FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : RICE COLLEGE - AND - MS SIOBHAN O' DONOUGHUE (REPRESENTED BY BYRNE WALLACE SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision R-112647-FT-11.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's decision to the Labour Court on 13th July, 2012. A Labour Court hearing took place on the 7th November, 2012. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Ms Siobhán O’Donoghue (the Complainant) against the Decision of a Rights Commissioner which found against her under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Rights Commissioner found that as the Complainant was employed in a permanent capacity she did not havelocus standiand therefore he had no jurisdiction to hear the complaint.
The claims referred to the Rights Commissioner concerned an allegation that Rice College (the Respondent) failed to provide her with a contract of indefinite duration for 16 hours and 40 minutes per week in circumstances where she became entitled to such a contract by operation of law pursuant to Section 9(3) of the Act.
Background
The Complainant commenced employment with the Respondent in September 2004 on a fixed-term contract for a 12 month period to teach 11 hours, German,History and Learning Support covering for a permanent whole-time teacher who availed of job-sharing arrangements. She was also supplied with an additional 7 hours per week due to theDepartment of Education and Skills’ allocation of concessionary hours to the School for 2004/05. For each of the school years 2006/07 and 2007/08,the Complainantwas employed pursuant to further fixed-term contracts arising out of the continuation of the whole-time permanent teacher on the job-sharing scheme. In addition she worked an additional 5 hours 40 minutes per week out of the Department's allocation of concessionary hours to the School for each of the relevant years.
In September 2008, the Complainant was provided with a contract of indefinite duration employed to teach 5 hours 40 minutes per week in the post of qualified teacher. In addition the Complainant worked the 11 hours per week on a fixed-term basis for the school year 2008/09 covering the job-sharing arrangement.
The job-sharing arrangement that the Complainant had covered from September 2004 ended on 31st August 2009.
For the school year 2009/2010, the Complainant continued to teach the hours pursuant to her contract of indefinite duration and was further employed for 11 hours 40 minutes per week on a fixed-term basis arising from concessionary hours granted by the Department for 2009/2010.
For the school year 2010/2011, in addition to her contract of indefinite duration hours of 5 hours 40 minutes per week, the Complainant was employed on a fixed-term basis to teach 13 hours per week comprised of 6 hours 20 minutes concessionary hours from the Department's allocation and 6 hours 40 minutes arising by virtue of a secondment.
For the school year 2011/2012, the Complainant was contracted to teach 5 hours 40 minutes per week as per her contract of indefinite duration.
The contracts of employment furnished to the Complainant stated as follows:
• 1 September 2004 to 31 August 2005:–
The Complainant was issued with a fixed term contract:
- “to teach for not more than 22 hours in each week”the subjects listedwere“German, History and Learning Support”.
•1 September 2005 to 31 August 2006: –
The Complainant was issued with a fixed term contract:
- “to teach for not more than 22 hours in each week”.“The purpose of the contract is to teach German, RE, Resource and Learning Support on a temporary part time basis” and she was “employed as a part-time/temporary teacher to cover a job sharer and hours granted by the Department of Education on a concessionary basis for the school year 2005/2006 and the hours were subject to review at the end of the academic year 2006”.
•1 September2006 to 31 August 2007:–
The Complainant was issued with a fixed term contract:
- “to teach for not more than 22 hours in each week.” “The purpose of the contract is to teach German, Learning Support on a temporary basis”and she was“employed because of Job sharer and Concessionary Hours from DES, from 01/09/2006 to 21/08/2007”.
•1 September2007 to 31 August 2008:-
The Complainant was issued with a fixed term contract:
“to teach for not more than 22 hours in each week.”“The purpose of the contract is to teach German, Learning Support on a temporary basis”and she was“employed because of a) 11 Hrs Job sharer and Concessionary Hours from DES, b) 5 Hrs: 40Mins Special Needs Concessionary Hours from DES from 01/09/2007 to 21/08/2008”.
