FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HEALTH SERVICE EXECUTIVE - AND - DR ABIOLA OSHODI (REPRESENTED BY PADRAIG O'DONOVAN & COMPANY SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against a Rights Commissioner's Decision R-059132-FT-07/RG.
BACKGROUND:
2. This is an appeal by Dr. Oshodi against a Decision of a Rights Commissioner in a complaint made by Dr. Oshodi under the Protection of Employees (Fixed-Term Work Act, 2003 (the Act).
DETERMINATION:
Subject:
Appeal against a Rights Commissioner’s Decision No. r-059132-FT/RG.
Background:
The Claimant, a medical Doctor, was a participant in the Royal College of Surgeons of Ireland rotational training scheme in Psychiatry (also known as the RCSI/ERHA Training Scheme). The 40 posts in Area 6 of the rotational scheme are sited in 6 Hospitals, 5 of which are HSE Hospitals and the other, Beaumont Hospital, is a Voluntary Hospital. The rotation of Doctors to placements on the scheme is organised by a Tutors’ Group who direct where an individual Doctor must go for each 6-month module of the training scheme. An individual fixed-term contract of employment is issued to each Doctor for each 6-month module.
The Claimant was employed as follows on the scheme: -
Dates: Location: Employer:
20/01/2003-30/06/2003 St Brendan’s Hospital HSE
01/07/2003-31/12/2003 Cabra Area 6 HSE
01/01/2004-30/06/2004 St Brendan’s Hospital HSE
01/07/2004-31/12/2004 Blanchardstown Area 6 HSE
01/01/2005-30/06/2005 Beaumont Hospital Beaumont
Hospital
01/07/2005-31/12/2005 Child Whitehall Clinic HSE
01/01/2006-30/06/2006 St. Ita’s Hospital HSE
01/07/2006-31/12/2006 Newcastle Hospital HSE
01/01/2007-30/06/2007 Newcastle Hospital HSE
01/07/2007-31/12/2007 St. Ita’s Hospital HSE
On 20th November 2007, the Claimant submitted a complaint under the Act alleging breaches of Sections 6,8,9,10,11 and 13 of the Act, to the Rights Commissioner Service.
In her decision, dated 12th August 2008, the Rights Commissioner found that: -
-the RCSI and the Tutors’ Group had no control over any of the Hospitals in question or the HSE who employed the Claimant and were not associated employers as defined in Section 2(2) of the Act.
-Beaumont Hospital is not an associated employer as defined by Section 2(1) of the Act.
-that the Claimant was dismissed by the HSE on 31st December 2004 as defined by the Unfair Dismissals Act 1997 in that his fixed-term contract had expired and that he did not therefore meet the requirements of Section 9(1) of the Act.
-that there were no breaches of S.6 or S.10 of the Act.
-that a complaint made by the Claimant under S.14 of the Act was withdrawn.
-that there was a breach of S.8 of the Act in that the contract issued to the Claimant by the HSE covering his employment from 1st July 2007 to 31st December 2007 with St. Ita’s Hospital was not issued until 30th August 2007, 2 months after the renewal of his fixed-term contract. The Claimant was awarded €2000 compensation for this breach.
The Claimant appealed this decision on 1st September 2008. At an initial Court hearing held on 22nd January 2009, the matter was adjourned to allow the parties to consider the relevance to the case of points of law raised on the Court’s Determination in the case of “Department of Foreign Affairs v A Group of Workers” (FTD 071). A full hearing of the case took place on 18th March 2009, following which the matter was again adjourned to allow the parties to decide whether they wished the Court to determine the matter. By subsequent correspondence, the parties indicated their wish that the Court issue its determination. Considerable correspondence was received by the Court from the parties up until August 2009.
Claimant’s Arguments:
(1)The Claimant had no control whatsoever as to where he was sent for each 6-month module of the rotational training scheme (“the scheme”). The control was solely in the hands of the Tutor Group, who allocated the doctors among the positions on the scheme, which was a joint RCSI/HSE scheme. Each participating hospital in the scheme delegated and surrendered to the Tutor’s Group its functions of recruitment, appointment, assessment and dismissal of the Doctors on the scheme. This level of control distinguishes this case from those of “McAllister v Board of Management, Guardian Angels National School” (R-045526-FT-06), where the school had not delegated or surrendered the functions of management and the case of “Brides v Minister of Agriculture”[1998] 1IR.250, where the Department of Agriculture had only a general supervisory role over Teagasc, the body sought to be identified as an associated employer. The level of control and power exercised by the Tutors’ Group makes the group a “third person” who has control over the bodies corporate as per S.2 (2)(b) of the Act and therefore making the hospitals in the scheme “associated employers”.
- On the basis of the case of “Department of Foreign Affairs v A Group of Workers” [2007] 18 ELR 332, the use of the term “continuous employment “ in the Act is not inconsistent with the use of the term “successive contracts” as used in the Framework Agreement contained in Directive 1999/70/EC on fixed-term working.
