FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : CARLOW COUNTY COUNCIL (REPRESENTED BY LGMSB) - AND - MARY MC SWEENEY (REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing Against A Rights Commissiuoner's Decision r-090466-ft-10/DI
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner Recommendation No; r-090466-ft-10/DI. The issue concerns a worker who was employed by Carlow County Council on a number of fixed term contracts. The Union is seeking that the worker be awarded a contract of indefinite duration (CID) on the basis that the she was employed to replace a worker who was seconded to another area and as the secondment still continued and through her length of service the worker had satisfied the requirements of the legislation for a CID. Management's position is that the worker's contract ceased on its expiry date and that no entitlement existed for a CID. It further contends that the cessation of the worker's employment is fully compliant with the LANPAG Agreement concluded between Management and the Trade Unions.
The matter was referred to a Rights Commissioner for investigation. His recommendation issued on the 22nd November 2010 and did not find in favour of the worker's claim on the basis that the worker's employment ceased on the expiry of its term through the efflux of time and that the worker had not acquired an entitlement to a CID in the instant case.
On the 15th December 2010, the worker appealed the Rights Commissioner's Recommendation in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 5th January, 2012.
UNION'S ARGUMENTS:
3 1 The worker was employed to replace a worker who had gone on secondment to another area. As the secondment was still in place, the need remained for the claimant to remain in her employment and be awarded a CID on the basis of her service with the organisation.
2 The LANPAG Agreement provides for entitlements under employment legislation including awarding contracts of indefinite duration acquired under the Protection of Employees (Fixed-Term Work) Act, 2003. As the worker had satisfied the provisions of the legislation she was entitled to a CID and should not have been dismissed.
COMPANY'S ARGUMENTS:
4 1 The worker's contract ceased on the date of its expiry. She had been employed for a fixed term and her employment ceased at the end of that period. The worker had not acquired an entitlement to a CID as there had been previous breaks in her service.
2 The cessation of the worker's contract was fully compliant with the LANPAG Agreement which provides for the non-renewal of fixed term contracts.
DETERMINATION:
This case comes before the Court pursuant to Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003. The Complainant submitted a number of complaints to the Rights Commissioner complaining that she had been denied her entitlements under Section 8, 9 and 13 of the Act. The Rights Commissioner conducted an investigation into the complaints and found against the Complainant in each case. The Complainant appealed the Rights Commissioner’s decisions in respect of the complaints made under Section 9 and 13 of the Act.
Background
The Complainant was employed by the Respondent on a series of fixed term contracts of employment as follows: -
1stContract | 11thJuly 2005 - 10thSeptember 2005 | Clerical Officer Motor Tax Department | 2 months |
2ndContract | 11thSeptember 2005 – 31stOctober 2005 | Clerical Officer Motor Tax Department | I Month and 3 weeks |
3rdContract | 31stOctober 2005 – 31stDecember 2005 | Clerical Officer Motor Tax Office | 2 months |
4thContract | 3rdJanuary 2006 – 2ndJuly 2006 | Clerical Officer | 6 months |
5thContract | 3rdJuly 2006 – 31stDecember 2006 | Clerical Officer | 6 Months |
6thContract | 19thFebruary 2007 – 18thFebruary 2010 | Clerical Officer Motor Tax office | 3 years |
Total Service | ![]() | ![]() | 4 years and 5 months |
The Complainant was offered an initial contract to work as a temporary clerical officer covering for sick leave. This contract commenced on 11thJuly 2005 and was due to expire on 11thSeptember 2005. However the Council decided to extend the expiry date of the Contract until 31stOctober 2005 as the person for whom the Complainant was providing cover had not returned from sick leave as originally planned. The Contract was further extended until 31stDecember 2005 because of continuing absence in the Department. Over the Christmas period a decision was taken to offer the Complainant a further contract of employment to expire on 2ndJuly 2006. This contract was specifically for the purpose of providing administrative assistance to the Duckett’s Grove and Oakpark projects. This contract was due to expire on 2ndJuly 2006 however it was continued for a further six months. It terminated on 31stDecember 2006. Finally in February 2007 following the secondment of a member of the clerical staff to backfill a vacancy that in turn had arisen out of the secondment of another employee on an 3 year contract to an outside agency, the Complainant was offered a 3 year contract terminating on 18thFebruary 2010. This contract expired on that date.