•1 September 2008 to 31 August 2009: –
The Complainant was issued with a contract of indefinite duration:
- “to teach the assigned number of hours each week over the course of the full school year.” The subjects to be taught include German, CPSE, Religion, SPHE, Resource, Special Needs.” It stated that “the hours of the contract of indefinite duration will be the hours for which the employee was engaged on a fixed term contract in the school/academic year prior to the issuing of the CID (other than those hours which are for the provision of temporary cover and unless varies by the terms of the Circular Letter PPT 14/05). The hours in the academic year 07/08 were ….5 H…40 Min……..”.
Simultaneously, the Complainant was issued with a fixed term contract
- “to teach for not more than 22 hours in each week.”“German, SPHE, CPSE, RE. L.Support and Concessionary Hours from DES”, these were detailed as “a) 5 hrs:20 mins, Special Needs hours from DES and b) 11 Hrs from Job Sharing Post”.
•1 September2009 to 31 August 2010: –
The Complainant was issued with a fixed term contract:
“to teach German, Religion, CSPE, SPHE, Spanish & Learning Support up to Leaving Cert for 11 Hrs 40 Mins each week. You are employed as a fixed-term teacher to cover the hours arising from Traveller Hours 8 Hrs 40 Mins & Special Needs Hours 3 Hrs granted to this school by the Department of Education and Science for the academic year 2009-2010”.
•1 September 2010 to 31 August 2011:
The Complainant was issued with a fixed term contract:
- “to teach German, SPHE, Religion, Special Needs for 13 Hr :00 Mins each week. You are employed as a fixed-term teacher to cover 5Hr:00Mins Special Needs, 1Hr:20 Mins Traveller Hours & 6 Hr : 40 Mins from a secondment granted to this school by the Department of Education and Science for the academic year 2010-2011”.
By letter dated 27thJune 2011from the Respondent, the Complainant was informed that her temporary contract would terminated from 31stAugust 2011 as per the contract issued to her in September 2010.
In summary the hours worked by the Complainant were as follows:-
• 1 September 2004 to 31 August 2005-18 hours a week
• 1 September 2005 to 31 August 2006 -18 hours a week
• 1 September2006 to 31 August 2007 -16 hours 40 minutes a week
• 1 September2007 to 31 August 2008 -16 hours 40 minutes a week
• 1 September 2008 to 31 August 2009 -16 hours 40 minutes a week
• 1 September2009 to 31 August 2010 - 17 hours 20 minutes a week
• 1 September 2010 to 31 August 2011 - 18 hours 40 minutes a week
• 1 September 2011 to 31 August 2012 - 5 hours 40 minutes a week
The Complainant claimed that the Respondent was in breach of Sections 9(2) of the Act, in that her contract of indefinite duration provided to her on 1stSeptember 2008 did not include the same terms from which it derived.
The Complainant presented her complaint to the Rights Commissioner on 31stAugust 2011.
Summary of the Respondent’s position
Ms Kara Turner, on behalf of the Respondent stated the Complainant’s entitlement to a contract of indefinite duration under the 2003 Act was acknowledged in September 2008 in accordance with the agreements between the partners in education. She submitted that as that contract does not contain an expiry date or the occurrence of an event, it is a permanent contract requiring the Complainant to teach 5 hours 40 minutes each week over the school year on an indefinite basis and accordingly she has no“locus standi”under the Act. The Complainant accepted and signed the contract of indefinite duration on 2ndSeptember 2008 which specified the title of the post as“Qualified teacher on a contract of indefinite duration,thereforethe Complainant having signed a binding contract confirming her employment on an indefinite basis cannot now resile from that position to pursue a complaint under the 2003 Act. Ms. Turner referred to the decision of the Labour Court inNational Universityof Ireland MaynoothvDr. Ann Buckley(FTD092) in this regard.
