FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : COUNTY DUBLIN VEC (REPRESENTED BY WILLIAM EGAN & ASSOCIATES SOLICITORS) - AND - GEORGINA O’GRADY, TONI CARROLL, MARIE RANKIN, CAROLINE MURRAY, ELAINE O’BRIEN, JOHN FITZSIMONS, KIERAN LENNON, MARK PHILLIPS & FIONA MC GIRL (REPRESENTED BY CULLEN & CO SOLICITORS) DIVISION : Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioners Decisions R-084869-Ft-09/Jc, R-084877-Ft-09/Jc, R-084882-Ft-09/Jc, R-084887-Ft-09/Jc, R-084893-Ft-09/Jc, R-084896-Ft-09/Jc, R-084899-Ft-09/Jc, R-084900-Ft-09/Jc, R-084902-Ft-09/Jc
BACKGROUND:
2. This is a double appeal by the parties to the Labour Court under Section 15(1), of the Protection of Employees (Fixed -Term Work) Act, 2003 of the Decision of the Rights Commissioner. The Labour Court hearings took place on the 25th May and 1st September, 2011
DETERMINATION:
Background
Nine workers, Georgina O’Grady, Toni Carroll, Marie Rankin, Caroline Murray, Elaine O’Brien, Kieran Lennon, Mark Phillips, Fiona McGirl and John Fitzsimons, the Complainants, on 25th September 2009, made complaints to the Rights Commissioner pursuant to Sections 6, 8 and 9 of the Protection of Employees (Fixed Term Work) Act 2003 (the Act) against their employer, County Dublin Vocational Education Committee (the Respondent). The complaints under Section 8 of the Act was withdrawn in the course of the Rights Commissioner’s investigation. The Respondent conceded that each of the complainants became entitled, on varying different dates, to a Contract of Indefinite Duration pursuant to Section 9 of the Act. The Respondent defended the Complaints under Section 6 of the Act.
Preliminary Issue
The Respondent contended that each of the Complainants became entitled to a Contract of Indefinite Duration (CID) at various different times between the coming into force of the Act and the date on which the complaints were submitted to the Rights Commissioner. It further contended that, with the exception of Mr John Fitzsimons whose entitlement to bring a complaint was conceded, none of the Complainants had submitted a complaint to the Rights Commissioner within six months of the date on which they became entitled to a CID’s. It contended therefore that the Rights Commissioner did not have jurisdiction to consider the complaints for two reasons a) the complaints were out of time and b) the Complainants did not havelocus standias they were not fixed term workers at the relevant time. The Respondent further contended that no reasonable grounds for extending the time for taking a case had been advanced by the Complainants and the Rights Commissioner erred in law in this regard. In addition the Respondent contended that the maximum extended time permitted under the Act did not bring any of the Complainants within the time limits in any case and their claims were statute-barred.
The Respondent submitted the following information to the Court in support of that contention
| Complainant | Date of CID Entitlement | Date Time Limit Applied | Extended Time Limit Expired | Date of Claim |
| Georgina O’Grady | September 2007 | March 2008 | March 2009 | September 2009 |
| Toni Carroll | September 2006 | March 2007 | March 2008 | September 2009 |
| Caroline Murray | March 2005 | September 2005 | September 2006 | September 2009 |
| Elaine O’Brien | November 2004 | May 2005 | May 2006 | September 2009 |
| John Fitszimons | Time Limits not disputed in this case |  | | |
| Kieran Lennon | September 2007 | March 2008 | March 2009 | September 2009 |
| Mark Phillips | December 2007 | June 2008 | June 2009 | September 2009 |
| Fiona McGril | April 2006 | October 2006 | October 2007 | September 2009 |
| Marie Rankin | September 2006 | March 2007 | March 2008 | September 2009 |
The Respondent further submitted that it never failed to acknowledge any of the Complainants’ entitlements to a CID after they became entitled thereto pursuant to Section 9 of the Act. It submitted that because of this the Fixed Term Contracts of Employment of each of the Complainants, on the relevant date, by operation of law became Contracts of Indefinite Duration.
