FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HEALTH SERVICE EXECUTIVE SOUTH (REPRESENTED BY HSE EMPLOYERS AGENCY) - AND - DR AHMED ABDEL-HAQ (REPRESENTED BY DOYLE SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of Rights Commissioner's Decision FT50775/07/MR
BACKGROUND:
2. The Complainant appealed the Rights Commissioner's Decision to the Labour Court on the 17th April, 2009. A Labour Court hearing took place on the 17th November, 2009. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Dr. Ahmed Abdel-Haq (the Complainant) against the Decision of a Rights Commissioner which found that his claims under Section 9 and Section 13 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) were not well founded.
At the Rights Commissioner hearing the Complainant claimed that the HSE (the Respondent) failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract pursuant to Section 9 of the Act. Furthermore, he claimed that his dismissal on 16th March 2007 was contrary to Section 13(d) of the Act as it was for the purpose of avoiding a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Act.
Background
The Complainant commenced employment as a Non-Consultant Hospital Doctor (NCHD) at Registrar level in Portiuncula Hospital, Ballinasloe, Co. Galway where he worked in the Obstetrics/Gynaecology Department and continued on a number of successive fixed-term contracts was as follows: -
Portiuncula Hospital
Contract 1 1st Jan - 30th June 2000
Contract 2 1st July - 31st December 2000
Contract 3 1st Jan - 30th June 2001
Contract 4 1st July - 31st December 2001*
Contract 5 1st Jan - 30th June 2002
Contract 6 1st July 2002 - 30th June 2003
- *Portiuncula Hospital was a Voluntary Hospital run by the Franciscan Missionaries of the Divine Motherhood until October 2001 when it was purchased and taken over by the Western Health Board.
Obstetrics/Gynaecology on the following temporary contracts: -
South Tipperary Acute Hospital Services
Contract 1 3rd June 2003 - 2nd June 2004
Contract 2 3rd June 2004 - 30th June 2004
Contract 3 1st July 2004 - 16th March 2007
The last contract from 1st July 2004, issued in October 2004, states that the Complainant’s employment with the Respondent was for a specified purpose
- “You will fill the vacant post of Consultant Obstetrician/Gynaecologist (Category 1), South Tipperary Acute Hospital Services. Your employment will cease when the post has been filled permanently by the Local Appointments Commission or when other alternative arrangements have been made to fill this post. ”
Mr. Anthony Kerr, B.L., Counsel for the Complainant, stated that he had completed his third year of continuous employment with the Respondent on 31st December 2003, his contract was renewed on 3rd June 2004, and again on 1st July 2004. He contended that under the provisions of Section 9 of the Act the Complainant’s contract from 1st July 2004 should be deemed to be a contract of indefinite duration. Without prejudice to the above argument, Mr. Kerr submitted that if the contract commencing 1st July 2004 was deemed to be a valid fixed-term contract, then he was penalised within the meaning of Section 13 (d) as evidenced by the documentation available to demonstrate that the Respondent took steps to avoid the 2003 Act.
The Respondent’s case
The Respondent submitted that at the time of the commencement of the Act on 14th July 2003, the South Eastern Health Board and the Western Health Board were two separate and distinct employers. Furthermore, it held that the Complainant did not come within the scope of Section 9(i) of the Act as his service with the HSE only commenced on 3rd June 2003 and consequently his contract of employment was not renewed after his third year of continuous employment.
The Respondent also argued that the Complainant had two very dissimilar positions in both locations and the non-renewal of his contract in Portiuncula Hospital in July 2003 constituted a dismissal and therefore cannot be counted as continuous service.
Without prejudice to the above arguments, the Respondent argued that there were objective grounds for not granting a contract of indefinite duration to the Complainant in line with section 9 (4) of the Act.
(a)Associated employers
The Respondent submitted that in July 2003 when the Act was enacted the South Eastern Health Board and the Western Health Board were two distinct corporate entities and separate employers in their own right. All Health Boards received their funding from the Department of Health and Children and were responsible for implementing the delivery of health services. Each Health Board had its own Chief Executive Officer and had the power to govern, control, manage and regulate its own affairs, including the recruitment of employees. Therefore, they were not“associated employers”for the purposes of the Act and time worked in another Health Board could not be deemed to be continuous for the purposes of Section 9.
