FTD112

Background

Between September 2002 and October 2008 the Claimant was included on a panel from which temporary clerical officer vacancies within the Respondent’s offices were filled. Typically, these vacancies arose from the absence of permanent clerical officers through illness, maternity leave, term time leave or special projects. Occasionally the panels are used to cover exceptional levels of demand within the offices.

When a person on the panel receives a placement they are issued with a fixed-term contract specifying either the duration of the assignment or the purpose for which it is being made. The assignment ends at the expiry of the specified term or on cessor of the specified purpose. The assignee is issued with his or her P45 tax certificate and they are free to take up other employment or to claim social welfare benefits. They remain on the panel for the remainder of its term.

The current practice is that the panels have a life of one year and are then renewed. The Public Appointments Commission oversees the practice of filling the panels which is by open competition. In earlier years panels had a life of two years. Moreover, up to 2007 the highest 50% of an outgoing panel were automatically placed on the succeeding panel.

The Claimant originally obtained a temporary placement with the Respondent on or about 1st September 2002. That placement was for a period of 18 weeks. He obtained three further placements up to 20th February 2004. A break in employment of 35 weeks followed and he obtained a further placement with effect from 26th October 2004. Each placement was pursuant to a contract of employment for a fixed-term. Thereafter his employment history was as shown hereunder: -

The Union’s claim

The Union claims that by reason of his employment history the Claimant became entitled to a contract of indefinite duration by the combined effect of sections 9(1) and 9(3) of the Act. The Union claims, in the alternative, that if s.9(1) is not applicable to the Claimant, he is entitled to the same relief by reliance on s.9(2) of the Act.

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.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

(5) 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.

Position of the parties

The Union’s claim is based on its contention that the Claimant was in the ‘continuous’ employment of the Respondent within the meaning assigned to that term by s.9(5) of the Act, that is to say by reference to the First Schedule of the Minimum Notice and Terms of Employment Acts 1973-2005. Inherent in that submission is the proposition that each of the periods between the termination of one assignment and the commencement of another should be regarded as a period of lay-off, thus preserving the continuity of the employment relationship.

The Respondent’s position is a traverse of that taken by the Union. Its position is that the Claimant was not laid-off between assignments. It contends that at the end of each assignment his employment was terminated. That submission is predicated on the contention that each assignment was a separate contract and that no contractual nexus existed between the Claimant and the Respondent during the breaks. In advancing that argument the Respondent submitted that in order for a lay-off to take effect there must be a reasonable or legitimate expectation that the employment will resume and that the employee must be put on notice to that effect. That argument was based on the provisions of s.11 of the Redundancy Payments Acts 1967.

Decision of the Rights Commissioner
The Rights Commissioner found that the continuity of the Claimant’s employment was broken by reason of a lay-off of more than 26 weeks between 21st February 2004 and 26th October 2004. The Rights Commissioner thus held that the Claimant’s claim fell to be considered by reference to s.9(2) of the Act. In applying that subsection the Rights Commissioner regarded the Claimant’s cognisable service as having commenced on 26th October 2004. She then aggregated the periods during which he was in actual employment (disregarding the breaks between contracts which the Rights Commissioner found to be periods of lay-off) up to the termination of his final assignment on 31st October 2008. On this computation the Rights Commissioner concluded that the aggregate duration of the Claimant’s fixed-term contracts amounted to a total of 164 weeks. Accordingly, the Rights Commissioner concluded that the aggregate duration of the Claimant’s fixed-term did not exceed four years and that he did not accrue an entitlement to a contract of indefinite duration by operation of s.9(2) of the Act.

Issues for consideration

The facts in this case are not seriously in issue on any material point. There are, however, very significant issues of law which have to be considered in relation to the correct construction of s.s. 9(1) and 9(2) of the Act. The difficulty posed here relates to the meaning to be ascribed to the term “continuous employment” as used in s.9(1) and “continuous fixed-term contracts” as used in s.9(2) of the Act. This difficulty arises from the wording of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC, (hereafter the Directive) which the Act was enacted to transpose in domestic law. While s. 9 of the Act is directed at preventing the unlimited use ofcontinuousfixed-term contracts the objective of the Directive is to combat the abuse ofsuccessive fixed-term contracts. In that regard, prima facie, there appears to be a conflict between the language used in the Act and that of the Directive. In considering this apparent conflict the Court must apply the well settled principle of European Law that national law must be interpreted, as far as possible, in light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive.

Successive Employment v Continuous Employment

Relevant provisions

Clause 5. 1 of the Framework Agreement provided: -

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.

