FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DONEGAL COUNTY COUNCIL (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT SERVICES BOARD (LGMSB) - AND - CIARA JOYCE (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner’s Decision R-079415-FT-09/SR
BACKGROUND:
2. The worker was employed as an Assistant Archivist by the Council for two separate employment periods on a total of nine fixed-term contracts - 19th July, 2004, to 17th June, 2005, and 3rd October, 2005, to 31st March, 2009, when her employment was terminated. The Union sees the employment as continuous as the break between the two periods was less than 6 months and believes that the worker is entitled to a contract of indefinite duration as she has over 4.5 years' continuous service. It believes that where there are sufficient work and funding available to continue the post and that the only rationale for terminating the worker's employment is to circumvent the terms of the Protection of Employees (Fixed Term Work) Act, 2003, (the Act) so that she does not acquire the right of a contract of indefinite duration. The Council's case is that the worker was employed on two separate occasions providing temporary cover and working on particular projects respectively and when the work for which she was employed ceased the worker's employment with the Council came to an end.
The case was referred to a Rights Commissioner and his findings and decision were as follows:
- "I have carefully considered the evidence and submissions made and I have concluded as follows:
- Section 8 complaint: Section 14(3) of the Act provides;"A Rights Commissioner shall not entertain a complaint under this section it if 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 the termination of the employment concerned, whichever is the earlier.The claimant was issued with her last or final fixed-term contract on 24th November 2008, and the complaint was presented to the Rights Commissioner on 25th May 2009, this is more than 6 months (by 2 days) from the date of the alleged contravention this is the subject of the complaint under this Section of the Act and no submission was made to me that "reasonable cause" existed in accordance with Section 14(4) of the Act that would justify extending that period - accordingly I must find that I cannot entertain the complaint.
The complaint under Section 8 of the Act was not presented within the time limit laid down in the Act for presenting such complaints, accordingly I cannot entertain the complaint and I must declare that it is not well founded, it is rejected and is not upheld.
Section 9 complaint: Section 9(5) of the Act states:" The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to [2005] shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous."
- In turn the First Schedule of the Minimum Notice and Terms of Employment Acts in relation to the Computation of Continuous Service states:
"1. The service of an employee shall be deemed to the continuous unless the service is terminated by -
(a) the dismissal of the employee by his employer.
(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 claims and receives 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 is his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee."
- The following facts were established in relation to the claimants service with the respondent. The claimant was initially employed by the respondent on a series of fixed-term contracts for an 11 month period from 19th July, 2004, to 17th June, 2005, for the purpose of covering for maternity leave and extensions to the maternity leave of the (then) sole member of staff in the Archivist returned to her post following her maternity leave and extensions to same. Following a gap of 15 weeks the claimant was re-employed in the Archives Department, this time in addition to the (permanent) Archivist, on a series of fixed-term contracts for 3 years and 6 months from 3rd October, 2005, to 31st March, 2009, when her employment was terminated by the respondent at the expiry of her then fixed-term contract.
- The question that arises is whether or not in accordance with the relevant sections from the Act and the 'Minimum Notice and Terms of Employment Acts' above, the two periods of employment could be said to be continuous. Clearly the claimant was dismissed from her employment by the respondent effective 17th June, 2005. Some 15 weeks later, on 3rd October, 2005, she was re-employed by the respondent. While there have been a small number of case where a small break between periods of employment have been held no to have constituted a break in the continuity of employment, these would not be comparable to periods as long as the one in the instant case. It is also a fact that the reason for terminating the claimant's employment on 17th June, 2005, was a genuine one (as distinct from a manufactured one), i.e. the person for whom she was providing 'relief cover' returned to work. In all of these circumstances and bearing in mind the provisions of both Acts it is clear that the two periods of employment cannot be said to be continuous for the purposes of calculating the claimant's entitlement under the Act. Accordingly, I must find that for the purposes of deciding the claimant's entitlements under Section 9(2) and Section 9(3) of the Act the claimant's employment with the respondent began on 3rd October, 2005, and ended on 31st March, 2009.
