FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HSE SOUTH (REPRESENTED BY JOHN LUCEY, BL, AND INSTRUCTED BY COMYN KELLEHER TOBIN, SOLICITORS) - AND - ASEM HAMDY (REPRESENTED BY ERCUS STEWART, SENIOR COUNCIL, AND INSTRUCTED BY KINSELLA, HEFFERNAN, FOSKIN SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Decision FT45806/06/MR
BACKGROUND:
2. The worker (Mr. Hamdy) had held the post of Temporary Consultant Surgeon at Kerry General Hospital under a series of nine successive contracts from 1st December, 2001, to 30th September, 2006. His contract ceased on 30th September, 2006, as a result of a permanent post being filled as and from 1st October, 2006. The worker's case is that from 1st July, 2005, he should have been offered a contract of indefinite duration but instead the HSE offered him a further fixed-term contract. The HSE does not accept that it contravened the Protection of Employees (Fixed Term) Work Act, 2003, in its dealings with Mr. Hamdy.
The case was referred to a Rights Commissioner and his Decision was as follows:
"In accordance with the terms of Section 14(2) of the Protection of Employees (Fixed-Term Work) Act, 2003, I hereby declare that this complaint was well-founded and I now require the HSE to comply with each of the findings set out above.
This involves, in particular, Mr. Hamdy's reinstatement, on a contract of indefinite duration in his employment with the HSE from 1st October, 2006, onwards, the payment of retrospection to Mr. Hamdy back to 1st December, 2001, plus the lumpsum at 7 above. "
(The lumpsum at 7 above was €30,000).
The HSE appealed the decision to the Labour Court on the 1st December, 2008, in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work ) Act, 2003. A Labour Court hearing took place on the 14th July, 2010, in Tralee. The following is the Court's Determination:
DETERMINATION:
The case comes before the Court pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work Act) 2003 (the Act), by way of an appeal, by the HSE (the Respondent), against a decision of the Rights Commissioner
The parties are referred to in this Determination as they were at first instance. Hence, Mr Hamdy is referred to as the Complainant and the HSE is referred to as the Respondent.
Representation:
At the hearing of the appeal the Complainant was represented by Mr Ercus Stewart S.C.. instructed by Kinsella Heffernan Foskin, Solicitors. The Respondent was represented by Mr John Lucy B.L. instructed by Comyn Kelleher Tobin, Solicitors.
Ciaran can you insert the names of the respective solicitors.
The Facts:
Comhairle Na nOspideal is the statutory body that regulates the number and location of Hospital Consultant posts within the state. No hospital may create a Hospital Consultant Post in any Specialty without its prior approval. The appointment of persons to certain position, including that of Hospital Consultant, is governed by the Local Authorities (Officers and Employees) Act 1926, as amended. This statute provides, in effect, that the Respondent cannot appoint a person to a permanent post to which the Act relates other than on the recommendation of what is now the Public Appointments Service.
The basic facts of the case are not in dispute. Mr. Asem Hamdy (the Complainant) held the position of Temporary Consultant Surgeon at Kerry General Hospital under a series of nine successive fixed term contracts from 1st December 2001 to 30th September 2006. While in the post Mr Hamdy performed the full range of duties of a Category 1 consultant. This latter point, though an issue before the Rights Commissioner, was conceded by the Respondent prior to the hearing of the appeal by the Labour Court.
It is common case that Mr Hamdy was a fixed term worker within the meaning of Section 2 of the Act.
The timing and duration of those fixed term contracts are were as follows:
1st Contract 1 December 2001 – 28 February 2002
2nd Contract 1 March 2001 – 31 August 2002
3rd Contract 1 September 2002 – 31 December 2002
4th Contract 1 January 2003 – 30 June 2003
5th Contract 1 July 2003 – 31 December 2003
6th Contract 1 January 2004 – 30 June 2004
7th Contract 1 July 2004 – 31 December 2004
8th Contract 1 January 2005 – 30 June 2005
9th Contract 1 July 2005 – 30 September 2006.
In July 2001 Comhairle na nOspideal approved the appointment of a temporary Consultant General Surgeon at Kerry General Hospital pending the submission of an application for a third permanent post of Consultant General Surgeon by the hospital. Around that time monies were made available by the Minister for Health, through the Department, for the appointment of appropriate professional personnel within the HSE to deal with lengthy waiting lists for certain medical procedures. Some of this money was allocated by the Hospital to meet the cost of the appointment of the successful applicant for the post of temporary Consultant General Surgeon, Mr Hamdy.
This appears to have been the context in which the Respondent’s first fixed-term contract was issued in December 2001 and remained so throughout his employment with the HSE.
Prior 1 July 2005 the contracts issued to the Respondent simply recorded the fact that the appointment was temporary in nature. The relevant clause in the first contract issued contained the following provision
- The post is temporary for a period of 3 months from 1st December 2001. The appointment may be terminated subject to one months notice on either side.
