FTD109

Facts

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

The appointment of persons to certain position, including that of Hospital Consultant, is governed by the Local Authorities (Officers and Employees) Act 1926, as amended. This statute provides, in effect, that the Respondent cannot appoint a person to a permanent post to which the Act relates other than on the recommendation of what is now the Public Appointments Service.

The Complainant was continuously employed by the Respondent as a Consultant in Emergency Medicine on a series of fixed-term contracts between 2nd August 2004 and 6th April 2009 when his employment terminated. He was initially employed at Cavan General Hospital following an approval given to the Respondent to fill a post of Consultant in Emergency Medicine by Comhairle na hOspideal in March 2003. In or about September 2003 another medical practitioner was employed to fill the post on a temporary basis but resigned in June 2004. The Complainant was then recruited following a competition. The post was advertised but not filled.

A competition was held to fill the post on a permanent basis and a candidate was selected but not appointed. It was expected that the Complainant’s appointment would be of short duration pending the successful candidate taking up the appointment. However the successful candidate declined to accept the appointment. The post was again advertised in February 2005. The Complainant applied for the post but was unsuccessful.

In or about September 2006 the Respondent received a recommendation from the Public Appointments Service for the appointment of a selected person to the post which the Complainant then held. That person was appointed and took up the post on 1st May 2007. The Complainant was then informed by the Respondent that his employment would be terminated on 30th June 2007 at the expiry of his then current fixed-term contract. The Complainant took issue with that decision and instructed his Solicitor in the matter. Correspondence ensued between the Complainant’s Solicitors and the Respondent. The Complainant then applied for and obtained another appointment on a further fixed-term contract at Letterkenny General Hospital. The Complainant applied through an employment agency for this post. The appointment was to provide cover for another doctor who was temporarily absent due to holidays and parental leave.

In or about December 2007 the Respondent received approval for two further A&E Consultant posts in Cavan General Hospital. It was decided that pending the filling of these posts on a permanent basis one of them would be filled temporarily. The Complainant applied for one of these temporary vacancies, again through an employment agency, and was reassigned to Cavan General Hospital with effect from 2nd January 2008. Whereas the prior contracts under which the Complainant was engaged were fixed in terms of their duration, this latter contract was expressed to be fixed in terms of its purpose, namely until the post was filled by a permanent appointee. While the Complainant took up this appointment in January 2008 he was not furnished with a written contract of employment until 23rd May 2008. By letter dated 23rd May the General Manager of the Respondent wrote to the Complainant in the following terms: -

• “I am pleased to formally convey an offer of specified-purpose employment to you with the Health Service Executive, Dublin North East Area. The position on offer is that of Temporary Consultant in Emergency Medicine at Cavan & Monaghan Hospital Group. The commencement date is 2nd January 2008. This vacancy has arisen due to reorganisation of Emergency Medicine services in the North East region, and particularly in the Cavan & Monaghan Hospital Group. The circumstances which will bring an end to your contract will be the filling of this vacancy in a permanent capacity. I have enclosed a specified purpose contract of employment. Please study these documents carefully, so as to ensure that you fully understand the basis upon which employment is being offered. You will be aware that permanent consultant posts are recruited through the Public Appointments Service. The permanent post is currently advertised and the closing date is 13th June 2008. An application form and full details may be obtained at https;//www.publicjobs.ie– under the heading of Consultant Posts.
  
  If you wish to accept this offer of employment, please sign both copies of the contract of employment and return to me at your earliest convenience. Should you require clarification on any contractual provision, I am happy to be of assistance.
  
  I enclose two copies of your Specific Purpose Employment Contract”

Position of the parties

The Complainant

The Complainant submitted that on 1st August 2008 he completed four years of continuous fixed-term employment with the Respondent. He contends that by operation of s.9(3) of the Act his contract became one of indefinite duration by operation of law. It was further submitted on behalf of the Complainant that there were no objective grounds justifying the extension of his fixed-term employment within the statutory meaning of that concept. It was also submitted on the Complainant’s behalf that in dismissing him in April 2009, the Respondent was motivated by a desire to prevent his fixed-term contract becoming one of indefinite duration by operation of law.

On the question of objective justification for the continuance of the Complainant’s fixed-term employment beyond the four year period permitted by s.9(2) of the Act two related submissions were advanced. Firstly it was submitted that reliance on a putative obligation on the Respondent to fill a permanent post by competition pursuant to domestic legislation cannot amount to objective justification within the statutory meaning ascribed to that term. In support of that proposition Counsel for the Complainant relied on the dicta of Leffoy J inAhmed v Health Service Executive[2006] IEHC 245 and on the determination of this Court inUniversity College Hospital Galway v Awan[2008] 19 ELR 64.

