FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HEALTH SERVICE EXECUTIVE SOUTH - AND - DR AHMED MUSTAFA (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appealing against a Rights Commissioner's Decision R-057083-FT-07/JOC.
BACKGROUND:
2. The Claimant is a Non-Consultant Hospital Doctor (NCHD) in Obstetrics and Gynaecology who was employed by the Health Service Executive (HSE) South on a series of successive fixed term contracts with effect from 1st July 1999 to 31st August 2007. His total period of employment by
the HSE South was in excess of 8 years.
In July 2007 the Irish Medical Organisation (IMO) sought that the Claimant be issued by the HSE South with a contract of indefinite duration under the terms of the Protection of Employees (Fixed-Term work) Act 2003. No correspondence was received from the HSE South and in September 2007 the assistance of a Rights Commissioner was sought.
Subsequently discussions took place between the IMO and the HSE South and agreement was reached that the Claimant was entitled to a contract of indefinite duration. However a disagreement remained regarding the post to be attached to the contract.
A Rights Commissioner hearing took place in November 2008. The Rights Commissioner's decision issued on the 25th June 2009, as follows:-
"I find the contract of employment given to the Claimant on the 1st July '04 was a contract of indefinite duration by operation of the law."
On the 11th September 2009 the Employer appealed the Rights Commissioner's Decision to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act 2003. The grounds for appeal were that clarification as to which grade the Claimant should receive a contract of indefinite duration had been sought from the Rights Commissioner but had not been received. A Labour Court hearing took place on the 4th March, 2010.
DETERMINATION:
1) The claimant, Dr Ahmed Mustafa, is a Non-Consultant Hospital Doctor who was employed on a series of successive fixed-term contracts by the HSE South (formerly the South Eastern Health Board (SEHB) at Wexford General Hospital from July 1999 – December 2003 and at Waterford Regional Hospital from January 1st 2004 – August 31st 2007. At that point his employment was terminated.
2) Dr Mustafa worked as a temporary Senior House Officer in Obstetrics and Gynaecology from July 1st 1999 to June 30th 2004. He worked at the more senior post of temporary Registrar in Obstetrics and Gynaecology from 1st July 2004 to 30th June 2007. He then worked as a locum Registrar in Obstetrics and Gynaecology from 2nd July 2007 to 31st August 2007.
3) Details of the Contracts that were given to Dr Mustafa are as follows:
 | Start of Contract | End of Contract | Job Title | Hospital |
| 1 | 01/07/1999 | 31/12/1999 | SHO | Wexford |
| 2 | 01/01/2000 | 30/06/2000 | SHO | Wexford |
| 3 | 01/07/2000 | 31/12/2000 | SHO | Wexford |
| 4 | 01/01/2001 | 30/06/2001 | SHO | Wexford |
| 5 | 01/07/2001 | 31/12/2001 | SHO | Wexford |
| 6 | 01/01/2002 | 30/06/2002 | SHO | Wexford |
| 7 | 01/07/2002 | 31/12/2002 | SHO | Wexford |
| 8 | 01/01/2003 | 30/06/2003 | SHO | Wexford |
| 9 | 01/07/2003 | 31/12/2003 | SHO | Wexford |
| 10 | 01/01/2004 | 30/06/2004 | SHO | Waterford |
| 11 | 01/07/2004 | 31/12/2004 | Registrar | Waterford |
| 12 | 01/07/2005 | 30/06/2006 | Registrar | Waterford |
| 13 | 01/07/2006 | 30/06/2007 | Registrar | Waterford |
| 14 | 02/07/2007 | 31/08/2007 | Registrar | Waterford |
4) On 20th July 2007 the Irish Medical Organisation wrote to the HSE on Dr Mustafa’s behalf claiming he was entitled to a “contract of indefinite duration in accordance with the terms of the Protection of Employees (Fixed-term Work) Act 2003. On July 25th 2007 the HSE acknowledged receipt of the correspondence and advised that the IMO letter had been sent to the Medical Manpower section for their attention. No further response was received from the HSE and on September 18th 2007 the IMO referred the case to the Rights Commissioners Service under the Protection of Employees (Fixed Term Work) Act 2003.
5) Local discussions took place between the parties and agreement was reached that Dr Mustafa was entitled to a contract of indefinite duration. The HSE advised that a suitable post would be identified for Dr Mustafa at Waterford Regional Hospital from January 2009. At that stage Dr Mustafa was employed in another jurisdiction.
6) A disagreement arose between the parties regarding the post to be attached to the contract of indefinite duration. The HSE, by letter of 3rd November 2008, advised the IMO that “ the Contract of Indefinite Duration acquired by Dr. Mustafa is at the grade of Senior House Officerâ€.
