FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HSE WEST - AND - DR KISHAN BROWNE (REPRESENTED BY KANE TUOHY SOLICITORS) DIVISION : Chairman: Mr Duffy Employer Member: Mr Doherty Worker Member: Mr Nash |
1. Appeal of a Rights Commissioner's Decision R-043336-FT-06
BACKGROUND:
2. The worker has two claims before the Court, the second one being an appeal of a Rights Commissioner's recommendation under Section 13(9) of the Industrial Relations Act, 1969. The worker has been employed as a Senior House Officer for the HSE West since July, 2001. He was first employed under contract dated 1st July, 2001, for a fixed term of 6 months and thereafter retained on successive 6-monthly-contracts until 30th June, 2006. He was dismissed on 1st July, 2006. The worker instituted legal proceedings claiming that he was entitled to a Contract of Indefinite Duration (CID), and the HSE agreed to re-instate him on a CID in December, 2006. The worker's claim is that he has suffered considerable financial and personal loss as a result of his dismissal.
The case was the subject of four hearings before a Rights Commissioner who issued his recommendation as follows:
" The complaint received by the LRC on the 21st of June 2006 related solely to the provision of a CID at that time viz -Dr Browne is seeking a CID in respect of his service with UCHG" (per letter of complaint). The additional complaint (penalisation under Section 13 of the Act) was presented at hearing on 4th of October. I find that I do not have jurisdiction to hear that part of the complaint and, therefore, make no comment here on its merits. With regard to the original complaint I find that the complaint is well founded insofar as the respondent had breached Section 9 (3) at that time. I acknowledge that a CID has been offered in the interim and that its terms fully comply with the legislative provisions. I require the respondent to pay the claimant €2,000 (say two thousand euro) in compensation for it's failure to provide the CID in a timely manner.
The worker appealed the recommendation to the Labour Court on the 13th March, 2009, in accordance with Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on the 10th February, 2010, in Galway. The following is the Court's determination:
DETERMINATION:
Introduction
This is an appeal by Dr Kishan Browne against the decision of a Rights Commissioner in his complaint against the Health Service Executive under the Protection of Employees (Fixed-Term Work) Act 2003 (hereafter the Act). For ease of reference the parties are referred to in this Determination as they were at first instance. Hence, Dr Browne is referred to as the Claimant and the Health Service Executive is referred to as the Respondent.
The Dispute
The Claimant was employed by the Respondent on a series of fixed-term contract in his capacity as a Senior House Officer in Psychiatry between July, 2001, and June, 2006, when his employment terminated. The Claimant initiated proceedings under the Unfair Dismissals Act 1977–2007 arising from the termination of his employment. These proceedings were discontinued in consequence of discussions between the Claimant’s Trade Union and the Respondent which resulted in him being restored to the payroll. It was also acknowledged by the Respondent that the Claimant had accrued an entitlement to a contract of indefinite duration by operation of law.
The Claimant contends that he became entitled to a contract of indefinite duration, by the combined effect of Sections 9(1) and 9(3) of the Act, in January, 2005. He contends that he did not receive a formal contract of indefinite duration until July, 2007. The Claimant further contends that the contract of indefinite duration with which he was issued does not comport with the requirements of the Act in that it is materially different to the fixed term contract from which it was derived. The Claimant also alleges that he was penalised contrary to s.13 of the Act, in June 2006, by being dismissed for having initiated the within complaints before a Rights Commissioner.
The Rights Commissioner found that the Respondent had not provided the Claimant with a contract of indefinite duration in a timely fashion and awarded him compensation in the amount of €2,000. The Rights Commissioner found that he lacked jurisdiction to entertain the complaint of penalisation. While he did not say so in terms it is clear that the Rights Commissioner found that the claim was presented outside the time limit prescribed by s.14 of the Act.
