FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : MOUNT ST. MICHAEL'S SECONDARY SCHOOL (REPRESENTED BY PJ O'DRISCOLL & SONS SOLICITORS) - AND - ELIZABETH MORRISSEY (REPRESENTED BY BCM HANBY WALLACE SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appeal Of A Rights Commissioner's R-056853-Ft-07/DI
BACKGROUND:
2. The Employee submitted an appeal against the Decision of the Rights Commissioner to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed- Term) Work Act, 2003. A Labour Court hearing took place on 2nd September, 2009. The following is the Court's Determination:
DETERMINATION:
This is an appeal against a Rights Commissioner’s Decision by Ms. Elizabeth Morrissey. Ms. Morrissey had been employed by Mount St. Michael’s Secondary School as an Art Teacher since 2000 under a series of one year fixed-term contracts. She claimed that the School was in breach of Section 9 of the Act in not offering her a contract of indefinite duration at the expiry of her fixed term contract of employment on 1st September 2007 pursuant to the provisions of section 9(3) of the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act). Furthermore, Ms. Morrissey claimed that her dismissal on 31st August 2007 and the non-renewal of her fixed term contract from 1st September 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.
The Rights Commissioner found that the School failed to issue Ms. Morrissey with a contract of indefinite duration (CID) from 1st September 2004 contrary to Section 9(1) of the Act and awarded her €2000 compensation. Furthermore, he decided that Ms. Morrissey should be reinstated with effect from 1st September 2007 on terms and conditions no less favourable than those which applied during the school year 2003-2004.
The Rights Commissioner found that there was a breach of Section 13 of the Act, but did not award compensation in respect of this breach.
Ms. Morrissey appealed the Rights Commissioner’s Decision on the grounds that he had erred in deciding that the appropriate remedy under section 9 was to reinstate her on terms and conditions applicable at 2003/2004. Secondly, she contended that he erred in deciding not to award her any remedy under section 13 of the Act. Mount St. Michael’s Secondary School did not appeal the Rights Commissioner’s Decision.
For ease of reference Ms. Morrissey is referred to as the "Complainant" and Mount St. Michael’s Secondary School is referred to as the "Respondent".
The Facts
The Complainant was employed by the Respondent to teach Art since 2000 under successive fixed term contracts to work a certain number of hours during the following school years:
September 2000 - June 2001 1 hour 20 minutes
September 2001 - June 2002 1 hour 20 minutes
September 2002 - June 2003 1 hour 20 minutes
September 2003 - June 2004 4 hours
September 2004 - June 2005 5 hours 20 minutes
September 2005 - June 2006 5 hours 20 minutes
September 2006 - June 2007 2 hours and 40 minutes*
The 2006/2007 contract, dated 26th September 2006, stated : -
- “You are employed as a fixed term teacher to cover 2 hours and 40 minutes granted by the Department of Education and Science on a concessionary basis for the school year 2006 – 2007. These hours are granted for this academic year only.”
*The 2006/2007 contract provided for 2 hours and 40 minutes working per week, however at the commencement of that academic year, the Complainant was requested to undertake the duties of the permanent Art teacher who was absent on sick leave. The Complainant then secured the services of a substitute to undertake her contracted 2 hours and 40 minutes and she worked the 18 hours per week (full time hours) for that year.
In January 2007 the absent Art Teacher applied for retirement and subsequently the position was advertised, Applicants were informed that the new contract would not be a permanent contract but a fixed term contract of one year. The Complainant applied for the position but was unsuccessful. Her employment terminated at the end of June 2007 and was not renewed in September 2007.
The Complainant’s Case
Mr. Marcus Dowling B.L. for the Complainant submitted that she was entitled to a contract of indefinite duration (CID) pursuant to Section 9 of the Act with effect from 1st September 2007. Furthermore, he argued that the Complainant should have been awarded, without interview, the art teacher position that was filled in September 2007 or in the alternative she should have been reinstated on a contract of indefinite duration with the hours she had been working in 2006/2007, i.e. 18 hour per week.
The Respondent’s Case
Mr. Eoin Clifford B.L. for the Respondent at the outset of the hearing conceded that the Complainant was entitled by operation of law to a CID. In that regard he concurred with the decision of the Rights Commissioner and therefore held that she was entitled to work the same number of hours on a CID that she had been contracted to work in 2006/2007, i.e. 2 hours and 40 minutes. He held that the entitlement to a CID only changed the Complainant’s tenure from that of being a fixed term employment to one of indefinite duration, from 1st September 2007. In that regard he citedMinister for Finance – v- McArdle 2007 18 ELR 165where Laffoy J. held that the effect of section 9(3) was that where an employee is given an renewed fixed term contract in contravention of section 9(1) or 9(2) then section 9(3) operates therewith to rendervoid ab initiothe term of the contract which purports to provide for its expiry by effluxion of time or the occurrence of an event. Therefore, he contested the Complainant’s assertion that she was entitled to a CID to work the hours she worked when she was covering for the permanent Art teacher who was absent on sick leave.
Mr. Clifford explained that the permanent Art teacher (Ms. L) went on sick leave in September 2006 and the Complainant substituted for her, working 18 hours per week. As it was not possible to also work her contracted (2 hours and 40 minutes per week), she entrusted those hours to a substitute. At the beginning it was not clear how long Ms. L was going to be out for, but in fact she was out for the full year. In January 2007 Ms. L applied for retirement. M. Clifford submitted that the number of hours the Complainant worked that year were entirely due to the circumstances involved and therefore it cannot be the case that the very circumstances of working those particular hours would effectively give her a better CID than she already had by operation of law.
