FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DEPARTMENT OF SOCIAL PROTECTION - AND - FIONA MC LOUGHLIN (REPRESENTED BY CIVIL, PUBLIC AND SERVICES UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms O'Donnell |
1. Appeal of an Adjudication Officer's Decision No(s).r-157374-ft-15
BACKGROUND:
2. This case is an appeal of an Adjudication Officer's Decision No. r-157374-ft-15 made pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act 2003. The appeal was heard by the Labour Court on 6th July, 2016 in accordance with Section 44 of the Workplace Relations Act, 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Ms Fiona McLoughlin against the Decision of an Adjudication Officer which found against her claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).
The claims referred to the Adjudication Officer concerned an allegation that the Department of Social Protection failed to provide her with a contract of indefinite duration in circumstances where she became entitled to such a contract from 2ndJuly 2012 by operation of law pursuant to Section 9(3) of the Act. She claims that this entitlement arose from having completed more than four years’ continuous fixed-term employment and in the absence of objective grounds justifying the failure to offer her a contract of indefinite duration. The Adjudication Officer found that there were objective grounds justifying the renewal of the Complainant’s contracts beyond the four years set out in Section 9(2) of the Act.
The Complainant also submitted a claim alleging a breach by the Respondent of Section 8 of the Act as she did not receive a written statement setting out the objective grounds in the fixed-term contract furnished to her on 2ndJuly 2012. The Adjudication Officer found this claim out of time.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Fiona McLoughlin will be referred to as “the Complainant” and the Department of Social Protection will be referred to as “the Respondent”. The Complainant referred her complaint to the Workplace Relations Commission on 26thJune 2015.
Background
The Complainant was employed by the Respondent as a Clerical Officer on a number of successive fixed-term contracts and the reasons cited were as follows:-
- (i)21stMay 2007 – 1stSeptember 2007 “to cover Term Time absence of a permanent member of staff in the Pensions Services Office;
(ii)30thJune 2008 – 30thAugust 2008 “to provide cover during the absence of a member of staff while on Term Time/Maternity or Sick Leave (whichever is applicable);
(iii)15thJune 2009 – 28thAugust 2009 “for the purpose of Term Time”
- (iv)18thJanuary 2010 – 16thApril 2010 2 “for the purpose of the Shorter Working Year absence of a permanent staff member”;
- (v)28thJune 2010 – 27thAugust 2010“for the purpose of the Shorter Working Year absence of a permanent staff member”;
- (vi)18thOctober 2010 – No end date “for the purpose of a staff member absence” and the contract was extended from 26thSeptember 2011 – 7thOctober 2011;
(vii)10thOctober 2011 – no end date “for the purpose of a staff member absence” and the contract was extended from 19thApril 2012 – 25thMay 2012, and from 17thMay 2012 – 25thMay 2012;
(viii)2ndJuly 2012 – no end date “for the purpose of a staff member absence”and this contract continues to subsist.
Summary of the Complainant’s Case
Ms Cliodhna McNamara, CPSU, on behalf of the Complainant, submitted that the Complainant was employed on a number of fixed-term contracts with the Respondent. She said that it is recognised and accepted that temporary and fixed-term contracts are normal for the purpose of meeting the temporary and/or transient needs of the Respondent. Ms McNamara accepted that each of the renewals prior to the 2ndJuly 2012 contract were objectively justified, however, she held that as the latter contract was vague and was purportedly covering for a member of staff who has and continues to be absent on sick leave since 2ndJanuary 2008, therefore, the grounds relied upon by the Respondent cannot be considered as objective grounds.
Ms McNamara referred to the definition of a fixed-term contract in Section 2 of the Act which stated that the contract would be one which could be concluded by arriving “a specific task or occurrence of a specific event”. Ms McNamara submitted that the reasons advanced by the Respondent, namely, to provide cover for a staff member’s absence were too imprecise to constitute objective justification for the renewal of the contract particularly when at no stage was the Complainant informed of the details of “a staff member’s absence” or when such an absence was likely to end. As far as the Complainant was aware at the time her claim was submitted under the Act, the absent person for whom she was supposedly covering had been out of work for over seven-and-a-half years with no likely return date. The Complainant had been covering for that person for four-and-a-half years and the Respondent had given her no specific date upon which her services would no longer be required.
