FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : TRINITY COLLEGE DUBLIN (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS CONFEDERATION) - AND - DR. FIONNUALA CONWAY (REPRESENTED BY KEALIN IRELAND) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appeal of a Rights Commissioner's Decision FT81456/09/MR
BACKGROUND:
2. The worker's case is that she has been employed by the College on a series of continuous fixed-term contracts since 2001. The dispute concerns whether she was entitled to be appointed, without competition, to a permanent post of Lecturer/Course Director in Music and Media Technology. The College's position is that the worker would have to compete for the position. It states that the worker was employed mainly as a Casual Lecturer from October, 2001, until September, 2006 when she took on the role of Lecturer. This appointment was to replace a colleague who was absent due a serious accident. The contract was extended on two occasions to facilitate her colleague's return to full-time work. When the colleague did return the College continued to employ the worker as Lecturer/Course Director and subsequently sought approval for the continuation of this (additional) post on a contract of indefinite duration. This was approved by the College's Personal and Appointments Committee. The post was advertised in July, 2009. The worker applied for the position but was unsuccessful. She referred her case to a Rights Commissioner claiming entitlement to the post under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). Two hearing took place - one in September, 2009 and a second in November, 2009. The Rights Commissioner found against her in relation to Section 9 of the Act but in her favour in relation to Section 8 and awarded her compensation. His decision was as follows:
"In accordance with the terms of Section 14(2) of the Protection of Employees (Fixed -Term Work) Act, 2003, I hereby declare that this complaint was well founded in respect of Section 8 of the Act and I now require Trinity College Dublin to pay Dr. Conway compensation of €15,000 in respect of this contravention of the Act."
The worker appealed the Rights Commissioner's decision to the Labour Court on the 21st January, 2010, and a Labour Court hearing took place on the 22nd April, 2010. In the meantime, following a review of course finances, the College had determined that the post of Lecturer/Course Director was unsustainable. It believes that this has, in effect, made the worker's case redundant.
DETERMINATION:
The issue comes before the Court pursuant Section 15(1) of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) by way of an appeal of a Rights Commissioner’s Decision that was issued on 15th December 2009. For ease of reference the parties shall be referred to by the same designations as applied before the Rights Commissioner namely Complainant and Respondent.
The Complainant had alleged that the College had breached her rights under Sections 8 and 9 of the Act. The Rights Commissioner found that the Respondent had failed to give the Complainant a statement in writing setting out 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” of the fixed-term contract contrary to Section 8 of the Act and awarded her €15,000 in compensation.
The Rights Commissioner found against the Complainant under Section 9 of the Act on the grounds that the College had acknowledged her entitlement to a contract of indefinite duration with retrospective effect to 1st April 2005. The Complainant had claimed an entitlement to a Contract of Indefinite Duration with effect from a later date on a more favourable salary scale and on superior terms and conditions of employment than those that accrued to her in 2005.
The Complainant appealed the decision made by the Rights Commissioner under Section 9 of the Act. The Respondent did not appeal the Rights Commissioner’s Decision.
The Act
The Act transposes into Irish Law Directive No 1999/70/EC of June 28 1999 of the Council of the European Communities concerning the Framework Agreement on Fixed-Term Work concluded by the ETUC, UNICE and CEEP.
Section 9 (1) of the Act states:
- 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.
- 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.
Subsection 9(3) states:
- 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.
Background:
The Complainant was originally employed by Trinity College Dublin in October 2001, initially, on a series of fixed term contracts that were verbal in nature. Both sides agreed the duration and extent of each of the contracts. The Complainant received her first written contract of employment on 9th May 2005 when she was offered a post in the Department of Computer Science as a Summer Intern. On 1st August 2005 she received another verbal contract for work as a Lecturer that was due to expire on 30th June 2006. In July 2006 she was appointed as a research assistant in the Engineering Department on a fixed term contract that was due to expire on 30th September 2006. On 1st October 2006 she was appointed to the post of Lecturer/Course Director Music and Media on a fixed-term contract that was due to expire on 1st July 2009. This was an emergency replacement appointment that arose out of a serious accident that incapacitated a colleague within the Department. She was reappointed to the same post on the same basis on 1st August 2007 for one year and again on 1st August 2008. This contract was due to expire on 31 July until 2009. At the time these contracts were issued to her the College made no reference, in writing or otherwise, to “objective reasons” for not offering her a contract of indefinite duration. The College at this time decided to create another post and renewed the Complainant’s fixed term contract pending approval for the permanent filling of the vacancy. All permanent vacancies within the University are filled by open public competition following approval of the relevant authorities. On this occasion the fixed-term contract issued to the Complainant purported to be a specific purpose contract to expire when a permanent Lecturer was appointed to the Course.
The College advertised the post and the Complainant was not successful in the subsequent competition. Thereafter the College, for funding reasons, decided to discontinue the course on which the Complainant was a lecturer and make the Complainant redundant.
The Complainant submitted that she was entitled to a contract of indefinite duration at the grade of Lecturer/Course Director or in the alternative at the grade of Lecturer in accordance with Section 9 of the Act.
It was common case that the Complainant was an employee of the College and that her employment commenced on October 1st 2001 as a Lecturer on the Music and Media Technologies Program.
Matters before the Court: -
It was common case that the Complainant became entitled to a Contract of Indefinite Duration on 1st April 2005.
As the contract agreed on the 1st of April 2005 was verbal in nature there was a dispute between the parties as to what terms should apply to the “Contract of Indefinite Duration” that came into being by operation of law.
