FULL RECOMMENDATION
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : UNIVERSITY OF LIMERICK - AND - NOREEN COVENEY O' BEIRNE DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal against Rights Commissioner's Decision FT43951/06/MR.
BACKGROUND:
2. A Labour Court hearing took place on the 27th November, 2007. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Ms. Coveney O’Beirne (“the Complainant”) against a Decision of a Rights Commissioner which found against the Complainant in a claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). At the Rights Commissioner hearing the Complainant claimed that University of Limerick (the respondent) contravened Section 6 of the Act when she was treated less favourably than comparable permanent employees as she was not entitled to the same conditions of employment as those applicable to permanent employees when she was denied the right to join the University’s Superannuation Scheme.
She also claimed that the terms of a contract of indefinite duration, issued to her on 29th November 2006, provided her with different terms and conditions as applied to her previously, or applied to permanent employees employed at the time when she was first employed on a fixed term contract. The contract treated her as a new entrant to the Superannuation Scheme, thereby requiring her to retire at age 65, whereas those employees, who were members of the Scheme pre 2004, retire at age 60 years. This she claimed was in contravention of Section 6 the Act.
The Complainant also claimed that the Respondent contravened Section 8 of the Act in not supplying her with objective grounds when renewing her fixed term contract in December 2003 and Section 9 in not offering her a contract of indefinite duration on 29th July 2005 when she had completed four years continuous service.
The Rights Commissioner found that her complaints pursuant to Section 6 and 9 were not well founded. He found that her claim under Section 8 was out of time and consequently had no jurisdiction to hear the complaint. It is against this decision that Ms. Coveney O’Beirne appealed.
At the outset of the hearing, Counsel for the University, Mr. Mallon B.L. informed the Court that it was now in a position to inform Ms. Coveney O’Beirne that she was covered by the provisions of the pre 2004 Superannuation Scheme and was therefore, permitted to retire at age 60 years. He also informed the Court that she was entitled to buy back pensionable service to the scheme, with no interest charged or any other extra payments. However, he stated that had such information been sought by her it would have been supplied. The Complainant, who was represented by her husband, Mr. O’Beirne confirmed that on the basis of this new information this aspect of her appeal was being withdrawn. However, he stated that Ms. Coveney O’Beirne sought to be compensated for the stress she incurred due to the difficulties she encountered in seeking information from the University on her pension entitlement since 2005.
Ms. Coveney O’Beirne was initially engaged by the University as an independent contractor from 29th July 2001 until 30th November 2002. She was then employed on a fixed term contract from 1st December 2002 until 30th November 2003. The contract was renewed from 1st December 2003 until 30th December 2006. She was provided with a contract of indefinite duration on 29th November 2006.
The Complainant’s Case
The Complainant was employed as the Mature Student Officer in the University. She submitted that as a fixed term employee the University had denied her pension rights accorded to comparable permanent employees. She sought information on joining a pension scheme in 2005 and was informed that as her post was a funded post it was non pensionable and as she was on a fixed term contract she had no entitlement to join the University scheme and therefore a PRSA facility was the only option available to her.
Despite repeatedly asking for information, it was not until June 2006 that the University informed her that she could join the Scheme and in October 2006 she was informed that she could buy back her temporary service for pension purposes, but not all of her service. He stated that it was only at the Rights Commissioner’s hearing that the University informed her that she could buy back all of her temporary service. However, when she was provided with her contract of indefinite duration on 29th November 2006, she then realised that she was included on the post 2004 Superannuation Scheme, which had a retirement age of 65 years and not the more beneficial scheme which provided for retirement at age 60 years.
In addition to the stress involved in having to assert her entitlements unsuccessfully on a number of occasions, she now has to pay a significant sum of money in order to buy back her pension contributions. This is a consequence of the University’s failure to implement the Act appropriately.
Mr.O’Beirne submitted that there was a continuing failure on the part of the University to comply with the Act when it did not provide her with written objective grounds for the renewal/continuation of her fixed term contract and not providing her with a Contract of indefinite duration. He submitted that the University had no “objective grounds” as funds had been supplied from the Higher Education Authority to fund her position as the Mature Student Officer on a long-term basis, therefore there was no reason not to award her a permanent contract or a contract of indefinite duration.
Rather than an “out of time” defence, he submitted that the Act could be considered to have beenbreached on every day for the duration of the fixed term, where no written “objective grounds” had been furnished to her.
