INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MS MANDY O' NEILL
(REPRESENTED BY HAMILTON TURNER SOLICITORS)
Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Mr Shanahan
1. Appeal of Rights Commissioners Decision r-114225-ft-11
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 20th December, 2011. A Labour Court hearing took place on the 8th May, 2012 with a subsequent hearing taken place on the 7th August 2012. The following is the Labour Court's Decision:-
This is an appeal by Ms Mandy O'Neill (the Complainant) against the Decision of a Rights Commissioner which found that her claims under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) fell for lack of prosecution when she failed to attend the hearing.
The claims referred to the Rights Commissioner concerned an allegation that Dublin Institute of Technology (the Respondent) failed to provide her with a written statement in accordance with Section 8 of the Act, and failed to provide her with a contract of indefinite duration in circumstances where she became entitled to such a contract by operation of law pursuant to Section 9 of the Act. Furthermore, she claimed that her dismissal on 11thJune 2011 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.
At the outset of the hearing Counsel for the Complainant accepted that the claim under Section 8 of the Act was out of time.
The essence of the Complainant's case is that if her specified-purpose contract which expired on 11th June 2011 had been renewed she would then have satisfied the requisite conditions under Section 9(2) of the Act, thus transmuting her fixed-term contract to one of indefinite duration. The Complainant contends that the Court should infer that in not renewing her specified purpose contract the Respondent was motivated in whole or in part by a desire to avoid such an eventuality.
The Respondent denied that the non-renewal of the Complainant's post was connected with the purpose of avoiding her specified purpose contract being deemed to be one of indefinite duration. It is the Respondent's case that the Complainant was at all times covering for an employee on a career break. When that career break came to an end so too did the Complainant's specified purpose contract. The Respondent then in accordance with its recruitment procedures advertised the post externally. The Complainant applied for the post but was unsuccessful.
At the hearing of the appeal it emerged that the Complainant had been employed prior to the commencement of the specified purpose contract which is the subject of this claim. The Court requested both parties to submit further submissions on this point.
It transpired that the Complainant was employed as a Laboratory Supervisor from November 2005 until June 2006 on a set of fixed term contracts which were renewed each academic year until June 2009. This set of fixed term contracts were separate to the specified purpose contract which commenced in September 2006. The Complainant commenced on a new fixed term contract from 2nd November 2009 as a Tutor/Senior
Demonstrator, this contract was renewed on 20th September 2009 and expired on 30thJune 2011.The Complainant was offered further employment from September 2011 on a fixed term contract until June 2012, however she resigned on the commencement of that contract.
Summary of the Complainant's Case
Mr. Ray Ryan, B.L., instructed by Hamilton Turner Solicitors, on behalf of the Complainant stated that on the 12th September 2006 the Complainant was employed on a specified purpose contract as a Technician to cover for a Ms X who was on a career break which would expire when Ms X returned to work. Ms X was allowed a career break for up to five years. Ms X did not return to work, and the Complainant continued to work for the Respondent until 11th June 2011.
Counsel for the Complainant stated that the contract was drafted by the Respondent, and the Complainant had no input into its drafting. He submitted that the Complainant had a continuous employment relationship with the Respondent between September 2006 and June 2011.
Counsel relied on Clause 7 of the Contract of Employment which provides inter alia:
"This is a Specified Purpose contract subject to satisfactory service during the probationary period, and to this contract of employment. You are covering for [Ms. X] who is currently on career break.This contract will expire when [Ms. X] returns to work".
Mr Ryan relied upon the specified purpose to ground his complaint. He submitted that the Complainant's entitlement to a contract of indefinite duration arose from her having completed four years continuous fixed-term employment within the meaning of Section 9 of the Act and in the absence of objective grounds justifying the Respondent's failure to offer her a contract of indefinite duration, her employment transmuted to employment of indefinite duration by operation of Section 9(3) of the Act. Moreover, he submitted that there was no objective justification for the Respondent keeping the Complainant on a specified purpose contract.
Further or alternatively, Counsel submitted that her employment came to an end in circumstances amounting to penalisation, to prevent her from becoming entitled to a contract of indefinite duration, contrary to Section 13(1)( d) of the Act.
Mr Ryan stated that the Complainant's position was not redundant. Reliance was placed on the fact that subsequent to the purported termination of her employment, the Complainant was approached by the Respondent and asked if she would continue working as an independent contractor to carry out maintenance work (this offer was not availed of).
Counsel submitted that the failure of the Respondent to offer the Complainant a further contract as a Technician, was done in order to avoid her contract becoming a contract of indefinite duration and this amounted to penalisation within the meaning ascribed to that term under the Act.
Mr Ryan stated that at the time of the Complainant's purported dismissal, she had been in employment for a total of 4 years and 9 months. By letter dated 16th May 2011, the Respondent wrote to the Complainant advising her that her contract would come to an end on 11th June 2011, as the career break of Ms. X was coming to an end. But the Complainant's contract clearly stated that it would come to an end when Ms. X returned to work, Ms X never returned to work.