The Court was referred to the decision of this Court in the case ofHSE Dublin North East and Ali Umar FTC/09/28.Particular reference was made to the following section of that determination:
- “The Complainant was not obliged to bring a complaint to a rights commissioner in order to obtain a contract of indefinite duration; he obtained such a contract by virtue of Section 9(3). In so far as there was a contravention of the Complainant’s legal rights, which would arise if the Respondent could not rely on Section 9(4), it was the Respondent’s failure to acknowledge his status as a permanent employee by operation of law.â€
The Respondent noted that Court went on to say that, because there was a“continuing breachâ€of the Act by way of failure to acknowledge the entitlement to a CID that it did“not accept that the Complainant’s complaint was presented after the expiry of the time limit prescribed by Section 14(3) of the Act.â€
The Respondent submitted that as it had, at the material time, acknowledged the Complainants’ entitlement to a CID by operation of law there could be no continuing breach of the Act in this case and consequently the Complainants were out of time for the purposes of the claim submitted to the Rights Commissioner pursuant to Section 6 of the Act.
Complainants’ Position
The Complainants’ submitted that they became entitled to contracts of indefinite duration at various times between 2004 and 2007. In each case the Respondent continued to issue the complainants with fixed term contracts until August 2008 at which point there was a gap during which no contract of any description was issued to the Complainants whilst the matter was addressed through a collective bargaining process. In January 2009 a further contract was issued to the Complainants which they rejected, as its terms did not comply with the provisions of the Act. A further contract was issued to the complainants in June 2009 that, they submitted, purported to be a CID but which was in fact a fixed term contract that was terminable on the occurrence of any one of three events. In September 2009 the complaints were submitted to the Rights Commissioner.
The Complainants contend therefore that the Respondent treated them as fixed term workers at all material times up to and including the date on which they submitted their complaint to the Rights Commissioner. The Court was referred to the decision of the High Court inMinister for Finance v McArdle[2007] 2 ILRM 438 and to the decision of this Court in the case ofHSE Dublin North East and Ali Umar FTC/09/28in support of this submission.
Findings of the Court
The law
Section 14(3) of the Act provides
- A rights commissioner shall not entertain a complaint under this section if it 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 termination of the contract of employment concerned, whichever is the earlier.
Section 14(4) of the Act provides
- Notwithstanding subsection (3), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
On the evidence presented to it the Court finds that the Complainants became entitled to contracts of indefinite duration at various times in accordance with the provisions of Section 9 of the Act. The Respondent, however, failed to acknowledge the Complainants’ entitlement to such CIDs in each case subsequent to those dates. In all relevant cases it continued to offer the Complainants fixed term contracts until the end of 2008. In January 2009 the Respondent offered a contract of indefinite duration to the Complainants that they rejected because they contended it did not meet the requirement of the Act. When this was rejected the Respondent wrote to each of the Complainants in the following terms:
- “Further to my correspondence to you in relation to your entitlement to a CID contract on a pro- rata basis and subsequent contract, given that the terms of the pro-rata contract as issued by us at this point are not being accepted we will reissue shortly a contract relating to your entitlement to a contract of indefinite duration (CID) based on your 2007/2008 contractual hours.â€
That contract contained the following provision
- The contract is in accordance with the terms of the Department of Education and Science Circular Letters 55/2008 and 56/2008. The Contract is subject to programme funding, student enrolment and Registration on a current basis, with the Teaching Council of Ireland.
The Court notes the definition of a “fixed term employee†in the Act that provides that:
- “fixed-term employee†means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include
The Court finds that the insertion of this provision into the Contract by the Respondent renders it a fixed term contract that is determinable by the occurrence of a specific event. The specific event occurs if funding is no longer available or if student enrolment falls below an acceptable level or if registration with the Teaching Council of Ireland ceases to be current for any reason. Whilst the timing of these events is not determinable at the outset of the contract they are nevertheless defined events that bring the contract to an end thereby rendering it a fixed term contract and the worker employed thereon a fixed term employee.
Accordingly the Court finds that the Respondent continued to treat the Complainants as fixed term workers at all material times up to and including the date on which they submitted their complaints to the Rights Commissioner.
If it is wrong in this, the Court further notes that there were discussions going on between the parties until May 2009 regarding the nature of the contracts under which the Complainants would be employed. Prior to this the Court finds that all of the Complainants were employed on fixed term contracts until at least 31st July 2008. Thereafter they were offered contracts of employment in January and May 2009 on foot of the discussions that had taken place between the Complainants’ trade union and their employer at national level. It was the outcome of those discussions that led to a contract of employment that was issued to the Complainants in January 2009. The Complainants rejected that contract because it did not strictly comply with the terms agreed in those discussions nor did it reflect the terms of the contracts that were in force at the time each of the Complainants became entitled to a CID by operation of law. The Respondent subsequently offered an amended contract of employment to the Complainants which they rejected as, in their view, it did not amount to a contract of indefinite duration. At that point the talks broke down and shortly thereunder the complaints were submitted to the Rights Commissioner.
