FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HEALTH SERVICE EXECUTIVE - SOUTH - AND - DR RAHIM AREFI (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Mr McGee Employer Member: Mr Grier Worker Member: Mr Nash |
1. Appeal Against Rights Commissioner's Decision Ft45379/06/Mr
BACKGROUND:
2. The Complainant appealed the Rights Commissioner's Decision to the Labour Court on the 21st June, 2007, in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on the 29th November, 2007.
The following is the Court's Determination:-
DETERMINATION:
Background
The Complainant had been employed as a Senior House Officer (SHO) in Psychiatry, initially between 1997 and 2000 and later between 2000 and 2003, in the old South Eastern Health Board (SEHB) area.
In June 2003, just as his contract with the S.E.H.B. was ending, he applied for and was offered the opportunity to take part in a 3 - year rotational Training Scheme in Psychiatry on a succession of six month contracts from 1st July 2003 to 30th June 2006. His job title was that of SHO in Psychiatry.
His duties (inter alia) included participation in programmes of Postgraduate Medical Education & Training, furthering his knowledge of diagnosis and management and also diagnosing and treating patients under the direction of the Consultant Medical Staff. His employment began with the Southern Health Board, but this became part of the HSE in 2005. His employment terminated on the 30th June, 2006.
The IMO lodged a complaint with the Rights Commissioner service under the Act following the termination of the Complainant’s employment. They alleged that the Respondent had breached Section 9 of the Protection of Employees (Fixed-Term Workers) Act 2003 (the Act) in not offering the Complainant a contract of indefinite duration upon the expiry of his six month contract ending on the 30th of June 2004.
A Rights Commissioner’s hearing took place on the 8th January 2007 and on the 11th June 2007. The Rights Commissioner, in his Decision, found against the Complainant’s claim to an entitlement to a contract of indefinite duration under the terms of the Act.
On 20th June 2007, the IMO appealed to the Labour Court against the Rights Commissioner’s Decision. A Labour Court hearing took place in Cork on 29th November 2007.
Complainant’s Arguments:
1. The Complainant stated that NCHDs traditionally operate on the basis of renewable 6-month contracts. That was the position in his case. In a letter of appointment on the 27th June 2003 the Respondent stated;
- I…..have pleasure in informing you that you have been offered a SHO post in Psychiatry (Three Year Rotational Training Scheme)……..This appointment is for the period:1st July 2003 to 31st December 2003
The Complainant stated that Non Consultant Hospital Doctors (NCHDs) do not operate on 3- year contracts. The” three years” mentioned in the letter of appointment in fact referred to the length of the training programme.
2. The Complainant subsequently received letters at six monthly intervals, each confirming that his appointment as SHO had been extended for a further 6- month period and stating, in each case, the location of his employment for that period. After the expiry of the sixth of these periods, his employment was terminated ( 30th June 2006). He had at this stage completed 12 successive 6-month contracts in the SEHB and SHB (the HSE with effect from January 2005). The Complainant contended that he should have been offered a contract of indefinite duration with effect from 1st July 2004 (following the completion of his fixed-term contract from 1st January 2004 to 30th June 2004, that being his first six month contract following his completion of 3 years’ continuous service with the respondent on 14th July 2003, ( the date on which the Act came into effect).
3. The Complainant contended that the HSE:
(a) breached Section 6 of the Act by treating the Complainant less favourably than a comparable permanent employee in advertising the post he occupied and effectively forcing him to compete for it when he should have, from 1st July 2004, been granted a contract of indefinite duration. Other NCHD’s had continued in employment without having to compete for their posts after the expiry of their training programmes,
(b) put forward no objective grounds in writing to the Complainant justifying the renewal of the fixed-term contracts after the 1st January 2004 contract.
(c) should have, and should now, offer the Complainant a contract of indefinite duration with effect from 1st July 2004 on the basis of his employment history up to and subsequent to the effective date of the Act.
