FTD1210

Both parties appealed the Rights Commissioners Recommendation 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 23rd February, 2012.


WORKER'S ARGUMENTS:

3. 1. It is submitted that the break in service can be correctly considered to have been merely a lay off as there must have existed a reasonable belief on his part that he would be re-employed following his satisfactory completion of his year of employment, as indeed he was in September 2006.




EMPLOYER'S ARGUMENTS:

4. 1. The Worker does not have the four years continuous service to entitle him to a contract of indefinite duration as and from the 9th September 2009. It is acknowledged that the Worker is entitled to a CID on 1st September 2010 on the same terms and conditions which existed in his previous fixed-term contract.

DETERMINATION:

County Cork VEC (the “Appellant”) has brought this appeal pursuant to Section 15(1) of the Protection of Employees (Fixed-Term Work) Act 2003 (the “Act”) against Decision r-0885511-ft-09/JOC of the Rights Commissioner made on 9^thAugust 2010 (the “Decision”).

The Rights Commissioner, having found that a complaint from Mr Brian Cronin (the “Complainant”) pursuant to the Act was well founded, made the following Decision

• “ Under section 9 (2) I award the claimant a Contract of Indefinite Duration for 13.95 hours per week, with effect from Sept 09, identical in terms, including any express or implied terms as to training and qualifications, as the fixed term contract from which it was derived.”

Background:

Mr Cronin was employed on a series of fixed term or fixed purpose contracts of employment commencing on the 7^thNovember 2005.

Contracts of Employment

First Contract

The Complainant's first contract commenced on 7^thNovember 2005. The termination date is a matter of dispute. The appellant submits that it terminated on 31^stMay 2006 one day before the end of the school year. The complainant submits that he continued working into June 2006 discharging work related to his role as a career guidance teacher whilst simultaneously supervising state examinations in the school. Ultimately nothing turns on this point.

Second Contract

The 2nd contract commenced on 1 September 2006 and terminated on 31^stAugust 2007. The purpose and teaching hours in the contract are expressed in the following terms “

• The purpose of the contract is to teach the assigned number of hours each week:

  Hours from Concessionary Allocation

  Your weekly contracted hours are 20.05 & 22.00 hours from 01.10.06

  (Concessionary Allocation)

The 3rd contract commenced on 1 September 2007 and terminated on 31 August 2008 The purpose and teaching hours in the contract are expressed in the following terms “

• The purpose of the contract is to teach the assigned number of hours each week:

  Hours from Concessionary Allocation(10.5)

  Your weekly contracted hours are 19.8 (10.5 hours from concessionary allocation)

The 4th contract commenced on 1 September 2008 and terminated on 31 August 2009 The purpose and teaching hours in the contract are expressed in the following terms “

• The purpose of the contract is to teach 20.95 (Concessionary 7.00) hours each week in the above post:

The 5th contract commenced on 1 September 2009 and terminated on 31^stAugust 2010.

The “Nature of Position” is described in the following terms

• “the purpose of the contract is to teach 7.00 hours each week in the above post.”

It is common case that the Complainant, pursuant to Section 9 (2) of the Act became entitled to a Contract of Indefinite Duration (“ CID”). The issue before the Court relates to a dispute between the parties as to when he accrued this entitlement.

Position of the Parties:

The Complainant submits that he was employed by his employer on two or more continuous fixed-term contracts and the date of the first such contract being subsequent to the date on which the Act was passed, he became entitled to a CID when the aggregate duration of those contracts exceeded 4 years.

He submits that his first CID commenced on 7^thNovember 2005. He submits that this is the relevant date from which to count his service for the purpose of determining when the aggregate duration of those contracts exceeded 4 years. He submits that in conversation with the then School Principal he was given sufficient assurances of employment in September 2006 to have formed a reasonable belief that he would be re-employed. He submits that this establishes the period between June and September 2006 a lay off as distinct from a termination of employment. In support of this position he relies on the Determination of this Court inDepartment of Foreign Affairs v A Group of Workers 2007 ELR 332.

The appellant submits that the Complainant’s employment was severed at the termination of the first fixed purpose contract of employment. It submits that the fixed-term contract of employment that commenced on 1 September 2006 was not continuous with the contract of employment that commenced on 7^thNovember 2005. Accordingly, Counsel for the appellant submits, that it cannot be included for the purpose of calculating when the aggregate duration of the continuous fixed term contracts of employment exceeded four years.

Both parties agreed that the case turned on this point.

The Court heard evidence from Mr Cronin on this point. Mr Cronin told the Court that he had had two conversations with the then school principal that led him to the reasonable belief that he would be re-employed in September 2006. He said that he was aware that he was required to undergo an interview for the post but was led to believe that this was a formality. He said that he applied for a post in another school. He said that the school principal encouraged him not to pursue his application for that post as he would be offered a work in her school in September. In cross examination he agreed that he had not been given any notification of the hours he would be offered, the subjects he would be teaching or the classes he would be taking. He also agreed with Counsel for the VEC that he knew that he would have to undergo an interview and that the outcome of such a process could not be certain or guaranteed. He told Counsel for the VEC that he applied for the other vacancy for the purpose of getting interview experience but had no intention of taking that post. He said that he was approached by the principal and encouraged not to pursue that post as she would have work for him in September.

No other evidence was offered to the Court on this point.

Findings of the Court:

The Court found the Complainant a reliable and honest witness. The Court, on the evidence presented to it, finds that the Complainant, on the basis of his interactions with the school principal had a reasonable belief that he would be offered re-employment in the school in September 2006. Accordingly the Court finds that the Complainant was effectively on a lay-off between June and September 2006.

The jurisprudence of this Court in relation to the treatment of lay off for the purposes of interpreting the term “continuous” in Section 9(2) of the Act is set out inDepartment of Fireign Affairs v A Group of Workers 2007 ELR 332.In that case this Court held that where a worker, whose fixed term contract of employment came to an end, had a reasonable belief that he or she would be re-employed within a reasonable period of time, the intervening period should be regarded as a lay off and for the purpose of this Act did not constitute a break in service.

In this case the Court finds that the Complainant had such a reasonable belief and accordingly was on lay off in the period of time between the termination date of the first fixed term contract of employment in June 2006 and the commencement of the second fixed term contract in September 2006. The Court affirms the Decision inDepartment of Fireign Affairs v A Group of Workers 2007 ELR 332.

Section 9(2) of the Act provides

• (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.

Section 9(3) of the Act 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

Determination

The Court determines that the contract of employment issued to the Complainant on 1 September 2009 is deemed to be a contract of indefinite duration.

The Court so determines.

Complainant’s Appeal

No submissions were made to the Court regarding the appeal by the Complainant in which he sought compensation for the breach of his entitlements under the Act.

Determination

The Court rejects the Complainant’s appeal.

The Court so determines

Signed on behalf of the Labour Court



Brendan Hayes
16th April, 2012______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.