This or a similar clause was repeated in each subsequent contract issued to Mr Hamdy until the Contract issued on 1st July 2005 which contained the following clause: -
- “Your are currently employed in the post of Temporary Consultant Surgeon at Kerry General Hospital, pending the permanent position being offered by the NHO/Comhairle and filled permanently through the Public Appointments Commission.
We wish to extend your contract subject to approval from the NHO/Comhairle for the permanent position for the period from the 1st July 2005, to the appointment and take up of duty of the successful candidate at competition for the permanent position through the Public Appointments Commission.
The objective reason for the extension is to cover the vacancy from 1st July, 2005 to the end of the process as described above.
Your employment with the HSE, Southern Area, in relation to your current position will terminate when the successful candidate takes up the permanent position.
The Unfair Dismissals Act 1977 – 2001 shall not apply to your dismissal consisting only of the cesser of the said purpose”.
This contract sets out the reason for the extension of the fixed term contract offered to Mr Hamdy “as pending the permanent position being offered by the NHO/Comhairle and filled permanently through the Public Appointments Commission.”
The permanent position was duly advertised and a competition held to select a suitable candidate for appointment. The Respondent competed unsuccessfully for the post.
On 26 June 2006 the Irish Medical Organisation wrote to the HSE to the effect that the contract of 1 June 2005 was inconsistent with the terms of the Act and sought an acknowledgement by the HSE that the Respondent had, by operation of law, become entitled to a contract of indefinite duration as defined by the Act. The acknowledgement sought was not forthcoming. Instead the Respondent wrote to the Complainant on 25 August 2006 advising him that his contract would terminate on 30 September 2006.
It would appear that the IMO drafted a Complaint pursuant to Sections 6 and 9 of the Act on 10 July 2006, which was referred to the Rights Commissioner’s Service on 9 October 2006. On 13th October 2006, the Rights Commissioner Service acknowledged receipt of the Complaint. Solicitors came on record for the Complainant on 15 December 2006.
The Rights Commissioner heard the matter and issued a decision on 31 October 2008. He decided that the complaints were well founded and required the Respondent to comply with the decision. Essentially he concluded that the contract issued to Mr Hamdy on 1 July 2005 was, by operation of law, one of indefinite duration with effect from that date and further awarded the Complainant compensation in the sum of €30,000 for breaches of his entitlements under the Act.
The Protection of Employees (Fixed Term Work) 2003
The Protection of Employees (Fixed Term Work) 2003 (the Act) transposes into Irish law the Directive No 1999/70/10 of the 28 June 1999 of the Council of the European Communities concerning the Framework Agreement on Fixed-Term Work concluded by ETUC, UNICE and CEEP. The purpose of the Directive is twofold to
•improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination
•establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
Section 6 and 7 of the Act gives effect to the principle of non- discrimination in Irish law
The relevant part of Section 6 provides
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.
However Section 6(2) of the Act permits less favourable treatment of Fixed-Term workers where such treatment can be justified on objective grounds
(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.
Section 7(1) defines objective grounds as follows: -
7.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
Section 8(1) of the Act places an obligation on an employer to set out in writing to the Fixed-Term worker the objective grounds determining the contract
8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
arriving at a specific date,
completing a specific task or
the occurrence of a specific event
(2) 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.
(3) A written statement undersubsection (1)or(2)is admissible as evidence in any proceedings under this Act.
(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—
that an employer omitted to provide a written statement, or
that a written statement is evasive or equivocal
the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.
Section 9 of the Act sets a limit to the number of fixed-term contracts an employer, without justifying objective grounds, may give to an employee before they become entitled to a contract of indefinite duration.
9.—(1) Subject tosubsection (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 tosubsection (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 contravenesubsection (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.
Section 12 of the Act renders void any provision in an agreement or contract of employment that purports to limit or exclude the application of or is inconsistent with any provision of the Act
12.—Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act.
Section 14 of the Act makes provision for the referral of complaints under the Act to a Rights Commissioner
14.—(1) An employee or any trade union of which the employee is a member, with the consent of the employee, may present a complaint to a rights commissioner that the employee's employer has contravened any provision of this Act in relation to the employee and, if the employee or such a trade union does so, the commissioner shall—
(a)give the parties an opportunity to be heard by the commissioner and to present to the commissioner any evidence relevant to the complaint,
(b) give a written decision in relation to the complaint, and
(c) communicate the decision to the parties concerned.
(2) A decision of a rights commissioner undersubsection (1)shall do one or more of the following:
declare whether the complaint was or was not well founded
require the employer to comply with the relevant provision;
require the employer to re-instate or re-engage the employee (including on a contract of indefinite duration);
(d) require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment;
and references inparagraphs (a)to(d)to an employer shall be read in a case where ownership of the business of the employer changes after the contravention to which the complaint relates occurred, as references to the person who, by virtue of the change, becomes entitled to such ownership.