Under the Health Act 2004 the HSE was established and each of the individual Health Boards were dissolved and on the establishment day 1st January 2005 their functions and employees were transferred to the HSE.
The Respondent therefore submitted that the Complainant’s employment with the South Eastern Health Board commenced on 3rd June 2003 and by virtue of section 60 (1) of the Health Act 2004, he was automatically transferred to and became an employee of the HSE.
In support of its contention, the Respondent citedBrides v Minister for Agriculture, Food and Forestry [1998] 4 I.R. 250
It maintains that the relationship between the Department of Health & Children and the Health Boards as to whether they are “associated” within the meaning of Section 2(2) was covered by the High Court in theBridescase, where an issue arose as to whether the Department and Teagasc (one of its agencies) were “associated employers” under Section 2 of the Anti-Discrimination (Pay) Act 1974, which has the same definition as is contained in this Act. Budd J took the view, as had the Labour Court on appeal, that Teagasc was not controlled by the Minister for Agriculture. The same reasoning applies in the case of the former Health Boards.
Budd J quoted extensively from the Labour Court’s Decision. The Labour Court acknowledged that the Department has an “important supervisory function” in relation to how Teagasc spent its money. Similar considerations applied in the case of the relationship between the Department of Health and Children and the former Health Boards. The Labour Court, however, went on to say that supervision was more to do with “State management of public finances” than with control over how a State body did its business.Section 60(1) provides:
- “each person who, immediately before the establishment day, was an employee of a specified body is, on that day, transferred to, and becomes an employee of the Executive.”
- “the previous service of a person transferred under this Section is to be counted as service for the purposes of, but subject to any exceptions or exclusions in the following Acts….(c) the Protection of Employees (Fixed-Term Work) Act 2003”
Mr. Kerr held that the Complainant’s employment by both Health Boards prior to 1st January 2005 should be deemed to be continuous service for the purposes of the Act and from the date of its establishment on 1st January 2005 the HSE should be deemed to be the continuing and ongoing employer.
He held that as Portiuncula Hospital was taken over by the Western Health Board during the period of the Complainant’s employment in that hospital, when the Health Boards were subsequently dissolved and their functions and employees transferred to the HSE, therefore the HSE became the Complainant’s employer and his employment must be considered as continuous from 1st January 2000.
The Applicable Law
Section 2 of the Act provides definitions of “employee” and “employer” :
“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board, a health board or vocational education committee shall be deemed to be an employee employed by the authority, health board or vocational education committee, as the case may be ;
“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment ;
Section 2 (2) provides a definition of "associated employers":
Employers are deemed to be associated if-
(a) one is a body corporate of which the other (whether directly or indirectly) has control or
(b) if both are bodies corporate of which a third person (whether directly or indirectly) has control.
Section 9 provides
(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.
Court Findings
The Complainant worked for South Tipperary Acute Hospital Services from 3rd June 2003 to 2nd June 2004 being the relevant period under the provisions of section 9(1). Therefore, the question the Court must examine is whether the Complainant’s employment with the Western Health Board can be considered as continuous with his employment with the South Eastern Health Board, whether both Health Boards can be deemed to be “the employer” or “associated employers”, under the Act.
Are Health Boards Associated Employers?
A central issue which falls for consideration in this case is whether the former Eastern Health Board and the former Western Health Board were associated employers within the statutory meaning ascribed to that term by section 2(2) of the Act.
It is not suggested that either of the Health Boards controlled the other within the meaning of paragraph (a) of the definition. Consequently the question turns on whether paragraph (b) is applicable.
In the course of argument on this point the Court was referred to the judgment delivered by Budd J inBrides v Minister for Agriculture, Food and Forestry[1998] E.L.R 125. This case arose from a claim by women employed as poultry officers by the Department of Agriculture for the same rate of pay as men employed as agriculture officers by Teagasc. The claim was made pursuant to the Anti-Discrimination (Pay) Act 1974. In order to sustain their claim it was necessary for the Complainants to show that the Department, by which they were employed, and Teagasc, by which their comparators were employed, were associated employers for the purposes of the Act. The term was defined by the Act of 1974 in identical terms to that used in the Act of 2003. In advancing their claim the Complainants contended that the Department exercised a sufficient degree of control over Teagasc so as to bring both within the statutorily defined concept of associated employers.
