FTD1015

FULL RECOMMENDATION

FTC/10/22

DETERMINATIONNO.FTD1015

(r-077456-ft-09/JC)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

NATIONAL UNIVERSITY OF IRELAND MAYNOOTH
(REPRESENTED BY MC CANN FITZGERALD SOLICITORS)

- AND -

ANN BUCKLEY
(REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Mr O'Neill

SUBJECT:
1. Appeal of a Rights Commissioner’s Decision No. R-077456-FT-09/JC by both parties.

BACKGROUND:

2. The Claimant concerned was employed by the College on 1st October 2003. She was engaged in a research project concerning Medieval Irish Music wholly funded by the Irish Research Council for Humanities and Social Sciences (IRCHSS), a state-run body providing grants.

For the purposes of the project and the administration of the hosting agreement she was provided with a fixed-term contract contingent on specific funding from the IRCHSS. This contract ran from October 1st 2002 to September 30th, 2006.

The Claimant applied for and received another grant near the completion of her research. A further fixed-term contract was issued which ran from 1st October, 2006 to 30th September, 2008.

The Claimant claimed that the circumstances of the renewal of the first contract were a breach of Section 9 of the 2003 Act and referred the matter to a Rights Commissioner who, on August 6th 2008, found in her favour and declared that she should have received a contract of indefinite duration. The College appealed this decision to the Labour Court.

The College served notice of redundancy on the Claimant on August 27th, 2008 prior to the Labour Court hearing. This was caused by the expiration of the fixed-term contract. The College claimed that it did not have further work for her.

The College placed the Claimant on administrative leave and agreed to continue paying a salary to the Claimant until the outcome of the Labour Court hearing. The College claims that this was done as a gesture of goodwill. There was a considerable delay in determining the appeal and on 12th January, 2009 the College ceased paying the Claimant's salary.

Two further Rights Commissioner hearings took place in relation to claims for an enhanced redundancy package, payment of compensation awarded by the Labour Court and payment of salary from 12th January 2009 to 24th February 2009.

In relation to the issue of an enhanced redundancy package the Rights Commissioner found as follows:-

"I declare the complaint is well founded and I require the respondent to pay the claimant the same redundancy package as that paid to the NUIM Catering Staff i.e. statutory redundancy entitlements plus four weeks pay per year of service. I also require the respondent to pay the claimant compensation in the amount of €2,5000."

The Union on behalf of the Claimant appealed the Rights Commissioner's decision to the Labour Court on the 27th July 2010 and NUIM appealed the Rights Commissioner's decision to the Labour Court on the 3rd August 2010, in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on the 28th October, 2010.

DETERMINATION:

Introduction

This is an appeal and a cross appeal against the decision of a Rights Commissioner in a complaint by Dr Ann Buckley against her former employer, NUI, Maynooth under the Protection of Employees (Fixed-Term Work) Act 2003 (hereafter the Act). In this Determination Dr Buckley is referred to as the Claimant and NUI, Maynooth is referred to as the Respondent.

Background

This dispute has a long history but for present purposes the issues in contention can be briefly summarised. The Claimant was employed by the Respondent on a series of fixed-term contracts. She was engaged in a research project which was externally funded. In or about 2007 the Claimant initiated a claim under the Act alleging a contravention of s.8 thereof and seeking a declaration that her fixed term contract had been transmuted to one of indefinite duration by operation of s.9(3) of the Act. In a decision dated 6th August 2008 the Rights Commissioner found with the Claimant and,inter alia,declared that she had become entitled to a contract of indefinite duration by operation of law.

The Respondent appealed to this Court against the decision of the Rights Commissioner. While the hearing of the appeal was pending the Respondent gave notice to the Claimant that her employment would terminate by reason of redundancy on 30th September 2008. Following the intervention of the Claimant’s Trade Union (IFUT) it was agreed that the Claimant would continue to be paid her salary until the Respondent’s appeal against the decision of the Rights Commissioner was determined. The Claimant’s employment status during this period is now a matter of dispute in the within appeal.