Mr. O’Beirne contends that the Complainant is entitled to rely on the application of the doctrine of direct effect of Community law as the University, is an emanation of the State, and submitted therefore that as she had four years service on 29th July 2005, that in accordance with Section 9 she should have received a contract of indefinite duration from that date.
The Respondent’s case
Mr. Mallon B.L. submitted documentary evidence that in November 2003, the Complainant requested that her fixed term contract be extended for a period of three years rather than one year as heretofore. He explained to the Court that fixed term workers were not entitled to join the University’s Superannuation Scheme and had access only to PRSA schemes. However, this situation was rectified in June 2006, in light of the provisions of the 2003 Act, and fixed term workers became entitled to the same pension rights as permanent employees. This provision was retrospectively applied to fixed term workers including the Complainant and she was given the option to buy back reckonable service. The University also provided for her to buy back her temporary service in respect of the period between 29th July 2001 and 30th November 2002, notwithstanding that she was engaged under a contract for services during that period of time. Accordingly, the University had not, in respect of pension or indeed any other condition of employment, treated her any less favourably than a comparable permanent employee.
Mr. Mallon B.L. stated that her contract of employment was renewed on only one occasion after the coming into effect of the Act on 14th July 2003. The date of renewal was 1st December 2003 and as she had not completed three years of continuous employment at that date, she only became entitled to a contract of indefinite duration on 30th November 2003 – the date of the termination of her fixed-term contract. He held that as she has been issued with a contract of indefinite duration at that point it is not open to the Court to find that the University breached Section 8 by not providing written “objective grounds”. In any event, the Complainant is precluded from bringing such a complaint as it is outside of the time limits provided for in Section 14 of the Act. The alleged breach is not one which is capable of continuing, as, if there was any contravention of section 8, it took effect on the date of renewal on 1st December 2003 or at the latest on 11th December 2003 when the University wrote to her confirming her renewal for an additional three years, as per her request.
Mr. Mallon B.L. submitted that there is no automatic right to compensation and compensation can only be awarded where the employee has suffered actual loss. Otherwise, an award would be tantamount to a fine or penalty rather than for the purposes of redressing loss suffered by the employee.
On the issue of the doctrine of direct effect, he submitted that this was a new argument, which had not been raised at the claim before the Rights Commissioner. He held the view that the University was not an emanation of the State, as it is funded in part (80%) by the State but not in whole. In support of this contention he citedScoil Iosagain v Martin Henderson, Determination No: FTD05/55.
Without prejudice to the forgoing, he maintained that the principle of direct effect does not apply to Section 9(i) of the Act, which came into effect on the date of the passing of the Act, on 14th July 2003. He citedHealth Service Executive v Prasad FCT/054.
Conclusions of the Court
The Complainant seeks relief for alleged contraventions of Sections 9, 8 and 6 of the Act. The Court conclusion in respect to each of these claims is as follows: -
Section 9 of the Act
The Complainant contends that she became entitled to a contract of indefinite duration on 29th June 2005. That claim is only sustainable if her employment history as a fixed-term worker comes within the ambit of section 9 of the Act.
This Section provides, in relevant part, as follows: -
- 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 tosubsection (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 contravenesubsection (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.
It is common case that the Complainant commenced working for the Respondent on 29th June 2001. It is submitted by the Respondent, and not contradicted by the Complainant, that this initial period of engagement, up to 30th November 2002, was on a contract for service. The Complainant commenced working for the Respondent on a fixed-term contract of service on 1st December 2002. This contract expired on 30th December 2003. It was then renewed with effect from 1st December 2003 for a period of three years.
The Complainant commenced her employment with the Respondent before the passing of the Act (14th July 2003). Hence the provisions of section 9(2) can have no application in relation to her. Her claim must, therefore, be considered by reference to section 9(1).
The Complainant could only come within the intendment of section 9(1) of the Act if she had completed her third year of continuous employment with the Respondent when her fixed-term contract was renewed on 1st December 2003. The Complainant’s first contract took effect on 29th June 2001. That, it was submitted, was one for service. Even if it had been asserted that this contract was in reality one of service (and no such assertion was made) this would mean that the Complainant had accrued two years and five months service at the time her fixed term contract was renewed. Since the Complainant had not completed her third year of continuous fixed-term employment at the time her fixed-term contract was renewed there was then no statutory restriction on the duration for which the contract could be renewed.