This Court had held that the Department of Agriculture and Teagasc were not associated employers within the statutory meaning and dismissed the claim. The Complainants appealed to the High Court on grounds, inter alia, that this Court has erred in point of law in that conclusion.
It is noteworthy that inBrideswhat was contended for was that the Department of Agriculture controlled Teagasc. It was not contended that both the Department and Teagasc were under the common control of a third person.
Having reviewed the findings of the Labour Court Budd J. concluded that the Court had not erred in the conclusion which it had reached.
The Judge set out the relevant findings of the Labour Court as follows: -
- “In the view of the Court, the Department would certainly have an important supervisory function in relation to how Teagasc spends it money. But this supervision is to do with State management of public finances, and not with control over how a State body does its business. The Department cannot tell Teagasc how to do its work, or even what work to do. Teagasc's functions are provided for by statute, and it has ‘all such powers as are necessary or expedient for the purposes of its functions’ under section 4(4) of the 1988 Act. There are certain functions which it cannot do unless authorised by the Minister, and it needs the consent of the Minister to provide any services outside of the State, but these controls are limited and to do with the extent of the remit which Teagasc has been given, and not with ‘how’ certain things are to be done. The conferring of any additional functions on Teagasc by the Minister must be by order, and such order must be laid before both Houses of the Oireachtas. The Minister provides funding to Teagasc by the making of advances to it, but he cannot tell it how he wants the money spent. Most importantly, the Minister could not unilaterally decide to close Teagasc down. If Teagasc were to be put out of existence, that decision would not be one for the Minister or the Department to take; it would be a matter for the government and the Oireachtas. The word ‘control’ is not defined in the Act, but its ordinary sense is to mean that there is a power of directing or to command an activity. The Court is satisfied that while the Minister has certain authority in relation to Teagasc, he does not have direct control of it, and such indirect control as he might have through his membership of the government and as a member of the Oireachtas is too far removed from real control to amount to control within the meaning of the section.”
- “In my view, the Labour Court properly directed its attention to the issue of control and in this respect made reasonable and appropriate findings. While voting control may be relevant in a company law situation, the badges of control which the Labour Court looked at were relevant given that Teagasc is a body corporate and a creature of statute.”
In the instant case, the former Health Boards were each established as bodies corporate by the Health Act 1970 and there is no suggestion that one Health Board exercised any control over another. What is at issue is whether all Health Boards were under the control (directly or indirectly) of a third person to a sufficient degree to bring them within paragraph (b) of the statutory definition of associated employers. Therefore, the net question is whether all Health Boards were under the control of either the Minister for Health or of the State.
The powers, duties and functions of Health Boards were prescribed by the Act of 1970. In its Long Title the Act makes clear that Health Boards were established for the administration of the Health Service. The provision of a Health Service is a function of the State. The Minister for Health has political responsibility for matters connected with the provision of that service. While Heath Boards were functionally independent, that independence was circumscribed in a number of significant respects by the Act: -
•Funding
The funding for the Health Service is provided by the State and they are accountable to the State for the expenditure of the funding. Section 28 provides that the accounts of Heath Boards were audited by the local government auditor, appointed by the Minister. Section 31A states that a Health Board was limited in the amount which it could spend for any service or purpose in any period by such sum as may be specified by the Minister. Whereas Section 33(1) specified that a Health Board could borrow money but the Minister could give directions as to the conditions to which such borrowing would be subject.
•Staffing of Health Boards
Section 14 of the Act of 1970 makes general provisions in relation to the employment and remuneration of Health Board staff. While the appointment of staff is a function of the Chief Executive Officer of the Board, in the making of appointments the CEO must act in accordance with the directions of the Minister (Section 14(5)(a)). Likewise the CEO may determine the terms and conditions applicable to staff but in so doing he or it must again act in accordance with the directions of the Minister (Section 14(5)(c)). A officer of a Health Board who is dissatisfied with a decision of the CEO in relation to his or her conditions of employment could, in effect, appeal to the Minister (Section 14(6)). Section 22 of the Act of 1970 deals with the suspension of Officers of Health Boards and provides, in effect, that a suspension for a period beyond one month can only be continued by the Minister. Section 23(2)(a) allows the Minister to direct the removal from office of an Officer of a Health Board on grounds of misconduct or unfitness.
