FULL RECOMMENDATION
SECTION 44, WORKPLACE RELATIONS ACT 2015 SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : MALAHIDE COMMUNITY SCHOOL (REPRESENTED BY MASON HAYES & CURRAN) - AND - DAWN-MARIE CONATY (REPRESENTED BY BYRNE WALLACE SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Treacy |
1. Appeal of Adjudication Officer's Decision.
BACKGROUND:
2. The Claimant appealed the Decision of the Adjudication Officer ADJ-00005329 to the Labour Court in accordance with Section 8A of the Unfair Dismissals Act, 1977 to 2015. A Labour Court hearing took place on October 25th, 2017. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Ms Dawn-Marie Conaty against the decision of an Adjudication Officer under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim against her former employer, Malahide Community School. The Adjudication Officer considered a preliminary issue raised by the Respondent – that the Adjudication Officer had no jurisdiction to her the complaint as the employment was under a fixed term contract and the termination arose only as a result of the expiry of the fixed term under section 2(2) of the Act. The Adjudication Officer concluded that as the criteria in section 2(2) of the Act had been met that she had no jurisdiction to hear the claim.
For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Conaty will be referred to as “the Complainant” and Malahide Community School will be referred to as “the Respondent”.
The Complainant referred her claim under the Acts to the Workplace Relations Commission on 6thOctober 2016. The Adjudication Officer issued her Decision on 24thMay 2017. The Complainant appealed the Decision to the Labour Court on 8thJune 2017. The appeal hearing came before the Court on 25thOctober 2017.
Background
The Complainant was employed by the Respondent as a Teacher in August 2013 for the school year and again in August 2014 for a second school year, she was not furnished with a written contract of employment for these periods. Having recommenced employment on 31stAugust 2015, the Complainant was required to apply for the teaching position she was undertaking. She was interviewed on 2ndOctober 2015, the same day as other applicants and on 7thOctober 2015 she was informed that she was successful. On 22ndOctober 2015 the Complainant signed a fixed term contract which stated that her contract commenced on 8thOctober 2015 and would terminate on 31stAugust 2016.
The position was advertised again for the school year 2016 /2017. The Complainant applied, was interviewed, but was unsuccessful in her application for appointment. Thereafter, the Complainant submitted a claim of unfair dismissal.
Summary of the Respondent’s Case
Mr Liam Riordan, Mason Hayes & Curran Solicitors, on behalf of the Respondent, submitted that the Complainant's dismissal consisted only of the expiry of the fixed-term contract she held during the period 8thOctober 2015 to 31st August 2016. In addition he submitted that in accordance with Section 2(2) (b) of the Acts the Complainant’s fixed-term contract was in writing, it stated that the provisions of the Acts would not apply to the dismissal consisting only of the expiry of the said term without it being renewed and it was signed on behalf of the Respondent and by the Complainant. On that account the Respondent submits that the Acts do not apply in this instance.
Mr Riordan stated that the fixed-term post was advertised for the 2016/2017school year as required by Department of Education and Skills regulations. The Complainant applied for the post. She was shortlisted for interview along with five other applicants. A second post became available and two appointments were made arising from the same competition. The appointment procedure complied with the agreed appointment procedures in community schools. The Complainant was unsuccessful in her application for appointment.
Mr Riordan said that the Respondent receives an allocation of posts from the Department of Education and Skills every year. All posts in the school funded by monies provided by the Oireachtas have to be advertised and filled in compliance with agreed appointment procedures. The fixed-term post for 2015/2016school year that the Complainant successfully applied for was fully funded by the Department of Education and Skills. The post was publically advertised and three candidates (including the Complainant) were interviewed for the post. The interviews were carried out by an independent panel. Therefore the post was filled in compliance with agreed appointment procedures for appointment to Department of Education and Skills funded posts in community schools. The appointment procedure for this post was totally different to the procedure followed by the Respondent in 2013/2014and 2014/2015during which for the most part the Complainant was paid by the school.
Mr Riordan said that the requirement to comply with agreed appointment procedures did not apply to posts such as the posts held by the Complainant during the two school years 2013/2014and 2014/2015 as they were not funded by the Department of Education & Skills.The Complainant had no written contract of employment during these periods.