Position of the Parties
The Complainant, through her union IMPACT, submits that, she became entitled to a contract of indefinite duration by operation of law on12th February 2009.
She submits that Section 9(2) of the Act applies to her circumstances.
Section 9(2) provides
- (2) Subject tosubsection (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 Complainant submits that on February 12th2009 her employer had employed her on two or more continuous fixed-term contracts the aggregate duration of which exceeded 4 years.
She further contends that by virtue of the provisions of Section 9(3) of the Act she became entitled, by operation of law, to a contract of indefinite duration with effect from February 12th2009 the date on which the aggregate duration of the second or subsequent fixed term contract of employment exceeded four years.
Section 9(3) provides
(3) Where any term of a fixed-term contract purports to contravenesubsection (1)or(2)that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration
She submits that Section 9(3) applied to her circumstances means that the term in the relevant contract of employment that provided for its expiry on 18thFebruary 2010 was of no effect and that it should be deemed a contract of indefinite duration.
She further submits that the provisions of Section 9(4) of the Act do not assist the Respondent in this case.
Section 9(4) provides
(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
She submits that there are no objective grounds on which the Respondent can rely. She submits that the High Court in the case ofRussel v Mount Temple Schoolis authority for the proposition that the existence of objective grounds for the purpose of Section 9(4) of the Act must be judged by reference to the circumstances pertaining at the commencement of the contract. She submits that at the time between 31t December 2006 and 18thFebruary 2007 a clerical officer was employed on 1 January 2007 and assigned to the Environment Department and that other Clerical Officers were employed in May/June of that year. On this basis she submits that there was an ongoing and permanent need for at least one Clerical Officer. She further submits that the terms of her contract, whilst specifying an initial assignment to provide cover for the seconded individual, goes on to say that she can be assigned to any clerical officer post that is within the control of the County Manager.
She submits that the termination of her employment in February 2010 arose out of a decision by the County Manager to give effect to the employment control framework and to bring about economies in the Council arising out of the crisis in the Public Finance by not renewing the contracts all staff when their fixed term contracts expired. In her case this occurred in 2010. She submits that this decision amounted to penalisation contrary to the provisions of Section 13(d) of the Act.
Section 13 (d) of the Act provides that
13.—(1) An employer shall not penalise an employee—
(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration undersection 9(3).
She submits that the decision to terminate her employment on 31stDecember 2006 was for the purpose of breaking her service so as to prevent her accumulating four years aggregate service through the multiple contracts she had been offered and had worked at that time and subsequently.
Respondent’s Case
Mr Don Culliton, LGMSB representing the respondent submits that the Complainant did not accumulate 4 years aggregate service in February 2009 as her service with the Respondent had terminated on 31 December 2006 and she started as a new employee on 19thFebruary 2007. He submits therefore that she had accumulated two years continuous service at that time and accordingly did not come within the scope of Section 9(2) of the Act.
He submits that Section 9(5) of the Act does not avail the Complainant either
Section 9(5) provides
- 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.
COMPUTATION OF CONTINUOUS SERVICE.
Continuity of Service
1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—
- ( a ) the dismissal of the employee by his employer or
( b ) the employee voluntarily leaving his employment.
He submits that the Respondent dismissed the Complainant at the end of her fixed term contract in December 2006. Accordingly the continuity of her employment was not maintained. He further submits that Section 6 of the Schedule does not avail her either as there was a gap of 6 weeks between the date of her dismissal and the date of her re-employment in February 2007. Accordingly he submits that the re-employment cannot be regarded as “immediate†within the meaning of the Schedule.