- The claimant was continuously employed by the respondent for a period of 3 years and 6 months from 3rd October 2005 to 31st March, 2009. As the claimant's employment with the respondent began after the passing of the Act (14th July 2003) she is covered by Section 9(2) of the Act, which provides that she is entitled to a contract of 'indefinite duration' after an aggregate duration of 4 years of continuous service. The claimant had not achieved this level of continuous service and accordingly had not secured the right to a contract of 'indefinite duration' in accordance with the provisions of the Act.
The complaint under Section 9 of the Act is not well founded; it is rejected and is not upheld.
None of the complaints are well founded; they are rejected and are not upheld."
- 5. An employee who claims and receives redundancy payment in respect of lay-off or short time shall be deemed to have voluntarily left his employment.
The worker appealed the decision to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on the 26th November, 2010, in Donegal.
UNION'S ARGUMENTS:
3. 1. The Union believes that under the terms of the Act that the worker has established the right to a contract of indefinite duration based on the fact that she has 4.5 years' continuous service on nine consecutive contracts. This point has not been contested by the Council.
2. The worker had a well-founded and reasonable expectation that she would be given a contract of indefinite duration. She was informed on several occasions that she would be further engaged in employment and had no reason to believe otherwise.
COUNCIL'S ARGUMENTS:
4. 1. The worker's second period of employment was not an extension of the first one. It was a new series of contracts. The first period of employment was to provide maternity cover for the Archivist. The second period of employment was to complete an Education Facsimile Pack and other Projects.
2. The worker was advised in November, 2008, that it was unlikely that her contract would extend beyond 31st March, 2009. The post was subsequently made redundant and the worker was paid her statutory redundancy entitlement.
DETERMINATION:
The appeal before the Court is on behalf of Ms. Ciara Joyce (the Complainant) against a Decision of a Rights Commissioner in a claim against Donegal County Council (the Respondent) under the Protection of Employees (Fixed-Term Work), Act, 2003 (the Act). The substance of the Complainant’s claim is that she became entitled to a contract of indefinite duration under the provisions of the Act. At the Rights Commissioner hearing the Complainant claimed that the Respondent failed to provide her with a contract of indefinite duration in circumstances where she became entitled to such a contract pursuant to Section 9 of the Act. Furthermore, she claimed that her dismissal on 31st March 2009 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.
She also claimed that the Respondent was in breach of Section 8 of the Act in that it failed to provide her with a written statement setting out the objective grounds justifying the renewal of her fixed term contract and its failure to offer a contract of indefinite duration.
The Rights Commissioner found that her claims under Sections 9 and 13 of the Act were not well-founded. He found that, as her claim was referred outside the time limit prescribed under Section 14(3) and no submission was made that “reasonable cause” existed, he could not entertain the complaint.
Further and in the alternative the Complainant contends that her fixed-term contact was not renewed for the purpose of avoiding it being deemed to be one of indefinite duration in accordance with Section 9 (3) of the Act.
Background
The Complainant commenced employment as an Assistant Archivist with the Respondent and continued on a number of successive fixed-term contracts as, follows: -
19th July 2004 to 18th February 2005
19th February 2005 to 17th June 2005
3rd October 2005 to 30th December 2005
31st December 2005 to 28th April 2006
29th April 2006 to 2nd September 2006
3rd September 2006 to 2nd September 2007
3rd September 2007 to 2nd September 2008
3rd September 2008 to 31st December 2008
1st January 2009 to 31st March 2009
The Complainant’s Case
Mr. Richy Carrothers, IMPACT, on behalf of the Complainant, stated that she had been employed on nine consecutive fixed-term contracts as an Assistant Archivist by the Respondent for a continuous period of four-and-a-half years. He acknowledges that she was out of contract from 17th June, 2005, to 2nd October, 2005, however, he held that this period can be considered as a lay-off period for the purposes of determining continuity of employment. Accordingly, he held that under Section 9 (2) of the Act the Complainant should be deemed to have a contract of indefinite duration with effect from 19th July 2008.
Alternatively, he disputed the Respondent’s dismissal from her employment on 31st March, 2009, on the basis that there was significant work in the Archives Service which warranted the continued employment of an Assistant Archivist and held that there was sufficient funding to continue the post in 2009. Mr. Carrothers stated that Dr. B., the Archivist, had set out a case for the continuation of the post to Mr. H., Director of Services, Community, Culture and Enterprise.
