FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NORTHERN AREA HEALTH BOARD (HEALTH SERVICE EXECUTIVE, NORTHERN AREA) - AND - CHRISTINA HUGHES (REPRESENTED BY RICHARD BLACK SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal against Rights Commissioner's Decision FT21257/04/DI.
BACKGROUND:
2. The appeal concerns a worker who commenced employment with the Northern Area Health Board in May, 1999. Initially she was employed in Residential Services and Community Services. Since January, 2000 she was employed as Temporary Social Care Manager. The claimant was assigned to the post of Temporary Alternative Care Manager in September, 2002 pending the filling of the post in a permanent capacity through open competition. The Protection of Employees (Fixed-Term Work) Act, 2003 ("the Act") came into force on the 14th July, 2003. In December, 2003 the claimant was advised that the full time vacancy was being advertised. The worker claims that she sought clarification from Management as regards her entitlement under the Act. She claims that she received no definitive response to her queries. The claimant states that she reiterated to Management that, pursuant to the term of the Act, she should be granted a contract of indefinite duration. Sanction was received in early 2004 to fill the post of Permanent Alternative Care Manager. The claimant queried at the time whether her situation was comprehended by the automatic permanency provision of the Act. She was advised that her position was not comprehended. The claimant attended for interview on the 5th May, 2004 and was unsuccessful at competition for the position. At a meeting on the 17th May, 2004 the claimant was advised that the Board would apply the automatic permanency provision of the legislation to her former position of Social Care Manager. The worker claimed that she was entitled to a contract of employment of indefinite duration as an Alternative Care Manager in the employment pursuant to Section 9 of the Act. Management rejected the claim. The dispute was referred to a Rights Commissioner for investigation. On the 19th November, 2004 the Rights Commissioner issued his decision as follows:
" If a permanent employee had been appointed, as the Temporary Alternative Care Manager pending the filling of the position on a permanent basis, this person would not acquire any right to be appointed to that position. The person would be still subject to the normal competition process regardless of the duration of his/her temporary contracts.
The Board have recognised and conceded Ms. Hughes right to a contract of indefinite duration. The position offered to Ms Hughes is her former job a Social Care Manager. I believe that Ms Hughes was appointed, in a temporary capacity to the role of Alternative Care Manager and that Ms Hughes would revert to her former position once the job was filled in the permanent capacity.
I find against Ms. Hughes claim that she be appointed to the position of Alternative Care Manager and find that a new job holder takes up the position of Alternative Care Manager, Ms. Hughes position from that time is of Social Care Manager."
On the 6th December, 2004 the claimant, through her legal representative, appealed the Rights Commissioner's Decision to the Labour Court. The Court heard the appeal on the 25th February, 2005.
DETERMINATION:
The Facts
Ms Christina Hughes (the complainant) was employed by the Northern Area Health Authority (the respondent ) on a series of temporary contracts commencing in May, 1999. It is accepted that the complainant is a fixed-term employee within the meaning of Section 2(1) of the Protection of Employees (Fixed -Term Work) Act,2003. At the commencement of her employment the complainant was designated as a relief child-care worker. In November, 1999 she was assigned to the post of temporary community childcare worker to provide cover for an employee who had taken a career break. In January, 2000 the complainant was assigned to the post of temporary manager at the Carrickbeag Children's Residential Home. This appointment was to continue until the post was filled in a permanent capacity.
In September, 2002 the respondent appointed the complainant to the post of Alternative Care Manager. This appointment was for a two month period pending sanction for the filling of the post on a permanent basis. By a decision dated 31st December, 2002 Mr A Charles, General Manager of Community Services with the respondent approved the continued appointment of the complainant. The record of this decision recites as follows:
Re: Miss Christina Hughes, Temporary Manager, Carickbeag Children's Home.
Under decision GMD /190/2002, dated 21st October, 2002, I approved the appointment of Ms Christina Hughes as Temporary Care Manager for a two- month period ended 20th December, 2002. The position of Alternative Care Manager is still vacant on a permanent basis.
I hereby approve the appointment of Ms Christina Hughes as Temporary Alternative Care Manager for the period 20th December, 2002 to 28th February, 2003, or until alternative arrangements are made, whichever is the earlier. Ms Hughes will revert to her position of Temporary Manager, Carrickbeag Children's Residential Home when her assignment as Temporary Alternative Care Manager ceases.
The complainant was furnished with a copy of this instrument. On its expiry the assignment was further extended to 30th September, 2003. It was again extended to 31st December, 2003, although the complainant contended that she was not formally advised of this further extension.
The Act came into force on 14th July, 2003.
The post was subsequently filled by competition on 17th January, 2005. However the complainant continued in the post until 17th January, 2005 when the successful applicant commenced duties. The complainant was offered re-assignment to the post of Manager of Carrickbeag Children's Residential Home.
It appears to the Court that the complainant's fixed-term contract was expressly extended once on 1st October, 2003 (this being after the coming into effect of the Act). On the expiry of this further extension on 31st December, the contract was again renewed by implication. By operation of Section 9(3) of the Act the contract then became one of indefinite duration.
Conclusion.
The complainant contends that she is entitled to a contract of indefinite duration in the post which she held at the date on which her contract of employment became one of indefinite duration by operation of law, namely that of Alternative Care Manager.
The Court cannot accept that this contention is correct. On the renewal of the complainant's contract for the second time, after the coming into effect of the Act, Section 9 operated so as to render the contract governing her employment at that date one of indefinite duration. The only change which the respondent was obliged to make was in respect of tenure. Whilst the terms of the contract were not reduced to writing the Court is satisfied that the records of the various decisions extending her allocation to the post of Alternative Care Manager show that a term of that contract was that the complainant would revert to the post of Manager of Carrickbeag Children's Residential Home, if and when the former post was permanently filled.
Accordingly, the Court is satisfied that the respondent was entitled to re-deploy the complainant into the post which she was offered.
Determination.
The appeal is disallowed and the decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
15th March, 2005______________________
TOD/BRChairman
NOTE
Enquiries concerning this Determination should be addressed to Tom O'Dea, Court Secretary.