FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : UNIVERSITY COLLEGE CORK (REPRESENTED BY ARTHUR COX, SOLICITORS) - AND - TOMÁS O'RIORDAN (REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Nash |
1. Apppeal against a Rights Commissioner’s Decision r-079174-ft-09/EH.
BACKGROUND:
2. This is an appeal by the Worker of Rights Commissioner’s Decision No: r-079174-ft-09/EH submitted in accordance with Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. Labour Court hearings took place on 29th September, 2010 and on 18th October, 2010. The following is the Court's Determination:-
DETERMINATION:
2. Background:
2.1 The facts of the case are not in issue. The Complainant was employed by the Respondent on a series of fixed-term contracts of employment commencing in June 2002. Between June 2002 and December 2003 the Complainant worked without a written contract of employment. He then worked under a series of written fixed-term contracts of employment. The details of the contracts are as follows:
Contract Number Commencement Date Termination Date
Contract No 1 1st December 2003 30th November 2005
Contract No 2 1st December 2005 31st December 2005
Contract No 3 1st January 2006 30th November 2007
Contract No 4 1st August 2007 31st December 2008
Contract No 5 1st January 2009 31st January 2009
2.2 The Complainant contends that he is entitled to a contract of indefinite duration, by operation of law under Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003(the Act).
2.3 The Respondent submits that the Labour Court should dismiss the complaint as there were “objective grounds” for renewing the fixed term contracts of employment on each occasion. The Respondent relies on Section 9(4) of the Act.
2.4 The Act:
- Section 9 of the Act states:
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.
- 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.
(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes ofSection 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.
- Section 9 of the Act states:
3.The Complainant’s Position
3.1 Mr Mike Jennings, of the Irish Federation of University Teachers,on behalf of the Complainant, made the following submissions:-
- Directive 99/70/EC, which was transposed into Irish law by way of the Protection of Employees (Fixed-Term Work) Act 2003 recognises that contracts of indefinite duration are and will continue to be the general form of employment relationship since they contribute to the quality of life of the workers concerned.
The Directive and by extension the Act thus favours recognising and granting contracts of indefinite duration. It is recognized, however, that fixed term contracts in certain circumstances respond to the needs of both employers and workers but in so doing are in favour where possible of workers having contracts of indefinite duration.
The Labour Court inHSE v Kahn FTC 064supported this view when it stated “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.”
Mr Jennings submitted that on the basis of this judgement it is reasonable to assert that in cases where objective justification is advanced the onus or burden of proof is on the person who seeks to rely on it to show on the balance of probabilities that objective justification for the decision exists.
Moreover, the Labour Court must construe any ambiguity or doubt in favour of the person seeking to rely on the Directive rather than the person seeking to avail of the derogation.
Mr Jennings further submitted that the European Court of Justice (ECJ), in the case of Hill and Stapleton v Revenue Commissioners [1998] E.L.R. 225, rejected cost as a basis for seeking to derogate from the obligations imposed by the Directive.
In that case the ECJ stated as follows:
“ An employer cannot justify discrimination arising under a job-sharing scheme solely on the grounds that the avoidance of such discrimination would involve increased costs.”
The Labour Court followed this decision inCatholic University School v Colm Dooley FTD094where it stated:
“ in this instance the objective justification relied upon appears to be that the School cannot afford to pay the cost associated with affording the claimant equal treatment. That could not be accepted as a defence since in every case in which it is necessary to implement principles of equality there is a cost to the employer.”
Furthermore, the Irish legislature decided not to introduce a provision into the Act that would permit a person to avoid the requirements of the Act on cost grounds despite having done so in the Employment Equality Act 1998.
The Court's attention was also drawn to the cases ofAdeneler and others v Ellinikos Organismos Galaktos C-212/04( Adenelar)andYolanda Del Cerro Alonso v Osakidetza Servicio Vasco de Saud C-307/05 (Alonso).