Mr. Carrothers disputed the findings of the Rights Commissioner where he held that the Complainant’s original contract was for the purposes of providing maternity leave cover for the Archivist and he held that all the contracts were as an Assistant Archivist and there was no mention of maternity cover at all.
The Complainant submitted that if her fixed-term contract, which expired on 31st March 2009, had been renewed she would then have accrued the requisite four years, continuous employment from 2nd October 2009 thus transmuting her fixed-term contract to one of indefinite duration. The Complainant contends that the Court should infer that in not renewing her fixed-term contract the Respondent was motivated in whole or in part by a desire to avoid such an eventuality.
Mr. Carrothers held that the complaint under Section 8 of the Act was only out of time by two days and in the light of the fact that the Complainant had been informed on several occasions by senior Managers that she would be further engaged, it should be admissible.
The Respondents’ Case
Ms. Ger Moriarty, LGMSB, on behalf of the Respondent, stated that the Complainant was employed as an Assistant Archivist on two separate employment periods, 19th July 2004, to 17th June, 2005, and from 3rd October, 2005, to 31st March, 2009.
The Complainant was initially employed following her successful application for the post of Temporary Assistant Archvist on 17th July 2004, when she was placed first on a panel. The purpose of the first contract was to provide maternity cover for the Archivist, Dr. B. who was the sole staff member in the Archives Service at the time. Following that, in order to complete the project she was working on, her contract was extended for four months.
In October 2005 the Respondent required the services of an Assistant Archivist to complete an “Education Pack Project” and the Complainant, being number one on the panel, was offered a three-month fixed-term contract which was further extended a total of six times in order to complete further project work. The Complainant was advised by letter dated 24th November 2008 that it was unlikely that her contract would be extended beyond 31st March 2009 and on 4th March 2009 the Respondent confirmed to the Complainant that her employment was being terminated on 31st March 2009, her post was made redundant and she was paid statutory redundancy.
Consequently, the Respondent held that as her first period of employment was for a continuous period of eleven months and her second period was for a continuous period of three years and six months, the Complainant did not qualify for a contract of indefinite duration under Section 9(2) of the Act.
Without prejudice to that position, Ms. Moriarty held that if the total period were deemed continuous then there were objective grounds justifying the renewal of the fixed-term contracts. The original contract was for the purpose of providing maternity cover for the Archivist and the subsequent employment of the Complainant was for the work associated with the Schools Facsimile Pack project and other projects but the Respondent had no ongoing permanent work requirement for an Assistant Archivist.
The Respondent denied that the non-renewal of the Complainant’s contract was connected with the purpose of avoiding her fixed-term contract being deemed to be one of indefinite duration.
In defence of the claim under Section 8 of the Act, the Respondent held that the complaint was out of time and accordingly the Court does not have jurisdiction to hear the claim. Ms. Moriarty submitted that the final fixed-term contract issued to the Complainant was issued on 24th November, 2008, and, as the complaint to the Rights Commissioner was made on 25th May 2009, it was therefore out of time. She submitted that there was no reasonable cause shown which prevented the Complainant from making her complaint in time. In any event, while the Respondent accepted that the contract issued on 24th November, 2008, did not specify the reason justifying the renewal for a further fixed-term contract and the reasons why she was not being issued with a contract of indefinite duration, it maintained that she was fully aware of the reasons of the circumstances when her contract was renewed. Ms. Moriarty submitted that this breach constituted a mere administrative failure on the part of the Respondent and did not represent anymal fideson its part.
Section 9 Complaint:
The Law Applicable
Section 9 of the Act provides the circumstance in which a fixed-term employee can accrue an entitlement to a contract of indefinite duration. This Section provides: -
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.
The essence of the Complainant’s case is that her fixed-term contracts should be deemed to be continuous from 19th July, 2004, to 31st March, 2009, in which case she became entitled under Section 9(3) to a contract of indefinite duration on 19th July, 2008.
The First Schedule to the Minimum Notice and Terms of Employment Act 1973 applies for the purposes of ascertaining the period of service of an employee and whether or not that service has been continuous. It states at Clause 1 that the service of an employee in his employment shall be deemed to be continuous unless that service is terminated by either (a) the dismissal of the employee by his employer or (b) the employee voluntarily leaving his employment. At Clause 6 it states that the continuous 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.