It is well known that all Health Boards observed common grading structures and applied the same terms and conditions of employment for staff. These terms and conditions were centrally negotiated and required the consent of the Minister and the Minister for Finance. All employees of Health Boards had common pension entitlements and were covered by the provisions of the Local Government (Superannuation) Act 1956. Moreover, and of particular significance, where an employee transferred from one Health Board to another (for example on promotion or by way of redeployment) their service for pension purposes and incremental progression was preserved.
•Hospitals
A key function of the Health Boards was in the provision and maintenance of hospital services. Part III of the Act sets out the powers and duties of the Health Boards in that respect. Section 38 of the Act of 1970 provides: -
- 38.—(1) A health board may, with the consent of the Minister, provide and maintain any hospital, sanatorium, home, laboratory, clinic, health centre or similar premises required for the provision of services under the Health Acts, 1947 to 1970.
(2) The Minister may give to a health board such direction as he thinks fit in relation to the provision or maintenance of any premises provided and maintained under subsection (1) and in relation to the arrangements for providing services therein, and the health board shall comply with any such direction.
(3) A health board may and, if directed by the Minister, shall discontinue the provision and maintenance of any premises provided and maintained by it under subsection (1).
(4) A health board shall not exercise its powers under subsection (3) in relation to the discontinuance of the provision and maintenance of a hospital, sanatorium or home save with the consent of the Minister.
(5) The Minister shall not give a direction under subsection (3) in relation to the discontinuance of the provision and maintenance of a hospital, sanatorium or home save after having caused a local inquiry to be held into the desirability of the discontinuance
(6) Where, on a discontinuance under subsection (3), a person who held an office under the health board in the premises affected is offered a similar office by the board, the first-mentioned office shall, for the purposes of the superannuation of the person, be deemed not to have been abolished.
•Ministerial Power to Regulate the Provision of Services
Section 72 of the Act of 1970 contains a provision by which the Minister may, by regulation, direct Health Boards generally or individually in relation to the provision of services and the administration of those services. The Section provides: -
- “72.—(1) The Minister may make regulations applicable to all health boards or to one or more than one health board regarding the manner in which and the extent to which the board or boards shall make available services under this Act and generally in relation to the administration of those services
(2) Regulations under this section may provide for any service under this Act being made available only to a particular class of the persons who have eligibility for that service.
(3) Notwithstanding any other provision of this Act, regulations made under theHealth Act, 1953shall continue in operation and shall be deemed to have been made under this Act and to be capable of amendment or revocation accordingly.”
Conclusion as to “Control”
The question which arose inBrideswas whether the Department of Agriculture controlled Teagasc so as to make both associated employers. In the instant case the question is whether two Health Boards are associated employers by virtue of the control which the Minister or the State exercises over both of them. In that respect the issue arising in this case is more akin to that which was considered by the Northern Ireland Court of Appeal inHasley v Fair Employment Agency[1989] IRLR 106, a case which was considered and distinguished by Budd J inBrides. InHasley,Lord Lowry LCJ held that an Industrial Tribunal had erred in finding that the Fair Employment Agency and the Equal Opportunities Commission, by virtue of their functional independence, were not directly or indirectly controlled by the Department of Economic Development or the Department of Finance and Personnel. The Lord Chief Justice held that those Departments had financial control of the FEA and the EOC and also had control of the number and grades of the persons employed and of their terms and conditions of employment. Lord Lowry went on to hold that by comparison with this control the functional independence of the FEA and the EOC was irrelevant.
All Health Boards are creatures of the same statute. Their powers, duties functions and responsibilities are identical. The number of staff is controlled by the Minister and their terms and conditions of employment are subject to Ministerial direction. All Health Boards apply common grading structures and common employment conditions, including pay. Moreover, the Minister has significant power to tell Health Boards what they should do in the provision of key services and the Health Boards are required to comply with the directions of the Minister.
The word“control”can have many shades of meaning. As a verb it is defined by the New Penguin English Dictionary as “to supervise and direct (something)”. As a noun it is defined by the same source as“power or authority to control”.