He referred the Court to two decisions of the EAT in this regard the first of which isMyles v O’Kane [1991] E.L.R. 217and the second of which is case ofKenny v Tegral Building Products Ltd [2006] E.L.R. 309.
He further submits that the decision of the Labour Court in the case of theDepartment of Foreign Affairs v A group of Workers FTD071does not avail her either. He submits that the facts of the two cases are entirely different. In the Department of Foreign Affairs case both the Department and the Complainants had an expectation that there would be further work available for which they would be recalled in subsequent years. Furthermore the Respondent accepted in that case that it was reasonable for the complainants to assume that the cessation of their employment would not be permanent and there was an agreement with their Trade Union that they would be recalled for further work as it became available. He submits that the Court in those circumstances determined that the periods between contracts could reasonably be regarded as a lay off; thus protecting the continuity of service.
In this case there was no such expectation that the cessation would not be permanent and there was no agreement with the trade union or the complainant that she would be recalled when work became available.
In support of his submission he referred the Court to the decision inDonegal County Council v Ciara Joyce FTD111. In that case the Complainant had two periods of employment with the respondent broken by a period of 31/2 months. In that case the Court held that the service was terminated by the dismissal on 17thJune 2005 by her employer and that her re-employment on 3rdOctober 2005 could not be deemed to amount to continuous as the termination of her employment was not “followed by immediate re-employment of the employee.â€
He submits that in this case the Complainant’s employment was terminated at the end of the Ducketts Grove/Oak Park project. No further work was available or was anticipated at that time for the Complainant. When work did become available some months later she was offered that work, accepted it and commenced a new contract on 19thFebruary 2007. On that basis he submits that continuity of service was not maintained and she was not laid off within the meaning of the schedule.
He further submits that should the Court find that service was continuous, which is denied, there are objective grounds for offering the claimant a fixed-term contract. Those grounds he submits are that the fixed-term contract was offered for the specific purpose of covering a temporary vacancy created by the internal secondment of another employee for a three-year term. He submits that this is a precise and concrete circumstance characterising a given activity and falls four square within the meaning of objective grounds described by the ECJ.
He submits that the tests set out by the ECJ in the case ofBilka-Kaufhaus GmbH v Karin Weber von Hartz [1986] ECR 1607have all been met by the Council in this case.
He submits that the Respondent had a real need to fill a temporary vacancy that had arisen in its employment, that the decision to fill that vacancy by way of a fixed term contract that was commensurate with the expected length of the temporary vacancy was an appropriate means of achieving that end and in light of the fact that the temporary vacancy would not exist after the seconded staff member returned to her post meant that a fixed term contract was a necessary measure to achieve this objective.
He submits that the Respondent has demonstrated the objective grounds that justified its decision not to offer the Complainant a contract of indefinite duration.
He further submits that the Respondent’s employment came to an end by the effluxion of time. He further submits that the non renewal of the fixed term contract was due to the constraints on its budgetary resources. He submits that the Respondent’s policy at that time was to terminate all fixed-term contracts on their expiry. He submits that this was expressly provided for by way of collective agreement with the trade unions. He submits therefore that the Respondent did not penalise the Complainant but acted in a neutral and policy driven fashion and was not motivated by her individual circumstances and was not a stratagem to avoid a contract of indefinite duration.
Conclusions of the Court
There is substantive agreement between the parties on the facts of this case. However there is considerable disagreement on the manner in which the law should be applied to those facts. In considering this matter the Court has found it necessary to address a number of legal issues that are set out below.
The Union’s claim
The Union claims that by reason of her employment history the Claimant became entitled to a contract of indefinite duration by the combined effect of sections 9(2) and 9(3) of the Act.