Clause 5.2 provides: -

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.

Clause 5 of the Framework Agreement is given effect in our law by s. 9 of the Act. As already observed, it provides, in effect, protection against the abuse of ‘continuous’ fixed-term contracts. The question thus arises as to whether s.9 of the Act is so limited in it scope of application that it has failed to achieve the objective pursued by Clause 5 of the Framework Agreement.

There can be no doubt that on a literal construction of the language used in both the Framework Agreement and the Act there is incompatibility. While all periods of employment which are continuous are necessarily successive not all employment which is successive is necessarily continuous.Prima facie, at least, s. 9 is, therefore, unduly limited in its ambit in that it excludes from the protection of the Act successive periods of employment which are not continuous. That proposition is, of course, predicated on the literal construction of both terms.

Meaning to be ascribed to successive and continuous

It should be noted that Clause 5.2 of the Framework Agreement provides that Members States shall,inter alia, where appropriate, determine under what conditions fixed-term contracts are to be regarded as successive. This introduces a considerable degree of flexibility in determining the meaning to be ascribed to the term in national law. However, the discretion afforded to Members States is by no means unfettered. Member States are bound by the general principles of European Law, including the principle of effectiveness, which requires that a Directive be implemented so as to achieve the result which it is intended to pursue.

The result plainly pursued by Directive 1999/70 is to prevent the abuse ofsuccessivefixed-term contracts. It would seem that a Member State cannot purport to implement the Directive by confining its application to successive contracts which are also continuous since this would amount to an unwarranted limitation on the effectiveness of the rights enshrined in the Directive. In any event the position in that regard had been put beyond doubt by the ECJ inCase C-212/04 Adeneler and others v. Ellinikos 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 20 days were not to be regarded as successive, was incompatible with Clause 5 of the Framework Agreement. In part the rationale for this decision was that the provision was in itself inherently open to being an instrument of abuse in that an employer could easily contrive to separate contracts by more than 20 days so as to defeat a fixed-term employee’s entitlement under the Act.

It is therefore clear that that if Ireland implemented the Directive so as to confine the protection of Clause 5 to those on continuous fixed-term contracts and to exclude those who are on successive contracts which are not continuous, a problem of compatibility arises. It is therefore necessary to consider how Ireland has, in fact, exercised its discretion under Clause 5.2 of the Framework Agreement.

On this point Counsel for the Respondent, Ms Cliona Kimber, BL, referred the Court to the decision of the ECJ in case C-364/07Spyridon Vassilakis and Ors v Dimos Kerkyras[2008] ECR 1-00090. This case, likeAdeneler, concerned a provision of domestic law which defined successive fixed-term contracts by reference to a temporal limit on the period between contracts. In this case the limit in issue was one of three months. In answering the question posed by the Greek referring court, the Court of Justice held as follows: -

Clause 5 of the Framework Agreement on fixed-term employment is to be interpreted as not precluding, as a general rule, a national provision, such as that referred to in the third question, according to which only fixed-term employment contracts or employment relationships that are separated by a period of time shorter than three months can be regarded as‘successive’for the purposes of that clause.

That case is authority for the proposition that a member state may provide in domestic law that contracts which are separated in time by three months or more are not to be regarded as successive for the purpose of implementing Clause 5 of the Framework Agreement annexed to the Directive. It is not, however, authority for the proposition that, in the absence a national statutory provision to that effect, contracts which are separated by more than three months can not be regarded as successive. Clause 5.2(a) of the Framework Agreement left it open to the Oireachtas to provide an outer temporal limit beyond which renewed contracts would not be regarded as successive. The legislature chose not to do so and it is not now open to the Court, by way of interpretation, to import such a provision into the statute.

The relevant statutory provisions in that regard are to be found at s.9 of the Act of 2003 and in the First Schedule of the Minimum Notice and Terms of Employment Act 1973. It is noteworthy that the marginal note to s.9 refers to “successive fixed-term contracts”. However, under s.18 (g) of the Interpretation Act 2005 the marginal note is not to be regarded as part of a statute.

The section plainly refers to continuous employment and continuous contracts. However, s 9(5) makes it clear that what constitutes continuous employment is to be determined by reference to the First Schedule of the Minimum Notice and Terms of Employment Acts 1973-2005. It is well settled that where an Act provides its own definitions a Court should not look outside those definitions in ascribing meaning to word used in the statute (seeMason v Levy[1952] IR 40).

The First Schedule of the Minimum Notice and Terms of Employment Act 1973 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.