The Respondent referred to the determination of the Labour Court in the case ofTrinity College DublinvDr. Rachel Moss,Determination No. FTD 129, where the Labour Court held:-
- "The protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only beentertained ifit relates to a period offixed-termemployment.Hence,the first point for consideration is whether or not the Complainant was a fixed term employee within the meaning of Section 2 of the Act in thesix-month period ending on thedate onwhich her complaint was referred to the Rights Commissioner. If she was not a fixed-term employee during that period thenshe does not have'locusstandi'to maintain her complaint and the Court has no jurisdiction to entertain her claim."
Ms. Turner referred toUniversity College Cork and Dr. Inge Nieuwstraten, Determination no FTD 1122, where the Labour Court considered whether the complainant was entitled to rely on the provisions of the 2003 Act in respect of the portion of duties performed under a fixed-term contract where the complainant was also the holder of a permanent contract, the Court was of the view:-
- "that the duties she carried out under the fixed-term contract were extra duties she was required to perform and as such were inextricably linked to her status as a permanent employee".
Furthermore, Ms. Turner contended that the Complainant’s complaint under the Act does not relate to her fixed-term employment rather it relates to her hours of work as a permanent employee. Accordingly she submitted that the nature of the Complainant’s complaint should be deemed a tacit acknowledgement of her status as a permanent
employee and the complaint was not one falling to be addressed within the scope of the 2003 Act. On that basis Ms. Turner relied on the conclusion of the Labour Court in the case ofTrinity College Dublin v Dr. Rachel Moss:-
"In that event she does not have locus standi to maintain the within claim and in claiming a contract of indefinite duration under the Act, she was seeking something that she already had."
Notwithstanding the foregoing, Ms. Turner submitted that if the Complainant’s complaint does in fact relate to a period of fixed-term employment then the complaint to the Rights Commissioner was presented out of time. Section 14(3) 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."
She submitted that if the alleged contravention to which this complaint relates derives from the hours held by the Complainant arising from the job-sharing arrangement then the Complainant has not held those hours since the job-sharing arrangement ended on 31stAugust 2009, therefore the complaint was out of time and was statute barred.
Without prejudice to the foregoing, Ms. Turner held that the Complainant was furnished with a contract of indefinite duration in September 2008 for 5 hours 40 minutes, namely the hours she held for which there were no objective grounds justifying the use of a further fixed-term contract. Ms. Turner said that the Respondent, on behalf of the Complainant, applied to the Department for a contract of indefinite duration for 11 hours per week effective September 2009 but this was turned down.
Ms Turner submitted that the11 hoursthe Complainanttaught in her fourth year of employment with the School, namely 2007/08, were as a result of the permanent whole-time teacher continuing to avail of the job-sharing scheme and accordingly objective grounds existed for the use of a further fixed-term contract in respect of these hours.This job-sharing arrangement did in fact conclude in August 2009.
The decision to renew the Complainant’s fixed-term contract for 11 hours was entirely unrelated to her status as a fixed-term employee and this was supported by the fact that the Respondent offered a contract of indefinite duration to her in September 2008. The renewal of the contract for 11 hours on a further fixed-term basis was for the purpose of achieving a legitimate objective of the employer, namely to fill the 11 hours per week teaching hours available to it for a 12 month period from the beginning of the school year as a result of a permanent whole-time teacher availing of the job-sharing scheme.It was further submitted that the renewal wasappropriate and necessary for the foregoing purpose insofar as the job-sharing arrangement of the permanent whole-time teacher was subject to annual approval and sanction;the School furnishedthe Complainantwith a contract for the duration of the period sanctioned and there was no other or less onerous basis available to the School to meet its objective when the 11 hours teaching per week available to it was approved initiallyfor 12 months and subject to annual approval and sanction thereafter.
Ms. Turner referred to the decision of the High Court inMinister for FinancevUna McArdle[2007] 18 ELR 165 and in particular Laffoy J.'s approval of the general propositions stated by the Labour Court and quoted therein:-
- "That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms as to pensionability and termination, which, as already observed, would have had to be aligned with those of a comparable permanent employee in accordance with the section. "
Ms. Turner stated that applying the above propositions to the facts of this case, the Complainant's fixed-term contract furnished in 2008/09did not contravene sections 9 (1) or (2) as those are subject to section 9(4) which allows for renewal of a fixed-term contract of employment where there are objective grounds justifying said renewal,which it is submitted existed in the circumstances of the permanent whole-time teacher availing of the job-share scheme.
