FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DEPARTMENT OF EMPLOYMENT AFFAIRS AND SOCIAL PROTECTION (REPRESENTED BY CHIEF STATE SOLICITORS OFFICE) - AND - PAUL KEIRNAN (REPRESENTED BY F�RSA) DIVISION : Chairman: Mr Foley Employer Member: Ms Connolly Worker Member: Mr Hall |
1. Appeal Of Adjudication Officer Decision No: ADJ-00012221 CA-00016364-002
BACKGROUND:
2. The Employee appealed the Adjudication Officer’s Decision to the Labour Court on the 11 September 2018. A Labour Court hearing took place on the 8 November 2018. The following is the Labour Court's Determination:-
DETERMINATION:
This matter comes before the Court as an appeal by Paul Kiernan (the Appellant) of an Adjudication Officer’s Decision in his complaint against his former employer, the Department of Employment Affairs and Social Protection (the Respondent) that it had breached the Protection of Employees (Fixed Term Work) Act, 1993 at Section 9(2) in that the Respondent had failed to afford him a contract of indefinite duration. The Adjudication Officer decided, in a decision dated 14thAugust 2018, that she lacked jurisdiction to hear the complaint.
The Appellant appealed the Adjudication Officer’s decision carrying the reference number CA-00016364-002 on 11th September, 2018. A Labour Court hearing took place on 8thNovember 2018 and final papers were received from the parties on 21stJanuary 2019.
Background
In 2011 the Government decided that that Garda Ministerial Drivers would thenceforth be made available only to a proportion of the members of the Cabinet. Other Ministers would be required to use their own vehicle and a Civilian driver.
The Appellant was employed as a Civilian Ministerial Driver by a number of Government Departments in the period from 6thMay 2011 until the termination of his employment on 17thNovember 2017.
The details of the contracts issued to the Appellant are as follows:
•The Appellant entered into a contract with the Department of Health on 6thMay 2011 to serve as a civilian driver to the then Minister of Health.•When that Minister moved to the position of Minister for Children and Youth Affairs the Appellant entered into a contract with the Department of Children and Youth Affairs on 11thJuly 2014.
•On 6thMay 2016 the Appellant entered into a contract with the Department of An Taoiseach to serve as civilian driver to the Government Chief Whip.
•When the Chief Whip became Minister for Social Protection the Appellant entered into a contract with the Department of Social Protection on 14thJune 2017 to serve as civilian driver to the Minister for Social Protection.
The Appellant submits that the four Government Departments with whom he entered into contracts from 6thMay 2011 until 17thNovember 2017 were associated employers within the meaning of the Act at Section 2(2) and consequently submits that through the combined effect of Sections 9(2) and 9(3) of the Protection of Employees (Fixed Term Work) Act 2003, the provision of the contract under which he was employed with effect from 6thMay 2015 that purported to limit its duration to the date upon which the named Minister ceased to hold office as Minister for Children and Youth Affairs had no effect and the contract was, by operation of law, deemed to be a contract of indefinite duration from that date. Similarly, the contracts entered into by the Appellant on 6thMay 2016 and 14thJune 2016 that purported to limit their durations to the date when the named Chief Whip and Minister ceased to hold the specified offices, by operation of the Act, had no effect.
The Respondent submits that subsection 9(4) of the Act applies in this case in that the impugned fixed term contracts of employment cannot be deemed to be contracts of indefinite duration as the decisions to issue the Appellant with successive fixed term contracts of employment were justified on objective grounds.
The Respondent also submitted that the Appellant had entered into his final fixed term contract of employment on 14thJuly 2017 and that his complaint made on 18thDecember 2017 was made more than six months later. Consequently, having regard to the time limits set out in the Workplace Relations Act, 2015 (the Act of 2015) at Section 41(6) the within complaint is statute barred.
Summary Position of the Appellant
The Appellant submitted that the matter before the Court related to an ongoing breach of the Act up to and including the date of complaint to the Workplace Relations Commission on 18thDecember 2018. He submitted that the matter could not be statute barred in that his complaint related to that ongoing breach.
He submitted that he had been employed by four Government Departments for over five years and that such entities were associated employers within the meaning of the Act at Section 12. He submitted that, by operation of the law, his contract became a contract of indefinite duration with effect from 6thMay 2015.
Summary position of the Respondent
The Respondent submitted that the Appellant’s sole contract with the Respondent was a contract dated 14thJune 2017 which provided that the Appellant was being appointed as civilian driver to the Minister for Social Protection to
“A temporary, unestablished position in the Civil Service” carrying “no entitlement to established status, by way of limited competition or otherwise” and that the term of office “will cease on the date that [named Minister] ceases to hold office as Minister for Social Protection”
The Appellant had previously been employed by different Departments under a number of different contracts, all of which contained clauses in similar terms to that of the contract of 14thJune 2017 and in particular stipulating that the term of office would cease on the date a named office holder ceased to hold office.
The Respondent submitted that any complaint that the Appellant was entitled to a contract of indefinite duration upon either the conclusion of the contract of 6thMay 2016 or on the completion of four years’ service was, by reference to the Workplace Relations Act, 2015 at Section 41(6), ‘time-barred’ given that the within complaint was not made until 18thDecember 2017.
The Respondent submitted that the Appellant had at no stage raised any issue related to an entitlement to a contract of indefinite duration and in any event each contract was separate and issued by different Departments in respect of different Ministerial appointments.
The issuance of fixed term contracts was justified on objective grounds because of the very close personal relationship that exists between a Minister and his or her civilian driver. That position requires a high degree of trust and discretion. The special nature of that relationship is evidenced by the fact that considerations of geography are relevant upon recruitment and the direct role of the Minister in recruiting the driver. The Respondent referred the Court to Case C-212/04 of the CJEU Adeneler and Others v Ellinikos Organismos Galaktos and C-22/13 Mascolo to establish that an objective ground within the meaning of the Directive required “precise and concrete circumstances characterising a given activity” and that the role of civilian driver to a Minister was such an activity.