Section 9 of the Act provides as follows: -
9.—(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
The Union’s claim is based on its contention that the Claimant was in the ‘continuous’ employment of the Respondent within the meaning assigned to that term by s.9(5) of the Act, that is to say by reference to the First Schedule of the Minimum Notice and Terms of Employment Acts 1973-2005. Inherent in that submission is the proposition that each of the periods between the termination of one assignment and the commencement of another should be regarded as a period of lay-off, thus preserving the continuity of the employment relationship.
The Respondent’s position is the reverse of that taken by the Union. Its position is that the Claimant was not laid-off between the termination of the contract on 31stDecember 2005 and the commencement of the subsequent contract on 3 January 2006 and again in the period between the termination of her employment on 31stDecember 2006 and the commencement of her final 3-year contract on the 19thFebruary 2007. It contends that at the end of each of these assignments her employment was terminated. That submission is predicated on the contention that each assignment was a separate contract and that no contractual nexus existed between the Claimant and the Respondent during the breaks. In advancing that argument the Respondent submitted that in order for a lay-off to take effect there must be a reasonable or legitimate expectation that the employment will resume and that the employee must be put on notice to that effect. That argument was based on the provisions of s.11 of the Redundancy Payments Acts 1967.
The Rights Commissioner held that the Complainant’s employment had terminated on 31stDecember 2006 and that there was no expectation at that time that any further work was or would become available in the foreseeable future. Accordingly he held that the Complainant had not accumulated the 4 years aggregate service required to come within the scope of Section 9(2) of the Act.
Issues for consideration
The difficulty posed for the Court relates to the meaning to be ascribed to the term “continuous fixed-term contracts†as used in s.9(2) of the Act. This matter was addressed in some detail by this Court inREVENUE COMMISSIONERS- AND -WILLIAM BEARY ETERMINATION NO. FTD112.In what follows the Court reiterates the analysis set out in that determination and applies it to the facts of this case.
This difficulty arises from the wording of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC, (hereafter the Directive) which the Act was enacted to transpose in domestic law. While s. 9 of the Act is directed at preventing the unlimited use ofcontinuousfixed-term contracts the objective of the Directive is to combat the abuse ofsuccessive fixed-term contracts. In that regard, prima facie, there appears to be a conflict between the language used in the Act and that of the Directive. In considering this apparent conflict the Court must apply the well settled principle of European Law that national law must be interpreted, as far as possible, in light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive.
Successive Employment v Continuous Employment
Relevant provisions
Clause 5. 1 of the Framework Agreement provided: -
Measures to prevent abuse (clause 5)
1. To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:
(a) objective reasons justifying the renewal of such contracts or relationships;
(b) the maximum total duration of successive fixed-term employment contracts or relationships;
(c) the number of renewals of such contracts or relationships.
Clause 5.2 provides: -
2. Member States after consultation with the social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships:
(a) shall be regarded as "successive"
(b) shall be deemed to be contracts or relationships of indefinite duration.
Clause 5 of the Framework Agreement is given effect in our law by s. 9 of the Act. As already observed, it provides, in effect, protection against the abuse of ‘continuous’ fixed-term contracts. The question thus arises as to whether s.9 of the Act is so limited in its scope of application that it has failed to achieve the objective pursued by Clause 5 of the Framework Agreement.
There can be no doubt that on a literal construction of the language used in both the Framework Agreement and the Act there is incompatibility. While all periods of employment which are continuous are necessarily successive not all employment which is successive is necessarily continuous.Prima facie, at least, s. 9 is, therefore, unduly limited in its ambit in that it excludes from the protection of the Act successive periods of employment that are not continuous. That proposition is, of course, predicated on the literal construction of both terms.