The Complainantwas given a contract of indefinite duration in respect of those hours which,if renewed on a fixed-term basis,in September 2008 could have fallen foul of section 9(2).It is submitted, in reliance on the above proposition, that the other terms and conditions of the Complainant's employment properly remained unaffected.
Ms. Turner stated that the fixed-term contracts offered tothe Complainantfor 2008/09; 2009/10 and 2010/11 were offered to supplement the contract of indefinite durationthe Complainantheld withthe Respondent.These fixed-term contracts were offered out of the Department's allocation of concessionary hours to the School for the duration of each of the academic years. She submitted that it is the prerogative and responsibility of the School's Principal to allocate classes and subjects to individual teachers having regard to the needs of the School, the needs of the pupils and the qualifications and experience of individual teachers. This prerogative and responsibility is recognised by section 22 of the Education Act 1998 which provides at (2) (d) that teachers shall:-
- "subject to the terms of any applicable collective agreement and their contract of employment carry out those duties that-
- (i) in the case of teachers, are assigned to them by or at the direction of the Principal, and ... "
Ms. Elaine Kelly, Byrne Wallace Solicitors on behalf of the Complainant submitted to the Court thatthe Complainant comes within the definition of a "fixed-term employee" in the Act i.e. she is an employee with a contract of employment where the end of the contract concerned is determined by an objective condition. While she was given a contract of indefinite duration in September 2008,the Complainant was issued with fixed-term contracts for the school year 2008/2009, 2009/2010 and 2010/2011 and was thus employed pursuant to a fixed-term contract at the time of the alleged breach of the Act.
Ms. Kelly submitted that althoughthe Complainant was furnished with a contract of indefinite duration in September 2008, this contract was limited to 5 hours and 40 minutes, whereas the Complainant had been employed to work for 16 hours and 40 minutes, during the academic year immediately prior to the furnishing of the contract of indefinite duration. Therefore on 'conversion' of her contract, the Respondent made material amendments to the principal clauses of the Complainant's previous contract in a way that was overallunfavourable to her and this Ms. Kelly contended was in conflict with the judgment of theECJ in Huet v Universite de Bretagne Occidentale (C-251/11)where the ECJ held thatMember State must ensure that theconversion of fixed-term employment contacts into an employment contract of indefinite duration when the fixed-term employment contracts have reached a certain durationis not accompanied by material amendments to the clauses of the previous contract in a way that is overall unfavourable to the person concerned when the subject matter of that persons tasks and the nature of his functions remain unchanged.
Ms. Kelly submitted that the issuing of further fixed-term contracts to the Complainant after she had accrued in excess of 4 years on 2 or more successive fixed-term contracts was in breach of Section 9 of the Act in circumstances where there were no objective grounds justifying such renewals. She held that this was supported by the fact that the Respondent failed to give the Complainant statements as required by Section 8 of the Act in advance of each renewal. She submitted that the Labour Court should draw an inference from this failure.Furthermore shesubmittedthat when the Respondent furnished the Claimant with a contract of indefinite duration, itmade material amendments to the principalclauses of the Complainant's previous contractin a way that was overall unfavourable to her and thus there was a continuing breach of Section 9.
Ms. Kelly submitted that the basis for giving the Complainant this contract appeared to be Department Circular 34/2009, which amends Circular 0055/2008 which sets out the agreed terms for implementation of the Protection of Employees (Fixed-Term Work) Act 2003 insofar as it applies to a person employed as a qualified teacher paid out of Oireachtas funds and employed by a post primary school or a VEC. The Circular provides for such persons to be given contracts of indefinite duration in prescribed circumstances including where they are employed for 4 years on 2 or more successive fixed-term contracts.