On or about 19th November 2008 the Respondent offered the Claimant a redundancy lump sum in an amount equivalent to four weeks pay per year of service plus her statutory entitlements. This offer was proffered in full and final settlement of her outstanding claims against the Respondent, including her claim which had been adjudicated upon by the Rights Commissioner and was then under appeal. It was also proposed that the amount payable under this formula would be abated by the amount of salary which she had received since 30th September 2008. The Claimant refused this offer.

By letter dated 18th December 2008 the Respondent notified IFUT that it intended to discontinue paying the Claimant’s salary. The Claimant then instituted proceedings in the High Court on foot of which she sought an interlocutory injunction restraining her dismissal and requiring, inter alia, the Respondent to continue paying her salary. In a judgment delivered by Murphy J on 13th February 2009, [2009] IEHC 58, the High Court refused the interlocutory relief sought by the Claimant. In the course of his judgment Murphy J said the following: -

The first question that arises is whether there is a subsisting contract of employment between the parties. The fixed term contract expired on 30th September, 2008. On 8th August, 2008, the Rights Commissioner held that the plaintiff was entitled to a contract of indefinite duration, pursuant to the 2003 Act. The plaintiff was informed by the defendant on 27th August, 2008, that they were making the plaintiff redundant with effect from 30th September, 2008. The defendant also enclosed a copy of the University's appeal of the Rights Commissioner's decision. The defendant submits that, if the plaintiff is entitled to a contract of indefinite duration, this has been terminated by the statutory notice of redundancy.

It is clear that there is only a subsisting contract of employment between the plaintiff and the defendant if the plaintiff is successful in her appeal to the Labour Court. The Rights Commissioner has held that the plaintiff is entitled to a contract of indefinite duration. The defendant is not bound by that ruling until the statutory right of appeal is exhausted

The Respondent ceased paying the Claimant’s salary with effect from 12th January 2009.

On 24th February 2009 this Court issued its Determination in the Respondent’s appeal against the decision of the Rights Commissioner in the Claimant’ complaint under the Act. The Court held that the Claimant did not have an entitlement to a contract of indefinite duration. Neither the decision of the High Court nor the Determination of this Court was appealed.

On 2nd April 2009 IFUT presented a complaint to a Rights Commissioner alleging that the Claimant had been treated less favourably in terms of her conditions of employment than a comparable permanent employee. At the hearing before the Rights Commissioner the Claimant’s claim was particularised as follows: -

•A claim for a redundancy lump sum equal to four weeks pay per year of service plus statutory redundancy terms,

•Payment of €2,000 compensation awarded to the Claimant by the Labour Court in respect of a contravention of s.8 of the Act.

•Payment of salary from 12th January 2009 to 24th February 2009.

The Respondent contended that the complaints were presented outside the time limit specified by s.14(3) of the Act. In advancing that contention the Respondent submitted that the Claimant’s employment came to an end on 30th September 2008 and her complaint was presented on 2nd April 2009, some four days outside the time limit. However the Rights Commissioner allowed an extension of time, pursuant to s.14(4) of the Act so as to bring the claim within time.

In her decision the Rights Commissioner directed the Respondent to pay the Claimant a redundancy lump sum in an amount equal to four weeks pay per year of service plus statutory entitlements. In making that decision the Rights Commissioner held that the Claimant was entitled to rely on the redundancy package afforded to a permanent catering worker made redundant by the Respondent. The Rights Commissioner also made a general compensatory award in favour of the Claimant in the amount of €2,500.

With regard to the other claims advanced by the Claimant, the Rights Commissioner found that they did not come within the purview of the Act and she lacked jurisdiction to entertain those claims.

