FTD222

1. Appeal Of Adjudication Officer Recommendation No ADJ-00006712.

BACKGROUND:

2. This is an appeal of an adjudication officer's recommendation under Section 15 (1) of the Protection of Employees (Fixed-Term Work) Act, 2003. The Labour Court held a case management conference on 5 January 2022. Further hearing dates took place on 22 and 23rd of March 2022 with a concluding hearing on 5 July 2022. The following is the Determination of the Court.



DETERMINATION :

Background to the Appeal:

This is an appeal on behalf of Blackrock College (‘the Respondent’) from a decision of an Adjudication Officer (ADJ- 00006712, dated 14 December 2017) under the Protection of Employees (Fixed-term Work) Act 2003 (‘the Act’). The Respondent’s appeal was previously determined by a differently constituted Division of this Court. Determination number FTD183, issued on 5 June 2018, was successfully appealed to the High Court on a point of law by Ms Valerie Coyle (‘the Complainant’). By Order dated 11 February 2020, Meenan J remitted the matter to this Court for rehearing. The Court held a case management conference on 5 January 2022 and proceeded to hear the appeal over three days, on 22 and 23 March 2022 and 5 July 2022. Extensive written and oral submissions were made on behalf of both Parties and the Court heard the sworn evidence of the Complainant and of Mr Alan MacGinty for the Respondent.

The Factual Matrix:

The Complainant is an art teacher and has been employed by the Respondent in that capacity since 1984, initially on a part-time basis and, since 1988, in a full-time capacity. The Complainant is not entitled to be registered with the Teaching Council as she does not possess a Higher Diploma in Education or a Professional Master’s in Education degree. Her salary has, therefore, been directly funded at all material times by the Respondent itself and not by the Department of Education. The Complainant successfully completed the Technical Schools Examinations in the early 1980s. This qualified her to teach art on a part-time basis. She subsequently – and at her own expense – completed a primary degree in art at the Institute for Art, Design and Technology in Dun Laoghaire, on a part-time basis between 2008 and 2012.

The Complainant receives her agreed annual salary over the nine months of the academic year (September to May) and signs on for social welfare benefits for the summer months. The Complainant was employed pursuant to a series of fixed-term contracts. Written fixed-term contracts signed by the Complainant were exhibited in the papers before the Court for the following academic years: 2001-02, 2002-03 and 2003-04. In October 2004, the Complainant received and signed a written contract that was open-ended and contained no termination date but did make provision for a normal retirement age of sixty-five. The Respondent’s management structure changed in 2005 when the first Board of Management assumed office in place of the unitary management arrangement that had previously applied. The Chairman of the new Board issued a one-year fixed-term contract of employment to Complainant and a number of other colleagues for the academic year 2005-06. The Complainant has not been issued with any other written contract since then.

The Complainant referred a number of claims under the Act to the Workplace Relations Commission on 16 January 2017 alleging breaches of sections 6, 8, 9 and 10 of the Act. The Adjudication Officer upheld the claims under sections 6, 8 and 9 but not under section 10. The Adjudication Officer directed the Respondent to provide the Complainant with a contract of indefinite duration effective from June 2007 on an annual salary of 49,333.33 and to pay compensation of E5,000.00 for the breaches of section 8 that had occurred. The Respondent appealed from the Adjudication Officer’s decision in relation to sections 6, 8 and 9 (but not section 10) on 22 January 2018.

The First Labour Court Determination:

The Division of the Court that was originally assigned to hear the within appeal decided that it would make a preliminary ruling on the issue of the Complainant’s status for the purposes of the Act. Having heard the parties on that matter, the Court determined that the Complainant was “employed on a permanent annual 39-week contract of employment” and that she “[was] not a fixed-term worker within the meaning of the Act”.

The Decision of the High Court on Appeal:

The Complainant’s appeal on a point of law to the High Court was heard over two days on 9 and 10 July 2019 before Mr Justice Meenan. Meenan J held that the Labour Court’s primary finding of fact to the effect that the Complainant was a permanent employee was one with no reasonable decision-maker could have arrived at having regard to the evidence before it. As stated previously, the learned judge remitted the matter to the Labour Court for full re-hearing.