Meaning to be ascribed to successive and continuous
It should be noted that Clause 5.2 of the Framework Agreement provides that Members States shall,inter alia, where appropriate, determine under what conditions fixed-term contracts are to be regarded as successive. This introduces a considerable degree of flexibility in determining the meaning to be ascribed to the term in national law. However, the discretion afforded to Members States is by no means unfettered. Member States are bound by the general principles of European Law, including the principle of effectiveness, which requires that a Directive be implemented so as to achieve the result that it is intended to pursue.
The result plainly pursued by Directive 1999/70 is to prevent the abuse ofsuccessivefixed-term contracts. It would seem that a Member State cannot purport to implement the Directive by confining its application to successive contracts which are also continuous since this would amount to an unwarranted limitation on the effectiveness of the rights enshrined in the Directive. In any event the position in that regard had been put beyond doubt by the ECJ in Case C-212/04 Adeneler and others v. Ellinikos Organismos Galaktos[2006] IRLR 716. Here it was held that a provision of Greek law, which provided that contracts which are separated by more than 20 days were not to be regarded as successive, was incompatible with Clause 5 of the Framework Agreement. In part the rationale for this decision was that the provision was in itself inherently open to being an instrument of abuse in that an employer could easily contrive to separate contracts by more than 20 days so as to defeat a fixed-term employee’s entitlement under the Act.
It is therefore clear that that if Ireland implemented the Directive so as to confine the protection of Clause 5 to those on continuous fixed-term contracts and to exclude those who are on successive contracts which are not continuous, a problem of compatibility arises. It is therefore necessary to consider how Ireland has, in fact, exercised its discretion under Clause 5.2 of the Framework Agreement.
On this point the Court considered the decision of the ECJ in case C-364/07Spyridon Vassilakis and Ors v Dimos Kerkyras[2008] ECR 1-00090. This case, likeAdeneler, concerned a provision of domestic law that defined successive fixed-term contracts by reference to a temporal limit on the period between contracts. In this case the limit in issue was one of three months. In answering the question posed by the Greek referring court, the Court of Justice held as follows: -
Clause 5 of the Framework Agreement on fixed-term employment is to be interpreted as not precluding, as a general rule, a national provision, such as that referred to in the third question, according to which only fixed-term employment contracts or employment relationships that are separated by a period of time shorter than three months can be regarded as ‘successive’ for the purposes of that clause.
The Court concluded that this case is authority for the proposition that a member state may provide in domestic law that contracts which are separated in time by three months or more are not to be regarded as successive for the purpose of implementing Clause 5 of the Framework Agreement annexed to the Directive. It is not, however, authority for the proposition that, in the absence a national statutory provision to that effect, contracts that are separated by more than three months cannot be regarded as successive. Clause 5.2(a) of the Framework Agreement left it open to the Oireachtas to provide an outer temporal limit beyond which renewed contracts would not be regarded as successive. The legislature chose not to do so and it is not now open to the Court, by way of interpretation, to import such a provision into the statute.
The relevant statutory provisions in that regard are to be found at s.9 of the Act of 2003 and in the First Schedule of the Minimum Notice and Terms of Employment Act 1973. It is noteworthy that the marginal note to s.9 refers to “successive fixed-term contractsâ€. However, under s.18 (g) of the Interpretation Act 2005 the marginal note is not to be regarded as part of a statute.
The section plainly refers to continuous employment and continuous contracts. However, s 9(5) makes it clear that what constitutes continuous employment is to be determined by reference to the First Schedule of the Minimum Notice and Terms of Employment Acts 1973-2005. It is well settled that where an Act provides its own definitions a Court should not look outside those definitions in ascribing meaning to word used in the statute (seeMason v Levy[1952] IR 40).
The First Schedule of the Minimum Notice and Terms of Employment Act 1973 provides as follows: -
COMPUTATION OF CONTINUOUS SERVICE.
Continuity of Service
1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—
- ( a ) the dismissal of the employee by his employer or
( b ) the employee voluntarily leaving his employment.
3. A lay-off shall not amount to the termination by an employer of his employee's service.
4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.
5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.