Ms McNamara stated that the Respondent had not provided the Complainant with objective grounds for her 2012 temporary contract and that the grounds relied upon in reality were solely based on the temporary status of the Complainant as a fixed-term worker.
Ms McNamara also submitted that the failure of the Respondent to provide objective grounds in the 2ndJuly 2012 contract was a breach of Section 8 of the Act. She submitted that the Court should not dismiss this claim as being out of time as it would be an onerous task if an employee had to bring such a claim within a six-month period every time their contract was renewed.
Summary of the Respondent’s Position
Ms Lauren Tennyson, B.L., instructed by the Chief State Solicitor’s Office, on behalf of the Respondent, submitted that the Complainant’s employment for the purposes of this claim commenced on 2ndJuly 2012 and accordingly she did not meet the requirements of Section 9(3) of the Act. In any event, without prejudice to this point, Ms Tennyson contended that there were objective grounds for the renewal of her temporary contracts.
In relation to the above point, Ms Tennyson submitted that on the completion of the Complainant’s contract which commenced on 10thOctober 2011 she was furnished with her P45 and her employment ended with the Respondent. Mr Tennyson contended that the Complainant recommenced employment with the Respondent on 2ndJuly 2012 and that such a situation did not amount to a continuity of employment as the Complainant was not on lay-off during the period between the two contracts. Ms Tennyson maintained this position as the Complainant was on a Department of Social Protection (DSP) panel for the appointment of Temporary Clerical Officers (TCOs) between 2007 and 2011. This panel ceased and from May 2011 the Public Appointments Service (PAS) took over the role of setting up and operating the TCO panel. Therefore, Ms Tennyson said that from May 2011 onwards if the Complainant wished to be placed on the annual panel established by the PAS she had to apply each year through the PAS to be on the panel for TCOs. TCOs are only offered one contract annually from the PAS panel regardless of the duration of the TCO contract. Therefore as the Complainant was required each year to apply to the PAS to be included on a TCO panel the period between 25thMay 2012 and 2ndJuly 2012 could not be regarded as a lay-off and consequently the Complainant did not have continuity of employment.
Section 8 Claim
Section 14 of the Act sets down time limits within which a complaint under the Act must be initiated before an Adjudication Officer can have jurisdiction to entertain the complaint. Section 14(3) of the Act provides that a complaint must be presented within a period of six months from the date on which the contravention to which the complaint relates is alleged to have occurred. Section 14(4) provides, in effect, that the time for bringing a complaint may be extended where reasonable cause is shown but only up to a period of twelve months from the date of the alleged contravention.
This is a mandatory provision the effect of which is to extinguish any claim that an aggrieved person may have which has not been presented within a period of twelve months from the date of the alleged contravention to which it relates. The Court has no discretion whatsoever to extend the time beyond the twelve-month period referred to at Section 14(4).
The Complainant's complaint alleging a breach of Section 8 of the Act was presented over 34 months after the latest date on which the contravention of the Act of which she could complain occurred. Accordingly the Court has no jurisdiction to entertain the complaint.
Section 9 Claim
Position of the parties on the question of continuity of employment
In summary the Respondent contends that the Complainant’s employment ended on 25thMay 2012 and recommenced on 2ndJuly 2012 and that the period between those contracts cannot be regard as a lay-off. Ms McNamara disputed this contention firstly as there was a clear expectation that the Complainant would be called back for further work with the Respondent and secondly that she had essentially been doing the same work for the Respondent from 2007 until the date of claim. Sometimes this work was in the same office and often at the same desk under the same terms and conditions of employment of the Respondent.
The Law
The circumstances in which broken periods of employment can be regarded as continuous has been considered by this Court in a number of previous cases starting with the decision inDepartment of Foreign Affairs v Group of Workers[2007] ELR 332 and more recently inWilliam Beary v Revenue Commissioners[2011] 22 ELR 137.