Ms. Kelly stated that despite being issued with a contract of indefinite duration for 5 hours and 40 minutes, the Complainant was also issued with a fixed-term contract for the school year 2008/2009 for 11 hours so that she worked an aggregate of 16 hours 40 minutes. For the school year 2009/2010 the Complainant was supplied with a fixed-term contract for 12 hours so that she worked an aggregate of 17 hours 40 minutes and forthe school year 2010/2011 she was supplied with a fixed-term contract for 13 hours so that she worked an aggregate of 18 hours 40 minutes.
Ms. Kelly stated that Circular 0055/2008 provides that where a school has unassigned hours, these may be offered to a part-time contract of indefinite duration holder on a fixed-term basis.This is provided for at paragraph 5.1.5 which states that:-
- "where the school has unassigned hours these may be offered to a part-time CID holder on a fixed-term basis. A separate fixed term contract shall be offered in respect ofthese hours... In the event of these hours continuing for 4 years, they will be subject to assessment for a contract of indefinite".
Ms. Kelly therefore submitted that if the Complainant had received a further fixed-term contract for the school year 2011/2012, this would have been subject to an assessment for a contract of indefiniteduration. However,no further fixed-term contracts were issued for the school year 2011/2012, she worked 5 hours 40 minutes a week for that year.
Ms. Kelly contended that it is unlikely that the Complainant will be given any further fixed-term contracts; therefore her current hours of 5 hours 40 minutes are unlikely to increase in the near future.
Conclusions of the Court
- •locus standi of Complainant
The first issue the Court must address is the question of the Complainant’slocus standi. The Rights Commissioner found that he had no jurisdiction to entertain the claim because at the time of its presentation the Complainant had obtained a contract of indefinite duration by operation of law.
It was submitted by the Respondent that the Complainant could not pursue such a claim as her status as a fixed-term employee in 2010/2011, when she submitted her complaint under the Act, was ancillary to her status as a permanent employee/ post holder on foot of her contract of indefinite duration and it relied uponUniversity College Cork and Dr. Inge Nieuwstraten, however, the Court found in that case that"that the duties she carried out under the fixed-term contract were extra duties she was required to perform and as such were inextricably linked to her status as a permanent employee".
The Respondent furnished the Complainant with a written contract of employment on 16thOctober 2008, with effect from 1stSeptember 2008. This was accompanied by a written statement of employment in which the Respondent stated that the contract was for a fixed-term although at the same time the Complainant had also been furnished with a contract of indefinite duration for 5 hours and 40 minutes. The fixed-term specified that her hours were the 5 hours and 40 minutes Special Needs hours from the Department of Education and Skills plus 11 hours to cover for the Job Sharing post, i.e. it combines the hours provided for in the contract of indefinite duration with the hours for which the Respondent held that there were no objective grounds justifying the use of a further fixed-term contract.
The Court notes that although the Complainant had been furnished with a contract of indefinite duration the Respondent continued to treat her as a fixed-term employee and issue her with fixed-term contracts for each academic year thereafter. Therefore, the Court is satisfied that the Complainant does havelocus standiand the Court has jurisdiction to hear the complaint. Furthermore, the Court notes from the Respondent’s submission to the Court that it accepts that when the Complainant presented her complaint to the Rights Commissioner on 31stAugust 2011 she was on a fixed-term contract to teach 13 hours over the course of the school year 2010/2011, therefore it accepted that the Complainant could be classified as a “fixed-term employee”.
- •was the complaint under the Act in time
The Court considered whether the Complainant’s complaint under the Act was in time as prescribed by Section 14(3) of the Act as it was not referred until 31stAugust 2011 and related to her claim that the Respondent had failed in September 2008 to provided her with a contract of indefinite duration for 16 hours and 40 minutes per week. This issue was considered in the case ofHSE Dublin North East and Ali Umar FTC/09/28, where the Court held:
- “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.”