It seems clear that within the general scheme of the Health Act 1970, and in particular in enacting the provisions referred to above, the Oireachtas reserved to the State, acting through the Minister for Health, the power or authority to supervise and direct Health Boards in the exercise of their statutory remit. It seems equally clear that this power of direction existed to a sufficient degree so as to amount to control within the ordinary meaning of that term.
It follows from the foregoing that the former Health Boards were associated employers for the purpose of Section 2 (2) of the Act of 2003.
(b) Two totally different posts
The Respondent submitted that without prejudice to the above argument even if the former Health Boards were deemed to be “associated employers”, the Complainant had occupied two totally different posts during his employment with Portiuncula Hospital and South Tipperary Acute Hospital Services. Not only were they in two separate locations and in different employments they were at two different levels – at Registrar level in Portiuncula Hospital and at Consultant level in South Tipperary Acute Hospital Services, and therefore cannot be deemed to be continuous for the purpose of Section 9 of the Act.
Continuous service under the Act is determined by the Minimum Notice and Terms of Employment Act, 1973: -
First Schedule, Computation of Continuous Service
- 1.The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—
( a ) the dismissal of the employee by his employer or
( b ) the employee voluntarily leaving his employment
Mr. Kerr disputed this contention on the basis that his service was continuous, with the HSE as his employer in both employments. In any event, the employments overlapped as his contract with Portiuncula Hospital terminated on 30th June 2003, and he availed of annual leave prior to the termination date of his contract, therefore, he was in a position to commence his employment with South Tipperary Acute Hospital Services on 3rd June 2003. Furthermore, Mr. Kerr held that an immediate re-employment does not break continuityviz.the First Schedule of 1973 Act at clause 6 defines continuity:
- “The continuity of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.”
Taking the statutory provisions into account the Court accepts that there was no break in service. The fact that the Complainant held two different posts in two different locations does not in the Court’s view break that continuity therefore it accepts that the Complainant was continuously employed by the HSE during the period in question.
Substantive Issues:
Section 9: Right to a Contract of Indefinite duration
Having determined that the Complainant was employed by associated employers the Court must now determine whether he was entitled to a contract of indefinite duration pursuant to Section 9 of the Act.
The Act became law on 14th July 2003, on which date the Complainant was employed by South Tipperary Acute Hospital Services, under the former South Eastern Health Board and had been employed there since 3rd June 2003. On the basis of the conclusions reached above, the Court therefore finds that as his service since 1st January 2000 was continuous service with the HSE, in accordance with section 9(1) the Complainant’s fixed-term contract may only be renewed on one occasion and any such renewal shall be for no longer than one year - his contract was renewed on 3rd June 2004 until 30th June 2004.
The Complainant was furnished with a further contract in October 2004 purporting to be operative from 1 July 2004. This contract was in different terms to the contracts previously furnished to the Complainant. It stated: -
- “You will fill the vacant post of Consultant Obstetrician/Gynaecologist (Category 1), South Tipperary Acute Hospital Services. Your employment will cease when the post has been filled permanently by the Local Appointments Commission or when other alternative arrangements have been made to fill this post. ”
Mr Kerr submitted that the failure to provide written terms and conditions at the time of renewal contravened Section 8 (2) of the Act.
He argued that the contract under which the Complainant was employed after 1st July 2004 was, as a matter of law, a contract of indefinite duration given that he was not provided with a written contract until some months later, a contract which purported to alter the status of his employment.
The Respondent argued that there were objective grounds under Section 9(4) of the Act for not issuing the Complainant with a contract of indefinite duration and for retaining him on a specified purpose contract at the time. It acknowledged that the Complainant was not issued with a written contract at the date his employment was renewed on 1st July 2004. It confirmed that the contract was not issued until 20th October 2004. However it submitted that the reasons for its renewal were clearly outlined in the contract.
Mr. Kerr contended that while the Respondent had not contravened Section 8 (1) it had contravened Section 8(2) of the Act by failing to provide the Complainant with a statement in writing setting out the objective grounds relied upon for the renewal of his fixed-term contract. In the alternative, he argued that the contract under which the Complainant was employed after 1st July 2004 is as a matter of law, a contract of indefinite duration given that he was not provided with a written contract until some four months later, a contract which purported to alter the status of his employment.