(d) penalised the Complainant by terminating his employment in 2006 in order to avoid the granting to him of a contract of indefinite duration.
5. The IMO, for the Complainant referred the Court to its decisions in the case of the HSE North Eastern Area Respondent and Khan Complainant , Det. No. FTD064, , in which case the Court found in favour of the Complainant and awarded him a contract of indefinite duration. The IMO contended that the facts and circumstances of the instant case are, to all intents and purposes, identical to the Khan case, in that Dr. Khan was also employed on a training scheme (3 ½ years) on a succession of fixed-term contracts, where he provided services (also in the field of Psychiatry) to patients as an S.H.O. in the same manner as the Complainant.
Respondent's Arguments:
The Law Applicable
In effect the Court is being asked to decide whether the Complainant was employed on a three year fixed contract or on a series of six month contracts over a three year period.
In this regard the language used by the Respondent is of assistance in helping the Court to reach it’s decision. The first letter of appointment states that the Complainant has been appointed to a Three Year Rotational Training Programme and that the appointment is for a six month period. Each subsequent letter of appointment states that the complainants appointment has been extended for a further six month period. The language used indicates to the Court that the Respondent felt entitled to cancel the Complainant's contract at the end of each six month period and this must lead the Court to conclude that in fact the Complainant was employed on a succession of fixed six month contracts over the period of the Training Programme.
The Respondents could have informed the Complainant that he was employed on a three year contract and that he would be rotated during that period, the language employed in the initial and subsequent Letters of Appointment in the view of the Court, clearly shows a different intention.
Section 9(1) and Section 9(2) and Section 9(4) of the Act state,
- “(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.
(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.
- The Respondent’s case is mainly based on the proposition that the Claimant was contracted to be employed on a three year training scheme. For the reasons set out above the Court cannot accept this contention.
The Respondents have not sought to put forward objective grounds justifying the renewal of the Complainants contract for each six month period and therefore cannot avail of the provisions of Section 9(4).
It is common case that the Complainant had completed three years' employment on the 23rd July 2003. Therefore his contract, under the provisions of the Section 9 (1) ,could only be renewed once and for no longer than 1 Year. It is the finding of this Court that once the six month period expiring on the 30th of June 2004 had finished, the Complainant was entitled to a contract of indefinite duration. The Court has reached a similar conclusion in the case of HSE Northeastern Area and Dr. Mohammed J Khan, Determination no FTD 064. in which Dr. Khan was employed under similar terms and conditions.
Penalisation under Section 13
Section 13 states:
- (a) for invoking any right of the employee to be treated, in respect of the employee’s conditions of employment, in the manner provided for by this Part,
(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,
(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or
(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).
- (2) For the purposes of this section, an employee is penalised if he or she—
(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or
(b) is the subject of any other action prejudicial to his or her employment.
The training programme came to an end on the 30th of June 2006 The Complainant first indicated that he was seeking relief under the Act by letter dated the 6th of July. The Court therefore cannot see how the Respondent victimized the Complainant when the Complainant did not seek to assert his rights under the Act until after the Training Programme came to an end. The complainant must therefore fail in his claim under Section 13.
Determination
The Court overturns the decision of the Rights Commissioner and allows the Appeal. The Claimant is entitled to a contract of indefinite duration from the 1st of July 2004. For the avoidance of doubt the court wishes to point out that the contract of indefinite duration to which the Claimant became entitled is identical in its terms including any express or implied terms as to training or qualifications, as the fixed term contract from which it was derived. The only term of the preceding contract which was rendered void and severed was that relating to its expiry by effluxion of time.- (2) For the purposes of this section, an employee is penalised if he or she—
- The Respondent’s case is mainly based on the proposition that the Claimant was contracted to be employed on a three year training scheme. For the reasons set out above the Court cannot accept this contention.
Signed on behalf of the Labour Court
Raymond McGee
21st February, 2008______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.