The Respondent provided the Complainant with a contract of indefinite duration on 16thOctober 2008, effective from 1stSeptember 2008, however the Court is satisfied that it continued to treat her as a fixed-term employee and issued her with a contract for 16 hours and 40 minutes to expire on 31stAugust 2009, and issued similar contracts again in 2010 and in 2011.
That was a continuing contravention which crystallised with the Respondent’s letter to the Complainant dated 27thJune 2011 putting her on notice that her temporary employment which commenced in September 2010 would terminate on 31stAugust 2011. The Court notes that since that time the Complainant has been employed to work 5 hours and 40 hours only.
Therefore, the Court is satisfied that it can investigate an alleged“continuing breach”of the Act by way of the Respondent’s failure to acknowledge the entitlement to a contract of indefinite duration “reflective of the terms specified in the fixed-term contract from which it derived” and therefore the Court does not accept that the Complainant’s complaint was presented after the expiry of the time limit prescribed by Section 14(3) of the Act.
- •was the contract of indefinite duration reflective of the terms specified in the fixed-term contract from which it derived
The next issue before the Court concerns the complaint that the Respondent had not complied with its statutory obligation to provide the Complainant with a contract of indefinite duration reflective of the terms specified in the fixed-term contract from which it derived, contrary to the Laffoy J. judgment inMinister for Finance- v- McArdle 2007 18 ELR 165.InMcArdleLaffoy. J held that where a fixed-term contract is transmuted to one of indefinite duration by operation of Section 9(3) of the Act the resulting contract is identical to that from which it is derived save that the term providing for its expiry by effluxion of time (or the occurrence of an event) is severed. The judgment of theECJ in Huet v Universite de Bretagne Occidentale (C-251/11)held thatthe employment contract of indefinite duration reproduced must be in identical terms to the principal clauses set out in the previous contract, unless there are grounds for not doing so.
The Court is satisfied that the Complainant fulfilled the terms of Section 9(2) of the Act:
- 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.”
The Respondent did not dispute the Complainant’s entitlement to a contract of indefinite duration pursuant to Section 9 (3) of the Act and accordingly issued her with such a contract on 16thOctober 2008, effective from 1stSeptember 2008, for 5 hours 40 minutes, namely the hours she held for which the Respondent stated there were no objective grounds justifying the use of a further fixed-term contract.
The provisions of Section 9(3) of the Act states:
- 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.
The provisions of Section 9(2) of the Act were met by the fixed-term work contract issued to the Complainant by the Respondent on 1stSeptember 2008. On that date the aggregate duration of the successive fixed term contracts of employment under which she worked for the Respondent exceeded four years' duration.
Accordingly the Court finds that, in accordance with the provisions of Section 9(3) of the Act, the contract is deemed a contract of indefinite duration unless it is saved by virtue of Section 9(4) of the Act. However, the Respondent separated the Complainant’s contracts into two contracts; one became a contract of indefinite duration for 5 Hours and 40 minutes and the other a fixed term contract “to teach for not more than 22 hours in each week.”“German, SPHE, CPSE, RE. L.Support and Concessionary Hours from DES”, these were detailed as “a) 5 hrs:20 mins, Special Needs hours from DES and b) 11 Hrs from Job Sharing Post”. The latter contract encompassed the terms of the contract of indefinite duration within a fixed-term contract.
Section 7 (1) of the Act deals with what constitutes objective grounds for this purpose and provides:
- “(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.”
The Court in this regard notes also the decision of the Court of Justice inAdeneler and Ors. v Ellinikos Organismos GalaktosIRLR 716 where it said:
- “… the concept of objective reasons within the meaning of clause 5 (1) (a) 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.”