(3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.
(4) Notwithstandingsubsection (3), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to insubsection (3)(but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause
(5) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in such form as may be specified from time to time by the Minister.
(6) A copy of a notice undersubsection (5)shall be given to the other party concerned by the rights commissioner.
(7) Proceedings under this section before a rights commissioner shall be conducted otherwise than in public.
(8) A rights commissioner shall furnish the Labour Court with a copy of each decision given by the commissioner undersubsection (1).
(9) The Minister may be regulations provide for any matters relating to proceedings under this section that the Minister considers appropriate.
Section 15 of the Act provides for an appeal to the Labour Court from a decision by a Rights Commissioner made under Section 14 of the Act.
15.—(1) A party concerned may appeal to the Labour Court from a decision of a rights commissioner undersection 14and, if the party does so, the Labour Court shall—
(a) give the parties an opportunity to be heard by it and to present to it any evidence relevant to the appeal,
(b) make a written determination in relation to the appeal affirming, varying or setting aside the decision, and
(c) communicate the determination to the parties.
(2) An appeal under this section shall be initiated by the party concerned giving, within 6 weeks of the date on which the decision to which it relates was communicated to the party, a written notice to the Labour Court containing any particulars that are determined by the Labour Court undersubsection (4)and stating the intention of the party concerned to appeal against the decision.
(3) A copy of a notice undersubsection (2)shall be given by the Labour Court to the other party concerned as soon as practicable after the receipt of the notice by the Labour Court.
4) The following matters, or the procedures to be followed in relation to them, shall be determined by the Labour Court, namely—
(a)the procedure in relation to all matters concerning the initiation and the hearing by the Labour Court of appeals under this section,the times and places of hearings of those appeals,
the representation of the parties to those appeals,
the publication and notification of determinations of the Labour Court,
(e) the particulars to be contained in a notice undersubsection (2), and
(f) any matters consequential on, or incidental to, the foregoing matters.
(5) The Minister may, at the request of the Labour Court, refer a question of law arising in proceedings before it under this section to the High Court for determination by the High Court and the determination of that Court shall be final and conclusive.
(6) A party to proceedings before the Labour Court under this section may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive.
(7) Section 39(17) ofthe Redundancy Payments Act 1967shall apply in relation to proceedings before the Labour Court under this Part as it applies to matters referred to the Employment Appeals Tribunal under that section with—
(a) the substitution in that provision of references to the Labour Court for references to the Tribunal,
(b) the deletion in paragraph (d) of that provision of “registered”, and
the substitution in paragraph (e) of that provision of “a fine not exceeding €2,000” for “a fine not exceeding twenty pounds”.
Preliminary Issue:
By way of a preliminary objection it was submitted on behalf of the Respondent that the within complaint was presented to the Rights Commissioner outside the time-limit provided for by s.14(3) of the Act. This point was not taken at first instance.
Position of the Parties
The Complainant
The Complainant submitted that on 1st July 2005 he completed four years of continuous fixed-term employment with the Respondent. He contends that pursuant to s.9(3) of the Act his contract became one of indefinite duration by operation of law. It was further submitted on behalf of the Complainant that there were no objective grounds justifying the extension of his fixed-term employment within the statutory meaning of that concept.
On the question of objective justification for the continuance of the Complainant’s fixed-term employment beyond the four year period permitted by s.9(2) of the Act two related submissions were advanced. Firstly it was submitted that reliance on a putative obligation on the Respondent to fill a permanent post by competition pursuant to domestic legislation cannot amount to objective justification within the statutory meaning ascribed to that term. In support of that proposition Counsel for the Complainant relied on the dicta of Leffoy J inAhmed v Health Service Executive[2006] IEHC 245 and on the determination of this Court inUniversity College Hospital Galway v Awan[2008] 19 ELR 64.
Secondly, in so far as the Respondent placed reliance on the objective pursued by the domestic legislation, Counsel advanced the argument that on the facts of the instant case this could not meet the established three tiered test for objective justification inherent in s.7 of the Act. In that regard it was submitted that the stated desire of the Respondent to appoint the best available candidate for appointment to the post was a disproportionate and inappropriate means of achieving the aim in view because, it was submitted, it took no account of the Complainant’s entitlement under the Act to have a contract of indefinite duration having completed four years of fixed-term employment. In support of this point the Complainant relied on the determination of this Court inHealth Service Executive v Prasad(FTC/05/4 Determination No. 062). It was further submitted that it was unnecessary in circumstances where the Complainant was qualified to fill the post. Finally it was submitted that the Oireachtas could have excluded posts such as that in issue in this case from the ambit of the Act but had chosen not to do so.
