FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HSE SOUTH - AND - DR. ROBERT J. GORDON (REPRESENTED BY MACCARTHY & ASSOCIATES) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appealing against a Rights Commissioner's Decision R-066330-Ft-08/MMG
BACKGROUND:
2. The HSE appealed the Rights Commissioner's decision to the Labour Court on the 29th November, 2010. A Labour hearing took place on the 14th June, 2011, in Wexford. The following is the Court's determination:
DETERMINATION:
This is an appeal by HSE South against a Decision of a Rights Commissioner which found that Dr. Robert J. Gordon came within the terms of Section 9(2) of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). Accordingly, the Rights Commissioner found that Dr. Gordon was, as of the 1st February, 2008, entitled to a contract of indefinite duration under the terms of Section 9(3) of the Act.
At the hearing before the Rights Commissioner on 2nd April, 2009, the Respondent raised a preliminary issue contending that the claim was out of time under Section 14(3) of the Act. Having considered the submissions made by both parties, on 20th October, 2010 the Rights Commissioner issued his Decision. He found that the claim was not out of time, and without conducting a hearing on the substantive issues or outlining his reasons, he proceeded to consider the substantive complaint and found that it was well-founded.
The Respondent appealed that Decision.
For ease of reference in this Determination the parties are referred to using the designation prescribed by section 77(4) of the Act. Hence, Dr. Gordon is referred to as “the Complainant” and HSE South is referred to as “the Respondent”.
Background
The Complainant commenced employment with the Respondent on 28th April 2003 as a Temporary Consultant Anaesthetist on a series of fixed term contracts.
�28th April 2003 to 28th July 2003
�29th July 2003 to 29th October 2003.
�25th November 2003 to 1st February 2004 (on leave)
�2nd February 2004 to 17th September 2004
�18th September 2004 to 7th October 2004 (on leave)
�8th October 2004 to 15th October 2004
�18th October 2004 to 6th September 2005
�6th September 2005 on specified purpose contract stating“your employment will cease when the post has been filled permanently by the Public Appointments Service”
�1st January 2007 on specified purpose contract pending“theplacement of a permanent Consultant in the position".
The Complainant continued to work for the Respondent on a temporary basis until 9th November, 2009.
A complaint was referred to the Rights Commissioner on the 20th June, 2008. By letter dated 5th August, 2008, the Respondent terminated the Complainant's specified purpose contract, which commenced on the 1st January, 2007, with effect from 31st August, 2008.
The Complainant’s Case
Ms. Máiread McKenna, B.L. instructed by MacCarthy & Associates Solicitors, on behalf of the Complainant, stated while the Complainant was first employed by the Respondent on 28th April 2003, from 8th October, 2004, until the date his complaint was referred to the Rights Commissioner on 20th June, 2008, he worked without a break. Each successive contract followed the termination of the previous one or overlapped with it.
The first contract upon which the Complainant relied for the purpose of establishing whether he was entitled to a contract of indefinite duration was the contract between which commenced on the 2nd February 2004. Ms. McKenna submitted that this came into being after the passing of the Act on the 14th July 2003. Thereafter, Ms. McKenna submitted that the Complainant was employed by the Respondent under a series of successive contracts and on the 1st February 2008 he became entitled to a contract of indefinite duration by virtue of the provisions of Section 9(2) of the Act.
Section 9(2) of the Act provides as follows:
- “Where, after the passing of the Act, a fixed term employee is employed by his or her employer, or associated employer, on two or more continuous fixed term contracts and the date of the first such contract is subsequent to the date upon which this Act is passed, the aggregate duration of such contracts shall not exceed four years.”
The Act came into Law on the 14th July, 2003.
The Respondents’ Case
Mr. Adrian Tennant, HSE disputed that section 9(2) of the Act applied in this case, as the Complainant’s first contract commenced prior to the enactment of the Act. He submitted that the claim for a contract of indefinite duration was out of time and in any event Section 9(4) of the Act applied and there were objective grounds for not doing so. Furthermore Mr. Tennant stated that the contracts were not continuous. He stated that the Complainant resigned from his employment with the Respondent at St. Luke’s Hospital, Kilkenny on 26th September 2006 and commenced on a new contract with Wexford General Hospital on 1st January 2007.
The Law
Section 9 of the Act provides as follows: -
- 9.—(1) 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.
(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
The Court’s Findings
As a preliminary matter the Court decided to investigate the issue of whether the Complainant meets the criteria of continuous employment as stipulated under Section 9 in order to qualify for a contract of employment. Section 9(5) of the Act provides that the First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.
- The First Schedule of the Minimum Notice and Terms of Employment Acts 1973 to 2001 provides 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.
- ( a ) the dismissal of the employee by his employer or
- “The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.”
