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. S.M. TAJUL MILLAT (REPRESENTED BY ANTHONY KERR, B.L.) (INSTRUCTED BY DOYLE SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner's Decision r-064963-ft-08/POB.
BACKGROUND:
2. The Respondent appealed the Rights Commissioner's Decision to the Labour Court on the 21st August, 2009. A Labour Court hearing took place on the 29th June, 2010. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by HSE South against the Decision of a Rights Commissioner which found in favour of Dr. S. M. Tajul Millat’s complaint under Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (“the Act”). The Rights Commissioner decided that Dr. Millat was entitled to a contract of indefinite duration with effect from 1st July 2007 on the same terms and condition as applied to him previously. He recommended reinstatement and compensation for the losses incurred since 31st December 2007.
At the Rights Commissioner hearing Dr. Millat claimed that the HSE South failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract pursuant to Section 9 of the Act. Furthermore, he claimed that his dismissal on 31st December 2007 was contrary to Section 13(d) of the Act as it was for the purpose of avoiding a fixed-term contract being deemed to be a contract of indefinite duration under Section 9(3) of the Act.
For ease of reference the parties are referred to in this Determination using the designations prescribed as they were at first instance of the Act. Hence, Dr. Millat is referred to as "the Complainant" and HSE South as " the Respondent".
Background
The Complainant commenced employment as a Senior House Officer in Obstetrics/Gynaecology in South Tipperary General Hospital (South Eastern Health Board (SEHB) a predecessor of HSE South) on a series of locum and fixed-term contracts between 4th September 2000 to 31st December 2001. From 1st January 2002 to 31st March 2003 he was employed by the Respondent on a series of fixed-term contracts as a Senior House Officer with South Tipperary Mental Health Services (SEHB). From 1st April 2003 to 30th June 2003 he was employed on a further fixed-term contract as a Senior House Officer in Obstetrics/Gynaecology in South Tipperary General Hospital (South Eastern Health Board). Following the expiry of the last contract the Complainant spent the next six months looking after his daughter with “special needs”.
He was then re-employed as Senior House Officer in Obstetrics/Gynaecology in South Tipperary General Hospital as a Senior House Officer on a number of successive fixed-term contracts as follows: -
1st January 2004 - 30th June 2004
1st July 2004 - 31st December 2004
1st January 2005 - 30th June 2005
1st July 2005 - 31st December 2005
1st January 2006 - 30th June 2006
1st July 2006 - 30th December 2006
1st January 2007 - 30th June 2007
1st July 2007 - 31st December 2007
The Complainant’s contract was not renewed after 31st December 2007.
The Complainant’s case
Mr. Anthony Kerr, B.L., on behalf of the Complainant, submitted that the contract commencing on 1st January 2004 was a contract in succession to that which had expired on 30th June 2003 and accordingly under Section 9(1) of the Act he was entitled to a contract of indefinite duration from 1st July 2004.
He submitted that this Court is required to interpret Section 9 in a manner consistent with the obligation imposed on Ireland by Clause 5 of the Framework Agreement annexed to Council Directive 99/70/EC which is designed to prevent abuse arising from the use of “successive fixed-term employment contracts or relationships”.
Mr Kerr submitted that insofar as there is a difference between “continuous employment” and “successive employment” Section 9(5) of the Act cannot be construed as providing protection which is narrower in scope than that required by the Directive. In advancing that argument Counsel relied on the decision ofDepartment of Foreign Affairs v Murphy[2007] ELR 332 where the Labour Court found that there was “a significant qualitative difference” between the concept of a continuous employment relationship and one which was successive. The Court went on to say that the former connoted“an employment relationship without interruption whereas the latter indicates a series of relationships which follow each other but can be separated in time”. On the facts of that case the Court found that the periods separating the contracts were to be regarded as periods of lay-off and thus, having regard to the First Schedule to the Minimum Notice and Terms of Employment Act, 1973 (“the 1973 Act”), their continuity of employment was not broken.
Mr. Kerr submitted that in the event that the Court finds that the Complainant’s employment was not continuous within the meaning of the First Schedule of the 1973 Act, then the fixed-term contract of 1st April 2003 to 30th June 2003 and that of the 1st January 2004 contract were “successive” within the meaning of Clause 5 of the Framework Agreement.
Furthermore, Mr. Kerr contended that if the Court finds that the Complainant’s employment was not continuous, or he was not employed on “successive” contracts of employment, then the non- renewal of his last contract was solely for the purpose of avoiding any further fixed term contracts being deemed to be a contract of indefinite duration. Therefore he was penalised and entitled to bring a complaint under Section 13(d) of the Act.