The Complainant gave evidence that when her employment was terminated on 17th June 2005 she was in the middle of project work at the time and she had been advised by Dr. B., the Archivist, that she would be taken back for further work in the Archives Service. She said that she did not apply for further work during that summer period as she was confident that she would return to work with the Respondent. She explained that she was in constant contact with Dr. B. who advised her that she was in discussions with the Divisional Manager about her return. Furthermore, the Complainant said that she was in contact with Mr. H., Director of Services, Community, Culture and Enterprise, who discussed the project work for the year with her and told her about new projects coming up. She said he was confident that her contract would be renewed. By letter dated 10th August 2005 the Respondent’s HR Department wrote to her offering her a contract to work as an Assistant Archivist with effect from 3rd October 2005. While she did not respond to that letter until 14th September 2005, she told the Court that she informed Dr. B. that she would be returning to work in the Archives Section in October 2005.
The Complainant told the Court that, although there were many changes in Donegal County Council in 2008 due to the economic situation resulting in a reduction in staff numbers in both 2008 and 2009 and while she was therefore worried she still thought her position was safe as there were sufficient monies available in the Archives Service budget to retain her in employment until the end of 2009.
Mr. Liam Ward, Director of Services, Donegal County Council, gave evidence to the Court on behalf of the Respondent. At the relevant time, Mr. Ward was Senior Executive Officer with responsibility for HR. He told the Court that he was responsible for issuing the Complainant with each of her fixed-term contracts. He explained that the first contract was to provide maternity cover for Dr. B. and, on Dr. B’s return, the Complainant was retained for a further period of four months in order to complete her project work. Mr. Ward stated that the Complainant’s employment had terminated on 17th June 2005 when she was given her P45 and there was no commitment given that her employment would be resumed. He explained that it became apparent in August 2005 that there was a need for a second post in the Archives Service on a temporary basis due to the availability of funding for project work, therefore, as the Complainant was number one on the panel, she was offered a fixed-term contract to commence on 3rd October 2005.
Based on the circumstances described by the parties, the Court is satisfied that although Dr. B. may have given the Complainant an indication that her employment would more than likely resume in the Autumn of 2005, there was no firm commitment given to her and in any event Dr. B had no authority to do so. While Mr. H. was more senior from an operational perspective, he had no functional responsibility for HR and therefore had no authority to sanction the recruitment of staff. The ultimate responsibility for deciding on issuing of contracts was left to the County Manager through the auspices of the HR Department.
Taking account of the definition of continuity of service under the Minimum Notice and Terms of Employment Acts 1973 to 2001, the Court is satisfied that the service of the Complainant was terminated by the dismissal on 17th June, 2005, by her employer and that her re-employment on 3rd October, 2005, could not be deemed to come within the definition contained under the Act where it states“followed by the immediate re-employment of the employee”.
Conclusions of the Court
Section 9 Complaint:
In this case, as the Complainant’s employment commenced after the enactment of the Act, an entitlement to a contract of indefinite duration arises by operation of law where either the conditions specified in Section 9(2) are fulfilled or in the absence of objective grounds justifying a further extension of the employment for a fixed-term.
Section 9(2) only applies where the aggregate duration of a Complainant’s fixed-term employment exceeds four years. As the Court has decided that the Complainant’s continuous employment did not exceed four years, she cannot avail of Section 9(2) in advancing her claim to a contract of indefinite duration. It follows therefore that the defence provided at Section 9(4) (objective grounds for the renewal of a fixed-term contract) is of no relevance in the instant case.
Section 13 Complaint:
In the alternative to her Section 9 complaint the Complainant contends that her fixed-term contact was not renewed for the purpose of avoiding it being deemed to be one of indefinite duration in accordance with Section 9(3) of the Act. In these circumstances the Court must consider whether her dismissal constituted penalisation contrary to Section 13(1) of the Act.
In advancing her case Mr. Carruthers stated that there was sufficient funding for the retention of her post under the end of 2009. He gave details of a letter written by Dr. B., Archivist, to Mr. H., Director of Services, Community, Culture and Enterprise, dated 17th February 2009 where she outlined the importance of continuing the Complainant’s employment with the Archives & Records Management Service. In the letter Dr. B. outlined the work requirements of the Service and she stated that two recent funding applications had been successful which would yield the total sum of €14,000.
