FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NUI MAYNOOTH (REPRESENTED BY MC CANN FITZGERALD SOLICITORS) - AND - MR LEONARD DORRIAN (REPRESENTED BY MS LOUISE O' DONNELL) DIVISION : Chairman: Mr Hayes Employer Member: Ms Cryan Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-077765-ft-09/DI.
BACKGROUND:
2. The Worker and the Employer appealed the Rights Commissioner's Decision to the Labour Court. Labour Court hearings took place on the 17th November, 2011, the 5th December, 2011 and on the 12th March, 2012. The following is the Labour Court's Decision:-
DETERMINATION:
Mr Dorrian hereinafter “the Complainant” has been employed by NUI Maynooth, hereinafter “the Respondent” or “the University” as an Instrument Teacher/Occasional Performance Tutor sinceOctober 2003. The parties disagree on the precise job title of the Complainant. The Complainant maintains that she is employed as an Instrument Teacher. The Respondent maintains that he is employed as an Occasional Performance Tutor.
The Respondent employed the Complainant on a series of fixed term contracts as follows:
8th October 2001 to May 2002
7th October 2002 to May 2003
6thOctober 2003 to May 2004
4thOctober 2004 to May 2005
3rdOctober 2005 to 5thMay 2006
2ndOctober 2006 to 4thMay 2007
8thOctober 2007 to 9thMay 2008
13thOctober 2008 to 8thMay 2009
The Complainant's contract was renewed in October 2009. The Complainant is paid €46.98 per hour. Hhe has no entitlement to increments, sick pay, pension or annual leave.
On 30thMarch 2009 the complainant referred a number of complaints to the Rights Commissioner under the terms of the Protection of Employees (Fixed-Term Work) Act 2003. The Complainant alleged that the manner of her treatment by the Respondent was contrary to the provisions of Sections 6, 8(2) and 9(1) of the Act.
The University rejected the complaint, asserted that the Complainant was employed on a contract for services and did not come within the scope of the Act. The Respondent challenged the jurisdiction of the Rights Commissioner to hear the complaint under the Act.
The Rights Commissioner held against the University on the issue of jurisdiction. The Rights also decided that the Complainant was employed on a contract of service.
On the substantive issues the Rights Commissioner decided that the Complaint under section 9 was well founded. The Rights Commissioner decided that the Complainant became entitled to a contract of indefinite duration by operation of law with effect from 4thOctober 2006. She ordered the Respondent to pay the Complainant €2,500 compensation for the breach of s9 of the Act.
The Rights Commissioner decided that the Complaint under s6 of the Act was not well founded. She decided that the Comparator put forward by the Claimant was not a comparable employee within the meaning of Section 5 of the Act.
The Rights Commissioner decided that the complaint under s. 8(2) of the Act was well founded. She ordered the Respondent to pay the Complainant compensation in the amount of €2,500 for the breach of the Act involved.
For different reasons both sides appealed to the Labour Court against the Decision of the Rights Commissioner.
The case came on for hearing before the Labour Court on the 17thNovember 2011. The case was adjourned and came before the Court again on Monday 12thMarch. A period of time was allowed thereafter for additional written submissions from the Respondent on issues that arose in the course of the hearing. However, at the end of the allowed time, the Respondent informed the Court that it had no further submissions to make to the Court.
Preliminary Issue:
The University submits that the Complainant is employed under a contract for services and does not enjoy the protection of the Act.
University’s Position
The University submits the Complainant was not part of the departmental staff of the Respondent. Under the arrangement in place between the Complainant and the Respondent he was offered work when it was available and that the Complainant could accept or reject the work as he saw fit. The University was under no obligation to offer work to him and he was under no contractual duty to accept and perform any work offered to her. Accordingly the University submits that there is no mutuality of obligations between the parties which it submits is a condition precedent for a contract of employment.
