FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DEPARTMENT OF FOREIGN AFFAIRS (REPRESENTED BY THE CHIEF STATE SOLICITOR) - AND - GROUP OF WORKERS (REPRESENTED BY CPSU) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. �ppeal against Rights Commissioners Decision R-035256-FT-05/JH.
BACKGROUND:
2. The Claimants are employed as Temporary Clerical Officers with the Department of Foreign Affairs (the Respondent). They are member of the Civil and Public Service Union (the Union), which has represented them in processing these claims. At all times material to their claims they were assigned to the Passport Office. Each of the Claimants was recruited through public competition and placed on a panel from which temporary positions were filled. When work became available the Claimants were contacted by the Respondent and offered fixed-term employments for the period in respect of which their services were required. These contracts were often extended. When the contract expired the Claimants remained on the panel and were recalled as more work became available. Temporary Clerical Officers were let go as the work requirement diminished on a last-in-first-out basis. Recall was on the basis of seniority. The Claimants herein are amongst the 15 most senior Dublin-based Temporary Clerical Officers. The Claimants periods of service are set out in the annex to this Determination.
Each of the Claimants claims that they became entitled to a contract of indefinite duration by operation of s9 of the Protection of Employees (Part-Time) Work Act 2003 (the Act). They further claim that they were afforded less favourable conditions of employment than comparable permanent employees, in contravention of s6 of the Act, in not being paid over the Christmas period in 2004 /2005.
The claims were presented to a Rights Commissioner pursuant to s14 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Rights Commissioner found that the complaints were well founded and awarded redress by way of a declaration that each of the Claimants was entitled to a contract of indefinite duration in accordance with s9 of the Act with effect from 1st January 2006. The Rights Commissioner also awarded each of the Claimants compensation in the amount of €500 for the infringement of s6 of the Act which she found to have occurred. The Respondent appealed the Rights Commissioner's Decisionto the Labour Court on the 18th May, 2006. A Labour Court hearing took place on the 29th November, 2006.
DETERMINATION:
For ease of reference the parties are referred to in this determination using the same description which they had had first instance. Thus the Department of Foreign Affairs is referred to as the Respondent and the Claimants are referred to as such.
Position of the Parties.
The Respondents case
The Respondent contended that the continuity of the Claimant’s employment was broken each time their fixed-term contract expired. It was pointed out that in every case the ending of one contract and the commencement of another was separated in time by a number of weeks or months. Thus, it was argued, none of the Claimants had completed his or her third year of continuous employment with the Respondent, which is the condition precedent to the operation of Section 9(1) of the Act. The Respondent further submitted that the Rights Commissioner had no warrant or authority for treating the periods between the ending of one fixed-term contract and the commencement of another as a period of lay-off.
Without prejudice to that contention the Respondent claimed that there were objective grounds justifying the impugned renewals of the Claimant’s fixed-term contracts. In that regard the Respondent told the Court that the Claimants were employed to meet the temporary and seasonal needs of the Passport Office which experiences heavy demand at particular times during the year. The Respondent also told the Court that the contracts issued to each of the Claimants in January 2005 were in respect of temporary work involving the introduction of a new automated passport system and the then proposed decentralisation of parts of the Office to Balbriggan, Co Dublin.
The Respondent submitted that in their original complaint to the Rights Commissioner the Claimants claimed compensation in respect of an alleged contravention of s6 of the Act arising from “lay-offs” in the Christmas period 2003. The claim was presented to the Rights Commissioner in July 2005. Consequently, the Respondent contends, this complaint was submitted outside the time limit prescribed by s14 of the Act and was statute barred. The Respondent pointed out that the Rights Commissioner made an award in respect of the Christmas period 2004. It was contended that any alleged contraventions of the Act in respect of that period were not comprehended by the claim submitted on behalf of the Claimants.
Without prejudice to its arguments in that regard the Respondent submitted that the Claimants were not employed in the period in respect of which they are seeking payment. It was pointed out that their fixed-term contracts had expired in each case on 17th December 2004 and the Claimants did not resume their employment with the Respondent until 4th January 2005. The Respondent submitted that the Claimants could not sustain a claim for payment of wages for a period during which they were not employed.