Secondly, in so far as the Respondent placed reliance on the objective pursued by the domestic legislation, Counsel advanced the argument that on the facts of the instant case this could not meet the established three tiered test for objective justification inherent in s.7 of the Act. In that regard it was submitted that the stated desire of the Respondent to appoint the best available candidate for appointment to the post was a disproportionate and inappropriate means of achieving the aim in view because, it was submitted, it took no account of the Complainant’s entitlement under the Act to have a contract of indefinite duration having completed four years of fixed-term employment. In support of this point the Complainant relied on the determination of this Court inHealth Service Executive v Prasad(FTC/05/4 Determination No. 062). It was further submitted that it was unnecessary in circumstances where the Complainant was qualified to fill the post. Finally it was submitted that the Oireachtas could have excluded posts such as that in issue in this case from the ambit of the Act but had chosen not to do so.

With regard to the time limit issue, Counsel submitted that what was in issue was the Respondent’s refusal to recognise the permanent nature of the Complainant’s employment by operation of s.9(3) and that this was a continuing contravention of his statutory rights. In the alternative, the Complainant applied to the Court for an extension of time in which to bring his complaint pursuant to s. 14(4) of the Act. The reasonable cause relied upon was that it only became clear in January 2009, when he was put on notice that his employment would terminate when the proposed appointee took up duty, that the Respondent was not recognising that his fixed-term contract had become one of indefinite duration by operation of law.

The Respondent

The Respondent first objected to the jurisdiction of the Court on the basis that the within complaint was presented outside the time limit prescribed by s. 14(3) of the Act. It was submitted that in so far as the Complainant alleged a breach of s.9(3) of the Act arising from the Respondent’s failure to award him a contract of indefinite duration, any such breach would have occurred after he had completed four years of continuous fixed-term employment and that this occurred on 2nd August 2008. It was submitted that the Complainant presented his complaint on 25th March 2009 whereas the six month time limit prescribed by s.14(3) expired on 1st March 2009.

Without prejudice to its submission on the time limit, the Respondent accepted that the Complainant was continuously employed on fixed-term contracts for more than the four year period normally permitted by s.9(2) and that this created aprima facieentitlement to a contract of indefinite duration. The Respondent contended, however, that there were objective grounds justifying the extension of the Complainant’s fixed-term employment beyond the period referred to in s. 9(2) and the extension was thus saved by s.9(4) of the Act.

The Respondent accepts that it cannot rely solely on domestic legislation which requires public bodies, such as the HSE, to make certain appointments from persons nominated by the Public Appointments Service as providing objective grounds for not employing the Complainant on a contract of indefinite duration. Rather, the objective ground upon which it relies is that it sought, through the selection process of the Public Appointments Service, to obtain the best possible candidate to fill the permanent post. Counsel for the Respondent submitted that in the context of the health service in particular this constitutes best practice and is a legitimate aim of the Respondent. It was further submitted that the appointment of the Complainant to the post in a temporary capacity, so as to facilitate the selection process, constituted an appropriate and necessary means of achieving that legitimate aim.

In its submission to the Court the Respondent stated that the objective justification upon which the Respondent relies is established in the following circumstances: -

• “ (i) The Complainant was not continuously employed in Cavan General Hospital for a period in excess of four years.(ii) The Complainant’s employment with Cavan general Hospital ended at the end of June 2007 after a period short of three years.(iii) The Complainant then applied for, via an external recruitment agency and was successful in securing a temporary position for six months as a locum consultant in emergency medicine at Letterkenny General Hospital covering annual and parental leave.
  
  (iv) The Complainant applied via an external recruitment agency for a new position of temporary consultant for the specified purpose of providing cover pending the appointment of two permanent consultants in Cavan General Hospital and he commenced in January 2008.
  
  (v) The specified purpose was made clear and explicit to the Complainant from the outset of his employment and was the reason for the termination of his employment.
  
  (vi) The temporary consultant position was created by the Respondent to ensure that a competitive recruitment process could be pursued and concluded for the best possible candidate for the position of permanent consultant.
  
  (vii) The specified purpose was undergone and completed and the result of the competitive selection process was the recruitment of two best candidates out of that competition.
  
  (viii) The commencement of the employment of the second of the two consultants selected as a result of that selection process resulted in the termination of the Complainant’s employment in accordance with his specified purpose contract.”

Time limit

This point was not raised before the Rights Commissioner. Nevertheless, in a de novo hearing of the case the Respondent is entitled to raise it at the hearing of the appeal.

