FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HEALTH SERVICE EXECTIVE (REPRESENTED BY HSE SOUTH) - AND - DR NABEEL SAEED (REPRESENTED BY GARRETT MCDERMOTT SOLICITOR) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appealing Against A Rights Commissioner's Decision R-063878-Ft-08/Jc
BACKGROUND:
2. An appeal against a Rights Commissioner's Decision was submitted to the Labour Court on 11th December, 2008 by the Union in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 29th April, 2009. The following is the Court's Determination:-
DETERMINATION:
This is an appeal by Dr. Nabeel Saeed (the Complainant) against the Decision of a Rights Commissioner in which she found against him in his claim under Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). There is no appeal of her finding under Section 8 of the Act where the Rights Commissioner awarded him compensation in the amount of €7500.
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(1) of the Act.
Background
The Complainant commenced employment as a Senior House Officer (SHO) in Medicine with the Wexford General Hospital on 1st July 2004. He was subsequently employed on a number of successive fixed term contracts until 30th June 2008, as follows:
Contract 1 1st July - 31st December 2004
Contract 2 1st Jan - 30th June 2005
Contract 3 1st July - 31st December 2005
Contract 4 1st Jan - 30th June 2006
Contract 5 1st July - 31st December 2006
Contract 6 1st Jan - 30th June 2007
Contract 7 1st July - 31st December 2007
Contract 8 1st Jan - 30th June 2008
The Complainant’s case
Mr. Michael O’Connor, B.L., on behalf of the Complainant, submitted that as he had completed three years’ continuous employment on 30th June 2007, the Respondent’s renewal of his contract on 1st January 2008 was in breach of Section 9(1) of the Act. He maintained that under this Section the Respondent was only entitled to renew his contract once and that by renewing it twice it was in breach of the Act. Mr. O’Connor held the view that this Section provides protection to those employees who had completed at least three years at any time after the passing of the Act on 14th July 2003. The Complainant had completed three years continuous service on 30th June 2007, his contract was renewed on 1st July 2007, and therefore he was entitled to a contract of indefinite duration by operation of law from 1st January 2008, in accordance with Section 9(3) of the Act.
Section 9 (1) provides:
“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.”
Mr. O’Connor relied on the wordson or afterthe passing of this Actand submitted that the Oireachtas intended that the Act would cover not alone people who were employed at the date of its enactment but also persons who were subsequently employed after the passing of the Act. He submitted that words are not put into sections of Acts in a superfluous way and if the Oireachtas intended Section 9(1) to cover situations only where somebody was employed at the time of the passing of the Act, it would not have included the words “or after” in the text. He held that Section 9(1) and (2) allow for alternative tests to achieve a common goal, namely that successive fixed term contracts should not be employed as an instrument of abuse of fixed-term workers and that the Complainant is entitled to benefit from whichever situation addresses his employment situation better.
Mr. O’Connor submitted that to adopt the interpretation taken by the Respondent would be to distort the clear meaning of the Section as enacted by the Oireachtas and would be tantamount to an amendment of the Section by judicial activism.
Section 9 (3) provides:-
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.
The Respondent’s case
The Respondent took the view that Section 9 (1) was not applicable to the Complainant. It stated that Section 9(1) applied only where an employee had commenced employment before the passing of the Act. It submitted that Section 9 (2) was the appropriate provision in the Complainant’s case.
Section 9 (2) provides:
“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.”
The Respondent contended that as the Complainant’s employment commenced on 1st July 2004 almost a year after the passing of the Act, and his contracts were renewed for an aggregate duration of not more than four years, there was no breach of Section 9 of the Act.
In any event, the Respondent submitted that there were objective grounds for the renewal of the Complainant’s contract on 1st January 2008.
Section 9 (4) states that
“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 Respondent stated that the Complainant was employed in a training post which was accredited for training purposes by the Royal College of Physicians of Ireland. Doctors working at SHO level are categorized as Non-Consultant Hospital Doctors (NCHD’s) or “doctors-in-training” and their clinical practice is carried out under the direction of an Hospital Consultant. Employment arrangements for the majority of NCHDs are structured on a six-monthly/one-yearly contract basis to allow them gain experience and training in various hospital settings to enable them to progress in their chosen speciality. It is only after the NCHD’s have completed higher Specialist Training in their chosen speciality that they are deemed to be fully qualified doctors capable of independent clinical practice.The Court’s Findings
The Court must first consider whether a Complainant may elect to bring a complaint either under Section 9(1) and 9(2) as alternative options.
In a line of authorities starting with the Judgment of the ECJ in Case C-14/83Von Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891, it is well established that in interpreting and applying a provision of national law which was enacted to transpose a provision of a Directive a Court must do so in light of the wording and purpose of the Directive so as to achieve the result envisaged by the Directive.
The main purpose of the Act is the transposition into Irish law of Council Directive 1999/70/EC, of 28 June 1999 concerning the Framework Agreement on Fixed-Term Work concluded by ETUC, UNICE and CEEP which provides for the improvement of the quality of fixed-term work by ensuring the application of the principle of non-discrimination to fixed-term workers and also establishes a framework to prevent abuse arising from the use of successive fixed-terms employment contracts.
Clause 5 of EU Council Directive 1999/70/EC outlines the measures which Member States should take to prevent abuse: -
- 1. 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:
- 1. 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:
(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships.