The Court of Justice in case C-307/05,Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud[2007] IRLR 911 dealt with the issue of objective justification for a difference in employment conditions as between a fixed-term worker and a comparable permanent worker. The Court made it clear that the interpretation of what constitutes objective grounds is the same whether it arises in relation to the renewal of successive fixed-term contracts, as inAdeneler,or in relation to the principle of equal treatment, as in the case under consideration inAlonso. In giving judgment in the latter case the Court of Justice said, in relation to objective grounds, at par 58: -
- “that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition 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 that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”
There is no dispute but that the Respondent acknowledged her entitlement to a contract of indefinite duration however it pleaded objective justification under the Act for the hours in excess of 5 hours and 40 minutes and hence issued her with two separate contracts. The objective grounds relied upon for the fixed term contract were the requirement to cover 11 teaching hours for apermanent whole-time teacher availing of a job-sharing scheme from 2004 until 2009. This, the Respondent contended, was alegitimate objective of the employer, was entirely unrelated to her status as a fixed-term employee and its renewal wasappropriate and necessary as the job-sharing arrangement was subject to annual approval and sanction.
Each of the fixed-term contracts giving rise to theprima facieentitlement to a contract of indefinite duration provided that she would be required to teach not more than 22 hours per week, to teach certain subjects and was depended on concessionary hours from the Department of Education and Science.
The Respondent submitted that there was objective justification for the renewal of a fixed-term contract of employment as it needed to provide cover for the job sharing arrangement. The Court notes that the Respondent had a temporary need to cover teaching for more than 5 hours and 40 minutes for a period of a least nine years up to the date of the Complainant’s claim, five of which were to cover for a job sharing arrangement, there was no reason given why this form of temporary cover would not have been required on a continuing basis.
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.
The Court held inTrinity College Dublin v Ms Elaine Moriarty, Determination FTD125:
- “The provisions of Section 9(3) do not empower the Court to carve out parts of a contract of employment and create an entirely new contract for the purposes of the Act. Section 9(3) simply provides that the impugned term of the contract is severed. The contract is otherwise unaffected and subsists. Accordingly, the objective grounds either justify the renewal of the fixed term contract in its entirety or it does not.”
InHuetthe ECJ held
- “In the light of the foregoing, the answer to the question referred is that Clause 5 of the Framework Agreement must be interpreted as meaning that a Member State, which provides in its national legislation for conversion of fixed-term employment contracts into an employment contract of indefinite duration when the fixed-term employment contracts have reached a certain duration, is not obliged to require that the employment contract of indefinite duration reproduces in identical terms the principal clauses set out in the previous contract. However, in order not to undermine the practical effect of, or the objectives pursued by, Directive 1999/70, that Member State must ensure that the conversion of fixed-term employment contracts into an employment contract of indefinite duration is not accompanied by material amendments to the clauses of the previous contract in a way that is, overall, unfavourable to the person concerned when the subject-matter of that person's tasks and the nature of his functions remain unchanged.”
Having considered the objective grounds submitted by the Respondent the Court finds that the Complainant’s fixed term contract cannot be carved out to create separate contracts each with a different status. Taking account of the CJEU inHuet, the Court is of the view that by providing a contract of indefinite duration for 5 hours and 40 minutes the Respondent converted her fixed-term contract into an employment contract of indefinite durationaccompanied by material amendmentswhich wereunfavourableto the Complainant.Therefore, the Court finds that the Complainant’s fixed term contract was renewed in September 2008 and such renewal is not objectively justified and is not saved by the provisions of Section 9(4) of the Act.
Therefore the 1stSeptember 2008 contract became one of indefinite duration by operation of Section 9(3) from the date of its commencement, and the Complainant was, thereafter, employed on a contract of indefinite duration as a matter of law.
Determination
For the reasons outlined above the Court determines that the Complainant’s contract of employment which came into effect on 1stSeptember 2008 is deemed to be a contract of indefinite duration for 16 hours and 40 minutes. As the Complainant’s hours were in excess of those hours for the intervening period up to the date the complaint was referred under the Act, the Court makes no further determination with regard to compensation in respect of the complaint.
The Rights Commissioner’s Decision is set aside. The Court overturns the decision of the Rights Commissioner and allows the appeal.
Signed on behalf of the Labour Court
Caroline Jenkinson
10th December 2012______________________
SCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.