FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : DUBLIN INSTITUTE OF TECHNOLOGY (DIT) (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - STEPHEN NEALON (REPRESENTED BY M P GUINNESS B.L. AS INSTRUCTED BY CULLEN & CO. SOLICITORS TEACHERS'UNION OF IRELAND) DIVISION : Chairman: Mr Duffy Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. Appealing against a Rights Commissioner's Decision R-100953-Ft-10/Jt
BACKGROUND:
2. The worker appealed his case to the Labour Court on the 24th October, 2011. A Labour Court hearing took place on the 7th February, 2012. The following is the Court's determination:
DETERMINATION:
- This is an appeal by Mr Stephen Nealon against the Decision of a Rights Commissioner in his claims against the Dublin Institute of Technology under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). In this Determination the parties are referred to as they were at first instance. Hence, Mr Nealon, who is the appellant in this case, is referred to as the Claimant and the Dublin Institute of Technology is referred to as the Respondent.
Background
The Claimant is an hourly paid, part-time, Assistant Lecturer in plumbing and is attached to the Respondent’s School of Construction. He taught apprentices as part of the FÁS standards based apprenticeship scheme. The Claimant’s employment commenced on 19thSeptember, 2005, on a fixed-term contract to 30thJune, 2006. Thereafter his employment was renewed on a series of fixed-term contracts as follows: -
•1stSeptember, 2006 - 30thJune, 2007
•1stSeptember, 2007 - 30thJune, 2008
•1stSeptember, 2008 – 30thJune, 2009
•1stSeptember, 2009 - 30thJune, 2010
•21stSeptember, 2009 – 30thJune, 2011
In accordance with s.8 of the Act each of the fixed-term contracts contained a statement of the objective grounds relied upon for the renewal of the contract for a fixed-term and the failure to provide the Claimant with a contract of indefinite duration. The statement contained in the contracts concluded in September, 2007 and September, 2008, was in common form as follows: -- “The Institute is offering you a renewal for a fixed-term rather than a contract of employment of indefinite duration because the nature of the position is dependent on teaching hours being available and the continuation of the programme on which you teach”
- “The Institute is not in a position to offer you a permanent position at this time as it is subject to State control as set out in the Moratorium on Recruitment in the Public Service and the Employment Control Framework for Higher Education Sector together with budgetary constraints within the Institute”.
The employer shall issue a contract of indefinite duration to any fixed term lecturer with 4 years or more successive lecturing service on 1stSeptember 2006 or on any date thereafter (those employed for the first time after 14thJuly 2003 must have 2 or more successive contracts) who is deemed qualified and who is not excluded by reason of one or more of the following which the employer can demonstrate: -- (i)That the post will not be viable within a reasonable period and where such a ground was set out as an objective ground in writing in the previous contract
- (ii)[Not relevant]
(iii)[Not relevant ]
The Claimant contends that the fixed-term contract with which he was furnished in September 2009 contravened s.9(2) of the Act, in consequence of which that contract became one of indefinite duration by operation of s.9(3) of the Act. The claim was considered by a Rights Commissioner who founds against the Claimant. The Rights Commissioner had accepted arguments advanced by the Respondent to the effect that the Claimant’s post ceased to be viable due to the decline in student numbers in the construction trades in consequence of the recession. The Claimant appealed to this Court.Position of the Parties
The Claimant
The Claimant’s case is that he commenced employment as a fixed-term employee on 19thSeptember, 2005. At the time his penultimate contract was issued on 21stSeptember, 2009, the aggregate duration of his fixed-term employment had exceeded four years. He claims that the objective grounds relied upon in that contract was that the moratorium on recruitment in the public service precluded his employment on a contract of indefinite duration. This, he contends, could not amount to an objective ground for the continued renewal of his employment for a fixed-terms as it is based primarily on considerations of cost. In so far as the Respondent relied upon the decline in student numbers as justification for its failure to offer him a contract of indefinite duration, the Claimant contends that this was not relied upon at the material time. Moreover, it was pointed out on the Claimant’s behalf that the collective agreement referred to in Circular 00093/2007 expressly provides that where the non-viability of a post is relied upon as objective grounds for the continued renewal of a fixed-term contract, this must have been specified in the preceding contract.