With regard to the time limit issue, Counsel submitted that what was in issue was the Respondent’s refusal to recognise the permanent nature of the Complainant’s employment by operation of s.9(3) and that this was a continuing contravention of his statutory rights. In the alternative, the Complainant applied to the Court for an extension of time in which to bring his complaint pursuant to s. 14(4) of the Act. The reasonable cause relied upon was that it only became clear in August 2006, when he was put on notice that his employment would terminate when the proposed appointee took up duty, that the Respondent was not recognising that his fixed-term contract had become one of indefinite duration by operation of law.
The Respondent
The Respondent first objected to the jurisdiction of the Court on the basis that the within complaint was presented outside the time limit prescribed by s. 14(3) of the Act. It was submitted that in so far as the Complainant alleged a breach of s.9(3) of the Act arising from the Respondent’s failure to award him a contract of indefinite duration, any such breach would have occurred after he had completed four years of continuous fixed-term employment and that this occurred on 1 July 2005. It was submitted that the Complainant presented his complaint to the Rights Commissioner on 9 October 2006 whereas the six month time limit prescribed by s.14(3) expired on 1st January 2006.
Without prejudice to its submission on the time limit, the Respondent accepted that the Complainant was continuously employed on fixed-term contracts for more than the four year period normally permitted by s.9(2) and that this created aprima facieentitlement to a contract of indefinite duration. The Respondent contended, however, that there were objective grounds justifying the extension of the Complainant’s fixed-term employment beyond the period referred to in s. 9(2) and the extension was thus saved by s.9(4) of the Act.
The Respondent accepts that it cannot rely solely on domestic legislation which requires public bodies, such as the HSE, to make certain appointments from persons nominated by the Public Appointments Service as providing objective grounds for not employing the Complainant on a contract of indefinite duration. Rather, the objective ground upon which it relies is that it sought, through the selection process of the Public Appointments Service, to obtain the best possible candidate to fill the permanent post. Counsel for the Respondent submitted that in the context of the health service in particular this constitutes best practice and is a legitimate aim of the Respondent. It was further submitted that the appointment of the Complainant to the post in a temporary capacity, so as to facilitate the selection process, constituted an appropriate and necessary means of achieving that legitimate aim. It was further submitted that the original appointment of the Complainant arose out of a temporary initiative to address excessive waiting lists for certain medical procedures. It was submitted that this initiative was inherently temporary in nature and that this constituted objective justification on which it was entitled to rely.
In its submission to the Court the Respondent stated that the objective justification upon which the Respondent relies is established in the following circumstances: -
The specified purpose was made clear and explicit to the Complainant from
the outset of his employment and was the reason for the termination of his employment.
The temporary consultant position was created by the Respondent to meet the objectives of the waiting list initiative and pending the approval of a third permanent Consultant General Surgeon post at the Hospital by the NHO/An Comhairle.
It was further submitted that in the interest of patient care, the need to secure, by open competition, the best person for the post is a legitimate objective of the Respondent and constitutes objective justification for not offering the Complainant a permanent contract.
The specified purpose set out in the Contract of Employment given to the Complainant in July 2005 was undergone and completed and the result of the competitive selection process was the recruitment of the best candidate out of that competition.
The commencement of the employment of the successful consultant selected as a result of that selection process resulted in the termination of the Complainant’s employment in accordance with his specified purpose contract.”
Time limit
This point was not raised before the Rights Commissioner. Nevertheless, it is well settled that in a de novo hearing of the case the Respondent is entitled to raise it at the hearing of the appeal.
Section 14(3) of the Act provides, in effect, that a complaint alleging a contravention of the Act must be presented within the period of six months from the date of the contravention to which the complaint relates or the date of the termination of the contract of employment, whichever is the earlier. The Respondent submitted that the contravention to which the within complaint relates was its failure to provide the Complainant with a contract of indefinite duration on the expiry of his fourth year of fixed-term employment. That alleged contravention occurred, it was submitted, on 1st July 2005. Since the Complainant presented his complaint to the Rights Commissioner on 9 Octoer 2006, some 9 months after the expiry of the six-month period referred to in the Act, it was submitted that the complaint is out of time and statute barred.
In order to address this point it is necessary to consider the scheme of s.9 of the Act.
Section 9 provides: -
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.