The ECJ in the Adeneler Judgement at paragraph 69 stated that objective grounds as understood for the purposes of the Framework Agreement:
“must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.”
In Alonso the ECJ in further considering what might constitute objective grounds stated at paragraph 58:- “On the contrary, that concept (objective grounds) requires the unequal treatment at issue to be justified by the existence of precise and concrete factors characterising the employment conditions to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that unequal treatment in fact responds to a genuine need and is appropriate for achieving the objective pursued and is necessary for that purpose.”
Mr Jennings also stated that the Court should have regard to the objective grounds set out in the Contracts of employment issued to the Complainant which are as follows:-
Contract No 1 “Please note that this appointment is subject to the continuing availability of funds."
Contract No 2 says “Please note that this appointment is subject to the continuing availability of funds and this contract is therefore issued on such objective grounds."
Contract No 3 says “Please note that this appointment is subject to the continuing availability of funds and this contract is therefore issued on such objective grounds."
Contract No 4 says “Please note that this appointment is subject to the continuing availability of funds and this contract is therefore issued on such objective grounds."
Contract No 5 says “Please note that this appointment is subject to the continuing availability of funds and this contract is therefore issued on such objective grounds."
The stated “objective grounds” in each of the contracts of employment relate to the availability of funding.
Mr Jennings submitted that the availability of funding cannot be an objective ground within the meaning of the Act or the Directive. Were it to be so no job would ever qualify for a contract of indefinite duration. Every job is subject to the availability of funding whether by way of budgetary provision by the State in respect of public servants or by way of customers purchasing products or services in the private sector.
Mr Jennings stated that the Respondent had sought to advance fresh “objective grounds” before the Rights Commissioner. The Respondent stated that:-
"The respondent’s objective of making Funded Research Posts available to successive cohorts of Researchers, using Fixed-Term Contracts for that purpose and not renewing them on the completion or discontinuation of the Research Projects is the legitimate objective of the respondent. It is submitted that it is appropriate and necessary for the respondent to use successive fixed-term contracts of employment for that purpose. It is submitted that there is no other or less onerous basis available in practice by which the respondent University can achieve that objective. If the respondent were not permitted to proceed in that way, all Research Posts would become occupied on a permanent basis irrespective of the continuation, cessation or discontinuation of the Research Project concerned an no opportunities would be available in the university or in any other university in Ireland for subsequent graduates who wish to gain research experience.”
In response to theses ground Mr Jennings made two points:-
1) the Respondent has no entitlement under statute to substitute more favourable grounds than those set out in the contract of employment; and
2) the Respondent is seeking to bring itself within the scope of the circumstances envisaged by the Labour Court inHSE North East Area v Kahn PTW/05/13which has no relevance to this case as there is no comparable formal training and qualification structure in place in this case as that which applied in Kahn.
Mr Jennings referred the Court to the statement it had made in the Kahn case with regard to the legitimacy of seeking to change the objective grounds set out in the contract of employment. In that regard the Court stated:
“ it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the objective grounds for the impugned decision and it would be for the employer to prove the contrary”
Mr Jennings further submitted that performance in the post is not an issue in this case and has no bearing on the Complainant’s entitlements under the Act.
He stated that the project on which the Complainant was employed was conceived and commenced before any external funding was secured. Furthermore, as well as the outside funding obtained, the Respondent continued to fund the project through the provision of services and infrastructural support for the duration of its existence.
The project had no fixed time-scale. It provided for a new multi-media way of meeting the needs of the new History Curriculum for the Leaving Certificate. Part of this approach was by way of the commissioning and publication of a number of textbooks. Part of it was by the creation of a computer-based resource that would be continually updated with source documents, photographs, facsimiles, etc. This by its nature was an
open-ended project and totally different to the projects normally undertaken by research students. This difference was reflected in the manner in which the project terms and conditions were managed by the Respondent.