The Appeal

The Respondent appealed against the decision of the Rights Commissioner to extend the time for bringing the Claimant’s complaint. Without prejudice to its position in that regard it appealed against the Rights Commissioner’s award of a redundancy payment. The Claimant appealed against the quantum of general compensation awarded by the Rights Commissioner. Consequently the only issues arising in the appeal are in relation to the admissibility of the complaint, whether or not the Claimant is entitled to a redundancy payment in the terms awarded by the Rights Commissioner, or at all and whether the compensatory award made by the Rights Commissioner is appropriate. The other matters raised by the Claimant at first instance have not been pursued in the appeal.

Time Limit

The Respondent raised a preliminary objection to the jurisdiction of the Court. It submitted, as it did at first instance, that the within complaint was presented outside the time limit prescribed by s.14(3) of the Act. It was further submitted that no reasonable grounds have been advanced by the Claimant upon which the Court could properly grant an extension of time pursuant to s.14(4) of the Act. The relevant statutory provisions are: -

Section 14(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.

Section 14(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.

It is the Respondent’s case that the Claimant’s employment terminated on 30th September 2008. On that basis it submitted that the time limit prescribed by s.14(3) of the Act expired on 29th March 2009. The Respondent contends that as the within complaint was received by the Rights Commissioner on 2nd April 2009 it was, by that stage, time-barred. The Respondent further contends that the Rights Commissioner erred in applying s.14(4) so as to enlarge the time for bringing the complaints as no reasonable cause for the delay, within the statutory meaning, had been shown by the Claimant.

The Respondent further submitted that, in his judgment in the Claimant’s interlocutory application referred to above, Murphy J had found that the Claimant’s employment terminated on 30th September 2008. It was submitted that the Claimant is prevented, as a matter of law, from seeking to deny that which the High Court held to be a fact.

The Claimant denies that her employment terminated on 30th September 2008. She contends that the Respondent agreed to continue her employment until the Labour Court gave its determination on the question of her entitlement to a contract of indefinite duration. She contends that, contrary to that agreement, the Respondent terminated her employment on 12th January 2009 when it ceased paying her salary. This is the date recorded by the Respondent on her P45 as being the date on which her employment came to an end. The Claimant contends that she was on administrative leave up to that point.

The Claimant does not accept that she is estopped from denying that her employment terminated on 30th September 2008 by the decision of the High Court in her application for an interlocutory injunction. It was submitted on her behalf that theratioof that decision was that the undertaken given by the Respondent to continue her employment until the determination of this Court was unenforceable in law.

In the alternative the Claimant contended that the time for the bringing of her complaint should be extended. The Union pointed out that the Claimant was offered a redundancy settlement in November 2008 but in full settlement of her claim. After the determination of this Court issued, the Union wrote to the Respondent, in March 2009, requesting that the offer be reinstated. When the Respondent refused to pay a redundancy payment the Claimant initiated her claim without delay. It was submitted that in circumstances where the Claimant regarded herself as in the continuing employment of the Respondent and where she was awaiting a determination of the Court in the appeal of the Rights Commissioner decision, she could not reasonably have been expected to claim a redundancy lump sum until her entitlement to continuing employment was finally decided.

Conclusion on the Preliminary Point

The Court first considered the effective date on which the Claimant’s employment terminated. While the documentary evidence before the Court would appear to indicate that the Claimant’s employment subsisted until 12th January 2009, the Respondent relies on the decision of the High Court, in the Claimant’s application for injunctive relief, as establishing the effective date of termination as 30th September 2008.

In the course of the hearing. Counsel for the Respondent, Mr Power BL, confirmed that he was relying on the legal doctrine known asissue estoppelin contending that the Claimant cannot now deny that which was decided against her in earlier proceedings. As the Court understands it, estoppel of an issue can arise where there has been a final determination of the same issue in previous proceedings by a Court of competent jurisdiction and the parties bound by the earlier decision are the same as those in the later proceedings. The essential elements of issue estoppel were explained by Keane J (as he then was) inMcCauley v Mc Dermot[1997] 2. ILRM 486 as follows: -

While the doctrine of what has come to be called “issue estoppel” has been the subject of explanation and analysis in many modern decisions, its essential features were helpfully summarised as follows by Lord Guest in Carl Zeiss Steiftung v Rayner & KellerLimited (2)[1967] 1 AC 853at p 935A:-
- “The requirements of issue estoppel still remain (1) that the same question has been decided, (2) that the judicial decision which is said to create the estoppel was final; and (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.”