It will be noted that, subject to s. 9(4), s.9(2) provides that the aggregate duration of continuous fixed-term contracts may not exceed four years. It will also be noted that the section does not expressly obligate an employer to grant a contract of indefinite duration to an employee whose aggregate fixed-term employment reaches or exceeds the four years referred to. Rather, s. 9(3) operates so as to render void,ab initio, a term in a fixed-term contract which contravenes either subsection (1) or (2) of the section. Thus, rather than requiring the employer to grant the employee a contract of indefinite duration after the expiry of the period referred to in either subsection, the law operates to transmute the employees fixed-term contract to one of indefinite duration with effect from the date on which the offending contract was concluded. (SeeMinister for Finance v AcArdle[2007] 2 ILRM 438)
Unless it was saved by s.9(4) the specified purpose contract under which the Complainant was employed in July 2005, which the Respondent knew or ought to have known would bring the Complainant within the scope of Section 9(3) of the Act, contravened s.9(2) of the Act. In consequence the offending term in the contract providing for its termination on the occurrence of an event, namely the appointment of a permanent consultant, was rendered a nullity by operation of s.9(3) and is of no effect. The contract thus became one of indefinite duration by operation of law. The Complainant was not obliged to bring a complaint to a Rights Commissioner in order to obtain a contract of indefinite duration; he obtained such a contract by virtue of s.9(3). In so far as there was a contravention of the Complainant’s legal rights, which would arise if the Respondent could not rely on s.9(4), it was the Respondent’s failure to acknowledge his status as a permanent employee by operation of law.
That was a continuing contravention which crystallised with the Respondent’s letter to the Complainant dated 25 August 2006 putting him on notice that his employment would terminate in September 2006 when the successful candidate in the competition took up duty.
On this point, Mr Lucy B.L. submitted that the concept of a continuing contravention of the Act would lead to legal uncertainty and would negate the notion of a time-limit by allowing an employee to sit on his or her rights for a prolonged period and then bring a claim at a time of their choosing. On the facts of this case no such consideration arises. The Complainant moved promptly after he was informed that the Respondent intended to rely on the term in his fixed-term contract which he considered a nullity and no question of acquiescence arose.
It is significant that inAhmed v Health Service Executive[2006] IEHC 245, Ms Justice Laffoy appeared to similarly characterise the plaintiff’s complaint to a Rights Commissioner concerning his entitlement to a contract of indefinite duration. In anobitercomment the Judge said: -
“ In answer to the defendant’s objection in point of law, it was submitted on behalf of the plaintiff that the jurisdiction of a rights commissioner under the Act of 2003 is strictly limited to complaints that the employer contravened a provision of that Act, which on the facts of this case is limited to the question whether the defendant acknowledged the indefinite duration, that is to say permanency of the plaintiff’s contract by operation of law.”
For these reasons the Court does not accept that the Complainant’s complaint was presented after the expiry of the time-limit prescribed by s.14(3) of the Act.
While not conceding that the complaint was presented outside the time-limit, Mr Stewart S.C. for the Complainant, applied to the Court for an enlargement of time pursuant to s.14 (4) of the Act.
That subsection provides: -
(4) Notwithstanding subsection (3), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
This subsection allows the Court to extend the time-limit up to a maximum of 12 months after the expiry of the six-month time-limit prescribed by subsection (3), thus giving a total period in order to bring a claim of up to 18 months from the date of contravention, provided that reasonable cause is shown for the delay.
The test for deciding if reasonable cause is shown for the purpose of the corresponding time –limit provision of the Organisation of Working Time Act 1997 was considered by the Court inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). Here the Court said: -
It is the Court's view that in considering if reasonable cause exists, it is for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case.
The Court adopts that formulation as equally applicable in considering an application for an extension of time under s14(4) of the Act.
In this case the Complainant was given a specified purpose contract in July 2005 and at that time he could not have known with certainty if the event specified would occur after the 31 December 2005 or if the Respondent would seek to rely on the provision if it occurred after that date. As earlier observed, the Respondent’s intention to rely on the impugned provision crystallised on 25 August 2006 and the Complainant moved within a reasonable time thereafter.
Determination:
In these circumstances the Court finds that the complaint was presented within the time-limit set out in s 14(3) the Act. If it is wrong in this conclusion the Court would be prepared to grant an extension of time up to 31 December 2006, pursuant to s.14(4) of the Act.
The substantive case
The law
As outlined above the Act was enacted to give effect in domestic law to Directive 1999/70/EC concerning the Framework Agreement on Fixed-Term Work concluded by ETUC,UNIC and CEEP. The purpose of the Framework Agreement is set out at Clause 1 thereof as follows: -
Purpose
The purpose of this 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 abuse arising from the use of successive fixed-term contracts or relationships.
Clause 5 of the Framework Agreement provides: -
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 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;
2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships :
InAdeneler v Ellinikos Organismos Galaktos[2006] IRLR 716 the ECJ considered the underlying rationale for this provision and said: -
The Framework Agreement proceeds on the premise that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see paragraphs 6 and 8 of the general considerations in the Framework Agreement).
Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold, paragraph 64), whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (see the second paragraph of the preamble to the Framework Agreement and paragraph 8 of the general considerations).
Clause 5 of the framework Agreement is given effect by s.9 of the Act.