6. The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.
7. If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.
Computable Service
8. Any week in which an employee is not normally expected to work for at least twenty-one hours or more will not count in computing a period of service.
9. If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence shall count as a period of service.
10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—
- ( a ) a lay-off,
( b ) sickness or injury, or
( c ) by agreement with his employer,
11. If, in any week or part of a week, an employee is absent from his employment because he was taking part in a strike in relation to the trade or business in which he is employed, that week shall not count as a period of service.
12. If, in any week or part of a week, an employee was, for the whole or any part of the week, absent from work because of a lock-out by his employer, that week shall count as a period of service.
13. If any week or part of a week, an employee is absent from his employment by reason of a strike or lock-out in a trade or business other than that in which he is employed, that week shall count as a period of service.
The fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence successive periods of employment, which are not continuous in the literal sense, because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the word ‘continuous’ as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive.
In that context it is necessary for the Court to consider if the Claimant was employed at the relevant time on a series of separate contracts, each of which was terminated by dismissal, or whether the period between contracts can be regarded as lay-offs thus preserving the continuity of the employment within the statutory meaning accorded to that term.
For present purposes the term "lay-off" is defined by s.11 of the Redundancy Payments Act 1967 as follows: -
11.—(1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—
(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
(b) the employer gives notice to that effect to the employee prior to the cessation,
that cessation of employment shall be regarded for the purposes of this Act as lay-off.
There is authority for the proposition that the concept of lay-off can have wide ambit. The High Court, inAn Post v McNeill[1998] ELR 19, accepted that a lay-off is not subject to any temporal limitation. InIrish Shipping v McAdams,Unreported, High Court, Murphy J. 30th January 1987, the Court declined to accept that the Employment Appeals Tribunal had erred in law in finding that two of the Claimants were on lay-off at a time when they were actually in the employment of another shipping line. Moreover, the Court is obligated, as a matter of European law, to interpret and apply the relevant provisions of domestic law, as far as possible, so as to achieve the result envisaged by the Framework Agreement annexed to the Directive. As is clear from Clause 5.1 of the Framework Agreement, the result envisaged by the Directive is to prevent the abuse ofsuccessivefixed-term contracts. This suggests that the Court should seek to interpret, as far as possible, the expressioncontinuous, as used in the Act, as equivalent to the expressionsuccessive, as used in the Framework Agreement.
The Interpretative Obligation
The doctrine of direct effect of Community Law has no utility in this case. The language of Clause 5 of the Framework Agreement is not sufficiently unconditional so as to meet the criteria for the application of that doctrine (see the decision of the ECJ inIMPACT v Minister for Agriculture and Food[2008] IRLR 552). The obligation to interpret domestic law in harmony with European Law was first formulated inVon Colson and Kamann v Land Nordrhein-Westfalen[1984] ECR 1891 and later developed further inMarleasing S.A. v La Commercial Internacional de Malimentacion S.A[1990] ECR 4135. The decision inMarleasingwas described by Hamilton CJ inNathan v Bailey Gibson[1996] ELR 114 as“a far-reaching application of the general rule on interpretation which itself is not open to challengeâ€. Support for this approach can also be found in the judgment of the High Court inMurphy v Minister for the Marine[1997] 2 I.L.R.M. 523. In that case the Court was required to consider the application of s.222B of the Fisheries (Consolidation) Act 1959 in light of the State’s obligations under subsequently enacted provisions of European law. In referring to the obligation on national courts to refrain from interpreting national law in a manner that conflicts with European law, Shanley J held as follows: -
The combined effects of Articles 5 and 189 of the Treaty of Rome , Article 29.4.5� of the Constitution, and the provisions of the European Communities Act 1972 is to oblige this Court to give precedence to community law over national law, and in construing national legislation, the court is obliged to refrain from interpreting such legislation in a manner inconsistent with the provisions of community law. The principle of the supremacy of community law also involves the member states being obliged not to do any act which offends that state's general treaty obligations and that, national courts, in construing national legislation, must do so having regard to those same general obligations which flow from the wording of the Treaty of Rome.