Furthermore, Mr. Clifford contested the claim that the Respondent had penalised the Complainant and disputed her contention that she was automatically entitled to fill the vacant position in September 2007. He held that the fixed-term position held by the Complainant up to 31st August 2007 and the position taken up by the successful applicant from 1st September 2007 were not identical, as the Complainant’s contractual entitlement for that year was 2 hours and 40 minutes. He disputed that there was a clear expectation that the permanent Art Teacher’s position would continue indefinitely. The school decided not to replace the vacant Art teacher position on a permanent basis, but instead decided to fill it on a (full time) fixed term basis.
Mr. Clifford respectfully submitted that section 13 is intended to deal with a situation where the employee is dismissed during the course of a fixed term contract rather than a situation where a contract is not renewed which is dealt with by section 9.
Section 13(1) of the Act
The Law Applicable
In his Decision the Rights Commissioner makes no finding under 13 of the Act, this Section provides as follows:
(1) 13.—(1) An employer shall not penalise an employee—
- for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,
for having in good faith opposed by lawful means an act which is unlawful under this Act,
for giving in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or
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).
(2) For the purposes of this Section, an employee is penalised if he or she—
is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or
is the subject of any other action prejudicial to his or her employment.
The Court’s Conclusions
The Court has read and carefully listened to the submissions, both written and oral. The gist of the Respondent’s case is that the Complainant’s fixed term contract was not renewed from September 2007 as the Department of Education and Science(herein referred to as “the Department”)did not sanction concessionary hours for the teaching of Art from that date.
While the Respondent now accepts that by operation of law the Complainant became entitled to a CID with effect from 1st September 2004. The purpose of the Contract was to teach those concessionary hours granted by the Department in addition to the hours filled by the full time teacher. It had submitted that the final fixed-term contract issued to the Complainant was for the expressed purpose of providing 2 hours 40 minutes for the teaching of Art, granted by the Department on a concessionary basis for the school year 2006-2007 and was not for the purposes of filling in for a colleague on sick leave. The latter situation only arose as an addendum to her substantive contract and was subject to expiry on the return to work of the colleague or as happened in this case the colleague’s decision to retire and the consequent filling of the position by the Respondent on a different basis.
The Respondent told the Court that in September 2007 it decided to allocate the concessionary hours sanctioned by the Department for that academic year, to other teachers - those who had already qualified for CID’s – and excluded the Complainant as, at the time it was of the view that she did not qualify for a CID due to her broken service.
The Complainant’s Union representative told the Court that concessionary hours are granted on a subject basis by the Department, as applied for by the School. He disputed the Respondent’s contention that it had the discretion to decide on the division of the concessionary hours.
The Respondent also stated that as there was a diminishing requirement for Art classes in the school, it decided not to renew her contract in September 2007. Hence it argued that the termination of her employment was unconnected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under Section 9(3) and therefore there was no contravention of Section 13 of the Act.
The difficulty with this proposition is that it was fundamentally flawed, as by operation of law, the Complainant became entitled to a CID as far back as 1st September 2004 (the Respondent belatedly admitted this point). While the intention of the Respondent was to give teachers on CID’s the concessionary hours, if it had recognised her entitlement to a CID she would have been included in the roster for the concessionary hours and her employment would not have been terminated.
Where a fixed-term contract is renewed in contravention of section 9(1) or 9(2), subsection (3) of that section provides, in effect, that the offending term is severed and the contract becomes one of indefinite duration by application of law. This Court so held in Determination FTD063-State Laboratory and McArdle,a decision upheld on appeal by Laffoy J inMinister for Finance v McArdle[2007] 18 ELR 165.Therefore, the Court must take the view that that the non-renewal of her fixed-term contract constitutes a dismissal for the purposes of the Act,contrary to Section 13 of the Act.
As was pointed out by Laffoy J. inMinister for Financev McArdle, in such circumstances the contract continues with its original terms in tact except for the term providing for its termination by effluxion of time or the occurrence of an event.
Therefore, the Court cannot accept Counsel for the Complainant’s view that by virtue of section 9 of the Act she is entitled to work the hours vacated by Ms. L’s resignation, on a contract of indefinite duration basis.
The Court finds that the non-renewal of the Complainant’s contract on its expiry in August 2007 can be construed as penalisation under section 13 (1) (d) of the Act.
Determination
The Court determines that the Complainant should be reinstated on a contract of indefinite duration with effect from 1st September 2007 on the hours she was contracted to work from the date she became entitled to such a contract, September 2004, i.e. on 5 hours and 20 minutes per week. As a decision to reinstate the Complainant recognises her loss of earnings the Court does not propose to award additional compensation for the contravention under Section 9 of the Act.
The Court has considered the level of detriment the Complainant suffered as a result of the Respondent’s contravention under Section 13(1) (d) of the Act and has decided that the appropriate award is one of compensation. The Court directs the Respondent to pay the Complainant compensation in the amount €12,000 for this breach. To this extent the appeal is upheld and the decision of the Rights Commissioner is varied.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd October, 2009______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.