The position for which the Complainant successfully competed in 2015 was fully funded by the Department of Education & Skills. Her salary was paid according to an incremental scale. Mr Riordan said that it was important to note that the post opened the possibility over time that the Complainant could obtain a contract of indefinite duration which would provide her with permanent pensionable employment without the fear of dismissal arising from redundancy. Mr Riordan submitted that the post held by the Complainant in 2013 up to 2015 no longer exists.
Mr Riordan pointed out that the Complainant fully understood the nature of the standard format contract that she freely entered into in that she accepted the termination of the contract through the expiry of the term of the contract without its being renewed without any objection or complaint. Indeed the Complainant applied for another fixed term post for the 2016/2017school year on similar terms to the previous year and competed for the appointment with the other candidates for the post. He contended that there were numerous reasons why the Complainant would prefer a fixed-term contract of employment in a post-funded by the Department of Education & Skills to a permanent contract of employment in a post-funded by the Respondent. It is submitted that this is well understood in the education sector.
The Respondent disputed the Complainant’s contention that Department of Education & Skills Circular 55/2008 should have been applied to theComplainant, and that the Respondent was in breach of the Circular by not applying paragraph 3.10 when it interviewed her for the fixed term position for the 2016/2017 school year.MrRiordanmaintained that that Circular had been superseded by Circular 24/2015.He said that the two Circulars were at variance and could not both be operative in respect of the 2015/2016school year. In support of his contention he quoted from its opening paragraph"This circular sets out the detailed arrangements and procedures for the implementation of the recommendation of the Expert Group on Fixed Term and Part- Time Employment in Primary and Second Level Education in Ireland and are for implementation at the commencement of the school year 2015/16".
In any event and without prejudice to the foregoing the Respondent argued that this part of the Complainant's appeal is misconceived in that the remedy for a breach under the Department Circulars is the adjudication process set up under the circulars and not within a claim for unfair dismissal.
With regard to the waiver pursuant to section 2 (2)(b) of the Acts, Mr Riordan submitted that it cannot have been the intention of the Oireachtas that reliance on one section of the Acts i.e. section 2(2)(b) would fall foul of another provision of the same Acts, i.e. section 13. On the contrary, he said that it relies entirely on the Acts. He said that it would give rise to a legal absurdity if reliance on section 2(2)(b) were to fall foul of section13 of the same Acts.
Mr Riordan submitted that section 2(2) as amended by section 2(2A) is an exception to section13 and that section 2(2) of the Acts applies unless the Complainant can argue that there is an abuse of successive fixed term contacts as set out in section 2(2A).
Mr Riordan said that there is only one written contract of employment containing the waiver provided for in section 2(2)(b) of the Act and that is the fixed-term contract of employment for the 2015/2016school year.
Mr Riordan argues with the Complainant’s contention that section 2(2A) is ambiguous. He submitted that is not the case. The wording of section 2(2A) states:-
- Where, following dismissal consisting only of the expiry of the term of a
contract of employment of a kind mentioned in subsection (2) (‘the prior contract’)
without the term being renewed under the contract or the cesser of the purpose of
the contract—- (a) the employee concerned is re-employed by the employer concerned within 3
months of the dismissal under a contract of employment of that kind made
between the employer and the employee (‘the subsequent contract’) and
the nature of the employment is the same as or similar to that of the
employment under the prior contract,
(b) the employee is dismissed from the employment,
(c) the dismissal consisted only of the expiry of the term of the subsequent contract
without the term being renewed under the contract or the cesser of the
purpose of the contract, and
(d) in the opinion of the adjudication officer or the Labour Court, as the case
may be, the entry by the employer into the subsequent contract was wholly
or partly for, or was connected with, the purpose of the avoidance of liability
under this Act,
then—- (i)this Act shall, subject to its other provisions, apply to the dismissal, and
(ii)the term of the prior contract and of any antecedent contracts shall be
added to that of the subsequent contract for the purpose of the ascertainment
under this Act of the period of service of the employee with the employer and
the period so ascertained shall be deemed for those purposes to be one of
continuous service.
