FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : IRISH MUSEUM OF MODERN ART (REPRESENTED BY ARTHUR COX, SOLICITORS) - AND - JOE STANLEY (REPRESENTED BY HAYES, SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-132469/471/473/475-ft-13/RG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 9th January, 2014. Labour Court hearings took place on the 28th February, 2014. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Joe Stanley (hereinafter referred to as the Claimant) against the Decision of a Rights Commissioner in his claim against the Irish Museum of Modern Art (hereinafter referred to as the Respondent). The claim is made pursuant to the Protection of Employees (Fixed-Term work) Act 2004 (the Act).
The Rights Commissioner found that the Claimant was not a fixed-term employee within the statutory meaning of that term. Having so found the Rights Commissioner declined jurisdiction to investigate the within complaints. The Claimant appealed to this Court.
The Factual Background
The Claimant is engaged by the Respondent as a technician. He is described as a ‘Technical Crew Member’. His undertakes work associated with the technical aspects of moving, presenting and storing works of art in connection with exhibitions. He also works directly with artists in relation to the foregoing. He was described by the Respondent as a member of its ‘casual technical crew’.
The Claimant commenced working for the Respondent in that capacity in or about May 2005. During the currency of his engagement with the Respondent there were short breaks in employment, usually between exhibitions. From the details of the history of the Claimant’s engagements furnished to the Court it appears that he consistently worked less hours per year than other workers who were regarded as permanent or non-causal.
Between 2005 and September 2012 the Claimant was treated by the Respondent as an independent contractor engaged on a contract for services. He was paid on foot of invoices which he submitted and which related to the specific exhibition on which he worked. He did not pay tax under PAYE nor did he receive paid holidays or sick pay.
The Claimant’s engagement with the Respondent was not pursuant to any contract in writing or, if it was, no written contract or agreement was furnished to the Court.
In September 2012 a Deciding Officer of the Department of Social Protection determined that the Claimant was insurable Under the Social Welfare Acts for all benefits and pensions at PRSI Class A from 1stJanuary 2005. The stated reason for the decision was set out in a note to the Decision as follows: -
- “Having examined the available records, I decide that the employment of Mr Joseph Stanley by the Irish Museum of Modern Art (ref: 4800456P) was a contract of service and that a normal employee / employer relationship did exist in this case”.
By email dated 8thJanuary 2013 the Claimant wrote to the Respondent requesting a statement of the terms of his employment pursuant to the Terms of Employment (Information) Acts 1994 to 2012. By letter dated 15thJanuary 2013 the Respondent wrote to the Claimant enclosing a document headed: -
- Statement of Terms and Conditions of Employment for Mr Joe Stanley issued pursuant to Section 3 of the Terms of Employment (Information) Acts 1994 – 2001 [sic].
- “Date of Commencement of Employment
Your employment with the Museum commenced on June 2005
Please note that you are employed by the Museum on an “as required” basis. While this appointment may result in you being offered work from time to time, please be aware that it does not infer any obligation upon you to accept work from the Museum nor does it require the Museum to offer you any work.
Insofar as it is possible, you will be provided with reasonable notice of any work from time to time. Your contract details have been retained for this purpose. I would be obliged if you would please notify us of any change in your contract details from time to time”
- “Termination
Either party is entitled to terminate your employment by giving the period of notice provided for by the Minimum Notice and Terms of Employment Acts 1973- 2005
The Museum reserves the right to pay salary in lieu of notice and / or to place you on paid garden leave during any period of notice”
- "Collective Agreement
Your employment will be governed by any collective agreements entered into between SIPTU and the Museum from time to time that are applicable to your employment".
The Claimant was invited to sign the document and return a copy to the Respondent. The Claimant refused to do so because, he believes, the terms contained therein do not reflect the true terms of his employment with the Respondent.
The Claimant’s Employment Status
The first issue that falls for consideration is whether the Claimant is a fixed-term employee within the statutory meaning of that term. If he is not such an employee he can have no legal standing to maintain a complaint under the Act.
There can be no dispute concerning the Claimant’s status as an employee of the Respondent. That question was resolved by the decision of the Deciding Officer of the Department of Social Protection. The Respondent did not appeal that decision and it accepts that the Claimant’s engagement is pursuant to a contract of service. Arising from the aforementioned decision of the Deciding Officer it is beyond argument that the Claimant has been an employee of the Respondent, on a contract of service, since the commencement of the working relationship in 2005.
