FTD1241

The material facts of the case are not in dispute and can be briefly stated.

The Respondent operates an out of hours service for a group of medical practitioners in counties Galway, Roscommon, Mayo and South Sligo. It is a cooperative controlled and run by its membership and is a private limited company. At the time material to this claim it provided two separate services under contract with the HSE. It provided a GP service to patients between 6.00 pm and 9.00am Monday to Friday and a 24 hour service at weekends and Public Holidays. It provided a separate service involving the collection and delivery of medical samples to hospitals for analysis.

The Claimant is employed by the Respondent as a driver. He entered into two contracts of employment with the Respondent; one for the provision of the out of hours service and another for the collection and delivery service. Each of these contracts were for a fixed term which were successively renewed.

While it is accepted that the Claimant’s employment with the Respondent commenced in or about May 2007, the first contract in writing opened to the Court was for the period 1^stSeptember 2008 to expire on 31^stAugust 2009. It related to the provision of the collection and delivery service. This contract was expressed on its face to be a “temporary if and when required” contract. In relevant part this contract provided: -

• The standard hours for your grade are 39 per week. You will be employed on an “if and when” required basis. Your hours of attendance will be notified to you by your manager. You will receive as much notice as is reasonable in relation to your requested hours of attendance.

  Westdoc does not commit to provide you with a minimum number of hours. Equally you are not obliged to be available for any working shift unless you have committed to a request to work the said shift

  Westdoc reserves the right to alter working hours”

• You will be contracted to work 19 hours per week

  Westdoc reserves the right to alter working conditions.

In parallel with these contracts the Claimant was also party to a series of fixed-term contracts directed at the provision of the out-of-hours service provided by the Respondent. The first of these contracts commenced on 1^stMarch 2009 and ran until 29^thFebruary 2010. The provision of this contract dealing with working hours was in the same terms as that contained in the 1^stSeptember 2008-31^stAugust 2010 collection and delivery contracts which is reproduced above.

After its expiry this contract was followed by a series of monthly contracts or bi-monthly contracts which appear to relate to specific once-off engagements. The hours of work provided for by these contracts varied from five hours per month to 14 hours over two months. The Contract in being on 1^stSeptember 2010, and expressed to end on 31^stOctober 2010 provided that the Claimant would work 14hours over that period. On 1^stMay 2011 the Claimant was issued with a contract for the period commencing on that date and terminating on 31^stAugust 2011. That contract provided that the Claimant would work 128 hours in that period and such additional hours as might become available.

In or about January 2012 the Respondent’s contract terminated and the Claimant’s contract relating to the provision of this service came to an end. In December 2011 the Claimant’s union (SIPTU) wrote to the Respondent asserting that the Claimant had accrued an entitlement to a contract of indefinite duration and asked that he be furnished with such a contract. This was eventually accepted by the Respondent and the Claimant was then issued with what was expressed to be a “permanent contract” dated 7^thMarch 2012 which provided for working hours of 11 per week. This contract was not executed by the Claimant as its terms were in dispute.

The Claimant contends that the ‘permanent’ contract with which he was issued does not comply with the requirements under the Act as the hours of work for which it provides are less that those provided under his fixed-term contracts. The dispute was investigated by a Rights Commissioner who directed that the Claimant be issued with a contract of indefinite duration providing for 27 hours work per week. The Claimant was also awarded compensation in the amount of €2,000. It is against that decision that the Respondent now appeals.

Position of the parties

The Respondent

The Respondent raised a preliminary objection to the jurisdiction of the Court contending that the Claimant lackedlocus standito maintain the within claim. Two arguments were advanced in support of this contention. Firstly it was submitted that the Claimant became a permanent employee by operation of law in or about June 2011, having completed four years continuous fixed-term employment. Secondly, reliance was placed on the issuance to the Claimant of a ‘permanent’ contract of employment in March 2012.

In relation to the substance of the case the Respondent contends that the Claimant had two separate employments; one relating to collection and delivery contract and the second relating to the out of hours contract. The Respondent accepts that the Claimant became entitled to a contract of indefinite duration pursuant to the contract relating to the collection and delivery service. It was submitted that the Claimant was issued with such a contract but it was lawfully terminated on the termination of the collection and delivery contract between the Respondent and the HSE.

The Respondent submitted that the Claimant had not accrued more that four years continuous fixed-term employment pursuant to the out-of-hours contract and thus did not accrue an entitlement to a contract of indefinite duration in respect to this part of his employment. Nevertheless the Respondent reorganised this service and issued all drivers, including the Claimant, with a permanent contract for the provision of that service. According to the Respondent this contract did not arise by operation of the Act and the provisions of the Act are inapplicable to that contract.

