FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DUNDALK TOWN COUNCIL & LOUTH COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - COLIN MATTHEWS (REPRESENTED BY FRANCIS WATTERS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr O'Neill |
1. Appeal of Rights Commissioner’s Decision r-069675-ft-08/JT.
BACKGROUND:
2. This is an appeal by Mr Colin Matthews against the Decision of a Rights Commissioner in a complaint he made against Dundalk Town Council and Louth County Council, under the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court Hearing took place on 24th September, 2009. The following is the Determination of the Court:
DETERMINATION:
The dispute came before the Court by way of an appeal on behalf of Mr. Matthews (“the Complainant”) against the Decision of a Rights Commissioner given under the Protection of Employees (Fixed-Term Work) Act 2003 (“the Act”) in relation to a claim against Dundalk Town Council (“the Respondent”).
The Complainant was employed as a Resident Engineer on successive fixed-term contracts with the Respondent from 19th June 2000 until 5th May 2008. On 29th September 2008 the Complainant brought proceedings before a Rights Commissioner where he claimed that the Respondent was in breach of Sections 8, 9, 10 and 13 of the Act.
The Rights Commissioner made no specific findings on the alleged breaches of sections 8, 9, 10 and 13. He found that the Complainant’s claims failed as he did not advance a Comparator to support his arguments.
Preliminary Point
By way of a preliminary issue the Respondent submitted to the Court that the case should be struck out as the Complainant had entered into a valid agreement on 26th May 2008 whereby he accepted a permanent position as Assistant Engineer in full and final settlement of his claim. The Agreement states as follows :-
- “I hereby accept the position of permanent Assistant Engineer with Louth County Council, and the terms and conditions attached to this position, on the understanding that this is in full and final settlement in relation to my recent claim for a permanent position following the cessation of my position as Temporary Resident engineer. I accept that I have no entitlement to any other position as any other grade: that I have no entitlement to any resident position should it arise in the future and that it I will not proceed along the industrial relations route in an effort to obtain any other position.”
Mr. Francis Watters, representative for the Complainant, held that while he was not happy with the situation, he was faced with the choice of either accepting the contract or accepting a redundancy payment. In the circumstances he accepted the agreement. He submitted that the net effect of this document is an attempt to exclude the operation of Section 12 of the Act.
In the Court’s view this submission is misconceived.
The Complainant has relied on Section 12 of the Act in asserting that the agreement could not result in a forfeiture of his statutory rights. This Section provides as follows:
- Save as expressly provided otherwise in this Act, a provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of the provision concerned of this Act) shall be void insofar as it purports to exclude or limit the application of, or is inconsistent with, any provision of the Act.
Talbot (Ireland) Ltd v Minister for Labour and Others[1985] 4 JISLL 87 concerned an appeal from a Determination of the Employment Appeals Tribunal (“the EAT”) under the Redundancy Payments Acts 1967 -1979. The Claimants before the EAT were workers who had lost their jobs when Talbot ceased car assembly in 1981. Following industrial action by the Claimants a settlement was reached. The Claimants signed a document by which they accepted that certain payments which they received were in full and final settlement of all claims.
The EAT considered the effect of Section 51 of the Redundancy Payments Act 1967 on the agreement which the Claimants executed. This Section provided: -
- “Any provision in an agreement (whether a contract of employment or not) shall be void in so far as it purports to exclude or limit the operation of any provision of this Act”
In finding that the claimed redundancy payments were due to the Claimants the Tribunal held,inter alia, that this Section of the Redundancy Payments Act 1967 prevented the agreement at issue from resulting in the forfeiture of the Claimants' rights. On appeal to the High Court, Barron J held that the Tribunal erred in so holding. Having considered the decision of Kenny J inMinister for Labour v O’Connor[1985] 4 JISLL 72 Barron J said the following: -
- “In my view Kenny J is saying no more than that anyone with full knowledge of his or her legal position is fully entitled to enter into any bargain he or she wishes and there is nothing in the Redundancy Payments Act 1967 to the contrary”
The matter was remitted to the Tribunal to decide if the disputed payments were in fact comprehended by the agreement concluded between the parties.
The Court in the instant case considered this preliminary point and notes that the agreement was prepared and signed by both parties after meaningful negotiations and professional advice having been sought and accordingly was made in good faith. It provided beneficial treatment for the Complainant, placed him in a permanent position without having to go through an open competition and in return agreed that this was in full and final settlement of his claim for “a permanent position following the cessation of my position as Temporary Resident Engineer”.Therefore, the Court is satisfied that his claim for a contract of indefinite duration pursuant to Section 9 (3) of the Act was settled by agreement between the parties as evidenced by the waiver signed by the parties. Accordingly, the Complainant is estopped from proceeding with his claim under Section 9 (3) of the Act and both the Rights Commissioner and this Court on appeal have no jurisdiction in the matter.