Accordingly the Court must hold that the Respondent did not become entitled to a contract of indefinite duration by operation of section 9 of the Act. It must further hold that the renewal of her fixed-term contract for a period of three years on 1st December 2003 did not contravene that Section.
Doctrine of Direct Effect
The Complainant sought to rely on the Doctrine of Direct Effect of Community law in advancing a claim that she became entitled to a contract of indefinite duration on the expiry of her fixed-term contract in the period prior to the passing of the Act. The jurisdiction of this Court to determine a case by application of this doctrine is currently the subject matter of a reference to the European Court of Justice pursuant to Article 234 of the Treaty EC. That reference arose in proceedings taken by 91 Civil Servants against the Minister for Agriculture and Food and others. In advancing their claim the Complainants in that case sought to rely directly upon the provisions of Directive 1999/70/EC and the Framework Directive annexed thereto.The jurisdiction of this Court to entertain that claim by application of the Doctrine of Direct Effect was put in issue by the Respondent. The Court stayed the proceedings and referred a question to the ECJ concerning its jurisdiction to apply a directly effective provision of Community law. That matter is now pending before the Court of Justice bearing record no C-268/06 –IMPACT v Minister for Agriculture & Ors.
It follows that if the application of the Doctrine of Direct Effect were to be considered determinative in this case the Court would be obliged to stay the proceedings until the Court of Justices rules on the jurisdictional question raised in the reference. However, the Court is satisfied that the application of that Doctrine could not be determinative in the instant case.
It is clear for the Judgment of the Court of Justice in C-212/04Adeneler and Others v Ellinikos Organismos Galaktos (ELOG). [2006] ECR I-6057, paragraph 91, that the Framework Agreement neither lays down a general obligation on the Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration nor prescribes the precise conditions under which fixed-term employment contracts may be used. The Court of Justice reiterated this dicta more recently inMarrosu and Sardino v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate[2006] ECR I-07213, par 47, wherein it said: -
- “However, since the framework agreement neither lays down a general obligation on the Member States to provide for the conversion of fixed-term employment contracts into contracts of indefinite duration nor prescribes the precise conditions under which fixed-term employment contracts may be used ( Adeneler and Others , paragraph 91), it gives Member States a margin of discretion in the matter.”
Section 8
The Complainant contends that the Respondent contravened section 8 of the Act by failing to provide her with a statement in writing setting out the objective grounds relied upon for the renewal of her fixed-term contract. If there was such a contravention it occurred on 1st December 2003. Any cause of action arising from the Respondent’s failure accrued on that date. The complaint was presented to a Rights Commissioner on 11th July 2006. This was outside the limitation period prescribed by section 14(3) of the Act. Accordingly it cannot be entertained.
Section 6
The Complainant contends that during the currency of her fixed-term employment she was treated less favourably than a comparable full-time employee in that she was excluded from the Respondent’s pension scheme. Section 6 of the Act gives a fixed-term worker an entitlement to the same pension arrangements as a comparable permanent employee with whom she is engaged in like work (see Judgment of Laffoy J. inMinister for Finance v McArdle18 ELR 165.
On the admitted facts of the case the Complainant was not afforded equal treatment in that regard during the currency of her fixed-term employment. She claims compensation for the infringement of her right to equal treatment and for the distress associated with seeking to vindicate that right. Counsel for the Respondent submitted that the contravention of which the Complainant complained was rectified retrospectively and that she suffered no loss of pension entitlements. Counsel advanced the argument that in these circumstances the Complainant cannot sustain a claim for compensation.
The Court cannot accept that submission. In the well known case ofVon Colson andKamann[1984] ECR 1891 the ECJ has made it clearthat where a social right derived from the law of the Community is contravened, the judicial sanction imposed must not only be compensatory in nature but must also provide an effective deterrent so as to dissuade future infractions.
In this case the Complainant was denied access to the Respondent’s pension scheme in contravention of her right to equal treatment with a comparable permanent employee. In the Courts view she is entitled to compensation for that infringement of her right under the Act and the Directive from which it is derived. The Court measures the compensation which is just and equitable having regard to all the circumstances of this case at €2000.00 and an award is made to the Complainant in that amount. The Respondent is directed to pay the Complainant compensation in that amount.
No element of this award is in respect of pecuniary loss.
Determination
For the reasons set out above the Court determines that the complaint under section 6 is well founded. Accordingly that aspect of the appeal of the Rights Commissioner's decision is allowed.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th December, 2007______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.