Earlier, inMurphy v Bord Telecom Eireann[1989] I.L.R.M. 53, Keane J. (as he then was) held that where the language used by the Oireachtas, literally construed, yields a result at variance with the law of what was then the European Community, that interpretation must give way to a teleological construction which comports with European law. This interpretative obligation applies “as far as possibleâ€. However the ECJ and domestic courts have made it clear that it should be applied unless the interpretation that is compatible with EU law is plainly impossible.
The recent decision of the EAT for England and Wales inEBR Attridge Law LLP and another v. Coleman(No.2) [2010] IRLR 10 illustrates the wide ambit which is to be ascribed to this obligation. This case concerned how effect was to be given to the prohibition of associative discrimination in EU law by interpreting UK law, which made no such provision. In a far-reaching decision, Underhill P., sitting alone, held that in certain circumstances it is permissible for a national tribunal to interpolate words into the language used by Parliament, in order to bring a provision of domestic statute law into conformity with European law. The President set out the following principles which are contained in the head-note to the report: -
The obligation to interpret domestic legislation to give effect to EU law is not limited to resolving ambiguities, ie where the words of the domestic statute admit of more than one “possible†meaning. The court may add words to a statute so as to depart from the unambiguous meaning that the legislation would otherwise bear. The real question is whether the departure is compatible with the underlying thrust of the legislation, or consistent with the scheme of the legislation or its general principles. The interpolated words have to go “with the grain of the legislation.
In relation to the facts of the instant case the Representative of the Respondent correctly submitted that the expiry of a fixed-term contract without its renewal is a dismissal. Hence, on the literal application of the First Schedule of the Act of 1973 there could be no continuity between one fixed-term contract and the next unless it was immediately renewed. In the Court’s view such a result would be at variance with the object pursued by the Directive and could not be adopted.
The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive. In that regard it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently. Hence it could reasonably be said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous. This would be to adopt an extended and somewhat more liberal interpretation of the term ‘lay-off’ such as was done inDepartment of Foreign Affairs v A Group of Workers[2007] ELR 332. While s.11 of the Redundancy Payments Act 1967, which defines the notion of law-off for the purposes of both that Act and the Act of 1973, requires that notice of the employers belief that the cessation of employment will not be permanent be given, the law has long accepted that notice can be actual, constructive or imputed.
For all of the reasons set out above the Court is satisfied that for the purpose of ensuring that the Act is applied in harmony with the Directive a purposive or theological construction should be to applied to the notion of lay-off in the circumstances of the instant case. On that construction where it can be shown that at the time the Claimant’s assignments ceased it was probable that the cessation in employment would not be permanent, a lay-off came into being. On this construction it could be held that constructive notice to that effect was given by virtue of the facts known to both parties at the relevant time.
Applying this reasoning to the instant case the Court finds that on the balance of probabilities both parties were of the view that the termination of employment on the cessation of the 3rdcontract of employment on 1stDecember 2005 would be for a short period of time and that a further period of employment would become available shortly thereafter and would be offered to the Complainant. This turned out to be the case in fact and allowing for the normal holiday closure that takes place each Christmas and New Year in this state the employment was virtually unbroken. Accordingly the Court is satisfied that the Complainant was laid off between those dates and the employment was continuous and successive within the meaning of the 2003 Act and the Directive.
The Court then considered the break in service that occurred between the termination of the fixed-term contract on December 2006 and the commencement of the final 3-year contract on 19 February 2007.
The Union submits that there was every reason to believe that the Respondent had an ongoing requirement for a Clerical Officer to cover for annual leave, sick leave, maternity leave and other eventualities. It points to the number of Clerical Officers that were employed for this purpose at this time as evidence of such an ongoing requirement. Finally it submits that all Clerical Officers are interchangeable and that whilst the vacancy that occasioned the fixed-term contract may have been unusual the ongoing requirement for additional clerical staff to cover contingencies continued.