Claimants’ Case
The Union submitted that each of the Claimants had been employed on a succession of fixed-term contracts since 2001. It was pointed out that the first, second third and fifth-named Claimants had (at the time of the hearing before the Rights Commissioner) been employed on 13 separate fixed-term contracts. The forth-named Claimant had been employed on 11 such contracts. The Claimants support the Rights Commissioner’s conclusion that the periods between the expiry of one contract and the conclusion of another were periods of lay-off which did not break the continuity of their employment.
The Union further contended that it is evident from the aggregate duration of the Claimants’ employment that the purpose for which they were employed corresponds to a permanent as opposed to temporary need of the Respondent. In these circumstances the Union submitted that the Claimants became entitled to a contract of indefinite duration pursuant to s9 of the Act when they received a second fixed-term contract (with effect from various dates in January 2006) having completed their third year of continuous employment (in March 2004 in the case of the first, second, third and fifth named complainant and June 2004 in the case of the forth named complainant). The Union further submitted that that there were no objective grounds justifying the further renewal of the Claimants’ employment for a fixed term.
The Union also contended that the Respondent terminated the Claimants’ employment at the end of each contract for a purpose connected with the avoidance of their fixed-term contracts being deemed to be contracts of indefinite duration under s9(3) of the Act.
In respect of its claim alleging a contravention of s6 of the Act, the Union contended that by being laid-off without pay over the Christmas period the Claimants were treated less favourably than comparable permanent employees who were paid over that period.
Statutory Provision
It is clear from its long title that the Act was enacted to transpose into Irish law Council Directive 1999/70/EC of 28th June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP.
The purpose of the framework agreement is set out at clause 1 thereof as follows: -
- “The purpose of the framework agreement is to:
- (a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;
(b) establish a framework to prevent the abuse arising from the use of successive fixed-term employment contracts or relationships.
- Principle of non-discrimination (clause 4)
1. In respect of employment conditions, fixed-term workers shall not be treated in a less favourable manner than comparable permanent workers solely because they have a fixed-term contract or relation unless different treatment is justified on objective grounds.
2. Where appropriate, the principle of pro rata temporis shall apply.
- 3. The arrangements for the application of this clause shall be defined by the Member States after consultation with the social partners and/or the social partners, having regard to Community law and national law, collective agreements and practice.
4. Period-of service qualifications relating to particular conditions of employment shall be the same for fixed-term workers as for permanent workers except where different length-of service qualifications are justified on objective grounds.
- Principle of non-discrimination (clause 4)
- Measures to prevent abuse (clause 5)
- 1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
- (a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships.
- (a) objective reasons justifying the renewal of such contracts or relationships;
(b) shall be deemed to be contracts or relationships of indefinite duration.
Clause 4 of the Framework Agreement was given effect in domestic law by s6 of the Act, which provides, in relevant part, as follows: -
- 6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.
(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
Clause 5 of the Framework Agreement was given effect by s9 of the Act as follows:-
- 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.
(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.
(5) The 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.
In dealing first with the Claimants’ contention that they are entitled to a contract of indefinite duration, it is necessary to consider if their employment record brings them within the ambit of s 9(1) of the Act (it being clear that their first contract was prior to the passing of the Act and so s9(2) can have no application). In order to avail of s 9(1) a fixed-term employee must first have completed his or her third year of continuous employment. The contract can then be renewed once only and for a period of not more than one year. If a fixed-term contract is renewed in contravention of this provision the term in the renewed contract which provides for its termination by effluxion of time is voidab initioand is severed by operation of law. The contract is thus converted to one of indefinite duration (seeMcArdle v State Laboratory(FTD063))
Each of the Claimants first entered into a fixed-term employment relationship with the Respondent in either March or June 2001. They entered further fixed-term contracts in each subsequent year. In March / June 2004 the Claimants had completed their third year of successive employment. They were then given a further contract for a period of less than one year. Following the expiry of that contract they were given a contract which commenced on 9th January 2006 and was expressed to conclude on 15th December 2006. Thus, if s9(1) applies in this case the fixed-term contracts under which the Claimants were re-employed in January 2006 were in contravention of that subsection with the result that they became contracts of indefinite duration by operation of law. Counsel for the Respondent submitted that this provision cannot avail the Claimants. This, he said, was because the plain language of s9(1) confines its application to situations in which a fixed-term employee has completed his or her third year ofcontinuousemployment whereas the Claimants’ employment was intermittent.