Section 14(3) of the Act provides, in effect, that a complaint alleging a contravention of the Act must be presented within the period of six months from the date of the contravention to which the complaint relates or the date of the termination of the contract of employment, whichever is the earlier. The Respondent submitted that the contravention to which the within complaint relates was its failure to provide the Complainant with a contract of indefinite duration on the expiry of his fourth year of fixed-term employment. That alleged contravention occurred, it was submitted, on 2nd August 2008. Since the Complainant presented his complaint to the Rights Commissioner on 25th March 2009, some 23 days after the expiry of the six-month period referred to in the Act, it was submitted that the complaint is out of time and statute barred.

In order to address this point it is necessary to consider the scheme of s.9 of the Act.

Section 9 provides: -

• 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.

• “ In answer to the defendant’s objection in point of law, it was submitted on behalf of the plaintiff that the jurisdiction of a rights commissioner under the Act of 2003 is strictly limited to complaints that the employer contravened a provision of that Act, which on the facts of this case is limited to the question whether the defendant acknowledged the indefinite duration, that is to say permanency of the plaintiff’s contract by operation of law.”

• (4) Notwithstanding subsection (3), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.

• It is the Court's view that in considering if reasonable cause exists, it is for the complainant to show that there are reasons which both explain the delay and afford an excuse for the delay. The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd. In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the complainant at the material time. The complainant’s failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must be a causal link between the circumstances cited and the delay and the complainant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
  
  The length of the delay should be taken into account. A short delay may require only a slight explanation whereas a long delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstances to exercise its discretion in favour of granting an extension of time. Here the Court should consider if the respondent has suffered prejudice by the delay and should also consider if the complainant has a good arguable case.

The substantive case

The law

The Act was enacted to give effect in domestic law to Directive 1999/70/EC concerning the Framework Agreement on Fixed-Term Work concluded by ETUC,UNIC and CEEP. The purpose of the Framework Agreement is set out at Clause 1 thereof as follows: -

• Purpose
  The purpose of this framework agreement is to:

• 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 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:

• (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 :

• 61
  The Framework Agreement proceeds on the premise that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see paragraphs 6 and 8 of the general considerations in the Framework Agreement).
  
  62
  Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold, paragraph 64), whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (see the second paragraph of the preamble to the Framework Agreement and paragraph 8 of the general considerations).

• 7.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

• 
  (c) are necessary to that end.

• “ [A]ccording to settled case-law, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23).

• The mere fact that the conclusion of a fixed-term employment contract is required by a statutory provision of a Member State does not constitute an “objective reason” within the meaning of clause 5(1)(a) of the Framework Agreement on fixed-term work such as to justify the successive renewal of a fixed-term contract. The concept of “objective reasons” within the meaning of clause 5(1)(a) requires use of fixed-term contracts to be justified by the presence of specific factors relating in particular to the activity in question and the conditions under which it is carried out.
  
  “Objective reasons” refers 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 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.
  
  A national provision which merely authorises recourse to successive fixed-term contracts in a general and abstract manner by a rule of statuteor secondary legislation does not accord with those requirements.

• 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—

• the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

• 
  Section 9(4) allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene subss.(1) or (2) where there are objective grounds for so doing. However, since this provision allows a derogation from what is an important social right derived from the law of the Community it must, in the Court's view, be construed and applied strictly against the person seeking to rely on the subsection. Thus the Court must require an employer invoking subs.(4) to establish on credible evidence the factual matrix which is relied upon as constituting objective justification as that term is defined by s.7 of Act and as it is understood in the settled law of the Community.Moreover, a purposive interpretation of s.9 indicates that a respondent must establish that the reason relied upon as constituting objective grounds was the operative reason for the failure to offer a contract of indefinite duration at the time the fixed-term contract was renewed. This suggests that the respondent must at least have considered offering the complainant a contract of indefinite duration before renewing his or her fixed-term contract and decided against doing so for the reason relied

• Section 8(2) is also of considerable significance on this point. It seems to the Court that the purpose of s.8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed. On a reading of the section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under s.9(4) . Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with s.8(2) , it is apt to infer, in accordance with s.8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary.

Conclusion

General observations

It should first be observed that in this case the Respondent appears not to have complied with s.8 in any meaningful sense. The Complainant’s fixed term employment was renewed on 2nd January 2008 and the statement in writing furnished by the Respondent in respect to this renewal was issued on 23rd May 2008, in terms recited earlier in this Determination. Section 8(1) requires that the statement setting out the circumstances in which the employment will terminate must be issued ‘as soon as practicable’ Further, s.8(2) clearly requires that the statement to which it refers must be given, at the latest, concurrent with the commencement of the contract.