Mr Ryan said that the specified-purpose in this case did not come to a natural end. The reason for the termination was not due to a lack of available work.Some two months after the Complainant's contract came to an end the position which she had filled was advertised and was filled in January 2012. Mr Ryan submitted that in such circumstances it was clear that the Complainant's job still existed and consequently the desire to terminate her employment was motivated in whole or in part by a desire to avoid the Complainant obtaining a contract of indefinite duration and as the aggregate duration of her contracts exceeded four years she had a contract of indefinite duration by operation of law.
Mr Ryan submitted that this Court is required to interpret Section 9 in a manner consistent with the obligation imposed on Ireland by Clause 5 of the Framework Agreement annexed to Council Directive99/70/ECwhich is designed to prevent abuse arising from the use of "successive fixed-term employment contracts or relationships".
Summary of the Respondent's Case
Mr Gary O'Mahoney, IBEC on behalf of the Respondent rejected the claims submitted by the Complainant. He stated that the contract of employment which is the subject of this claim was a specified-purpose contract for the role of part-time Technician (Photography) working 20 hours per week throughout the academic year. It commenced in September 2006 and came to an end in June 2011 when its specified purpose came to an end. In his second submission to the Court, Mr O'Mahoney stated that the second employment relationship which the Complainant had with the
Respondent was as a part-time Laboratory Supervisor. This was a different job. It commenced in November 2005 and ended in June 2009. During that time, the Complainant worked for (on average) two hours per academic week. This separate employment relationship commenced before the contract which is in issue in this case and continued during the currency of that contract. It came to an end in 2009 and had no bearing on the contract the subject matter of this Complaint.
Mr O'Mahoney submitted that the granting of the specified-purpose contract in September 2006 could not be said to be a renewal of the Laboratory Supervisor fixed-term contracts which commenced in November 2005 and renewed each academic year until 2009, nor did it create continuity between the two contracts within the meaning of the Act.The two contracts were radically different and the Laboratory Supervisor contracts continued during the currency of the specified-purpose contract. The Complainant was engaged on the Laboratory Supervisors contract specifically for laboratory supervision at night for health and safety reasons, she was working on average 2 hours per night and was paid €22.09 per hour worked. The specified-purpose contract was a 20 hour contract to carry out Technician work, for which the Complainant was paid an annual salary of €16,586, i.e. point 1 of the Technician's scale and the work was carried out in day time hours. It was for the specific purpose of covering for Ms X while she was on a Career Break. The Respondent's Career Break policy provides for staff to avail of an approved leave of absence for a minimum of one year to a maximum of five years. Mr O'Mahoney stated that it was not possible to predict with certainty the duration of a career break, therefore a specified-purpose contract is granted to those employees covering the duties of those on career break.
On 4th March 2011, Ms X notified the Respondent that she was resigning from her post following her career break, on 11th June 2011.TheComplainant was subsequently advised that her specified-purpose contractwould cease on 11th June 2011.
Mr O'Mahoney submitted that the Laboratory Supervisor contract is not relevant to a claim relating to the specified purpose contract and the Complainant has not at any point asserted that it was. It only emerged at the end of the first hearing before the Court that the Complainant had in fact been in employment with the Respondent prior to the specified purpose contract which commenced in September 2006.
In the alternative, he submitted that even if the specified-purpose Technician contract was in some sense a renewal of the Laboratory Supervisor contract or created continuity with it, there were objective grounds justifying the granting of the Technician contract on a specified-purpose basis, and those grounds remain justified despite that the aggregate duration of the two contracts eventually exceeded four years. Those objective grounds arise from the Respondent's need to effectively operate its Career Break Scheme. That Scheme achieves a legitimate social policy objective and other legitimate aims of the Institute.
Findings of the Court
The Court must first consider whether the Complainant falls within the
scope of Section 9(2) of the Act:-
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
Were there two separate employments in existence?
The Complainant contends that by operation of Section 9(2) of the Act she became entitled to a contract of indefinite duration as the aggregate duration of her fixed-term employment exceeded four years. The Respondent contends that the Complainant did not have the requisitetwoor more continuous fixed-term contractsin order to accrue a contract of indefinite duration by application of Section 9(2). The Complainant had a fixed-term contract as a Laboratory Supervisor for two hours per week at night which commenced in 2005 and renewed each year until 2009. The contract the subject matter of this claim was on the other hand a specified-purpose contract to cover a career break being taken by one of its employees. It was a single contract as opposed to the Laboratory Supervisor's contract which was renewed each year.
It is not disputed that the Complainant was in continuous employment with the Respondent during each of the employments concerned. Further, it matters not that the September 2006 contract was for a defined purpose since it was a"fixed-term contract"within the statutory meaning of Section 2 of the Act.
