FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : MOUNT TEMPLE COMPREHENSIVE SCHOOL (REPRESENTED BY MARCUS DOWLING B.L. INSTRUCTED BY ARTHUR O'HAGAN SOLICITORS) - AND - FERGUS RUSSELL (REPRESENTED BY TUI) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision R-056281-Ft-07/EH
BACKGROUND:
2. The Claimant referred his case to the Labour Court on the 6th June, 2008. A Labour Court hearing took place on the 17th September, 2008. The following is the Court's determination
DETERMINATION:
This appeal is before the Court pursuant to Section 15 (1) of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). It relates to a dispute between Mr Fergus Russell and his former employer, the Board of Management of Mount Temple Comprehensive School. The parties are referred to as there were at first instance. Hence, Mr Russell is referred to as the Claimant and the Board of Management of Mount Temple is referred to as the Respondent. The Claimant contends that he became entitle to a contract of employment of indefinite duration by virtue of Section 9 of the Act. The Respondent denies that the Claimant has any such entitlement. The dispute was investigated by a Rights Commissioner under Section 14 of the Act. The Rights Commissioner found that the Claimant’s complaint was well founded and directed that the Claimant be reinstated by the Respondent on a contract of indefinite duration. The Respondent appealed to this Court.
The Facts.
The facts of the case are not seriously in dispute between the parties. They are, as admitted or where necessary as found by the Court, as follows: -
The Claimant was employed by the Respondent on a succession of fixed-term contracts from 1st September, 2002, until 31st August, 2007, as a teacher of Engineering, Metalwork and Technical Drawing. The acknowledged purpose of each of the contracts was to undertake the duties of another teacher, Mr Vaughan, who was on a career break.
It is accepted that the Claimant received only one contract in writing. This was issued with effect from 1st September 2004. This contract provided, in relevant part, as follows: -
- “The Management Authority agrees to employ the Teacher as a temporary teacher of the School from the 1st day of September 2004 to the 31st day of August, 2005, extendable to termination of the career break of Mr Timothy Vaughan”
In the Court’s view this contract was, in reality, a fixed-term contract for one year renewable during the continuance of Mr. Vaughan’s career break.
The contract was, in fact, renewed on 1st September, 2006, until 31st August, 2007. While issues were raised in relation to the Respondent’s failure to provide the Claimant with a written statement of the objective grounds justifying this renewal the Court is satisfied that it was grounded on the continued absence of Mr Vaughan on a career break. The Court is further satisfied that the Claimant understood and accepted this to be the case.
In or about March, 2007, Mr Vaughan gave notice to the Respondent of his intention to resign from his post with effect from the commencement of the next school year. The Claimant became aware of Mr Vaughan’s resignation and by letter dated 19th April, 2007, he wrote to the Principal of the Respondent school seeking clarification of his position in light of this development. The Claimant did not receive a response to his letter and wrote again by letter dated 3rd May 2007. In that letter the Claimant stated, in terms, that in the absence of a response to his earlier letter he believed that he could reasonably expect to be appointed to the vacant permanent full time post with effect from the following academic year.
In response to this letter the Principal spoke to the Claimant and advised him that he could not be appointed directly to the vacant post but would have to participate in a competition through which the post would be filled. The Claimant took issue with this advice and asserted that he had a legally protected right to a contract of indefinite duration. Further discussions ensued between the Claimant and the Principal on the matter but both parties maintained their respective positions.
The vacancy was subsequently advertised in the public press in or about June, 2007. The Claimant was advised by the Principal to apply for the post and resultantly agreed to do so. He was interviewed on 7th August 2007 but was subsequently advised that his application was unsuccessful. The Claimant’s fixed term contract expired on 31st August, 2007, and was not renewed.
It is against that background that the Claimant contends that he became entitled to a contract of indefinite duration on the resignation of Mr Vaughan. The Claimant further contends that his was dismissed for the purpose of avoiding his entitlement to a contract of indefinite duration.
Position of the parties
The Claimant.
It was submitted on behalf of the Claimant that once the objective grounds for the renewal of his contract on a fixed-term ceased to exist he became entitled to a contract of indefinite duration. It was submitted that he should have been appointed to the full time permanent post of Teacher of Engineering, Metalwork and Technical Drawing with effect from 1st September 2007 and he claims reinstatement by the Respondent with effect from that date. In the alternative the Claimant contends that the non-renewal of his fixed-term contract was for the purpose of avoiding it being deemed to be one of indefinite duration, contrary to Section 13 of the Act.