The Court must therefore examine whether in not renewing her fixed-term contract the Respondent was or was not motivated in whole or in part by a desire to avoid issuing her with a contract of indefinite duration.
The Respondent denied that the non-renewal of the Complainant’s post was connected with the purpose of avoiding her fixed-term contract being deemed to be one of indefinite duration.
Ms. Moriarty informed the Court that following a meeting between the LGMSB and representatives of the trade unions from the Local Authority National Partnership Advisory Group (LANPAG) on 30th September 2008, a framework for the implementation of the government decision on cost-containment public spending measures was discussed. The parties identified a number of areas which could be examined at local level in the context of achieving the required 3% payroll cut. This framework agreement was communicated to all Local Authority Managers on 2nd October 2008 and included the non renewal of fixed-term contracts. The Respondent implemented the decision not to renew fixed-term contracts in circumstances where it believed the individuals had not acquired rights under the Act. Those workers on fixed-term contracts who had acquired entitlements to contracts of indefinite duration by operation of law were retained where there was a need for such workers in Donegal County Council.
Furthermore, Ms. Moriarty told the Court that under this Agreement it was decided to include in all fixed-term contracts the clause which was contained in the Complainant’s contract dated 24th November 2008, which stated:
- “In view of the current economic climate and the financial constraints within Donegal County Council, it is unlikely that the Council will be in a position to offer you a further contract extension beyond the 31st March 2009”
Mr. Ward told the Court that the Complainant’s contract was one of those mentioned to the Union in terms of the overall cost-containment measures at the time and the fact that it was unlikely to be renewed due to budgetary constraints. He said that the Council developed a 10-point plan to deal with fixed-term contract workers at the time and which was circulated to all line Managers between July and December 2008.
Mr. Ward said that the Council sought additional external funding for the Archives Service at all times but that there was a significant reduction in the Service’s budget in 2008.
In the circumstances, the Respondent contended that where it had a requirement to reduce costs and deal with reductions in government funding and reductions in the Council’s own income from levies, etc. the decision to terminate the Complainant’s employment was not wholly or partly for or connected with the purpose of avoidance of her fixed-term contract being deemed to be a contract of indefinite duration. The Council has had to redistribute work amongst existing resources and where possible curtail certain functions and projects. Between the period June 2008 and September 2010, it has reduced its work-force by 344 staff; this has been achieved through natural wastage and the non-renewal of contracts. The work that the Complainant was engaged in was project work and in the current economic circumstances the Respondent submitted that it could not sustain the same level of project work in any of its Directorates as had been undertaken previously.
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 the abuse of fixed-term contracts. As was recognised by the ECJ inAdeneler & Others v Ellinikos Organismos Galaktos [2006] (C-212/04) LR LR 716such 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 Fixed-Term 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.
The facts
The Court notes that the terms of each of the fixed-term contracts issued to the Complainant stated that the employer had a requirement for support in the Archives Service and in that regard had decided to seek the assistance of an Assistant Archivist. It stated that the nature of the contract was for the filling of a temporary wholetime post. By letter dated 1st August 2006 the Respondent wrote to the Complainant setting out the terms of her contract which was being extended to 2nd September 2007 as follows:
“The purpose of this contract extension is to provide support for the following projects:
(a) Flight of the Earls 100th Commemoration.
(b) Heart Project in association with Strabane District Council.
(c) Ongoing work on the Archives and Records Management areas.”
The final contract issued to the Complainant referred to the possibility of no further contracts being issued in the light of the current economic climate and financial constraints. The Respondent relies upon its contention that due to the necessity to take cost-containment measures in line with those agreed under LANPAG and the requirements placed on the organisation through the public spending measures taken, the Complainant’s contract was not renewed after 31st March 2009 and she was made redundant.
Conclusion of the Court
Had the Complainant continued in employment after March 2009 she would more than likely have accrued an entitlement to a contract of indefinite duration by operation of law and such an entitlement would have arisen in October 2009.