Mr. Kerr contended that the Complainant was unsuccessful in applying for the advertised post (details of which are more fully set out further in this Determination), which was due to commence on 1st January 2008 and which by default would have entitled him to a contract of indefinite duration. To substantiate his contention, Mr. Kerr maintained that the Complainant was replaced by a Doctor (Dr. N) at Registrar level, who was employed on a permanent contract, thereby losing its status as a training post.
The Respondent’s case
Mr. Adrian Tennant, on behalf of the HSE, appealed the Rights Commissioner’s Decision on the basis that the Complainant was not in the employment of the HSE South (then known as the South Eastern Health Board) on the date of the enactment of the Act, therefore he contented that Section 9(1) does not apply. Furthermore, he held that as the Complainant did not come within the scope of Section 9(2) therefore he could not establish an entitlement to a contract of indefinite duration under that Section.
Mr. Tennant denied that the Complainant’s employment was terminated in order to avoid his contract of employment becoming one of indefinite duration. He contended that the Complainant had exhausted the training potential of the post which was recognised by the Institute of Obstetricians and Gynaecologists as a training post. Consequently, his contract came to an end by effluxion of time.
Mr. Tennant told the Court that from 1st January 2004 the Complainant had held a training post which was recognised as such by the Institute of Obstetricians and Gynaecologists in South Tipperary General Hospital. During his entire period of employment, he was attempting to pass the MRCOG Part 1 Examination, which he needed to progress in medicine. He sat the MRCOG Part 1 Examination on a number of occasions, both in Ireland and the UK and received study leave and examination leave in support of his attempts. However, he did not succeed in passing the Exam.
The Obstetrics /Gynaecology Department in the Hospital had four Senior House Doctor posts recognised by the Institute of Obstetricians and Gynaecologists as training posts for basic specialist training on a two-year postgraduate medical training programme, accredited by the Royal College of Physicians of Ireland and undertaken in full-time SHO posts in Irish hospitals.
While the Complainant was still employed in the training post on a contract due to expire on the 31st of December 2007 the Hospital advertised four SHO posts in Obstetrics/Gynaecology due to commence on the 1st January 2008. The criteria for these posts were as follows:
“Part 1/ Diploma in Women’s Health:
18 months obs/gynae experience in Teaching Hospital. Career progression to date
Applicants who are currently employed in the post of Senior House Officer in the speciality of Obstetrics /Gynaecology in South Tipperary General Hospital, Clonmel for a period of two or more years, will not be short listed for interview on the basis that they would not benefit from further training in the post.”
The Respondent informed the Court that there were 76 applicants for these accredited post-graduate training posts due to commence on 1st January 2008, 37 were short-listed for interview, however, only 7 attended. Out of the 37 short-listed 4 had experience in the Hospital, none of whom had more than 2 years' continuous service as SHO’s in the Obstetrics /Gynaecology Department. As the Complainant had at this point in excess of 3½ years’ experience in the post and had still failed to achieve his MRCOG qualifications, he was not short-listed for interview for the post. This post was in fact the post which Dr. N. subsequently was successful in applying for and it continued as a designated training post.
The Respondent disputed the Complainant’s contention that Dr. N was employed in a permanent capacity at Registrar level and informed the Court that she was appointed on a six-month contract from 1st January 2008 as an SHO, following her successful application for the post of SHO, passing the short-listing criteria and performing well at interview. She remained in the Hospital on two further contracts until 30th June 2009. At that point, as she was nearing the two-year cut-off point stipulated in the short-listing process, she then applied for and was successfully appointed to a Registrar post from 1st July 2009 having spent 1 ½ years as an SHO in her last period of employment with South Tipperary General Hospital.
Conclusions of the Court:
Entitlement to a Contract of Indefinite Duration
The Complainant’s first fixed-term contract with the Respondent commenced on 4th September 2000. His last contract terminated on 31st December 2007. It is clear that if his employment over this period was continuous within the meaning of Section 9 of the Act his fixed-term employment would have transmuted to employment of indefinite duration by operation of Section 9(3) of the Act. Conversely, if the Complainant’s employment over this period was not continuous within the statutory meaning, and the effective date on which his reckonable employment commenced was 1st January 2004, his claim in respect to a contract of indefinite duration would fall to be considered under Section 9(2) of the Act. In that event it is clear that the Complainant did not have the requisite four years of continuous fixed-term employment in order to accrue a contract of indefinite duration by application of that Subsection. It therefore follows that this aspect of the case turns on whether the Complainant’s continuous employment is to be reckoned from 4th September 2000 or from 1st January 2004. That raises the question of how the expression “continuous employment” should be construed for the purpose of applying Section 9 of the Act.
