FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : HSE DUBLIN NORTH EAST - AND - GABRIELLA DUFFY (REPRESENTED BY INMO) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appealing against a Rights Commissioner's Decision r-11328-ft-11/SR.
BACKGROUND:
2. The Employer referred the case to the Labour Court on the 9th March, 2012. A Labour Court hearing took place on the 24th May, 2012, The following is the Court's Determination:-
DETERMINATION:
This is an appeal by the HSE against the Decision of a Rights Commissioner in a claim by Ms Gabriella Duffy under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). In this Determination the HSE is referred to as the Respondent and Ms Duffy is referred to as the Claimant.
The Dispute
The dispute concerns the terms of a contract of indefinite duration issued to the Claimant after she became entitled to such a contract by operation of Section 9(2) of the Act. The Claimant is a Staff Nurse. She is employed to provide cover for absent colleagues in the ‘North East Doc on Call’ service operated by the Respondent. She commenced working for the Respondent in or about 18th April 2006 on a series of fixed-term contracts. It is common case that she became entitled to a contract of indefinite duration by reason of her aggregate service as a fixed-term Employee and by operation of law. The impugned contract is undated but is expressed on its fact to apply from 18th April 2010. This contract, which was furnished to the Claimant in January 2011, provides that her hours of work will be“as determined by your manager”. It is also common case that the fixed-term contract from which the contract of indefinite duration was derived contained a similar term. It is, however, accepted that the Claimant was in fact regularly provided with work and that this averaged over the full period of her employment amounted to 12.5 hours per week.
The dispute was investigated by a Rights Commissioner who held with the Claimant. He directed the Respondent to issue the Claimant with a contract of indefinite duration based on her normal weekly working hours in the 12 months immediately prior to her becoming entitled to a contract of indefinite duration.
Position of the Parties
The Claimant
The Claimant contends that the provision in relation to her working hours places no obligation on the Respondent to provide her with any work. She says that the contractual term, as drafted, would allow the Respondent to withhold work from her for any or indeed no reason. She contends that absence any obligation on the Respondent to provide her with work is incompatible with the contract being one of indefinite duration. It is the Claimant case that while her prior fixed-term contract did not contain an express term obligating the Respondent to provide her with a particular number of working hours she did work an average of 12.5 hours over the currency of those contracts. She contends that the prior contracts contained an implied term that she would work that number of hours. In advancing her claim under the Act the Claimant relies on three Decisions of this Court, namely Determination FTD0611-HSE West and 90 Named Complainants,Determination FTD104-Brothers of Charity and Catherine Morrin, and Determination FTD113,HSE South and Irene Horohan.
The Respondent
The Respondent submits that as a matter of law the Claimant is not entitled to a better contract than that which she had as a fixed-term Worker. It contends that there is no material difference between the contractual term now complained of and the corresponding term in her fixed-term contracts. The Respondent submits that the effect of the Rights Commissioner’s Decision is to require it to provide the Claimant with 12.5 hours work in every week whether or not her services are required. This, it contends, goes significantly beyond anything expressly or implicitly contained in her prior contracts. In advancing its case the Respondent relies on the Decisions of this Court Determination FTD105- Brothers of Charity and Kim Schneebergerand in Determination FTD104-Brothers of Charity and Catherine Morrin(upon which the Claimant also relies). It contends that these cases are authority for the proposition that an entitlement to a contract of indefinite duration under the Act only changes the Workers' entitlements as to tenure and that all other terms remain unaltered. The Respondent further relies on the Decision of Laffoy J. inMinister for Finance v McArdle[2007] 18 ELR 165. Here the High Court held that Section 9(3) of the Act operated to render void,ab initio,a term in a contract which purports to provide for its expiry but that all other terms remain intact.