In the case of“Adeneler and Others v Ellinikos Organismos Galaktos[2006] IRLR 716,the ECJ, on the point of the latitude to be afforded to Member States in defining the concept of “successive employment”, considered that a provision in Greek Law which only permitted fixed-term contracts to be regarded as successive if they were separated by a period of time shorter than or equal to 20 days, must be regarded as compromising the object, aim and purpose of the Framework Agreement.
In the Department of Foreign Affairs case, the Court considered the gap between contracts, which was considerably longer than 20 days, to be a “layoff” as per the first schedule to the Minimum Notice and Terms of Employment Act 1973 and as defined in S.11 (1) of the Redundancy Payments Act, 1967. This schedule allows a period of up to six months to be considered as a layoff thus not breaking the continuity of the employment.
The gap in the instant case was six months, and it was always envisaged by the Claimant and the HSE (the employer) that the gap was temporary, and that the Claimant would thereafter be rotated to another participating hospital under the overall scheme. The Claimant would then reasonably expect that his employment would resume and continue until he had received the required qualifications. It would be wrong to consider a rotation placement involving a gap within an overall scheme as destroying the continuation of employment.
Respondent’s Arguments:
(i)in the “Adeneler” case, a provision of Greek Law was dealt with. The 2003 Act didnotprescribe that contracts separated by a specified short period of time would be deemed continuous. In the instant case, the period between the Claimant leaving the respondent’s employment and being re-employed was a full six months, and this makes the instant case different to the “Adeneler” one.
(ii)The Respondent stated that they would question whether the manner in which the Oireachtas chose to transpose the Directive into Irish Law had actually compromised or rendered nugatory its effect (as argued in the “Dept of Foreign Affairs” case). The Respondent contended that Section 9 should be read in conjunction with S.13 (1)(d) which states
- “(an employer should not penalise an employee) “by dismissing the employee for his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under S.9 (3)”.
As S.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, and as the remedies for this are not set out in S.14, the Respondent contended that the 2003 Act, taken as a whole, is sufficient in and of itself to achieve the purpose intended by the Directive.
- “There is no provision of European law which allows an administrative body or a court of limited jurisdiction to exceed it own authority in order to achieve a result, whereby it is of the view that European legislation had not been properly implemented at national level and that this situation is to be remedied by the re-ordering in ideal form of national legislation. The limit of jurisdiction is of primary importance to the exercise of authority, whether the courts be established as an administrative body, or is one of the courts under the Constitution. In the event that a view emerges that national legislation has not properly implemented European Legislation, this is no more than an opinion. The respondent does not have the authority to make a binding legal declaration of inconsistency or insufficiency on a comparison of European and national legislation. The High Court has that power as this has been expressly reserved to it by Article 34 of the Constitution…”
Thus the Labour Court in the Dept of Foreign Affairs case and the instant case did and does not have the express power to make a declaration of inconsistency or insufficiency but can only interpret the impugned provision of the Act in the light of the purpose of the Directive. While the Court might have a view on the transposition of a provision of the Framework Agreement, it did not have jurisdiction to decline to apply the 2003 Act.
(v)In the “Department of Foreign Affairs” case, the question of continuous employment was dealt with by construing periods where the Claimants were not employed as periods of “layoff”.
- In the Minimum Notice and Terms of Employment Act, “layoff” is to have the same meaning as in the Redundancy Payments Act, 1967 where S.11 (1) of that Act 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-
(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 Respondent contended that the term “layoff” has a particular meaning, and that it is not as was suggested by the Labour Court a device “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 respondent contendedthat the import Section 11 was that certain formalities must be complied with in order for a “layoff” to be lawfully executed. Furthermore it seemed clear from the statute that 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 seems to support this interpretation.
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. In this context, the Respondent questions whether a “layoff” is, in any event, a “device intended to be in ease of employees” given that it is invoked, as already seen, at the instance of an employer. There was no question of a “layoff” in the instant case. His employment terminated when his contract of employment expired, as per the Unfair Dismissals Legislation, which, in the 1977 Act, defines dismissal in relation to an employee as“the expiration of a contract of employment for a fixed term without its being renewed under the same contract”
Consequently, the Claimant was effectively dismissed and was then engaged by another undertaking. He did not therefore have continuity of employment.
- That cessation of employment shall be regarded for the purpose of the Act as lay-off.
The Law Applicable
The Respondent states that the Claimant broke his employment by accepting a six month placement with Beaumont Hospital. The Respondent places great emphasis on its contention that Beaumont was not an associated employer within the meaning of the Act. It appears to the Court however that a more pertinent question to ask is whether the six months break constituted a sufficient period for the respondent to state that the Claimants continuity of employment was broken.