2. A lock-out shall not amount to a dismissal of the employee by his employer.

3. A lay-off shall not amount to the termination by an employer of his employee's service.

4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.

5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.

6. 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.

7. If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.

Computable Service

8. Any week in which an employee is not normally expected to work for at least twenty-one hours or more will not count in computing a period of service.

9. If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence shall count as a period of service.

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.

11. If, in any week or part of a week, an employee is absent from his employment because he was taking part in a strike in relation to the trade or business in which he is employed, that week shall not count as a period of service.

12. If, in any week or part of a week, an employee was, for the whole or any part of the week, absent from work because of a lock-out by his employer, that week shall count as a period of service.

13. If any week or part of a week, an employee is absent from his employment by reason of a strike or lock-out in a trade or business other than that in which he is employed, that week shall count as a period of service.

The fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence successive periods of employment, which are not continuous in the literal sense, because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the word ‘continuous’ as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive.

In that context it is necessary for the Court to consider if the Claimant was employed on a serious separate contracts, each of which was terminated by dismissal, or whether the period between contracts can be regarded as lay-offs thus preserving the continuity of the employment within the statutory meaning accorded to that term.

For present purposes the term "lay-off" is defined by s.11 of the Redundancy Payments Act 1967 as follows: -

11.—(1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

There is authority for the proposition that the concept of lay-off can have wide ambit. The High Court, inAn Post v McNeill[1998] ELR 19, accepted that a lay-off is not subject to any temporal limitation. InIrish Shipping v McAdams,Unreported, High Court, Murphy J. 30th January 1987, the Court declined to accept that the Employment Appeals Tribunal had erred in law in finding that two of the Claimants were on lay-off at a time when they were actually in the employment of another shipping line. Moreover, the Court is obligated, as a matter of European law, to interpret and apply the relevant provisions of domestic law, as far as possible, so as to achieve the result envisaged by the Framework Agreement annexed to the Directive. As is clear from Clause 5.1 of the Framework Agreement, the result envisaged by the Directive is to prevent the abuse ofsuccessivefixed-term contracts. This suggests that the Court should seek to interpret, as far as possible, the expressioncontinuous, as used in the Act, as coterminous with the expressionsuccessive, as used in the Framework Agreement.

The Interpretative Obligation

While the Respondent is the State, the doctrine of direct effect of Community Law has no utility in this case. The language of Clause 5 of the Framework Agreement is not sufficiently unconditional so as to meet the criteria for the application of that doctrine (see the decision of the ECJ inIMPACT v Minister for Agriculture and Food[2008] IRLR 552). The obligation to interpret domestic lay in harmony with European Law was first formulated inVon Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891 and later developed further inMarleasing S.A. v La Commercial Internacional de Malimentacion S.A[1990] ECR 4135. The decision inMarleasingwas described by Hamilton CJ inNathan v Bailey Gibson[1996] ELR 114 as“a far-reaching application of the general rule on interpretation which itself is not open to challenge”. Support for this approach can also be found in the judgment of the High Court inMurphy v Minister for the Marine[1997] 2 I.L.R.M. 523. In that case the Court was required to consider the application of s.222B of the Fisheries (Consolidation) Act 1959 in light of the State’s obligations under subsequently enacted provisions of European law. In referring to the obligation on national courts to refrain from interpreting national law in a matter which conflicts with European law, Shanley J held as follows: -

The combined effects of Articles 5 and 189 of the Treaty of Rome , Article 29.4.5� of the Constitution, and the provisions of the European Communities Act 1972 is to oblige this Court to give precedence to community law over national law, and in construing national legislation, the court is obliged to refrain from interpreting such legislation in a manner inconsistent with the provisions of community law. The principle of the supremacy of community law also involves the member states being obliged not to do any act which offends that state's general treaty obligations and that, national courts, in construing national legislation, must do so having regard to those same general obligations which flow from the wording of the Treaty of Rome.

