FTD093

The facts:

The material facts of the case are not seriously in dispute and can be summarised as follows: -

The Claimant commenced employment with the Respondent in 2000 as a Temporary Teaching Assistant (T.T.A.) in Chemical Oceanography.

He was employed on a fixed-term contract of one-year duration. While the contract did not specify the reason why the contract was for a fixed term the Court is satisfied that it was to provide cover in the post until a permanent appointment could be made.

The Claimant was paid the same salary as that paid to all other Lecturers, which is on a scale negotiated between the Department of Education and Science and the trade unions representing university teachers. The Claimant worked on a full-time basis, as did permanent lecturers employed by the University. The Claimant was not provided with access to the University’s pension scheme during the currency of his employment. All permanent lecturers were covered by the pension scheme. In all other material respects the Claimant’s conditions of employment were the same as those of permanent college lecturers.

The Claimant’s fixed-term contract was renewed on 1st September, 2001, for a further term of one year. On this renewal the description of his post was changed to that of Lecturer (Fixed Term) in Chemical Oceanography.

On its expiry the Claimant’s contract was further renewed, on the same terms, for a further year commencing on 1st September, 2002. The contract was again renewed for a three month term on 1st September, 2003. While all other terms of the contact where identical to those which preceded it, the description of the post occupied by the Claimant was changed to that of Lecturer (Fixed Term) in Earth and Ocean Science.

In early 2003 the Respondent undertook a reorganisation in the Department in which the Claimant worked. As part of this reorganisation the Respondent reorganised a number of Departments into one Department of Earth and Ocean Science. It was further decided that the teaching post in the newly structured Department would be a permanent post.

The post was advertised both internally and externally. The Claimant applied for the post but was unsuccessful.

Claimant’s Case:
The Claimant grounds his claims on a number of contentions. He claims that at all material times the University had a permanent requirement for the post which he was employed to fill. He contends that in being dismissed from his post and replaced by a new appointee he was treated less favourably than a comparable permanent employee.

In the alternative the Claimant contends that he was dismissed from his post for the purpose of avoiding his fixed-term contract being deemed to be one of indefinite duration pursuant to s. 9(3) of the Act.

The Claimant further contends that he was treated less favourably than a comparable permanent employee in that he was not entered into the University’s pension scheme.

Finally the Claimant contends that, contrary to s. 8 of the Act, he did not receive a written statement of the grounds on which his various fixed-term contracts were being renewed and the reasons why he was not being offered a permanent post.

The Court was told that when the claimant joined the University in late 2000, he was the only person in the Department qualified to teach and examine the chemical aspects of the Oceanography/Marine Science courses, as the previous Head of Department had resigned that Spring. It was therefore clear that a permanent vacancy existed. In August 2003 the claimant was informed by letter that his contract was being renewed from 1st September, 2003 until 30th November, 2003. He queried why, given the Act, he was not getting a contract of indefinite duration. He received no satisfactory response to this question.

Interviews were held for the permanent post on the 23rd September, 2003. There were three candidates (including the claimant) but only one candidate (an external one) was found suitable for appointment.

On 5th November, 2003, the claimant was given “notification of redundancy”, but was informed verbally on 1st December, 2003, that he would be employed until 31st January, 2004 as the successful candidate could not take up duty until 1st February, 2004.

• “I wish to advise you that in view of the fact that the Lecturer below the bar post in Earth & Ocean Sciences – Chemical Oceanography has been approved to be filled, this (previously described) Lectureship (fixed term) post will in turn be suppressed in line with the filling of this post”.

The Law Applicable

The general scheme of the Act is to provide for equal treatment in employment conditions between fixed-term employees and comparable permanent employees and to prevent the abuse of fixed-term contracts.

The Act was enacted to implement into Irish Law Directive 1999/70/EC concerning the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP.

Section 6 of the Act provides: -

• 6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.
  
  (2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

• (a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
  
  (b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed term employee, or
  • (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees, and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

• • (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
    
    (b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
    
    (c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

• • Written Statement of Employer
    
    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.
    (2) 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 the renewal.(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 she or it consider just and equitable in the circumstances.

• • 
    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.

Conclusions of the Court

Right to a Contract of Indefinite duration

The Claimant commenced employment with the Respondent on 6th November 2000. He completed his third year of continuous fixed-term employment on 5th November 2003. His contract was renewed on 30th November 2003 for a period of two months. It was not renewed thereafter.

On these facts it is clear that the Claimant did not accrue an entitlement to a contract of indefinite duration pursuant to s. 9(1) of the Act. However the Claimant contends that the decision to terminate his employment by reason of redundancy in circumstances in which a comparable permanent employees would not have been made redundant amounted to less favourable treatment on grounds of his status as a fixed- term employee.

