INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003
NATIONAL UNIVERSITY OF IRELAND, GALWAY
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)
Chairman: Ms Jenkinson
Employer Member: Mr Doherty
Worker Member: Mr O'Neill
1. Double Appeal of Rights Commissioner Decision r-047573-ft-07-MH
2. This is a double appeal of Rights Commissioner Decision r-047573-ft-07-MH, submitted in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. The following is the Determination of the Court:
The case before the Court is an appeal by both sides against the Decision of a Rights Commissioner.
Mr. Kieran O’Toole has appealed against the Rights Commissioner’s Decision which found that his claims under Sections 8, 9, 11 and 13 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) were not well founded.
National University of Ireland Galway has appealed against the Rights Commissioner’s Decision which found that his claim under Section 6 was well founded and awarded him the sum of €1,000.00.
For ease of reference the parties are referred to in this Determination using the same description as they had at first instance. Hence Mr. Kieran O’Toole is referred to as “the Complainant” and National University of Ireland Galway is referred to as “the Respondent”.
At the Rights Commissioner hearing the Complainant claimed that the Respondent failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract pursuant to Section 9 of the Act. Furthermore, he claimed that his dismissal on 27th November 2006 was contrary to Section 13(d) of the Act as it was for the purpose of avoiding a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Act. He claimed that the Respondent’s failure to state the objective grounds for renewing his contracts was a breach of Section 8 of the Act. He submitted that the Respondent was in breach of Section 6 of the Act in that he was treated less favourably than a comparable permanent worker when his title/status of “Lecturer Fixed-Term” was reduced to that of “Teacher Fixed-Term”; by the Respondent’s failure to pay him during the summer month and by not providing a pension for him.
Finally, the Complainant claimed that the Respondent was in breach of Section 10 of the Act in not informing him of vacancies which became available to ensure that he had the same opportunity to secure a permanent position as other employees. At the appeal hearing the Complainant’s representative told the Court that the claim under Section 10 was not being pursued.
The Complainant’s employment history in the Department of Industrial Engineering of the National University of Ireland, Galway is as follows: -
4 hours per week 11th Sept 2002 – November 2002*
Fixed Term Lecturer 11th Aug 2003 – 10th Jan 2004
Fixed Term Lecturer 11th Jan 2004–30th April 2004
Fixed Term Lecturer 1st May 2004 – 30th June 2004
Fixed Term Lecturer 1st Sept 2004 – 31st Dec 2004
Fixed Term Lecturer 1st Jan 2005 – 31st May 2005
Fixed Term Teacher 1st Sept 2005 – 31st Aug 2006
Fixed Term Lecturer 1st Sept 2006 – 27th Nov 2006
*The period from January 2003 to April 2003 is in dispute between the parties.
The Complainant’s Case
The Complainant claimed that the Respondent failed to provide him with a contract of indefinite duration on 1st September 2006 when he became entitled to one by operation of Section 9(3) of the Act. He stated that he commenced employment with the Respondent on 11th September 2002 to lecture and give tutorials for four hours per week until December 2002 and during the period January 2003 until 25th April 2003 he worked one hour per week and on an occasional basis he covered for another Lecturer. Thereafter he worked on a succession of fixed term contracts until 27th November 2006. He disputed that the Complainant did not have sufficient “continuous” service to qualify under Section 9 for a contract of indefinite duration. In that regard he citedDepartment of Foreign Affairs v A Group of Workers” (FTD 071). In this case, the Court considered the gap between contracts and found that breaks in service could be considered as “layoff” periods as defined at paragraph 6 in the first schedule to the Minimum Notice and Terms of Employment Act 1973: -
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.
He held that this has been interpreted by the Employment Appeals Tribunal inKenny v Tegral Building ProductsE.L.R. 309as not being literal and short period between contracts“could be regarded as sufficiently immediate”,as to be continuous.
He cited the case of“Adeneler and Others v Ellinikos Organismos Galaktos IRLR 716,wherethe ECJ had been asked to rule on the validity of a Greek Law confining continuity of contracts to situations where the break in service was twenty days or less. The ECJ held that any sort of National provision compromised the object of the Council Directive 1999/70/EC Framework Agreement.
The Complainant submitted that the gap in the instant case was between the end of one academic year and the commencement of another and that both he and the Respondent had reason to anticipate that that gap would be temporary, as in February 2003 it knew of the impending maternity leave of a Lecturer in the Department and the necessity to fill that vacancy on a temporary basis. The vacancy was in fact covered by the Complainant.
The Complainant claimed that the Respondent was in breach of Section 6 as his title changed from Lecturer to University Teacher for the period September 2005 to November 2006, despite the fact that there had been no change in circumstances. He also claimed that he should be given full credit for all service prior to July 2003 as he was employed for two semesters in the 2002/03 academic year. Furthermore, he claimed that the Respondent treated him less favourably than a permanent employee when it failed to pay him for the 2005 summer months, during which time he continued to be available to the Respondent and was required to attend to University matters.
