FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : MARY IMMACULATE COLLEGE (REPRESENTED BY IRISH BUSINESS & EMPLOYERS' CONFEDERATION) - AND - DR ROSARII GRIFFIN (REPRESENTED BY IFUT) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-105672-ft-11.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court hearing took place on the 11th October, 2011. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Mary Immaculate College against the Decision of a Rights Commissioner in relation to a complaint by Dr Rosarii Griffin under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). At the Rights Commissioner hearing the Complainant argued that Mary Immaculate College contravened Section 6 of the Act when she was treated less favourably than a comparable permanent employee.
The Rights Commissioner found in favour of Dr Rosarii Griffin and decided that she should be paid an ex-gratia redundancy payment calculated on the basis of four week’s pay per year of service exclusive of her statutory redundancy entitlement.
In this Determination the parties are referred to as they were at first instance. Hence Mary Immaculate College, which is the appellant, in this case, is referred to as “the Respondent”. Dr Rosarii Griffin who is the respondent herein is referred to as “the Complainant”.
Background
The Complainant was appointed to the “Contract Post of Director-National Centre for Global Development Through Education” (CGDE), this was a full-time fixed term contract from 4thFebruary 2008 until 31stJanuary 2011. The contract came to an end on 31stJanuary 2011 and she was made redundant.
On 9thFebruary 2011 the Complainant referred a claim under the Act to the Rights Commissioner, alleging that she was treated less favourably than a comparable permanent employee when she was paid statutory redundancy payments only instead of a more enhanced severance terms which applied to valid comparators, contrary to Section 6(1) of the Act, (the fact of redundancy was not in dispute).
Preliminary Issue
At the outset of the hearing the Respondent submitted that the Complainant did not havelocus standito maintain the within claim. Ms Sin�ad Mullins, IBEC on behalf of the Respondent submitted to the Court that as the Complainant was a permanent employee of University College Cork (UCC) since September 2007 who availed of a career break to take up the fixed term appointment with the Respondent, and subsequently returned to UCC, she was at all material times a permanent employee within the Education sector.
Ms Mullins told the Court that the Complainant applied for and was granted a one year career break by UCC, she subsequently applied for an extension for a further two years in order to complete the three year fixed-term contract, it was granted on the basis that the reason for the continuation was the same as the original granting of the leave, i.e. to facilitate her working on the 3-year CGDE project.
Ms Mullins stated that it was the Respondent’s understanding that during her period of employment as Director of the CGDE the Complainant remained an employee of UCC for the purposes of superannuation and annual leave. She said that it was understood by all parties that the Complainant’s temporary "loan" to the Respondent would have no deleterious effect on her permanent substantive position in UCC and her status as a permanent employee within the Education Sector. In accordance with the terms of the career break scheme, the Complainant’s absence was at all times a mere leave of absence and did not constitute a termination of her employment with UCC, and she remained a permanent employee of UCC for the purposes of superannuation etc.
The first issue the Court must consider is whether the Court has jurisdiction to hear the case i.e. does the Complainant havelocus standito maintain the within claims, this is dependent on her falling within the definition of fixed-term employee as set out in Section 2 of the Act.
Statutory Provision
The Act was enacted to give effect to Ireland’s obligations under Directive 99/70/EC concerning the framework agreement on fixed-term work. The object of the Directive is to provide for the application of the principle of equal treatment to fixed-term workers and to introduce measures to prevent the abuse of successive fixed-term contracts of employment.
Section 2 of the Act defines a fixed-term employee as follows: -
- ‘‘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—
- (a) employees in initial vocational training relationships or
apprenticeship schemes, or
(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;
- (a) employees in initial vocational training relationships or
The Court is satisfied that the complaint before the Court directly concerns the notification to the Complainant dated 19thJanuary 2011 from the Respondent informing her that“as a result of the termination of [her] employment with Mary Immaculate College a redundancy situation arises”and proceeded to state that it had“been instructed by External Staff Relations, Department of Education and Skills that only statutory redundancy may be allowed". This occurred within the time period provided by Section 14 of the Act for the making of a complaint to the Rights Commissioner during which time the Complainant was on a contract of employment which she had entered into directly with the Respondent, the end of which was determined by the arrival of a specific date and therefore she haslocus standito maintain the complaint.
