FTD0814

Facts

The facts of this case are fully set out in the Principal Determination and need not be repeated here. It is sufficient to recall that the Claimants were employed on fixed-term contracts for the purpose of providing cover during the absence on sick leave of two permanent pilots. Under their terms the contacts were to expire when the circumstances of the absent pilots became clear. The Court understands this to mean that the contracts would come to an end when the absent pilots either returned to work or were replaced. In the event the absent pilots retired and the Respondent advertised for replacements. In accordance with the collective agreement concluded between the Respondent and the Trade Union representing pilots, the posts were to be filled at a new salary which was less than that payable to permanent pilots then employed by the Respondent. The Claimants applied for the advertised posts and were successful. In applying they put on record that they were doing so without prejudice to their right under the Protection of Employees (Fixed-Term Work) Act 2003 and the Unfair Dismissals Acts 1977 – 2001. The Claimants were appointed as permanent Class 2 pilots on the salary prescribed by the collective agreement.

In the Principal Determination the Court found that the Claimants were entitled to the same pay as the permanent pilots on whom they relied as comparators, during the continuance of their employment as fixed-term employees. The Claimants contend, however, that they are entitled to retain that higher rate during the continuance of their permanent employment.

Position of the parties

The position taken by the parties on this point can be summarised as follows:

The Claimants: -
It was submitted on behalf of the Claimants that their fixed-term contracts were, in effect, continued and were made permanent by the Respondent. They say that this arose by reason of the fact that the fixed-term contracts under which they were originally employed did not exclude the operation of the Unfair Dismissals Acts 1977 –2001. It was submitted that to exclude the Claimants from the benefit of the higher rate of pay while the tenure of their employment continued, merely on the grounds that they had become permanent, is to deny them a right which accrued to them as fixed-term employees. This, it was submitted, contravened s. 6 of the Act as much as withholding the higher payments while they were fixed term employees. The Claimants further contend that it would be abuse of the Act and the Framework Agreement, from which it is derived, for an employer to reduce an employee’s pay by reason only that the employee’s status is converted from than of fixed-term employee to that of permanent employee. They say that this would be an abuse of the kind prohibited by s.13 of the Act, which prohibits the penalisation of an employee by dismissing him or her for the purpose of a fixed-term contract being deemed to be one of indefinite duration.

The Respondent
The Respondent submitted that the Claimants had no special status in the recruitment campaign to fill the permanent posts to which they were subsequently appointed. The Respondent contends that the Claimants’ fixed-term contracts came to an end when the absent pilots resigned and the Respondent filled the permanent vacancies thus created. It was submitted that the Claimants entered into new contracts of employment which were not fixed-term contracts. In these circumstances, it was submitted, the Claimants were no longer fixed-term employees and, accordingly, they cannot bring claims under the Act as fixed-term workers on grounds of discrimination whether it is alleged that the discrimination is new or based on historical factors. The Respondent submitted that there is nothing in the Act or the Framework Agreement which supports the arguments advanced by the Claimants.

Conclusions.

The fundamental fact underlying this aspect of the case is that the Claimants were originally employed to provide cover for two absent pilots. The contracts under which they were employed expressly provided that they would terminate when the position of the absent pilots was clarified. The position of the absent pilots was clarified when they retired in or about June 2006. In accordance with the terms of the Claimants’ fixed-term contracts their employment would end when the vacancies thus created were filled. They applied for the permanent posts and were successful. They were offered and accepted new contracts, which were permanent in nature.

In Determination FTD062,Prasad v Health Service Executive, this Court held that, except in the circumstances envisaged by s. 9 of the Act, a fixed-term employee does not have an automatic right to have his or her fixed-term contract renewed on its expiry. In so deciding the Court adopted the reasoning of the Court of Appeal for England and Wales inDepartment of Work and Pensions v WebleyIRLR 288. The Court a similar view in the earlier case ofAer Lingus v A Group of Workers, FTD054. Thus, as far as the Act of 2003 is concerned, the Respondent would have been perfectly entitled to terminate the employment of the Claimants if they had not been appointed to the vacancies created by the retirement of the absent pilots. In addressing that point Counsel for the Claimants has place considerable emphasis on the fact that their fixed-term contracts did not contain a provision excluding the application of the Unfair Dismissals Act 1977 –2001. This, Counsel submitted, meant that the Claimants could not have been lawfully dismissed.

This matter came before the Court under the Protection of Employees (Fixed-Term Work) Act 2003. Accordingly, all aspects of the case must be decided by reference to the provision of that Act and the Framework Agreement from which the Act is derived. The Court cannot be influenced by extraneous matters nor can it speculate as to what the outcome might have been if the Claimants had initiated proceedings under the Unfair Dismissals Acts 1997 –2001. Moreover, the decision of the High Court inGalway Mayo Institute of Technology -v- Employment Appeals Tribunal[2006] IEHC 210, is authority for the proposition that this Court could not decided the outcome of a case by the application of a provision of a statute in respect of which it has no jurisdiction.

In these circumstances the case must be approached on the basis that the Claimants fixed-term employment lawfully came to an end when the vacancies created by the retirement of the absent pilots were filled. They were then offered and accepted new contracts on new terms. On acceptance of these new contracts the Claimant ceased to be fixed-term employees. As permanent employees they could not relay on the Act to secure a change in their contractual conditions of employment. Their position in that regard was substantially different to that of workers who obtains a contract of indefinite duration by operation of law. As was pointed out by Leffoy J. inMcArdle v Minister for Finance[2007] 18 ELR 165, in such circumstances the contract continues with its original terms in tack except for the term providing for its termination by effluxion of time or the occurrence of an event.

Counsel for the Claimant also submitted requiring the reduction in the Claimants’ pay by reason only that they had moved from fixed-term to permanent employment is an abuse of the type prohibited by s.13 of the Act. The Court cannot accept that submission. S.13 prohibits an employer from dismissing a fixed-term employee for the purpose of avoiding that employee becoming entitled to a contract of indefinite duration by operation of s.9 of the Act. Clearly that Section can have no application in this case as the Respondent appointed the Claimants to permanent posts on contracts of indefinite duration.

The situation in which the Claimants find themselves is anomalous. From an industrial relations perspective it would be most unusual for a worker to suffer a drop in earnings by reason of being appointed from a temporary to a permanent post. Nevertheless, this mater is not before the Court under the Industrial Relations Acts 1946 –2004, and the Court cannot bring considerations of an industrial relations nature to bear in deciding the case. The case must be decided by applying the Act of 2003, under which it was referred to the Court. The Court is satisfied that the Claimants entered into a new contract with the Respondent when they were appointed to permanent posts. The Act of 2003 cannot avail the Claimants in seeking to have the terms of that contract reviewed by this Court.

According the Court holds that it had no jurisdiction to make an order directing the Respondent to pay the Claimants the same rate of pay as their nominated comparators during the continuance of their permanent employment.



Signed on behalf of the Labour Court



Kevin Duffy
12th August, 2008______________________
JF/ MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.