However, the legislation does not allow for any exceptions where an employee voluntarily leaves his/her employment. As there was some dispute between the parties on the validity or otherwise of the Complainant’s resignation, the Court requested both sides to address the issue as a preliminary matter.
Position of the Parties –“Resignation” of the Complainant
Mr. Tennant gave details of a letter dated 26th September 2006 written by the Complainant to the Respondent notifying it of his intention to leave his position at St. Luke’s Hospital in order to take up a post in Wexford General Hospital commencing on 2nd January 2007. In that letter he informed the Respondent that he needed to have surgery on 12th October 2006, therefore he would be availing of sick leave from 11th October and he gave notice of his intention to terminate his employment at St. Luke’s with effect from 1st January 2007. Mr. Tennant was of the view that this was a letter of resignation.
Ms. McKenna submitted that this was not a “resignation” letter, as he was not voluntarily leaving his employment. She stated that as the Complainant was aware that the position which he held in Kilkenny was about to be filled on a permanent basis he therefore wished to avail of an upcoming temporary vacancy in Wexford. She said that in reality what was in fact happening was only an agreed process for transferring the temporary consultant i.e. the Complainant, from one hospital to another in the region. The Complainant informed the Court that the Medical Manpower Manager had informed him of the upcoming permanent appointment.
Mr. Tennant disputed this contention saying that when the letter was written in September 2006 it was not possible to know that the position at St. Luke’s in Kilkenny was about to be filled on a permanent basis. In a supplementary submission to the Court he stated that it was not until 6th November 2006 that the Public Appointments Service first informed the Respondent that a successful candidate had been selected for the permanent filling of the post in Kilkenny. So the Medical Manpower Manager would have had no idea that a successful candidate had been recommended at the time of the Complainant’s letter in September 2006.
The successful candidate was offered the permanent post by letter dated 14th November 2006. By letter dated 11th January 2007 his appointment was finalised, he was supplied with a Consultant’s Contract and notified of a starting date of 15th January 2007.
Conclusion of the Court –“Resignation” of the Complainant
The Court has considered the oral and written submissions of both parties to determine the preliminary matter raised. In order to qualify for a contract of indefinite duration under Section 9 an employee must have continuous employment for a stipulated period as defined by the 2003 Act with reference to the 1973 to 2001 Acts as outlined above. The Court is satisfied that the letter dated 26th September 2006 notified the Respondent of the Complainant’s intention to leave St. Luke’s to take up a position in Wexford General Hospital and in the meantime time to avail of a period of sick leave from 11th October 2006.
The Respondent replied to that letter on 1st December 2006. The response acknowledged the 26th September 2006 letter and exclusively dealt with notifying the Complainant of his sick leave entitlements. That response came from the Medical Manpower Manager. At no point does the latter refer to the Complainant’s “resignation”. There clearly was no acceptance of a resignation. The Court is satisfied that this letter confirms the evidence given by the Complainant that the Medical Manpower Manager did not treat the letter of 26th September 2006 as a resignation letter but as notification of his intention to transfer to Wexford General Hospital, with a period of sick leave in the interim. The Complainant had previously worked in Wexford General Hospital prior to working in St. Luke’s Hospital, Kilkenny.
The Court notes that the Complainant continued to be paid by the Respondent at all times during this period, he did not receive a P45 and his employment in Wexford General Hospital was a seamless transition from one hospital to another. The Respondent arranged for Locum-cover to cover his sick leave.
Furthermore, while the Respondent was not aware of the appointment of the successful candidate until 6th November 2006 and consequently there could have been no certainty regarding the filling of that post when the Complainant submitted his letter of 26th September 2006, the evidence shows that with effect from 12th September 2006, the Public Appointments Service had given authorisation for such an appointment, following the Respondent’s application to the Service for such a permanent post made on 7th June 2005.
Moreover, the Court notes that in compliance with the Complainant’s contract of 6th September 2005 he knew he was being retained on a specified purpose contract pending the post being filled on a permanent basis by the Public Appointments Service. Consequently it was incumbent on him to avail of any further employment opportunities which may arise. He obviously became aware of such a temporary position in Wexford General Hospital and was successful appointed to it.
For all of the above reasons the Court is satisfied that there was no resignation and the Complainant’s employment with the Respondent was “continuous” as defined by the First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001.
Determination on the Preliminary Matter –“Continuous employment”
On the preliminary matter raised the Court determines that the Complainant satisfied the criteria outlined by Section 9 of the Act and accordingly the Court will now proceed to investigate his claims under the 2003 Act. Accordingly, having found that the Complainant did not resign the Court will now proceed to investigate his substantive claim that he is entitled to a contract of indefinite duration.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
23rd August, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.