On that point there appears, at first sight, to be a conflict between s 9 of the Act and Clause 5 of the Framework Agreement. This arises from the fact that Clause 5 of the Framework Agreement applies to fixed-term contracts which are successive thus giving it a considerably wider scope than if its application was confined to employment relationships which were continuous. It seems to the Court that there is a significant qualitative difference between the concept of a continuous employment relationship and one which is successive. The former connotes an employment relationship without interruption whereas the latter indicates a series of relationships which follow each other but can be separated in time.
It will be noted that clause 5.2(a) of the Framework Agreement permits Member States to define,inter alia,the conditions under which fixed-term contracts will be regarded as successive. This provision, however, could hardly authorise a Member States to define the concept of successive employment as meaning something which is qualitatively different and narrower in scope than that term would normally bear.
While the expression “successive” is not defined in the Framework Agreement, s9(5) of the Act provides that the first schedule of the Minimum Notice and terms of Employment Act 1973 should apply for the purpose of determining if employment is continuous. This provides as follows: -
- 1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—
( a ) the dismissal of the employee by his employer or
( b ) the employee voluntarily leaving his employment.
- 2. A lock-out shall not amount to a dismissal of the employee by his employer.
3. A lay-off shall not amount to the termination by an employer of his employee's service.
4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.
5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.
6. The continuous of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.
7. If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.
- 1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—
It was submitted on behalf of the Respondent, in reliance on paragraph 1(a) of the First Schedule, that when each of the Claimants’ fixed-term contracts came to an end they were dismissed thus breaking the continuity of their service. The Court was told that on each such occasion they were given their P45 and they had no further contractual nexus with the Respondent until their next contract commenced. It was further submitted that the only circumstance in which broken service can be regarded as continuous is that provided for at paragraph 6 of the First Schedule, namely where a dismissal is followed by immediate re-employment.
On that point Counsel properly referred the Court to the jurisprudence of the Employment Appeals Tribunal on the interpretation of paragraph 6. It was pointed out that in a number of cases it was held that the expression should not be interpreted literally and that short periods between contracts could be regarded as sufficiently immediate so as to come within the ambit of that paragraph (see most recentlyKenny v Tegral Building Products Limited[2006] E.L.R. 309). Counsel, however, submitted that the Tribunal were in error in so finding and that, as a matter of domestic law, the word immediate must be given its ordinary literal meaning which is “without pause or delay”. The Respondent thus contended that as a matter of domestic law any break in service, no matter how short, would break continuity of employment for the purposes of applying s9 of the Act.
The degree of latitude afforded to Member States in defining the circumstances in which fixed-term contracts may be regarded as successive was recently considered by the Court of Justice of the European Community inAdeneler and Others v Ellinikos Organismos Galaktos[2006] IRLR 716. Here the Court was asked in an Article 234 reference,if a requirement of Greek law which confined the concept of successive employment relationships to ones which were not separated by more than 20 days was compatible with the Framework Agreement. In her opinion delivered on 27 October 2005, Advocate General Kokott had this to say of the requirement at issue: -
- 64. The concept of succession is one of the main legal concepts in the Framework Agreement. Of course, the Framework Agreement and, by extension, Directive 1999/70 are not intended primarily to obstruct the conclusion of individual fixed-term employment relationships; on the contrary, they are focused above all on the possibilities for pursuing abusive practices by concluding such contracts in succession (successive employment relationships), as well as on improving the quality of such fixed-term employment relationships. In particular where a number of fixed-term employment relationships have been concluded in succession , there is a danger that the employment relationship of indefinite duration, the employment relationship model defined by management and labour, will be circumvented, thus giving rise to the problem of abuse. That is why Clause 5(1) of the Framework Agreement expressly requires that measures be
introduced to prevent abuse arising from the use of successive fixed-term employment relationships.- 65. However, the Framework Agreement does not itself contain a definition of the term successive and instead leaves its detailed definition to the Member States. In that context, Clause 5(2)(a) of the Framework Agreement even leaves it to them to decide whether actually to proceed at all with a definition in that regard, where it provides that Member States ... shall, where appropriate , determine under what conditions fixed-term employment contracts or relationships ... shall be regarded as successive...'. However, if a Member State decides to proceed with such a definition, it does not enjoy complete discretion; on the contrary, it is bound by the result to be achieved by the directive and Framework Agreement pursuant to the third paragraph of Article 249 EC, as recital 17 in the preamble to Directive 1999/70 also expressly makes clear.