The Respondent further submits that the practical situation in the University means that a contract for services is the most appropriate form engagement in the case of occasional performance tutors. Students each year choose an instrument to study. The University does not know until quite late in the day how many students will choose any given instrument. The instruments chosen vary from student to student and from year to year. When each of the students finally selects the instrument they wish to study each year the University then proceeds to source specialist tutors to mentor each of the students and assist him or her prepare performance pieces on those instruments as part of their academic studies. Because the instrument studied is chosen by the student each year and the performance tutors are specialists in one instrument only, the University cannot guarantee employment to any of the performance tutors. Equally, without a guarantee of work, it would be impractical to require the performance tutors to commit to the University until the need for their services had been established each year. Accordingly each year, after each of the students has chosen the instrument they wish to study, the University offers contracts for service to those tutors for whom there is a demand.
The position is further complicated by the one to one nature of the relationship that must be established between the student and the tutor. Students to flourish in the tuition system must have confidence in and build a rapport with the instrument tutor. Accordingly each student and tutor must establish a working relationship before the contract with the University can be finally confirmed. On occasion the tutor and student, for various reasons, cannot work together. In those circumstances the student is assigned another tutor with a consequent loss of hours for the originally assigned tutor.
The one to one relationship was, until quite recently, reflected in the payment arrangements originally in place in the university. Students paid the performance tutor directly for their work. Over time this changed and the University collected the monies from the students and handed them over in a lump sum to each of the tutors. Following discussions with Revenue the University paid the monies involved to the tutors through payroll and brought them into the PAYE tax system.
Counsel for the Respondent referred the Court to the judgement of Edwards J in Minister for Agriculture v Barry [2008] IEHC 216 216 where he held
- “The requirement of mutuality of obligation is the requirement that there must be mutual obligations on the employer to provide work for the employee and on the employee to perform work for the employer. If such mutuality is not present, then either there is no contract at all or whatever contract there is must be a contract for services or something else, but not a contract of service.”
Counsel for the Respondent submits that in this case the Complainant was free to accept or reject offers of work each year and accordingly each contract was best characterised as being a contract for services rather than a contract of service. He also referred the Court to the judgement of Keane J in Henry Denny & Sons (Ireland) v Minister for Social Welfare [1998] 1 IR 34 and in particular the following passage
- “it is, accordingly, clear that, while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services under a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that the person is engaged in business on his or her own account can be more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her.”
- “The greater the amount of direct control exercised over the person rendering the services by the person contracting for them the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probability that the services rendered are of the nature of professional services and that the contract is not one of service. The place where the services are rendered, i.e. whether at the residence of the person rendering the services or not, will also be an element in deciding the case, but is not in my opinion decisive”
The Court was also referred to the judgement of Denning L.J. in the cases ofStevenson, Jordan & Harrision Ltd v Macdonald [1952] 1 T.L.R. 101and to the decision ofGeoghegan J. in Castleisland Cattle Breeding Society Limited v Minister for Social and Family Affairs92004] 4 IR 150.
Applying these cases Counsel for the Respondent submits that there was no control exercised over the Complainant’s professional life, they determined their own hours, were not integrated into the Respondent’s academic service provision, did not form an active part of the faculty and were in business on their own account. He submitted that they were accordingly not employees within the meaning of the 2003 Act and consequently could not benefit from its provisions.
Ms Louise O’Donnell, on behalf of the Complainant, submitted that the he was at all times employed on a contract of service by the Respondent. She referred the Court to the “Code of Practice” that deals with the matter of determining Employment status in this regard. She submitted that the Complainant met the “criteria on whether an individual is an employee” set out in the Code. She submitted that by way of contract the Complainant did not and could not meet the “criteria on whether an individual is self-employed” set out in the code.
In all the circumstances surrounding the Complainant’s employment she submits that he is an employee for the purposes of the 2003 Act and is entitled to its protection with regard to his employment by the Respondent.
Findings of the Court
The issue for the Court to decide is whether the University employed the Complainant on a Contract of Service or on a Contract for Services. The law in this regard is complex. However a common theme in all of the case law on the subject is that that each situation must be judged on its own facts. Accordingly the Court has considered the matter in that context.