- (a) the employee concerned is re-employed by the employer concerned within 3
In essence, Mr Riordan stated that the Complainant was employed under a fixed-term contract of employment, the dismissal consisted only of the expiry of the term that had not been renewed under the said contract, the contract was in writing, was signed on behalf of the Respondent and by the Complainant and on that account the Respondent submits that the Acts do not apply in this instance.
Summary of the Complainant’s Case
Mr Emmet Whelan, Byrne Wallace Solicitors, on behalf of the Complainant submitted that the Complainant was unfairly dismissed.
He stated that the Complainant commenced her employment with the Respondent in or around October 2013 working 5 hours 30 minutes of teaching hours. At the time she was requested by the Respondent not to do substitute hours in another school as she was needed in the Respondent’s school to be available to cover and this would assist her to get more hours. The Complainant's hours were subsequently increased in January 2014.
In May 2014, from her discussions with Ms Patricia McDonagh, Principal, it was apparent to the Complainant that she would be returning to the school in August 2014 and the only question to be determined was how many hours would be available for her. On 18th August 2014, the hours that the Complainant was scheduled for the 2014/2015 school year were confirmed to her when she received a new school year letter from the
school with exam results, school calendar and her timetable.
In May 2015, the Complainant had a further discussion with Ms McDonagh in respect of the hours she would have available in August 2015. It was also indicated to the Complainant at this time that she might have to interview in the new school year but the impression that she was given was that this was a formality and the Principal indicated the interview would probably take place in October as that way there would be fewer applications. In August 2015, the Complainant received her timetable, teaching English and Religion, along with the school calendar for the new school year (2015 / 2016) as normal with a covering letter. The Complainant was also requested to sign a "start of year" document on 31st August 2015 which she signed and returned that same day.
On 16th September 2015, the Complainant received an email from Ms McDonagh confirming that her role would be advertised and that she would have to apply for that role. The Complainant was informed verbally by Ms McDonagh on 28th September 2015 that her interview for the position teaching English and Religion would take place on Friday 2nd October. The Complainant was informed on 7th October 2015 that she was successful in her interview. She attended a meeting with the Principal on or around 22nd October 2015 and was presented with a contract to sign, this was the first time the Complainant had ever seen this document. The contract purported to exclude any dismissal consisting only of the expiry of the term of the contract from the provisions of the Acts. Mr Whelan said that the purpose and effect of the document was not explained to her, she was not advised of her legal rights or informed (verbally or in writing) to take appropriate advice before signing. He said that the Complainant was simply asked to sign the document and she did so at that meeting.
Mr Whelan said that during the school year 2015 / 2016 the Complainant taught 16 hours and 40 minutes of timetabled hours teaching English, Religion, Public Speaking and CSPE.
Mr Whelan said that the Complainant was subsequently required to apply for and attend an interview for the same role in August 2016, for the school year 2016/2017. He said that when Complainant met with Ms McDonagh in May 2016 to discuss hours for the 2016/2017 school year, the Complainant was concerned in respect of the upcoming interview process and the fairness of asking her to interview for her own role. The post was filled in August 2016 by a teacher who had commenced teaching in the school on a part-time basis from around February 2015.
Mr Whelan contended that the Complainant had over three years of continuous service by August 2015 and therefore submitted that the October 2015 contract could not reasonably be found to be a "first fixed-term contract" as she was permanent at that time. He said that at the end of each school year, it was presumed by both parties that the Complainant's employment with the Respondent would continue on the same principal terms and conditions for the following school year.
On behalf of the Complainant Mr Whelan submitted that the Respondent’s reference in its submission to"the post held by the Complainant in 2013 - 2015 no longer exists."was astrange contention in circumstances where the Complainant had, at that stage, already commenced work in the school, in August 2015, under the terms and conditions of her unwritten permanent contract.
It was submitted on behalf of the Complainant that when interpreting section 2(2)(b) the words "where the employment was under" are key. When one considers the ordinary meaning of the words "the employment" it is evident that the Oireachtas was referring to the entire employment of the Complainant by the Respondent. Mr Whelan contended that the entire employment of the Complainant by the Respondent must be under the type of contract referred to in section 2(2)(b) for that exclusion to apply. He said that it was not sufficient for part of the employment only to be covered by that type of contract, section 2(2)(b) of the Acts excludes employment rights and therefore he contended that it must be strictly construed.