The statement furnished to the Complainant did set out the basis upon which the contract would terminate, namely on the making of a permanent appointment. This letter appears to ignore the fact that the Complainant’s fixed-term employment was being renewed and its terms are more suggestive of an offer of first-time employment. Of particular significance is the absence of any detailed explanation as to why the Complainant was being offered a fixed-term contract rather than one of indefinite duration. The mere statement that the position would be filled through the Public Appointments Service is not an objective reason as to why that should be so. The terms of the letter imply that the Respondent considered it axiomatic that the post would be filled through the Public Appointments Service. This suggests that its belief in that regard was grounded in a belief that it was constrained by the provisions of the 1926 Act, as amended

However, the Complainant did not pursue the apparent breach of s.8 of the Act in this appeal. In consequence it is not a matter that should be considered further, other than to draw appropriate inferences in accordance with s.8(3) of the Act (on this point see the recent decision in Russell vMount Temple Comprehensive School, Unreported,High Court,Hanna J, 4th December 2009).

In his submissions to the Court Mr Ward SC was careful to point out that the Respondent did not seek to rely solely on the provisions of domestic legislation as providing objective grounds for extending the Complainant’s fixed-term employment beyond the period ordinarily permitted by s.9(2) of the Act. It relied on the requirement to obtain the best possible candidate for the permanent posts in issue and its decision to do so by utilising the process provided for by the 1926 Act as amended. This, it was submitted, is particularly appropriate in the appointment of a hospital consultant. In advancing that submission reliance was placed on the circumstances surrounding the complainant’s final fixed-term appointment in January 2008. It was submitted that the objective grounds for appointing the Complainant to a fixed-term contract in the nature of a specified purpose contract was the need to provide cover while the process of selecting a person for permanent appointment was in train.

The appointment of the Complainant on a further fixed-term contract in January 2008 cannot logically be separated from the decision to fill the post which he then occupied by competition through the Public Appointments service. If, as is undoubtedly the case, the Respondent had actual or constructive knowledge that the duration of the employment offered to the Complainant on 2nd January 2008 would extend beyond the fourth anniversary of his first fixed-term contract it should have known that the terms of that contract would,prima facie,contravene s.9(2) of the Act. As was pointed out inKhan,the Respondent should at least have considered offering the complainant a contract of indefinite duration before renewing his fixed-term contract and decided against doing so for the reason relied upon as constituting objective grounds. There was no evidence tendered to the Court to suggest that the Respondent gave any consideration to appointing the Complainant to the post in issue on a permanent basis as an alternative to filling the post by public competition. In these circumstances it is reasonable to infer that it proceeded on the basis of a policy of adherence to the provisions of the 1926 Act.

The gist of the submissions advanced on behalf of the Respondent is that it is not the Act of 1926, as amended,per se, that is being relied upon but rather the policy which underlines that provision, at least as far as the health service is concerned. It is clear from the decision of the ECJ inAdenelerand from that of the High Court inAhmed v Health Service Executivethat a provision of domestic law cannot provide objective justification for derogating from the requirements of the Act of 2003. The Court must have some doubt as to whether that clear authority can be overcome by recasting the proposition which it rejected in terms of the presumed rationale for the domestic law provision. However the Court should not be understood as regarding this as dispositive of the case.

The purpose of the 1926 Act was to take the appointment of persons to positions in Local Authorities out of the hands of the Local Authorities themselves. That system was extended by subsequent amendments to all public appointments including appointments in the former Health Boards, now the HSE. The system is clearly intended to ensure openness and transparency in the making of public appointments on merit alone. That system is clearly laudable and in the public interest. It is, however, subject to the Act of 2003 and cannot in itself be relied upon to defeat a fixed-term employee entitlement to a contract of indefinite duration in accordance with the Act.

Moreover, the proposition advanced by the Respondent in this case is potentially of wide import beyond the medical profession or indeed the health service. It could be said with equal cogency that in respect to many posts in public service management and administration it is crucial that the best possible candidate be appointed. If it were to be accepted that this consideration in itself constituted an objective reason for derogating from s.9(1) or 9(2) of the Act the protection afforded by the Framework Agreement, and the Act, to fixed-term employees across a wide spectrum of the public service would be rendered nugatory.

It should also be noted that in its submissions to the Rights Commissioner, and in its outline written submission to this Court, the Respondent called into question the Complainant’s qualifications for the post in issue on the basis that he was not entered in the register of medical specialists (special division of the register in the speciality of emergency medicine). The Complainant denied that he lacked appropriate qualification, or registration, and contends that his qualification and registration status are equal to at least one of the doctors appointed to the posts in issue. It was conceded on the Complainant’s behalf that if he lacked qualifications for the post his claim could not succeed.