2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:
(a) shall be regarded as "successive"
(b) shall be deemed to be contracts or relationships of indefinite duration.
- 1. 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:
Clause 5 of the Framework Agreement is directed at preventing the successive use of fixed-term contracts in a manner which constitutes abuse. However, what constitutes abuse was left to the Member States. Clause 5 (2) of the Framework Agreement allowed Member States to determine the conditions under which fixed-term contracts were to be deemed to be contracts of indefinite duration.
The Act which implemented the provisions of the Framework Agreement was passed and became effective on 14th July, 2003.
Section 9 of the Act implements Clause 5 of the Framework Agreement.
Subsections (1) and (2) of Section 9 define two different sets of circumstances in which the successive use of fixed-term contracts is normally to be regarded as an abuse.
Section 9(1) provides that where a fixed-term employee has completed his/her third year of continuous employment with an employer or an associated employer on or after the passing of the Act, the employer may only renew the fixed-term contract once and that renewal cannot be for longer than a year. Section 9(2) provides that where an employee is employed by an employer or an associated employer on two or more continuous fixed-term contracts the aggregate duration of such contracts shall not exceed four years where the first contract post-dates the Act.
Where a renewal of such contracts infringes these provisions, that contract will be deemed by operation of law under Section 9 (3) to be a contract of indefinite duration.
Section 9(1) uses the words“on or after the passing of this Act”.
Section 9(2) uses the words“after the passing of this Act”and proceeds with the words“and the date of the first such contract is subsequent to the date on which this Act is passed”.Clearly subsection (2) is designed to cover those employees who commence fixed term contractsafterthe passing of the Act with restrictions applying where they have hadtwo or more continuous fixed-term contracts exceeding an aggregate duration of four years.
The question to be considered is whether subsection (1) also applies to such employees.
The legislation is designed to restrict an employer employing a person on aseriesof fixed term contracts indefinitely, and in the view of the Court Section 9(1) made special provision for those already on such contracts at the time of the passing of the Act (any or all of the three years service may have accrued prior to the passing of the Act). In the view of the Court subsection (1) provided protection to existing fixed-term employees from 14th July 2003, the effective date of the Act. Subsection (1) is a transitory provision, designed to deal with a situation which would disappear with the effluxion of time. Subsection (1) deals with situations where a fixed-term contract was first entered intopriorto the passing of the Act and subsequently renewed after the passing of the Act. It does not apply to those who commenced on fixed-term contracts after the passing of the Act.
SubSection (2) deals with situations where the fixed-term employment commencesafterthe passing of the Act with subsequent renewals being governed accordingly.
It is a common construction in law that it can be assumed that all words have a meaning ascribed to them. Subsections (1) and (2) must in the view of the Court apply to different circumstances. There can be no reason to assume that the legislators would use different words to say the same thing. They must have intended that each word in each of the subsections contributed to its meaning. Otherwise there would be no reason for the Oireachtas to insert Section 9(2). It would be a tautology and would make a nonsense of the law.
The Court is sustained in this view by the dicta of Lavan J inGreene v the Minister for Defence [1998] IEHC 88; [1998] 4IR 464. In that case which dealt with the interpretation of Sections 3 and 4 of the Civil Liability (Assessment of Hearing Injury) Act, 1998 in which the Defendant submitted that:
“the interpretation of Section 3, described above, requires that Section 4 must be given an independent meaning and effect. The Defendants state that “it is a fundamental principle of the construction of statutes that provisions are presumed not to be included in vain, or for no purpose.”
Lavan J held:
- “The interpretation of judicial notice in Section 3 is not disputed. However the Defendants seek to invoke this interpretation as a means of inferring that some greater weight must have been intended by the Legislature under Section 4. Section 3 admittedly refers to the mode of proof and not the weight thereof. This does not render Section 4 superflous however. It is clear from the submissions of both of the parties that the formula in Section 4 is irrelevant to the question of the weight to be attached to particular evidence. This distinguishes the legislative intent in enacting Section 4 from that of Section 3 sufficiently to overcome the concerns of the Defendant that Section 4 could be rendered nugatory.”
This question of the interpretation of statutes in circumstances analogous to the case before this Court was also referred to by the Supreme Court inCork County Council v Whillock [1993] 1 IR 231where O’Flaherty J stated:
- “….a construction which would leave without effect any part of the language of a statute will normally be rejected.”
He proceeded to hold that :
“the first rule of construction requires that a literal construction must be applied. If there is nothing to modify, alter or qualify the language which the statute contains, it must be construed in the ordinary and natural meaning of the words and sentences”.
and Egan J held that :
- “there is abundant authority for the presumption that words are not used in a statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or say anything in vain.”
Based on this conclusion the Court takes the view that the only possible interpretation of the statute is that, as the Complainant commenced on a fixed term contract with the Respondent after the passing of the Act, he cannot rely on Section 9 (1).
The total duration of the Complainant’s employment with the Respondent was 4 years; therefore there was no breach of Section 9 (2). Accordingly the Court must conclude that the Respondent did not contravene Section 9 of the Act in failing to appoint the Complainant to the disputed post on a contract of indefinite duration. Having so found there is no necessity for the Court to determine the complaint made under Section 9(4) of the Act.
Determination
For all of the foregoing reasons the Court is satisfied that the Decision of the Rights Commissioner is correct. The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
15th June, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.