Accordingly, the Court is satisfied that it has jurisdiction to hear the complaint.
Summary of the Complainant’s case
Mr. Mike Jennings, IFUT on behalf of the Complainant submitted a complaint that she was entitled to the same ex-gratia redundancy payment as that paid to permanent employees within the higher educational sector who were made redundant, i.e. four week’s pay per year of service plus the statutory redundancy payment.
In support of his contention Mr. Jennings cited as valid comparators the following persons employed in third level institutions throughout the state and who had been made redundant, within the meaning of Section 5 (1)(a) and (c) of the Act:
- �the catering staff of St. Catherine’s College of Education for Home Economics,
�an employee of the Royal College of Surgeons,
�catering staff in the National University of Ireland, Maynooth
�an employee in Wexford VEC
He stated that in each of these cases four week’s pay per year of service plus the statutory redundancy payment was paid to permanent workers being made redundantand therefore the Complainant is entitled to rely on them as comparators for the purpose of advancing her claim.
Summary of the Respondent’s position
Ms. Mullins submitted that without prejudice to its argument that the Complainant does not havelocus standi,the Respondent was of the view that a genuine redundancy did not exist in all the circumstances of the case as the Complainant was in continuous employment in the Public Service. Her permanent substantive position in UCC continued to exist for the period of assignment to the Respondent.
Ms. Mullins stated that unlike those whom the Complainant cited as comparators, she had a permanent Public Service job to return to by prior agreement following the termination of her employment with the Respondent. She suffered no loss of employment and no real loss of income.
Conclusions of the Court
The Complainant contended that she was treated less favourably than comparable permanent employees in respect to a redundancy payment made to her on the termination of her employment with the Respondent. This, she contended, contravened her right to equal treatment in respect to employment conditions enshrined in Section 6(1) of the Act. The Respondent denied the claim.
Section 6(1) of the Act provides the general right of fixed term employees to equal treatment with comparable permanent employees with respect to conditions of employment.
The question of whether redundancy payments, whether statutory orex gratiain nature, constitutes remuneration within the meaning of Section 2 of the Act has been judicially considered in a number of cases.In Case C 262/88 Barber v Guardian Royal Exchange Assurance[1990] ECR 1-1889 the CJEU had to consider this question in the contest of the Equal Pay Directive. It held, at paragraph 13 of the judgment: -
- As regards, in particular, the compensation granted to a worker in connection with his redundancy, it must be stated that such compensation constitutes a form of pay to which the worker is entitled in respect of his employment, which is paid to him upon termination of the employment relationship, which makes it possible to facilitate his adjustment to the new circumstances resulting from the loss of his employment and which provides him with a source of income during the period in which he is seeking new employment .
InGarland v BREL[1982] ECR 359, the Court of Justice considered if anex-gratiatravel facility offered as a concession after retirement constituted pay. In answering that question in the affirmative the Court formulated the now familiar definition of the term “pay”, which is largely repeated in the definition of “remuneration” contained at Section 2 of the Act of 2003. The Court said:-
- It is important to note in this regard that in paragraph 6 of its judgment of 25 May 1971 in case 80/70 Defrenne ( 1971 ) ECR 445 , at p . 451 , the Court stated that the concept of pay contained in the second paragraph of Article 119 comprises any other consideration , whether in cash or in kind , whether immediate or future , provided that the worker receives it , albeit indirectly , in respect of his employment from his employer .
Later, in concluding that the concessionary orex-gratianature of the payment was irrelevant, the Court said the following: -
- It follows that where an employer ( although not bound to do so by contract ) provides special travel facilities for former male employees to enjoy after their retirement this constitutes discrimination within the meaning of Article 119 against former female employees who do not receive the same facilities .
These authorities were most recently followed in this jurisdiction inUniversity College v Bushin[2012] IEHC in which Kearns P. held that ex-gratia redundancy payments constituted remuneration for the purpose of the Act of 2003. A similar view was taken by Smyth J inSunday Newspapers v Kinsella and Bradley[2008] ELR 53.