The Respondent employed the complainant on a series of fixed term contracts commencing on 8thOctober 2001. The Complainant was employed to provide personal tuition to a number of students that had chosen to study the piano in the relevant year. However the work was not full time and it is clear from the information available to the Court that the income he derived from the work was not sufficient in itself to sustain him. He found it necessary to undertake other work in order to earn sufficient income to pay his way and maintain a quality of life for himself and his dependents. Accordingly he found it necessary to balance his work for the respondent with other work from which he might derive an income.
Each year he made himself available for work and he was allocated students by the Respondent. Thereafter he matched his available hours with their preferred calendar and engaged with the assigned students. Because of the personal nature of the relationship between the Complainant and the allocated students some decided to end the relationship whilst others that had been assigned to another teacher sought him out. In general however he appears to have undertaken the work assigned to him each year. Thereafter his duty was to prepare the student for the respondent’s examination.
The Court considered a letter addressed to “All Instrumental Teachers” from the Professor of Music dated 18 September 2007 that sets the out the position in the following terms:
- “Please note also that in preparing students for our examinations only works by recognized composers are acceptable. Student compositions/arrangements are not acceptable, nor are pop songs, nor songs from musicals.”
It is clear that the Complainant had some latitude with regard to the selection of the piece to be performed as part of the examination process however it was not entirely within his discretion and he clearly came within the control of the Music Department in this regard. The letter goes on to say:
- “As part of the Quality Assurance process to which we are committed, we will be issuing you with a questionnaire form for each student at the end of the first semester. Your co-operation in completing and returning these forms to the office will be greatly appreciated. At the end of the year students will be issued with a form to assess your performance from their perspective. This process already applies to all academic areas.”
The Court interprets this as a measure of control of the Complainant by the Music Department that is consistent with the kind of control that would apply in any teaching situation where flexible teaching methods aimed at achieving a standard of performance over an academic year is monitored each semester to ensure that an acceptable standard of performance and rate of progress is being achieved and maintained respectively. Furthermore the Court notes that the performance assessment carried out on the Complainant by the student in this case is no different to that being carried out on other academic staff. This suggests that the Complainant is subject to the same assessments as other academic staff on contracts of employment with the Respondent.
It is also clear from that letter that the commencement date for Instrumental tuition on campus is Monday 8thOctober that year. The Complainant is asked to“contact Marie as soon as possible .. to confirm that you will commence instrumental lessons on 8 October and to arrange your timetable.”
Again the Court takes the view that this indicates a further level of control over the timetabling of the Complainant that ties it to the students allocated and to particular start and end dates within the semester.
A further letter put in evidence to the Court from Professor Fiona M. Palmer to all Performance Strand Teachers dated 9/12/2008 further sets out the level of control exercised by the Music Department over the Complainant. The letter introduces the new“Performance Strand Coordinator”who is“looking forward to developing the Performance Strand curriculum.”
The Court takes the view that this letter establishes that the performance strand is fully integrated into the curriculum of the Degree Course and is being managed in a systematic and increasingly focused way. In this regard the letter goes on to note that the “Performance teaching facilities” in the Department have been improved and a new “dedicated building” has been opened for that purpose. It says that the “facility contains fifteen rooms which we plan to equip with new instruments”. It goes on “Please remember that the Department’s rooms are to be used only for teaching currently registered students; they cannot be used outside teaching periods or for any other purpose”.
Again the Court takes the view that the level of control on teaching times, instruments used and the teaching venue is significant and within the purview of the Department.
The letter goes on to deal with details of the “New Syllabus” for the study of Performance/Practical skills; “New Support for Performers: Platform Classes” and “ Examination Accompanists: New System” all of which suggest that the level of control of the work, curriculum, time, instruments, venues, timetables, student and teacher performance and examination systems is quite extensive. It appears to the Court to be consistent with the type of control that is exercised over all academic staff involved with the preparation of students for examinations through the development and delivery of a curriculum in a given field of study.
Accordingly the Court finds, on the facts of this case, that the Respondent exercised a level of control over the Complainant, consistent with that of an academic employed in the delivery of a course of study to students in a university setting. That level of control is consistent with a contract of service.