The Complainant’s Evidence:

The Complainant outlined the history of her employment with the Respondent from 1984 onwards. She said her employment began in 1984 when she came in on a part-time basis to assist her father who had been teaching art in the college since the early 1950s and was also an accomplished artist of some repute. Her level of involvement in the college increased when her father was appointed Vice-Principal and she became the sole art teacher following his retirement at the end of the 1990-91 academic year and taught all classes up to and including Leaving Certifcate.

The Complainant told the Court she availed herself of a period of statutory maternity leave in 1996 and when she returned to work she discovered that her replacement, Mr Annraoi Wyer, had been appointed as Head of Department and had been assigned to teach fifth and sixth years.
The Complainant said that her experience each year was that she was furnished with a timetable for the following academic year by post in August. This was the first confirmation she had that she would have a teaching post for the year ahead.

The Complainant gave details of the written contracts she was given over the years. She said she received the first of these in 2001 for the period 3 September 2001 to 31 May 2022. She received a similar written contract the following September to cover the period 2 September 2002 to 30 May 2003. This provided for a salary of €29,200.00 gross, inclusive of holiday pay. She was paid this salary in nine monthly instalments. When asked by her Counsel about this arrangement, she denied that she had requested or initiated it. She said that at the end of May each year, she signed on for social welfare and the Respondent’s accountant signed the relevant application forms to facilitate this. This meant, according to the Complainant, that there was a six-week period each year, from the end of August, during which she had no income until her September salary became payable and during which period she was obliged to seek Family Income Supplement from the Department of Social Protection. A P45 for 2011 was exhibited which indicated the Complainant’s cessation date for tax purposes that year fell in May 2011. (The actual day in May was not legible in the copy provided to the Court.)

The Complainant said that she had never been informed by the Respondent that she had been given a permanent contract. She referred to the most recent written contract that she had received – which was for the academic year 2005-06 and issued to her by Mr John N Murphy – then Chairman of the Board of Management. She noted that it contained a probationary clause notwithstanding her thirty or so years of service with the Respondent at that stage. Her annual gross salary for that year was €33,000.00.

Her evidence then moved to the Art Club in the College which she says she was directed to set up in 2007 but was not initially paid for the work associated with it. She was told, she said, that it was part of her core teaching hours although it was scheduled for 1.00 to 3.00 pm on Wednesdays although her written contracts had always provided that her teaching hours on Wednesdays were between 8.50 am and 12.50 pm. In 2015, she said, she raised this issue with the College Principal and it was agreed that she would receive a payment of €500.00 per annum for this work. She continued to run the Art Club on this basis for the academic year 2015-16 but refused to do it thereafter. Mr Wyer took over running the Club at that stage. She told the Court that she was concerned that she might lose her job at that stage.

The Complainant referred to the fact that she has no occupational pension provision. She said that she was aware that the Respondent had placed notices about the availability of an occupational pension scheme for staff who were not entitled to join the Department scheme, however, she was not in a position to pay into such a scheme. Finally, she told the Court that she had tried to become a member of the ASTI trade union but was not accepted into membership as she did not hold a Higher Diploma in Education. According to the Complainant, the Respondent never approached her to offer assistance to become properly established as a member of staff or to propose that she obtain a Higher Diploma in Education.

Under cross-examination, the Complainant accepted that she is not employable as a Department of Education funded teacher because she doesn’t hold a Higher Diploma in Education. It was put to her that she taught the Leaving Certificate class for a very short period of time – from September to Christmas in 1991 – and it was then taken over by Mr Wyer who joined the staff in 1992 and not 1996 as had been suggested by the Complainant in her direct evidence. It was also put to her that the reason why she was taken off teaching the Leaving Certificate class was because an issue had arisen in relation to her lack of qualifications in the history of art. Mr White SC then put it to her that the position of Head of Department has been advertised every three years since 2000 (when Mr MacGinty became Principal) but that she has never applied for it. Counsel next took the Complainant through the various written contracts she received and already referenced above. Having noted that the Complainant signed both the 2004-05 contract (that had no end date) and the nine-month contract that issued for 2005-06, Counsel advised that the Respondent’s evidence would be that the latter contract was issued in error by the newly appointed Chairman of the Board of Management.
Questioning turned to the Complainant’s relationship with Mr MacGinty. The Complainant she that their working relationship has been a good one but that she never shared her anxieties about her future career with him. Mr White SC opened a copy handwritten note made by Mr MacGinty on 29 August 2016 at a one-to-one meeting with the Complainant which recorded that they had discussed the Complainant’s academic qualifications. Counsel opened a note of a second meeting the following day – 30 August 2016 – in which Mr MacGinty had recorded the following note: “Mentioned again Teaching Council registration … importance of qualification”. The Complainant said she did not remember these conversations. Counsel opened a third hand-written note made by Mr MacGinty recording a meeting with the Complainant on 6 March 2014 in which he recorded, “Talked about TCI qualifications”.