A similar line of argument was recently considered by this Courtin Khan v Our Lady’s Hospital Crumlin[2008] 6 ELR 314. Here the Court pointed out that the conclusion of a fixed-term contract is of itself less favourable treatment than that which would be afforded to a permanent employee. If the prohibition of less favourable treatment of fixed-term employees extended to the matters relating to tenure of employment all fixed-term contracts would be prima facie unlawful. That could not have been intended. InKhan v Our Llady’s Hospital Crumlin,the Court adopted the reasoning of another sitting division on this point in Determination FTD062-Prasad v Health Service Executive.

Here it was contended that the decision of the Respondent to divert funding from the Claimant’s temporary post to a newly created permanent post, resulting in the dismissal of the Claimant, constituted less favourable treatment of the Claimant prohibited by s. 6 of the Act. In considering that proposition the Court adopted the reasoning of the Court of Appeal for England and Wales on a similar point inDepartment for Work and Pensions v Webley[2005] IRLR 288. That case concerned a claim by a civil servant employed on a fixed-term contract that her employer’s refusal to renew her contract after 51 weeks, in circumstances where there was a continuing need for the work which she performed, infringed the Framework Agreement and the UK transposing legislation. Her claim was dismissed at first instance on the preliminary point that it did not disclose a cause of action. This was reversed by the EAT. On appeal to the Court of Appeal the decision of the Employment Tribunal was restored. According to Wall LJ, with whom Jacob and Ward LJJ agreed,

• • Once it is accepted, as it must be, that fixed-term contracts are not only lawful, but are recognised in the Preamble to the Directive as responding, 'in certain circumstances, to the needs of both employers and workers', it seems to me inexorably to follow that the termination of such a contract by the simple effluxion of time cannot, of itself, constitute less favourable treatment by comparison with a permanent employee. It is of the essence of a fixed-term contract that it comes to an end at the expiry of the fixed-term. Thus unless it can be said that entering into a fixed-term contract is of itself less favourable treatment, the expiry of a fixed-term contract resulting in the dismissal of the fixed-term employee cannot, in my judgment, be said to fall within reg. 3(1).

Failure to provide a written statement of objective grounds

It is clear that the Respondent failed to provide the Claimant with a written statement in the terms required by s. 8 of the Act in respect of the renewal of his contract on 30th November 2003. In respect to the earlier renewal on the 1st September, 2003, the Court notes that Respondent’s contention that the terms of the letter which it sent to the Claimant dated 29th August, 2003, discharged its obligations under the Act. That letter was for the purpose of imparting general information on the proposed filling of the post on a permanent basis. It did not provide the information which is specifically required by s.8 of the Act. As was pointed out by this Court inGalway City Council v Mackey(FTD5/2006), what is prescribed by the Act is a mandatory requirement which admits of no exceptions and a failure to apply this provision of the Act can neither be overlooked nor excused.

Accordingly, the Court is satisfied that the Respondent did contravene s.8 of the Act in relation to the Claimant.

Failure to enter the Claimant in the Respondent’s pension scheme

The Claimant contends that he was treated less favourably than a comparable permanent employee in not being entered in the Respondent’s pension scheme. This claim is grounded on s. 6 of the Act.

Section 6 of the Act provides, in effect, that a fixed-term employee is entitled to the same conditions of employment as those afforded to a comparable permanent employee. It is clear that the pension entitlements are included amongst the conditions of employment to which the section relates.

It was argued by the respondent that a comparator must be an individual, identifiable, permanent employee who meets the criteria set down in Section 5(2) of the Act. The claimant failed to identify such a comparator until the Rights Commissioner hearing. When pressed to do so, he named a comparator who it was submitted by the respondent, did not perform like work with the claimant and was not an appropriate comparator.

The Respondent contends that the Claimant was required to undertake teaching duties only whereas permanent lecturers undertook additional duties.

In regard to the obligation to nominate a specific comparator, the Act must be interpreted in accord with the Framework Agreement on which it is based. The purpose of the Framework Agreement is to prevent fixed-term workers from being treated less favourably than comparable permanent employees. The requirement for a comparator is for the purpose of demonstrating the economic value placed by an employer on a job when it is performed by a full-time employee. It is thus an evidential requirement. In this case it is clear that the Claimant is seeking to compare his position to that of all other permanent college lecturers. All permanent college lecturers are paid on a common rate and are afforded common conditions of employment. It can, therefore, be assumed that they are engaged in like work as and between themselves.
In these circumstances it is the view of the Court that the claimant is entitled to ground his claim for equal treatment by reliance on the treatment of any permanent lecturer employed by the Respondent provided they are engaged in like work and that failure to name a particular individual cannot in itself defeat that claim.

