FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : UNIVERSITY COLLEGE DUBLIN - AND - A WORKER (REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner's Decision r-094660-ft-10/TB.
BACKGROUND:
2. The worker referred her case to the Labour Court on the 2nd June, 2011. A Labour Court hearing took place on the 14th October, 2011. The following is the Court's Determination:-
DETERMINATION:
1.Introduction:-
a. The case comes before the Court pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act 2004.2.The Complainants:-
a. The Complainant commenced employment with the Respondent as a Lecturer in the School of Nursing, Midwifery and Health Systems in UCD on 24 November 2005. She was employed on four successive fixed-term contracts. The Complainant resigned from her post effective 31st January 2010 to take up employment with another University.
b. She contends that:-
- i. pursuant to Section (9)(1) of the Act, she became entitled to a contract of indefinite duration on the 24th November 2009
ii. Contrary to the provisions of Section 10 of the Act she was not informed in relation to vacancies that became available and consequently did not have the same opportunity to secure a permanent position as other employees.
- i. “objective grounds” that justified the renewal of the fixed-term contract of employment existed at the relevant time and relies on the provisions of Section 9(4) of the Act
ii. The Complainant was notified of all employment vacancies that arose in the course of her employment were notified to her “by means of a general announcement at a suitable place in the undertaking or establishment” and relies on Section 10(2) of the Act.
iii. The Respondent contends that the Complainant, in order to take up employment elsewhere , of her own volition, resigned her post on 31st January 2010, some three months before the end of her fixed-term contract of employment.
a. The Complainant took up employment with the Respondent in the School of Nursing, Midwifery and Health Systems on 24th November 2005 under a one year fixed-term contract of employment. On 1 November 2006 her employment was continued by way of a second fixed-term contract of employment, again for one year. On 1 November 2007 she was employed on a twoyear fixed-term contract of employment. Finally, on 1 November 2009 she was employed on a further fixed-term contract of employment. This time the contract was for an extension of six months from 13th November 2009 to 30th April 2010 to cover the duration of the maternity leave of two named employees.
b. The 2005, 2006 and 2007 contracts stated that the Complainant’s employment was fixed-term in nature as she was “temporarily replacing a member of staff who is currently on leave or acting/seconded to another post.”
c. The 2009 contract was for a fixed-term by way of an extension to the Complainant's previous temporary contract of employmentand that the “objective grounds for issuing this specified purpose contract rather than a permanent contract is to cover the maternity leave of (two employees named) while they are absent from their posts. The contract will end on the return of (two named employees) to their posts, or their resignation, or retirement, whichever occurs first.”
d. The Complainant received an offer of a fixed-term contract of employment with another University in December 2009. As this guaranteed her employment for the following academic year she approached the Respondent to determine whether it was intending to extend her employment to cover that period. She was told by the Head of School that there was “no possibility” of further employment for the following academic year. Accordingly she resigned her post and accepted the alternative offer of employment.
e. Within days of the Complainant leaving her post the Respondent advertised a vacancy to provide cover for maternity leave in the School of Nursing, Midwifery and Health Systems.
4. Section 9(1)
a.Complainant’s Position
- i. The Complainant contends that, having had four fixed-term contracts over a continuous period of four years' employment with the Respondent, she became entitled to a contract of indefinite duration on 24th November 2009.
ii. She contends that no sustainable objective grounds for offering her a further fixed-term contract of employment have been advanced by the Respondent. She further contends thatDirective 99/70/ECis designed to prevent the abuse of successive fixed-term contracts of employment. She makes reference to the Decision inHSE v Kahn(FTC064) where this Court said“where a statutory provision allows derogation from what is an important social right derived from the law of the European Community, it must be construed strictly against the person seeking to rely on it”.
iii. She contends that statutory onus of proving the existence of “objective grounds” within the meaning of Section 7 of the Act lies with the employer. She contends that where there is any doubt or ambiguity in the Respondent’s position or behaviour in this matter it should be construed against the person seeking to avail of the defence.
iv. She contends that she was unaware of whom she was replacing when she accepted the first three contracts under which she was employed. She contends that none of those contracts make any reference to any individual whom she was replacing at that time. She says that the Respondent did not identify any of those people to her until after she had commenced the present proceedings. She contends that on examining the nature of the work they were employed to do she says that she discovered that she did not teach any of their core subjects to either undergraduate or post-graduate students in the University. She further says that she pursued completely different avenues of specialty in the course of her employment to those that any of the staff she was allegedly replacing undertook.
v. She submitted that she only became aware of whom it was she was allegedly replacing in the course of the Rights Commissioner’s investigation of her complaint. She submitted that this information was contained in internal management approval forms that relate to financial approvals rather than academic affairs and cannot be relied upon as in any way indicative of the work she undertook or of the existence or otherwise of an actual vacancy within the University.
- vi. She contends that the work she did over the four years of her employment with the Respondent did not change in any material way despite the contention that she was employed to replace specific individuals each of whom performed work that was different to that which she undertook. She contends that this demonstrates that she was not in fact replacing any of those staff members who were absent from work.
Respondent’s Position
I. The Respondent contends that the Complainant was initially employed on a series of three fixed-term contracts of employment to replace members of staff that were on leave for one reason or another. The Respondent supplied copies of internal staff replacement approval forms in respect of each of those contracts of employment specifying the name of the person being replaced and the period of time for which approval was sought and granted. The Respondent did not dispute that these forms were not provided to the Complainant nor referred to in the relevant fixed-term contracts of employment. However it maintains that this does not detract from the real nature and purpose of those fixed-term contracts of employment.
