FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : COUNTY CORK VEC - AND - HUGH RANCE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Grier Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner's Decision R-052772-Ft-07/DI.
BACKGROUND:
2. An appeal was submitted tothe 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 8th October 2008. The following is the Court's Determination:
DETERMINATION:
This is an appeal against a Rights Commissioner’s Decision by Mr. Hugh Rance. Mr. Rance had been employed on a number of fixed term contracts with the County Cork VEC since 25th October 2001. He contends that the VEC failed to provide him with a written statement setting out the objective grounds justifying the renewal of his fixed term contract when it renewed his contract in August 2004; 2005 and 2006 contrary to Section 8 of the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act) and thus his contract was converted into a contract of indefinite duration (CID) pursuant to the provisions of Section 9 (3) of the Act.
Furthermore, Mr. Rance contends that the VEC are in breach of Section 6 of the Act in that he was treated less favourably than two comparable permanent employees as he was not paid the correct salary payments or allowances, he received no income during the academic holiday periods, he was not paid travel expenses and was not a member of the VEC’s pension scheme.
Finally, Mr. Rance contends that the VEC was in breach of Section 10 of the Act in that as a fixed term worker he was not offered training opportunities to enhance his skills and career development, as the Section requires.
For ease of reference the parties are referred to in this Determination using the designations prescribed as they were at first instance of the Act. Hence, Mr. Rance is referred to as the "Complainant" and County Cork VEC as the "Respondent".
Background
The Complainant has been employed by the Respondent as a Music Teacher under 6 successive fixed-term contracts since the 25th of October 2001. For the academic years 04/05, 05/06 and 06/07 he worked the full teaching complement of 22 hours in 3 centers in West Cork -Bantry, Schull and Skibbereen.
At first, the Complainant was employed on a substitution basis as an Art teacher, for which he holds the appropriate qualifications and he continues to teach Art. Since 2002, the Complainant has also been teaching the Flute, although he does not hold a recognised qualification in Music. He is considered by the Respondent to be a “qualified” Art teacher and an “unqualified” Music teacher.
It is accepted by both parties that he is not paid throughout the College’s holiday period, and does not benefit from the terms and conditions of employment that are applicable to qualified teachers on permanent contracts.
Preliminary Issue
The Rights Commissioner decided that, pursuant to Section 14 (3) of the Act he had no jurisdiction to hear the complaint under Sections 8 and 9 because it was presented outside the time limit of six months from the occurrence of the event leading to the complaint. The date of renewal of the relevant contract was the 29th of August 2006. The complaint was made on 4th May 2007.
The Court takes the view that the failure to offer the Complainant a contract of indefinite duration can be regarded as a continuing act commencing on the 29th of August 2006 and extending over his period of employment with the Respondent. Accordingly, the Court is of the view that it has jurisdiction to entertain the complaint under Section 9 and therefore, overturns the Rights Commissioner’s decision in this regard. The complaints under Sections 6 and 10 also involve continuing breaches and are therefore admissible. The complaint under Section 8 is inadmissible as it involves a discrete breach of the provisions of the Act and the complaint in respect of that breach was not made within the 6 months of the breach and no application for an extension of time was made. The Court may however draw such inferences as it sees fit from the failure to furnish objective grounds for the renewal of the Complainant's fixed term contract when considering his complaint under Section 9.
The Complainant’s case
Breach of Section 6
The Complainant contended that he had been treated in a less favourable manner than his chosen comparators in respect of his terms and conditions of employment. This was accepted by the employers.
He contended that that the Respondent could not rely on the decision of this Court in DeterminationNo. PTD051- Louth VEC v. Bernadette Martin,wherein the Court held that there was objective justification for Louth VEC’s decision not to apply incremental credit to part time teaching staff who were deemed unqualified.
Breach of Section 9
The Complainant stated that he was not furnished with written statements giving objective grounds for the failure to offer him a contract of indefinite duration as required by Section 8 of the Act in respect of any of the contracts furnished to him. He submitted that the Court should draw such inferences as it considered just and equitable from the failure of the Respondent to provide these written statements.
He contended that by operation of law he became entitled to a Contract of Indefinite Duration on the 29th of August 2006 as the Respondent was then in breach of
Subsections (1) and (2) of Section 9, and had not advanced any objective justification showing that the offer to him of a fixed term contract fulfilled a real need on its part and that the means taken to fill that need were both appropriate and necessary.
He referred the Court to the Department of Education and Science, Circular Letter 056/2008, published on 28th April 2008, which stated:
- the purpose of this circular is to advise school authorities that terms agreed for the implementation of the Protection of Employees (Fixed Term Work) Act, 2003, advised in circular 55/2008 and applicable to qualified teachers may also be applied, where relevant, to those of persons who are deemed to be incompletely qualified or unqualified and employed in an approved teaching post…...