Determination
The Court determines that the Complainant was an employee of the Respondent and comes within the scope of the Act.
Section 9(2)
The Respondent submits that the Complainant was not in continuous employment within the meaning of the Act. The Respondent submits that the Complainant works for the Respondent for 20 weeks each year and cannot for this reason be within the scope of Section 9(1) of the Act.
The Respondent submits that there are objective grounds justifying the renewal of a fixed term contract in this case and relies on the provisions of Section 9(4) of the Act in this regard.
The Respondent submits that the renewal of the Contract of employment meets the criteria set out in Section 7 of the Act. The renewal meets a legitimate objective of the Respondent and the use of fixed-term contracts is appropriate in the circumstances and is necessary for that purpose.
The Respondent submits that the legitimate objective is the provision of performance tuition for differing numbers of students with varying choices of instruments. The Respondent submits that it needs considerable flexibility in organising such tutors for the provision of such tuition. Thus the use of fixed-term contracts is appropriate.
The use of fixed-term contracts meets a real need of the Respondent and is therefore necessary. The use of fixed-term contracts is proportionate in the circumstances notwithstanding that this latter consideration is not a requirement specified in the Act.
The reasons are specific to the nature of the engagement or activity in question, and do not derive from general abstract norms. The reasons are transparent. As such, they satisfy the requirement as set down by the European Court of Justice.
This category of performance tutors is in an exceptional and unique position. In particular, the respondent cannot guarantee any particular performance tutors any work until the students choose their instruments.
The imposition of contracts of indefinite duration would hamper the delivery of performance tuition to students. This must be viewed in terms of the whole student body within the Music Department and thus there is a need for varying numbers of tutors, teaching various instruments, depending on the number of students and their choice of instrument.
To give the Claimant rights pursuant to Section 9 of the act would be to hire some 33 other persons on a similar occasional contract. None of these persons would have been subject to audition or interview.
It would be a fundamental change in the operation of the performance tutors. There are some 33 other performance tutors who have not pursued the within claim. The outcome has serious impact on their work with the Respondent. Many of such value the flexibility that comes of their current work arrangement; a formal employment relationship would not suit them.
If the claimant were given a contract of indefinite duration it would be a breach of the Government guidelines on recruitment with potentially serious consequences for the Respondent.
The Respondent submits that the Complainant has not worked for “a third year of continuous employment.” Consequently does not come within the scope of Section 9(1) of the Act. Section 9(2) of the Act is only applicable where the employee has worked “continuous fixed-term” contracts. The Complainant does not have such continuous employment. Advocate General Kolkott in his opinion delivered on 9 January 2008 in Impact v Minister for Agriculture and Food and Others Case C-268/06 noted that the Framework Agreement recognises that fixed-term employment contracts are “a feature of employment in certain sectors, occupations and activities which can suit both employers and workers”. Furthermore the Framework Agreement presupposes that “the use of fixed-term employment contracts based on objective reasons is a way to prevent abuse”. Accordingly Counsel for the Respondent submits that there can be no objection in law to the use of fixed-term contracts. Counsel for the Respondent also referred the Court to the decisions of the ECJ in Adelener and Others v Ellinikos Organismos Galaktos 9ELOG) Case C-212/04 (4 july 2006) in which it held:
- “In those circumstances, the concept of objective reasons, within the meaning of clause 5(1)9a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term contracts.
Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or as the case may be from the pursuit of a legitimate social-policy objective of a Member State”.
- “On the contrary, the concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose”.
The Court was also referred to the decision in H.S.E. v Umar [2011] IEHC 146 in which the High Court held that the Labour Court must apply the criteria contained in the 2003 Act in accordance with its terms. No purposive interpretation is necessary nor applicable to the application of Section 9(4) of the Act.
Complainant’s Position
The Complainant submits that he was initially employed on the 8thOctober 2001 on a fixed term contract that expired in May 2002. He submits that his fixed term contracts was renewed annually in similar terms thereafter up to and including the date he submitted a Complaint to the Rights Commissioner. He submits that he became entitled to a Contract of Indefinite Duration by operation of law in accordance with the provisions of Section 9(2) of the Act unless the Respondent can demonstrate objective grounds justifying the renewal of the fixed term contract on objective grounds within the meaning of Section 7 of the Act.