Written Statement of Employment
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.
(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.
(4) If it appears to a Rights Commissioner or the Labour Court in any proceedings under this Act—
(a) that an employer omitted to provide a written statement, or
(b) that a written statement is evasive or equivocal,
the Rights Commissioner or the Labour Court may draw any inference he or it considers just and equitable in the circumstances.
Mr. Kerr relied upon the decision of this Court inHSE North Eastern v Khan[2006] ELR 313 as authority for the proposition that the purpose of section 8 (2) is not just to ensure that a fixed term employee was informed of the reason why his or her contract was being renewed, it was to ensure that the employer definitively committed itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under section 9(4). In that case the Court ruled that the intention of Section 8(2) is to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under Section 9(4): -
- “Section 9(4) allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene subsection (1) or (2) where there are objective grounds for so doing. However, since this provision allows a derogation from what is an important social right derived from the law of the Community it must, in the Court’s view, be construed and applied strictly against the person seeking to rely on the subsection. Thus the Court must require an employer invoking subsection (4) to establish on credible evidence the factual matrix which is relied upon as constituting objective justification as that term is defined by section 7 of Act and as it is understood in the settled law of the Community.
- “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”.
No evidence was adduced by either party to show what was in their minds on the 1st of July 2004. From the evidence before the Court it appears that the Complainant’s employment simply continued following the expiry of his previous contract on 30th June 2004 without him being notified of his exact status and thus he became entitled by operation of law to a contract of indefinite duration. There is no evidence of any negotiations setting out the terms of his contract. The Respondent did not provide the Complainant with a written contract specifying the objective grounds on which they proposed to rely until some four months later.
At that time the Complainant was, on the evidence, employed on a contract of indefinite duration which could not be overturned by the later decision to issue him with a specified contract on 20th October 2004. In that event the term of the contract which provided for its termination (by the occurrence of an event) on 16th March 2007 was voidab initioand the resulting contract became one of indefinite duration. The contract is thus converted to one of indefinite duration seeMcArdle and the State LaboratoryLabour Court Determination FTD063 upheld by Laffoy J. High Court on appealMinister for Finance v McArdle[2007] 18 ELR 165. Given these findings, there is no necessity for the Court to consider whether the grounds advanced by the Respondent as constituting objective justification did in fact meet the requirements of Section 7 (1) of the Act.
Therefore, the Court determines that the purported termination of a specified purpose contract and the resulting dismissal on 16th March 2007 were ineffective in the circumstances.
Accordingly, the Court considers it unnecessary to consider the claim under Section 13 (d) of the Act.
Redress
Section 14(2) of the Act provides that a Rights Commissioner (or the Court on appeal) may order one or more of the following by way of redress for a contravention of the Act: -
(a)declare whether the complaint was or was not well founded;
(b)require the employer to comply with the relevant provision;
(c)require the employer to re-instate or re-engage the employee (including on a contract of indefinite duration);
(d)require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee’s employment;
The Court declares that the term included in the Complainant’s contract dated 1st July 2004 which purports to provide for its expiry by the occurrence of an event is rendered void,ab initio.Hence, by operation of law, the offending term is deemed to be severed from the contract thus altering its character from one of definite duration, or fixed-term, to one of indefinite duration.
DETERMINATION:
For all of the reasons set out in this Determination the Court finds that the Complainant’s appeal is allowed. The Decision of the Rights Commissioner is set aside and substituted with a finding that the Complainant’s complaint alleging a contravention of Section 9(1) of the Act is well founded.
The Court believes that the appropriate form of redress in this case is an order directing that the Claimant be re-engaged in a suitable post for which he is qualified within a period of six months, without loss of his prior service.
Failing that the Court determines that the appropriate form of redress is an award of compensation pursuant to section 14 (2) (d) of the Act in an amount which is just and equitable having regard to all the circumstances of the case.
The Court does not propose to fix the quantum of compensation to which the Complainant is entitled at this time. It will adjourn this aspect of the case so as to afford the parties an opportunity to negotiate on the matter. If agreement is not reached the Court will make a further order fixing the quantum of compensation on application being made to it on that regard and on hearing such submissions as the parties wish to make.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th December, 2009______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.