Conclusions of the Court
Determination FTD113,HSE South and Irene Horohan, resulted from an application under Section 15(8) of the Act for the enforcement of a decision of a Rights Commissioner. In that case the Court did not and could not have made any decision on the correctness of the relevant Decision. However, in Determination FTD0611-HSE West and 90 Named Complainantsand in Determination FTD104-Brothers of Charity and Catherine Morrinthe Court did extensively review the relevant law on the compatibility of a contractual term similar to that now in issue with the requirements of the Act. In both cases the Court held that a contract which did not place any obligation on the Employer to provide a Claimant with work did not meet the minimum standards required in a contract of indefinite duration. There is no material difference in the facts giving rise to those cases and the facts of the instant case and the Respondent does not seek to distinguish them. Rather, the import of the submissions advanced on its behalf is that they should not be followed. The Decision of this Court in Determination FTD0611-HSE West and 90 Named Complainantsalso involved the same Respondent as in the instant case. It was open to the Respondent to have appealed that Decision but it chose not to do so. It is now inviting the Court to reverse its earlier Decision, which it clearly accepted at that time.
This Court is not strictly bound to follow its previous Decisions by the legal doctrine of precedent. Nevertheless, the requirements of legal certainty dictate that it should do so except where the earlier Decision has been overruled by a Court of competent jurisdiction or the Court is satisfied that the earlier Decision is plainly and unambiguously wrong. Neither of these considerations applies in this case.
In the earlier cases referred to, this Court accepted that a contract of indefinite duration that comes into being by operation of Section 9 of the Act is in the same terms as the fixed-term contract from which it is derived in all respects other than in respect to tenure. Hence, all other expressed and implied terms in the prior contracts are carried forward when the contract is transmuted to one of indefinite duration. However, special problems exist in applying this principle in the case of contracts such as that in issue in this case.
It could not be held that the prior contracts imposed no obligation on the Respondent to provide the Claimant with work at all. It is clear that while employed as a fixed-term Employee the Claimant was in fact allocated such relief work as became available within the North East 'Doc on Call’ service operated by the Respondent. The pattern of her working hours varied from week to week and from time to time having regard to the exigencies of the service. The determining factor was the availability of work rather that a decision by an individual manager to offer or not to offer her an assignment.
In considering this case the Court has had regard to the Decision of the High Court, per Leffoy J, inAhmed v HSE[2008] 19 ELR 117. In that case the Plaintiff was employed as a locum consultant surgeon on a series of fixed-term contracts. He became entitled to a contract of indefinite duration pursuant to Section 9(3) of the Act of 2003. A dispute arose as to the terms of the contract of indefinite duration which came into being by operation of law. The HSE contended that the Plaintiff was always a locum and that the law had merely converted him into a permanent locum. The Plaintiff contended that he was entitled to a permanent appointment on the consultant’s common contract. In the course of her judgment Leffoy J said the following: -
- The most recent direction given by the defendant following the decision of the Rights Commissioner has the effect of converting the plaintiff into a permanent locum. The defendant's position as to the effect of the Act of 2003 was put by its counsel in very plain language: it cannot elevate the plaintiff into any status above the one he formerly enjoyed; he was always a locum; his is now a locum; but he is a permanent locum. In my view, that is not a proper characterisation of the plaintiff's status, either before or after June 30, 2004. When he was initially appointed to Louth County Hospital he was undoubtedly a locum for Ms Mulcahy. However, after Ms Mulcahy retired, in my view, he was temporary consultant surgeon on a series of fixed-term contracts on the terms of the consultants' common contract insofar as they were consistent with the temporary fixed-term nature of his engagement, which, among other things, entitled him to engage in private practice. It is perhaps worth noting that the defendant has used the words “locum” and “temporary” interchangeably when describing the plaintiff's status in the past. Since June 30, 2006, the plaintiff has been employed as a consultant surgeon on a contract of indefinite duration on the same terms as he had been previously employed, including his entitlement to engage in private practice. Assigning the role of providing ongoing locum cover for six consultants in the Joint Department of Surgery at Louth Meath Hospital Group is not an offer of appropriate alternative appointment within the meaning of clause 8.1, because that role precludes the plaintiff from engaging in private practice as envisaged in the consultants' common contract.
