FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : GALWAY COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - PETER GAVIN (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appealing of Rights Commissioner’s Decision No: r-079789-ft-09/mh
BACKGROUND:
2. This case is an appeal by the employer of Rights Commissioner’s Decision No: r-079789-ft-09/mh. The issue concerns a claim by the worker that he was entitled to a contract of indefinite duration (CID) having satisfied the eligibility criteria provided for in the Protection of Employees (Fixed-Term Work) Act, 2003. Management's position is that there were objective reasons for not awarding a CID to the worker.
The dispute was referred to the Rights Commissioner's Service for investigation. His Decision issued on the 24th March 2010 and found that the worker's contract being one of indefinite duration with effect from 11th April, 2009.
On the 29th March, 2010 the employer appealed the Rights Commissioner's Decision in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 20th September, 2011.
The following is the Court's Determination:
DETERMINATION:
This is an appeal by Galway County Council against the decision of a Rights Commissioner in a claim by Peter Gavin under the Protection of Employees (Fixed Term Work) Act 2003 (the Act). in line with the normal practice of the Court the parties are referred to as they were at first instance. Accordingly, the Galway County Council is referred to as the Respondent and Mr Gavin is referred to as the Claimant.
The facts of the case are not in dispute and can be briefly stated.
The Claimant is an engineer and was employed in that capacity by the Respondent between 18th April 2005 and 7th May 2009. He was initially employed on a fixed-term contract. This contract was expressed to be a "specific purpose contract" for the duration of a particular project being undertaken by the Respondent. Subsequently, the parties entered into another contract dated 8th May 2006 for a period of three years starting on that date. There was neither a purpose nor reasons for this contract specified on its face. An agreement was later executed by the parties dated 1st May 2007. This agreement was expressed to be a " fixed purpose" contract whereby the Claimant would provide cover for another engineer who was acting in another role. It stated that the contract would terminated on the return of the named person or on the expiry of the term specified in the contract dated 8th May 2006.
The claimant contends that by operation of s.9(2) of the Act he became entitled to a contract of indefinite duration as the aggregate duration of his fixed-term employment exceeded four years. His complaint was considered by a Rights Commissioner who found with the Claimant. The Respondent appealed to the Court.
Position of the Parties
The Respondent accepts that the Claimant had more than four years employment on fixed-term contracts and therefore accrued a prima facie entitlement to a contract of indefinite duration. It relies on s.9(4) of the Act and contends that there were objective grounds justifying the extension of the Claimants employment beyond the time permitted by s. 9(2) of the Act. It is the Respondents case that the Claimant was employed to cover for another Engineer who was assigned to another role in an acting capacity and at the time the contract was concluded it was expected that this person would return to his substantive role within the period specified in the Claimant's contract.
The Claimant denies that there were any objective grounds justifying his employment on a fixed-term beyond the period permitted by s.9 of the Act.
The Law.
It is agreed that that s.9(2) of the Act applies in this case. This section provided: -
- 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.
Section 9(3) provides: -
- (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.
Section 9(4) provides:-
- (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..
It is settled law that where a term in a contract contravenes s.9(2), such as a term which provides that the contract will extend over a fixed term beyond that permitted by that subsection, the offending term is rendered void,ab initioand the contract is transmuted to one of indefinite duration by operation of law (see Minister forFinance v McArdle[2007] ELR 165). Such a contract can, however, be saved by s.9(4) of the Act where there are objective grounds justifying its extension beyond the time normally permitted by s.9(2) of the Act. The decision of the High Court inRussell v Mount Temple Comprehensive School[2009] IEHC 533 is authority for the proposition that the existence of objective grounds is to be judged by reference to the circumstances pertaining at the time the contract is concluded.
Conclusions of the Court
The material facts are clear and are determinative of the case. The Claimant was employed as a fixed-term worker from 18th April until 7th May 2009. That is a period in excess of four years and gives rise to a prima facie entitlement on the part of the Claimant to a contract of indefinite duration. Having been employed on a fixed term contract for over one year the Claimant’s employment was renewed on 8th May 2006 for a period of three years. The term in that contract providing for the continuance of the Claimant’s employment for a fixed term beyond a four year period contravened s.9(2) of the Act. Consequently s.9(3) came into effect so as to render that term voidab initioand to transmute the contract into one of indefinite duration unless it was saved by s.9(4). The Contract of 8th May 2006 did not contain a statement of objective grounds for its conclusion. In its defence to this claim the Respondent did not advance any objective grounds for the conclusion of this contract. Rather, it relied on a modification of this contract dated 1st May 2007which purported to provide that the contract was to provide temporary cover for another engineer who was assigned to another role.
Which a number of agreements were advanced by both parties the essential and determinative point is that the contract of 8th May purported to extend the Claimant’s fixed term employment beyond a period of four years and thus contravened s.9(2) of the Act. By operation of law it then became one of indefinite duration from the date of its conclusion, namely 8th May 2006. The subsequent modification of the contract on 1st May 2007 could not have altered the character which it had attained by operation of law.
The Decision of the High Court in inRussell v Mount Temple Comprehensive Schoolmakes it clear that the existence of objective grounds for the purpose of s.9(4) of the Act must be judged by reference of the circumstances pertaining at the commencement of the contract. On the evidence it is clear that no objective grounds existed on 8th May 2006 consequently the Respondent cannot avail of the defence provided by s.9(4) of the Act.
It follows that the Respondent’s appeal cannot succeed.
Determination
It is clear that the claimant's contract of 8th May 2006 became one of indefinite duration by operation of law from the date of its conclusion, namely 8th May 2006. according the decision of the Rights Commissioner is affirmed with a modification as to the date on which the contract of indefinite duration took effect. It follows that the Claimant should be reinstated in his former post on a contract of indefinite duration and the Court so orders.
Signed on behalf of the Labour Court
Kevin Duffy
14th October 2011______________________
AHChairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.