The Court will now proceed to investigate the remaining claims.
Section 8: Failure to provide a written statement
It is not disputed that the Complainant was not provided with a statement in writing of the objective grounds for the conclusion/ renewal of his fixed-term contracts between 2002 and 2008.
Mr. Watters accepts that the Complainant’s claim under Section 8 is out of time, however, he submitted that the Court may draw whatever inferences it wishes from the failure to provide the written statements.
To substantiate its position that there were objective grounds for its failure to grant a contract of indefinite duration in accordance with Section 9(3) of the Act, Mr. Don Culliton, on behalf of the Respondent, stated that Resident Engineers by their very nature are not permanent posts but they are project-related and submitted that they receive substantial additional remuneration in recognition of the fact that the posts are project-related.
Section 8 of the Act is directed at providing protection against the abuse of fixed-term contracts. The requirement to provide a written statement of objective grounds is, in part, for the purpose of ensuring that a ground subsequently relied upon for renewing a fixed-term contract beyond the period normally permitted by Section 9 is the real reason justifying a derogation from that Section. For that reason the Court finds it unacceptable that a written statement was not given, however, as there was no breach within the statutory time limits provided by Section 14 (3) of the Act, the Court makes no finding on this claim.
Consequently, the Court has no reason to investigate the objective justification grounds relied upon by the Respondent under Section 7 of the Act.
Section 10: Failure to inform Complainant of permanent Resident Engineer positions
The Complainant alleged that the Respondent was in breach of Section 10 of the Act in failing to inform him of vacant permanent positions. He contended that as he had no permanent office facilities, he was therefore outside the normal communications channels.
In the course of the hearing the Complainant clarified that his complaint related to not being notified of vacant Executive Engineer positions. In the case before the Rights Commissioner the Complainant alleged that he had not been informed of any permanent Resident Engineer positions. However, in response, the Respondent stated that there were no permanent positions available as Resident Engineers - by their very nature such positions are always temporary.
As there is no specific complaint on appeal, the Court cannot deal with an alleged infringement of Section 10(1) of the Act. However, Section 10 of the Act obliges an employer to inform fixed-term employees in relation to vacancies which become available so to ensure that fixed-term employees have the same opportunity to secure a permanent position as other employees.
Section 10 (1) provides:
- (1) An employer shall inform a fixed-term employee in relation to vacancies, which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.
Section 13: Penalisation
The Complainant alleged that the Respondent penalised him by terminating his employment on 5th May 2008 in order to avoid granting him a contract of indefinite duration.
The Law Applicable
Section 13 (1) (d) states:
13 (1) An employer shall not penalise an employee -
- (d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9 (3)
This paragraph renders unlawful a dismissal which is connected with the purpose of avoiding a fixed-term contract being deemed to be one of indefinite duration in accordance with Section 9(3). There is, however, no statutory definition of dismissal for the purposes of the Act.At common law the term “dismissal” means the unilateral termination of a contract of employment by the employer, with or without notice. Hence, at common law, where a fixed-term contract comes to an end in the circumstances specified in the contract there is no dismissal. The contract is discharged by performance and not at the unilateral instance of the employer.
The Respondent disputed this allegation stating that there was no dismissal, that the Complainant’s fixed-term contract came to an end by effluxion of time and he was immediately redeployed into a permanent position as Assistant Engineer. It stated that he was employed under a series of fixed-term contracts to work on specific project works as a Resident Engineer. The fixed-term contract, which was designed to carry out work on the Red Barns Road works, expired on 5th May 2008 and when those works came to an end he was declared redundant. The Respondent stated that there were no further projects available, the Complainant was not replaced and both parties accepted that there was no other Resident Engineer with shorter service who should have been selected ahead of him.
The Respondent stated that the agreement referred to above was negotiated on his behalf by his trade union official. Consequently, rather than being made redundant, he was redeployed with immediate effect in a permanent capacity as an Assistant Engineer.
Section 13(1)(d) of the Act operates where a dismissal is partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under Section 9 (3) of the Act. The Court has found that it is estopped from investigating a claim under Section 9 (3) of the Act.
However this point is moot as in any event the Court is of the view that there was no break in service between the termination of the Complainant’s fixed term contract and his immediate redeployment on a permanent contract of employment. Therefore, it accepts the Respondent’s contention that there was no dismissal.
Applying these conclusions, the Court does not find that there was a breach of Section 13(1)(d) of the Act.
Determination
The Court finds that the Complainant’s complaints are not well-founded. The Decision of the Rights Commissioner is upheld albeit for different reasons and the appeal is disallowed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd October, 2009______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.