In essence Mr Jennings stated that because the project was not of itself a fixed-term project but was intended to continue indefinitely subject to the availability of funding , the Respondent could not rely solely on the availability of funding as objective grounds for refusing to grant the Complainant a contract of indefinite duration. - “On the contrary, that concept (objective grounds) requires the unequal treatment at issue to be justified by the existence of precise and concrete factors characterising the employment conditions to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that unequal treatment in fact responds to a genuine need and is appropriate for achieving the objective pursued and is necessary for that purpose.”
4.1 Mr Seamus Given, of Arthur Cox, Solicitors, on behalf of the Respondent, made the following submissions:-
The Respondent is a university one of whose main functions is to engage in and encourage research and to provide research opportunities for successive cohorts of post-graduate and post-doctorate students/researchers. This function is set out in Sections 12 and 13 of the University Act 1997. Most research is externally funded whether from the State or from other public sources or by private donors. If a university is to make research opportunities available to successive cohorts of post-graduate students, it must be permitted to progress successive cohorts of post-graduate students through the available research roles. It would become impossible for universities to make research roles and projects available to successive cohorts if universities were forced to employ those involved in research projects on contracts of indefinite duration on or following the completion or discontinuation of the research project on which the post-graduate student/researcher was engaged.
4.2 In order to fulfil this function, the Respondent employs persons on fixed-term or specified purpose contracts of employment and seeks to retain the freedom to allow those contracts to expire on the completion or discontinuation of the research project concerned.
4.3 The Complainant, who was a registered PhD student with the History Department from 2000 to 2003, was commissioned by a private donor to research, compile, edit and publish a series of textbooks on Irish history, and an associated multitext website, which were intended for use in conjunction with the New Leaving Certificate History syllabus which was launched in 2005. The textbooks and the website were to be the compilation of the work of various contributors.
4.4 This was an externally funded research project with a specified purpose and finite funding. Seed funding of €74,000 had been obtained for the research project from Cork University Foundation between 2000 and 2003. The private donor became involved in 2003. He gave the following commitments to the project 2003/04 Phase 1
€40,000, 2005/6 Phase 2 €80,000, 2007/2008 Phase 3 €80,000 and in 2009 Phase 4
€45,000.
4.5 The Complainant had direct dealings with the donor in negotiations with regard to the funding and had a direct involvement in the coordination of his fixed-term contracts of employment with the donor’s funding commitments.
4.6 The Complainant was employed under the direction of Professor Donnchadh �’Corráin by the Respondent from 2003 (when he was a registered PhD student) on a series of fixed-term contracts for the purpose of researching, writing, editing and arranging for the publication of the text books concerned and compiling the associated multitext website. Initially others were involved in the project but for some time the Complainant was the only person who was employed on the project under the direction of Professor �’Corráin.
4.7 The Complainant was employed outside the Respondent’s normal recruitment process for academic or non-academic staff. The position was not advertised. The Complainant did not have to undergo a competitive interview. It is unusual for someone without a Doctorate to be given a funded research project.
4.8 The Complainant’s employment was entirely funded from money made available by the private donor. The Complainant was aware of the private donor and the fact that his employment depended on the continuation of the project and its funding by him. (Letters and emails in support of this contention were opened to the Court.)
4.9 The contracts and their duration were suggested or proposed by the Complainant, having regard to the funding negotiated with the donor. The Complainant suggested in May 2009, when a shortfall in funding became apparent, that his then fixed-term employment should be shortened. On or about the same day the Complainant lodged his complaint with the Rights Commissioner. The Complainant thereafter refused to accept a contract amendment (initially suggested by him) which would shorten his then current fixed-term contract.
4.10 The Complainant agreed in total five contracts of employment. The first two make provision for the salary stated in the contract to be inclusive of employer’s PRSI. Thereafter it was exclusive of that figure.
4.11 Towards the end of his employment the Complainant was allowed to take one day off per week to study for an M.Ed. at Trinity College Dublin.