Without prejudice to the above, Mr Whelan submitted that the waiver present in the October 2015 contract was void for lack of proper consent. He submitted the Complainant was, between the dates of August 2013 and October 2015 under a permanent contract of employment and not under sequential fixed term contracts of employment. He said that she was not provided with a written contract of employment prior to October 2015; she was not expressly informed that her employment would terminate upon the expiry of a fixed term; the Respondent did not enter into discussions about the renewal of her contract or whether or not she would be employed under a new contract; she was not advised of her legal rights or informed (verbally or in writing) to take appropriate advice before signing. The Complainant was simply asked to sign the document and did so at that meeting. Mr Whelan put it to the Court that the meeting of 22nd October 2015 was in no way sufficiently comprehensive to represent a waiver of the Complainant's undisputed acquired rights.
In support of his contention, that the contract was not validly entered into Mr Whelan citedHurley -v- Royal Yacht Club[1997] ELR225 where the Circuit Court considered whether a settlement agreement could be relied upon against an employee where it had the effect of waiving his entitlement to claim under the Unfair Dismissals Acts. Buckley J considered that parties are, of course, free to waive their entitlements but in order
for same to be valid, it must be accompanied by full, free and informed consent. In this regard, Buckley J placed particular emphasis on the necessity for an employee to obtain legal advice:-
- "I am satisfied that the Complainant was entitled to be advised of his entitlements under the employment protection legislation and that any agreement or compromise should have listed the various Acts which were applicable, or at least made it clear that they had been taken into account by the Complainant. I am also satisfied that the Complainant should have been advised in writing that he should take appropriate advice as tohis rights, which presumably in his case would have been legal advice. In the absence of such advice I find the agreement to be void.”
Furthermore, he citedSunday Newspapers -v- Kinsella&Bradley[2008] 19 ELR 53 where Judge Buckley's reasoning was subsequently approved of by the High Court. That case involved section 12 of the Protection of Employees (Fixed Term Work) Act 2003, which is drafted in very similar terms to section 13 of the Unfair Dismissals Acts. In theSunday Newspaperscase it was found that the waiver was valid as the employees in question had received advice in respect of the effect of the waiver before signing.
Mr Whelan also contended that the waiver was prohibited by section 13 of the Acts, at the latter specifically regulates exclusion clauses to ensure that they are not abused. In the alternative, and without prejudice to the foregoing, he contended that section 2(2A) of the Act negates any purported reliance on the section 2(2). Finally he contended that the October 2015 contract was entered partly for, or connected with, the purpose of avoiding liability under the Acts.
Mr Whelan said that the Complainant sought to be re-instated in her role with the Respondent from the commencement of the 2018/2019 school year.
Discussion & Decision of the Court
In reaching its decision the Court has taken account of all written and verbal submissions of the parties. The Complainant and Ms McDonagh were both under oath. The Court has had full regard to their evidence given in the course of the hearing.
Initially, Mr Whelan submitted that if the Court took the view that the Complainant was employed on a series of fixed-term contracts since 2013, then a number of Department of Education & Skills Circulars pertaining to the protections of teachers employed on fixed-term contracts applied to her, however, this position changed when the Respondent admitted at the hearing that the Complainant was not on fixed-term contracts for the period in question, but was in fact on a permanent contract. Therefore, it was accepted that the Department Circulars were not germane to the matters before the Court.
Employment Status
While the Complainant was paid by both the Respondent and by the Department of Education & Skills prior to the school year 2015/2016, Mr Riordan stated that the Respondent was her employer for the entirety of her employment. At the hearing before the Court, Mr Riordan accepted that the Complainant was not on fixed –term contracts from August 2013 until 7th October 2015 and consequently accepted that her employment status was permanent at that time. Therefore, he accepted that her continuity of employment was not in dispute. However, his position on the claim before the Court was clearly on the basis that she had abandoned that employment status when she entered into a fixed-term contract on 8th October 2015, which contract he maintained was far superior than her previous volatile contract, as it was likely to lead to a permanent contract; was paid on a Department of Education & Skills Teachers salary scale; entitled her to membership of the public sector superannuation scheme; entitled her to be paid during the summer months and posed no threat of redundancy.