At the hearing of the appeal this point was not pursued by the Respondent. Consequently the Court must proceed on the basis that the Complainant was qualified for appointment to the disputed post.

Objective justification in the instant case.

Having set out its general observations on the points taken by the Respondent in advancing its plea of objective justification the Court should now consider, by reference to the facts of the instant case, if the reasons relied upon meet the statutory test inherent in s. 7 of the Act.

As earlier observed there are three limbs to this test, namely, that the impugned measures: -

(a) correspond to a real need on the part of the undertaking,

• 
  (c) are necessary to that end.

Legitimate objective

The desire to obtain the most suitable available person is, in itself, a legitimate objective and is not related to the Complainant’ status as a fixed-term employee.

Are the means chosen appropriate?

On the authority ofLummers, the application of this aspect of the test requires considerations of proportionality. This required the Respondent to put into the balance its needs and requirements with the needs and rights of the Complainant. The Respondent needed a suitable and qualified doctor to provide the services of a consultant in emergency medicine. The Complainant was such a person. The Respondent wished to open the post in the hope of obtaining the service of a more suitable person. This must be balanced against the Complainant’s right to stable employment with all that that entails and the fact that he would exceed a period of four years of temporary and insecure employment during the currency of the contracts which he was being offered. He had performed duties similar to those entailed by the post in issue without complaint by the Respondent, in both Cavan and Letterkenny, over a prolonged period. There was no reason to believe that he would not have continued to perform those duties satisfactorily. Further, it must have been appreciated that the opening up of the post to competition could, potentially at least, result in the Complainant losing his employment.

It is for the Respondent to make out every element of the defence relied upon and in particular to show that it gave proper and adequate consideration of all material factors in deciding not to offer the Complainant a contract of indefinite duration. There is no evidence to suggest that the Respondent gave any or any adequate consideration to the rights and interests of the Complainant in deciding not to appoint him to the post permanently. Accordingly it must be concluded that its decision was disproportionate and, therefore, inappropriate.

Are the means chosen necessary?

Having found that the failure to offer the Complainant a contract of indefinite duration it is not strictly necessary to consider the final limb of the test. However, for the sake of completeness, the Court should set out its views on this point.

This limb of the test requires the Respondent to show that there were no alternative means available, having a less deleterious effect on the Complainant, by which the object in view could be achieved. It is noteworthy that the Complainant was first employed by the Respondent following a competition. On his appointment to the post in Letterkenny, and on his second appointment to Cavan, the services of an employment agency were engaged, presumably for the purpose of obtaining the best available candidate for those posts. It is to be further assumed that at the time of his initial and subsequent appointments the Complainant was the best available candidate.

In any occupation or profession a person can be employed on the basis that they are then the best available candidate. Over time other more suitable persons will inevitably become available. Short of proven incompetence that would not be a justifiable reason for the dismissal and replacement of an employee, nor would it be an acceptable reason for requiring an employee to re-apply for his or her position from time to time.

In all the circumstances of this case the Court has not been satisfied, as a matter of probability, that the failure of the Respondent to appoint the Complainant on a contract of indefinite duration was necessary so as to ensure a high standard of care to patients within its charge.

Conclusion on objective justification

For all of the reasons set out above the Respondent has failed to discharge the burden of showing that there were objective grounds for not granting the Complainant a contract of indefinite duration.

Claim of penalisation

Here the Complainant contends that he was dismissed by the Respondent for the purpose of avoiding his fixed-term contract becoming one of indefinite duration. Such a contention does not sit easily with his claim that he had already obtained such a contract by operation of law. In the Court’s view this aspect of the claim is unsustainable on the facts of the case and in light of the conclusions reached on the other element of the complaint. Accordingly the decision of the Rights Commissioner to uphold the claim of penalisation cannot stand and is set aside.

Determination

The Court is satisfied that the Complainant became entitled to a contract of indefinite duration by operation of law and that he held such a contract at the date of his dismissal. The Rights Commissioner directed that he be reinstated in the post on a contract of indefinite duration. In the Court’s view that is the appropriate form of redress. However in respect to arrears of remuneration arising from that decision there should be an offset of the amount earned by the Complainant in other employment since his dismissal.

The decision of the Rights Commissioner in respect of the Complainant’s entitlement to a contract of indefinite duration is affirmed and that aspect of the appeal is disallowed.

The decision of the Rights Commissioner in holding that the Complainant was penalised is set aside as is the award in that regard.

The decision of the Rights Commissioner is varied accordingly.



Signed on behalf of the Labour Court



Kevin Duffy
20th April 2010______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.