In these cases the Court had to consider the apparent conflict between the language of Article 5 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC (hereafter the Directive), and that of the Act, which was enacted to transpose the Directive into domestic law. While Section 9 of the Act is directed at preventing the unlimited use ofcontinuousfixed-term contracts the objective of the Directive is to combat the abuse ofsuccessive fixed-term contracts. In that regard, there appears to be a conflict between the language used in the Act and that of the Directive. As the Court pointed out inWilliam Beary v Revenue Commissioners, while all periods of employment which are continuous are necessarily successive not all employment which is successive is necessarily continuous.
InWilliam Beary v Revenue Commissionersthe Court observed as follows: -
- The relevant statutory provisions in that regard are to be found at s.9 of the Act of 2003 and in the First Schedule of the Minimum Notice and terms of employment Act 1973-2001. It is noteworthy that the marginal note to s.9 refers to “successive fixed-term contracts”. However under s.18 (g) of the Interpretation Act 2005 the marginal note is not to be regarded as part of a statute.
The section plainly refers to continuous employment and continuous contracts. However, s 9(5) makes it clear that what constitutes continuous employment is to be determined by reference to the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2001. It is well settled that where an Act provides its own definitions a Court should not look outside those definitions in ascribing meaning to word used in the statute (see Mason v Levy [1952] IR 40)
COMPUTATION OF CONTINUOUS SERVICE.
Continuity of Service
1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—
- (a) The dismissal of the employee by his employer or
(b) The employee voluntarily leaving his employment.
3. A lay-off shall not amount to the termination by an employer of his employee's service.
4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.
5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.
6. The continuous of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.
7. If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.
Computable Service
8. Any week in which an employee is not normally expected to work for at least twenty-one hours or more will not count in computing a period of service.9. If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence shall count as a period of service.
10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—
- (a) a lay-off,
(b) sickness or injury, or
(c) by agreement with his employer,
11. If, in any week or part of a week, an employee is absent from his employment because he was taking part in a strike in relation to the trade or business in which he is employed, that week shall not count as a period of service.
12. If, in any week or part of a week, an employee was, for the whole or any part of the week, absent from work because of a lock-out by his employer, that week shall count as a period of service.
- (a) The dismissal of the employee by his employer or
Where employment comes to an end and there are reasons to believe that the cessation will not be permanent the break in employment can be regarded as a lay-off which in accordance with the First Schedule does not break continuity of employment. In previous cases the Court was prepared to take a liberal view of what constitutes a lay-off in order to reconcile the apparent dichotomy between the wording of the Act and that of the Directive. There are, however, limits to which the language of the Act can be strained in order to achieve that objective.
InWilliam Beary v Revenue Commissionersthe Court held: -
- The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive. In that regard it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently. Hence it could reasonably be said that where a person's employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous. This would be to adopt an extended and somewhat more liberal interpretation of the term “lay-off” such as was done inDepartment of Foreign Affairs v A Group of Workers [2007] E.L.R. 332. Whiles.11 of the Redundancy Payments Act 1967, which defines the notion of lay-off for the purposes of both that Act and the Act of 1973, requires that notice of the employers belief that the cessation of employment will not be permanent be given, the law has long accepted that notice can be actual, constructive or imputed.
- Break in Service
Therefore the Court is satisfied that the period in question can be considered as a lay-off and accordingly is satisfied that the Complainant has continuity of employment within the meaning of the First Schedule of the Minimum Notice and Terms of Employment Act 1973.
- Objective Grounds
The Respondent relies on Section 9(4) of the Act and contends that there were objective grounds justifying the continued employment of the Complainant for a fixed-term beyond the period normally permitted by Section 9(2) of the Act. The objective grounds relied upon by the Respondent related to the need to provide cover on a temporary basis for an employee who was on long term sick leave.
InMinister for Finance v Una McArdle[2007] 18 ELR 165 Laffoy J quoted with approval the following passage from this Court’s Determination in the case in which the effect Section 9(3) was considered: -
- “That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration.”
Section 2 of the Act in the definition of a fixed-term employee as follows: -
- “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.