66. As the Commission rightly points out, Clause 5(2)(a) of the Framework Agreement must therefore be interpreted in the light of the objective of the directive, which is actually to prevent abuse. Under Clause 5(1) of the Framework Agreement, Member States are not simply requested but are expressly obliged to adopt measures for that purpose.
67. Defining the concept of succession so restrictively that it cannot even apply to a substantial proportion of the cases of successive fixed-term employment relationships and so that the definition chosen is without any effect is incompatible with that objective. In so doing, the cases concerned would effectively fall outside the scope of the national measures affording protection against abuse of fixed-term employment relationships, and the protection afforded to workers - the objective pursued by the directive - could not take effect.
- 65. However, the Framework Agreement does not itself contain a definition of the term successive and instead leaves its detailed definition to the Member States. In that context, Clause 5(2)(a) of the Framework Agreement even leaves it to them to decide whether actually to proceed at all with a definition in that regard, where it provides that Member States ... shall, where appropriate , determine under what conditions fixed-term employment contracts or relationships ... shall be regarded as successive...'. However, if a Member State decides to proceed with such a definition, it does not enjoy complete discretion; on the contrary, it is bound by the result to be achieved by the directive and Framework Agreement pursuant to the third paragraph of Article 249 EC, as recital 17 in the preamble to Directive 1999/70 also expressly makes clear.
In adopting the approach of the Advocate General on this point the Court of Justice had this to say: -
- 81. As to the remainder, clause 5(2) in principle leaves it to the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded, first, as successive and, second, as contracts or relationships of indefinite duration.
82. While such a reference back to national authorities for the purpose of establishing the specific rules for application of the terms successive and of indefinite duration within the meaning of the Framework Agreement may be explained by the concern to preserve the diversity of the relevant national rules, it is, however, to be remembered that the margin of appreciation thereby left for the Member States is not unlimited, because it cannot in any event go so far as to compromise the objective or the practical effect of the Framework Agreement (see paragraph 68 of this judgment). In particular, this discretion must not be exercised by national authorities in such a way as to lead to a situation liable to give rise to abuse and thus to thwart that objective.
83. Such an interpretation is especially vital in the case of a key concept, like the concept of successive employment relationships, which is decisive for definition of the very scope of the national provisions intended to implement the Framework Agreement.
84. It is clear that a national provision under which only fixed-term contracts that are separated by a period of time shorter than or equal to 20 working days are regarded as successive must be considered to be such as to compromise the object, the aim and the practical effect of the Framework Agreement.
85. As observed by the referring court and the Commission, and by the Advocate General in points 67 to 69 of her Opinion, so inflexible and restrictive a definition of when a number of subsequent employment contracts are successive would allow insecure employment of a worker for years since, in practice, the worker would as often as not have no choice but to accept breaks in the order of 20 working days in the course of a series of contracts with his employer.
86. Furthermore, a national rule of the type at issue in the main proceedings could well have the effect not only of in fact excluding a large number of fixed-term employment relationships from the benefit of the protection of workers sought by Directive 1999/70 and the Framework Agreement, largely negating the objective pursued by them, but also of permitting the misuse of such relationships by employers.
- 81. As to the remainder, clause 5(2) in principle leaves it to the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded, first, as successive and, second, as contracts or relationships of indefinite duration.