The Claimant told the Court that in September, 2009, the number of apprentice courses in plumbing had not declined. He also told the Court that he was first made aware, by the Assistant Head of the School, of a potential problem with student numbers some time after the contract of September, 2009, was concluded.The Respondent
The Respondent submitted that the reason for renewing the Claimant’s employment for a fixed-term beyond the period normally permissible by s.9(2) of the Act was that figures becoming available from FÁS, from early 2009 onwards, showed a sharp decline in apprentice numbers. It was then apparent to the Institute that if that trend continued there would be insufficient apprentices to maintain the number of classes which it then provided. The Respondent accepts that this consideration was not specified in the fixed-term contracts furnished to the Claimant in September 2009, or subsequently. Nonetheless, the Respondent contends that the Claimant must have been aware of the extent of the decline in construction-related employment and the inevitable consequence which this would have for the viability of his post. It further contends that the Claimant was verbally informed by the Assistant Head of the School of Construction of the factual position concerning the effect which the decline in apprentice numbers would have on the future viability of his employment. The Respondent contends the non-viability of a post is recognised by the collective agreement, referred to earlier in this determination, as constituting objective grounds for not offering a fixed-term contract employee a contract of indefinite duration.
Evidence was given on behalf of the Respondent by Mr John Smartt, who was the Assistant Head of the School of Construction at the material time. He told the Court that from early 2009 it became apparent that the decline in the number of apprentices in the construction trades being registered by FÁS would have serious consequences for the future viability of construction related courses run by the Respondent. He said that he had informed the Claimant of the emerging situation and the likely implications which it would have for his continued employment with the Respondent. When asked if these concerns had been mentioned to the Claimant before the contract of September, 2009, was concluded, the witness told the Court that it was nearer the end of the year that he spoke to the Claimant about the true extent of the impending difficulties.Conclusion of the Court
Both parties have sought to rely on Department of Education and Science Circular 0093/2007 in advancing their respective positions on issues arising in this case. As was pointed out by this Court in Determination FTD1117,Athlone Institute of Technology v Hannify & Ors,this Circular, and the collective agreement to which it gave effect, provides a useful indication of the intention of the parties to the agreement on what can constitute objective grounds for the purposes of the Act. However, neither the circular nor the collective agreement can offset or supplant the clear provisions of the Act nor can they be relied upon to determine the entitlement of any person to a benefit created by the Act. Accordingly this case must be determined by application of the legal principles derived from the Act itself.
The applicable legal principles are contained at Sections 7, 8 and 9 of the Act.
Section 7 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.
(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes ofsection 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment.
- (1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
(a) arriving at a specific date,
(b) completing a specific task, or
(c) the occurrence of a specific event.
(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.
(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.
(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—
(a) that an employer omitted to provide a written statement, or
(b) that a written statement is evasive or equivocal,
the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.
Section 9 of the Act provides:
- (1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year
(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.
(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.
(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.
(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.
Having regard to these statutory provisions the issues arising in this case are relatively concise. By September 2009 the Claimant has been employed on a succession of fixed-term contracts the aggregate duration of which exceeded four years. Hence, the fixed-term contract issued to him on 21stSeptember 2009, covering the period up to 30thJune 2010, contravened s.9(2) of the Act unless it was saved by s.9(4). If the fixed-term nature of that contract was not saved by s.9(4) it became one of indefinite duration by operation of s.9(3) from the date of its commencement, namely 21stSeptember, 2009, and the Claimant was, thereafter, employed on a contract of indefinite duration as a matter of law. It follows that the determinative point in this case is whether or not the renewal of the Claimant’s fixed-term employment, on 21stSeptember, 2009, was justified on objective grounds within the meaning of s.7 of the Act and thus saved by s.9(4) of the Act.