The Fixed-Term Contract
The Respondent relied upon the premise that the Complainant freely entered into a fixed-term contract on 8thOctober 2015, which contained all the necessary criteria as set down in section 2(2)(b) of the Acts so as to render its expiry by effluxion of time excluded from the protection of the Acts.
Mr Riordan stated that the Complainant had made the decision to apply for the fixed term post in October 2015. He said that she was put on notice that it was a fixed-term post, there were five other teachers in the School who were similarly on fixed-term contracts, which was not unusual in the education sector. He said that otherwise she was facing the prospect of being made redundant at the time. He said it was a “no brainer” that she would opt for this opportunity. When she signed the contract on 22nd October 2015, Mr Riordan said that she raised no objection to the fact that it was fixed-term and notably, she re-applied the following year for another fixed-term post and competed for that appointment with other candidates for the post.
In support of the Respondent’s contention, Mr Riordan stated that she was not a vulnerable employee, she was well educated and was the union representative in the school and on that basis he submitted that she was fully aware what she was doing when she signed the fixed-term contract containing the waiver.
Ms McDonagh told the Court that she was not aware of the Complainant’s employment status prior to October 2015 and thought that it had been fixed-term for the two individual school years. She said that it was not until the hearing before the Court that she realised that the Complainant was actually on a permanent contract at that time. She said that initially the Complainant was employed to fill gaps to cover for other absent teachers. Later she was given more hours as the needs arose, however, her hours were not fixed hours and she was paid by both the Respondent and by the Department depending on the work she performed. She said that when the Complainant obtained her fixed-term contract, she had a fixed number of hours, had her own class, she was teaching her chosen subjects, all of which in her view was a more lucrative position for the Complainant. It was on that basis that in September 2015 she informed the Complainant about the advertised position with the intention that she should apply.
Ms McDonagh said that she could not recollect what was said at the meeting on 22nd October 2017, the date the fixed term contract was signed and while she said she would normally send a copy of a of contract of employment to the teacher in advance of such a meeting she could not recollect if that was done in this case.
The Complainant told the Court that she had no idea of the implications of signing the fixed-term contract on 22nd October 2015. She said that she was not aware of the waiver and was under the impression that signing it was just a formality. She said that she could not recollect who was present when she was asked to sign it. The contract was given to her on the day and she did not have an opportunity to examine it. She was very clear that no advice or otherwise was given to her concerning her change of employment status as a result of signing the contract nor of her consent to waiving her rights under the Acts. She disputed the assertion that signing this contract was a “no brainer” as in her view the only difference was she would be paid during the Summer months. In any event, she said that when she was paid by both the Respondent and the Department she was paid more as she worked more hours than the fixed hours offered to her under the fixed-term contract.
The Legal Position
A fixed-term contract is one that is determined by an objective condition which does not require the intervention of either party to the contract (Nerney v Thomas Crosbie Holdings Limited[2013] 24 ELR 238. At common law the termination of such a contract is not a dismissal as it is brought to an end by its own terms rather than at the instigation of the employer. However, the Act deems the expiry of a fixed-term contract, without its renewal, to be a dismissal for the purpose of the Act.
In the course of submissions both parties have referred to section 2(2)(b) of the Act as containing a ‘wavier’ The section should more properly be seen as an exclusionary provision which, subject to the conditions provided therein being complied with, takes a dismissal to which it applies outside the scope of the Act altogether. It follows that if the exclusion does not apply a dismissal consisting of the expiry of a fixed-term contract without it being renewed comes fully within the ambit of the Act.
InSheehan v Dublin Tribune Limited[1992] E.L.R. 239 andKilnamanagh Family Recreation Centre LimitedUD 1102/1993 the Employment Appeals Tribunal held that the conditions provided for under section 2(2)(b) must be completely satisfied.
