INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003
MARKS AND SPENCER (IRELAND) LTD
- AND -
MS LAVERNE LYSTER
(REPRESENTED BY MANDATE)
Chairman: Mr Duffy
Employer Member: Ms Cryan
Worker Member: Ms Tanham
1. Appeal Of Rights Commissioners Decision r-126505-ft-12/SR, r-126506-ft-12/SR, r-126507-ft-12/SR & r-126508-ft-12/SR.
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court hearing took place on the 21st August, 2013. The following is the Labour Court's Decision:-
This is an appeal by Marks and Spencer (Ireland) Limited against the decision of a Rights Commissioner in a claim by Ms Laverne Lyster under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).
In this Determination Marks and Spencer (Ireland) Ltd is referred to as the Respondent and Ms Lyster is referred to as the Claimant.
The Claimant was employed by the Respondent on a number of short term fixed-term contracts between 30thOctober 2009 and 30thJune 2012. Most of these contracts were to cover busy trading periods around Christmas. As part of this series of contracts the Claimant was employed by the Respondent from 24thOctober 2011 until 31stDecember 2011. She was offered and accepted a further contract commencing on 16thJanuary 2012 and due to expire on 31stMarch 2012. This contract was subsequently renewed for an additional three months commencing on 1stApril 2012 until 30thJune 2012. Following representations made on her behalf by her Trade Union MANDATE, the Claimant was given a further period of fixed term employment commencing on 30thOctober 2012 until 22ndDecember 2012. This period of employment was subsequently extended to 29thDecember 2012.
The Claimant complained to a Rights Commissioner that the Respondent had contravened the Act in not providing her with a statement setting out the objective grounds upon which her fixed term employment was renewed and upon which she was not offered a contact of indefinite duration. The Claimant further contends that during the currency of her fixed-term employment with the Respondent she sought to apply for advertised permanent vacancies with the Respondent but was refused a facility to do so because she was a fixed-term employee.
The within complaints were received by the Rights Commissioner Service of the Labour Relations Service on 1stOctober 2012. Following an application in that behalf, the Rights Commissioner extended the time cognisable by the complaint, for reasonable cause shown in exercise of his power under s.14(4) of the Act, to 1stJanuary 2012. No issue was taken in the course of this appeal to the granting of that extension. Consequently, the complaint in so far as it relates to the alleged failure of the Respondent to provide a statement of objective grounds in respect of the renewals of the Claimant’s fixed-term employment on 16thJanuary 2012 and on 1stApril 2012 are within time. Furthermore, any contraventions of the Act in relation to the filling of permanent vacancies in the period from 1stJanuary 2012 to 1stOctober 2012 are likewise cognisable for the purpose of obtaining redress.
Firstly it is necessary to consider the ambit to be ascribed to a number of statutory provisions so as to ascertain the nature of any cause of action available to the Claimant.
Section 8 of the Act 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.
- (a) arriving at a specific date,
The provision of subsection (2) of this section is relevant for present purposes. It is accepted that subsection (1) was complied with. However it is clear that the Claimant was not furnished with a statement of the type envisaged by subsection (2) of the section in respect of the renewals of her fixed term employment on 16thJanuary 2012 and 1stApril 2012.
In Determination FTD065,Galway City Council and Mackeythis Court considered the nature of the obligation imposed by s.8 of the Act. Here the Court held: -
- Section 8(2) is a mandatory provision admitting of no exceptions. What is clearly obligated is that the required notice be served before the renewal of the contract. That did not happen in this case and this omission can neither be overlooked nor excused by the Court.
Section 10 of the Act provides: -
- 10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.
(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.
(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.
Article 6 of the Framework Agreement provides: -
Information and employment opportunities (clause 6)
1. Employers shall inform fixed-term workers about vacancies which become available in the undertaking or establishment to ensure that they have the same opportunity to secure permanent positions as other workers. Such information may be provided by way of a general announcement at a suitable place in the undertaking or establishment.
2. As far as possible, employers should facilitate access by fixed term workers to appropriate training opportunities to enhance their skills, career development and occupational mobility.
The Court went on to hold that the wording of s.10(1) of the Act and clause 6 of the agreement indicates that fixed-term employees not only have a right to be informed of permanent vacancies but have a concomitant entitlement to compete for available vacancies within an undertaking. On that point the Court was clearly convinced that it would be a manifest absurdity to hold that an employer could be obligated to inform a fixed term employee of a permanent vacancy and yet be free to deny such an employee an opportunity to compete for the vacancy on the same terms as other workers.