The Respondent contends that the Claimant is not a fixed-term employee. Rather, the Respondent contends that the Claimant’s true status in that of a permanent casual employee. The term ‘casual’ or ‘casual worker’ is a colloquial expression which is commonly used in an employment context. It connotes an employee who works as and when required in order to augment the work undertaken by regular or full-time employees. It normally involves a pattern of engagement characterised by breaks or periods of inactivity during which the worker’s services are not required. It is a form of employment that is now commonly referred to as atypical.
The real issue for determination is whether the Claimant was engaged on a series of fixed-term contracts during the periods in which he worked. That is the position contended for by the Claimant. The alternative possibilities is that he worked pursuant to either a single continuing contract of indefinite duration during which he was subject to periods of lay-off between assignments or that he was employed on a series of separate but successive contracts of indefinite duration. In that regard it is noted from the uncontested information furnished to the Court by the Claimant that the periods of inactivity that occurred over the currency of his engagement with the Respondent were short and in some case no more than a number of days. In these circumstances the history of the Claimant’s working pattern is more suggestive of a continuing employment relationship interspaced by periods of lay-off. If that is the correct construction of his employment pattern (and the Court makes no such finding) he could more properly be described as a part-time worker within the meaning of the Protection of Employees (Part-Time Work) Act 2001 (see the definition of a ‘part-time employee’ at Section 7(1) of that Act).
Fixed-term Employment
The meaning to be ascribed to the expression‘fixed-term employee’is to be ascertained from Section 2 of the Act. It provides: -
- “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—
- (a) employees in initial vocational training relationships or apprenticeship schemes, or
(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;
- (a) employees in initial vocational training relationships or apprenticeship schemes, or
In holding that the plaintiff was not a fixed-term employee, Laffoy J explained the essential characteristic of a fixed-term contract as follows:-
- “First, on the facts, in my view, subs.(1) of Section 9 has no application to the plaintiff's employment with the defendant. Accordingly, the question which has to be considered is whether the plaintiff's contract of employment with the defendant contravenes subs.(2) of Section 9.
Secondly, in applying subs.(2), the first question which arises is whether the plaintiff was from the commencement of his employment with the defendant under the Executive Contract “a fixed-term employee” . The application of the definition of fixed-term employee to the plaintiff as an employee of the defendant under the Executive Contract raises the question whether the end of the Executive Contract is determined by an objective condition. Having regard to the examples of “objective condition” set out in the definition, and also in Section 8(1) of the Act of 2003, I understand “objective condition” to mean a condition which is identifiable by reference to the object, that is to say, the condition, without reference to the view or perception or intervention of either party to the contract. A contract, such as the Executive Contract, the term of which is expressed to be from the commencement date for a period of four years and continuing for further periods of four years unless determined by six months' notice from the employer given at least six months before the expiration of any four year period cannot be said to be determined by an objective condition, because the intervention of the employer, which may or may not happen, and in this case did not happen over a period of eight years, is necessary to give rise to and identify the determining event.”
Application to the Instant Case
The Claimant contends that each time he is engaged by the Respondent it is in respect of a particular exhibition and when that exhibition is completed his employment cesses. There is no doubt that the duration of the various engagements afforded to the Claimant was always closely linked to various exhibitions on which he worked. Nonetheless, the evidence before the Court indicates that the intervention of the Respondent was required to bring about a cessation of any engagement, whether by lay-off or otherwise. The Respondent could decide to retain the Claimant for other work and it could decide which of the technical crew members was to be let go or the order in which they were to be let go. That is evident from paragraphs 9,10 and 11 of his written submission to Court in which he complained of being “left guessing” concerning his future employment and of the uncertainty of not knowing when his engagements would cease.
There is no evidence to indicate that cessation of the Claimant’s engagements came about automatically either by the effluxion of time or by the completion of a specific task. Rather, his engagements ceased when the Respondent decided that his services were no longer required. While that may have coincided with the closure of an exhibition it was the intervention of the Respondent that brought about the cessation rather than the completion of a specific taskper se.
Conclusion
In these circumstance the Court has come to the conclusion that the Claimant was not employed by the Respondent pursuant to a series of fixed-term contracts and that he is not a fixed-term employee within the statutory meaning of that term. Accordingly, he lacks legal standing to maintain the within complaints.
Determination
The Decision of the Rights Commissioner is affirmed and the within appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
6th May 2014______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.