FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : GARDINER STREET PRIMARY SCHOOL(RESPONDENT) (REPRESENTED BY ALEX WHITE B.L. INSTRUCTED BY MASON HAYES + CURRAN) - AND - A WORKER (COMPLAINANT) (REPRESENTED BY TONY KERR B.L. INSTRUCTED BY O'MEARA GERAGHTY MCCOURT SOLICITORS) DIVISION : Chairman: Mr McGee Employer Member: Mr Doherty Worker Member: Mr O'Neill |
1. Appeal against a Rights Commissioner's Decision R-045217-FT-06/JT.
BACKGROUND:
2. The Complainant was employed as a Resource Teacher/ Teacher of English as a Second Language from April 1999 initially for a fixed three-month period and was then employed on successive fixed-term contracts (all of which were oral contracts) to the end of the school year 2005/2006. She was paid by the Department of Education & Science ( the Department) on the untrained scale.
In April 2006 the Complainant was informed by letter from the Board of Management of the School that in light of instructions from the Department of Education & Science, the Board of Management were "unable" to offer her a post in the school for the year 2006-2007.
The Complainant had sought a contract of indefinite duration in February 2006. The Department advised the School that the Complainant was not provided with such a contract as under the terms of a so-called "transitional agreement" she was not a "qualified teacher".
The Complainant was informed by the Department by letter dated 13th July 2006 that as she was deemed to be an unqualified teacher she was not comprehended by the "transitional agreement" and that therefore the decision to refuse a contract of indefinite duration could not be appealed under the adjudication process.
The matter was referred to a Rights Commissioner for investigation. His decision issued on the 17th June 2008 as follows:
"I have considered several submissions made by all parties. Having reviewed these I now conclude that lack of qualification is acceptable as an objective reason in this case. therefore I accept the respondent's position that the respondent is not obliged to issue a contract of indefinite duration to the claimant therefore her claim fails."
On the 25th July 2008 the Complainant appealed the Rights Commissioner's Decision to the 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 the 14th November, 2008.
COMPLAINANT'S ARGUMENTS:
3. 1. The Appellant is highly qualified, having an honours B.A in English, a Montessori Diploma, and ATESOL English Teaching Certificate. The Respondent, through the Chairperson of its Board of Management, has acknowledged her worth and qualifications.
2. It appears that a "transitional agreement" was arrived at between the Department, the Department of Finance and Teaching Unions in relation to the implementation of the Act in the educational sector. It was, however, recognised that this was without prejudice to the statutory rights of either side and that the parties recognised that relevant determinations would take precedence over the term of the agreement so as to ensure the correct application of the Act. Section 12 of the Act refers.
3. By the date of the enactment of the 2003 Act, she had completed nearly four years' continuous employment following which she received, in September 2003, a further year's contract. She was clearly, therefore, entitled to a contract of indefinite duration under Section 9 of the Act with effect from September, 2004.
4. The only exception to this provision would be where there are objective grounds justifying a renewal of the contract and the failure to grant a contract of indefinite duration as per Section 9(4) of the Act. Neither the "transitional agreement" nor the requirement that a teacher be "qualified" amounts to objective justification given that the transitional agreement cannot prejudice statutory rights.
5. At no stage was the Complainant informed in writing of any objective grounds justifying the renewal of her fixed-term contract and/or the failure to offer her a contract of indefinite duration. This is a clear breach of Section 8(2) of the Act which is a mandatory provision.
RESPONDENT'S ARGUMENTS:
4. 1. The Complainant terminated her own employment by telling the school principal on 19th July 2006 that she was retiring.
2. The Respondent could not keep the Complainant in employment. The Department of Education and Science had deemed her to be "an unqualified teacher" and, despite the fact that the school thought very highly of her, it had to comply with directions from the Department.
3. The Complainant's post required annual sanction. She was always engaged on a year-to-year basis, even after the enactment of the Act in July 2003. This was required by the nature of the post and depended on funding and the number of children in need of the service. This remains the case, but now the teachers are those deemed qualified by the Department. So, even if Section 9 of the Act had any application (which is disputed) the renewals were justified on objective grounds.
- 4. The Respondent School did not refuse the Complainant a contract of indefinite duration. This was not sought. The Complainant applied to the Department pursuant to the transitional agreement and was supported by the school. Nevertheless, her application did not succeed, nor did her appeal.
DETERMINATION:
Evidence Given:
The Complainant'sevidence focused primarily on her phone conversation with the school principal on 19th July 2006, subsequent to her receiving a letter dated 13th July from the Department, informing her that, as she had been deemed an unqualified teacher, the transitional agreement did not apply to her and therefore she could not appeal the decision to refuse her a contract of indefinite duration. She had already been told by the school that because of the Department's decision, the school could not offer her a post for the 2006-2007 year.
She said that the Principal expressed her disappointment that the Complainant's contract was not being renewed. The Principal advised her to tell the Chairperson of the Board of Management that she was retiring. She declined to do this as it was never her intention not to return to the school. Her view was that she had been dismissed. She told the Principal that, this being so, she had no choice but to accept it and enjoy her retirement. She agreed that the Principal did not tell her she was dismissed, but that she "did not tick the necessary boxes" as far as the Department was concerned.
The School Principal, in evidence, recalled the same conversation. Herself and the Chairperson of the Board of Management had been keeping a position open for the Complainant, in the hope that her appeal would succeed. She rang the Complainant and asked her whether she was coming back in September and going through the appeal process. She was very surprised when the Complainant told her that she was not going to retire. On that basis, she advised her to put her decision in writing to the Board of Management "in order to cover the school". In reply to a question, the witness gave evidence that, until that point the school had kept a place for the Complainant in case she would win her appeal . Once she was not eligible to appeal, there would no longer be a position for her. It was the Complainant who mentioned retiring, not the school.