It is thus clear that what is in issue in the instant case constitutes remuneration for the purposes of the Act.
Appropriateness of the nominated comparators
The issue before the Court concerns the Complainant’s claims that she is entitled to the same ex-gratia redundancy payment as paid to permanent employees within the higher educational sector who were made redundant and not the issue of whether or not a genuine redundancy situation existed, that issue does not come within the remit of the 2003 Act. In any event it is not disputed that the Respondent declared the Complainant redundant and paid her a statutory redundancy payment.
It was submitted on behalf of the Complainant that the workers cited are comparable permanent employees within the meaning of the Act and that the Complainant is entitled to rely on them as comparators for the purpose of advancing her claim.
In the course of the hearing the Respondent disputed the appropriateness of the comparators cited and held that they were not the correct comparators within the meaning of section 5 of the Act. Ms. Mullins informed the Court that in September 2005 catering staff employed directly by the Respondent had been made redundant due to the outsourcing of the Catering Department at the time. She contended that these catering staff should be viewed as the appropriate comparators.
The Court sought verification of this assertion and by letter dated 10thNovember 2012, Ms. Mullins produced documentary evidence and informed the Court that by agreement reached on 31stAugust 2005 between SIPTU and the Respondent under the auspices of the Labour Relations Commission, a redundancy package of four weeks’ pay per year of service inclusive of statutory redundancy was paid to the affected catering staff at the time. This was not disputed by the Union, however, Mr. Jennings submitted that the Court should not heed this information as it was only raised late in the day. He said that the norm in the Higher Education Sector since 2007 was to pay five weeks pay per year of service and the 2005 redundancies referred to now were a product of their time. He said that to ignore the completely different context and circumstances of the 2005 case and to impose that case on the Complainant without regard to the changed circumstances would be to undermine the very purpose for which the Act was implemented, which provides for no less favourable treatment. Mr. Jennings continued by stating that the Complainant was entitled to be treated in 2011 in the way in which permanent comparators were treated or could have been expected to be treated in 2011 and as the Respondent had previously held that there were no in-house comparators then he contended that it was legitimate and proper to cast the net of comparators wider into the Higher Education Sector and that the Complainant was entitled to choose her own comparator.
Section 5 of the Act sets out what constitutes a comparable permanent employee.
5.—(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—
- (a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
(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
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the 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.
(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,
(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 general scheme of the Act is to afford a fixed-term employee equality of working conditions, including pay, with a comparable permanent employee. A permanent employee is comparable in relation to a fixed-term employee if they are both engaged in like work by the same or associated employer as defined by Section 5(1) (a) of the Act and it is only if that situation does not apply that there is a requirement to consider the wider context of those employed in“the same industry or sector of employment”.
The Court is satisfied that the permanent employees cited and the Complainant were employed by the same employer and accordingly the requirements of Section 5(1)(a) of the Act are met. Section 5(1) (a) goes on to require that one of the conditions referred to in subsection (2) is also satisfied in respect of both the Complainant and the comparable permanent employees. It has not been disputed that the Complainant was engaged in work of equal or greater value to that performed by the catering staff within the meaning of Section 5(2) (c) of the Act and accordingly the Court finds that there is no requirement to look outside the Respondent’s employment for a suitable comparator.
The Complainant was paid a statutory redundancy lump sum in respect of her redundancy. The Court finds that the appropriate comparators were those catering staff employed directly by the Respondent who were made redundant in 2005 and who were paid four weeks’ pay per year of service inclusive of statutory redundancy. Thus,prima facie, the Complainant was treated less favourably that her permanent comparators in respect to the redundancy payments which they received.
In these circumstances, the Court finds that the Complainant is entitled to a redundancy ex-gratia payment of four weeks’ pay per year of service inclusive of statutory redundancy. The Court notes that the statutory payment had already been paid to the Complainant.
Determination
For the reasons set out herein the Court is satisfied that the Respondent’s appeal is allowed and the decision of the Rights Commissioner is amended accordingly.
Signed on behalf of the Labour Court
Caroline Jenkinson
7th December, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.