FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : BOARD OF MANAGEMENT NORTH DUBLIN MUSLIM NATIONAL SCHOOL (REPRESENTED BY ARTHUR O'HAGAN SOLICITORS) - AND - COLM NAUGHTON (REPRESENTED BY INTO) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal against Rights Commissioner's Decision R-048333-Ft-06/Jt
BACKGROUND:
2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 30th November, 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 5th May, 2008.
The following is the Court's Determination:-
DETERMINATION:
Introduction
In this appeal the parties are referred to as they were at first instance. Mr Colm Naughton, who is the Appellant in this case, is referred to as the Claimant. The Board of Management of North Dublin Muslim School is referred to as the Respondent.
In his complaint to the Rights Commissioner and in his appeal to this Court the Claimant alleged contraventions by the Respondent of Sections 6,8,10 and 13 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). At the hearing of this appeal Mr Ward of the INTO, on behalf of the Claimant, accepted that the facts giving rise to the complaint could only relate to obligations imposed on the Respondent by ss.8 and 10 of the Act.
In the course of the hearing the Court heard sworn evidence from the Claimant and from Mr Shahzad Ahmed Quidwai who, at the time material to this case, was Chairperson of the Respondent.
The Evidence
The evidence adduced can be briefly summarised as follows: -
The Claimant
The Claimant told the Court that he commenced employment with the Respondent as a learning support teacher on 13th February 2006. He had applied for the post in response to an advertisement which had appeared in a newspaper on 6th December 2005. The advertisement had sought applications for posts of permanent learning support teachers, temporary language support teachers and permanent mainstream teachers. The Claimant told the Court that following an interview he was contacted by the Principal of the School and offered the post of learning support teacher.
It was the Claimant’s evidence that he was not told that the appointment was temporary. He first became aware of the nature of his appointment some three weeks after he commenced employment when he was asked to complete a salary form which indicated that his post was temporary. The Claimant told the Court that he was not informed in writing or otherwise that his employment was temporary or as to the conditions on which it would terminate.
The Claimant was referred to a copy of a letter addressed to him by Solicitors acting for the Respondent, dated 26th July 2006, which referred to his appointment terminating on 31st August 2006. This letter also referred to an advertisement inserted in the previous day’s Irish Independent in relation to a permanent post which would become available at the Respondent school in September 2006. The Claimant told the Court that he did not receive this letter. He said that having finished teaching on 30th June 2006 he had gone away on holidays. He had asked the people with whom he shared a house to open any post that came for him during his absence. He had been assured that no correspondence in relation to his employment had arrived at the house.
The Claimant said that the Chairperson had approached him in the schoolyard, in or about Easter 2006, to discuss various matters in relation to his employment. He accepted that he had been told to watch the job advertisements in the national newspapers in relation to possible permanent posts. However, his evidence was that he had not been informed that his contract would terminate at the end of the school year.
The Claimant told the Court that permanent posts for the following school year were advertised in July 2006. He later became aware that a notice to this effect had been placed on the notice board of the school in July 2006. However he was on holidays at that time and could not have been expected to attend at the school at that time.
The Claimant said in evidence that he believed his contract would be “rolled over” into the next academic year.
The Claimant told the Court that on 7th August 2006, after he returned from holidays, he had sent an e-mail to the Chairperson of the Respondent informing him that he had been away and enquiring if permanent posts at the school had been advertised. He did not receive a reply to this e-mail.
The Respondent
Mr Shahzad Ahmed Quidwai, who was Chairperson of the Respondent, gave evidence before the Court. He said that the School had advertised for a number of posts, both permanent and temporary, in December 2005,including the post of learning support teacher. The Claimant applied for a permanent post and was unsuccessful. A candidate, other then the Claimant, had been selected for appointment to the post of learning support teacher. However shortly before the post was to be taken up it was discovered that this person could not be approved by the Department of Education and Science. In consequence it was decided to fill the post on a temporary basis and the Claimant was contacted by the School Principal and offered the post for the remainder of the school year.
The witness said that he was approached by the Claimant in the schoolyard around Easter time and asked if the permanent post was being advertised. He told the Claimant that the post had not yet been approved by the Department of Education and Science and could not be advertised until approval was received. Mr Ahmed told the Court that the post of language support teacher had been approved in or about July 2006 and he had instructed that an advertisement be placed in the newspapers and that a notice be placed in the school. Solicitors, who had been retained by the Respondent to advise it on employment law issues, were also instructed to write to the Claimant drawing his attention to the advertisement. The closing date for applications was set at 9th August 2006.
The witness told the Court that he was involved in a road traffic accident on 5th August 2006 as a result of which he was incapacitated for some time. He said that he had not opened his e-mails as a result and did not see the e-mail to which the Claimant had referred in his evidence until after the closing date for applications. Mr Ahmed said that he had tried to contact the Claimant by telephone to explain the situation to him but the call had not been answered. Mr Ahmed’s phone record, which recorded that a call had been made to the Claimant’s mobile telephone on 29th August 2006, was produced to the Court. The record showed that the call had not been answered.
The witness told the Court that the Claimant had reported for work on 1st September 2006. Mr Ahmed said that an acrimonious discussion ensued between the Claimant and him in relation to the Respondent’s failure to renew his appointment. The witness told the Court that he had offered the Claimant a further temporary appointment but that the Claimant refused this offer.
