FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NATIONAL UNIVERSITY OF IRELAND MAYNOOTH (REPRESENTED BY MCCANN FITZGERALD SOLICITORS) - AND - DR ANN BUCKLEY (REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS) DIVISION : Chairman: Mr McGee Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Decision R-062143-Ft-08/RG.
BACKGROUND:
2. INTRODUCTION
Background
This is an appeal by the National University of Ireland Maynooth against the Decision of a Rights Commissioner in a complaint against it made by Dr Ann Buckley under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). For ease of reference, the parties are referred to by their designations at the time of the Rights Commissioner’s hearing i.e. with Dr Ann Buckley as the Claimant and with the National University of Ireland Maynooth as the Respondent
DETERMINATION:
The Claimant brought a proposal to the Respondent in 2002, having received a research grant, to conduct specific research. The respondent agreed to host her for the duration (3 years) of the project. This began on 1st October 2003 and the Claimant was issued with a fixed-term contract on 7th October 2003 to run from 1st October 2003 to 30th September 2006.
The Claimant received further funding in 2006 for a second research programme of two years’ duration. The Respondent once again agreed to host her and issued her with a further 2-year fixed-term contract on 26th October 2006, this contract to run from 1st October 2006 to 30th September 2008. Her designation, in both contracts, was that of a Senior Research Fellow. The second contract duly terminated on 30th September 2008. On 23rd November 2007, the Claimant wrote to the Respondent claiming that she was a permanent employee of the College by virtue of the Act. The Respondent refuted this by letter of 20th December 2007. On 21st February 2008, the Claimant, through her Union, submitted a claim under the Act, citing a breach of the Act in that she was not afforded a Contract of Indefinite Duration having completed four years’ continuous employment on 30th September 2007.
A Rights Commissioner heard the case on 16th July 2008. In her Decision, dated 6th August 2008, the Rights Commissioner said as follows:
- “I declare that the complaint under Section 8(2) is well founded in that the employer informed the claimant, in writing, of the objective grounds justifying the renewal of her contract and the failure to offer a contract of indefinite duration, on 26th October 2006 which was some 26 days after the renewal of her contract on 1st October 2006.
I declare that the complaint under Section 9(4) is well founded in that the objective ground relied on by the employer does not meet the criteria as set down in Section 7 of the Act and Clause 5 of the Framework Agreement as interpreted by the European Court of Justice. Accordingly a contract of indefinite duration should be issued to the claimant effective from 1st October 2007.
I require the employer to pay the claimant compensation of the sum of €5,000 within six weeks of the date of this decision.”
Respondent’s Arguments:
(1) The Claimant was at no time an employee of the Respondent. She did not apply for a post but approached the Respondent for a hosting arrangement for her project, with external funding from the Irish Research Council for the Humanities and Social Sciences (the IRCHSS). The Respondent was not in a position of employment of the Claimant and did not exercise control over her. She was effectively an independent contractor. There are many authorities for this, the most notable being“Henry Denny & Sons (Ireland) Limited v Minister for Social Welfare”[1998] 1 I.R.34 where the then Keane J said that the approach to be adopted was: -
- “It is accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”
Without prejudice to the above, the Respondent argued further, as follows: -
(2) The Respondent had not breached Section 8(2) of the Act. The Respondent informed the Claimant of the objective grounds for the renewal of the fixed term contract and the failure to award a Contract of Indefinite Duration both in the Staff Appointment Form and in the body of the renewed contract in October 2006. In any event, the working/hosting arrangement was as sought by the Claimant.
(3) The Claimant’s main complaint is the failure to grant her a Contract of Indefinite Duration, this breaching Section 9(2) of the Act. The Respondent denies this and insists that there were clear objective reasons set out for the renewal of her fixed-term contract and the non-granting of a contract of indefinite duration. Both projects had independent ring-fenced funding, which was not provided by the Respondent.
(4) The use of fixed-terms contracts is not in itself illegal. It was noted by the Advocate General in the case of“IMPACT v Minister for Agriculture, Food & Others”- Case C 268/06 that fixed-term contracts are a feature of employment in certain sectors, occupations and activities, which can suit both employees and workers. Indeed, the Framework Agreement observes, “the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse”.
- The use of successive fixed-term contracts when objectively justified is covered in the case of “Adenelar & Others v Ellinikos Organismos Galautos”[2006] C 212/04 where the ECJ held that:
- “In those circumstances, the concept of “objective reasons”, within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.
- Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.”
- “In those circumstances, the concept of “objective reasons”, within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.
(1). When this matter came before the Rights Commissioner, the Respondent relied on Sections 8 and 9 of the Act, confirmed that the Claimant was an employee of the University on a fixed term contract and was therefore entitled to the protection of the Act. This having been confirmed as a fact, the Respondent is estopped from now resiling from that position. To so allow would be to permit an abuse of process by the Respondent.