The Court, having taken the totality of the engagements between the parties into account, finds that there are reasonable grounds for extending the time and accordingly would do so beyond the date on which the complaints were submitted to the Rights Commissioner.
Section 6
Section 6 of the Act provides
—(1) Subject to subsections (2) and (5), a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.
The Complainants each contended that s/he was, in respect of his or her conditions of employment, being treated in a less favourable manner than a comparable permanent employee.The Complainants identified three named workers as comparators.
The Respondent did not dispute the contention that the complainants were being treated in a less favourable manner than the named comparators. However it made two arguments to the Court in response.
The Respondent contended that the comparators were employed on like work as the Complainants but submitted that they were not the appropriate comparators. Instead the Respondent submitted that a different set of comparators would be more apposite.
In response the Complainants submitted that it was settled law that a complainant is entitled to choose their comparators and referred the Court to the decision inWilton v Steel Company of Ireland (1999) ELR 1applyingAinsworth v Glass Tubes & Components Ltd (1997) IRLR 74.
Finding
Section 5 of the Act sets out the definition of a comparator for the purposes of the Act.
Section 5 states
- 5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if
(b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or employees
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in t he same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.- (2) The following are the conditions mentioned in subsection (1)
(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions
The Court finds that once a complainant has complied with the provisions of Section 5 of the Act there can be no further restrictions on the choice of comparators. It is entirely a matter for a complainant to choose their comparators.
Accordingly, the Court finds that the conditions of Section 5 of the Act have been met and the comparators are valid for the purposes of the Act.
The Respondent told the Court that the work undertaken by the Complainants was equal in value to that undertaken by the comparator.
The Respondent advised the Court that the less favourable treatment of the Complainants was justified on objective grounds pursuant to Section 6(2) of the Act.
Section 6(2) provides:
- (2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
Section 7 of the Act sets out how the Court should interpret the term “objective grounds.â€
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.
In relying on this Section of the Act the Respondent submitted the following objective grounds for the less favourable treatment of the fixed term workers
�The Youthreach Programme has a distinctive character relative to mainstream teaching.
�Youthreach follows an industrial training model tailored to the specific demands and needs of course participants.
�The Youthreach programme is founded upon a working year of 226 days and not the teaching year of 167 days.
�There is an essential requirement for flexibility in the manner of recruitment and deployment of tutorial staff given the exigencies of the programme.
�There is no prescriptive timetable in the operation of the programme which highlights the critical necessity of the 226 days structure to maintain the structure of the service.
�The programme is based on a requirement for 4200 tutorial hours per group of 25 trainees. This is a fundamentally different structure to that pertaining in mainstream education and calls for a completely different configuration of resources, including staffing resources.
�The Applicants were all recruited and employed on a 226 day structure for the reasons set out above.
�The Respondent could not continue to offer the service in its current form were it to employ the Complainants on a 167 day basis.
�The Respondent is entitled to formulate and implement its business model in the manner it deems appropriate.
On this basis the Respondent submitted that these objective grounds justified the less favourable treatment of the Complainants in respect of their terms and conditions of employment. It was contended that each of the matters above is based on “considerations other than the status of the employee concernedâ€. There is a legitimate objective involved, namely, the provision by the Respondent ofa clearly defined, tailored service which requires a specific kind of staff configuration and eployment.
It is further submitted that this staffing structure, based as it is on a 226-day year, is appropriate and necessary for the purpose in the circumstances where:�The programme is highly customised to meet the needs of the client group at whom it is targeted from time.
�At all times the model in use is an industrial training model that reflects the cycles of industry and not those of the second level education sector
�The qualification pursued is predominately at FETAC level that is quite distinct and different from the normal Junior or Leaving Certificate qualification pursued in the mainstream education.
�The curriculum is custom designed to suit the client group. This is quite different from the standard curriculum based Junior and Leaving Certificate cycle.
�Unlike the standard education model Youthreach is not subject driven and is delivered in a variety of settings designed to provide a seamless experience to the client for whom the standard education model has ceased to function resulting in an early exit from the education system. The programme is designed to attract those early school leavers back into the skills acquisition and education structure in a manner that is attractive to them and that does not reflect the institutional or curriculum structure they have already abandoned.