Court’s Findings
On the evidence it is clear that the Complainant’s prior employment with the Responndent was under a permanent contract of employment. That was admitted on behalf of the Respondent in the course of the hearing of this appeal. Moreover, it is clear that the Complainant resumed working for the Respondent in August 2015. At that point her employment was not pursuant to a fixed-term contact and it was undoubtedly permanent in nature. What is now contended for by the Respondent is that on or about 22ndOctober 2015, at which point the Complainant was employed on a permanent contract, she freely and knowingly entered into a contract to retrospectively alter the fundamental nature of her employment from that of permanence to fixed-term. It is further contended that, at a point at which she had the full protection of the Act, she intentionally agreed to forgo that protection.
Having considered the submissions of both parties, the Court is of the view that as the Complainant was on a permanent contract prior to signing the fixed-term contract, and indeed had already commenced a new school year on that basis at the end of August 2015, the change in employment status in October of that year is very significant and needs to be examined.
The Court must examine whether there was any discussion or consideration given to the Complainant relinquishing her employment status as a permanent employee and returning on less favourable terms in respect to tenure, thereby and placing her outside the protection of the Acts.
It is not disputed that this change in status was ever brought to her attention, indeed the Respondent themselves were not even aware of her employment status at the time and therefore were not in a position to ensure the Complainant gave informed consent. The Court is of the view that it is particularly significant that the position as advertised in September 2015 made no reference whatsoever to its fixed-term status and the Complainant’s letter of application similarly makes no such reference, (both were presented to the Court at the hearing).
The Court cannot accept the Respondent’s contention that she fully understood the nature of the contract or that she freely entered into it, knowing that it may not be renewed. In any event the contract states that“the temporary nature may be renewed for a continued period in the event that the allocated hours as specified above continue to be available and the demand for these subjects continues”.The subjects she was teaching were English and Religion, it was within the bounds of possibility that the demand for such subjects was likely to continue. However, she was not successful and another teacher with shorter service was successful.
The Complainant told the Court that she did not have an opportunity to examine the contract and was simply presented with it and asked to sign it. On that basis it is difficult to see how the Complainant could have freely entered into such a contract having had full knowledge of its implications. Had she not signed the contract at the time her employment may have been in jeopardy. The Court accepts that evidence.
What is in issue in this case can more properly be characterised as an exclusionary provision rather than a waiver. Nevertheless, the Court does accept that the jurisprudence that generally governs the execution of waiver clauses should be applied to the circumstances in which the Complainant came to sign that fixed-term contract on 22ndOctober 2015.
The Court cannot envisage any circumstances where the Complainant could have intended to terminate her permanent employment in favour of a temporary one. The import of the document with which she was presented and its implications for her then current circumstances were not explained to her. Nor was she advised to obtain independent advice before signing the document. The Court is of the view that the provision of a fixed-term contract in those circumstances is ineffective. In circumstances where the permanent contract and the fixed-term contract were inconsistent with each other, the Court is of the view that the earlier contract should prevail.
Arising from these findings, the Court is not satisfied that the fixed-term contract which contained the exclusionary provision can be relied upon by the Respondent to preclude the application of the Acts to the Complainant’s dismissal.
In those circumstances, the Court finds that the Complainant was unfairly dismissed when her contract was not renewed on 1st September 2016.
Redress
The Court was informed that since she was dismissed, the Complainant has been employed teaching elsewhere. The Complainant informed the Court that her preferred form of redress would be to be re-instated in her role with the Respondent from the commencement of the 2018/2019 school year.
In all the circumstances of this case, the Court believes that the appropriate form of redress in this case is an order directing that the Complainant be re-engaged in a teaching role in the school from the commencement of the 2018/2019 school year.
Determination
It is the Determination of the Court that the Complainant was unfairly dismissed by the Respondent. In all the circumstances of this case as outlined above, the Court hereby orders the Respondent to re-engage the Complainant in the school from the commencement of the 2018/2019 school year and be paid on the Teacher’s Common Basic Scale without loss of her prior service.
Accordingly, the appeal is allowed. The decision of the Adjudication Officer is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd November 2017______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be in writing and addressed to Sharon Cahill, Court Secretary.