FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : BROTHERS OF CHARITY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - BARBARA WHELAN (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Doherty Worker Member: Ms Ni Mhurchu |
1. Appeal Of Rights Commissioner's Decision R-049146-Ft-07/MMG
BACKGROUND:
2. An appeal was submitted on behalf of the worker 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 11th November, 2009. The following is the Court's Determination:
DETERMINATION:
This is an appeal by the Brothers of Charity against the Decision of a Rights Commissioner in a claim by Ms. Barbara Whelan
under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). At the Rights Commissioner hearing the Complainant claimed that the Brothers of Charity failed to provide her with a contract of indefinite duration specifying hours of work and employment location in circumstances where she became entitled to such a contract pursuant to Section 9(1) of the Act.
The Rights Commissioner found in favour of Ms. Whelan and decided that her contract of employment should be amended to include a set number of hours, which should be at least the average number of weekly hours worked using a reference period. In addition he awarded a sum of €2000.00 in compensation for the breaches by the Respondent of the Act.
In this determination the parties are referred to as they were at first instance. Hence the Brothers of Charity which is the appellant in this case, is referred to as “the Respondent”. Ms. Barbara Whelan who is the respondent herein is referred to as “the Complainant”.
Background
The Complainant was employed in a locum relief capacity, working on an “if and when required” basis since 7th October 2001. The Respondent issued her with a contract of indefinite duration on 1st December 2006 with variable working hours, stating it had retrospective effect back to 20th May 2006.
Preliminary Issue
The Respondent stated thatfollowing the letter of 1st December 2006 the Complainant entered into a contract of indefinite duration. Thus, it was argued, at the time she made her complaint, and at the time of the hearing before the Rights Commissioner, she was not a fixed-term worker and lackedlocus standito pursue the complaint and consequently held that the Court had no jurisdiction to hear the case.
- The Law
In order for a complaint alleging a contravention of the Act to be maintained Section 14 of the Act allows a period of six-months (extendable in certain circumstances to twelve-months) for a complaint to be made to a Rights Commissioner.
Section 14 states:
- (3) A Rights Commissioner shall not entertain a complaint under this Section if it is presented to the Commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.
By letter dated 1st December 2006, the Complainant was offered a contract of indefinite duration with retrospective effect back to 20th May 2006. The Complainant submitted her claim to the Rights Commissioner on 1st May 2007, which the Court is satisfied was within six months of the time when the alleged contravention of the Act was still in place.
Accordingly, the Court is satisfied that it has jurisdiction to hear the complaint.
The Complainant’s Case
The Complainant claimed that the contract of indefinite duration issued by the Respondent did not reflect the nature of her contract as a permanent worker. She submitted that despite the fact that the fixed term contracts she had worked stated she would be required “on an if and when required” basis, she had in fact worked on an almost full time basis since 2001 and therefore held that the contract of indefinite duration should reflect the reality of the situation and take cognisance of the average hours worked by her since the commencement of her employment and that such hours should be clearly set down in her contract of employment. She submitted that by issuing her with a variable hours contract, based on “as and when required”, the Respondent was treating her less favourably than a permanent worker, in contravention of Section 6 of the Act.
She stated to the Court that she worked an average of 39 hours per week since the commencement of her employment with the Respondent and sought a contract of indefinite duration which takes cognisance of the average weekly hours worked in the preceding 4 years, plus an award of compensation.
The Complainant stated that after she was given a contract of indefinite duration she was then issued with a temporary part time contract for the period 31st August 2009 to 31st December 2009 to work 25 hours per week. She claimed this action by the Respondent reflected the contradictory views of her employment status.
The Respondent’s Case
The Respondent stated that the Claimant was employed on a contract of indefinite duration issued pursuant to Section 9 of the Act since 1st December 2006 with the terms held on a fixed term basis now extended to an indefinite duration. The Respondent told the Court that the Complainant had been on set hours on a fixed term contract as a Temporary Part Time Houseparent until 28th August 2003 when she wrote to the Respondent and sought to be returned to the Locum Relief panel. Her letter stated:
- “My contract for the position of temporary part-time job-sharing, is about to cease, on the 28th of August [2003]. I am writing to inform you that I no longer wish to continue the contract. My circumstances have changed since I began the first contract and would be unable to promise full commitment to another. I would be happy to stay on the relief panel and facilitate you whenever possible, depending if it coincides with my schedule.”
From 29th August 2003 the Complainant signed a contract as a Locum Relief Assistant houseparent and was employed as a Care Assistant and a Supervisor/Instructor at various periods on an as and when required basis. The Respondent submitted that the only element that changed when she was issued with a contract of indefinite duration was that by virtue of the legislation, the terms upon which she was originally hired were extended to an indefinite duration.