It is further clear from the decision inShort v Ireland, Unreported, High Court, Peart J 2nd April 2004, that the question of whether an estoppel arises must be considered by reference to what the Judge actually said and not simply by reference to what was argued in Court.In considering if this doctrine is applicable in the instant case the Court has carefully studied the Judgment delivered by Murphy J in the earlier proceedings. It seems clear from the Judgment as a whole, and in particular from the passage previously quoted in this Determination, that the Judge proceeded on the basis that the continuance of the Claimant’s contract of employment beyond 30th September 2008 was contingent upon her being successful in the appeal against the Rights Commissioner’s decision in her favour. As she was not successful in that appeal the import of this finding is that her employment did not continue after 30th September 2008. The Court was told that the decision of the High Court was not appealed nor did the case proceed to a full trial. Consequently the decision of the High Court was in the nature of a final determination of all issues dealt with in the judgment. Hence, and since the parties in the earlier case are the same as those in the instant case, an issue estoppel arises and the Court must accept that the Claimant’s employment did not extend beyond 30th September 2008. Based on that termination date the within claim was four days out of time when it was presented to the Rights Commissioner.

Application to extend time

The Court must now turn to consider if the statutory time limit can be extended pursuant to s.14(4) of the Act. It was common case that the test to be applied in considering if time can be extended is that formulated by this Court in Determination DWT 0338,Cementation Skanska and Tom Carroll.Here the Court said the following: -

It is noted that the standard required by this subsection is that of “reasonable cause”. This may be contrasted with the much higher standard of “exceptional circumstances preventing the making of the claim” which is provided for in other employment related statutes. The Act gives no guidance as to the type of circumstances that can constitute reasonable cause and it would appear to be a matter of fact to be decided by the Rights Commissioner (and by extension the Court on appeal) in each individual case.

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.

The factual context in which this application must be considered is that there was undoubtedly a degree of ambiguity concerning the Claimant’s employment status in the period between 30th September 2008 and 12th January 2009, when the Respondent ceased paying the Claimant’s salary. The agreement reached between the Respondent and the Claimant’s trade union was that she would be placed on “administrative leave”. This was confirmed in writing by the Respondent’s Director of Human Resources in September 2008. The notion of “administrative leave” is generally understood as connoting a form of suspension on full pay resorted to in circumstances in which an employer considers it necessary to temporally remove an employee from the workplace. There is nothing in the letter from the Director of Human Resources to indicate an intention that some other meaning should be ascribed to the term in its application to the Claimant. Administrative leave suspends the contract of employment but is does not sever the contract. Both the Claimant and her union adviser understood that to be the position arising from the agreement entered into.

The Respondent drew the Courts attention to the content of a letter which it sent to the Claimant on 27th November 2008, which, it claims, confirmed to her that she was no longer employed. In relevant part this letter states as follows: -

“The University has given an undertaking to the Labour Court to preserve your salary entitlements until the hearing of the appeal of your claim to the Rights Commissioner under the Fixed-Term legislation. However, this undertaking relates to your salary only and does not extend to your continuing with any duties in the Department beyond 30th September”

This statement falls short of a definitive indication that the Claimant should consider her contract of employment as having been terminated, as opposed to suspended. Nor is the statement incompatible with the notion of administrative leave. The essence of administrative leave, as that term is normally understood, is that the employer’s duty to provide the employee with work is suspended while the obligation to pay salary is continued.

