FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : IRISH PRISON SERVICE (REPRESENTED BY CHIEF STATE SOLICITOR) - AND - DONAL MORRIS (REPRESENTED BY FRANCIS WATTERS) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioners Decision No. R-039683-FT-06/JH.
BACKGROUND:
2. The Claimant appealed the Rights Commissioner's Decisions to the Labour Court on the 26th July, 2006, in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on the 17th January, 2007.
The following is the Court's Determination:-
DETERMINATION:
The appellant, who is a Catholic Priest, was, on the nomination of the Bishop of Elphin, appointed by the Minister of Justice, Equality and Law Reform to the position of Prison Chaplain in Castlerea Prison with effect from 1st September 1998.
At this time, there was no agreed terms or conditions of employment for Prison Chaplains. Agreement was finally reached on this matter in 2004. The appellant signed a contract in June 2005, the terms of which were retrospective to July 2002.
Sections 10 & 11 of the appellant’s contract of employment provided for the termination of his employment by the Minister upon revocation of his nomination by the Bishop.
In August of 2005, the Bishop informed the Minister that he was revoking his nomination of the appellant. The appellant was paid 4 weeks’ wages in lieu of notice and his service ended on 30th September 2005.
The appellant made a claim under the Act to a Rights Commissioner alleging that
(a) he was a fixed-term worker for the purpose of the Act and that
(b) his employment was terminated as a result of the occurrence of a specific event, as provided for in the Act.
The Rights Commissioner, in her decision, found, on 19th June 2006, that the appellant was not a fixed-term worker for the purpose of the Act, that the procedure to terminate the employment relationship did not in itself constitute a specific even as set out in the Act. She found that Sections 10 & 11 of the contract of employment set out procedures for the termination of the employment relationship. She also found that these terms were such as might be set out in any contract of employment. They might differ from employment to employment, but the potential to utilise them did not, in her view, constitute a specific event determining the contract for the purpose of the Act.
Having so found, the Rights Commissioner declined jurisdiction.
The worker appealed this decision on the 25th July 2006. A Labour Court hearing was held on 17th January 2007.
Appellant’s Arguments:
1. Both the Rights Commissioner and the EAT (in other procedures) have found that the appellant’s contract of employment was “of a temporary nature”. The purposes of the Act include:-
(a) The prevention of abuse arising from the use of successive fixed-term contracts by regulating the use of fixed term /temporarycontracts. An employer is required to provide information on the purpose and duration of employment when issuing contracts of employment to temporary staff.
(b) Provisions for the maximum duration of successive fixed-term contracts after which they are deemed to be contracts of indefinite duration.
The appellant had been employed for seven years continuously, and for the last four years and nine months of that period, on foot of a temporary contract.
2. In the covering letter which accompanied the appellant’s contract of employment, in March 2003, it is stated that the appellant’s engagement as Prison Chaplin shallinter alia“be terminated on notification from the Bishop of Elphin that he has decided to recall (the appellant) from his appointment”. This is a potential occurrence which is outside the control of both the employer and the employee but “on the occurrence of a specific event” as covered in Section 2 of the Act in the definition of a fixed-term employee as follows: -
- “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event.
This is unaffected by the fact that the date of such “occurrence” is indeterminable.
The provisions were confirmed in Clause 10 of the contract of employment signed by the appellant on 13th June 2005, two years after the Act came into operation and by which time the appellant had six years’ and nine months unbroken service.
4. To uphold the decision of the Rights Commissioner would result in an employment contract consist of 7 years’ temporary service, i.e. 4 years and 9 months before the coming into being of the Act and 2 years and 3 months thereafter, and the appellant being dismissed on the occurrence of a specific event, yet avoiding the provisions of the Act.
Employer’s Arguments:
1. The Decision of the Rights Commissioner that the appellant was not on a fixed-term contract for the purposes of the Act was a correct one for the reasons set out in that decision. The procedure to terminate the employment relationship as set out in the contract and the potential to utilise this did not constitute a “specific event” determining the contract for the purpose of the Act.
2. Without prejudice to the above the appellant is not correct in asserting that he was employed under two successive contracts. He was appointed to the position in Castlerea on 1st September 1998, the terms and conditions of Prison Chaplains was formalised in a written contract of employment, the benefits of which were backdated to July 2005.
3. It follows that the appellant’s claim for a contract of indefinite duration for July 2004 is entirely misconceived with regard to the provisions of the 2003 Act, in particular those of Section 9.
Matters for Consideration:
The first matter for consideration is whether the appellant is a fixed-term employee for the purpose of the Act in that the termination of his employment arose from: “the occurrence of a specific event” in accordance with Sections 2 & 8. The Court must then consider whether paragraphs 10 & 11 of his contract of employment comply with the Act and whether the timeframes provided for in Section 9 of the Act were exceeded.
Findings:
There is no dispute concerning the facts of the case or the dates of service. The differences between the parties concern the applicability of the Act to the facts.
In Section 2 of the Act, a “fixed-term employee” is defined as being “a person having a contract of employment where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event….”.
In this case, in the view of the Court, there was no predetermined final date of service or a time-specific task to be completed. The appellant was a priest who was assigned to the role of Prison Chaplain; that role having ended, he reverted to normal priestly duties. If the revocation of the Bishop’s nomination and the appellant’s recall by the Bishop and his consequent reassignment were to be taken as “the occurrence of a specific event” within the meaning of the Act, then so could the occurrence, for stated reasons, of such as a redundancy situation which is a normal occurrence within employment relationships.
The Court does not therefore take the view that the appellant was a fixed-term employee within the meaning of Section 2 & 8 of the Act. This being so, the other arguments made cannot be entertained as the Court has no jurisdiction in the matter.
The Court upholds the Rights Commissioner’s Decision and dismisses the appeal.
Signed on behalf of the Labour Court
Raymond McGee
2nd March, 2007______________________
JBDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jackie Byrne, Court Secretary.