FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HSE - AND - DR ABDUL RAUF (REPRESENTED BY JOHN C KIERAN & SON) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal against a Rights Commissioner's Decision no. r-051954-ft-07/JC.
BACKGROUND:
2. On the 12th May, 2008 John C. Kieran & Sons, on behalf of Dr. Rauf appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on the 16th September, 2008. The following is the Court's determination:
DETERMINATION:
BACKGROUND:
The Complainant, a Non-Consultant Hospital Doctor, worked on a series of fixed term contracts within the Irish Health Service between January 1997 and 30th June 2006, when he was let go. He claimed in July 2006 that he was entitled to a contract of indefinite duration. Following exchanges between the parties, the complainant presented a complaint to a Rights Commissioner on 2nd April 2007, claiming that he had a right to a contract of indefinite duration in accordance with Section 9 of the Act and that he was not notified of available permanent positions, contrary to Section 10 of the Act.
A Rights Commissioner hearing took place on 15th October and 19th November 2007. In her recommendation dated 29th April 2008, the Rights Commissioner found that the claim had been submitted to the Service out of time and that reasonable cause for extending the six-month time limit had not been shown. Accordingly, she found that the complaint was not well founded.
On 12th May 2008 an appeal against this decision was received from the Complainant.
A Labour Court hearing took place on 16th September 2008.
Complainant’s Arguments:
Preliminary Issue:
1. In deciding that the 6 -month time limit fixed under Section 14(3) of the Act had not been complied with, and that reasonable cause had not been shown to extend it, the Rights Commissioner failed to exercise her discretion in a reasonable way, given the seriousness, complexity and validity of the substantive case at issue, and the volume of precedents for consideration.
2. Having heard evidence on the time limit issue, the Rights Commissioner held a further hearing five weeks later where the substantive case was argued. It was reasonable for the complainant to assume at that point that the time limit issue had been dealt with, otherwise there would have been no point in hearing the substantive case.
3. The Respondent knew at an early stage that the Complainantwas making a claim. He had to get legal advice and this took time, as his employment history had to be considered.
- He was also afraid to make a claim for fear of victimisation, which had happened to some colleagues who had made claims.
Accordingly, the six-month time limit should have been extended by the Rights Commissioner to allow hearing of the case.
Substantive Issue:
1. The Complainant had worked within the Health Service from January 1997 until June 2006 on a series of fixed term contracts as follows: -
Contracts – Dr Abdul Rauf
| START DATE | END DATE | LOCATION |
| January 1997 | 30th June 1997 | St.Vincent’ Dublin |
| 1st July 1997 | 31st December 1998 | St. Fintan’s, Portlaoise |
| 1st January 1999 | 15th July 2000 | St. Loman’, Mullingar |
| 27th August 2000 | 31st December 2002 | St. Columba’s, Sligo |
| 1st January 2003 | 31st December 2003 | St. Brigid’s, Ardee |
| 1st January 2004 | 30th June 2004 | St.Mary’s, Drumcar |
| 1st July 2004 | 31st December 2004 | St. Brigid’s, Ardee |
| 1st January 2005 | 30th June 2005 | Mater Hospital, Dublin |
| 1st July 2005 | 21st July 2005 | St. Brendan’s, Rush |
| 21st July 2005 | 30th June 2006 | St. Brigid’s Ardee |
Dr Rauf was clearly employed by the HSE and its predecessors.
3. Assertions by the Respondent that the Complainant’s service was broken by contracts in St. Mary’s, Drumcar and the Mater Misericordiae Hospital, Dublin are invalid. The Complainant was, at the very least employed by an “ associated employer” within the meaning of Section 2 of the Act.
Respondent’s Arguments:
Preliminary Issue:
1. The Complainant ceased to be employed by the Respondent 9 months before lodging his complaint with the Rights Commissioner Service and was therefore out of time.
2. No satisfactory explanation was put forward for the delay which might constitute any “reasonable cause” (as set out in Section 14(4) of the Act) to extend the time limit.
3. The Complaint as made to the HSE on 3rd July 2006. It replied on 19th July 2006 saying “no” to the claim. Nothing further was heard from the complainant (who had already had legal advice since the beginning of July 2006) until 29th January 2007. This was again replied to within two days, yet a complaint to the Rights Commissioner Service did not materialise until April 2007.
4. Any claim that the Complainant was afraid to pursue a claim for fear of victimisation does not hold water. No claimant has been victimised for making a claim and all who qualified under this Act have been satisfactorily accommodated. If the claimant had a fear of victimisation, he would not have taken his case so promptly and would undoubtedly have raised such a fear before the Rights Commissioner, which he did not do.