The cross-examination then turned to the genesis of the Art Club. Counsel put it to the Complainant that for a number of years, when her children were young, her teaching hours were scheduled for mornings only, Monday to Saturday and that when the children were older, Mr MacGinty had suggested the she run an Art Club on Wednesday afternoons instead of working Saturdays as a means of achieving her contractual teaching hours. She was contracted to teach eighteen hours but, Counsel suggested, she did not reach this most years. For example, in 2000 she was scheduled for only twelve teaching hours per week.

In answer to questions from the Court, the Complainant accepted that she had never requested that her annual salary be paid in twelve payments rather than nine and had never enquired about the terms of the Respondent’s occupational pension scheme. She was also asked if she had ever sought financial assistance from the Respondent to progress her academic training. She replied that she had mentioned it to Mr MacGinty and to one of the priests.

Evidence of Mr Alan MacGinty:

The witness told the Court he had been a pupil in the Respondent college and went on to become a teacher there. He was subsequently appointed as Principal in September 2000. He knew the Complainant’s father and was aware that the Complainant had joined the staff in 1984 although he did not have very many direct dealings with her until the late 1980s. He said his professional and social relationships with the Complainant since he became Principal have been good and positive.

He gave a breakdown of the Respondent’s teaching staff as between Department funded teachers and directly employed teachers. He told the Court that he was aware of the different types of contracts given to directly employed teachers prior to 2000. These varied from nine-month, ten-month, eleven-month and twelve-month contracts according to the individual teacher’s preference. Since 2000, the Respondent has moved away from the practice of giving contracts (to directly employed teachers) that provided for payment over less than twelve months. However, the Respondent didn’t actively seek to disturb pre-existing arrangements such as the Complainant’s that had been in place prior to then. He said that he was not able to find anything in the Respondent’s records that indicated how the Complainant’s arrangement had come about. Before the first Board of Management had been put in place, a unitary management system applied where the authority to make appointments and promotions was vested in the President alone.

The witness told the Court that he had been briefed in the early 2000s in relation to the imminent legislation to regulate the employment of fixed-term workers. He referred to the Complainant’s written contract for the period 1 September 2003 to 4 June 2004 which he noted was the first renewal of her employment on a fixed-term basis after the passing of the Act. He then told the Court that she was given the 2004-05 contract which did not provide for an end date in compliance with her entitlements under the Act to a contract of indefinite duration. She signed this on 7 October 2004.

According to the witness, the first Board of Management in the Respondent college took up office in August 2005. It was advised, the witness said, to issue contracts to directly employed teachers signed by the Chairman of the Board (rather than the President of the college). These contracts were drawn up hastily with the result that a number of directly employed teachers (three or four) who had previously been given a contract of indefinite duration were given a fixed-term contract. The error went unnoticed at the time by the witness and by the recipients. Counsel referred the witness to a series of redacted copy file documents listing contracts issued to teachers over a number of years. The list for 2012-13 refers to the Complainant and bears the entry: “No contract – Private CID.”

The witness told the Court that he had been very surprised to hear the Complainant say in evidence that she did not have any certainty about returning to a job with the Respondent in advance of the commencement of successive academic years as he was always certain that her job was there for her. He told the Court that his family and the Complainants frequently holidayed at the same location during the summer and often talked about the college. He said that he believed she regularly attended social functions associated with the college and that she frequented the staff room and refectory for lunch and coffee in the same way as all other teaching staff with whom she appeared to have very good relations. The witness said the Complainant never communicated any concerns to him about the security of her employment with the Respondent. He said that they had occasionally discussed her academic and professional qualifications as he was conscious that she was ineligible for appointment to a Department-funded position. The witness also told the Court that he never expressed the view that the Complainant would not have a job with the Respondent at any time in the future.