The Complainant stated that the Respondent had retrospectively sought to rely on an alleged objective justification for its failure or refusal to grant him a contract of indefinite duration. He submitted that the reason advanced for such failure and/or refusal by the Respondent, namely the need to employ qualified teachers, was not an objective justification and did not satisfy the test enunciated inBilka- Kaufhaus, GmbH V Karin Weber von Hartz [1986 ECR 1607].
This test requires that the Court be satisfied that the impugned measures: -
(a) correspond to a real need on the part of the undertaking,
(b) are appropriate with a view to achieving the objective pursued, and
(c) are necessary to that end.
He stated that without prejudice to his own position, the Respondent could have satisfied its objective, (i.e. its need to employ qualified teachers) by another means, in that it could have employed him on a contract of indefinite duration and paid him at the unqualified and lower rate of pay.
Redress sought
The Complainant sought a determination that he was entitled to a contract of indefinite duration on the same terms as comparable teachers who were already employed by the VEC on contracts of indefinite duration.
He also sought payment of his arrears of travel expenses on the same basis as comparable teachers; an award of back pay in respect of all Art teaching hours paid at the “unqualified” rate; payment of the qualified rate for all music teaching hours paid at the “unqualified” rate; payment during holiday periods and pension rights.
Furthermore, he sought implementation of the Rights Commissioner award of €5,000 for breach of Section 10 (3) and implementation of his decision requiring the Respondent “to direct the Claimant as to how he might achieve the necessary qualifications and, within approved limits, to provide him with appropriate assistance in his development”.
The Respondent’s case
The Respondent told the Court that when recruited, the Complainant had given the impression that he had the required qualifications. The Department of Education & Science, through various Circular Letters comples the Respondent to ensure that all teachers are qualified in their given subject area. The Respondent explained to the Court that it had made several attempts to have his qualifications assessed so that it could deem him qualified and process his claim for a contract of indefinite duration. However, as it had been unable to establish the Complainant's qualified status the Respondent contended that it had no option but to treat him as being unqualified for the teaching positions he holds.
The recently issued Circular Letter 56/2008 now allows the Respondent to issue him with an ‘unqualified’ contract of indefinite duration. However, as the Circular only issued in 2008 it had not been possible to process a claim for a contract of indefinite duration before this date.
The Respondent stated that it was its custom and practice to pay travel expenses to a teacher who is obliged to travel from one assigned centre to itinerant centres in the course of a day. As the Complainant is not assigned to a home centre this could not be done. No teacher is paid to go from home to work, which is what the Complainant is seeking.
The Respondent stated that it had no problem paying the qualified rate for qualified teaching hours delivered.
The Respondent proclaimed that it is pro-active in the area of up-skilling. Given that the Complainant had admitted that he was unqualified the Respondent expected him to request in-service to allow him to become fully qualified.
The Applicable Law
Protection of Employees (Fixed- Term Work) Act 2003.
Conditions of employment for fixed-term employees
Section 6. - (1) "Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee."
(2) "If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated."
- Section 7 (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."
- Section 8 (2) " Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal. "
- Section 9 (1) “ Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
(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.
(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.
(5)not relevant
- Section 10
- (3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility."
The Respondent accepted that the employees named as comparators are comparable permanent employees in relation to the Complainant and that both the Complainant and the comparators satisfy the requirements set down in Section 5 (2) of the Act in that they both performed the same work and under the same or similar conditions. The Court accepts however that both comparators are fully qualified teachers whereas part of the complainants teaching hours involve work for which he is technically unqualified.
Section 6 claim
The Court is satisfied that the Complainant was treated less favourably than the named comparable permanent employees. However, the Court must examine whether such treatment can be justified on objective grounds in accordance with section 6 (2), i.e. was the requirement to have the appropriate teaching qualificationsa real need, necessary and appropriate to the objective pursued.
The objective grounds advanced by the Respondents were that they were unsure about the Complainants status. However there is no doubt that the Complainant was a qualified Art teacher when he was first employed by the Respondent and it is the view of this Court that doubts about his qualification to teach the Flute could not be relied upon as objective justification to retain him on a succession of fixed term contracts on different terms to comparable full time teachers. If the Respondent had wished, they could have paid him the qualified rate for his time spent teaching Art (which they did for one year only and reverted back in 2005/2006) and the unqualified rate for his time spent teaching the Flute.
The Court will now examine the individual elements of the complaint under Section 6.
Travel expenses
Travel expenses are paid in circumstances where expenses are necessarily incurred in order to carry out a person’s work. Travel expenses incurred from home to work are not paid. The Respondent contended that the Complainant was required to travel to three different work locations from his home and did not have a work base.
The Court notes that the comparators have a work base and are reimbursed for necessary travel expenses incurred based on the distance, whichever is the lesser, from “place of work” or “residence” to the venue.
