FTD0910

The Dispute

This is an appeal by the Health Service Executive against the decision of a Rights Commissioner in a claim by Dr Mohammed Elamin Hamid under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The substance of Dr Hamid’s claim is that he became entitled to a contract of indefinite duration under the provisions of the Act. He claims that this entitlement arose from having completed four years continuous fixed-term employment and in the absence of objective grounds justifying the failure to offer him a contract of indefinite duration. Dr Hamid further claims that his employment came to an end in circumstances amounting to penalisation within the meaning ascribed to that term under the Act.

In this determination the parties are referred to as they were at first instance. Hence the HSE, which is the appellant in this case, is referred to as the Respondent. Dr Hamid, who is the respondent herein is referred to as the Claimant.

The within complaint was made to a Rights Commissioner by the Irish Medical Organisation (IMO), acting on behalf of the Claimant, by letter dated 30th April 2008. The case was heard by a Rights Commissioner on 19th November 2008. By a decision dated 20th March 2009 the Rights Commissioner found that the Claimant had been dismissed by the Respondent for the purpose of avoiding a fixed-term contract from being deemed to be a contract of indefinite duration pursuant to s. 9(3) of the Act. On that basis the Rights Commissioner found that the Claimant had been penalised within the meaning of s.13(1)(d) of the Act. By way of redress the Rights Commissioner directed that the Respondent provide the Claimant with a contract of indefinite duration with effect from 1st July 2008. He further directed the Respondent to pay the Claimant compensation in the amount of €15,000 for the contravention of s. 13(1)(d) of the Act which was found to have occurred.

It is against that decision that the Respondent appealed to this Court.

Background

The Claimant was employed by the Respondent in his capacity as a Medical Registrar at the Midland Regional Hospital Portlaoise. He was first employed in that capacity on 1st July 2004 and continued in employment on a succession of fixed-term contracts until 30th June 2008. Each of these contracts was in writing. The first such contract appears to have been concluded on 15th May 2004 and was to take effect on 1st July of that year. The contract appears to have been in a standardised form.

That contract, at clause 1 provided that the Claimant was to be employed as a“A/ Registrar”from 1st July 2004 to 31st December 2004.

The duties of the employment were not particularised in the contract. It is, however, clear from a reading of the document as a whole that the Claimant was to provide clinical care to patients at the Midland Regional Hospital. Of particular significance in light of other facts in issue in this case is the absence from the contract of any reference to it being for the purpose of providing the Claimant with opportunities for training.

The Claimant signed a form accepting the terms of the contract on 15th May 2004.

The Claimant received a renewed contract with effect from 1st January 2005 covering the period up to 30th June 2005. In that contract the post was described as that of a“Registrar in the Medical Department at the Midland Regional Hospital Portlaoise”. In all other material respects the contract was in the same terms as that originally issued to the Claimant. A further contract was issued to the Claimant with effect from 1st July 2005 for a twelve month period up to 30th June 2006. Except for its duration it was, in all material respects, in identical terms to that of the earlier contracts. This contract was renewed on 1st July 2006, for twelve months, again in identical terms to that of the preceding contract.

On the expiry of the Claimant’s contract on 30th June 2007 a further contract of twelve months duration was executed between the parties. Clause 1 of this contract was expressed in different terms to that of the preceding contracts. It provided as follows: -

• “Job Title:
  You have requested a 12 month extension (01/07/07 – 30/06/08) of your employment to further your training in MEDICINE.
  