Conclusion
This case concerns the extent to which the Respondent complied with its obligations under ss 8and 10 of the Act in relation to the Claimant. Section 8(1) provides as follows: -
8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
(a) arriving at a specific date,
(b) completing a specific task, or
(c) the occurrence of a specific event
Section 10 provides: -
10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.
(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.
(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.
Section 8
The evidence before the Court indicates that Solicitors instructed by the Respondent wrote to the Claimant on 26th July 2006 informing him, inter alia, that his contract would expire on 31st August 2006. The letter expressly stated that this information was being given pursuant to s. 8(1) of the Act. While it appears that the Claimant did not receive this letter there is no evidence to suggest that it was not sent. Mr Ward did not seek to have the author of the letter give evidence on this point. The Court accepts the authenticity of the letter and that it was posted on or about the date on which it was written. If the sending of this letter was sufficient compliance with the requirements of s. 8(1) the Court would also accept that the Respondent did all that it could to meet its obligations notwithstanding that the letter was not received by the Claimant.
However, what is obligated by s.8(1) is that an employer inform a fixed-term employee in writing“as soon as practicable” of the objective condition determining the contract. While no authorities were opened to the Court on the meaning which should be ascribed to that expression, there are a number of decided cases in which the Superior Courts have considered what is meant by the term.
For present purposes it is sufficient to refer to the decision of the Supreme Court inMcC. and McD. v. Eastern Health Board[1997] 1 ILRM 349. In that case the Supreme Court approved an earlier decision of Costello J. (as he then was) on the meaning of the expression inHobbs v. HurleyHigh Court, Unreported 10 June 1980. InMcC. and McD. v. Eastern Health Boardit was held that in construing the phraseas soon as practicableregard must be paid to the context in which the words were used and all the surrounding circumstances and, in particular, the nature and purpose of the statutory obligation on the Respondent. It was held that the phrase was not synonymous with “as soon as possible”.
It seems to the Court that the nature of the obligation imposed by the Section is to inform a fixed-term employee of the duration of his or her employment or, where this is indeterminable, of the circumstances in which it will expire. At least one purpose of the obligation is to ensure that the fixed-term employee knows the duration the employment so as to be in a position to arrange his or her affairs accordingly. This suggests that the information should be given in close proximity to the commencement of the employment.
The authorities also suggest that regard should also be had to any practical difficulties which might impede the Respondent in providing the information. Since the existence of any such difficulties are necessarily within the particular knowledge of the Respondent it is for it to explain any delay in providing the information. In the instant case no reason was given by the Respondent for the failure to provide this information for a period of five months after the Claimant’s employment had commenced.
The Court noted the evidence of Mr Ahmed to the effect that he told the Claimant verbally that his contract would expire at the end of the school year. The Court also notes the evidence of the Claimant to the contrary. The requirement to give the information in writing is imposed so as to avoid the type of uncertainty or misunderstanding that can occur with verbal communications. Moreover, Mr Ahmed’s evidence was that this verbal communication took place some two months after the Claimant commenced his employment. In any event the giving of information verbally could not amount to sufficient compliance with the obligation imposed by s. 8(1).
On the facts of this case the Court is satisfied that the Respondent did not inform the Claimant in writing of the objective condition determining his contract as soon as practicable and thereby contravened s.8(1) of the Act.
Section 10
The obligation imposed on the Respondent by s.10 of the Act is to inform fixed-term employees of permanent vacancies so as to provide them with an opportunity to secure a permanent post. The nature of the obligation was considered by this Court in Determination FTD055-Martin Henderson v. Scoil �osagáin[2005] 16 ELR 271. Here it was held that the mere placing of an advertisement in a newspaper was insufficient.
The Court found that notification must be delivered to the fixed-term employee in person or a notice must be placed in a prominent position in the workplace. The correctness of that decision was not questioned in this case.
A notice concerning vacancies for permanent posts which were to be filled in September was posted in the School in July 2006. This was during the School holidays when the Claimant was not at work. It was rightly accepted on behalf of the Respondent that this could not have met the Respondent’s obligation under the Section.
However, the evidence disclosed that the Respondent also instructed its then Solicitors to write to the Claimant informing him of the vacancies and enclosing a copy of the advertisement which had been placed in the public press. The fact that this letter was not received by the Claimant is a matter outside the control of the Respondent. The Court is satisfied that in causing the notification to be sent to the Claimant by post the Respondent did all that it could to fulfil its obligation under the Section.
With regard to the e-mail sent by the Claimant on 7th August 2006, the Court accepts the evidence of Mr Ahmed that he did not see the e-mail until after the closing date for applications for the vacancies. Consequently the Court accepts that, by the closing date for applications, the Respondent was unaware that the Claimant had not received the letter containing the notification.
In all the circumstances the Court does not accept that the Respondent failed to meet its obligation under s. 10 of the Act in relation to the Claimant.
Finding
The Court finds that the Respondent contravened s. 8(1) of the Act in failing to inform the Claimant in writing as soon as practicable of the objective conditions determining his contract. The complaint herein is to that extent well founded. The Court also finds that the Respondent did not contravene s.10 of the Act and that complaint is so far as it relates to the obligation imposed by that Section is not well-founded.
Redress
The Court finds the appropriate redress for the contravention of s. 8(1) is an award of compensation. The Court measures that the amount which is fair and equitable in the circumstances at €2,000. An award in that amount is made in favour of the Claimant none of which award pertains to loss of earnings.
The Rights Commissioner's Decision is amended in accordance with the terms of this Determination.
Signed on behalf of the Labour Court
Kevin Duffy
21st May, 2008.______________________
JMcCabe.Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.