The position of the parties on appeal
Counsel for the Claimant presented extensive submissions on questions of law and fact upon which the appeal was grounded. However the gravamen of the Claimant’s case can be reduced to three basic assertions, namely: -
•That he became entitled to a contract of indefinite duration by virtue of s.9(1) of the Act in January 2005 and that the Respondent failed to provide him with such a contract.
•That the contract of indefinite duration with which he was eventually provided did not correspond to the fixed-term contract from which it was derived in a number of material particulars,
•That the claim of penalisation was in time or in the alternative the time for bringing that claim should be enlarged.
The Respondent’s position is that all issues raised by the Claimant were addressed either by the Rights Commissioner or by the Respondent subsequent to the hearing before the Rights Commissioner. The Respondent contends that the contract of indefinite duration issued to the Claimant in July 2007 is the same in all material respects as the fixed-terms contract on which he was previously employed.
Conclusions of the Court
In respect of the matters raised by the Claimant in his appeal the Court finds as follows: -
Entitlement to a contract of indefinite duration
The Claimant commenced employment with the Respondent in June 2001. He was retained in employment on a succession of fixed-term contracts each of six months duration up to June 2006. The Act became law on 14th July 2003. Section 9(1) of the Act 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.
Section 9(4) of the Act provides: -
- (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.
The Claimant completed his third year of continuous fixed-term employment in June 2004. The Respondent was then entitled to renew that contract for one further fixed term only. The contract was renewed on 1st July, 2004 and on its expiry on 31st December, 2004 it was further renewed for a fixed-term. That renewal contravened s.9(1) of the Act. Section 9(3) then operated so as to render the term in the renewed contract providing for its expiry by effluxion of time a nullity. Thus, by operation of law the contract became one of indefinite duration with effect from 1st January 2005 and the Claimant’s status changed from that of a fixed-term employee to that of a permanent employee. The Respondent failed to acknowledge this change in the Claimant’s status and purported to renew his employment on fixed-term contracts on 1st June 2005 and on 1st January 2006. Thus the renewal of the Claimant’s contract for a further fixed term on 1st January 2005, 1st June, 2005, and 1st January 2006 contravened s. 9(1) of the Act.
The Claimant presented a complaint to the Rights Commissioner Service of the LRC on 21st June 2006 alleging a contravention of s.9(1) of the Act. Section 14 of the Act prescribes a limitation period of six months, from the date of occurrence of the contravention complained of, for the bringing of complaints. Hence, only such contraventions of the Act as occurred in the six-month period prior to 21st June 2006 were cognisable by the Rights Commissioner for the purpose of awarding redress (in that regard it is noted that no application was made to extend the time for the bringing of the complaint so as to encompass earlier contraventions).
The Claimant’s employment terminated on 30th June 2006 and he initiated a claim for unfair dismissal pursuant to the Unfair Dismissals Act 1977 – 2007. It appears that negotiations then ensued between the Claimant’s Trade Union and the Respondent. In December 2006, the Respondent acknowledged the Claimant’s entitlement to a contract of indefinite duration. It was further agreed that the Claimant would be restored to the Respondent’s pay roll and that the Claimant would be paid arrears of wages accruing since the termination of his employment. On the basis of that agreement the Claimant withdrew his claim of unfair dismissal. The Claimant was subsequently issued with a contract of indefinite duration, the terms of which are in dispute in the within proceedings. However, the claim giving rise to this appeal was not withdrawn. Nonetheless, it appears to the Court that the Respondent could reasonably have believed that all issues arising from its failure to provide the Claimant with a contract of indefinite duration and the subsequent termination of his employment had been resolved.
As already stated in this Determination, the Court is satisfied that the Claimant obtained a contract of indefinite duration by operation of law on 1st January, 2005, and that the purported renewals of his contract for a further fixed-term thereafter contravened s.9(1) of the Act. This was implicitly accepted by the Rights Commissioner in holding that the Respondent had failed to provide the Claimant with a contract of indefinite duration in “a timely manner”.