Earlier, inMurphy v Bord Telecom Eireann[1989] I.L.R.M. 53, Keane J. (as he then was) held that where the language used by the Oireachtas, literally construed, yields a result at variance with the law of what was then the European Community, that interpretation must give way to a teleological construction which comports with European law. 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 recent decision of the EAT for England and Wales inEBR Attridge Law LLP and another v. Coleman(No.2) [2010] IRLR 10 illustrates the wide ambit which is to be ascribed to this obligation. This case concerned how effect was to be given to the prohibition of associative discrimination in EU law by interpreting UK law, which made no such provision. In a far-reaching decision, Underhill P., sitting alone, held that in certain circumstances it is permissible for a national tribunal to interpolate words into the language used by Parliament, in order to bring a provision of domestic statute law into conformity with European law. The President set out the following principles which are contained in the headnote to the report: -

• 
  

  The obligation to interpret domestic legislation to give effect to EU law is not limited to resolving ambiguities, ie where the words of the domestic statute admit of more than one“possible”meaning. The court may add words to a statute so as to depart from the unambiguous meaning that the legislation would otherwise bear. The real question is whether the departure is compatible with the underlying thrust of the legislation, or consistent with the scheme of the legislation or its general principles. The interpolated words have to go“with the grain of the legislation.

Can a Lay-Off extend beyond 26 Weeks?

A further question which arises in this case is whether the break of 35 weeks in the Claimant’s employment between 20th February 2004 and 26th October 2004 is capable of being construed as a lay-off. The Rights Commissioner took the view that a break in excess of 26 weeks, even if a period of lay-off, breaks the continuity of employment. The Rights Commissioner formed this view based on her interpretation of paragraph 10 of the First Schedule of the Act of 1973.

Paragraphs 1 to 7 of the First Schedule relate to the circumstances in which employment is to be regarded as continuous. Paragraphs 8 to 13 deal with service which is to be regarded as computable. As already observed, Paragraph 1 of the First Schedule provides, in effect, that all service is to be deemed continuous unless terminated by dismissal or resignation. Paragraph 3 provides that a lay-off shall not amount to a dismissal. Consequently, a lay-off, regardless of its duration, does not break continuity of service. Paragraph 10 of the First Schedule deals not with continuity of service but with computability of service. The effect of this provision is that, for example, in computing the notice to which an employee is entitled under the Act of 1973-2005, periods of service while on lay-off which exceed 26 weeks are to be disregarded. It is clear that while such service is not computable, an absence on lay-off in excess of 26 weeks does not break continuity of service. This was made clear by O’Sullivan J inAn Post v McNeill[1998] ELR 19. This is a matter of considerable importance in determining if the Claimant’s case falls to be dealt with under s.9(1) or s.9(2) of the Act.

Can the Breaks in the Claimant’s Employment be regarded as Lay-offs?

Based on the principles adopted by the Court and already set out in this Determination the Court must consider if the various breaks in the Claimant’s employment can be construed as periods of lay-off thus preserving the continuity of his employment for the purposes of s.9 of the Act. This is a question which must be decided on the facts of the case.

The material facts in relation to the Claimant are: -

A Panel was created in June 2003 to cover the period up to June 2005. The Claimant was no 24 on this panel. He employed record during the currency of this panel is as follows: -

Panel June 2003 – June 2005

Objective Justification

The Court must now turn to consider the question of whether the renewal of the Claimant’s fixed-term employment beyond the point normally permissible by s.9(1) was justified on objective grounds within the statutory meaning of that term.

Section 7(1) of the Act sets out the test for objective justification for the purposes of the Act. It 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.

This formulation is derived from the jurisprudential criteria established by the ECJ against which indirect discrimination may be justified. This approach was first applied in a case of gender discrimination inBilka-Kaufhaus GmbH v. Weber Von Hartz[1986] ECR 1607

It is essentially a three-tiered test which requires that the impugned 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.This test imports questions of proportionality and whether alternate means having a less discriminatory effect are available to achieve the objective in view.

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 Visseri[2002] IRLR 430, at par 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).


InC-212/04Adeneler and others v. Ellinikos Organismos Galaktos[2006] IRLR 716 the ECJpointed outthat the objective grounds relied upon must relate to real and concrete circumstances concerning the work to which the contracts relate. The Court also drew a distinction between what it referred to as work which is intended to meet the fixed-and permanent needs of the employer and that which is intended to meet transient or purely temporary needs.

It is the Respondent’s case that the Claimant was employed to provide cover for temporary absences of permanent staff and that the service which he provided was, by its nature, intended to meet its temporary needs. It claims, moreover, that the need to provide temporary cover is a legitimate aim and that the use of fixed-term contracts is an appropriate and proportionate response to that need. The Respondent further submitted that it would be disproportionate to require it to employ staff over and above its normal need to meet occasional and transient vacancies that arise.

The Union argues that there is a permanent need for staff to provide cover for absences and that, in that sense, the work undertaken by the Claimant should be regarded as part of the fixed and permanent needs of the Respondent. In advancing that argument the Union referred to the large number of temporary staff employed by the Respondent at any time as evincing a real and permanent need for staff to provide cover for temporary absences.