Furthermore, the decision of the High Court, previously referred to, is open to the interpretation that if the Labour Court upheld the decision of the Rights Commissioner a subsisting contract of employment between the Claimant and the Respondent would exist after 30th September. This ruling created a situation in which the Claimant’s employment status after 30th September 2008 would ultimately be contingent upon the Determination of this Court on the Respondent’s appeal. In these circumstances the Claimant could not have known with certainty what her employment status was during this period until the Court’s Determination was promulgated. Nor could she have known with any degree of certainty that the question of a redundancy lump sum would arise, under either the Redundancy Payments Acts 1967 –2007 or s.6 of the Act of 2003. Moreover, the Union, on behalf of the Claimant, acted promptly after the Court’s Determination in seeking a redundancy payment. It is clear from the correspondence opened to the Court that IFUT wrote to the Respondent by letter dated 11th March 2009 requesting that the Claimant be paid a redundancy lump sum. The Respondent replied to this request by latter dated 27th March rejecting the union’s claim. It is noteworthy that 27th March 2009 occurred on a Friday. The applicable time limit, based on the Claimant’s employment having terminated on 30th September 2008, expired on Sunday 29th March 2009. It is doubtful if the Claimant could have received this letter before the expiry of the time limit.

While the Court has held, as it believes it must, that the Claimant’s employment terminated on 30th September it is clear that the Claimant and her Trade Union adviser believed that her employment with the Respondent subsisted, at least up to 12th January 2009, when the Respondent ceased paying her salary. Thereafter the Claimant instituted High Court proceedings which were ultimately unsuccessful. She was then awaiting the outcome of the appeal to this Court, which would determine her continuing employment status with the Respondent. In these circumstances, the Court was told, the Claimant believed that were she to claim a redundancy lump sum this would be prejudicial to her appeal.

The accepted test for determining if reasonable cause exists provides that a short delay may require only a slight explanation whereas a long delay may require more cogent reasons. In the instant case the delay in issue is one of four days. The Court is satisfied that, when considered in context, the factors relied upon by the Claimant in seeking an extension of time are sufficient to meet the threshold of reasonableness necessary to justify a delay of such short duration. Moreover, there is no suggestion that the Respondent suffered any prejudice in defending the claim by reason of the delay. The Court also accepts that the Claimant has a good arguable case. Accordingly the Court extends the time for the bringing of the within claim by four days to 2nd April 2009 and deems the claim to be in time and properly before the Court.

The substantive case

The Claimant claims that she is entitled to the same redundancy payment as that paid by the Respondent to catering assistants who were made redundant. It was submitted on her behalf that these workers are comparable permanent employees within the meaning of the Act and that the Claimant is entitled to rely on them as comparators for the purpose of advancing her claim. The Claimant denies that there are objective grounds justifying the difference in treatment grounding her complaint.

The Respondent denies that the Claimant is entitled to the redundancy lump sum claimed. Firstly, the Respondent submitted that the Claimant was not treated less favourably than her nominated comparator in that she was offered, and declined, the same redundancy settlement as the comparator. The Respondent further submitted that the catering assistants became redundant in circumstances in which the premises in which they worked were destroyed in a fire. The Respondent submitted that the circumstances in which these workers became redundant was sudden and unexpected. By contrast the Claimant was employed to undertake research which was to be externally funded. According to the Respondent, the Claimant was well aware at all times that the funding would come to an end with the inevitable loss of her employment. In these circumstances the Respondent submitted that the difference in treatment between the Claimant and the comparators is objectively justified.

Finally, the Respondent submitted that if the Claimant is entitled to the ex-gratia lump sum claimed (which is denied) it is entitled to set off the amount which she received by way of salary between 30th September 2008 and 12th January 2009, when these payments ceased. The Court was told that the salary payments received by the Claimant in this period amounted to €22,189.58

Conclusions of the Court

The Law

The principal statutory provisions applicable in this case are to be found at s.5,
s 6 and s.7 of the Act. Section 5 provides: -

5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—

(a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

(2) The following are the conditions mentioned in subsection (1)—

(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.Section 6 provides: -

6.—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

(4) For the avoidance of doubt, the reference in this section to a comparable permanent employee is a reference to such an employee either of the opposite sex to the fixed-term employee concerned or of the same sex as him or her.