He then referred to his one-to-one meetings with the Complainant which he said were very positive, open and candid. The meetings lasted forty to fifty minutes and were an opportunity (as with all teachers) to discuss experiences with different class groups and future personal and professional development. According to the witness, he found the Complainant to be very passionate about the Respondent college and very committed to her work.

The witness was asked about the issue of providing assistance to the Complainant to progress her professional qualifications. He said that the Chairman of the Board had done research on the possibility of the Complainant obtaining a Higher Diploma or Professional Masters in Education in Art on a part-time basis but no college offering this option had been identified. He gave details of the programme that the Respondent has in place to assist teachers who wished to obtain postgraduate qualifications. He said the Complainant had never looked for support of this nature from the Respondent.

The witness’s evidence then turned to the Complainant’s teaching duties. He told the Court that she now teaches classes up to and including transition year but had – for a very short period in 1991 – taught senior-cycle classes. When she went on maternity leave at the start of 1992 to have her first child, he said, Mr Annraoi Wyer was appointed and took over the senior classes thereafter as over 37% of the Leaving Certificate programme comprised history of art. This was a challenge at the time for the Complainant but Mr Wyer had studied the subject as part of his degree.

The witness then addressed the issue of Head of Department that had been raised by the Complainant in her evidence. He said the Complainant’s father had been Head of Art. Following his retirement, the art, technical drawing and woodwork departments were amalgamated. Mr Martin Dunne was the first Head of Department. Mr Wyer had oversight of art and was Assistant Head of Department. Art then became a separate department in 2000. The role of Head of Department, in the witness’s evidence, is advertised once every three years and all teachers are free to apply for it. Applications are made to the Board of Management. It was most recently advertised in 2021. The Complainant has never applied for it.

The witness was asked by Counsel to address the introduction of the Art Club in the Respondent’s college. The witness recalled that it was on a visit to Kilkenny College that he first came across the concept. Up to that time, the Complainant had been working on Saturday mornings in the boarding school to make up her hours. This arrangement had suited her domestic situation up to then but her children, he said, were now getting older and working on Saturdays no longer suited her. The witness said that this prompted him to suggest to her that she establish an Art Club on Wednesday afternoons in place of her Saturday teaching hours. He said the issue of additional payment for running the Art Club didn’t arise until 2014. When the Complainant requested this payment it was arranged and her teaching hours were increased at the same time from 13.35/13.45 to 18.25 hours per week.

The witness told the Court that there is a pension scheme in place across the campus that comprises the Respondent and Willow Park School. He gave details of the respective levels of contributions made by staff who join the scheme and made by the Respondent. He said that the Complainant – had she joined it – would be eligible for the higher level of employer contribution based on her accrued service.

Finally, the witness’s direct evidence returned to the issue of her salary being paid over nine months and not over twelve months. He reiterated that this was an arrangement that had been carried over from the 1990s. The witness told the Court that he did not seek to change existing staff members’ terms and conditions when he became Principal in 2000 as the arrangements people had suited their particular personal circumstances. Some staff members did seek to change the arrangement and received the same annual salary but paid over twelve months. He confirmed that the current arrangement in place for the Complainant would continue until such time as she requested a change.

The witness was asked in cross-examination about the Complainant’s submission that she had never been facilitated by the Respondent to obtain a Professional Master’s Degree or Higher Diploma in Education. Mr McGinty again told the Court in reply that Mr John N Murphy – the former Chairman of the Board of Management – had researched the possibility of the Complainant undertaking such a course in art on a part-time basis (she had made it clear that full-time was not an option for her) and was unable to locate any college offering such a course. Counsel put it to Mr MacGinty that the Complainant had not received any assistance from the Respondent when she was studying for her primary degree in art. According to the witness, the Respondent has a scheme in place to assist staff financially to pursue postgraduate qualifications or continuing professional development. He also said that the Complainant had undertaken the degree course on her own initiative, without consultation with anybody in the Respondent’s college and had not made any application to it for funding.