The Respondent
The Respondent submitted that the Claimant’s case is fundamentally misconceived. Counsel for the Respondent submitted that on each occasion on which the Claimant’s contract was renewed for a fixed-term, objective grounds for the renewal existed and were acknowledged as existing by the Claimant. In these circumstances, it was submitted, the Respondent was entitled in law to renew the Claimant’s contract for a fixed term and subsequent events could not render that renewal unlawful. To hold otherwise, the Respondent submitted, would offend against the principle of legal certainty, which is an established principle of domestic and Community Law.
The Respondent further contends that it is precluded as a matter of law from automatically appointing the Claimant to a permanent position. In advancing that argument the Respondent relied on Section 24 of the Education Act 1998, and on circulars having mandatory effect made by the Minister for Education and Science. It was thus submitted that the effect of the Rights Commissioner’s decision would be require the Respondent to actultra viresit powers.
Conclusions of the Court
The law applicable
The principal statutory provision upon which the Claimant relies is Section 9 of the Act. This Section provides as follows: -
(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.(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.
The Claimant commenced employment before the enactment of the Act. Thus the entitlement to a contract of indefinite duration for which he contends would arise under subsection (1) of Section 9. The effect of this provision is that, having completed three years of continuous fixed-term employment, the Respondent could only renew the Claimant’s contract for a fixed-term on one further occasion and for a period of not more than one year. This provision is, however, subject to the saving provision at subsection (4) which provides that subsection (1) has no application if there are objective grounds justifying the further renewal of the fixed-term contract in issue.
The Claimant completed his third year of fixed-term employment on 31st August 2005. At that point the Respondent was entitled under Section 9(1) to renew the Claimant’s contract on one further occasion for a period not exceeding one year. The contract was so renewed. However on the expiry of this penultimate contract it was further renewed for the period from 1st September 2006 to 31st August 2007. That renewal would have been unlawful had it not been saved by Section 9(4) of the Act. It is not seriously disputed that the continued absence of Mr Vaughan on a career break, and the temporary requirement to cover his teaching duties, provided objective grounds justifying the further renewal of the Claimant’s contract for a fixed-term.
Application of Section 9 of the Act
Section 9 of the Act is intended to give effect to Clause 5 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 99/70/EC. That provision in the Framework Agreement requires Member States to introduce measures to prevent the abuse of successive fixed-term contracts. It provides: -
- To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
Where a fixed-term contract is renewed in contravention of Section 9(1) or 9(2) subsection (3) of that section provides, in effect, that the offending term is severed and the contract becomes one of indefinite duration by operation of law. This Court so held in Determination FTD063-State Laboratory and McArdle,a decision upheld on appeal by Leffoy J inMinister for Finance v McArdle18 ELR 165.
The Claimant contends that Section 9 should be construed as also providing that where objective grounds existed at the time at which a fixed-term contract was renewed beyond what is normally permissible by Section 9(1) or (2), but those grounds subsequently cease to exist, subsection (3) should, at that point, become operative. It was submitted that in such circumstances the contract should be deemed to be one of indefinite duration from the point at which the objective grounds no longer apply.
The Court cannot accept that submission. Subsections (1) and (2) of Section 9 clearly operate at the time of therenewalof a fixed-term contract. Subsection (4) of Section 9 provides that subsection (3) shall not apply to the renewal of a fixed-term contract where there are objective grounds justifying such renewal. Hence where the renewal of a fixed-term contract beyond the time specified in Section 9(1) or Section 9(2) is saved by Section 9(4), that renewal is perfectly lawful and it cannot be retrospectively rendered unlawful by the occurrence of a future unforeseen event.
Had the Oireachtas intended to provide that a lawfully concluded fixed-term contract would become one of indefinite duration where the objective grounds originally relied upon for its renewal cease to exist during its currency, it could have easily made a provision to that effect. No such provision was made and in the Court’s view the section cannot be read as importing such a provision.
Accordingly, the Court cannot hold that Mr Vaughan’s resignation, and the resultant vacancy which it created, entitle the Claimant to a contract of indefinite duration by virtue of Section 9 of the Act.
Section 8
It is accepted that in the original application to the Rights Commissioner no complaint was made alleging a contravention of Section 8 of the Act. While matters relation to the application of this section were canvassed before the Rights Commissioner and before this Court they were never formally referred by the Claimant for adjudication. Moreover, it seems clear that any contraventions of Section 8 which may have occurred on the renewal of the Claimant’s contracts arose outside the time limit prescribed by Section 14(3) of the Act. Accordingly, on that account alone, a complaint concerning any such contraventions could not be entertained under the Act.