He submits that the objective grounds set out by the respondent do not meet the conditions set out in Section 7 of the Act.
He submits that the provision of performance tuition to students in the University is a legitimate objective of the Respondent. However he submits that that objective can be met in a more appropriate and less discriminatory manner than by the repeated recourse to fixed term contracts of employment. He submits that he teaches piano and that there has been a demand for his services every year since he first commenced employment in 2002. He submits that the teaching of cello to students is a fixed and permanent need of the University. He submits that the University’s needs could be met in a less discriminatory way by appointing him to a permanent contract of employment from which he could be made redundant in the event that the University had no further work available for him. Accordingly he submits that the repeated use of fixed-term contracts is not “necessary” within the statutory meaning of that term. He further submits that the repeated use of fixed term contracts of employment in this case is not “appropriate” within the meaning of Section 7(1) of the Act as alternative less discriminatory means of achieving the legitimate objective of the employer are available in this case.
Findings of the Court
The Court finds that the Complainant was first employed on a fixed term contract of employment between8th October 2002 and May 2003. He was subsequently re-employed on a similar fixed term contract of employment each year thereafter. The Act came into force in July 2003. Section 9(1) of the Act provides“where on or after the passing of this act a fixed-term employee completes 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 a fixed term of no longer than one year.”The Court must first establish when the Complainant completed his third year of continuous employment.
On the passage of the Act the Complainant had completed her first fixed term contract of employment. He was subsequently re-employed in October 2003 on a further fixed-term contract of employment. Counsel for the Respondent submits that the employment was not continuous. Ms O’Donnell on behalf of the Complainant submits that it was.
This Court, in a series of determinations, has taken the view that the term “continuous” in Section 9(1) has a legal as opposed to a literal meaning. The Court has relied on the computation of “continuous service” set out in the First Schedule to the Minimum Notice and Terms of Employment Act 1973 for the purposes of determining whether service is continuous for the purposes of this Act. The Schedule provides that :
- 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
Accordingly successive fixed term contracts of employment are regarded as continuous if the period between each of them is interrupted by lay off rather than dismissal.
The Court addressed the issue inHealth Service Executive v Dr Abiola Oshodi Determination No FTS0913where it held:
- "Section 9(5) of the Act states that “the first Schedule to the Minimum Notice & 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 first Schedule of those Act states (inter alia):
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”
it also says
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
such period shall count as a period of service”.
The Claimant clearly did not voluntarily leave his employment, as he was directed to go to Beaumont. Neither, in the view of the Court was he dismissed. Dismissal in the recognised context is an act of final penalisation by an employer, unless the term is qualified (as in “dismissal by reason of redundancy”, for example). It connotes the deliberate and final severance of an employment contract against the will of an employee. This is not what occurred in this situation.
Rather does it appear to the Court that what occurred was a situation as envisaged in Section 10 (c) of the First Schedule, where an employee is absent from his employment for not more than 26weeks (six months) between consecutive periods of employment by agreement with his employer.
The Claimant was absent from the direct employment of the HSE for a period of six months. It was always envisaged and indeed happened, that he would return to the employment of the HSE. It was the Tutors’ Group, a group under the aegis of the HSE, which sent him to Beaumont Hospital. He was actually directed there and agreed to go, knowing he would return. The Court must therefore take the view in that circumstance that his absence was “by agreement with his employer” and that his employment was continuous.
The Court is fortified in this view by the Judgement of Murphy J in the High Court in the case of “Irish Shipping Ltd” v Richard Adams and others” (1985 / 959sp), where in an appeal pursuant to Section 40 of the Redundancy payments Act, 1967 from a Decision of the E.A.T., the Court said:- “In essence what the Tribunal did was to advert to the statutory presumption of continuity of employment under Section 10 (A) of the Redundancy Payments Act 1971 and then to advert to the facts of the case as found by them to see whether those facts rebutted the statutory presumption. Furthermore, the Tribunal in reviewing their findings of fact recognised that by virtue of Schedule 3 of the Redundancy Payments Act 1967 certain interruptions of service did not break the continuity of employment. The interruptions which were excluded were ones for periods not exceeding 26 consecutive weeks by reason of lay-off, holidays or any cause (other than voluntary leaving of his employment by the employee) and other than lay-off or holidays but authorised by the employer”.