The Claimant

The Claimant does not accept that he had two separate employments. His case is based on the proposition that after four years employment as a fixed-term employee he became entitled to a contract of indefinite duration in relation to the totality of this employment with the Respondent. It was submitted on his behalf that the contract to which he became entitled should be same as that under which he worked while in fixed-term employment in all respects including working hours. It is his case that he worked on average 27 per week as a fixed-term employee and this working pattern should be reflected in his contract of indefinite duration. The Claimant was issued with a contract providing for 11 hours work per week. He had not signed this contract because he did not accept that his working hours could be reduced.

Conclusion

Preliminary objection as to jurisdiction

The Court does not accept either submission made by the Respondent in relation to the Claimant’slocus standi. While the Respondent accepted that the Claimant accrued an entitlement to a contract of indefinite duration by operation of law it did not acknowledged his entitlement until early in 2012. The essence of his complaint now is that the failure of the Respondent in that regard contravened the Act. That was a continuing failure which persisted up to the time that the Claimant presented his complaint to the Rights Commissioner. Moreover, it could not be accepted that the mere fact that a fixed-term worker's contract is transmuted to one of indefinite duration by operation of law deprives him or her oflocus standito maintain a complaint under the Act. If that were so no employee could ever bring a complaint under the Act in reliance on s.9(3) as by the time they could bring such a claim they would, as a matter of law, have ceased to be a fixed-term employee.

The Court has also considered the Respondent’s submissions to the effect that the Claimant had two separate employments. The Court does not accept those submissions. The Court is satisfied that the Claimant had a single employment relationship which commenced in or about May 2007, initially driving in connection with the collection and delivery service . He was employed in the same capacity (that of a driver) in connection with both the collection and delivery contract and the out-of-hours contract. His main duties related to the collection and delivery service and the additional duties which he undertook in connection with the out-of-hours contract merely augmented his working hours and consequently his earnings. However the contracted hours provided in connection with that service were relatively inconsequential and would not in themselves have been sufficient to support a viable independent employment relationship.

It is also of considerable significance that when the collection and delivery contract came to an end the Claimant was not paid a redundancy lump sum, because, as the Respondent pointed out, he remained in the employment of the Respondent.

The substance of the case

The legal principles applicable in this case are not in doubt. The Claimant commenced employment with the Respondent in May 2007. By June 2011 he had completed four years of continuous fixed-term employment. On 1^stSeptember 2010 he was issued with a contract which purported to extend his fixed-term employment up to August 2011. The term of that contract which provided for its expiry by effluxion of time contravened s.9(2) of the Act. By operation of s.9(3) of the Act that contract was transmuted to one of indefinite duration by operation of law. That is the clear import of the decision of Leffoy J. inMinister for Finance v McArdle[2007] 18 E.L.R. 165, wherein it was held that where a term in a fixed-term contract contravenes s.9 of the Act the offending term is voidab initiobut that all of the other terms of the contract continue and the contracts operates as one of indefinite duration. Hence it is clear that the contract which commenced on 1^stSeptember 2010 became one of indefinite duration from that date.

Of significance also is the decision of the High Court inHolland v Athlone Institute of Technology[2012] 23 E.L.R. 1. Here Hogan J pointed out that a person who acquires a contract of indefinite duration by operation of the Act is not placed in a superior position to that of a person whose status as a permanent employee was never in doubt.

Applying those established legal principles to the instant case the following emerges: -

• 
  1.The contract with which the Claimant was issued on 1^stSeptember 2010 became one of indefinite duration from that date.

  2.All other terms of that contract, other than the term relating to its tenure continued in force.

  3.The contract of 1^stSeptember 2010 provided the Claimant with an entitlement to 19 hours work but the Respondent reserved the right to vary the attendance hours

  4.On 1^stSeptember the Claimant was also entitled to additional hours in connection with the out-of-hours contract but those hours appear to be of the order of 14 over a two month period

  5.The role of the Court is to declare that the contract executed on 1^stSeptember 2010 became one of indefinite duration on that date.

  6.The Claimant was issued with a contract which provides that his contractual entitlement is to be 11 hours per week. It is noted that the contract of 1^stSeptember, which became one of indefinite duration by operation of law, allowed for the variation of his working hours from the figure of 19 hours per week specified therein. Hence, if the Claimant’s status as a permanent employee had never been in doubt his working hours could have been varied within the terms of that contract.

The Respondent contravened s.9(2) of the Act by purporting to extend the Claimant’s fixed term employment beyond four years. In these circumstances the Court declares that the contract with which the Claimant was issued on 1^stSeptember 2010 became one of indefinite duration by operation of law from that date. The Court award the Claimant compensation in the amount of €2,000 in respect to that contravention.

The Court makes no further order

The decision of the Rights Commissioner is varied in the terms of this determination.

Signed on behalf of the Labour Court



Kevin Duffy
13th December 2012______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.