribunal cases of Pollock v Education and Library Board (2011) and McComb v Belfast Education and Library Board (2010) to support the contention that he has locus standi under the Act. He submitted that a finding against him would allow the Respondent to achieve promotion across the public sector without creating ongoing or enforceable contractual rights. Summary Position of the Respondent The Respondent submitted that the Appellant was never employed as a fixed term employee and was at all material times employed on a permanent and pensionable contract of employment which amounted to a contract of indefinite duration within the meaning of the Act. The Respondent submitted that at no material time was the Appellant’s status or position as a permanent member of the staff of the Respondent at risk or under threat. The expiry of his assignment as CEO has not terminated his contract of employment and the employment relationship between the Appellant and his employer continues to subsist. The Respondent referred to the definition of a fixed term employee as set out in Section 1 of the Act as follows:
The Respondent submitted that the Act defines a permanent employee in a manner which distinguishes such an employee from a fixed term employee who enjoys the protection of the Act. The Respondent submitted the decisions of this Court in the cases of of Kelly v Louth Council [FTD1320], Froebel College of Education v Raftery [2014] ELR 190, Gallagher v Sligo County Council [FTD1425] and a range of other decisions of this Court as authority for the proposition that the Appellant does not have locus-standi under the Act for the making of the within complaint. The Respondent submitted that no issue arose in the matter before the Court which required a ‘purposive interpretation’ of the Act. The Act is not ambiguous in relation to the distinction between permanent and fixed term employees and consequently, having regard to the decision of Hedigan J. in HSE v Ali Umar [2011] IEHC 146 it is not permissible to import into the statute something which is not there. Similarly, the Respondent submitted that the Directive affords a measure of discretion to member states in relation to implementation. The Respondent drew the Court’s attention to the 14th and 17th recitals to the Directive in that regard. In essence, the Respondent submitted that the matter of whether a person enjoys fixed term worker status falls to be determined domestically. The Appellant has the benefit and protection of indefinite employment with the Respondent. He is not exposed to the loss of employment and the type of instability which that entails. The Respondent submitted that the purpose of the Directive is not to confer a particular contractual rank or status upon persons such as the Appellant. Relevant Law The Protection of Employees (Fixed Term Work) Act 2003 transposes Council Directive No. 1999/70/EC into Irish law. The recital to the Directive states at paragraph 14 and (17) as follows
The Appellant has based his complaint on the Act at Section 9 which provides as follows:
In Railway Procurement Agency and Allan Bell & others, [FTD097] this Court stated
Recital (6) of the Directive sets out an underpinning objective of the Framework Directive as follows:
The Court is fortified in this interpretation by the decision of the CJEU in Del Cerro Alonso v Osakidetza-servicio Vasco de Salud C307/05 [2007] ECR I-7109 which was opened to the Court by the Appellant in this appeal where the Directive’s scope was addressed as follows:
In the within matter the Appellant’s link with his employer is, self-evidently, the permanent employment relationship created and maintained by the contract of employment entered into by him and the Respondent prior to his taking up an appointment on a fixed term basis as interim Group Chief Executive and under the terms of which contract he returned to the role of Chief Financial Officer in 2019. That conclusion is all the more inescapable having regard to the fact that the Appellant’s employment was at no time at risk arising from the termination of his fixed term appointment to the role of interim Group Chief Executive. The Court concludes that at all material times the Appellant was employed as a permanent employee, employed on a contract of employment of indefinite duration by the Respondent. The Court consequently concludes that the Appellant does not have locus-standi to maintain the within appeal. The Court’s conclusion in this matter accords with the jurisprudence of this Court on the scope of the Act as regards its application to employees who hold permanent contracts of employment with employers against whom they seek the protection of the Act as fixed term employees. Determination The Complaint of the Appellant is not well founded, and the Appeal fails. The decision of the Adjudication Officer is affirmed.
NOTE Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary. |