The entitlement of fixed-term workers to the type of stable employment envisaged by the Framework Agreement can be offset where there are objective grounds for continuing their employment for a fixed-term. What can constitute objective grounds is set out at s.7(1) of the Act as follows: -
7.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
The test inherent in this section is derived from the jurisprudence of the ECJ and in particular from the Judgment of the Court in Case 170/84Bilka-Kaufhaus GmbH v Karin Weber von Hartz[1986] ECR 1607. InInoue v MBK Designs[2003] 14 ELR 98 this Court said that the test requires the employer to show that the impugned measures: -
(a) correspond to a real need on the part of the undertaking,
(b) are appropriate with a view to achieving the objective pursued, and
(c) are necessary to that end.
In CaseC-476/99Lommers v Minister van Landbouw, Natuurbeheer en Visserij[2002]IRLR 430, the ECJ likened reliance on objective justification to a plea to derogate from the rights in issue. It said at paragraph 39 of its Judgment: -
“ [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).
InAdenelerthe ECJ considered the compatibility of a provision of Greek law which provided that in the public sector a fixed-term contract could not be transmuted to one of indefinite duration. In holding that the provision under consideration was contrary to the Framework Agreement and Directive 1999/70/EC the Court said: -
The mere fact that the conclusion of a fixed-term employment contract is required by a statutory provision of a Member State does not constitute an “objective reason” within the meaning of clause 5(1)(a) of the Framework Agreement on fixed-term work such as to justify the successive renewal of a fixed-term contract. The concept of “objective reasons” within the meaning of clause 5(1)(a) requires use of fixed-term contracts to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out.
“Objective reasons” refers to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a Member State.
A national provision which merely authorises recourse to successive fixed-term contracts in a general and abstract manner by a rule of statuteor secondary legislation does not accord with those requirements.
It is clear that a plea of objective justification in reply to a claim under the Act is in the nature of a defence and it is for the Respondent to make out each element of that defence (see the recent decision of the Court of Appeal of England and Wales inDuncome & Ors v Secretary of State for Children, Schools & Families[2010] IRLR 331.
Section 8 of the act is also relevant in the instant case. This is a further provision intended to give effect to Clause 5 of the Framework Agreement. It requires an employer to inform a fixed-term employee, whose contract is being renewed, of the objective grounds for such renewal and the reason why the employee is not being offered a contract of indefinite duration. It provides: -
8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
(a) arriving at a specific date,
(b) completing a specific task, or
(c) the occurrence of a specific event.
(2) 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.
(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.
(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—
(a) that an employer omitted to provide a written statement, or
(b) that a written statement is evasive or equivocal,
the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.
InHealth Service Executive, North Eastern Area v Khan[2006] 17 ELR 313, this Court considered the effect of s.8, combined with that of s.9(4) and concluded as follows:-
Section 9(4) allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene subss.(1) or (2) where there are objective grounds for so doing. However, since this provision allows a derogation from what is an important social right derived from the law of the Community it must, in the Court's view, be construed and applied strictly against the person seeking to rely on the subsection. Thus the Court must require an employer invoking subs.(4) to establish on credible evidence the factual matrix which is relied upon as constituting objective justification as that term is defined by s.7 of Act and as it is understood in the settled law of the Community.
Moreover, a purposive interpretation of s.9 indicates that a respondent must establish that the reason relied upon as constituting objective grounds was the operative reason for the failure to offer a contract of indefinite duration at the time the fixed-term contract was renewed. This suggests that the respondent must at least have considered offering the complainant a contract of indefinite duration before renewing his or her fixed-term contract and decided against doing so for the reason relied
Section 8(2) is also of considerable significance on this point. It seems to the Court that the purpose of s.8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed. On a reading of the section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under s.9(4) . Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with s.8(2) , it is apt to infer, in accordance with s.8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary.
Conclusion
General observations
It should first be observed that in this case the Respondent appears to have complied with s.8 in a less than adequate manner. The Complainant’s fixed term employment was renewed on 1 July 2005 and the statement in writing furnished by the Respondent in respect to this renewal was contained within the contract. Section 8(1) requires that the statement setting out the circumstances in which the employment will terminate must be issued ‘as soon as practicable’ This section of the Act was fully complied with. Section .8(2) requires that the statement to which it refers must be given, at the latest, concurrent with the commencement of the contract. The statement furnished to the Complainant did set out the basis upon which the contract would terminate, namely on the making of a permanent appointment. This statement however appears to ignore the fact that the Complainant’s fixed-term employment was being renewed and its terms are more suggestive of an offer of first-time employment. Of particular significance is the absence of any detailed explanation as to why the Complainant was being offered a fixed-term contract rather than one of indefinite duration. The mere statement that the position would be filled through the Public Appointments Service is not an objective reason as to why that should be so. The terms of the Contract implies that the Respondent considered it axiomatic that the post would be filled through the Public Appointments Service. This suggests that its belief in that regard was grounded in a belief that it was constrained by the provisions of the 1926 Act, as amended
However, the Complainant did not pursue the apparent breach of s.8 of the Act in this appeal. In consequence it is not a matter that should be considered further, other than to draw appropriate inferences in accordance with s.8(3) of the Act (on this point see the recent decision in Russell vMount Temple Comprehensive School, Unreported, High Court,Hanna J, 4th December 2009).