The Court, therefore, is of the view that the Claimant’s employment was continuous as envisaged in Section 9(1) of the Act, from 20th January 2003".
Applying this to the instant case the Court finds that the Complainant was not dismissed in May 2004 in the sense that it was not a deliberate and final act of severance of employment against the will of the employee. Rather it was the end of the academic year, the students had completed their courses of study for that year and had dispersed for the summer. They were due to return again in the Autumn to commence the next year of their studies when the Complainant was offered and accepted a renewal of the fixed-term contract of employment as she had done the previous year. Accordingly the Court takes the view that the Complainant was laid off at the end of the academic year and re-engaged at the commencement of the following academic year. The University followed this pattern in each of the following years.
In accordance with Section 9 (1) of the Act the Complainant completed three years continuous employment with the Respondent in October 2004 at which time the Respondent had the option to renew her fixed term contract of employment on only one occasion and for no longer that one year. The Respondent renewed the fixed term contract of employment and the Complainant became entitled to a contract of indefinite duration by operation of law with effect from October 2005 unless there were objective grounds within the meaning of Section 7(1) of the Act for a further renewal.
The Respondent submits that there were objective grounds for such a renewal. The Complainant disputes this submission.
Section 7(1) of the Act provides that a“ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee’s contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.”
The Court has taken the view that this is in effect a restatement of the tests set out by the ECJ inBilka-Kaufhaus GmbH v Weber von Hartz (170/84) [1986] IRLR 317 (ECJ).
Applying these tests to the instant case the Court is satisfied that the provision of tuition support to students undertaking music studies is a legitimate aim of the University. However, from the information provided by the University, it is clear that there was a consistent demand for the teaching of piano each year he was employed to the extent that the provision of tuition in piano is a fixed and permanent need of the University. In this context the Court takes the view that use of successive fixed term contracts of employment was inappropriate and unnecessary in this case. The Respondent could have adopted a less discriminatory means of dealing with the matter. The Respondent could have employed the Complainant on a contract of indefinite duration and exercised its option to make him redundant should the requirement for his skills cease to be in demand at some stage in the future. The purpose of the Act is to prevent the use of successive fixed term contracts of employment where they are not necessary and or are inappropriate and or do not meet a legitimate objective of the employer. In this case the objective of the employer is legitimate but the means chosen in this case are neither necessary nor appropriate as there were at all times less discriminatory means available to the employer to meet that objective.
Accordingly the Court determines that the Respondent has failed to demonstrate objective grounds within the meaning of Section 7(1) of the Act.
Determination
The Court determines that the Complainant became entitled to a contract of indefinite duration with effect from October 2005.
Section 6
The Complainant submits that, as a fixed term worker he is, contrary to the provisions of Section 6 of the Act, treated in a less favourable manner in respect of his conditions of employment than a comparable permanent employee within the sector.
The comparator is employed part-time by the Dublin Institute of Technology as an Assistant Lecturer. He is chosen by reference to s 5(1) (c) of the 2003 Act which states that “For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if –
(c ) In case neither paragraph (a) or (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in sub-section (2) is satisfied in respect of these employees”
The Complainant submits that the comparator’s role as an Instrument Tutor in the Music Department in DIT is comparable to the Complainant’s role as an Instrument Tutor in NUI, Maynooth and meets the definition of comparable work under Section 5(2) (b) and (c ) of the Act.