The Complainant submitted that she was entitled to a contract of indefinite duration based on the contract issued to her in August 2009 at the grade of Lecturer/Head of College on a salary of €57,000 per annum.
Position of the Parties:
Ms Kealin Ireland, (Ireland Human Resources) on behalf of the Complainant, submitted that she had been employed, on a series of uninterrupted fixed term contracts commencing in 2001. In accordance with Section 9 of the Act, Ms. Ireland submitted that the Complainant was entitled to a Contract of Indefinite Duration by operation of law at the grade of Lecturer/Course Director or in the alternative at the grade of Lecturer. She submitted that the specific purpose contract had no standing as by that time the Complainant had acquired a right by operation of law to a contract of indefinite duration. Ms Ireland submitted that the Complainant first became entitled to a contract of indefinite duration in 2005. Her subsequent employment on a series of fixed term contracts at the grade of Lecturer/Course director again exceeded four years and accordingly she was entitled to a further contract of indefinite duration at the at the grade of lecturer/course director or alternatively at the grade of lecturer on the relevant salary scale. She submitted that, up until the final contract, the Respondent never, in any fixed-term contract prior to the last one, made reference to any“ objective justification” for not issuing a Contract of Indefinite Duration to the Complainant. By the time the final contract was issued, she submitted the Complainant had acquired a right to a contract of indefinite duration and the clause had no legal effect.
Respondent’s position: -
IBEC on behalf of the Respondent, submitted that the Complainant had become entitled to a Contract of Indefinite Duration on 1st April 2005 at the grade of Casual Lecturer which contained a commitment for two to four teaching hours per week. The Respondent submitted that it was prepared to meet its obligations under this contract.
The Respondent did not appeal any other aspect of the Decision of the Rights Commissioner.
Court’s Considerations and Findings: -
It is common case that once the Complainant’s contract was renewed on the 1st April 2005 she became entitled to a contract of indefinite duration .
Section 9(3) of the Act provides that “where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract shall be deemed to be a contract of indefinite duration.
In McArdle v Minister for Finance this Court s interpreted this to mean
“That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of sub-sections (1) or (2). In such a case sub-section (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration.
The High Court approved of this interpretation in McArdle v Minister for Finance [2007] IEHC 98.
Thus the Contract given to the Complainant on 1st April 2005, by operation of law, became a “Contract of Indefinite Duration”. All of the terms of that contract subsist with the exception of the term that purports to provide for its expiry by effluxion of time. The Complainant is entitled to a contract of indefinite duration on the same terms as the contract issued to her on 1st April 2005.
The Complainant however submitted that contractual terms to which she is entitled are those which pertained to the fixed term contract issued to her on the 1st August 2009.
The Respondent disputes this on the basis that the only terms to which she is entitled as a matter of law are those to which she became entitled under the contract of on 1st April 2005.
The situation is complicated by the fact that the Respondent did not, at that time, acknowledge the Complainant’s entitlement to a contract of indefinite duration on 1st April 2005. Instead it purported to issue her with a series of further fixed-term contracts until she was advised in 2009 that she would be made redundant in 2010. Equally the complainant did not, in 2005, assert her right to a contract of indefinite duration. She was content to let matters lie until after her failure at interview and until the subject of her redundancy became relevant.
As a matter of general principle the Court’s role is to place a successful Complainant, as far as possible, in the position that he or she would have been in had they not suffered a legal wrong. In addressing that point it is useful to consider what position the Complainant would now be in if the Respondent had acknowledged her permanent status in 2005.
Based on the evidence and submissions the Court is of the view that the Complainant would probably have still been appointed to cover Dr Furlong’s absence but on an acting basis. Whatever her employment status she would still have had to compete for the new position in the Department and the Colleges view of her as a fixed term appointee had no bearing on the outcome of that interview. There is nothing in the evidence before the Court that could lead to the conclusion that if the Complainant had an acknowledged contract of indefinite duration she would have been appointed as a permanent course director. Moreover, there is no basis upon which it could be contended that had the Complainant been an acknowledged permanent employee of the Respondent the additional post contemplated would in fact have been created and filled.
Consequently the Court cannot see how the Complainant could avail of the Act so as to place her in a significantly better position than she would have been had her rights under s.9 not been infringed.
Neither party committed to writing the details of the 2005 contract. This is a most unsatisfactory situation. The Court has reviewed the information submitted by both parties. However it has not been possible to determine the details of the relevant contract from the information provided. Accordingly the Court has decided that the parties should engage further to try to agree the details of the contract created in April 2005 as the basis of the contract of indefinite duration that came into being by operation of law at that time.
If the parties cannot agree the details between themselves, either side may refer the matter back to the Court for a determination on this matter.
Determination of the Court:
As there is no appeal against the Rights Commissioners decision under Section 8 of the Act that decision stands.
The appeal against the Rights Commissioners decision under Section 9 is upheld. The Court determines that the contract entered into between the Complainant and the Respondent on 1st April 2005 is by operation of law a “contract of indefinite duration” in accordance with the provisions of Section 9 of the Act. Because the contract was not committed to writing by either side, and despite requests for further information to assist it, the Court has not been in a position to determine the details of that contract. Accordingly the Court determines that the parties should engage further to try to agree the details of the mutual obligations entered into by both sides at that time. Failing agreement either party may refer this issue back to the Court for determination as to the relevant terms..
The Rights Commissioner’s Decision is accordingly upheld
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
1st July, 2010______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.