Counsel returned to the issue of the Art Club. The witness stated that running the Art Club formed part of the Complainant’s teaching hours between 2006-07 and 2013-14 and that it was not an extra-curricular activity in her case. He described it as co-curricular until 2014-15 when she was paid €500.00 into her hand (i.e. a gross payment of €1,000.00 less tax). The payment was calculated at one-third of the payment of €3,000.00 gross made to those involved in training and supervision of sports as the those activities involved training three times per week and travelling to away games. A similar payment of €500.00 net was paid to teachers who supervised debating on an extra-curricular basis.

Counsel then turned his questioning of the witness to the arrangement whereby the Complainant is paid over nine months and not twelve. The witness restated what he had said in his direct evidence about this matter and confirmed again that the Complainant had never made a request to have this arrangement altered in any way.

Counsel referred to a data access request made on the behalf of the Complainant which the Respondent replied to on 26 January 2017. Counsel noted that the only copy written employment contract produced at that time was the Complainant’s contract for the academic year 2005-06 issued by Mr Murphy on behalf of the Board of Management i.e. the final written contract she received. Counsel than observed that the 2004-05 contract was only produced at the hearing before the Adjudication Officer in September 2017. The witness replied that the Complainant had signed that contract and, therefore, clearly knew of its existence.

Counsel referred to the statement in a letter dated 2 November 2017 (i.e. post the Workplace Relations Commission hearing) from Mason Hayes & Curran, acting for the Respondent, to the Complainant’s solicitors to the Complainant having “an expectation of returning to the school each year after summer holidays”. He reminded the witness that Meenan J in the High Court had observed that “an ‘expectation’ of returning to work falls short of a legal entitlement”. The witness replied that the Complainant’s expectation was based on the fact that she had achieved a contract of indefinite duration.

The Complainant’s Submission:

Mr Leonard BL directed the Court to paragraphs 15 to 18 of Meenan J’s judgment (Coyle v The Labour Court and Blackrock College [2020] IEHC 111) wherein the learned judge concluded that the finding made by the Labour Court, when this appeal was first determined by it, that the Complainant was a permanent employee of the Respondent’s was one “which no reasonable decision-making body could make”. Counsel urged this Court to accept that Meenan J’s finding in this regard must stand. He further submitted that the true import of that judgment is that the Complainant’s status has been determined by the High Court to be that of a fixed-term employee within the meaning of the Act and this is a finding which this Court is bound to follow.

Mr Leonard BL proceeded to submit that the only relevant comparator available to the Complainant in advancing her complaint of less favourable treatment contrary to section 6 of the Act was a ‘notional comparator’ i.e. a directly employed teacher with thirty-seven years’ experience working in a well-resourced private school. He then submitted that approach historically taken by the Labour Court in interpreting and applying the Act had been superseded by recent jurisprudence of the High Court and of the Court of Justice of the European Union. He directed the Court to the decision of the High Court (in particular) in Power v Health Service Executive [2021] IEHC 346 (affirmed on appeal to the Supreme Court) and submitted that it was clear from this judgment (and other recent judgments) that there is a duty on the Labour Court to push the legislation to its perimeters by reference to the Framework Directive transposed by the 2003 Act to ensure that the principle of non-discrimination is given its broadest possible application. While acknowledging that Power essentially related to an employee’s entitlement to a contract of indefinite duration when employed on a succession of fixed-term contracts even when that employee is in fact employed on an open-ended basis by the same employer in a different substantive post, Counsel submitted it could be inferred from Simons J’s findings in Power that an employee cannot be given a contract of indefinite duration that would have the effect of locking them into a form of less favourable treatment. He further submitted that the Complainant has been at all times employed on a succession of nine-month contracts which run from September to the following May each academic year and that she does not accept that an underlying contract of indefinite duration has come into being. It was also his submission that the contract issued to her by the Respondent in 2004 – albeit it contained no end date – changed nothing in this regard. He told the Court that had the Complainant entered into a contract of indefinite duration “on less favourable terms” she would thereby have denied herself the opportunity to take various claims under the Act. Counsel next referred the Court to the judgment of the High Court in The Commissioner of An Garda Síochána v Ravinder Singh Oberoi and the Director of the Equality Tribunal [2013] IEHC 267 which he submits is authority for the proposition that there can be no contract of employment without there being mutuality of obligation between the parties to the purported contract.