Whether he was on a contract of indefinite duration or a fixed term contract, the Complainant should have been treated in a similar manner and assigned a base, from which his travel expenses could be ascertained. The Court can see no justification, unrelated to the Complainant’s status as a fixed term worker for the non-payment of travel expenses. Consequently, the Court finds in favour of this aspect of the claim.
Incremental Credit
The Court in DeterminationNo. PTD051- Louth VEC v. Bernadette Martin,upheld the employer’s position not to apply incremental credit to part time teaching staff who were deemed unqualified. This position is maintained in Circular 0056/2008 which states:
“Access to the incremental scale/incremental credit applies only to fully qualified teachers.”
The Complainant’s position is slightly different in that he is part qualified. However the Court accepts that there are good reasons for this position in that there is an incentive on the unqualified teachers to obtain the necessary qualification and thus hopefully raise the all round standard of teaching. This general rule is no less applicable to the Complainants individual circumstances. Furthermore this rule applies to all teachers irresepective of the status of their contracts.
Therefore, the Court does not find that the Complainant was treated less favourably than comparable permanent employees in respect of this claim for incremental credit.
Remuneration
In relation to his actual pay, the Complainant stated that he was paid for the academic year 2003/2004 at the unqualified rate for teaching Art and Music. In 2004/2005 he was paid at the qualified rate of pay for teaching Art. However, this reverted again to payment at the unqualified rate for both subjects for the academic year 2005/2006.
The Respondent provided no explanation for this change. It held the view that as he did not hold the appropriate qualifications to teach Music, he was paid at the unqualified rate for both subjects. However, the Court can find no explanation for the discrepancy in payment from year to year.
The Court does not find that he was treated less favourably in respect of payments made for teaching Music for which he was not qualified, however, it does find that he was treated less favourably when he was paid less than comparable permanent employees when teaching Art.
Holiday Pay
Other than the fact that the Complainant was on a succession of fixed term contract no objective justification was advanced for the failure to pay him during holiday periods. The status of the Complainant as a fixed term worker cannot be used to justify his less favourable treatment. therefore, the Complainant must be entitled to recover his arrears of holiday pay.
The Court therefore finds that the Respondent was in breach of Section 6 of the Act by reason of it's failure to pay travel expenses, the actual remuneration for the position and holiday pay. The Respondent was not in breach of the Act for its failure to pay the Complainant incremental credit each year.
Section 9 – Entitlement to a Contract of Indefinite Duration
The Respondents sought to rely on the specifications of Department of Education and Science Circular 0124/2006 as objective justification for their decision not to offer the Complainant a contract of indefinite duration. This Circular requires that where an unqualified teacher is appointed, there is a continuing obligation on the employer to recruit a qualified person:
- “Registerable teachers (in accordance with Circular Letters 101/2006, 102/2006 and 103/2006) who are appropriately qualified for the advertised post, should be recruited for all vacancies. In exceptional circumstances where the employer can demonstrate to the satisfaction of the Department of Education and Science that every reasonable effort has been made to recruit an appropriately qualified teacher, an unqualified person may be recruited pending the recruitment of an appropriately qualified teacher and this provision must be inserted in the terms of the contract issued to that applicant. There is however an ongoing commitment on behalf of the employer to seek to recruit a fully qualified teacher for all vacancies.”
While the Court accepts that it would be in the interest of all concerned to have suitably qualified teachers for all positions, it does not accept that it constitutes sufficient justification to retain unqualified teachers over a period of years doing exactly the same work as qualified teachers but on inferior terms and conditions. In the Courts view this Circular could only be applicable to short term situations.
The Court also notes the following provisions of DES Circular 0056/2008, paragraph 1.1 of which states:
- “The purpose of the Circular is to advise School Authorities that terms agreed for the implementation of the Protection of Employees (Fixed Term Work) Act 2003 advised in Circular 55/2008 and application to qualified teachers may also be applied, where relevant to those persons who are deemed to be incompletely qualified or unqualified and employed in an approved teaching post wholly funded out of monies provided by the Oireachtas with a contract of employment with the Vocational Education Committee/or Post Primary School”.
Paragraph 1.5 reads as follows:
- “Notwithstanding the provisions of Paragraph 1.3 and 1.4 above it is recognised that certain schools/VECs have employed incompletely qualified/unqualified persons in approved teaching posts for a number of years prior to the issue of Circular 0124/2006 and that a number of such persons may now have entitlements under the Fixed Term Workers Act 2003”.
2.2 In pursuant of this Act, agreement under the auspices of the Teachers Conciliation Council has now been reached on persons comprehended under par 1.5 above.