(5) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.

(6) The extent to which any condition of employment referred to in subsection (7) is provided to a fixed-term employee for the purpose of complying with subsection (1) shall be related to the proportion which the normal hours of work of that employee bears to the normal hours of work of the comparable permanent employee concerned.

(7) The condition of employment mentioned in subsection (6) is a condition of employment the amount of benefit of which (in case the condition is of a monetary nature) or the scope of the benefit of which (in any other case) is dependent on the number of hours worked by an employee.

(8) For the avoidance of doubt, neither this section nor any other provision of this Act affects the operation of Part III of the Organisation of Working Time Act 1997 .

Section 7 of the Act provides:-

7.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6 (2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.

The combined effect of these statutory provisions is that a fixed-term employee is entitled to be treated no less favourably, in respect to his or her conditions of employment, than a comparable permanent employee (as defined by s.5), unless the difference in treatment is justified on objective grounds (as defined by s.7). The Act expressly provides, at s.2(1), that conditions of employment include conditions as to remuneration. It is also settled that a redundancy payment constitutes remuneration (seeSt Catherine’s College for Home Economics v Maloney and Moran[2009] 20 ELR 143)

Appropriateness of the nominated comparators

In its written submission to the Court the Respondent appeared to take issue with the appropriateness of the catering assistants as comparators vis-�-vis the Claimant. However, in the course of the hearing the Respondent accepted that the catering assistants were employed by the same employer as the Claimant within the meaning of s.5(1)(a) of the Act. It was further accepted that the Claimant was engaged in work of equal or greater value to that performed by the catering assistants within the meaning of s.5(2)(c) of the Act. On that basis it was conceded that the Claimant is entitled to ground her claim by reference to the nominated comparators.

Less favourable treatment

The Respondent submitted that the Claimant was not subjected to less favourable treatment than her comparators in that she was offered the same redundancy terms which she refused to accept. The pertinent facts are that by letter dated 19th November 2008 the Respondent’s Director of Human Resources wrote to IFUT offering to pay the Claimant a redundancy lump sum in the amount equal to four weeks pay per year of service plus her statutory entitlements. The offer was expressed as being made on a “without prejudice basis”. Nevertheless, both parties opened this agreement to the Court and relied upon it in advancing their respective positions. There were two conditions attached to this offer. Firstly, it was to be in full settlement of her claim to a contract of indefinite duration and would have required her to withdraw the claim which was the subject of the appeal then before this Court. Secondly, the amount payable was to be abated by the salary which the Claimant had received since 20th September 2008.

What the Claimant was offered in November 2008 was a payment in consideration of discontinuing legal proceeding in which she was then engaged. What the comparators received on being made redundant was an unqualified payment in compensation for the loss of their employment. What the Claimant is now seeking is a redundancy package corresponding to that paid to the comparators on foot of her statutory rights under s6 of the Act to equal treatment with a comparable permanent employee. That is qualitatively different to what she was offered in November 2008. Consequently the Court cannot accept that the Claimant’s refusal to accept the terms of the settlement offer made in November 2008 can now act as a bar to her pursuing the within claim.

Objective grounds justifying less favourable treatment

It is accepted that the comparators received a payment equal to four weeks pay per year of service plus their statutory entitlements on being made redundant. The Claimant and the comparators are engaged in like work within the meaning of s.5(2)(c) of the Act. It follows that the Claimant is entitled to be treated similarly, on being made redundant, unless the difference in treatment can be objectively justified. The test for determining if a ground relied upon is sufficient to justify treating a fixed-term employee differently than a comparable permanent employee is contained in s. 7 of the Act. The elements of this test are that factors relied upon as constituting an objectively justifiable ground must (a) be for the purpose of achieving a legitimate aim of the employer, (b) the unequal treatment must be an appropriate means of achieving the legitimate aim identified and (c) it must be necessary for its achievement.

