FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HSE SOUTH - AND - DR MUSKATQ YOUSAFZAI (REPRESENTED BY IRISH MEDICAL ORGANISATION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr O'Neill |
1. Appealing Against A Rights Commissioner’S Decision R-052276-Ft-07/POB
BACKGROUND:
2. A complaint was submitted to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Dr. Mushtaq Yousafzai (the Complainant) against the Decision of a Rights Commissioner in which he found against him in his claim taken by him under Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).
At the Rights Commissioner hearing the Complainant claimed that the HSE (the Respondent) failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract pursuant to Section 9(1) of the Act.
The Rights Commissioner found that as the Complainant had resigned his position with the Respondent on 11th May 2008, when he had eight months left of his three-year rotational training programme at worst and “with the possibility of a contract of indefinite duration at best” and as he had not suffered any detriment in his employment terms the Complainant had no claim for any additional monies.
Background
The Complainant commenced employment as a Non-Consultant Hospital Doctor as a Senior House Officer and Registrar in Mental Health Service with the former Southern Health Board now HSE South on 12th August 2002. He remained continuously in employment until 11th May 2008 when he resigned his position as Registrar. However, he continues to be employed as a Locum Consultant Psychiatrist with HSE West.
Shortly after he commenced his employment the Complainant was accepted on a Senior House Officer 3 year Rotational Training Programme with Southern Health Board which commenced on the 1st January 2003.
Upon the completion of this programme he was accepted as a Registrar on a 3 year Rotational Training Programme with the HSE South commencing on 1st January 2006 and terminating on 31st December 2008. He resigned from this position and programme with effect from 11th May 2008.
His employment contracts with HSE South are as follows:-
Acting Registrar 12th August 2002 to 1st January 2003
Senior House Officer 3 Year Rotational Training Programme:
Acting Registrar 1st January 2003 to 8th June 2003
Acting Consultant 9th June 2003 to 30th June 2003
Acting Registrar 1st July 2003 to 31st December 2003
Acting Registrar 1st January 2004 to 30th June 2004
Acting Registrar 1st July 2004 to 1st December 2004
Senior House Officer 1st January 2005 to 31st December 2005
Registrar 3 Year Rotational Training Programme:
Registrar 1st January 2006 to 30th June 2006
Registrar 1st July 2006 to 1st December 2006
Registrar 1st January 2007 to 30th June 2007
Registrar 1st July 2007 to 1st December 2007
Registrar 1st January 2008 to 30th June 2008*
* The Complainant resigned from the HSE South on 30th April 2008, with effect from 11th May 2008.
The Complainant’s case
The IMO on behalf of the Complainant submitted that he had completed three years’ continuous employment on 11th August 2005. His contract was then renewed on 1st January 2006 until 30th June 2006.
It submitted that the Respondent’s renewal of the Complainants contract on 1st July 2006 was in breach of Section 9(1) of the Act as by operation of law he was entitled to a contract of indefinite duration from that date in accordance with Section 9(3) of the Act.
In October 2006 the Complainant requested a contract of indefinite duration under the terms of the Act. In response he was informed that as he was now on a three-year rotational training programme from 1st January 2006 until 31st December 2008, his entitlement to a contract of indefinite duration did not arise at that time. The Complainant told the Court that he resigned in April 2008 after he was informed that as part of the rotation programme he would be assigned to a Senior House Officer role for a period of six months in Bantry Hospital. This assignment he held to be a demotion.
The Respondent’s case
The Respondent denied that the Complainants assignment to Bantry was a demotion. It did confirm that the assignment rota originally circulated at the time stated that he was being assigned in the role as Senior House Officer, however, the Respondent maintained that this was an error and it confirmed with the Complainant that his position in Bantry Hospital from July 2008 would be at Registrar level.
The Respondent does not now dispute that the Complainant had an entitlement to a contract of indefinite duration from 1st July 2006 to the date of his resignation. However it states that the Complainant resigned his position with the Respondent on 11th of August 2008 and as the terms and conditions of his employment both as a fixed term employee and as a permanent employee were identical, his claim is moot.
The Court’s Findings
It is common cause that the Complainant was entitled to a contract of indefinite duration from the 1st of July 2006 on the same contractual terms and conditions as applied to him at that date.
By letter of October 2006 that he requested a contract of indefinite duration in accordance with section 9 (3), and received a response by letter dated 1st March 2007 in which the Respondent stated that as he was on a three-year registrar rotational training programme which was due to expire on 31st December 2008, the issue of a contract of indefinite duration did not arise at that time. This of course was an incorrect interpretation of the Act as it applied to the Complainant.
The Complainant referred his complaint for a contract of indefinite duration under the Act to the Rights Commissioner on 14th March 2007. However the case was adjourned to await the outcome of two similar appeal cases before the Labour Court. The Complainant resigned his position with the HSE in May 2008. However, he did not drop his complaint under the Act. The Respondent states that his decision to resign had in effect vitiated his complaint and he is not now entitled to compensation for the refusal to offer him a contract of indefinite duration when he requested same in October 2006. Furthermore he has suffered no monetary loss as a result of the decision not to offer him a contract of indefinite duration.
It was not until 22nd July 2009 that his case was completed by the Rights Commissioner.
It is now accepted by all parties that the term of the contract which provided for its termination on 31st December 2006, was rendered voidab initioand the resulting contract became one of indefinite duration. Therefore the Complainant became an employee of the Respondent on a contract of indefinite duration by operation of law on 1st July 2006.
The Court is satisfied that the Complainant resigned of his own free will without resorting to the Respondent’s disputes procedure. He left on 11th May 2008 and took up another post (fixed-term) at a higher level on 19th May 2008.
The Court accepts that a Determination ordering the Respondent to re-employ the Complainant in circumstances where he resigned and obtained a position as a Locum Consultant would be nugatory. Equally it is obvious that the Respondent has suffered no financial loss as a result of the events complained of.
The only decision for the Court is to determine whether the Complainant is entitled to be compensated for the contravention of the Act by the Respondent during the period between 1st July 2006 and 11th May 2008.
Both parties accepted that the pay, terms and conditions of employment between the Complainant’s fixed term contract and those of a similar grade on contracts of indefinite duration were identical in terms, including any express or implied terms, other than relating to its expiry by effluxion of time.
The Court is satisfied that the Respondent was in contravention of section 9 of the Act by not issuing the Complainant with a contract of indefinite duration with effect from 1st July 2006, however as he suffered no financial loss as a result, it can see no grounds for an award of compensation. The Court upholds the Rights Commissioner’s decision and rejects the Complainants appeal.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
29th March 2010______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.