In addressing this apparent emphatic rejection by the Court of Justice of a narrow definition of the concept of succession, Counsel for the Respondent submitted that the rationale for the decision was that the “object, aim and the practical effect” of the Framework Agreement was to prevent abuse of fixed-term contracts arising from their successive use. Counsel submitted that in the context of Irish law this concern could be addressed by s3 of the Unfair Dismissals (Amendment) Act 1993 amending s2(2)(b) of the Unfair Dismissals Act 1977. This, it was submitted, allows for the examination of any second or subsequent fixed-term contract to ascertain whether the fixed-term nature of the contract was wholly or partly for or connected with the avoidance of liability under the legislation.
The Court cannot accept that submission. Firstly at the material time the Claimants, as Civil Servants, were excluded from the scope of the Unfair Dismissals Acts 1997 –2001 and the provisions of that Act could have no relevance in the instant case. Secondly, the provision of the Unfair Dismissals Acts 1977-2001 in question applies where the dismissal at issue comprises of the expiry of a fixed-term contract without it being renewed. In such circumstances the effect of the amending provision of the 1993 Act is to allow, in the circumstances prescribed by the amendment, service under prior fixed-term contracts to be reckoned for the purpose of meeting the service qualification under that Act. In practical terms it could not be of utility in preventing the continual rollover of fixed-term contracts or allow for their ultimate conversion into contracts of indefinite duration. Accordingly, s2(2)(b) of the Unfair Dismissals Act 1997-2001 is not a relevant consideration in this case.
It is well settled that where there is a conflict between a provision of domestic law and Community law, Community law must prevail.This requires national courts and tribunals to interpret their domestic law, as far as possible, in light of the wording and purpose of a Directive so as to achieve the result envisaged by the latter ( seeVon Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1894,Marleasing S.A. v La Commercial Internacional de Malimentacion S.A[1990] ECR 4135, and more recentlyMangold v Helm[2006] IRLR 143). Moreover, where a provision of domestic law impedes the application of Community law national courts must, of their own motion, refuse to apply the conflicting provision so as to allow Community law to have full effect (Amministrazione delle Finanze dello Stato v SimmenthalECR 629)
If the Respondent’s submissions are correct s9 of the Act only applies to continuous employment relationships and successive relationships, which are separated in time no matter how short, are excluded. If that is a correct statement of the law, in light of the decision inAdeneler and Others v Ellinikos Organismos Galaktos,the conclusion that the Framework Agreement has not been properly transposed in domestic law is inescapable. In that eventuality the Court could not apply s 9 of the Act in a way which would defeat the result envisaged by Clause 5 of the Framework Agreement.
Lay-Off
In her Decision the Rights Commissioner overcame this apparent conflict by holding that the periods separating the Claimants’ contracts were to be regarded as periods of lay-off. On that basis the Rights Commissioner held that, having regard to paragraph 3 of the First Schedule, the continuity of the Claimants employment was not broken. The Respondent contended that the Rights Commissioner had no statutory warrant for this conclusion since the employment relationship had been brought to an end on the termination of each contract.
Section 1 of the Minimum Notice and Terms of Employment Act 1973 provides that “lay-off” is to have the same meaning as it has in the Redundancy Payments Act 1967. Section 11(1) of that Act defines the term as follows: -
- 11. - (1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—
- ( a ) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
( b ) the employer gives notice to that effect to the employee prior to the cessation,
that cessation of employment shall be regarded for the purposes of this Act as lay-off.
- ( a ) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
It this case the Respondent accepts that on each occasion on which the Claimants’ contracts terminated it was reasonable in the circumstances for it to believe that the cessation of the employment would not be permanent. It was also the belief of the Claimants that they would be re-employed. The Claimants remained on the panel for temporary work and were recalled on the basis of their seniority as work became available. The Respondent submitted, however, that while the condition at paragraph (a) of s11(1) was fulfilled in respect of each break in service the Claimants were never given notice to that effect by the Respondent.