Counsel’s submission then turned to the less favourable treatment alleged by the Complainant over her thirty-seven years’ service to the Respondent in respect of her level of salary (vis-á-vis that of the ‘notional comparator’ referred to earlier), non-receipt of holiday pay during the summer vacation when she was obliged to sign on for social welfare payments, the unpaid extra-curricular activities she was required to undertake in the form of the Wednesday Art Club outside her core contracted teaching hours and the Respondent’s failure to support her right to develop her professional qualifications with a view to assisting her to become eligible to register with the Teaching Council.

The Respondent’s Submission:

Mr White SC submits that Meenan J did not make a substantive finding that the Complainant’s status is that of a fixed-term worker within the meaning of the Act but made a finding that the Labour Court had erred in determining that she was a permanent employee. It is not the Respondent’s case, he told the Court, that the Complainant is a permanent employee of the Respondent. He directed the Court to paragraph 90 of Simons J’s judgment in Power. That paragraph bears quoting in full here:

• “With respect, the reliance placed by the Labour Court upon the definition of “permanent employee” is entirely misplaced. The scope of the Protection of Employees (Fixed-Term Work) Act 2003 is delimited by the definition of “fixed-term employee”. The term “permanent employee” is defined exclusively by reference to the definition of “fixed- term employee”. A “permanent employee” is defined negatively as an employee who is not a fixed-term employee. The term is defined for the purpose of identifying a comparator for the application of the principle of non-discrimination under sections 5 and 6 of the Act. The term “permanent employee” is thus a term of art, i.e. it bears a specific meaning for the purposes of the Act. This meaning is not the same as its everyday meaning. For example, the statutory definition includes employees in initial vocational training relationships or apprenticeship schemes. These are not categories of workers which would be described colloquially as being permanent employees.”

Mr White SC went on to say that, in his submission, the Complainant – having regard to the application of the Act to the facts of her employment history – is not a fixed-term worker within the meaning of the Act but is, in fact and law, a holder of a contract of indefinite duration by operation of law. It is clear, he submits, from the Act itself and from the passage he quotes from Power that a person cannot be both simultaneously. He also submitted that the passage makes clear that the Respondent’s and the Labour Court’s previous focus on ‘permanency’ was misconceived.

Mr White SC addressed Mr Leonard’s invocation of the ‘notional comparator’ for the purpose of advancing his client’s claims of less favourable treatment and submitted that such a concept is not comprehended by section 5 of the Act .

Counsel then reprised the Complainant’s original claims referred to the Workplace Relations Commission. He observed that she sought then - and is seeking now in this appeal - a contract of indefinite duration pursuant to section 9 of the Act but not before her complaints of alleged less favourable treatment contrary to section 6 have been determined in her favour. In Mr White SC’s submission, while it is open to the Complainant to refer a complaint in relation to section 9 and section 6 of the Act simultaneously, she cannot obtain redress under both sections because if she is a holder of a contract of indefinite duration, by definition, she is no longer a fixed-term employee.

Mr White SC stressed to the Court that the Respondent’s position remains that the Complainant acquired a contract of indefinite duration by operation of law at the commencement of the academic year 2004-05 and she cannot, therefore, obtain redress for any alleged breach of section 6 of the Act. He submitted the Adjudication Officer fell into error in this regard. He further submitted that, if the Respondent was mistaken about this, that the Adjudication Officer had been mistaken in so far as she purported to make an order increasing the Complainant’s annual salary to €49,333.33 (from €37,000.00) as the correct comparator was Mr Wyer whose annual salary in 2017 was €40,000.00. On that basis, Counsel submits that the highwater mark for any award in relation to the section 6 claim is €3,000.00. However, in his submission, the section 6 claim must be deemed to have been made outside the statutory time frame for so doing as it was not referred to the Workplace Relations Commission until 16 January 2017, approximately two and a half years after the Complainant acquired her entitlement to a contract of indefinite duration.

Mr White SC them moved to address the arrangement whereby the Complainant was paid over nine months rather than twelve. In his submission, her annual salary is her annual salary and it is misconceived to suggest she is being treated less favourably by receiving that annual salary in the form of nine and not twelve payments. It is not, therefore, in Counsel’s submission, an instance of less favourable treatment.