The comparator attended the hearing and told the Court that he is employed in both NUI Maynooth and in the DIT as an Instrument Tutor and that the work he performs in both of the employments is effectively identical. He said that he does not attend faculty meetings or participate in the development of course content. He said that his students are allocated to him and he assists them to prepare performance pieces as part of their academic studies. He said that he completes the associated paper work in both employments and has little or no other involvement in the academic life of the College. He said that he does not carry out the full range of duties associated with the post of Assistant Lecturer within the DIT. Rather he carries out the direct work associated with the preparation of pieces for performance by the students in the DIT. He said that he carries out identical work in NUI Maynooth.
He said that in addition to the permanent post he holds within DIT he was given additional hours by way of a fixed term contract of employment that will expire on his reaching pension age. He said that this was in addition to and did not replace the permanent part time post he holds.
Respondent’s Position
The Respondent submits that no proper comparator has been provided by the Complainant. Mr Grundy, the comparator in this case, does not satisfy the condition set down in Section 5(1)(c ) of the Act. Mr Grundy’s contract of employment describes him as an “assistant lecturer” and not an “instrument teacher” which is the name the Complainant gives herself. Furthermore his contract specifies that he will “play an active role in the academic direction of courses including teaching, research , academic assessment and academic administration”. The duties of the Complainant are fundamentally different to those of the Comparator in this regard.
The Respondent submits that the role described in the comparator’s contract of employment is of greater value that the work performed by the Complainant and Section 5(2) (c ) is not satisfied as it must be in this case. Accordingly the clam must fail.
The duties and functions of the Complainant are not comparable with the functions of an assistant lecturer. Accordingly the Complaint must fail. The Complainant is described as a performance tutor and has the sole role of providing that tuition.
Performance tutors do not participate in syllabus design, are not involved in determining course direction, they do not award marks to students and while they complete a feedback form on students there is no sanction if this is not returned.
The Comparator can be allocated set hours for teaching; this cannot be done by the Respondent in respect of the Complainant.
The Complainant is not responsible for the selection o f a student’s repertoire. Whilst the performance tutor may make recommendations ultimately this is a matter for the student in consultation with the academic department. By contract the comparator provides “academic and consultative” support to a student.
The Comparator’s terms and conditions of employment are subject to collective agreement as authorised by the Minister for Education and Science. The Complainant’s are not so subject and can accept or reject work. The Court was referred to the decision of the High Court in Catholic University School v Dooley [2010] IEHC 496.
The Respondent submits that Section 7(2) is applicable to the extent that the terms and conditions must be considered as a whole. In that regard, the Complainant benefits from terms and conditions which on balance are at least as favourable as that of the comparator. The flexibility given to the Complainant in the manner, location and time and duration in which she performs her obligations is asserted as a matter of considerable benefit to the Complainant. She can resign at will and have no notice period.
The Comparator, at the time of the commencement of this Complaint, had entered into a fixed term contract of employment with his employer that replaced the Contract of Indefinite Duration on which the Complainant’s case depends. Accordingly the Comparator is himself a fixed-term worker and cannot be a valid comparator for the purposes of Section 6 of the Act.
Findings of the Court
Section 6(1) of the Act states that: -“subject to subsections (2) and (5), a fixed-term employee shall not in respect of his or her conditions of employment be treated in a less favourable manner than a comparable permanent employee.”
Subsection 2 states “If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
Subsection 5 states “Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a fixed-term employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable permanent employee.
The meaning to be ascribed to the term “comparable permanent employee” is set out in Section 5 of the Act.
Section 5(1) states:
- (1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—
(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,
It is common case that the Complainant is entitled to rely on Section 5(1) (c ) of the Act.
The Complainant submits Mr Grundy as his chosen comparator. The Respondent submits that Mr Grundy does not satisfy the conditions set down in Section 5(2) of the Act.
Section 5(2) provides:
- (2) The following are the conditions mentioned in subsection (1)—
(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work
b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and
(c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.
The Complainant submits that the work she performs meets the conditions set down in Section 5(2) (b) and ( c) of the Act.
The Complainant presented an analysis of the job both he and his comparator performed. In addition Mr Grundy told the Court that he worked for both NUI Maynooth and for DIT and that he performed identical work for both of them. He explained that the job description of an Assistant Lecturer did not describe the work he actually performed and that he did not discharge many of the functions listed in the job description for the post.