  You are employed in a designated training post and at the end of this extended period –30/06/08 you will cease to be employed as Registrar with Midland Regional Hospital Portlaoise”

• “I refer to your current contract as Medical Registrar in the Midland Regional Hospital. As you are aware, this contract will conclude on 30th June 2008. Your position is an approved training post and as such has a benefit to a postholder for a limited time only. The hospital is required to protect the training status of approved positions in each speciality and as you now exceeded the training benefit you may gain in this post, you are reminded that it is now advisable for you to further your training in an alternative appropriate location or setting”

Position of the Parties

The Respondent contends that notwithstanding the absence of any express provision to that effect in the earlier contracts, at all material times the Claimant was employed in an approved training post. These posts, it was submitted, are maintained so as to allow Non Consultant Hospital Doctors (NCHDs) to gain experience and training in various hospital settings and to enable them to progress in their chosen speciality. The Court was told that these posts are accredited for training purposes by The Royal College of Physicians of Ireland. It is the Respondent’s case that the Claimant had exhausted any training benefit which he could derive from the post. In these circumstances, it was submitted, the accreditation of the post as a training post would be lost if it were to be filled by a doctor on a contract of indefinite duration. The Respondent further submitted that the non-renewal of the Claimant’s fixed-term contract was for the purpose of preserving the post for training purposes rather than having it filled permanently by the Claimant.

The IMO contends that the Claimant became entitled to a contract of indefinite duration when he completed four years of fixed-term employment unless there were objective grounds justifying the Respondent’s failure to offer such a contract. It was submitted that there were no such grounds. The Claimant relied upon the decision of this Court inHSE North Eastern v Khan[2006] ELR 313 as authority for the proposition that the potential loss of a training post can not amount to objective grounds justifying a refusal to offer a contract of indefinite duration. The Claimant also raised issues concerning the Respondent’s failure to provide the particulars in writing of the objective grounds justifying the renewal of his earlier contracts as is required by s.8 of the Act. However this aspect of the case was not pursued at the hearing.

Further and in the alternative the Claimant contends that his fixed-term contact was not renewed for the purpose of avoiding it being deemed to be one of indefinite duration in accordance with s.9 (3) of the Act. He claims that in these circumstances his dismissal constituted penalisation contrary to s.13(1) of the Act. In advancing its case the IMO stated that the post was designated for self-structured training. It was submitted that the Claimant was in no different a position than any other NCHD in being required to undergo continuous training and development in conjunction with his normal clinical duties. Evidence was given that two other NCHDs employed by the Respondent in identical posts to that held by the Claimant were employed on permanent contracts. The Claimant also told the Court that at the time of his dismissal he had proposals for further training projects which he had intended to undertake. He also told the Court that he remained a doctor in training. The Claimant also relied upon the absence of any reference to training in his earlier contracts in advancing his argument that the duration of his employment was not limited by the attainment of any particular level of development or training.

Guidelines on the application of the Act to NCHDs

Both parties referred the Court to a document setting out guidelines on the application of Sections 8 and 9 of the Act to NCHDs and the contractual terms which should be included in fixed-term contracts under which they may be employed. The Court was told that these guidelines were agreed between the IMO and the HSE in discussions chaired by an eminent industrial relations specialist.

A central feature of this agreement is the recognition which it affords to four classifications of employment which can be offered to NCHDs. They are listed in the Document as follows: -

1. NCHDs in Intern positions

2. NCHDs occupying posts which are part of structured training programmes recognised by the Medical Council and medical training bodies

3. NCHDs occupying posts for the purpose of self-directed training recognised by medical training bodies but which are not part of a formal rotational training scheme.

4. NCHDs occupying posts which are not recognised as training posts by a medical training body, are not part of a formal rotational training scheme and who are not part of a formal rotational training scheme and who are not engaged or cannot use that particular post to engage in self-directed training.

The document goes on to provide: -

• “ It is vital that NCHDs employment arrangements are structured to facilitate their training needs and ensure that the training capacity in the health service is retained. In order for this to happen employment and training contracts must be matched, i.e. the NCHDs employment should terminate at the end of the training period provided in the contract …..”

The Law

Section 9 of the Act provides the circumstance in which a fixed-term employee can accrue an entitlement to a contract of indefinite duration. This section provides: -

• 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.
  
  (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 issue for consideration

In the Court’s view the only statutory provision that can avail the Claimant is that at s 13(1) of the Act. This provides as follows: -

• 13.—(1) An employer shall not penalise an employee—

• (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 s. 9 (3).