The Complainant contended that the Respondent failed to provide a written statement outlining the objective reasons for the renewal of his fixed term contract, in breach of Section 8 of the Act.
Finally, as there was sufficient work available in the Department of Industrial Engineering after 27th November 2006, and as he had been entitled to a contract of indefinite duration since 1st September 2006, the Union submitted that there was therefore no valid redundancy. In those circumstances, it was contended that the Complainant was dismissed for the purposes of avoiding issuing him with a contract of indefinite duration in contravention of Section 13 (d) of the Act.
The Respondent’s Case
In relation to his claim under Section 6 of the Act, the Rights Commissioner found for the Complainant on one aspect of that claim only. He found that his complaint in respect of his title and by inference status was well founded and awarded him the sum of €1,000.00. The Respondent appealed against this finding.
The Respondent submitted that he held the same title at all times as his nominated comparator and when her title changed from that of Lecturer to Teacher from 1st September 2005 to 31st August 2006, he held that title and carried out her functions for that period. It held that the salary, terms and conditions were the same as those of a Lecturer except there was no stipulated requirement to carry out research – just teaching and examination duties.
The Respondent held that the Complainant did not have the requisite service under Section 9 to entitle him to a contract of indefinite duration. It held that as there was a break in his service from 28th November 2002 until 11th August 2003 his service for the purposes of the Act must be deemed to have commenced on 11th August 2003 and terminated on 27th November 2006, which was less than the requisite 4 years continuous service.
The Respondent held that during the period September 2002 until 28th November 2002 the Complainant was employed on a casual basis at an hourly rate of pay to work as a Part Time Assistant Tutor. It held that he was not on a fixed term contract at the time and was not issued with a written contract. While the Respondent disputed the Complainant’s contention that he worked from January to April 2003 it could not prove that he did not attend the University and give tutorials but it had no record of his employment and he was not paid for this period. It was only after the Rights Commissioner had commenced proceedings that the Complainant retrospectively submitted claims in August 2007 for payment of 12 hours work during the period 16th January to 3rd April 2003. These were not accepted by the Respondent.
The Respondent stated that it did not give any commitments to the Complainant in the second semester 2003 that he would be employed for the academic year 2003/2004. It was aware that Ms. D was out on pregnancy related sick leave, however, the Respondent stated that the Complainant was not employed to replace her for the duration of the sick leave and it did not receive sanction to replace her on maternity leave until June 2003.
In relation to the allegation that the Respondent was in breach of Section 8 of the Act, it produced copies of the contracts issued from 11th August 2003 to the penultimate contract on 1st September 2005. On each occasion that the contract was renewed, it stated the reasons for the renewal. In the case of the final period of employment when he was covering for Dr. C’s maternity leave he was given a letter outlining the reasons for his employment from 1st September 2006 to 27th November 2006.
The Respondent denied the allegation under Section 13 (d) that the Complainant was dismissed in order to avoid the protection of the Act. It stated that he was employed to cover for Dr. C’s maternity leave, as a Fixed Term Lecturer from September 2006 until 27th Nov 2006, on her return his employment was terminated and as there was no further work available he was accordingly declared redundant.
Findings of the Court
Claim under Section 9
The first question the Court must examine is whether the Complainant has the requisite service required under Section 9 of the Act to entitle him to a contract of indefinite duration.
Section 9 (1) provides:
- “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.”
Section 9 (2) provides:
- “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.”
Section 9 (3) provides: -
- 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.
The Complainant contended that his continuous employment commenced on 11th September 2002 and accordingly he comes within Section 9 (1) of the Act.
The Respondent contended that as the Complainant’s continuous employment commenced on 11th August 2003 and the Act was passed on 14th July 2003 then Section 9 (2) is the applicable section. As his contracts were renewed for an aggregate duration of not more than four years, there was no breach of Section 9 of the Act.
In any event, the Respondent submitted that there were objective grounds for the renewal of the Complainant’s contract on 1st September 2006.
The Court has considered the nature of his employment or otherwise during the disputed period from January to April 2003. It is notable that during this period the Respondent did not issue him with a contract of employment, he was not rostered on the University timetable, and the Complainant did not submit a claim for payment for the disputed hours. On the other hand the Complainant submitted a number of emails to prove his employment status in the University at the time.
From an examination of these emails it is clear that the Complainant was in attendance on the University Campus during this period, and it is equally clear that he was in attendance at tutorials, however, it appears that he was doing so in an informal capacity assisting a Lecturer (Mr. L) who was unable to attend tutorials at different times. However, there is no evidence to suggest the Complainant was acting under the direction of the Respondent to carry out designated duties, and no evidence to suggest that he was contracted by the Respondent for a specified number of hours of work: -
•email from the Complainant to Mr. L dated 20th March 2003 stated“I was in attendance for today’s tutorial, everything was okay”.He listed the students in attendance.