II. The Respondent contends that the final fixed-term contract of employment was for the specific purpose of replacing two members of staff that were on maternity leave. In this case the fixed-term contract offered to the Complainant specifically identified both the purpose for which it was being offered and the personnel whose maternity leave gave rise to it in the first place. The Respondent contends that this amounted to objective grounds justifying the decision to offer the Complainant a further fixed-term contract of employment and enabled it to avail of the defence set out in Section 9 (4) of the Act.
III. The Respondent contends that the Complainant resigned her position to take up employment with another University and thereby severed her connection with the Respondent and cannot claim the protection of the Act.
IV. In response to the complaint pursuant to Section 10(1) of the Act the Respondent contends that it advertises all vacancies in the University on the College’s HR website which is readily accessible to all staff. The Respondent contends that this method of advertising vacancies meets with the requirements of Section 10(2) of the Act.
V. The Respondent further contends that the Complainant had resigned from her post before the vacancy that is the subject of her complaint was advertised. Accordingly, the Respondent contends that she was no longer a fixed-term employee for the purposes of Section 10(1) of the Act at the relevant time.
VI. The Respondent further contends that the information given to the Complainant in response to her enquiry as to whether there was “any possibility” of work for the following year was honestly answered by the Head of College on the basis of information available to her at that time.Findings of the Court:The Court finds that the Respondent complied with the provisions of Section 10(1) and accordingly the complaint that it did not comply with the provisions of Section 10(1) is not well-founded. The Respondent advertised all vacancies within the employment by means of a general announcement at a suitable place in the undertaking or establishment. In this case this was done by way of an announcement on the internal HR Website that was accessible to the Complainant. Accordingly the Respondent was acting in accordance with the provisions of Section 10(2) of the Act. Furthermore, the Respondent had left her employment at the time that the vacancy complained of was advertised. The Court, having considered the submissions of both parties and the information made available to it, finds that the Head of College answered the enquiry from the Complainant regarding the possibility of work the following year accurately based on the information available to her at that time.
Contract of Indefinite Duration:-
The Court finds that the Complainant is entitled to a contract of indefinite duration with effect from 24th November 2009.
The Court makes this finding on the following bases:-
I. It is common case that the Complainant had been employed by the Respondent on two or more continuous fixed-term contracts of employment the aggregate duration of which exceeded four years. On this basis, the Complainant became entitled to a contract of indefinite duration pursuant to Section 9(2) of the Act unless the Respondent could rely on the saver set out in Section 9(4) of the Act.
II. The Respondent relied on Section 9(4) to justify the decision to offer the Complainant a further fixed-term contract.
III. Where an employer is relying on the provisions of Section 9(4) of the Act the burden of proving that the further fixed-term contract of employment comes within the provisions of that Section lies with the employer.
IV. In this case the Respondent relies on the fact that the disputed contract contains the names of two employees that were being replaced by the Complainant on the further fixed-term contract. It contends that this is sufficient to bring it within the scope of Section 9(4) of the Act.
V. The Court takes the view that simply naming two people that are absent on maternity leave in the fixed-term contract is not sufficient in itself to discharge the burden of proof that lies with the Respondent. It must also show that the work being undertaken by the person on that fixed-term contract of employment amounted to a genuine replacement of the two people on maternity leave. The Court takes the view that this might be either by way of a simple and direct assignment of the work of those on leave to the person who was contracted to replace them. Alternatively, it might be by way of a general reallocation of work within a group to match skill sets whilst the replaced personnel are on leave. However, whichever way is chosen, the employer must demonstrate the reality of the replacement to the Court in order to rely on Section 9(4) of the Act.
VI. In this case the Respondent simply asserted that the Complainant was taken on to replace those on maternity leave. However after the Court examined the submissions of both parties it was clear that the Complainant undertook work that had no relationship to that which had been carried out by the two staff members whom she was allegedly replacing. Instead she carried out substantially the same work she had been undertaking both throughout and before either of them went on maternity leave. Moreover, the Respondent did not present any evidence to the Court to support its contention that there had been a general reallocation of work consequent upon the departure of the two staff members on maternity leave.
VII. Accordingly, the Court finds that, on the balance of probabilities, the Complainant was not in fact replacing the two staff members named in the contract of employment but rather was undertaking the core work of the School and was deprived of a contract of indefinite duration on financial grounds rather than on any objectively justifiable grounds pursuant to Section 9 (4) of the Act.
VIII. The Court finds that the Complainant did not resign from her contract of indefinite duration post but rather resigned from her pre-existing fixed-term contract of employment which she had been given by the Respondent prior to her entitlement to a contract of indefinite duration which arose on 24th November, 2009. The Court finds, on the information provided to it in the course of the hearing of this matter, that the Complainant would have remained in her employment with the Respondent had she been assured of work the following year. Had the Respondent acknowledged that she was entitled, by operation of law, to a contract of indefinite duration the Court finds that she would not have resigned her position to secure he income and employment elsewhere. Accordingly, the Court finds that the Respondent cannot now rely on that resignation to defeat the claim before the Court. The Court finds accordingly that the Rights Commissioner erred in this regard and sets that Decision aside.
Determination
I. The Court determines that the complaint that the Respondent acted contrary to the provisions of Section 9(2) of the Act is well- founded.
II. The Court determines that the complaint that the Respondent acted contrary to the provisions of Section 10(1) of the Act is not well-founded.
III. The Court requires the Respondent to re-instate the Complainant with effect from the date upon which she became entitled to a contract of indefinite duration, namely, 24th November 2009, and to pay her any salary which she would have received had she continued in uninterrupted employment offset by the amount(s) of salary she received from her other employment(s) since that date to date.
IV. The Decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Brendan Hayes
16th December, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.