That formula is derived from the jurisprudential criteria established by the ECJ against which indirect discrimination may be justified in cases involving employment equality. InBilka-Kaufhaus GmbH v. Weber Von HartzECR 1607the Court of Justice set out a three-tiered test by which a discriminatory measure may be justified. It said that the measure must firstly meet a “real need” of the employer; secondly the measure must be “appropriate” to meet the objective which it pursues and finally the measure must be “necessary” to achieve that objective.

In essence the case law of the ECJ equates reliance on objective justification of a discriminatory practice with a derogation from the obligation to apply the principle of equal treatment. InLommers v Minister van Landbouw, Natuurbeheer en VisseriIRLR 430 paragraph 39 the ECJ pointed out that: -

“ [A]ccording to settled case-law, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23).

In order to make out the defence it is for the Respondent to identify the legitimate aim upon which it relies and to show that the less favourable treatment is an appropriate means of achieving that aim. That raises the question of proportionality. The Respondent must then go on to prove that the less favourable treatment is necessary in order to achieve the legitimate aim. That involves establishing that there are no alternative means, having a less discriminatory effect, by which the aim in view could be achieved. This would normally require the Respondent to establish that alternative means of achieving the objective were considered and rejected for cogent reasons.

In this case the Respondent seeks to justify the less favourable treatment complained of by reference to the different circumstances in which the Claimant and the comparators came to be redundant. The Court was told that the catering staff were made redundant following a fire in the campus which resulted in the sudden and unexpected discontinuance of the service which they provided. IFUT pointed out that other catering workers, who were unaffected by the fire were also made redundant and received the compensatory terms now in issue.

While the circumstances giving rise to redundancy in both cases are undoubtedly different, the Respondent has not identified how those differences can give rise to a legitimate aim which it is seeking to pursue or how withholding the redundancy pay from the Claimant is an appropriate and necessary means of achieving any such aim. While it may be said that the Respondent is entitled to contain expenditure, the recent decision inCatholic University School v Dooley, Unreported, High Court, Dunne J., 20th July 2010 makes it clear that the cost associated with applying the principle of equal treatment can never provide objective grounds for maintaining unequal treatment. There was also a suggestion inherent in the submissions of Counsel for the Respondent that the unequal treatment complained of is justified by the fact that the comparators were permanent employees, with an expectations of continuing employment which came suddenly to an end, whereas the Claimant was temporary and could have had no such expectation. That, however, is a consideration based on the Claimant status as a fixed-term employee. As such it is expressly precluded by s.7(1) of the Act

For these reasons the Court is satisfied that the Respondent has failed to make out a defence of objective justification for the impugned difference in treatment as between the Claimant and her comparators.

Set-off

The Respondent contends that it is entitled to set-off against any award that the Court might make in favour of the Claimant the amount of to €22,189.58
which it paid to her by way of salary between 30th September 2008 and 12th January 2009. It was submitted that this was money to which the Claimant had no legal entitlement and it should be taken into account in measuring any entitlement which she now has.

The Court cannot accept that submission. Set-off can arise where parties to litigation have a mutuality of indebtedness and the amount due and owing to one party can be taken into account in computing the net amount due and owing to the other party. In this case there is no evidence of any intention or agreement that the Claimant would become liable to repay the salary which she received in the period in issue and none was suggested by the Respondent. Consequently the Claimant is not indebted to the Respondent and a question of set-off does not arise.

Compensatory Award

The Court has considered the submissions made in relation to the appropriateness of the compensatory award made by the Rights Commissioner. In all the circumstance of the case the Court does not believe that there is a basis for interfering with that award.

Determination

For the reasons set out the Court is satisfied that the decision of the Rights Commissioner is correct and ought to be upheld. Accordingly the appeal and the cross appeal are disallowed and the decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court

Kevin Duffy
15th November, 2010______________________
MG.Chairman

NOTE

Enquiries concerning this Determination should be addressed to Madelon Geoghegan, Court Secretary.