The Respondent told the Court that in accordance with the provisions of the Act, had she accrued an entitlement to a contract of indefinite duration, like many others in such a situation she would have been retained on a permanent contract, however, due to the constraints on its budgetary resources, its policy at the time was to terminate all other fixed-term contracts on their expiry.
The Court accepts that the Complainant may have had an expectation of continued employment due to the number of extensions she had had in the past, however, she was given a clear warning on 24th November 2008 that her contract was unlikely to be renewed beyond 31st March 2009.
Furthermore, the Respondent stated that an Archives Service is not part of the core work of the Council and in many cases it is carried out by the County Librarian and therefore the retention of an Assistant Archivist was a position which could be made redundant as the needs for the job were not fixed and permanent.
The Court notes that the successful funding applications, while welcome, would not be sufficient in themselves to warrant the retention of the Complainant in employment. Furthermore, the Court considers it of significance that the Complainant’s post in the Archives Service was not replaced.
The Court was provided with details of LANPAG Agreement and a copy of a letter sent by the LGMSB’s Assistant Chief Executive to each County and City Manager dated 2nd October 2008 which outlines the framework for implementation of the government decision on public spending measures and the obligation to cut costs. The letter states that the Board and representatives of LANPAG identified some of the areas which could be examined at local level to achieve the pay cuts which included:
- “Temporary and Contract Staff – non-renewal of contracts”
The Court is satisfied that the decision not to renew the Complainant’s fixed-term contract after March 2009 was taken in a neutral, impersonal and policy-driven manner and was not motivated by her individual circumstances but was driven by the requirements placed on the Council through the public spending measures
On an examination of the facts the Court accepts that the Respondent was entirely motivated by the economic climate and financial constraints prevailing within the Council which required significant cost-containment measures to be taken during 2008 and 2009.Therefore the Court is satisfied that the avoidance of a contract of indefinite duration was not an operative consideration in the Respondent’s decision to terminate her employment.
Consequently, the Court finds that her claim of penalisation is not well-founded.
Section 8 Complaint:
The Rights Commissioner found that the claim under Section 8 of the Act was out of time. The claim was referred on 25th May 2009. The Court notes that the Complainant’s last contract of employment, which she alleged did not comply with the requirements under Section 8, was dated 24th November 2008, however, it was signed by the Complainant on 26th November 2008, two days later. The Respondent told the Court that the Council sent the contract by post. The Respondent date-stamped it on its return and the date-stamp shows that it was received on 28th November 2008, two days after it was signed.
The Complainant told the Court that to the best of her recollection she signed the contract upon receiving it and returned it straightaway. In such circumstances the Court is of the view that it most likely that the Complainant did not receive it until the date she signed it, i.e. 26th November 2008. Therefore, on the balance of probabilities, the Court accepts that the complaint was referred to the Rights Commissioner within the six-month time limit under Section 14(3) of the Act.
The Respondent accepts that it failed to comply with the requirements under Section 8 of the Act, however, it held that this breach constituted a mere administrative failure on the part of the Respondent and did not represent anymal fideson its part.
An examination of the details contained in the contract provided within the timeframe for consideration by the Court, dated 24th November 2008, indicates that the Complainant was fully aware that it was unlikely that she would have a further contract issued. While it did not provide particulars in writing of the objective grounds justifying the further renewal of her contract and its failure to offer a contract of indefinite duration, it did warn her that her future employment was in jeopardy and it did give the reasons for that warning, viz.“the current economic climate and the financial constraints within Donegal County Council”.
However, in all the circumstances of this case, the Court finds that due to the Respondent’s failure to give notice to the Complainant that she would not be offered a contract of indefinite duration, the Respondent should pay the Complainant the sum of €5000 in compensation for the breach of Section 8 of the Act.
Determination
The Court determines that the appeal under Sections 9 and 13 is disallowed and the appeal under Section 8 is allowed. The Court is satisfied that in respect of the breach of Section 8 the Respondent should pay the Complainant an award of compensation in the amount of €5000 which is fair and proportionate for the contravention of the Act found to have occurred. This award is in respect of non-pecuniary loss. Accordingly, the Decision of the Rights Commissioner is set aside.
Signed on behalf of the Labour Court
Caroline Jenkinson
17th January, 2011______________________
CONDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.