The Court’s decision inAer Lingus v A Group of Workerswas subsequently opened to the High Court inMinister for Finance v Una McArdle 2 ILRM 438. That case came before the High Court by way of an appeal on a point of law from a decision of this Court. Ms McArdle claimed, inter alia, that her rights under s.10(1) of the Act were infringed when her employer refused to allow her to apply for a permanent promotional position because she was a fixed-term employee.
In reviewing the arguments advanced by the parties Laffoy J said: -
- I did not understand it to be the plaintiff's case either before the Labour Court or in this court that the defendant was not entitled to information in accordance with s.10(1). Further, the plaintiff accepted that the obligation in s.10(1) to inform employees of vacancies carries a concomitant obligation to allow the employees to apply for such vacancies.
While a point conceded in a case is not the equivalent of a point decided, Ms Justice Laffoy went on to hold that the finding of this Court that the Respondent had contravened s.10(1) of the Act in disqualifying the Claimant from competing for the disputed permanent vacancy because of her status as a fixed term employee did not involve an error of law.
Application in the instant case
It is noted that the Claimant grounded her complaint concerning the filling of permanent vacancies on s.6 of the Act. In the Court’s view this complaint should more properly be considered by application of s.10(1) of the Act. However, the factual basis of the claim has remained unchanged and no issue on this point was taken by the Respondent. Moreover, it appears that the practice of the Respondent is to open application for all permanent vacancies to existing employees in the first instance. In that regard it could be held that the right to apply for other positions (subject to certain qualifications) is an implied term of employment for permanent staff. Consequently, a failure to extend a similar term to fixed term employees could also amount to a contravention of s.6 of the Act.
There is no dispute concerning the fact that the Claimant was not furnished with a statement in writing setting out the objective grounds relied upon for the renewal of her fixed term employment and the reasons for not offering her a contract of indefinite duration.
There was, however, considerable conflict between the parties as to what was said to the Claimant in relation to whether she could apply for a permanent position during the currency of her fixed term employment. The Court took sworn evidence from the Claimant and from two members of the Respondent’s management on this point.
The Claimant told the Court in evidence that on or about 26thJune 2012 she was aware of permanent vacancies with the Respondent. She said she asked Ms Burns (HR Manager) if she could apply and was told that she could not because she was temporary. She said she told Ms Burns that she knew of a temporary employee who was allowed apply and Ms Burns said she would look into this. She said Ms Burns did not come back to her.
Two members of management, Ms Reilly and Ms Green told the Court in sworn evidence that the practice of the Respondent was that in order to apply for a vacancy an employee needed to obtain a recommendation from his or her line manager. This practice applied to all employees including temporary employees. Ms Reilly gave evidence to the effect that the Claimant had, in fact, been recommended by her line manager in December 2011 for a permanent vacancy and had been interviewed by that witness for the position but her application was unsuccessful. The Claimant had no recollection of having been put forward for a permanent post at that time or of having been interviewed. It is clear, however, the Claimant was not engaged on a fixed term contract at the material time as her prior contract had expired. Ms Green told the Court that Ms Lyster asked her circa April 2012 if she could apply for permanent positions and she (Ms Green) said she would check with the Recruitment Team and get back to her. Ms Green said she later informed Ms Lyster that she would need her section to release her and have the recommendation of her Line Manager to apply for any permanent positions.
The Court was informed that a Line Managers Recommendation was solely for the purpose of indicating the suitability of an applicant for permanent employment by reference to their work performance. However, the witnesses for the Respondent also told the Court that a fixed term employee would have to be ‘released’ by his or her manager in order to apply for another position. The Respondent’s position in that regard was also confirmed to the Claimant’s Union representative by letter dated 7thNovember 2012. In this letter it was pointed out that in the period up to 30thJune 2012 the Claimant was committed to her fixed term contract and that her section was unable to ‘release’ her and provide her with a Line Manager’s Recommendation for a permanent position.
The Claimant gave sworn evidence that in or about 26thJune 2012 she was informed by a named manager that she could not apply for a permanent position because she was a fixed term employee. The person who she said provided that information was not available to give evidence. On the balance of probabilities the Court accepts that the Claimant’s recollection of the conversation to which she referred is substantially correct.
Accordingly the Court must hold that the Claimant was disqualified from applying for a permanent vacancy because of her status as a fixed term employee. This amounted to a contravention of s.10(1) of the Act.
For the reasons already mentioned the Court is satisfied that the Respondent contravened s.8(2) of the Act in relation to the Claimant.
The Court concurs with the conclusions and finding of the Rights Commissioner although it finds that the contravention in relation to the filling of a permanent vacancy should be dealt with by application of s.10(1) of the Act rather than s.6. With this amendment the decision of the Rights Commissioner is affirmed and his award of compensation in the amount of €4,000 is also affirmed. The Respondent’s appeal is disallowed.
Signed on behalf of the Labour Court
28th August, 2013______________________
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.