4.12 The Contracts of employment were entitled “Agreement forAssignement In Connection With Research Work Carried Out With The Aid Of A Research Grant”.In the first of those Contracts the duties are described as: - “To create and edit six text books in early modern Irish history”.Each of the following contracts includes the following statement: -“The nature of the employment contract is fixed-term specified purpose ad the resources which support the post are research funds. Please note that the agreement is subject to the continuing availability of funds and this contract is therefore issued on such objective grounds.”The third and subsequent contracts make reference to the source of the funds as being from a “private donor.” The Complainant was at all times aware that the project and his employment was dependent on the funds from the private donor.
4.13 The Complainant, in the full knowledge of the nature of his employment and the source of the funding for his position, signed all of the contracts. The Complainant for the first time, by letter of 10th April 2009, asserted an entitlement to a contract of indefinite duration and the Respondent set out its position in its letter of 29th April 2009.
4.14 Arising out of delays in delivering the various textbooks to the publisher for publication the project failed and was discontinued in 2009 when the private door decided to discontinue funding it further. As a consequence, the Respondent’s History Department decided to discontinue the project and did so on the expiration of the Complainant’s last fixed-term contract in January 2010. The project’s website will remain as left at the end of January 2010. The contract for the publication of the textbooks is now a private matter between the former Professor of History (Professor � Corráin) and the publisher. The University has no further involvement in the matter.
4.15 The Respondent submitted that the complaint under Section 9(2) of the Act should be dismissed on the basis that there were and continued to be objective grounds for renewing the Complainant’s contract for a fixed term on each occasion and the Respondent relies on Section 9(4) of the Act.
4.16 The Respondent referred the Court to the decision in the case ofHealth Service Executive v Prasad (FTD062).In that case the Labour Court concluded that Section 7(1) amounted to a restatement of the three-tier test for objective justification set out in theBilka-Kaufhaus (case C/170/84). These test are that the measures must meet a “real need” or legitimate objective of the employer, they must be “appropriate” to meet the objectives which it pursues and the measures must be “necessary” in order to achieve that objective. InAdeneler (Case C-212/04)the ECJ held that the employer must show that the ground relied upon“respond to a genuine need, is appropriate for achieving the objective and is necessary for that purpose”.
4.17 The Respondent submitted that its objective in making funded research posts available to successive cohorts of researchers, using fixed-term contracts for that purpose and not renewing the successive fixed-term contracts on the completion or discontinuation of the research projects, is a legitimate objective and a real or genuine need of the Respondent. It is submitted that it is appropriate and necessary for the Respondent to use successive fixed-term contracts for that purpose. It is submitted that there is no other or less onerous basis available in practice by which the Respondent University can achieve that objective. If the Respondent was not to be permitted to proceed in that way all research posts would become occupied on a permanent basis irrespective of the continuation, cessation or discontinuation of the research project.
4.18 InHSE North Ease Area v Kahn (PTW/05/03)the Labour Court concluded that the need to keep posts available for training purposes satisfied the first test. It concluded that the HSE’s policy of awarding only repeated six-month contracts, where it was aware that the training would last a number of years, was not appropriate. In the case now before the Court the contracts were (with one exception) of long duration and were based on the projected funding and duration of the project.
4.19 Reliance was placed on the decision of the Labour Court inNational University of Ireland Maynooth v Dr. Ann Buckley (FTD092).In that case the Court held that it was consistent with the Act for a university to employ a researcher on a series of fixed- term contracts of employment whilst completing a research project. The Labour Court, in its Determination, also said“the Court is of the view that the Claimant, having signed a binding contract agreeing to the objective reasons for its renewal on a fixed-term basis, cannot subsequently resile from this position and is therefore not entitled to a contract of indefinite duration.”