�This customised structure requires that the programme provider is free to recruit atypical teachers with uncommon skills that are suitable for the programmes on offer. To do this the restrictions set out in the normal teacher terms and conditions of employment are not appropriate and consequently the Respondent must maintain the flexibility to match needs of the programme users with suitably skilled, flexible and adaptable teachers.
�The 226-day model entitles the programme participants to a training allowance. This imposes conditions of the programme. To qualify for the allowance the programme must take place over a 226 day period. Staff must be recruited to cover this period on terms that recognise this reality.
�To change the model to a 167 day cycle would have the effect of undermining the credibility and effectiveness of the programme with consequent adverse effects on the intended client group.
The Court was referred to the decision of the ECJ inAdeneler v Ellinikos Organismos Galaktos [2006] ECR 1-6057in which it held that“objective reasonsâ€was to be understood as referring to“precise and concrete circumstances characterising a given activityâ€which might result from the specific nature of the inherent characteristics of the task or from pursuit of a legitimate social policy objective of a member state. The Respondent submitted that the provision of the kind of service which it offers, in the particular social, educational and material environment concerned, constitutes a legitimate social policy objective.Respondent’s Position
The Respondent contended that the objectives of the programme are wholly legitimate and supported by the Complainants but are not material to the current complaints. The complaints relate to the difference in treatment between permanent and fixed term workers employed on the Youth Reach programme. Nothing in the employer’s submission demonstrates a need to maintain such a distinction in relation to terms and conditions of employment as between these two groups. Both are required to operate a 226 day year model, both undertake work of equal value with the same client groups and both are required to implement customised course content, attract and retain the target group and take them to a level of competence to pass the relevant FETAC examinations. All of the flexibilities required of one group are required of the other and all of the policy objectives of the programme apply equally to both groups. The only basis for the distinction in terms and conditions of employment between the Complainants and their comparators relates to the fixed term nature of the contracts of employment of one group as opposed to the permanent nature of those of the other group.
This, the complainants contends, is contrary to Section 6(2) of the Act and does not constitute object grounds in accordance with Section 7(1) of the Act as it is entirely based on the status of the complainants as fixed term workers.
Findings of the Court
The Court finds that the grounds advanced by the Respondent for the different treatment of the Complainants arises out of the fixed term nature of their contracts of employment and consequently cannot amount to objective grounds as required by Section 6(2) of the Act in order to justify the less favourable terms and conditions of employment contained in their contracts of employment relative to their chosen comparators.
Both the Complainants and their chosen comparators are employed on the same programme and undertake work of equal value. All of the aims and objectives, limitations and peculiarities of the programme apply equally to both of them. However despite this the Complainants are employed on less favourable terms and conditions of employment than their comparators. In the absence of any objective grounds justifying such less favourable terms and conditions of employment the Court must find that the Respondent cannot rely on the provisions of Section 6(2) of the Act.
Determination
The Court determines that the Respondent is in breach of Section 6(1) of the Act and that the provisions of Section 6(2) do not operate to justify the less favourable treatment of the Complainants with regard to their Contracts of Employment relative to their chose comparators.
The Court requires the Respondent to bring the contracts of employment of the Complainants into line with the provisions of Clause 6(1) of the Act with effect from the first day of the 2009/2010 Youthreach course year.
Compensation:
The Respondent submitted that the Rights Commissioner’s awards of compensation were excessive in all the circumstances of this case. All of the Complainants were employed on a continuous basis. The Respondent made genuine efforts at national and local level to arrive at an amicable resolution of the issues in dispute and acted in good faith at all times towards the Complainants. In all the circumstances the Respondent submits that the awards of compensation are excessive and should be reduced or eliminated entirely.
The Complainants withdrew their appeals on this point and submitted that the awards of compensation were right and appropriate and modest in all the circumstances of the case and should be upheld.
Findings of the Court
The Court finds that the Complainants were denied their entitlements pursuant to the provisions of the Protection of Employees (Fixed-Term Work) Act 2003. The Court takes the view that to be denied ones statutory rights is a serious matter. The Complainants found it necessary to undertake legal proceedings before the Rights Commissioner and on appeal to this Court in order to vindicate those rights. Accordingly, taking all of the circumstances into account the Court determines that the compensation awarded by the Rights Commissioner is proportionate and appropriate in this case. The Respondents appeal is rejected.
Determination
The Court rejects the Respondent’s appeal.
Signed on behalf of the Labour Court
Brendan Hayes
28th October, 2011______________________
DNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to David P Noonan, Court Secretary.