Section 13
The Claimant argued, in the alternative, that his dismissal constituted penalisation by the Respondent contrary to Section 13 of the Act. Section 13 provides as follows: -
- 13.—(1) An employer shall not penalise an employee—
(2) For the purposes of this section, an employee is penalised if he or she—
While the non-renewal of the Claimant’s contract on its expiry undoubtedly constituted unfavourable treatment, it could only be construed as penalisation if it was in retaliation for or in response to any of the matters referred to at Section 13(1) of the Act. The clear evidence in this case is that the Claimant’s employment came to an end in circumstances in which his contract expired and was not renewed because the vacancy for which he was providing cover had been filled by another teacher. While this state of affairs may be regarded as unfair, the Court cannot see any basis upon which it could entitle the Claimant to redress under the Act of 2003.
Finally the Court notes the Respondent’s argument that the Education Act 1998 precludes it from appointing the Claimant to a post of indefinite duration other than through a competition. While it is unnecessary to address that submission in light of the Court’s findings on the substance of the case, for the sake of completeness it should be pointed out that similar arguments have been rejected in previous cases. Most recently, inUniversity College Hospital Galway v Awan, [2008] 19 ELR 64 the Court considered a submission to the effect that a hospital was precluded from appointing a Doctor to a permanent post by certain provisions of the Local Authority (Officers and Employee) Act 1926 and the Health Act 1970. The Court held that on the Doctrine of Supremacy of Community Law a provision of domestic law could not operate so as to offset or supplant a right derived from the law of the Community. Moreover, in rejecting a similar submission inAhmed v Health Service Executive19 ELR 117 Leffoy J had this to say: -
- First, the defendant submitted that it was, and remains, constrained in the manner in which it may assign the plaintiff to a post by the statutory provisions which govern the appointment of permanent consultants. The statutory provisions invoked are the provisions of the Local Authorities (Officers and Employees) Act, 1926 (the Act of 1926) which regulate selection of persons for appointment to certain offices to which the Act applies. In the past, in general, selection was by means of a competitive examination conducted by the Local Appointments Commission until its dissolution by the Public Service Management (Recruitment and Appointments) Act, 2004 (the Act of 2004). Currently, recruitment for appointment to positions in the defendant’s organisation to which the Act of 1926 applies is subject to that Act and the subsequent amendments thereof, including the provisions of the Act of 2004 amending it, and it is regulated by the Commission for Public Service Appointments established by the Act of 2004. There is inherent in the defendant’s submission the proposition that, by seeking to enforce his rights under Section 9 of the Act of 2003, the plaintiff is seeking to compel the defendant to circumvent the provisions of the Act of 1926, as amended by the Act of 2004, or, alternatively, the proposition that it is a necessary corollary to the enforcement of the plaintiff’s right that such circumvention would occur and that such circumvention would be ultra vires the powers of the defendant. In my view, neither proposition is correct. The plaintiff is not seeking to be appointed to an office the filling of which is governed by the Act of 1926. The defendant must comply with the provisions of the Act of 2003 and such compliance falls outside the ambit of the Act of 1926. That, it seems to me, is a sufficient answer to this point without having to go into the minutiae of the provisions of the Act of 1926, as amended.”
The Court has considerable sympathy for the plight in which the Claimant found himself. He gave five years of what is acknowledged to be exemplary service to the Respondent School in a temporary capacity. It would appear that by the application of normal objective standards of fairness he should have been confirmed in his post when the person for whom he was providing cover resigned. However the Court must decide this case by applying the provisions of the Act under which it was referred. In so doing the Court must take the law as it finds it. For the reasons referred to earlier in this determination the Court is satisfied that the Claimant did not accrue an entitlement to a contract of indefinite duration and the Respondent did not contravene the Act in not renewing the Claimant contract when it expired in 2007.
Accordingly, the Court must determine that the Rights Commissioner’s decision be set aside and substituted with a finding that the complaint herein is not well founded. The Court so determines.
By way of rider, the Court would urge the appropriate parties to address the state of affairs which arose in this case and provide for circumstance in which temporary teachers can accrue an entitlement to a permanent post in situations such as those giving rise to this case.
Signed on behalf of the Labour Court
Kevin Duffy
9th October, 2008______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.