With regards to the pensions issue, Counsel referred the Court to Mr MacGinty’s evidence and to the Complainant’s own admission that she was aware of the availability of the scheme to her but had made a decision that her finances did not permit her to avail herself of her right to join it.
Counsel drew the Court’s attention to the wording of section 10(3) of the Act which provides that, “As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.” In Counsel’s submission, the obligation that flows from this subsection is very limited having regard to the words “as far as practicable”.

Counsel next referred to the judgment of Simons J in The Board of Management of Malahide Community School v Conaty [2019] IEHC 486 in which, inter alia, the learned judge considered the pragmatic approach taken by the Courts to the interpretation of section 13 of the Unfair Dismissals Act 1977 which renders void any “provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) … so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act”. Simons J observed that a literal interpretation of this provision would render it impossible for parties to a dispute under the 1977 Act to enter into a compromise agreement in full and final settlement of that dispute and, therefore, the courts have taken the pragmatic approach to regard such settlements as legally binding and enforceable, notwithstanding section 13, where the parties have entered into an agreement on the basis of informed consent and an express understanding of what rights are thereby being compromised. Counsel then referred to section 12 of the 2003 Act which is a very similar provision to section 13 of the 1977 Act. He submits that having regard to section 12 (and applying the reasoning in Conaty) the fixed-term contract of employment (in his submission, mistakenly) issued to the Complainant during the 2005-06 academic year) could not render void the contract of indefinite duration acquired by the Complainant at the commencement of academic year 2004-05 (and confirmed in the written contract furnished to her in or around that time) although she signed the 2005 contract but did not do so consenting to set aside her entitlement to a contract of indefinite duration and with express knowledge of the rights she was purporting to abrogate.

Finally, counsel turned again to the judgment of the High Court in Power. He referred to paragraphs 14 and 15 and submits that, contrary to what was submitted on the Complainant’s behalf, those paragraphs support his case.

The paragraphs opened by Mr White SC read as follows:

• “14. The nature of a “contract of indefinite duration” is not expressly described under the Act.
  Section 9(3) simply provides that any contractual term which purports to contravene the four-year threshold shall have no effect, and the contract concerned shall be deemed to be a contract of indefinite duration. This implies that the terms and conditions of the contract of indefinite duration will be the same as those of the fixed-term contract which it replaces, save for the obvious difference that the offending condition defining the fixed- term of the contract will have been invalidated.
  15. This understanding of the nature of a contract of indefinite duration is consistent with the approach of the Court of Justice. The Fixed-Term Work Directive does not lay down a general obligation on the Member States to provide for the conversion of fixed-term contracts of employment into contracts of indefinite duration. Where, however, a Member State has chosen to do so, then the conversion of fixed-term employment contracts into an employment contract of indefinite duration must not be accompanied by material amendments to the clauses of the previous contract in a way that is, overall, unfavourable to the person concerned when the subject?matter of that person’s tasks and the nature of his functions remain unchanged. (Case C-251/11, Huet at paragraph 46).”

Counsel submitted that the contract issued to the Complainant at the start of the 2004-05 academic year confirming her acquisition of a contract of indefinite duration (by implication if not expressly) made no material amendment to her pre-existing contractual entitlements. He disputed Counsel for the Complainant’s suggestion that that written contract somehow locked an illegality into the terms of the Complainant’s contract of indefinite duration.

Discussion and Decision:

Section 9(1) of the Act provides:

• “9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.”