(2). The terms of the Claimant’s contract of employment were clearly ones which indicated all the elements of an employment relationship, such as requirements to undertake dates assigned to her by the Head of the Department, holiday entitlement, grievance and disciplinary procedures and a confidentiality clause. Indeed, her second contract was described as a “renewal of a fixed-term employment contract”.
- The Claimant also sat in at and participated in staff meetings, cross-campus groups and activities and teaching duties.She was employed as a Senior Research Fellow.
Keane J in the “Henry Denny” case also cites Cooke J in“Market Investigations v Ministry of Social Security”[1969] 2 QB 173 in this: -- “The most that can be said is that control will no doubt always have to be considered, although it can no longer be regarded as the sole determining factor, and that factors which may be of importance were such matters as whether the man performing the services provides his own equipment, whether he hires his own helpers, what degree of financial risk he takes, what degree of responsibility for investment and management he has, and whether and how far he has an opportunity of profiting from sound management in the performance of his task.”
(4). Having been in an employment relationship and having had her contract renewed for two years in October 2006, the Claimant was entitled to a contract of indefinite duration as the second contract expired after 30th September 2007. By not doing so, the Respondent breached Section 9(2) of the Act.
The Evidence:
Respondent's Evidence
Professor Fiona Palmer, Professor of Music and Head of the Music Department in the Respondent College, gave evidence that she was responsible for the Department's Teaching & Research strategy and hiring of management staff. She said that the Claimant, who was being hosted by her Department for a research project, was not part of the core staff and did not have the same responsibilities as they would with regard to teaching and research and administration duties.
While the Claimant would have liaison with students and her photograph was in the student handbook, this was simply done so that students could identify those with whom they might come into contact in the College. It did not confer core staff status on her. When the witness took over as Head of Music Dept in 2007, she restructured the Department. Her predecessor had invited the Claimant to attend staff meetings. The witness decided that this was no longer necessary. The Claimant did not complain about the change.
As Head of the Department, the witness had to sign off on research projects. All of the funding for the Claimant’s research projects came from outside sources. The funding ended at the end of September 2008 and the project was, as far as she was aware, concluded.
The Claimant, she agreed, had done some supervision work for the Department. She was paid separately for this.
The recruitment of staff to her Department was by open competition. The Claimant had not come in by this route.
Ms Mary Kelly, Director of Human Resources in the Respondent, gave evidence that, in a situation such as the Claimant’s, the College's Finance Department would notify HR that external funding had been allocated and an account would have been set up out of which the salary, PRSI, expenses, etc would be paid from that cost centre. HR would draw up a standard fixed-term contract for the stated period of the project.
She also assisted the Claimant in recruiting a Research Assistant, who was paid from the same budget.
There were many others in the same position and with the same status as the Claimant. Any fixed-term contract or renewal of it is dependent on external funding being available or continued. In this case, the funding derived from the IRCHSS. The College had no control over it.
The witness agreed that the Claimant was on a temporary contract of service, that there was a standard probationary period written into her first contract and that she qualified for sick pay and holiday pay.
Mr Brendan Baker, Director of Human Resources in the Respondent also gave evidence. He said that the normal recruitment of academic staff was governed by statute. Open competition took place and the process was competitive. The Claimant did not go through such a process but instead had herself approached the Respondent to host her research project. Normally, academic staff are HEA-funded. This was not so in the Claimant’s case. There was no alternative work available for the Claimant in the College nor was there a vacant position. Should she succeed in her claim then a redundancy situation would apply. He was aware that the Claimant’s trade union felt that there was other suitable work available to the Claimant but he and his management team disagreed with this view.
In response to the point that there was no provision for redundancies in the public service, the witness said that this did not apply to someone on a fixed-term specified-purpose contract.
The witness agreed that the Claimant got a P.60 at the end of each year with the Respondent College listed as her employer.
Claimant's Evidence
There were, in the witness’s opinion, objective grounds for not offering a Contract of Indefinite Duration to the Claimant at the time of her second contract. This was externally funded research with a spepcified-purpose, fixed duration and finite funding. There was a responsible aim with proportionate effect.
Any breach of Section 8(2), in that the grounds objectively justifying the decision not to offer the Claimant a contract of indefinite duration were received a week or two late, was purely a technical one. The Claimant was on notice since September 2005 that her second contract would be a separate, stand-alone one, again hosted by the Respondent.
The Claimant testified that she had come back from a distinguished academic career in her chosen field abroad with a view to “putting down roots” at home and obtaining permanent employment. While she came in on the basis of a funded position, her expectation was for a permanent position in due course. She had never made any secret of this.
In October 2006, when she received the Research Contract Staff Employment Form from HR, she filled it in as directed and wrote down what she was told to write. She now realised that she should have taken legal or other advice at that time, as she was not competent in legal matters. She agreed that the contract was conditional on the awarding of the funding, that this funding was then for a two-year period and that there was no mention of her getting a permanent position. She had previously been told both by the College President and by the (then) Head of the Music Department that there would be a permanent post for her.