Nature of the Claimant’s Post

The agreed guidelines on the application of the Act to NCHD’s, referred to above, recognises that certain posts are maintained within the health service for the purpose of self-directed training recognised by medical training bodies which are not part of a formal rotational training scheme. The Respondent contends that the post in issue was such a post. The varsity of that contention is not seriously in issue between the parties. It is however clear that all NCHD posts are intended to have a training or development element attaching to them. It is further clear on the evidence before the Court that all NCHDs are doctors in training and therefore are required to undertake continuous training and professional development until they qualify as consultants. It was submitted on behalf of the Claimant that even if he had been reappointed to the post at issue it would have continued to be a training post as it would have been occupied by a doctor in training.

The facts

The Court is considerably influenced by the terms of the original contracts under which the Claimant was employed. It is accepted that there was no material change in the nature of the post or the contractual obligations attaching to it during the currency of the Claimant’s four years of employment. He was issued with four fixed-term contracts none of which contained any reference to the post being reserved for training. While the final contract issued to the Claimant did refer to the appointment being to a designated training post it did not limit its duration by reference to the attainment of any particular level of training or development. The Respondent now relies, in part, upon its contention that the Claimant could not continue in the post because he had exhausted the training potential of the post. Yet it is accepted that he remains a doctor in training.

It is of further significance that in its letter to the Claimant dated 26th March 2009, informing him of the proposal to terminate his employment, the relevant parts of which are recited above, the Respondent advised the Claimant to further his training in“an alternative appropriate location or setting”. The evidence of the Claimant was that he would have continued to obtain a training benefit had he continued in the post. There was no evidence adduced by the Respondent to show that he could not have continued to obtain a training benefit in the post which he held similar to that which he might have obtained in an “appropriate alternative location or setting”

Conclusion of the Court

The Court accepts that the Respondent was in part motivated in not renewing the Claimant’s employment by a desire to preserve the training status of the post which he then held. The Court is further satisfied that if a post is clearly and unequivocally designated as a training post s. 13(1)(d) of the Act could not operate so as to prevent an employer from seeking to preserve the training status of the post. In such circumstances the purpose of not renewing a fixed-term contract would be to avoid the training status of the post being extinguished and the non-renewal of the fixed-term contract would be a collateral consequence of the attainment of that purpose.

In the instant case the Court is not fully satisfied that had the Claimant been retained in employment the training designation of the post at issue would have been extinguished. While the Respondent submitted that it would have had that effect, that submission was advanced by way of an assertion or an opinion. That assertion was unsupported by any evidence that the continuance of the Claimant in the post would have resulted in the RCPI withdrawing of its training accreditation. Moreover, it is clear that the Respondent also relied upon its contention, similarly unsupported by evidence, that the Claimant could not derive benefit by way of further training in the post. For reasons already adverted to that contention is not sustainable.

At that point the Respondent was of the view that had the Claimant continued in employment he would have accrued an entitlement to a contract of indefinite duration by operation of law. The Court is satisfied that this was an operative consideration in the Respondent’s decision to terminate the Claimant’s employment.

Section 13(1)(d) of the Act operates where a dismissal is 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 s. 9 (3) of the Act. On the balance of probabilities the Court is satisfied that the decision to dismiss the claimant was partly connected with avoiding his fixed-term employment being converted to employment of indefinite duration. Consequently he is entitled to succeed in his claim of penalisation.

Determination

The within appeal is disallowed. No issue was taken by the Respondent in the course of the appeal concerning the appropriateness of the redress awarded by the Rights Commissioner. The Court is satisfied that the reinstatement of the Claimant on a contract of indefinite duration is appropriate in the circumstances. The Court is further satisfied that penalisation must always be regarded as a serious matter. In the circumstances of this case the Court is satisfied that the award of compensation in the amount of €15,000 is fair and equitable and a proportionate means of marking the gravity of the contravention of the Act found to have occurred. This award is in respect of non-pecuniary loss. Accordingly the decision of the Rights Commissioner is affirmed.








Signed on behalf of the Labour Court



Kevin Duffy
6th August, 2009______________________
MG.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.