7) The IMO rejected this and argued that Registrar in Obstetrics and Gynaecology at Waterford Regional Hospital was the appropriate grade and appointment.
8) As no agreement was reached the matter was progressed through the Rights Commissioner’s Service and the matter was heard on November 12th 2008. At that hearing the IMO sought:-
a) A contract of indefinite duration as per the entitlements conferred on Dr. Mustafa under the Protection of Employees (Fixed Term Work)
b) Reinstatement to his position as Acting Registrar in Obstetrics and Gynaecology in Waterford Regional Hospital
c) Compensation for the repeated breaches of Section 9 of the Protection of Employees (Fixed Term Work) Act 2003
d) Compensation for the stress and inconvenience caused by the Claimant’s unfair dismissal by the respondent in August 2008.
9) The HSE argued Dr Mustafa became entitled to a contract of indefinite duration by operation of law in 2003 when he held the post of SHO and that this was the correct grade on which to base the contract of indefinite duration.
10) On June 25th 2009 the Rights Commissioner Decided as follows:
- “I find the contract of employment given to the claimant on the 1st July 2004 was a contract of indefinite duration by operation of lawâ€
11) The IMO accepted the Decision.
12) The HSE, on the 17 July 2009, appealed the Decision to the Labour Court, on the basis that the contract of indefinite duration to which Dr Mustafa was entitled arose by operation of law on 1st January 2003 when the HSE issued him with a contract for the post of Senior House Officer.
13) The Labour Court heard the appeal on the 4th March 2010.
HSE Arguments
14) The HSE has already conceded that Dr. Mustafa is entitled to a contract of indefinite duration.
15) The HSE contended that he acquired this right, by operation of law, when employed as a senior house officer under the contract issued to him on January 1st 2003.
16) The HSE argued the positions of Senior House Officer and Registrar are totally separate contracts of employment, with different essential qualifications, terms and conditions.
17) The HSE argued that while Dr Mustafa was issued with two or more contracts at Registrar level- the first of the “Registrar†contracts was issued subsequent to the date on which the Act was passed – the aggregate of the contracts at Registrar level did not exceed 4 years and therefore Section 9(2) of the Act did not apply.
18) The HSE argued that Dr Mustafa was entitled to a contract of indefinite duration with effect from 1st January 2003 and not 1st July 2004 as was indicated in the Rights Commissioner Decision. On that date he was employed as a Senior House Officer and the contract of indefinite duration should be for the post of Senior House Officer.
Union’s Arguments
19) Dr Mustafa is a “fixed-term employee†according to the definition of the Protection of Employees (Fixed-Term Work) Act 2003 ie “ a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific eventâ€.
20) Dr. Mustafa’s “comparable permanent employee†would be any appropriately appointed Registrar, whose salary and conditions are identical to Dr. Mustafa during his employment
21) The fixed term contracts of employment given to Dr Ahmed Mustafa by the HSE South did not contain objective grounds justifying the fixed term nature of the contracts. Further there was no attempt by the HSE South to link either the continued renewal of Dr Mustafa’s fixed term contracts nor the failure to offer a contract of indefinite duration with any legitimate objective ground.
22) Dr Mustafa’s employment with the HSE South totalled 8 years and 2 months on a series of 14 successive fixed term contracts, repeatedly breaching Section 9 of the Act
23) In direct discussions with the IMO the HSE South in August 2008 conceded Dr Mustafa’s entitlement to a contract of indefinite duration.
24) The HSE offered unlawfully offered the grade of Senior House Officer at Waterford Regional Hospital.
25) Dr Mustafa was entitled to a contract of indefinite duration at the grade of Registrar consistent with the terms of the fixed term contract he received on July 1st 2004.
26) The Protection of Employees (Fixed Term Work) Act 2003 was enacted into low on 14th July 2003. As Dr Mustafa had completed in excess of three years employment with the HSE Section 9(1) of the Act applied. The HSE South, on the expiry of Dr Mustafa’s contract on 31st December,2003, were entitled to renew Dr Mustafa’s fixed term contract only once more and for a period no longer than one year. The HSE South renewed his contract for a six month period from 1st January 2004 to 30th June 2004. The following contract renewal on 1st July 2004 should by operation of law, have been a contract of indefinite duration but instead the HSE South awarded Dr Mustafa a fixed term contract which was subsequently renew three times until Dr Mustafa was unfairly dismissed on the expiration of his Registrar contract on 31st August 2007.
27) The Rights Commissioner in his decision dated 25th June 2009 found that the contract given to Dr Mustafa on 1st July 2004 (Registrar Waterford Regional Hospital) was a contract of indefinite duration by operation of law.
