SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003
GALWAY CITY COUNCIL
- AND -
Chairman: Mr Duffy
Employer Member: Mr Grier
Worker Member: Mr O'Neill
1. Appeal against Rights Commissioner's Decision R-037021-FT-05/JH
2. The Protection of Employees (Fixed-Term Work) Act, 2003, was introduced into Irish Law on the 14th of July, 2003. The Act seeks to improve the conditions of "Fixed-Term" employment by prohibiting less favourable treatment of fixed term workers than comparable permanent workers.
- The Claimant was employed by Galway City Council as a General Operative on a number of Fixed-term Contracts from May ,2001, to July, 2005, and contends that the Council was in breach of The Protection of Employees (Fixed-Term Work) Act, 2003, under several provisions of the Act, in relation to his employment.
The Council's position is that all contracts issued to the Claimant specified that the contract of employment was of a temporary nature. The Council advertised for permanent General Operatives and the Claimant having applied and being interviewed was placed on a panel. The Claimant's employment cannot be considered as being continuous since 2001 and therefore no breach of Section 9 of the Fixed-Term Act has occurred. The Council raised a preliminary issue relating to the Claimant seeking relief in relation to termination of his employment both under the Unfair Dismissals Acts 1977-2001, and the Protection of Employees (Fixed-Term Work) Act, 2003.
The matter was referred to a Rights Commissioner for investigation. Her decision issued on the 15th March, 2006, as follows:
“No evidence was presented to substantiate any complaint under the Fixed-Term Work Act. The claimant established no right to contract of indefinite duration by reference to Section 9 of the Act. In so far as Mr. Mackeys employment was terminated, as there is no evidence to support a complaint that there is a breach of Section 13 of the Act, the matter of dismissal falls to be addressed under the Unfair Dismissals Acts. There is no valid complaint under the Fixed-Term Act..”
On the 11th April, 2006, the Worker appealed the Rights Commissioner’s Decision to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on the 7th June, 2006.
The Claimant had taken proceedings Under the Unfair Dismissals Acts 1977 – 2001 in respect of the non-renewal of his fixed-term contract with the Respondent. This claim was considered by a Rights Commissioner who held that the Claimant had not been unfairly dismissed. The Claimant also claimed, inter alia, that the termination of his employment with the Respondent constituted victimisation within the meaning of Section 13(1)(d) of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). This claim was also dismissed by the Rights Commissioner.
By way of a preliminary issue the Respondent submitted that the Claimant is estopped from now pursuing his claim under the Act by virtue of Section 18(1) which provides as follows: -
- 18.—(1) If penalisation of an employee, in contravention ofsection 13(1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under Part 3 and under those Acts.
In the Court’s view this submission is misconceived. Section 18(1) provides in plane language that a party may not obtain double relief under the two statutes mentioned. It does not mean that a party who takes an unsuccessful claim under one of the Acts referred to cannot then proceed to seek relief under the other Act. In this case the Claimant was unsuccessful in his claim under the Unfair Dismissals Acts 1977 – 2001 and was not granted relief under that Act. On the plain and ordinary meaning of the words used in the Section there is nothing to prevent him from now seeking relief under the Protection of Employees (Fixed-Term Work) Act 2003.
The Substantive Issues.
In this case the Claimant is appealing the decision of the Rights Commissioner in his claim under the Act. The Claimant was represented by a relative before the Court. The Court is satisfied that neither the Claimant or his representative could reasonably be expected to fully deal with the technical detail of the legislative provisions pertaining to the appeal. Neither could he be expected to particularise his claim by reference to the various statutory provisions applicable. In these circumstances the Court considered it incumbent upon it to assist the Claimant in the presentation of his case and in addressing the arguments advanced by the Respondent’s professional representative. In particular the Court took the view that where it identified a possible infringement of the Act, which was not expressly raised by the Claimant, it should be pursued the matter on its own motion.
The Substantive Issues
The Claimant was employed on a succession of fixed-term contracts as follows:-
18th May 2001 – 13th December 2001.
October 2001 - 11th April 2002
11th April 2002 - 16th May 2002
14th May 2002 - 25th July 2002
8th August 2002 - 20th September 2002
8th July 2003 -26th September 2003
27th September 2003 -1st July 2005.
Section 9 – Entitlement to a Contract of Indefinite Duration
It is noted that the Claimant’s continuous period of employment on fixed-term contracts was from July 2003 until 1st July 2005. This employment history did not contravene Section 9 of the Act. Consequently the Claimant cannot rely on Section 9(3) for the purpose of asserting an entitlement to a contract of indefinite duration.
Section 13 – Penalisation
The final fixed-term contract issued to the Claimant was for the express purpose of providing cover for a colleague who was on sick leave. The contract expired when its purpose was fulfilled on the return to work of that colleague in July 2005. Hence the termination of the Claimant’s employment was unconnected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under Section 9(3). Accordingly there was no contravention of Section 13 of the Act.
Section 8 – Right to Information
A Managers Order was made approving the extension of the Claimant’s fixed-term contract with effect from 27th September 2003. This Order set out the objective grounds justifying the said extension in accordance with Section 8(2) of the Act. However it came to the Court’s attention that this Order was dated 20th October 2003. it further appeared that this notice was served on the Claimant on or after that date.
Section 8(2) of the Act provides as follows:
- Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.
On being asked by the Court to explain this apparent contravention of the Act the Respondent produced a copy of a letter dated 1st October 2003, addressed to the Claimant, in which the basis for the renewal of his contract was set out. The Claimant had no recollection of having received this letter and the Respondent was unable to provide evidence that it was ever sent.
In these circumstances the Court has concluded that the Respondent contravened Section 8(2) of the Act by not furnishing the Claimant with a statement in writing of the objective grounds justifying the renewal of his fixed-term contract on 27th September 2003 and the failure to offer him a contract of indefinite duration, at the latest by the date of the renewal.
The Court accepts that the contravention which occurred in this case was technical and was due to inadvertence on the part of the Respondent. Nevertheless Section 8(2) is a mandatory provision admitting of no exceptions. What is clearly obligated is that the required notice be served before the renewal of the contract. That did not happen in this case and this omission can neither be overlooked nor excused by the Court.
The Court further accepts that the Claimant suffered no loss in consequence of the late service of the statement. The Court determines that the appropriate redress is an award of compensation in an amount equal to one weeks pay at the rate applicable to the Claimant at the date the contravention occurred. The Respondent is directed to pay the Claimant compensation in that amount.
With this modification the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
22nd June, 2006______________________
Enquiries concerning this Determination should be addressed to Joanne O'Connor, Court Secretary.