The question of the claimant’s entitlement to membership of the Respondent’s pension scheme then turns on whether, in terms of their job content, the Claimant and a permanent college lecturer can be regarded as engaged in like work. InMinister for Finance v McArdle[2007] 18 ELR 165. Leffoy J. made it clear that this question must be determined having regard to the statutory criteria set out at s 5(2) of he Act.

It is the Respondent’s case that a permanent college lecturer is required to undertake research and administrative duties whereas the Claimant is only required to teach. A finding of like work can arise in one of three situations, all of which are set out at s5(2) of the Act.

Section 5(2)(b) provides for a situation in which there are differences between two jobs but those differences are either of small importance to the job overall or occur with such infrequency as to be regarded as insignificant. InToyota Motor Distributors (Ireland) v KavanaghDEP1/1986 this Court held that a difference can be regarded as being of small importance to the job as a whole if they are not of such significance as to warrant a higher rate of pay.

Section 5(2)(c) deals with a situation in which jobs which are very different on their face fall to be compared. Here the emphasis is on whether the jobs, although different are of equal value in terms of the type of criteria set out in the subsection.

Moreover, in considering the applicability of either subsection the decision of the House of Lords in inMatthews and Others v Kent and Medway Towns Fire Authority[2006] IRLR 367is instructive. This was a case in which retained fire fighters, who are part-time, claimed equal employment conditions, including pension rights, with full-time fire fighters. Under the equivalent UK legislation a claimant must be engaged in “the same or broadly similar work” as their comparator. It was claimed by the Respondent that this statutory condition was not fulfilled because the Claimants were not responsible for certain tasks performed by full-time fire fighters. The Employment Tribunal accepted that line of argument and dismissed the claims The House of Lords, by a majority, held that the Employment Tribunal was wrong on that point. In her speech, with which the majority agreed, Baroness Hale had this to say at paragraph 44 of the Judgment :-

• • It is easy to imagine workplaces where the full-timers do the more important work and the part-timers are brought in to do the more peripheral tasks: the fact that they both do some of the same work would not mean that their work was the same or broadly similar. It is equally easy to imagine workplaces where the full-timers and part-timers spend much of their time on the core activity of the enterprise: judging in the courts or complaints-handling in an ombudsman's office spring to mind. The fact that the full-timers do some extra tasks would not prevent their work being the same or broadly similar. In other words, in answering that question particular weight should be given to the extent to which their work is in fact the same and to the importance of that work to the enterprise as a whole. Otherwise one runs the risk of giving too much weight to differences which are the almost inevitable result of one worker working full-time and another working less than full-time.

Direct Effect of Community Law

It was also contended by the claimant that he should be given access to the pension scheme with effect from 1st July 2001. This is based on the assertion that the Claimant is entitled to relay on the Directive in grounding his claim in so far as it relates to the period prior to 14th July 2003, on which date the Directive should have been transposed in domestic law. It is accepted that the Directive should have been transposed by 1st July 2001.

When this case first came on for hearing before the Court a preliminary ruling was awaited from the European Court of Justice on the jurisdiction of this Court to apply the Doctrine of Direct Effect of Community law. The case was stayed by consent of the parties until that judgment was given.

The Court of Justice subsequently gave its judgment in Case 268/06,IMPACT v Minister for Agriculture and others,IRLR 552 in which it held that this Court is obliged to apply that doctrine of Community law in cases where it has jurisdiction in respect to corresponding provisions of domestic law. Thus the Claimant is entitled to rely upon the Directive in the within case in respect of the period between 1st July, 2001, and 14th July, 2003, provided the other conditions for the application of direct effect are fulfilled.

In the instant case it is accepted that Clause 4 of the Framework Agreement (which corresponds to s.6 of the Act) is sufficiently clear and precise and is thus directly applicable. It is, however contended on behalf of the Respondent that it is not an emanation of the State as within the meaning ascribed to that concept by Community law.

The Respondent pointed out that the University, unlike Institutions of Technology, Schools etc, is not under the control of the State. It has its own governing authority of which only 4 out of 20 members are government nominees. It is independent in its decision making despite being part-funded by the State. The fact that some decisions made by Universities maybe subject to judicial review and that judicial review can only be taken against a statutory body does not mean that the body is under the control of the State.

The test for determining if a body is an emanation of the State was formulated by the ECJ in case C-188/89Foster v British Gas plc[1991] ECR 1-3313. Here the ECJ held that a directive is directly applicable against: -

• • “a body, whatever its legal form, which has been made responsible, pursuant to a measure adopted by the State, for providing a Public Service under the Control of the State and has for that purpose special powers beyond those which resulted from the normal rules applicable in relations between individuals”.

• • “(A Directive)………may, however, be relied on against organisations or bodies which are subject to the authority or control of the State or have special powers beyond those which result from the normal rules applicable to relations between individuals, such as local or regional bodies which, irrespective of their legal form, have been given responsibility, by the public authorities and under their supervision, for providing a public service”