Counsel for the Respondent relied on the duties of the post of Assistant Lecturer in DIT as an accurate description of the work performed by Mr Grundy. He submitted that the Complainant was not called upon to perform those duties in NUI Maynooth. This view was supported by the head of the Music Department in the University Professor Fiona M Palmer. She told the Court that the Performance tutors were not required to play any role in the academic life of the Department or to undertake any tasks that are appropriate to those required of an Assistant Lecturer in either the University or the DIT.
For the purposes of Section 5(2) (b) and (c) an employee is a comparable permanent employee in relation to a fixed-term employee if the “work performed” by one is the same or similar in nature or of equal or greater value to that performed by the other. The section requires that the Court examine the work performed and not the “contract of employment”.
In this case the evidence presented by the Complainant lists the duties of an Instrument Tutor employed by the University and compared them to the duties of an Assistant Lecturer employed in DIT. However the comparator told the court that he does not perform the full list of duties of an Assistant Lecturer in DIT even though that is the grade upon which he is employed. Instead he told the Court that he performs the same or similar work in both DIT and in the University.
The Respondent submits that the duties of both posts are not the same, similar or of equal or greater value. However the Respondent also relied on the duties of the posts as opposed to the actual work performed.
The Court must conclude therefore that the only evidence before it that compares the work performed by both the Complainant and the comparator is that given by the comparator who is employed in both the University and DIT. The comparator submits that the work described by the Complainant is the work he performs in the University and that this is the same or similar to or of equal or greater value than that which he performs in DIT.
In all the circumstances the Court determines that the complainant and the comparator perform the same or similar work or work of equal value within the meaning of Section 5(2) (b) and (c) of the Act.
The Complainant submits that he is treated in a less favourable manner in relation to his conditions of employment than a comparable permanent employee. The Respondent submits that Section 7(2) is applicable to the extent that the terms and conditions must be considered as a whole. In that regard, the Complainant benefits from terms and conditions which on balance are at least as favourable as those of the comparator. The flexibility given to the Complainant in the manner, location and time and duration in which he performs his obligations is asserted as a matter of considerable benefit to the Complainant. He can resign at will and have no notice period.
The Court has examined the terms and conditions of both the comparator and the complainant. On the face of it the Comparator is paid for 52 weeks of the year; is entitled to various benefits including sick pay and is entitled to membership of the pension scheme. The Complainant is paid for hours worked only. Taken as a whole, Court determines that the conditions of employment of the Complainant are substantially less favourable than those of the comparator.
Section 8(2)
Section 8(2) states:
- “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.”
The Complainant submits that the Respondent failed at the renewal of each of his contracts of employment failed to inform her in writing of the objective grounds justifying the renewal.
The Respondent did not contest this point.
Findings of the court
The Complaint was submitted to the Rights Commissioner on 4thApril 2009. Section 14(3) of the Act states:
- “(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.”
No application for an extension of time was made by the Complainant.
Accordingly the Court may not consider a complaint arising from a breach of Section 8(2) of the Act that occurred before the 4thAugust 2008. As the respondent is not contesting the complaint the Court determines that the Complaint is well founded.
Determination
The Court determines that the Complaint’s made to the Court under Sections 6, 8(2) and 9 (1) of the Act are well founded. The Court determines that:
- 1.The Complainant became entitled to a contract of indefinite duration by operation of law with effect from October 2005.
2.The Complainant was treated less favourably in respect of his conditions of employment than a comparable permanent employee.
3.The Respondent, contrary to the provisions of Section 8(2) of the Act failed to notify the Complainant in writing of the objective grounds justifying the renewal of the fixed term contract of employment in October 2008.
The Court instructs the Respondent to comply with the provisions of the Act.
The Court awards the Complainant compensation in the sum of €7,500 for the combined breaches of Sections 6, 8(2) and 9(1) of the Act.
The Decision of the Rights Commissioner is varied accordingly. The Court so determines.
Signed on behalf of the Labour Court
Brendan Hayes
13th July, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.