Successive Employment v Continuous Employment
Counsel for the Complainant pointed out that the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, which is given effect in domestic law by the Act of 2003, is intended to provide protection against the abuse of ‘successive’ fixed-term contracts rather than ‘continuous’ contracts as is provided for in the Act. Counsel submitted that as there is a conflict between the relevant provision of the Framework Agreement and the Act, then the provisions of the Framework Agreement should be applied. It was argued that while the Complainant’s employment may not have been continuous it was successive within the ordinary meaning of that term.
In considering this point the Court is satisfied that the language of Clause 5 of the Framework Agreement is not sufficiently unconditional as to meet the criteria for the application of this doctrine and consequently the Doctrine of Direct Effect of European law has no application in this case. That was made clear by the ECJ inIMPACT v Minister for Agriculture and Food[2008] IRLR 552. There is, however, the obligation to interpret domestic law, as far as possible, in the light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. This interpretative obligation applies “as far as possible”. However, the ECJ and domestic Courts have made it clear that it should be applied unless the interpretation which is compatible with EU law is plainly impossible.
The Act of 2003 was enacted so as to transpose in domestic law Directive 1999/70 the purpose of which is to give legal effect to the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP. The provisions of Clause 5 of the Framework Agreement are relevant for present purposes. That Clause provides: -
- Measures to prevent abuse (Clause 5)
1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships.
- 2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:
(a) shall be regarded as "successive"
(b) shall be deemed to be contracts or relationships of indefinite duration.
Meaning to be ascribed to ‘successive’ and ‘continuous’
The result intended by Directive 1999/70 and Clause 5.2 of the Framework Agreement is to prevent the abuse of successive fixed-term contracts. It would appear that a Member State cannot implement the Directive by stating that it should apply only to contracts which are immediately renewed on the cessation of the previous contract. This would amount to an unwarranted limitation on the effectiveness of the rights enshrined in the Directive. In any event the position has been clarified by the ECJ in Case C-212/04Adeneler and others v. Ellinkos Organismos Galaktos[2006] IRLR 716. Here it was held that a provision of Greek law, which provided that contracts which are separated by more than twenty days were not to be regarded as successive, was incompatible with Clause 5 of the Framework Agreement. The rationale behind this decision was that an employer could easily contrive to separate contracts by more than twenty days so as to defeat a fixed-term employee’s entitlement under the Framework Directive.
It is therefore necessary for the Court to consider how the State has exercised its discretion in implementing the Directive and Clause 5.2.
The meaning of ‘continuous’ employment’ for the purposes of the Act of 2003
Section 9(5) of 2003 Act makes it clear that what constutites continuous employment is to be determined by reference to the First Schedule of the 1973 Act. The relevant parts are as follows:
COMPUTATION OF CONTINUOUS SERVICE.
- Continuity of Service
1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—
( a ) the dismissal of the employee by his employer or
( b ) the employee voluntarily leaving his employment.
10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—
( a ) a lay-off,
( b ) sickness or injury, or
( c ) by agreement with his employer,
such period shall count as a period of service.
On the expiry of his fixed-term contract on that date the Complainant did not seek to be re-employed although he was free to do so. He told the Court that he spent the following six-months caring for his daughter full-time. Nor did he seek leave of absence for this purpose although it is the policy of the Respondent to facilitate employees with special leave so as to fulfil family responsibilities.
The post formerly held by the Complainant up to 30th June 2003 was filled by another Doctor with effect from 1st July 2003. When a post again became vacant the Complainant successfully applied for appointment and obtained a six-month fixed-term contract commencing on 1st January 2004. There is no evidence upon which it could be held that at the time the employment relationship ended either the Complainant or the Respondent intended that it would be resumed or that they regarded the cessation as temporary. On the evidence furnished the Complainant cannot avail of the circumstances set out to have his employment deemed continuous.
In these circumstances the Court is not satisfied that the Complainant’s contract which expired on 30th of June 2003 and the contract which he subsequently entered into on 1st January 2004 can be regarded as continuous within the meaning of the Act as harmoniously interpreted with Clause 5 of the Framework Agreement.