It appears clear that the requirement to give notice of lay-off, in the context of the Redundancy Payments Acts 1967 – 2003, is intended to be in ease of employees so as to ensure that they have some security in knowing that there is a prospect of their employment resuming. The existence of a reasonable belief to that effect is an essential element of a lay-off (Irish Leather Limited v Minister for Labour and James Foley[1986] IR 177). It seems to the Court that where such a reasonable belief existed, but the employees were not given notice to that effect, the employer could not subsequently claim an advantage from its default so as to defeat a claim by an employee to an entitlement of the type contended for in this case. In that regard it would appear that the requirement to give notice would have to be regarded as directory in nature rather than mandatory.
Moreover, the law has always recognised that notice for some legal purposes can be constructive or imputed. In the circumstances of the instant case where by agreement between the Respondent and the Claimants’ Union they would be recalled for further work; where it was generally known and understood that the cessation in their employment was unlikely to be permanent and where they were in fact recalled, it would be unreal to hold that the Claimants’ were not on notice to that effect.
On the facts of the case the Court is satisfied that the Rights Commissioner was correct in holding that the periods between the Claimants’ successive fixed-term contracts can properly be classified as periods of lay-off. Consequently she was correct in holding that the full period covered by these contracts was one of continuous employment within the meaning of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 and for the purpose of s 9 of the Act of 2003. The Court is reinforced in its view that this is a correct application of the law to the facts of this case as it produces a result which is in harmony with the object pursued by clause 5 of the Framework Agreement, as interpreted inAdeneler.
Objective Grounds
The Respondent contended that even if the Claimants had a prima facie entitlement to a contract of indefinite duration, there were objective grounds for the continuing renewal of their contracts. In effect the Respondent argued that the Claimants were recruited to meet seasonal and fluctuating needs. It also pointed out that on the renewal of their fixed-term contracts in 2005 reliance was placed on the exceptional demands which would arise from the introduction of an automated passport system (APS) and the proposed transfer of parts of the Passport Office to Balbriggan Co Dublin. It was intimated that this work would be undertaken in late 2004 and early 2005.
Section 7(1) of the Act defines the ambit of what can be regarded as objective grounds for the purposes of the Act. That definition is identical in terms to that of objective justification contained at Section 22(1)(a) of the Employment Equality Acts 1998 and 2004. This, in turn, is derived from the jurisprudential criteria established by the ECJ against which indirect discrimination may be justified. This approach was first applied in the case of gender discrimination inBilka-Kaulhaus GmbH v Karin Weber von Hartz[1986] ECR 1607
In that case the Court set out a three-tiered test by which an indirectly discriminatory measure may be justified. It said that the measure must firstly meet a “real need” of the employer; secondly the measure must be “appropriate” to meet the objective which it pursues and finally the measure must be “necessary” to achieve that objective.
In essence the case law of the ECJ equates reliance on objective justification of an otherwise prohibited practice with a derogation from the requirement to fulfil an obligation under Community law. InLommers v Minister van Landbouw, Natuurbeheer en VisseriILRM 430 the ECJ pointed out that: -
“ [A]ccording to settled case-law, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23).
- “Respond to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose”
- “Respond to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose”
As was pointed out by the Rights Commissioner, the Claimant are long-term temporary employees of the Respondent. It is evident from the records seen by the Court that their services have been required for the greater portion of recent years and for practically all of the most recent years. Further, while their contracts for 2005 referred specifically to exceptional work which was to be undertaken at the end of 2004 and at the end of 2005, the Claimants were fully employed in that period both before and after this work was to be undertaken.
The Claimants are Clerical Officers of the Respondent and are performing key functions appropriate to that grade. It is clear to the Court that the work for which they were employed corresponds to a continuing need of the Respondent. The Court has not been convinced, on the standard indicated by the authorities, that continuing to employ the Claimants on fixed-term contracts is appropriate and necessary in order to fulfil the needs relied upon by the Respondent. Accordingly the Court must hold that the Respondent has not established that there are objective grounds justifying the continuing renewal of the Claimants’ contracts for a fixed-term.
The Court is therefore satisfied that the Rights Commissioner was correct in holding that the Claimants herein became entitled to contracts of indefinite duration from the date specified in her decision.
Claim in Respect of Christmas 2004.