The Claimant stated that at all times he was under the control of a “Tutors’ Group” which is a group of Consultant Psychiatrists within the participating Hospitals who take a mentoring / team-leading role (unpaid) in clinical tuition of the doctors participating in the scheme. They collectively decide on placements and rotations based primarily on training needs, while having regard to (but not always able to fulfil) the NCHD trainees’ expressed preferences. At the time when the Claimant was on the scheme the NCHDs were notified of their next placement on the scheme by a scheme co-ordinator or by the Tutor in the Hospital where they were then currently employed.
The title of the scheme, which remained unchanged when the scheme was reworded and altered in some ways in 2008, is the “Royal College of Surgeons of Ireland / ERHA Training Scheme.”
The ERHA referred to is the Eastern Regional Health Authority, a component of the Eastern Health Board, which subsequently became part of the HSE in 2005.
The Claimant’s series of fixed-term contracts on the scheme stretched from 20th January 2003 until 31st December 2007, when he was not offered a further contract. In the view of the Court, the Claimant is correct in his assertion that he was at all material times under the control of the Tutors’ Group which was established within the RCSI / ERHA training scheme, which itself was a body under the aegis, firstly of the EHB and subsequently of the HSE.
Beaumont was part of the scheme and the Claimant, while consideration was given to his preferences, had to go there when sent. The question the Court must consider is whether this break was sufficient to destroy the continuity of his employment and thus make it impossible for him to avail of the provisions of the Act.
Section 9(5) of the Act states that “the first Schedule to the Minimum Notice & 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”.
The first Schedule of those Act states (inter alia):
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
- it also says
10.“ if an employee is absent from his employment for not more that twenty-six weeks between consecutive periods of employment because of
(a)a lay-off
(b)sickness or injury or
(c)by agreement with his employer
such period shall count as a period of service”.
The Claimant clearly did not voluntarily leave his employment, as he was directed to go to Beaumont. Neither, in the view of the Court was he dismissed. Dismissal in the recognised context is an act of final penalisation by an employer, unless the term is qualified (as in “dismissal by reason of redundancy”, for example). It connotes the deliberate and final severance of an employment contract against the will of an employee. This is not what occurred in this situation.
Rather does it appear to the Court that what occurred was a situation as envisaged in Section 10 (c) of the First Schedule, where an employee is absent from his employment for not more than 26weeks (six months) between consecutive periods of employment by agreement with his employer.
The Claimant was absent from the direct employment of the HSE for a period of six months. It was always envisaged and indeed happened, that he would return to the employment of the HSE. It was the Tutors’ Group, a group under the aegis of the HSE, which sent him to Beaumont Hospital. He was actually directed there and agreed to go, knowing he would return. The Court must therefore take the view in that circumstance that his absence was “by agreement with his employer” and that his employment was continuous.
The Court is fortified in this view by the Judgement of Murphy J in the High Court in the case of “Irish Shipping Ltd” v Richard Adams and others” (1985 / 959sp), where in an appeal pursuant to Section 40 of the Redundancy payments Act, 1967 from a Decision of the E.A.T., the Court said,
- “In essence what the Tribunal did was to advert to the statutory presumption of continuity of employment under Section 10 (A) of the Redundancy Payments Act 1971 and then to advert to the facts of the case as found by them to see whether those facts rebutted the statutory presumption. Furthermore, the Tribunal in reviewing their findings of fact recognised that by virtue of Schedule 3 of the Redundancy Payments Act 1967 certain interruptions of service did not break the continuity of employment. The interruptions which were excluded were ones for periods not exceeding 26 consecutive weeks by reason of lay-off, holidays or any cause (other than voluntary leaving of his employment by the employee) and other than lay-off or holidays but authorised by the employer”.
The Court, accordingly, finds that the Claimant completed his third year of continuous employment on 19th January 2006. His next contract renewal was on 1st July 2006 and this contract expired on 31st December 2006. The Claimant would, therefore, have become entitled to a contract of indefinite duration with effect from 1st January 2007.
Having so found, the Court does not consider it necessary to decide whether Beaumont is an associated employer for the purposes of this Act.
The Court upholds the Rights Commissioner’s finding in regard to Section 8 of the Act, but allows the Claimant’s appeal regarding Section 9 of the Act. The Court also finds that the Claimant was penalised under Section 13 (1)(d) of the Act in being dismissed by the respondent on 31st December 2007.
Redress:
While the Claimant would have been entitled to a contract of indefinite duration on the same terms as pertained immediately prior to the termination of his contract, in the view of the Court, given the effluxion of time in this case, the appropriate remedy is one of compensation.
In making it’s award the Court has taken into account the principles enunciated in the case of “Van Colson & Kamann v Land Nordrhein – Westfalen [1984] ECR 1891, the import of which is that where an individuals rights are infringed, the judicial redress should not only compensate for the Claimant’s economic loss but must provide a real deterrent against future infractions.
The Court measures the award for the Respondent's breaches of Sections 8 9, and 13 of the Act at €50,000.
The Court so recommends.
Signed on behalf of the Labour Court
Raymond McGee
24th September, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.