She agreed that she filled out the “objective grounds justifying the renewal of her fixed-term contract” by writing:
- “This contract is conditional on the award of funding from the IRCHSS which has been made available for two years from 1st October 2006 - 30th September 2008”.
- “The grounds are that the funding for this contract have been provided for a maximum of two years”
She did so because she was worried that failure to fill in the Form would place the funding for the research project in jeopardy.
She denied that her applications for the hosting arrangements were a Trojan Horse to get into the College on a permanent basis but agreed that to do so was her hope and ambition.
She had been encouraged to integrate, to go to staff meetings and to join in academic fora until 2007 when Professor Palmer took over as Head of Department.
Issues to be dealt with:
There are essentially three matters at issue before the Court. Firstly, the point raised by the Respondent that the Claimant was not employed by the Respondent and had, therefore, no access to the provisions of the Act. Should the provisions of the Act apply to the Claimant, the question then arises as to whether the Respondent breached Section 8 of the Act by failing to inform the Claimant, prior to the renewal of her contract, of objective grounds justifying said renewal and the failure to offer her a contract of indefinite duration. Finally, there is the question of whether or not the Claimant became entitled to a contract of Indefinite Duration under Section 9 of the Act.
Was the Claimant an employee of the Respondent?
Having considered the arguments on this point the Court, having reviewed all the authorities quoted and noting the presence of all of the primary elements of an employer – employee relationship, is satisfied that the Claimant was an employee of the Respondent and is, therefore, comprehended by the terms of the Act. The Court is also of the view in this regard that the Respondent admitted such a relationship before the Rights Commissioner.
Was there a breach of Section 8 of the Act?
Section 8(2) of the Act provides that: -
- “Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of renewal”.
The Claimant signed the contract on 31st October 2006.
By the date of renewal, therefore, the Respondent had neither provided the Claimant with a contract of indefinite duration nor offered objective grounds for not so providing or offering objective justification for this. The Respondent at the hearing acknowledged that there was a breach but described it as a technical one.
In the Court’s view, however, Section 8(2) is a mandatory provision, which does not allow exceptions. A breach of this Section cannot be overlooked by the Court.
Contract of Indefinite Duration:
Under the terms of Section 9(2) of the Act, the Claimant was employed on two successive fixed-term contracts, the date of the first of which was subsequent to 14th July 2003, the date the Act was passed, the sum of which exceeded four years. She was, therefore, entitled to a contract of indefinite duration with effect from 1st October 2006 unless objective grounds were offered justifying the renewal of the fixed-term contract past this period (Section 9(4) of the Act).
When the Respondent sent the Claimant the Research Contract Staff Appointment Form, it was the Claimant who filled it in. It contained sections left blank in which to state
(a) “the objective grounds justifying the renewal of the fixed-term contract where the claimant wrote-
- 'This contract is conditional on the award of funds from the IRCHSS which have been made available for two years from 1st October 2006 – 30th September 2008'.
and
- 'the grounds are that the funding for this contract have been provided for a maximum of two years'
These grounds, and the justification for a further fixed-term contract, were encapsulated in the Claimant’s actual fixed-term contract, which she signed on 31st October 2006, as follows:-
- “Renewal of your employment is justified by the fact that further temporary work has become available and that funding is available to support that work for a fixed period. The University is unable to offer a contract of indefinite duration as the funding in question is available for a fixed duration only”.
The Court cannot accept this. The sections are plainly expressed and it was made clear that further fixed-term work, rather than a contract of indefinite duration, was being offered. These were the stated reasons why. She did not consult her Union nor did she take legal advice. If she was in any doubt what the clause meant and especially as it concerned her future employment then the logical course of action was surely to seek such advice before signing the form. She then saw the clauses encapsulated into a binding contract, which she also signed three weeks later, again apparently without taking advice.
The Claimant did, however, write to the Respondent only three weeks after completing four years of employment, on 23rd November 2007, quoting Section 9(2) of the Act and requesting confirmation of her perception of her status as a permanent employee of the College. She had not raised this matter between signing a fixed-term contract containing objective justification for its being so and the time, a year later, when she had completed four years’ employment. She professed to have no knowledge of the Act when she signed the form and the contract “in ignorance of itsprovisions”in October 2006, yet quoted and understood the Act in November 2007, with no correspondence having been exchanged during the first year of the contract’s duration.
The Court is of the view that the Claimant, having signed a binding contract agreeing to the objective reasons for its renewal on a fixed-term basis, cannot subsequently resile from this position and is therefore not entitled to a contract of indefinite duration.
The Court determines that the complaint under Section 8 of the Act is well-founded and awards compensation of €2000 in this respect.
The Court varies the Decision of the Rights Commissioner accordingly.
Signed on behalf of the Labour Court
Raymond McGee
24th February, 2009______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.