The Respondent submitted that in its original complaint the Union claimed payments arising from “lay-offs” in 2003. The Respondent submitted that at the time of its presentation the claim was outside the time limit prescribed by s14 of the Act. It is apparent from the Decision of the Rights Commissioner that the claim presented to her on this point was in respect of lay-offs commencing in 2003. It therefore encompassed lay-offs in December 2003 and in 2004. The Rights Commissioner dealt only with the claim as it related to 2004 and it is therefore clear that she accepted that the claim in respect of 2003 was out of time.
Respondents Position
The Respondent submitted that the Claimants’ contracts had come to an end on 17th December 2004 and they ceased to be employed by the Respondent thereafter until they resumed employment on 4th January 2005. It was contended that the Respondent could have no liability for paying the Claimants in respect of a period during which it did not employ them. Moreover, the Respondent relied upon the decision of this Court inHealth Service Executive v Prasad(FTD062) as authority for the proposition that fixed-term employees does not have a cause of action arising from the non-renewal of their fixed-term contract.
Claimants Position.
The Union submitted that the Claimants were subjected to less favourable treatment than comparable permanent employees in being laid-off over the Christmas period. It was pointed out that the Claimants’ contracts came to an end on 17th December 2004 and that on 22nd December 2004 they were each offered a further fixed-term contract commencing on 4th January 2005. They were not paid in respect of the intervening period. The Union contended that this constituted less favourable treatment of the Claimants since no comparable permanent employee had been left without pay over the Christmas period.
Conclusions of the Court
This aspect of the claim relates, in effect, to the Respondent’s failure to pay the Claimants in respect of the period between 18th December 2004 and 3rd January 2005 inclusive. Issues have been raised in this case as to the entitlement of an employer to lay-off a fixed-term employee without pay in circumstance in which a comparable permanent employee could not have been similarly laid-off. However, given the attitude which the Court has taken to this aspect of the case it is unnecessary to express a concluded view on this point. Further, the Court does not consider that the decision inHealth Service Executive v Prasadis relevant in this case. InPrasadthe Claimant sought redress for the Respondent’s failure to renew his fixed-term contract in circumstances in which there was a continuing need for the services which he provided. In the instant case the Claimants’ contracts were renewed. What is at issue is whether they are entitled to payment for the short period between the ending of one contract and the commencement of another. That question did not arise for consideration inPrasad.
The facts of this aspect of the case are instructive. The Claimants were employed up to 17th December when their contracts expired. There was still work for them to do and this is evident from the fact that on 22nd December 2004 their contracts were effectively renewed. However, these contracts stipulated that they would resume work on 4th January 2005 (the first day on which the office opened in the new-year). There is no doubt that the level of work undertaken by all staff over the Christmas season would have been considerably less than at other times of the year. Moreover, the office was closed for either public holidays or privileged days over much of that period. The essence of the Claimants’ complaint is that all comparable permanent employees received their full pay over this period whereas they did not.
It will be noted that a lay-off arises where an employer is unable to provide the employees with the work which the employee was employed to do. The Court cannot accept that the Claimants could not have been engaged in work to the same degree as others over the relevant period. In that regard it is significant that the Claimants’ contracts were renewed on 22nd December 2004. The only practical consequence of deferring their re-commencement date was that they were taken off the pay-roll over the Christmas period.
Section 6 of the Act provides, in effect, that fixed-term employees shall not be treated less favourably than comparable permanent employees in respect of conditions of employment. Conditions of Employment are defined as including conditions relating to remuneration and matters related thereto. Taking an employee off the payroll is clearly a matter related to remuneration. It is therefore treatment in respect of a condition of employment coming within the ambit of s6 of the Act. No comparable permanent employees were taken of the payroll over this period. It follows that the Claimants were treated less-favourably than comparable permanent employees contrary to s6 of the Act. The Court can see no objective ground upon which this less favourable treatment could be justified. Accordingly the Claimants are entitled to succeed. The Court is further satisfied that the award made by the Rights Commissioner in respect of this aspect of the case is proportionate and appropriate.
Determination.
The Decision of the Rights Commissioner is affirmed and the appeal herein is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
17th_January, 2007______________________
JBChairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.