The Act was signed into law by the President on 14 July 2003. It does not contain a commencement provision and is, therefore, deemed to have been commenced at midnight prior to the President signing it. Section 9(5) provides that “[t]he First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous”. Having regard to the First Schedule to the 1973 Act, there can be no doubt but the Complainant’s service, on a series of fixed-term contracts with the Respondent since 1984, brought her within the parameters of section 9(1), upon the commencement of the Act. It follows, therefore, that the Respondent could only lawfully issue the Complainant thereafter with one further fixed-term contract of employment “for a fixed term of no longer than one year” (unless the Respondent could rely on objective grounds for a further renewal on a fixed-term basis as provided for in section 9(4)).The Respondent did issue the Complainant with a further fixed-term contract after the passing of the Act for the period 1 September 2003 to 4 June 2004. The Complainant continued in the Respondent’s employment after 1 September 2004. Having regard to section 9(1), and in the absence of any invocation by the Respondent of section 9(4), it follows that by operation of law that the Complainant acquired a contract of indefinite duration that took effect on 1 September 2004. It was not necessary for either the Complainant or the Respondent to take any particular action in order for this entitlement on the part of the Complainant to crystallize. As it happens, the Respondent did issue the Complainant with a written contract of employment with a commencement date of 30 August 2004. That contract does not contain an end date (save that it provides for a normal retirement age). It is the Respondent’s position that this written contract was confirmation of its acceptance that the Complainant had, at that time, acquired contract of indefinite duration status by virtue of the operation of the Act. The Complainant seeks to dispute this on two grounds: firstly, the aforementioned contract does not make any reference to the 2003 Act and does not expressly state that it is a contract of indefinite duration; secondly, the Complainant refers to the fact that she received and signed what purported to be a further fixed-term contract during the course of the 2005-06 academic year.

The first objection of the Complainant has been dealt with above when the Court stated that the Complainant acquired a contract of indefinite duration by operation of law with effect from 1 September 2004. Furthermore, in the Court’s judgment, there is nothing in the written contract issued to the Complainant and commencing on 30 September 2004 that is inconsistent with its being a confirmation of her having acquired contract of indefinite duration status.

The second objection raised by the Complainant by reference to the final written contract she received, for the academic year 2005-06, was dealt with extensively in Mr MacGinty’s uncontradicted evidence. It will be recalled that Mr MacGinty explained in some detail that a very significant change occurred in the Respondent college’s management structure in 2005 in that a unitary system of management (where the authority to make all appointments and promotions vested in the President of the college) ended on the appointment of the first Board of Management, chaired by Mr John N Murphy, a retired school principal. Mr MacGinty’s evidence is that the Board and Mr Murphy received legal advice to the effect that all contracts of employment in place with non-departmental teachers should be with the new Board of Management. The Board acted on this advice with some haste and fell into error in so far as it issued what purported to be fixed-term contracts of employment to four or five directly employed teachers, including the Complainant, who had already acquired a contract of indefinite duration by virtue of section 9(1) of the Act.

Mr White SC has very ably and comprehensively addressed the question of what legal effect, if any, the purported fixed-term contract for academic year 2005-06 had on the Complainant’s contract of indefinite duration status. Counsel did so by analogy with Simons J’s reasoning in Conaty. In this Court’s judgment, Mr White’s submission in this regard correctly state the legal position with regard to the Complainant’s contractual status: although she signed the 2005-06 contract, in doing so she cannot be regarded as having consented to waiving her acquired rights under the 2003 nor can she have be regarded as having full knowledge of the rights she was apparently agreeing to waive. It follows, that the Complainant’s status as an employee of the Respondent, engaged by it on a contract of indefinite duration, was not altered in law by the erroneous issuing to her of a purported fixed-term contract in the course of the academic year 2005-06.

As the Complainant acquired a contract of indefinite duration by operation of law with
effect from 1 September 2004, she ceased to be a fixed-term employee of the Respondent as of that date. Section 14 of the 2003 Act, as amended, provides that the procedure for bringing complaints in relation to alleged contraventions of the [2003] Act is now regulated by section 41 of the Workplace Relations Act 2015. Section 41(6) of the 2015 Act provides:

• “(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

Having regard to section 41(6), the latest date on which the Complainant could have brought her complaints alleging breaches of sections 6, 8 and 10 of the 2003 Act was, therefore, 28 February 2005. As stated previously, the Complainant did not refer her complainants under the 2003 Act until 16 January 2017. The Complainant, therefore, appears to have been manifestly out of time in referring her complaints.

For the reasons set out above, the Court finds that the Respondent’s appeal of the Adjudication Officer’s decisions in relation to sections 6, 8, and 9 of the Act succeed.

The decisions of the Adjudication Officer in relation to those sections are, therefore, set aside. For the avoidance of doubt, neither the Respondent nor the Complainant formally appealed the Adjudication Officer’s decision with regard to the Complainant’s complaint under section 10 of the Act. The Court, accordingly, has no jurisdiction with regard to that part of the Adjudication Officer’s decision.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
SL	______________________
15 July 2022	Deputy Chairman