Substantive Issue:
1. The Act because law on 14th July 2003, on which date the complaint was employed by the former North Eastern Health Board. The clock for the Complainant effectively commenced on 1st January 2003. (If his employment from January to June 2004 in St. Mary’s were to be accepted as reckonable). When the HSE came about on 1st January 2005, therefore, the Complainant had a maximum of two years continuous service and does not satisfy the requirements of Section 9(1) or (2). The Complainant also worked in the Mater Hospital in Dublin (A Voluntary Hospital, not part of the HSE) from January to June 2005.
- Even if the entire period from 1st January 2003 to the end of his last contract were taken into account, the Complainant would still not meet the requirements of Section 9 of the Act.
(a)one is a body corporate of which the other (directly or indirectly) has control or
(b) both are bodies corporate of which a third person (directly or indirectly) has control.
- It is contended that the Health Boards, who had autonomy and each of which had its own C.E.O. and Board of Management, were not “associated employers” as per the above descriptions, prior to the establishment of the HSE on 1st January 2005.
The relationship between the Department of Health & Children and the Health Boards as to whether they are “associated” within the meaning of Section 2(2) was covered by the High Court in the case of “[Bailey v Minister for Agriculture Food & Forestry]” [1998] 41 R 250, where an issue arose as to whether the Department and Teagasc (one of its agencies) were “associated employers” under Section 2 of the Anti-Discrimination (Pay) Act 1974, which has the same definition as is contained in this Act.
Budd J took the view, as had the Labour Court on appeal, that Teagasc was not controlled by the Minister for Agriculture. The same reasoning applies in the case of the former Health Boards.
- It is contended that the Health Boards, who had autonomy and each of which had its own C.E.O. and Board of Management, were not “associated employers” as per the above descriptions, prior to the establishment of the HSE on 1st January 2005.
The Law Applicable:
The Court must first direct its attention to the time limit question. There is a general acceptance that an arguable substantive case should be heard, provided the complainant can satisfy the modest requirement of showing reasonable cause as to why a case was not brought within 6 months of the alleged offence under the Act. By common assent, the date of this was the termination of the Complainant’s contract on 30th June 2006.
In the series of individual cases concerning Cementation Skanska v Riordan (and others) this Court observed that, in its view
- “(that) in considering if reasonable cause exists, it is for the Claimant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd”
There must, the Court said“be a causal link between the circumstances cited and the delay and the Claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time”.
It was confirmed by the parties that:-
The Complainant’s legal advisors contacted the Respondent on 3rd July 2006, requesting a contract of Indefinite Duration. The Respondent replied, rejecting this demand, on 19th July 2006.
It was explained to the Court by the Complainant’s Legal Team that the solicitors then had to research the matter and engage counsel, who was unable to deal immediately with the matter as he was on holidays and consequently could not read and research the case until the early Autumn of 2006. The Complainant also told the Court that he was hesitant to progress the case for fear of victimisation, a fate which he claimed had befallen some of his fellow NCHD’s when they brought cases. No evidence was advanced in support of this assertion which was emphatically denied by the HSE.
The Complainant’s advisors again wrote to the HSE, repeating his claim, on 27th January, 2007, (at which stage the Complainant was already out of time by some 3.5 weeks). The HSE again replied in the negative on 29th January, 2007.
The case was referred to the Rights Commissioner service on 2nd April 2007, at which stage the Complaint was out of time by just over 3 months.
Court Findings:
In the view of the Court, the requirement of “reasonable cause" is not an unduly onerous one. A complainant needs to show reasons which both explain the delay and justify it. He or she must also demonstrate that there are reasons but for which the case would have been referred in time.
The Complainant moved quickly to engage legal advice when his contract was terminated. His advisors knew the law and it is unlikely, to say the least, that the Complainant himself was not aware or made aware that a time limit existed. Nevertheless, when his advisors contacted the HSEafterthe time limit had already expired by some 3 weeks (27th January 2007) and received an immediate reply from the HSE, reiterating its position, the case was still not referred to a Rights Commissioner until 2nd April 2007, a further unexplained delay of over two months.
Taken together with the original failure to refer the case within 6 months, for which the Court finds the reasons advanced unconvincing, this further failure, at a stage when the case was already out of time, to refer the matter does not, in the view of the Court, cross even the low barrier of “reasonable cause”.
Determination:
The Court, accordingly, dismisses the appeal on the preliminary point, and therefore does not have jurisdiction to find on the substantive case and upholds the decision of the Rights Commissioner.
The Court so determines.
Signed on behalf of the Labour Court
Raymond McGee
1st December, 2008______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.