The Respondent stated that it is vital to the organisation to have locum staff providing round the clock care and support to service users. Therefore it has a requirement for this type of worker on a variable hours contract in order to be able to provide cover for sickness/absence, holidays and other types of leave across the organisation. This type of contract provided flexibility to both the organisation and to the worker as locum relief staff had the right to decline work offered to her and the organisation had the right not to offer her work or to offer work based on the number of hours it considered appropriate at the time. It contains all the standard elements of an employment contract, such as matters relating to pay, termination, discipline and dismissal and the only indeterminate element related to hours of work.
The Respondent noted the possibility that this “if and when required” model of contract lacks one element of mutual obligation which is typical of employment contracts – namely the obligation to provide work, and on the worker – the obligation to attend work. Nevertheless, it contended that the contract contains other obligations on both parties, which are sufficient to create an employment relationship – including the obligation on the organisation to maintain lists of relief staff in a fair and appropriate manner and to act fairly in the manner in which staff are offered placements.
The Respondent submitted that its interpretation of the nature of this form of contractual relationship is consistent with the decision of the ECJ inWippel v Peek & Cloppenburg GmbH & Co. KG [2004/C3000/21]in which the Court of Justice acknowledged that relationships of this nature (which the ECJ described as “work on demand” contracts) can amount to contracts of employment for the purposes ofinter alia, the Part-time Workers Directive (Directive 97/81/EC).
The Respondent submitted that the contract of indefinite duration is in the same terms as the fixed-term contract from which it derived therefore it has met its obligations under the Act. The fact that the fixed-term contract was a “if and when required” contract does not mean that the Complainant is entitled to a guaranteed hours contract as decided upon by the Rights Commissioner when she became entitled to a contract of indefinite duration, by operation of law. This would be a new and novel contract which has never existed between the parties. In such circumstances, it would result in an adverse finding for the Complainant as she would have no choice regarding the work delegated to her.
The Court’s Finding
The Respondent did not dispute that the Complainant was entitled to a contract of indefinite duration pursuant to Section 9 (3) of the Act and was accordingly issued with such a contract on 1st December 2006. The dispute before the Court related to the nature of that contract and specifically to the reference to “variable hours” as contained in the contract. The Complainant contends that this reference does not reflect her standing now as “necessary and ongoing”. The mere fact that after issuing her with an indefinite contract, the Respondent issued her with a temporary part-time contract for the period 31st August 2009 to 31st December 2009 to work 25 hours per week reflects this dichotomy.
The Court has consistently held the view that the entitlement to a contract of indefinite duration only changes the worker’s tenure from that of being a fixed-term employment to one of indefinite duration. All other terms of the contract remain the same. This view has been approved inMinister for Finance – v- McArdle 2007 18 ELR 165where Laffoy J. held that the effect of section 9(3) was that where a worker 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.
The European Court of Justice in theWippelcase also confirmed that contracts which do not fix the working hours of the employee are valid when it stated:
- “In the light of all the foregoing, the reply to the third question must be that Clause 4 of the Framework Agreement annexed to Directive 97/81 and Articles 2(1) and 5(1) of the Directive 76/207 must be interpreted as meaning that, in circumstances where all the contracts of employment of the other employees of an undertaking make provision for the length of weekly working time and for the organisation of working time, they do not preclude a contract or part-time employment of workers of the same undertaking, such as that in the main proceedings, under which the length of weekly working time and the organisation of working time are not fixed but are dependent on quantitative needs in terms of work to be performed determined on a case-by-case basis, such workers being entitled to accept or refuse that work.”
The contract of indefinite duration to which the Claimant became entitled by operation of Section 9(3) of the Act on 20th May 2006 must be identical in its terms, including any express or implied terms, as to availability and hours of work, as the fixed-term contract from which it was derived. The only term of the precedingcontract which was rendered void and severed was that relating to its expiry by effluxion of time.
The Complainant states that she should be entitled to a fixed number of hours per week. The Court has examined the hours worked by the Complainant. The Court notes that there was no certainty of hours worked and indeed there were rare occasions when the Complainant was not required to work at all on some weeks. However, outside of those rare occasions the details reveal that the Complainant worked a consistent pattern of work ranging under 20 hours in some weeks to over 50 hours in other weeks. In such circumstances, the Court accepts that to reflect the nature of her previous fixed term contracts and in light of the findings inWippel v Peekher contract of indefinite duration while“a variable hours contract”must be consistent in terms of the pattern of hours available to the Complainant for the future.
For all of the foregoing reasons the Court concludes that the Respondent must provide the Complainant with a contract of indefinite duration which reflects the pattern of work available to her while she was employed on a fixed-term contract prior to her entitlement to a contract of indefinite duration. With this modification the decision of the Rights Commissioner is affirmed.
Accordingly, the Court varies the conclusionsand Decision of the Rights Commissioner. The Court upholds the Rights Commissioner’s award of €2,000 in respect of the breaches of the Act.
Signed on behalf of the Labour Court
Caroline Jenkinson
22nd March,2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.