While the facts of the instant case are not entirely concordant with those of theAhmedcase, the effect of the Decision of the High Court in that case was to look at the reality of the Plaintiff’s position while in fixed-term employment rather than at the strict terms of his contract literally construed.
The term in the contract of indefinite duration which is the subject matter of this complaint is expressed in terms which affords the Claimant’s manager an unfettered right to determine her working hours. That does not accord to the reality of the situation that existed hitherto where the determinative criterion was the availability of work. It is noted that in both Determination FTD0611-HSE West and 90 Named Complainantsand Determination FTD104-Brothers of Charity and Catherine Morrin, this Court did not make an order directing that the Claimant in either case be provided with a contractual entitlement to any particular number of weekly working hours. In Determination FTD0611-HSE West and 90 Named Complainantsthe Court held as follows: -
- The Union indicated that there are a small number of Complainants whose weekly working hours varied. There is no clear guidance in the Act on the approach to adopt in these cases, other than that they are entitled to terms not less favourable than the terms which applied when they were last employed as fixed term employees unless alternative arrangements are agreed to. Therefore, the Court is of the view that the approach adopted by the Rights Commissioner would commend itself as being a practical approach in all the circumstances. Consequently, the Court concurs with the finding of the Rights Commissioner who decided that the Respondent should be required to provide these Complainants with contracts of indefinite duration based on their normal weekly hours in the previous 12 months.
In Determination FTD104-Brothers of Charity and Catherine Morrin, the effect of the Court’s Order was expressed in the following terms: -
- The Complainant states that she should be entitled to a fixed number of hours per week. The Court has examined the hours worked by the Complainant. The Court notes that there was no certainty of hours worked and indeed there were rare occasions when the Complainant was not required to work at all on some weeks. However, outside of those rare occasions the details reveal that the Complainant worked a consistent pattern of work ranging under 20 hours in some weeks to over 60 hours in other weeks. In such circumstances, the Court accepts that to reflect the nature of her previous fixed term contracts and in light of the findings inWippel v Peekher contract of indefinite duration while “a variable hours contract” must be consistent in terms of the pattern of hours available to the Complainant for the future.
For all of the foregoing reasons the Court concludes that the Respondent must provide the Complainant with a contract of indefinite duration which reflects the pattern of work available to her while she was employed on a fixed-term contract prior to her entitlement to a contract of indefinite duration. With this modification the Decision of the Rights Commissioner is affirmed.
In this case the Rights Commissioner held that the Claimant should be provided with a contract of indefinite duration based on her normal weekly working hours in the 12 month period immediately prior to her becoming entitled to a contract of indefinite duration. Both parties agree that this effectively means that she should obtain a contractual entitlement to 12.5 hours per week.
In the Court’s view that is not a fair reflection of the Claimant’s previous position. Her weekly hours varied considerably and there were occasions on which she did not work. In that context a requirement to provide the Claimant with a guaranteed minimum of 12.5 hours in every week throughout the year would amount to a significant improvement on her previous position. Rather, the Court believes that the appropriate order to make in this case is one in line with that made in Determination FTD104- Brothers of Charity and Catherine Morrin, namely that the Respondent provide the Complainant with a contract of indefinite duration which reflects the pattern of work available to her while she was employed on a fixed-term contract prior to her entitlement to a contract of indefinite duration. That pattern was determined by the requirement to provided cover and the working hours were determined by the normal working hours of the person for whom the cover was being provided.
Having regard to all the circumstances of this case the Court believes that the Respondent should be required to amend the Claimant’s contract so as to stipulate that her normal hours of work will be objectively determined by application of the criteria referred to above. The contract should provide that the Respondent will be contractually obliged to provide work by reference to that criteria and that the Claimant will be contractually obliged to accept the work. Moreover, it is apparent that since the contract of indefinite duration was issued her working pattern has, in fact, reflected her previous pattern of engagement. Accordingly the Court does not believe that an award of monetary compensation is warranted.
The Rights Commissioner’s Decision is amended accordingly.
Signed on behalf of the Labour Court
Kevin Duffy
9th July, 2012______________________
JFChairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.