4.20 It was submitted that there are very strong similarities between the Maynooth case and the present one.
4.21 The Court heard evidence from Dr Hiram Morgan who had latterly taken over responsibility for the project in the later stages. He said that the History Department employed researchers on fixed-term contracts of employment as part of a process of providing successive cohorts of graduates the opportunity to acquire experience and to enable the Department to function properly. He said that when he took over responsibility for the project there were delays in the delivery of the books to the publishers and the donor was concerned at the slow rate of progress. He said that the project eventually failed and was discontinued by the History Department. The Complainant was at that point made redundant. He said that at all times he was aware that the continued employment of the Complainant was dependent continued funding by the donor. He said the Complainant was actively involved in managing the fixed-term work contracts and suggested amendments in them to meet the exigencies of the situation as funding was delayed or fell short of what was required. He said that the intention of the project was to primarily produce a number of text books linked to the new Second Level History Syllabus. This new Syllabus was introduced in 2005. By 2009 no books had been published and the donor discontinued funding. The Complainant was responsible for commissioning work by various scholars and preparing the books for submission to the publisher under the direction of Professor �’Corráin.
5Findings of the Court
5.1 The Court has carefully taken into account the evidence presented to it and the extensive oral and written submissions of both sides in this case.
5.2 Both parties are agreed that the Respondent employed the Complainant on a series of fixed-term contracts of employment between 2003 and 2009. Accordingly, the Complainant became entitled to a contract of indefinite duration, by operation of law, in accordance with the provisions of Section 9(2) of the Act, unless there were objective grounds justifying the renewal of the fixed-term contracts of employment pursuant to Section 9(3) of the Act. Section 7 of the Act sets out what constitutes objective grounds.
- Section 7 statesthat “ 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”.
These are essentially three tests set out by the ECJ in the case ofBilka-Kaufhaus (case C/170/84)andAdeneler (Case C-212/04).
Section 8(2) of the Act is also relevant to the case before the Court. Section 8(2)says “(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.”
5.4 In this case the initial contract of employment contains the following statement"Please note that this appointment is subject to the continuing availability of funds”. The second contract contains the following statement “The nature of this employment contract is fixed term specified as the resources which support the post are research funds. Please not that this appointment is subject to the continuing availability of funds and this contract is therefore issued on such objective grounds.”This latter formulation is repeated in the third, fourth and fifth contracts. Accordingly, the Court finds that these constitute the stated objective grounds justifying the renewal of the fixed-term contract of employment on each of these occasions. If the employer wishes to rely on other grounds to justify the renewal of the fixed-term contract of employment then it is “for the employer to prove them" to the satisfaction of the Court.
5.5 Section 7(1) of the Act sets out the statutory basis on which the Court must determine if the employer can avail the objective grounds defence.
- 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.
5.5.1 The Respondent made a series of submissions to the Court regarding the requirement to use fixed-term contracts of employment in order to meet its statutory obligations under Sections 12 and 13 of the Universities Act 1997 and in order to provide successive cohorts of graduates access to research opportunities.
5.5.2 This Court accepts that that it is an entirely legitimate objective of the Respondent to use fixed-term contracts to provide graduates with access to research opportunities and that they are entirely appropriate and necessary for that purpose. However, while these may be legitimate objectives for the employer they cannot be deployed in a general sense to justify the renewal of fixed-term contracts of employment divorced from the facts of the actual case before the Court.
5.6 In the current case the Complainant was employed by the Respondent to carry out work on a project that had been initiated some years before a private donor became involved. The purpose of the project was to deliver resources for schools arising out of an imminent change in the History Curriculum for the Leaving Certificate. That involved commissioning the writing of a number of books, the precise number of which was difficult to establish with precision, but varied between four and twelve. In addition, and this distinguishes this project, these books were to be integrated with a website on which source documents, and other relevant information, were to be exhibited and continuously updated.