Having regard to all the circumstances of the case, and the fact that his grievances was substantially addressed by the Respondent in December, 2006, the Court is satisfied that the award of compensation made by the Rights Commissioner, in the amount of €2,000, is adequate.
Terms of the Claimant’s contract of indefinite duration
In this aspect of his claim the Claimant contends that a contract of indefinite duration proffered to him in or about July 2007 did not comport to the terms of the contract for a fixed-term under which he was previously employed. This, he contends, contravenes s.9(1) of the Act. The Respondent’s position is that the contract issued to the Claimant in July 2007 is identical in all material respects, other than tenure, to his prior contract.
The decision of this Court inHealth Service Executive (North Eastern Area v Khan[2006] ELR 313 is authority for the proposition that where a fixed-term contract is transformed to one of indefinite duration by operation of s. 9(3) of the Act the resultant contract is identical in its terms to the contract from which it is derived save as to tenure. This conclusion as to the legal effect of s.9(3) was subsequently confirmed by the High Court, per Leffoy J., inMinister for Finance v McArdle2 ILRM 438. But these cases do not support the proposition that the terms of a contract of indefinite duration, which comes into being by operation of s.9(3) of the Act, are rendered immutable for all time.
There are, however, serious issues concerning the Claimant’slocus standito pursue a complaint concerning the terms of his contract of indefinite duration under the Act. As is clear from the findings made by the Court earlier in this Determination the Claimant ceased to be a fixed-term employee on 1st January, 2005. His status as a permanent employee was subsequently acknowledged by the Respondent, at the latest, in December 2006. It follows that in July 2007, when the disputed contract was proffered to the Claimant, he was not a fixed-term employee. It follows that any dispute concerning the terms of his permanent employment cannot be adjudicated upon under the Act of 2003.
Penalisation
The Claimant is seeking to pursue a claim of penalisation against the Respondent arising from the termination of his employment in June, 2006. It appears that this matter was first raised in the submissions made to the Rights Commissioner in the course of the hearing of 4th October 2008. Even if it were to be accepted that raising the issues in that way amounted to sufficient compliance with s.14 of the Act, the complaint was clearly then out of time. The Claimant is now seeking an extension of time pursuant to s.14(4) of the Act.
Section 14(4) of the Act allows for a limited extension of the time limit specified by subsection (3) where reasonable cause is shown. It provided: -
- (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.
The test for deciding if reasonable cause is shown for the purpose of the corresponding time –limit provision of the Organisation of Working Time Act 1997 was considered by the Court inCementationSkanska (Formerly Kvaerner Cementation) v CarrollLabour Court Determination WTC0338 (October 28, 2003 ). Here the Court said: -
- It is the Court's view that in considering if reasonable cause exists, it is for the claimant 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 claimant at the material time. The claimant’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 claimant 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 claimant has a good arguable case.
In this case the Court cannot accept that any cogent reasons were advanced which either explain the delay in presenting the claim of penalisation or afford an excuse for the delay. The subject matter of the alleged penalisation was the termination of the Claimant’s employment. He brought proceedings under the Unfair Dismissals Acts 1977-2007 in respect to that occurrence and did so within the six-month time limit provided for by that statute. The Court can see no viable reason why the Claimant could not have initiated a parallel claim under the Act of 2003, if he so wished, within the same timeframe.
Accordingly, the Court cannot extend the time for the bringing of a claim of penalisation and must hold that the claim is statute barred.
Determination
For all of the reasons set out herein the Court determines as follows:
1. The Respondent contravened s. 9(1) of the Act by purporting to renew the Claimant’s contract of employment for a fixed-term after he had accrued an entitlement to a contract of indefinite duration pursuant to s. 9(3) of the Act. The Court upholds the Rights Commissioner’s award of compensation in the amount of €2,000.
2. The Court has no jurisdiction to entertain the Claimant’s complaints concerning the terms of his contract of indefinite duration.
3. The Claimant’s complaint of penalisation is statute barred and cannot be entertained by the Court.
The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
4th March, 2010______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.