•2 emails from the Complainant to Mr. L dated 27th March 2003. He referred in the first email to a tutorial that“ I will be able to attend this morning”and in a second one he said,“only knew this morning that I would be present, glad it helped to take some pressure of[f] you.”.He listed the students in attendance.
•email from the Complainant to Mr. L dated 3rd April 2003 when he states that he was unsure whether there was a tutorial scheduled for that day, he stated that he turned up just in case, he said“I take it that the tutorials are finished”.
•email from the Complainant to Mr. L dated 13th April 2003, he said“I am finished with the college for the present, whatever next year brings.”Section 9(5) of the Act expressly states that the Minimum Notice & Terms of Employment Act should apply for the purpose of ascertaining an employee’s period of service and whether that service has been continuous.
While the period in question is in dispute between the parties and it is difficult for the Court to definitely determine whether he was employed under a contract of employment during this period, the Court is of the view that in any event he was not “laid off” either in November 2002 or in April 2003.
The Court accepts that there are certain formalities, which must be complied with in order for a “layoff” to be lawfully executed.According to the statute employees are not entitled to consider themselves on “layoff”, but rather, it is a device for the employer to invoke. The explicit requirement for the employer to give notice of his intention in that regard supports this interpretation.
The term “layoff” is defined in the Minimum Notice and Terms of Employment Act, and has the same meaning as in the Redundancy Payments Act, 1967 where Section 11 (1) of that Act which defines “layoff” 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 purpose of the Act as lay-off.
The Court is satisfied that in November 2002 or April 2003 the parties could not have anticipated that his employment would resume in August 2003 and it is clear that he was not notified that his employment would be resuming. Consequently, the Court determines that his employment was not continuous from 11th September 2002 as contended by the Complainant. Accordingly, the Court accepts the Respondent’s contention that the Complainant was on continuous fixed term contracts from 11th August 2003 until 27th November 2006.
Therefore, he does not qualify for a contract of indefinite durations under Section 9 (3) of the Act.
Breach of Section 8
The Complainant contended that the employer was in breach of Section 8(2) of the Act in not issuing him with a written statement of the objective grounds justifying the renewal of his fixed term contract and of its failure to offer him a contract of indefinite duration on 1st September 2006.
Based on the Court’s findings above, the first renewal took place on 11th January 2004. The contracts are as follows: -•Contract ii- 11th January 2004–30th April 2004 – objective grounds cited – M. Dempsey’s illness.
•Contract iii- 1st May 2004 – 30th June 2004 – objective grounds cited – Ms. D taking unpaid leave.
•Contract iv- 1st September 2004 – 31st December 2004 objective grounds cited – Ms. D taking further period of unpaid leave.
•Contract v- 1st January 2005 – 31st May 2005 objective grounds cited – Ms. D taking period of sick leave.
•Contract vi- 1st September 2005 – 31st August 2006 fixed purpose contract objective grounds cited – Ms. D period of absence.
•Letter of Appointment- from 1st September 2006 to 27th November 2006, contract objective grounds cited – Dr. C’s period of maternity leave.
The Court is satisfied that each time the contract was renewed the Respondent issued a written contract/statement which included details of the reasons for its renewal. Consequently, the Court determines that the Respondent is not in breach of Section 8(2) of the Act.
Claim under Section 13 (1) (d)Section 13 (1)(d) allows for examination of the reasons for dismissal and determination of whether such dismissal was wholly or partially connected with the avoidance of a fixed-term contract being deemed a contract of indefinite duration. As the Court has already found that the Complainant was not entitled to a contract of indefinite duration, it does not consider it necessary to make a determination under this section of the Act.
Claim under Section 6
At the hearing the Respondent stated that the Complainant has been accredited with pensionable service retrospectively back to August 2003. The Court is of the view that by taking this measure the Respondent had fulfilled any obligation he may have had under Section 6 of the Act.
As the Complainant was given the same title and same rate of remuneration as his nominated comparator he was not treated less favourably and consequently the Court does not find that the Respondent was in breach of Section 6 of the Act. The Court upholds the Respondent’s appeal in that regard and consequently overturns the Rights Commissioner’s Decision.
The Court notes that the Complainant was paid for the summer break in 2006. He has submitted a claim that the Respondent’s failure to pay him during the 2005 summer months was a breach of Section 6 of the Act. The Court notes that the claim under Section 14 of the Act was referred to the Rights Commissioner on 23rd November 2006, and he has not submitted a claim under Section 14 (4) for an extension of time. Therefore, the Court finds that his claim in respect of the 2005 summer months is out of time.
The Court does not find that the Complainant’s claims under Section 6, 9 and 13 are well founded. The Court does not find that the Respondent has breached Section 13 of the Act.
Therefore, the Court rejects the Complainants appeal and upholds the Rights Commissioner’s Decision.
The Court finds that there was no breach of Section 6 of the Act and consequently, upholds the Respondent’s appeal. The Rights Commissioner’s Decision to award the sum of €1,000 is overturned.
The Court so determines.
Signed on behalf of the Labour Court
15th December 2009______________________
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.