Accordingly, the precise duration of the project was unclear from the start. Indeed it would not be unreasonable to conclude that the work could have continued indefinitely and that funding could have been sourced from different sponsors or budgets over time to finance the project. Dr Hiram Morgan largely agreed with this in his evidence to the Court.
5.7 The nature of this project and the manner in which the Complainant was employed in the view of this Court distinguishes it from the routine research projects that are undertaken by the University as part of its graduate opportunities programme. The Respondent itself placed considerable emphasis on the fact that the Complainant was employed outside of the normal procedures for employing graduates to undertake such work.
5.8 On the evidence the Court finds that this project was not a post-graduate research project as understood in the ordinary sense of that term or as mandated by the Universities Act or as generated by the University itself. Rather it was unique project, dealt with in a unique manner and the objective reasons advanced as to the necessity of maintaining post-graduate research opportunities which the Court accepts as entirely legitimate do not apply to the circumstance of this particular project.
5.9 From an ordinary reading of the wording of the contracts entered into by the Complainant the Court is satisfied that the actual reason for issuing the Complainant with successive fixed-term contracts of employment was the availability of funding. The Court is also satisfied that, as a matter of fact, if the funding had continued the project would have continued until the funding ran out.
5.12 The question then arises as to whether the Respondent can rely on the availability of funds as an objective reason for renewing a fixed-term contract of employment.
The Court was referred to the Decision of the ECJ in of Hill and Stapleton v Revenue Commissioners [1998] E.L.R. 225 where it held“ An employer cannot justify discrimination arising under a job-sharing scheme solely on the grounds that the avoidance of such discrimination would involve increased costs”and to the Determination of the Labour Court inCatholic University School v Colm Dooley FTD094where it said“ in this instance the objective justification relied upon appears to be that the School cannot afford to pay the cost associated with affording the claimant equal treatment. That could not be accepted as a defence since in every case in which it is necessary to implement principles of equality there is a cost to the employer.”
The Court’s attention was also drawn to the case ofDel Cerro Alonso v Osakidetza Servicion Vasco de Salud [2007] IRLR 911where the ECJ, in considering the issue of objective grounds, said at paragraph 58:-
- “On the contrary, that concept (objective grounds) requires the unequal treatment at issue to be justified by the existence of precise and concrete factors characterising the employment conditions to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that unequal treatment in fact responds to a genuine need and is appropriate for achieving the objective pursued and is necessary for that purpose”
5.16 Therefore the Court finds that the Complainant became entitled to a contract of indefinite duration on the same terms and condition as his fixed term contract with effect from the 1st December 2007.
6.DETERMINATION
The Court determines that the Complainant became entitled to a contract of indefinite duration on the same terms and condition as his fixed term contract with effect from the 1st December 2007. The Court has determined that the facts of the case do not support the Respondent’s contention that it is entitled to rely on Section 9(4) of the Act.
The Court may order any or all of the remedies set out in Section 14(2) of the Act. It may:
(a)Declare whether the complaint was or was not well-founded;
(b)Require the employer to comply with the relevant provision;
(including on a contract of indefinite duration); or
(d)Require the employer to pay to the employee compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding two years' remuneration in respect of the employee's employment
In determining the remedy in this case the Court takes cognisance of the fact that due to the lack of funding the project did in fact come to an end and in the view of the Court as expressed above the Respondent would in those circumstances have been entitled to make the Complainant redundant. The Court must also take cognisance of the Decision of the ECJ in the case ofSabine von Colsson and Elisabeth Kamann V Land Nordrhein-Westfalen (Northrhine- Westphauia)In that case the Court held that a remedy for a breach of rights under the Directive must be adequate, effective and have a deterrent effect.
In the circumstances the Court does not propose to make a determination requiring the Respondent to re-instate or re-engage the Complainant but instead determines that the appropriate award is one of compensation and awards the Complainant the sum of
€20,000 .
The appeal is allowed and the Rights Commissioner’s Decision is set aside.
The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
3rd May, 2011______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.