Discussion and conclusions
The first matter for the court to consider is the contention of the Respondent that the complaint of the Appellant was ‘time barred’ by virtue of the fact that it was not made to the Workplace Relations Commission until 18thDecember 2017. The Appellant’s complaint referred to his contention that his contract was transmuted to one of indefinite duration by operation of the law when his second or subsequent fixed term contract resulted in an aggregate duration of greater than four years. The Appellant’s employment on fixed term contracts exceeded four years on 6thNovember 2015. The Court cannot find that a person’s entitlement under the Act at Section 9(2) and 9(3) are nullified if a complaint is not made within six months of the contended for coming into being of a contract of indefinite duration in accordance with the provisions of those sections of the acts. The cognisable period for the within complaint is, as submitted, related to the six-month period preceding the 18thNovember 2017. However, the Act at Section 9 sets out that a fixed term contract becomes transmuted to one of indefinite duration in certain circumstances and the operation of the law in that respect is not dependent on the Appellant making a complaint within a specified time period.
The next matter for the Court to consider in the within appeal is the question as to whether the Government Departments who issued fixed term contracts to the Appellant were, within the meaning of the Act at Section 2(2), associated employers.
The Act at section 2(2) provides as follows:
2(2) Employers are deemed to be associated if—
- (a) one is a body corporate of which the other (whether director indirectly) has control, or
(b) both are bodies corporate of which a third person (whether directly or indirectly) has control.
The Court concludes that the nature of Government Departments is decided by Government, the functions assigned to Government Departments are assigned by Government and the funding for Government Departments is decided by Government. The Court must therefore conclude that Government does (directly or indirectly) have control over each of the Government Departments.
It follows that the four Government Departments are associated employers for the purpose of Section 2 (2) of the Act.
Section 9 of the Act in relevant part provides as follows:
- (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
In this case the contract issued by the Respondent to the Complainant on 11thJuly 2014 is the second fixed term contract under which he was employed. The aggregate duration of the first and second fixed term contracts exceeded four years. Accordingly, unless it is saved by the provisions of Section 9(4) of the Act the Appellant’s contract must, pursuant to the provisions of Section 9(3) of the Act, be deemed to have become a contract of indefinite duration upon issuance of the second contract.
Section 9(4) of the Act provides
- (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.
- (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.
- 60 As this concept of ‘objective reasons’ is not defined by the Framework Agreement, its meaning and scope must be determined on the basis of the objective pursued by the Framework Agreement and of the context of clause 5(1)(a) thereof (see, to this effect, inter alia Case C-17/03 VEMW and Others [2005] ECR I-4983, paragraph 41, and the case-law cited, and Case C-323/03 Commission v Spain [2006] ECR I-0000, paragraph 23).
61 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).
62 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).
63 From this angle, the Framework Agreement seeks to place limits on successive recourse to the latter category of employment relationship, a category regarded as a potential source of abuse to the disadvantage of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure.
69 In those circumstances, the 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.
70 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.
72 Such a provision, which is of a purely formal nature and does not justify specifically the use of successive fixed-term employment contracts by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out, carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible with the objective of the Framework Agreement and the requirement that it have practical effect.
Clearly therefore to come within the scope of section 9(4) of the Act the circumstances in which the fixed term contract of employment was issued must refer “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”and must be for the purpose of “achieving a legitimate objective of the employer”and must be appropriate and necessary for that purpose. Consideration must be given to‘precise and concrete circumstances characterising a given activity’ and to ‘the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks’.
The Court of Justice of the European Union also addressed the concept of objective grounds in Joined Cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071, where it said at paragraph 96
- In those circumstances, the concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the Framework Agreement must, as the Court has already held, 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 (Adeneler and Others, paragraphs 69 and 70; Case C-307/05 Del Cerro Alonso [2007] ECR I-7109, paragraph 53; and order in Vassilakis and Others, paragraphs 88 and 89).
The question for the Court to decide is whether the grounds advanced by the Respondent for the renewal of a contract of employment for a fixed term amount to objective grounds within the meaning of the Act and the jurisprudence of the European Court of Justice.
The Court is persuaded that the inherent characteristics of the role of civilian driver to a Minister involves a particular relationship such that the Minister is capable, by virtue of the level of trust placed in the driver, of carrying out Government and political business during what both parties acknowledge are extended period of working time spent in the Minister’s car with the driver. That need for trust and discretion was met at the material time by a recruitment process whereby a Minister identified an individual to carry out the role of Civilian driver during the period of office of that Minister and until that term of office ends. It is common case that each contract provided to the Appellant specified that the contract was directly related to and would end upon the conclusion of the named Minister’s term of office.
The Court finds that the issuance of a fixed term contract to a civilian driver chosen by the individual Minister is a legitimate and proportionate means of achieving the aim of facilitating the conduct of Government and political business by a Minister and is not persuaded that any alternative of a less discriminatory nature is available
In all of the circumstances, the Court concludes that, within the meaning of the Act at Section 9(4), there were objective reasons for the issuance to the Appellant of successive contracts of a fixed term nature and consequently the impugned contracts did not become contracts of indefinite duration by operation of the Act at Section 9(3).
Determination
The Court determines that the Respondent was not in breach of the Act by issuance of successive fixed term contracts to the Appellant. The Appeal fails and the decision of the Adjudication Officer is, for differing reasons, affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Kevin Foley
MK______________________
4 April 2019Chairman
NOTE
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.