In accordance with the FTW Act Par. 9.1 outlined above and on an entirely exceptional basis the employer shall issue a contract of indefinite duration to any such member of the staff whose initial employment commenced before 7th September 2006 and who satisfies the following conditions;
(i) s/he is registered with the Teaching Council
(ii) s/he has had in excess of 4 years continuous service, excluding any period of secondment, in the same post (those employed for the first time after 14th July 2003 must have two or more successive contracts of employment) with the same employer that were paid for out of monies provided by the Oireachtas unless s/he is excluded by reason of one or more of the following
�s/he is the subject of a disciplinary procedure (i.e. there are formal written disciplinary charges of a significant nature against the teacher on grounds of misconduct or other serious disciplinary offences) or
�s/he is covering for a teacher or employer absent on an approved scheme or leave of absence and such a ground was set out as an objective ground in writing in the previous contract or
�the post will not be viable within a reasonable period and such a ground was set out as an objective ground in writing the previous contract.
The Complainant submitted that he met the conditions specified in Paragraph 2 of the Circular 0056/2008 entitling him to a contract of indefinite duration.
It is not disputed that the Complainant completed his third year of continuous employment with his employer (on 31st October 2004), after the passing of the Act on 14th July 2003. He was awarded a further fixed term contract on 29th August 2005 and therefore can rely on section 9(3) for the purpose of asserting an entitlement to a contract of indefinite duration from 29th August 2006.
However, the Respondent contended that it could rely on the terms of Section 9(4) of the Act, which allows for the renewal of a contract, in breach of subsections (1) in circumstances where the employer can show that there was objective justification for such a renewal.
The Respondent did not at the time of renewal of the contract provide a written statement outlining the objective grounds for the renewal, contrary to its statutory obligations. This transfers a heavy onus onto the Respondent to show that it had considered these reasons at the time of renewal and that they did constitute objective justification for the decision not to offer the Complainant a contract of indefinite duration.
This onus has been clarified in a number of Determinations of this Court and in particularHealth Service Executive North Eastern Area v Khan[2006] 17 E.L.R. 313.). where the Court found :
Moreover, a purposive interpretation of section 9 indicates that a Respondent must establish that the reason relied upon as constituting objective grounds was the operative reason for the failure to offer a contract of indefinite duration at the time the fixed-term contract was renewed. This suggests that the Respondent must at least have considered offering the Claimant a contract of indefinite duration before renewing his or her fixed-term contract and decided against doing so for the reason relied upon.
Section 8(2) is also of considerable significance on this point. It seems to the Court that the purpose of Section 8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed. On a reading of the Section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under Section 9(4). Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with Section 8(2), it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary.”
A contract was sent to him on 14th August 2006 indicating that his Employment Contract” was “FTC” - Fixed Term Contracted. Again this contract gave no reasons for the renewal of his fixed term contract. The Complainant refused to sign it on the basis that he had expected a contract of indefinite duration and sought a year’s leave of absence.
On 11th August 2006 and 11th August 2007 the Respondent issued further Fixed Term Contracts for academic years 2006/2007 and 2007/2008 respectively which were similar to the previous contracts and again gave no written reason for the renewal.
The Respondent’s response to the Court was that it was attempting to deem him qualified and process his claim for a contract of indefinite duration.
This does not in the view of the Court constitute sufficient objective justification for the failure to offer the Complainant a contract of indefinite duration. The Court, therefore finds that the Respondent is in breach of Section 9 of the Act.
Section 10 claim
The Complainant told the Court that in 2005 he was denied funding from the VEC to allow him acquire a professional diploma in Music, he held that such a refusal was in breach of the Department’s “Teachers Fee Refund Scheme”.
The Court accepts that the Respondent did not facilitate the Complainant in accessing training opportunities in order to gain the necessary qualification and consequently finds the Respondent in breach of Section 10 of the Act.
DETERMINATION
Breach of Section 6
As the Complaiant has an entitlement only to recover monies for the breach of Section 6 in respect of the six month period prior to the making of his complaint, the Court awards the Complainant a sum of €9000 in compensation which includes arrears in respect of the breach of Section 6 of the Act.
Breach of Section 9
The Court determines that the Complainant is entitled to a contract of indefinite duration by operation of law from 26th August 2006 on the same terms and conditions as comparable permanent employees, together with all applicable arrears of pay and pension to be paid from that date. For the purposes of clarification the Court confirms there is no duty to pay increments while the Complainant is unqualified for part of his duties. Also the Complainant may be paid at the unqualified rate for the part of his duties for which he is unqualified.
Breach of Section 10
The Court upholds the Rights Commissioner award of €5,000 for breach of Section 10 (3) and upholds his decision requiring the Respondent “to direct the Claimant as to how he might achieve the necessary qualifications and, within approved limits, to provide him with appropriate assistance in his development".
The Court so determines
Signed on behalf of the Labour Court
Caroline Jenkinson
1st December 2008______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.