In his submissions to the Court Mr Lucy B L was careful to point out that the Respondent did not seek to rely solely on the provisions of domestic legislation as providing objective grounds for extending the Complainant’s fixed-term employment beyond the period ordinarily permitted by s.9(2) of the Act. It relied on the requirement to obtain the best possible candidate for the permanent posts in issue and its decision to do so by utilising the process provided for by the 1926 Act as amended. This, it was submitted, is particularly appropriate in the appointment of a hospital consultant. In advancing that submission reliance was placed on the circumstances surrounding the complainant’s final fixed-term appointment in July 2005. He submitted that the objective grounds for appointing the Complainant to a fixed-term contract in the nature of a specified purpose contract was the need to provide cover while the process of selecting a person for permanent appointment was in train.
The appointment of the Complainant on a further fixed-term contract in July 2005 cannot logically be separated from the decision to fill the post which he then occupied by competition through the Public Appointments service. If, as is undoubtedly the case, the Respondent had actual or constructive knowledge that the duration of the employment offered to the Complainant on 1 July 2005 would extend beyond the fourth anniversary of his first fixed-term contract it should have known that the terms of that contract would,prima facie,contravene s.9(2) of the Act. As was pointed out inKhan,the Respondent should at least have considered offering the complainant a contract of indefinite duration before renewing his fixed-term contract and decided against doing so for the reason relied upon as constituting objective grounds. There was no evidence tendered to the Court to suggest that the Respondent gave any consideration to appointing the Complainant to the post in issue on a permanent basis as an alternative to filling the post by public competition. In these circumstances it is reasonable to infer that it proceeded on the basis of a policy of adherence to the provisions of the 1926 Act.
The gist of the submissions advanced on behalf of the Respondent is that it is not the Act of 1926, as amended,per se, that is being relied upon but rather the policy which underlines that provision, at least as far as the health service is concerned. It is clear from the decision of the ECJ inAdenelerand from that of the High Court inAhmed v Health Service Executivethat a provision of domestic law cannot provide objective justification for derogating from the requirements of the Act of 2003. The Court must have some doubt as to whether that clear authority can be overcome by recasting the proposition which it rejected in terms of the presumed rationale for the domestic law provision. However the Court should not be understood as regarding this as dispositive of the case.
The purpose of the 1926 Act was to take the appointment of persons to positions in Local Authorities out of the hands of the Local Authorities themselves. That system was extended by subsequent amendments to all public appointments including appointments in the former Health Boards, now the HSE. The system is clearly intended to ensure openness and transparency in the making of public appointments on merit alone. That system is clearly laudable and in the public interest. It is, however, subject to the Act of 2003 and cannot in itself be relied upon to defeat a fixed-term employee’s entitlement to a contract of indefinite duration in accordance with the Act.
Moreover, the proposition advanced by the Respondent in this case is potentially of wide import beyond the medical profession or indeed the health service. It could be said with equal cogency that in respect to many posts in public service management and administration it is crucial that the best possible candidate be appointed. If it were to be accepted that this consideration in itself constituted an objective reason for derogating from s.9(1) or 9(2) of the Act the protection afforded by the Framework Agreement, and the Act, to fixed-term employees across a wide spectrum of the public service would be rendered nugatory.
Objective justification in the instant case.
Having set out its general observations on the points taken by the Respondent in advancing its plea of objective justification the Court should now consider, by reference to the facts of the instant case, if the reasons relied upon meet the statutory test inherent in s. 7 of the Act.
As earlier observed there are three limbs to this test, namely, that the impugned measures: -
(a) correspond to a real need on the part of the undertaking,
(b) are appropriate with a view to achieving the objective pursued, and
(c) are necessary to that end.
Each element of this test must be met before the defence of objective justification can be made out.
It is first necessary to consider if the test should be applied to the circumstances which pertained in July 2005 (when the final fixed-term contract was granted) or whether it should be considered in the wider context of the totality of the Complainant’s employment with the Respondent.
If the question in issue were to be determined solely by reference to the facts prevailing in July 2005 it would be relatively easy to dispose of the matter. The Respondent had obtained approval to appoint an additional Consultant General Surgeon at Tralee General Hospital. It wished to fill that posts by open competition. That was undoubtedly a legitimate objective and corresponded to a real need of the Respondent. Appointing the Complainant to the post on a permanent basis would have defeated that objective. It was therefore appropriate not to appoint him to the post permanently. Furthermore, the Respondent wished to have the duties of the post undertaken while awaiting a permanent appointment and this made the conclusion of a fixed-term contract necessary.