The Respondent submits that no such ongoing requirement applied in this case. The Respondent submits that the fixed term contract offered to the Complainant on 19thFebruary 2007 was not known about on 31stDecember 2006 and only arose out of a decision to second a person to an outside agency and to fill the subsequent vacancy by way of a further secondment. It was this consequential secondment that gave rise to the vacancy in February 2007. Had these unusual circumstances not arisen no offer of employment would have been made at that time. Accordingly the Respondent submits that the termination of employment on 31stDecember 2006 must be view on the basis of the information available at that time and the subsequent contract of employment must be evaluated in the context of the actual circumstances that gave rise to it. When this is done the Respondent submits that there was no nexus between the termination of the contract of employment on 31stDecember 2006 and the re-employment of the Complainant in 2007. Consequently it submits that the employment cannot be regarded as continuous or successive within the meaning of the Act or the Directive.
The Court, on the balance of probabilities, takes the view that the Respondent terminated the Complainant’s employment on 31stDecember 2006 without any commitment regarding re-employment. Whilst the Complainant may have entertained a hope that she would be recalled to work she had no commitment to that effect. Accordingly the Court cannot conclude that the Complainant had a reasonable expectation of re-employment nor that the Respondent had given her any assurances, understandings or commitments in that regard. Accordingly the Court decides that the Complainant’s employment was not continuous within the meaning of the Act.
On the balance of probabilities, the Court further finds that there were objective grounds justifying the employer’s decision not to offer the Complainant a Contract of Indefinite Duration.
The vacancy that occurred in February arose in very unusual circumstances. A post became available on a secondment basis for a three-year period with an outside agency. A member of staff availed of the opportunity to take up the post. Another member of staff was seconded to fill the resulting vacancy for the three-year period. Finally the Complainant was offered a fixed term contract to fill that vacancy. The Respondent’s actions amounted to a proportionate response to a real need and in the Court’s view meets the test set out by the ECJ inLommers v. Minister Van Landbouw, Natuurbeheer en Visserij[2002] IRLR 430, The Respondent needed to replace the seconded members of staff to ensure that their work was done. The Complainant was offered a contract for the anticipated period of the secondment. When the three years expired the Respondent terminated her employment. At that time the Respondent may well have preferred to retain the Complainant in employment as the secondment to the outside agency ran over time. However in the circumstances then prevailing this was not a possibility and the contract terminated and the Complainant was made redundant.
This appears to the Court to have amounted to objective justification within the meaning of the Act and to have met the tests set out by the ECJ inLommers v. Minister Van Landbouw, Natuurbeheer en Visserij[2002] IRLR 430.
Accordingly the Court rejects the appeal and upholds the Decision of the Rights Commissioner.
The Complainant further contended that she had been penalised contrary to the provisions of Section 13 of the Act.
Section 13 provides
13.—(1) An employer shall not penalise an employee—
(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration undersection 9(3).
The Complainant contended that the termination of her employment 0n 31stDecember 2005 was for the purpose of the “avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3)†of the Act.
Before a complaint under Section 13(1)(d) of the Act can be considered by the Court it must be brought before a Rights Commissioner in accordance with the provisions of Section 14 of the Act. Section 14(3) of the Act provides
- (3) 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
The Complainant further submitted that the termination of her employment on 19thFebruary 2010 was the purpose of the “avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3)†of the Act.
The Court has already determined that the Complainant was employed on a 3 year fixed term contract that terminated by effluxion of time, that that was justified on objective grounds and that was a proportionate response to a real need of the Respondent. Accordingly the Court rejects this aspect of the Complaint also.
Determination:
The Court rejects the appeal and upholds the decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Brendan Hayes
24th February 2012______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.