- “(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.
- 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.
Section 9(4) of the Act allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene Subsections (1) or (2)where there are objective grounds for so doing. This provision allows for a derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the Subsection (see the dictum of the CJEU to that effect in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430. As in any case in which a party relies on a statutory defence it is for that person to prove the facts necessary to make out the defence.Section 8 of the Act obliges an employer to set out the objective grounds relied upon for the renewal of a fixed-term contract and the reasons for not providing a contract of indefinite duration. Section 8(3) provides that a statement under the Section is admissible in evidence in proceedings under the Act. Section 8(4) provides as follows: -
- (4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—
(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 circumstance.
- “[T]he concept of 'objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring 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 employment 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.”
The objective grounds relied upon as justifying the Complainant’s 2012 contract were expressed in the following terms: -
- “for the purpose of a staff member absence””
The CJEU held inLommersthat to derogate from what is an important social right there is a strict onus on the Respondent to show the reasons why the Complainant does not acquire a contract of indefinite duration by operation of law under Section 9(4). The Respondent explained to the Court that due to data protection concerns it was not possible to name the absent individual. While this may be a reasonable proposition, the Complainant has been left completely in the dark as to the duration of her temporary contract and its likely end date. The Court was informed by the Respondent that the absent staff member had exhausted his/her sick pay entitlement and was now on an indefinite pension rate of pay. In these circumstances and where the absent member had already been absent for over four years by July 2012, the Court cannot hold that there was a real need on the part of the Respondent to issue her with a renewal of her fixed-term contract at that time.
In any organisation such as the Respondents there will always be a need for fixed-term staff to cover for permanent staff who are absent. However the specific need should be identified in all such contracts and in circumstances such as this where an individual has been employed for in excess of four years on a succession of contracts to cover staff absences an employer must provide and clearly communicate very specific reasons as to why the contract should not be converted to a contract of indefinite duration.
The Respondent submitted that the Complainant was employed on a fixed- term contract to cover for the absent staff member and that she was recruited from the PAS panel of TCOs. However, as the Court had held above, the Complainant had at this point in excess of four years’ continuous service with the Respondent, therefore, there was an onus on it to ensure it was not in breach of the Act and to ensure that it was not renewing her contract solely based on the fact that she was a temporary employee. It is not disputed that the Complainant’s duties were not specialised, they were general clerical officer duties which could have been carried out by any Clerical Officer, therefore, the Court is not satisfied that the renewal of the Complainant’s contract was appropriate with a view to achieving the objective pursued by the Respondent. Furthermore, the Court notes that vacancies for permanent Clerical Officer positions have arisen in the Respondent since 2012 and therefore the Court does not accept that retaining her on a temporary contract on the basis of the operation of the PAS panel system was necessary to that end.
The Court is of the view that the objective grounds relied upon in the Complainant’s 2012 contract were vague and equivocal and did not relate to “precise and concrete circumstances characterising a given activitywhich are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts”.Consequently, the Court cannot accept that the reason set out in 2012 contract attempting to justify its renewal amounted to objective grounds justifying the continuation of the Claimant’s employment in excess of the provisions of Section 9(2) of the Act and therefore it was voidab initio. Having regard to all the circumstances of this case the Court has come to the conclusion that the Respondent cannot rely on the grounds now contended for in advancing a defence under Section 9(4) of the Act. In consequence the Court finds that the Complainant’s contract which commenced on 2ndJuly 2012 was transmuted into one of indefinite duration by operation of Section 9(3) of the Act with effect from its commencement.
Determination
The Court determines that the contract of employment entered into by the Complainant and the Respondent on 2ndJuly 2012 became one of indefinite duration by operation of Section 9(3) of the Act. The Court determines that the Complainant should be paid the sum of €1,750 in compensation for the breach of the Act by the Respondent.
The Complainant’s appeal alleging a breach of Section 9 of the Act is allowed and the Decision of the Rights Commissioner is set aside. The appeal alleging a breach of Section 8 of the Act is statute-barred and cannot be entertained by the Court.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
28th July, 2016______________________
CCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.