However, in the Court’s view, the case cannot be decided in so narrow a context. At the material time the Complainant had been employed by the Respondent on successive fixed-term contracts since January 2001. By the normal application of s.9(2) of the Act his fixed-term contract could not have extended beyond 1 July 2005, unless saved by s.9(4). Consequently, the right for which the Complainant now contends is not derived from the circumstances of July 2005 but from the totality of his employment with the Respondent.
It is conceded that the Complainant was in continuous employment with the Respondent since January 2001. Further, it matters not that the final contract was expressed to be for a defined purpose since it was a fixed-term contract within the statutory meaning.
Applying the statutory test to the relevant facts viewed in this wider context the Court has concluded as follows: -
Legitimate objective
The desire to obtain the most suitable available person is, in itself, a legitimate objective and is not related to the Complainant’ status as a fixed-term employee.
Are the means chosen appropriate?
On the authority ofLummers, the application of this aspect of the test requires considerations of proportionality. This required the Respondent to put into the balance its needs and requirements with the needs and rights of the Complainant. The Respondent needed a suitable and qualified doctor to provide the services of a consultant in general medicine. The Complainant was such a person. The Respondent wished to open the post to public competition in the hope of obtaining the service of a more suitable person. This must be balanced against the Complainant’s right to stable employment with all that that entails and the fact that he would exceed a period of four years of temporary and insecure employment during the currency of the contracts which he was being offered. He had performed duties similar to those entailed by the post in issue without complaint by the Respondent, in Tralee Geneal Hospital where the permanent appointment was to be made over a prolonged period. There was no reason to believe that he would not have continued to perform those duties satisfactorily. Further, it must have been appreciated that the opening up of the post to competition could, potentially at least, result in the Complainant losing his employment.
It is for the Respondent to make out every element of the defence relied upon and in particular to show that it gave proper and adequate consideration of all material factors in deciding not to offer the Complainant a contract of indefinite duration. There is no evidence to suggest that the Respondent gave any or any adequate consideration to the rights and interests of the Complainant in deciding not to appoint him to the post permanently. Accordingly it must be concluded that its decision was disproportionate and, therefore, inappropriate.
Are the means chosen necessary?
Having found that the failure to offer the Complainant a contract of indefinite duration it is not strictly necessary to consider the final limb of the test.
Conclusion on objective justification
For all of the reasons set out above the Respondent has failed to discharge the burden of showing that there were objective grounds for not granting the Complainant a contract of indefinite duration.
Redress:
The Rights Commissioner awarded the Complainant the sum of €30,000 as compensation for the losses he incurred as a result of his dismissal from his post in September 2006. The Court heard evidence that the Complainant has found it difficult to secure permanent employment with the result that he has held a series of temporary posts in this and other jurisdictions at considerable cost and disruption to his personal, family and financial life. The Respondent said they had not been put in possession of the information they requested of the Complainant to enable them to make submissions on this issue.
The Court is satisfied that the Complainant has suffered significant disruption to his personal, family and professional life since his dismissal in 2006 and upholds the decision of the Rights Commissioner to award him compensation in the sum of €30,000 in this regard.
The Respondent submitted that should the Court decide that the Complainant was unlawfully dismissed that the appropriate remedy should be by way of compensation rather than reinstatement as no suitable posts are available currently in the HSE Southern Region. The Complainant rejected this submission, said that there were many suitable posts available in the Southern Region and that reinstatement and not compensation was his preferred remedy.
The Court has considered this matter in some detail and is satisfied that the appropriate remedy in this case is reinstatement. Accordingly the Court determines that the Complainant be reinstated into a Category 1 Hospital Consultant’s Post with effect from the date of his dismissal in September 2006. The amount of retrospection due to the Complainant arising out of this decision should be abated by the total amount earned by him in other employments since his dismissal.
Determination
The Court is satisfied that the complaint was presented within the time-limit set out in s 14(3) the Act. If it is wrong in this conclusion the Court would be prepared to grant an extension of time up to 31 December 2006, pursuant to s.14(4) of the Act which would bring the case within the time limits set out in the Act.
The Court is satisfied that the Complainant became entitled to a contract of indefinite duration by operation of law and that he held such a contract at the date of his dismissal. The Rights Commissioner directed that he be reinstated in the post on a contract of indefinite duration. In the Court’s view that is the appropriate form of redress. However in respect to arrears of remuneration arising from that decision there should be an offset of the amount earned by the Complainant in other employment since his dismissal.
The decision of the Rights Commissioner in respect of the Complainant’s entitlement to a contract of indefinite duration is affirmed and that aspect of the appeal is disallowed.
The decision of the Rights Commissioner to further award the Complainant compensation of €30,000 is also affirmed and that aspect of the appeal is disallowed.
The decision of the Rights Commissioner is, accordingly, affirmed.
Signed on behalf of the Labour Court
Brendan Hayes
15th October, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.