The Chairperson of the Board of Management, also gave evidence. She confirmed that the Principal had phoned the Complainant to ascertain her intentions, as the school was preparing to hold interviews. The Principal came back to her and reported that the Complainant intended to retire.
The Complainant told her "I am not accepting this, I'm not coming back, but I'm fighting it". This news, however, cleared up a long-standing uncertainty and allowed the school to proceed with interviews.
The witness could not recall whether, when she spoke to the Complainant, subsequent to the Principal's conversation with her, she (the witness) was aware that the Department had disallowed the Complainant's appeal against her exclusion from the terms of the transitional agreement.
In reply to a question, the witness agreed that the Complainant was an excellent teacher, highly qualified and much valued member of staff , but stated that the school had no choice but to accept the position of the Department. The school had made representations to the Department but to no avail.
Conclusions of the Court
Circumstances in which the Complainant’s employment came to an end
It is the Respondent’s contention that the Complainant’s employment terminated in circumstances of retirement. Having considered the evidence adduced the Court does not accept that this accords with the reality of what occurred. The Complainant contended that she had accrued an entitlement to a contract of indefinite duration. The Respondent refused to acknowledge such an entitlement and proposed to terminate the Complainant’s employment by not renewing her fixed-term contract on its renewal.
The reference by the Complainant to retirement was made in the context of the Respondent’s stated intention to terminate her employment. There is no doubt in the Court’s mind that had the Respondent granted the Complainant a contract of indefinite duration the question of retirement would not have arisen when it did. Thus the real and operative reason for the termination of the Complainant’s employment was the Respondent failure to offer the Complainant a contract of indefinite duration.
Entitlement to a Contact of Indefinite Duration
Section 9 of the Act provides 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 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.
The Complainant commenced her employment with the Respondent in September 1999. Thus when the Act was enacted, on 14th July 2003, the Complainant had completed her third year of continuous fixed-term employment with the Respondent. In accordance with s.9 (1) of the Act the Respondent was entitled thereafter to renew the Complainant’s contract for a fixed-term once and once only and for a period of not more than one year.
The Respondent renewed the Complainant’s contract on 1st September 2003 for a period of one year. The contract, as renewed, expired on 31st August 2004. It was further renewed on 1st September 2004, again for a period of one year. It is clear from a plain reading of subsection (1) of s. 9 that this purported renewal of the Complainant’s contract for a fixed-term contravened that subsection.
The consequences that flow from a contravention of s. 9(1) are prescribed by subsection (3) of that Section. Where such a contravention occurs the offending term, which purports to provide for the expiry of the contract by effluxion of time, is severed and the contract becomes one of indefinite duration by operation of law. However the operation of subsection (3) of the Section is qualified by subsection (4). This subsection provides that the renewal of a fixed-term contract for a further fixed-term, beyond the period normally allowable by either subsections (1) or (2) of the s.9, is saved where there are objective grounds for the renewal. It is common case that the Complainant was not provided with a statement setting out the objective grounds for the renewal of her fixed-term contracts, in respect of any of the renewals after the passing of the Act.
The objective grounds relied upon
The Respondent contends that the Complainant was deemed to be unqualified by the Department of Education and Science and that in consequence it could not continue to employ her on a contract of indefinite duration. This, it said, was the import of an agreement made between the Department and Teaching Unions on the implementation of the Act in the Educational Sector.
This agreement was given effect by Circular 24/05, dated 13th October 2005. Thus, this circular and the agreement to which it relates could not have been within the contemplation of the Respondent’s in renewing the Complainant’s fixed-term contract in September 2004 or 2005.
In the jurisprudence of the ECJ reliance on objective justification for an otherwise unlawful practice in equated to a derogation from the obligation to comply with the law of the Community. InLommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430, par 30, the ECJ pointed out that: -
“ According to settled case-law, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23).
In Determination [FTD0819],St Catherine’s College for Home Economics, Minister for Education and Science and Margaret Moran & Helen Moloney,this Court considered a case in which the Respondent relied upon grounds for paying fixed-term employees less in redundancy payments than was paid to comparable permanent employees which was not alluded to at the time the decision to differentiate between them was taken. Here, having reviewed the passage fromLommers v Minister van Landbouw, Natuurbeheer en Visseri, recited above,the Court said the following: -
- “It seems to the Court that the requirements of this test could only be met if at the time the decision to discriminate was taken the objective which it was intended to pursue was actually within the contemplation of the decision maker. As already found by the Court, the desirability of compensating those being displaced by reference to their potential service or tenure was not a factor which influenced the decision to treat the Complainants differently from their permanent colleagues. Hence, the Court cannot see now it could now be relied upon as an objective ground justifying that decision.”
It seems to the Court that the Complainant accrued an entitlement to a contract of indefinite duration by operation of law in September 2004 when the Respondent purported to renew her then fixed-term contract in contravention of Section 9(1) of the Act. That entitlement could only have been offset if there existed, at that time, objective grounds justifying the purported renewal. There were no objective grounds at that time and none where suggested.
The agreement now relied upon as constituting objective grounds came into being in October 2005 and could not have operated so as to retrospectively validated the impugned renewals of the Complainant’s fixed-term contracts prior to that date.
It further seems to the Court that each further purported renewal of the Complainant’s fixed term contract constituted a further contravention of the Act. Furthermore, the Respondent’s failure to acknowledge her legal entitlement to a contract of indefinite duration constituted a continuing contravention of the Act for which she is entitled to redress.
In all the circumstances the Court believes that the appropriate redress is an award of compensation. The Court measures the amount which is fair and reasonable in all the circumstances at €5,000.
Signed on behalf of the Labour Court
Raymond McGee
17th April, 2009______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.