Penalisation Claim
In the alternative the Complainant contends that termination of his employment on 31st December 2007 was for the purpose of avoiding any further fixed term contracts being deemed to be a contract of indefinite duration.
Section 13(1) of the Act prohibits penalisation and provides as follows: -
- (1) An employer shall not penalise an employee—
(a) [not relevant]
(b) [not relevant]
(c) [not relevant]
(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under Section 9(3).
The essence of the Complainant’s case is that if his fixed-term contract, which expired on 31st December 2007, had been renewed he would then have accrued the requisite four years’ continuous employment from 1st January 2008 thereby ensuring his fixed-term contract became one of indefinite duration. The Complainant contends that the Court should infer that in not renewing his fixed-term contract the Respondent was motivated in whole or in part by a desire to avoid such an eventuality.
The Respondent denied that the non-renewal of the Complainant’s post was connected with the purpose of avoiding his fixed-term contract being deemed to be one of indefinite duration. It is the Respondent’s case that the post held by the Complainant was a training post in South Tipperary General Hospital which is recognised as such by the Institute of Obstetricians and Gynaecologists. The Court was told that the Complainant was attempting to pass the MRCOG Part 1 Examination, which he needed to progress in medicine. According to the Respondent, during the period of his employment with South Tipperary General Hospital the Complainant took the MRCOG Part 1 Examination on a number of occasions, both in Ireland and the UK, and received study leave and examination leave in support of his attempts. When he did not succeed in passing the Exam the Hospital’s Consultant Obstetrician/ Gynaecologist took the view that he would not benefit any further from training in the post. This, in the Respondent’s submission, was the reason for not renewing the Complainant’s fixed-term contract on its expiry, by effluxion of time, on 31st December 2007. The Respondent further contended that its overriding reason was to preserve the training post for the benefit of other practitioners who wish to progress in their study of medicine.
Circumstances in which penalisation can arise
Section 13(1)(d) of the Act provides protection against dismissal, the object or purpose of which is to prevent a fixed-term employee from accruing an entitlement to a contract of indefinite duration. It is thus an important instrument in the prevention of abuse of fixed-term contracts. As was recognised by the ECJ inAdenelersuch abuse can arise from the continuous use of fixed-term employment contracts to meet the fixed and permanent needs of the employer. A clear objective of both the Framework Agreement and the Act is the prevention of such abuse. That objective could be effectively frustrated if an employer could dismiss a fixed-term employee with impunity before he or she could accrue a right to a contract of indefinite duration so as to replace them with another fixed-term employee.
Was the Complainant penalised?
It is clear from the language of Section 13(1)(d) that the avoidance of a fixed-term contract being deemed to be one of indefinite duration need not be the sole or the principal reason for the dismissal. It is enough if it is a contributing or operative cause in the sense that ‘but for’ the inevitability of the employee’s fixed-term contract becoming one of indefinite duration it would have been renewed.
It is clear on the evidence that the post held by the Complainant was a training post and that it was one of four such posts approved by the Royal College of Physicians in Ireland for basic specialist training in obstetrics /gynaecology. It is intended to be a two-year postgraduate training programme. It is also clear that on each occasion on which the Complainant’s fixed-term contract expired the post was re-advertised and the Complainant was obliged to apply for reappointment. The Court is further satisfied that in deciding on the allocation of these posts the primary criterion was the training benefit which a candidate could derive from the post.
In the instant case the Complainant made several unsuccessful attempts to obtain the qualification towards which the post was directed. When his final fixed-term contract expired in December 2007, the post was again advertised and the Complainant applied for reappointment. At that point the Complainant had spent three-and-a-half years on a training programme, which is intended to be of two years’ duration, and had still failed to obtain the MRCOG qualifications towards which the programme is directed.
The Court is satisfied on the evidence that in these circumstances the Respondent came to the bona fide belief that the Complainant could not derive further benefit from participation in the training programme for which the post is primarily intended. It was against that factual background that the Respondent decided not to shortlist the Complainant on foot of his application for a renewal of his fixed-term contract for a further term.
It follows from these findings that the dominant and operative reason for not renewing the Complainant’s employment for a further fixed-term was to preserve the post in issue as a training post and to allocate that post to another Doctor who could derive a benefit from its training potential. It follows that the Court is not satisfied that the decision to terminate the Complainant’s fixed-term employment was wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under Section 9(3) of the Act.
Determination
For all of the reasons set out herein the Court is satisfied that the Respondent did not contravene the Act in relation to the Complainant. Accordingly, the within appeal is allowed and the Decision the of Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th September, 2010______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.