28) The IMO argued that the Rights Commissioner’s decision was clear and correct in law and asks the Labour Court to uphold that decision that found the contract of indefinite duration came into being by operation of law on 1st July 2004 at the grade of Registrar in Waterford Regional Hospital.
29) The IMO sought compensation for repeated breaches of Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 and for the stress and inconvenience caused by Dr Mustafa’s unfair dismissal by HSE South in August 2008 which resulted in his having to seek employment outside Ireland
The Law Applicable:
30) The relevant statutory provisions in this case are contained at Section 9 (1) and Section 9(3) and 9(4) of the Act.
Section 9(1) provides as follows:
- 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 (3) provides
- 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
Section 9 (4) provides
- 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.
Issues for Consideration:
31)
a) When did Dr Mustafa become entitled to a contract of indefinite duration?
b) What grade applied to the contract of indefinite duration?
32) The claimant commenced employment before the enactment of the Act. Thus the entitlement to a contract of indefinite duration for which he contends would arise under subsection (1) of Section 9. The effect of this section is that, having completed three years of continuous fixed-term employment on or after the passing of the Act, the employer could only renew the Claimant’s contract for a fixed-term on one further occasion and for a period of not more than one year. This provision is, however, subject to the saving provision at subsection (4) which provides that subsection (1) has no application if there are objective grounds justifying the further renewal of the fixed-term contract in issue.
33) The Claimant had completed his third year of fixed-term employment on the enactment into law of the Act on 14th July 2003. At that point under Section 9 (1) the HSE was entitled to renew the Dr Mustafa’s contract on one further occasion and for a period not exceeding one year. The contract was so renewed for a period of six months on 1st January 2004 and expired on 30th June 2004. At that point the employer had no obligations under this Act to Dr Mustafa. However on 1st July 2004 the HSE further extended Dr. Mustafa’s employment for a further fixed-term of one year in the post of Registrar in Waterford Regional Hospital.
34) No claim has been formally put to the Labour Court that this contract was objectively justified under Section 9 (4) of the Act.
35) Instead the HSE case relied on the contention that the contract of indefinite duration to which Dr Mustafa was entitled is that which issued on 1 January 2003 for the post of Senior House Officer.
36) The essence of this argument is that Dr Mustafa became entitled, under the Protection of Employment (Fixed Term Work) Act, to a contract of indefinite duration, at a time before the Act became law. The Court cannot support such a contention.
37) The Act was passed into law on 14th July 2003 and was intended to give effect, from that date, to the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP. Section 9 (1) is a transitional provision that regulates the manner in which workers employed on fixed-term contracts prior to the coming into force of the Act, are to be dealt with. Section 9(2) regulates the use of fixed-term contracts of employment into the future.
38) Section 9(1) provides that workers on fixed-term contracts of employment for at least three years, on or after the passing of the Act, could be employed on a fixed-term contract on one more occasion only and for a period of less than one year. The Court is satisfied that this Section enabled an employer to issue one final fixed-term contract of employment to an employee who had been on successive fixed-term contracts for a period of at least 3 years on 14th July 2003. The Court does not support the view that it could be applied retrospectively in the manner claimed by the HSE.
39) In this case therefore, Dr Mustafa had completed three years on fixed-term contracts of employment on 14th July 2003. The HSE was entitled to renew the contract on one more occasion after the expiry of the then current contract. The HSE exercised this option by issuing Dr Mustafa with a further fixed-term contract on 1st January 2004 that expired on 30th June 2004.
40) As stated above 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 concerned shall be deemed a contract of indefinite durationâ€.
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 operation of law. The Court so held in Determination FTD063 – State Laboratory and McArdle, a decision upheld on appeal by Laffoy J in Minister for Finance v McArdle [2007] 18 ELR 165. Accordingly, the fixed-term contract the HSE issued to Dr Mustafa on 1 July 2004, by operation of law, became a contract of indefinite duration from that date. The offending term relates to the fixed-term nature of the contract and this is severed. All other terms subsist and are unaffected by Section 9 (3) of the Act.
Determination:
41) The Court determines that the Decision of the Rights Commissioner is affirmed and that the contract issued to Dr Mustafa on 1st July 2004, by operation of law, is a contract of indefinite duration. The Court further determines that Dr Mustafa be reinstated to the post specified in the contract issued to him on 1st July 2004 without interruption in service. Given the above finding the Court does not propose to award compensation for the breaches of the Act.
Signed on behalf of the Labour Court
Brendan Hayes
19th March, 2010
______________________
MG.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.