In considering that question the provisions of s.8 of the Act are highly relevant. The Claimant was provided with a statement in writing pursuant to that Section. However, the Respondent does not seek to rely on the content of that statement in advancing its case. Rather, it now accepts that the stated reasons for the renewal of the Claimant’s fixed-term employment which were relied upon at the time the contract in issue was concluded do not constitute objective grounds within the statutory meaning. The Respondent now contends that, contrary to what was contained in the statement given to the Claimant pursuant to s. 8 of the Act, the real reason for the impugned renewal was a fall-off in demand for the courses that he was employed to teach.
Sections 8 and 9 of the Act are intended to give effect to Clause 5 of the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the then European Communities. The clear objective of Clause 5 of the Framework Agreement is to prevent the abuse of successive fixed-term contracts. Consequently the provisions of the Act must be interpreted and applied so achieve the objective pursued by the Framework Agreement.
In Determination FTD064,HSE North Eastern Area v Khanthis Court considered the purpose serves in the overall legislative scheme by the obligation to inform a fixed-term of the objective grounds for the renewal of his or her fixed-term contract. The Court concluded as follows: -
- It seems to the Court that the purpose of Section 8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed. On a reading of the Section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under Section 9(4). Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with Section 8(2), it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary.
In this case the Respondent did provide the Claimant with a statement of objective grounds at the material time. It now seeks to rely on alternative grounds which were never stated in writing. In these circumstances it is equally apt to infer that had the reasons now relied upon by the Respondent been the operative grounds for the renewal of the Claimant’s fixed-term employment in September, 2009, they would have been included in the statement furnished to him at that time under s.8 of the Act.
Such an inference is also supported by the evidence given on behalf of the Respondent by Mr Smartt. This witness told the Court that it was towards the end of 2009, and after the relevant contract was concluded, that the Claimant was informed of the extent of the Respondent’s concerns in relation to the continuing viability of his teaching post. It is entirely appropriate to infer from this evidence that the question of the continuing viability of the Claimant’s position only crystallised around the time that they were first mentioned to the Claimant which was after the contract in issue had been concluded.
It is clear that s.9(4), and by extension s.9(3), takes effect at the commencement of the impugned contract. This was pointed out by Hanna J inRussell v Mount Temple Comprehensive SchoolIEHC 533. It follows that the reasons relied upon as constituting objective grounds for the purposes of the Act must have been the reasons operating on the mind of the relevant decision-maker at the time the impugned decision was made. That was the effect of the decision of this Court in Determination FTD0819St Catherine’s College of Home Economics v Moran and Malone. Furthermore, the decision of the CJEU in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430, is authority for the proposition that a plea of objective justification in defence of a claim grounded on a social right derived from the law of the European Union equates to reliance on a derogation from that right. Like all derogations it must be strictly construed against the person by whom it is invoked.
In this case the grounds now relied upon by the Respondent were not referred to in the notice provided to the Claimant pursuant to s.8 of the Act. Taking the evidence proffered by the Respondent at its height these grounds were only mentioned verbally to the Claimant after his fixed-term employment was renewed beyond the four years period normally permitted by s.9(2) of the Act. In these circumstances, and on the balance of probabilities, the Court has come to the conclusion that the reasons now relied upon by the Respondent to justify the renewal of the Claimant’s fixed-term employment beyond that four-year period were not the actual or operative reasons for the impugned renewal. Rather, the Court believes that it is more probable than not that the actual and operative reasons were those stated on the face of the contract itself. As the Respondent has conceded that those stated reasons do not amount to objective grounds within the meaning of s.7 of the Act its plea of objective justification cannot succeed.
Determination
For the reasons set out herein the Court has come to the conclusion that the term in the contract of employment issued to the Claimant, dated 21stSeptember, 2009, which provided for its expiry by effluxion of time contravened s.9(2) of the Act and was, therefore, void. By operation of s.9(3) that contract became one of indefinite durations with effect from the date of its commencement, namely, 21stSeptember, 2009.
Accordingly the Decision of the Rights Commissioner is set aside and is substituted with this Determination. The Court makes no further Order.
Signed on behalf of the Labour Court
Kevin Duffy
17th February, 2012______________________
CONChairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.