The Union contends that there are no objectively justifiable grounds upon which the Claimant
could be denied a contract of indefinite duration.

Type of Contract to which the Claimant could be entitled

In considering the question of objective justification the type of contract to which the Claimant would become entitled if s. 9(3) of the Act were to take effect in the normal course is highly relevant. The Union's firm position is that the Claimant is entitled to a contract of indefinite duration as a permanent full-time clerical officer on the same terms and conditions as apply to all other clerical officers in the Civil Service. In that regard it is noteworthy that in the period from 6th January 2003 when the Claimant was first placed on a panel, to 31st October 2008, when his final placement terminated, he worked a total of 187 weeks. The total number of weeks in this period was 303. Hence he was actively employed for 62% of the available time. It is thus clear that the Claimant's employment with the Respondent was essentially part-time in nature in that he worked less hours than a comparable full-time employee when measured over a period of up to 12 months. On this point the Court adopts the definition of part-time work contained at s.7(1) of the Protection of Employees (Part-Time Work) Act 2001which is a statute inpari materiawith the Act.

The decision of the High Court inMinister for Finance v McArdle[2007] ELR 165 is authority for the proposition that where a fixed-term contract transmutes to oneofindefinite duration by operation of law the resulting contract is identical to that from which it is derived in every respect other than in regard to its tenure. Consequently a fixed-term worker cannot accrue a better contract than that which he or she held on a fixed-term other than in respect to the circumstances in which the contract will come to an end. It would seem that in circumstances in which the Claimant was only employed for approximately 62% of the time of a full-time clerical officer he could not accrue, by operation of s.9(3) of the Act, a contract which would entitle him to employment in a full-time capacity.

Based on this employment pattern it appears that the requirement for the Claimants services, throughout the period of his employment, was intermittent and irregular. Against that background there would appear to be real and concrete circumstances concerning the nature of the service which the Claimant provided over the currency of his employment which could amount to objective justification for not affording the him the type of contract which he seeks even if he could accrue such an entitlement under the Act. In particular, the Court is satisfied that the Respondent is pursuing a legitimate need in not recruiting more regular full-time clerical officers that are necessary for the discharge of its revenue collecting functions while maintaining arrangements for the filling occasional vacancies as they arise. Moreover, the engagement of staff as and when required is an appropriate means of achieving that objective and appears to be the only practical way in which the objective can be pursued.

Accordingly, the Court is satisfied that there were objective grounds which justify the Respondent’s failure to appoint the Claimant to a permanent full-time clerical post.

However, as the Court has found, the Claimant accrued a prima facie entitlement to a contract of indefinite duration by reason of the duration of his employment on fixed-term contracts. The grounds relied upon by the Respondent as providing objective justification for not affording the Claimant such a contract are valid in so far as they relate to the type of full-time post which he claims. However, the Court cannot accept that the reasons advanced as objective justification (the burden that would be imposed on the Respondent by having to employ full-time permanent staff to meet occasional and transient vacancies) could apply with equal force if, as appears to be the case, the only type of contract of indefinite duration which the Claimant could have accrued would be one which mirrored the pattern of his fixed-term employment.

At the request of the Court both parties made submission on the type of contract to which the Claimant would be entitled if successful in his claim. Both parties rejected the notion that the Claimant could have a form of permanent or indefinite duration contract to provide relief cover in accordance with the pattern previously obtaining. In these circumstances the Court must hold that the by operation of s.9(4) of the Act the Claimant did not accrue an entitlement to a contract of indefinite duration in the post of full-time clerical officer.

Penalisation

The Union claims that the Respondent operated a practice of not renewing fixed-term contracts until the expiry of four weeks. It claims that this policy, in so far as it affected the Claimant, was for the purpose of avoiding his fixed-term contract becoming one of indefinite duration. This the Union claims, amounted to a contravention of s.13(1) of the Act. Section 13(1) provides: -

13.—(1) An employer shall not penalise an employee—

• (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,
  • (b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

• • (c) for giving in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

• • (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 undersection 9(3).

Determination

For the reasons set out herein the Court determines as follows:-

•The Claimant did not accrue a contract of indefinite duration by operation of s.9(3) of the Act.

•The Claimant was not penalised contrary to s.13(1) of the Act

Accordingly, and for different reasons than those given by her, the Decision of the Rights Commissioner is affirmed and the appeal is disallowed.





Signed on behalf of the Labour Court



Kevin Duffy
28th January, 2011______________________
DNChairman



NOTE

Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.