The question is whether the Complainant's different contracts can be regarded as "continuous" within the meaning of Section 9(2).
Based on the facts of this case, the Court is satisfied that the specified-purpose Technician contract entered into in September 2006 was entirely separate to the Laboratory Supervisor fixed-term contract she commenced in November 2005 and which was renewed in the academic years 2006, 2007 and 2008.
Section 9(5) of 2003 Act makes it clear that what constitutes "continuous employment" for the purpose of applying Section 9 is to be determined by reference to the First Schedule of the Minimum Notice and Terms of Employment Act 1973. However, in this case there is no question of a break in service so it's not necessary to consider that definition.
The word "continuous" is generally accepted as meaning continuing without changing, stopping or being interrupted and in this case the Court is satisfied that the particular contracts are so separate from each other that they could not be deemed to be continuous contracts within the meaning of the Act. That is not to say that in appropriate cases contracts which the employer may deem separate may in fact be deemed continuous within the meaning of Section 9(2).
The Court is satisfied that while the Laboratory Supervisor contract was renewed in September 2006, it was entirely separate to the specified-purpose Technician contract which commenced at the same time and could not be regarded as a renewal of the Laboratory Supervisor contract, they were separate and distinct employments, running concurrently to one another. Consequently, the Court finds that there was no contravention of Section 9(2).
Was there a renewal of contracts?
The Act was enacted to give effect in domestic law to Directive1999/70/ECconcerning the Framework Agreement on Fixed-Term Work concluded byETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June1999 of the Council of the then European Communities. The purpose ofthe Framework Agreement is set out at Clause 1 thereof as follows: -
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.
According to Section 8(1) of the Act, an employer is obliged to inform a fixed-term employee as soon as practicable of the objective condition determining the contract such as arriving at a specific date, completing a specific task or the occurrence of a specific event. Section 8(2) deals with the situation where an employer wishes torenewa fixed-term contract by providing that in such circumstances,"the fixed-term employee shall beinformed in writing by the employer of the objective grounds justifying therenewal of the fixed-term contract and the failure to offer a contract ofindefinite duration, at the latest by the date of the renewal "
The Complainant relies on the specified-purpose Technician contract to ground her complaint. This was a temporary contract entered into in September 2006 for the specific purpose of covering for Ms X while she was on a career break.
On that basis the Complainant was furnished with a statement in writing pursuant to Section 8. The Respondent seeks to rely on the content of that statement in advancing its case. It is not disputed that the contract was entered into for the purposes of providing cover for Ms. X while she was on a career break.
The Decision of the High Court inRussell v Mount Temple Comprehensive School IEHC 533 makes it clear that Section 9(4) and by extensionSection 9(3) of the Act takes effect at the commencement of the impugnedcontract, therefore it is the authority for the proposition that the existenceof objective grounds is to be judged by reference to the circumstancespertaining at the time the contract is concluded.
Section 9 provides:
- "(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 four 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 Acts1973to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous."
Subsections (1), (2) and (3) of Section 9 are not applicable to the renewal of a fixed term contract (where there are objective grounds justifying such a renewal). As there was no renewal in this case, Section 9 has no application so therefore while it's not necessary to dispose of the case for the sake of completeness, the Court has had regard toRussell v Mount TempleComprehensive School.
The reasons relied upon as constituting objective grounds for the purposes of the Act must have been the reasons operating on the mind of the relevant decision-maker at the time the impugned decision was made. On the evidence it is clear that the stated reasons for the temporary nature of the Complainant's specified purpose employment were those relied upon in September 2006 at the commencement of the contract, therefore the Court is satisfied that the Respondent definitively committed itself to the reasons for the temporary nature of the contract at the time it was entered into, thereby rendering the contract lawful under the Act. It cannot be rendered unlawful by subsequent events.
Claim of penalisation
The Complainant contends that she was dismissed by the Respondent for the purpose of avoiding her fixed-term contract becoming one of indefinite duration. Such a contention does not sit easily with the fact that the Complainant continued in employment post the expiry of her specified purpose contract until her resignation on 29th August 2011.The
Complainant had been offered a fixed term contact as a Tutor/Senior Demonstrator to commence on 1st September 2011 until June 2012.
Circumstances in which Penalisation can arise
Section 13(1)(d) of the 2003 Act operates where a dismissal is 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 Section 9 (3) of the Act.
However, as the Court had found that the contract which the Complainant was furnished with in 2006 was lawfully entered into and was not renewed, therefore the provisions of Section 9 do not apply, the Court cannot see any basis upon which it could entitle the Complainant to redress under Section 13(1)(d) of the Act.
The Court finds that the Respondent was not in contravention of the Act. The Complainant's appeal is disallowed. The Decision of the Rights Commissioner is varied in the terms of this Determination.
Signed on behalf of the Labour Court
24th September 2012Deputy Chairman
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.