FTD1225

• This is an appeal by the Teaching Council and a cross-appeal by Liane Kirwan against the decision of a Rights Commissioner in Ms Kirwan’s claim under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). In the Determination the parties are referred to as they were at first instance. Hence Ms Kirwan is referred to as the Claimant and the Teaching Council is referred to as the Respondent.
  
  The Claimant brought a complaint before a Rights Commissioner alleging contraventions of sections 8, 9 and 13 of the Act. The Rights Commissioner found that the Respondent had contravened s.13 of the Act by dismissing the Claimant for the purpose of avoiding her fixed-term contract becoming one of indefinite duration by operation of s.9(3) of the Act. He awarded the Claimant compensation in the amount of €10,000. The Rights Commissioner found that the other complaints were not well-founded.
  
  The Claimant appealed against the redress awarded by the Rights Commissioner. The Respondent appealed against so much of the Rights Commissioner’s decision that found that it had contravened s. 13 of the Act.
  

  Facts

  The material facts, as admitted or as found by the Court are as follows: -
  
  The Respondent was established under the Teaching Council Act 2001 as the regulatory body for the teaching profession in Ireland. Section 13 of the aforementioned Act provides: -
  

  • (1) Subject to the consent of the Minister and the Minister for Finance, the Council may, from time to time, appoint such and so many persons to be employees of the Council as the Council may determine.
    
    (2) Subject to such conditions as it thinks fit, the Council may delegate to the Director any of the functions of the Council in relation to the appointment of employees and the determination of selection procedures.
    
    (3) Except as otherwise provided by this Act, an employee of the Council shall be employed on such terms and conditions as the Director, with the consent of the Minister and the Minister for Finance, may from time to time determine.
    
    (4) Except as otherwise provided by this Act, the Council shall pay to its employees such remuneration, fees and allowances for expenses as the Council, with the consent of the Minister and the Minister for Finance, may from time to time determine.
  
  The Claimant commenced employment with the Respondent on or about 26^thNovember 2007 on a fixed-term contract. She was graded as a clerical assistant and her principal duties involved assisting with the establishment of a register of teachers, updating the register from time to time and undertaking general office administration duties. Her employment was renewed by way of a succession of fixed-term contracts of short duration up to 31^stOctober 2011 when her final fixed-term contract expired without being renewed. In total the Claimant was employed on 14 successive contracts. When her employment ended the Claimant had accrued service of three years, eleven months and five days as a fixed-term employee.
  
  Section 9(2) of that Act provides, in effect, that a person whose employment commenced after the passing of the Act cannot be employed on continuous fixed-term contracts the aggregate duration of which exceeds four years. Section 9(3) of the Act operates so as to provide that where an employee’s fixed-term employment is extended beyond the period specified at s.9(2) the relevant fixed-term contract is transmuted to one of indefinite duration by operation of law unless the renewal is justified on objective grounds.
  
  The Claimant has a disability in that she is profoundly deaf. Like all public service employers the Respondent is expected to reserve a minimum of 3% of staff positions for people with a disability.
  
  On each occasion on which the Claimant’s fixed-term employment was renewed the Respondent sought and obtained the consent of the Department of Education and Skills to the renewal. That Department in turn obtained the consent of the Department of Finance, or later, the Department of Public Expenditure and Reform. Such consent was considered necessary so as to comply with s.13 of the Teaching Council Act 2001.
  
  The initial contracts issued to the Claimant did not contain a statement of the objective grounds justifying their renewal and the grounds upon which she was not offered a contract of indefinite duration, as is required by s.8 of the Act. The contract issued on 11^thJanuary 2010, and subsequent contracts did contain what purported to be such a statement. Each of these renewals recited the following: -
  
  • “It should be noted that Section 13 of the Teaching Council Act 2001 governs the appointment of permanent staff in the Council. Such appointments can only be made with the approval of the Minister for Education and Science [later the Minister for Education and Skills] and the Minister for Finance. Any such appointments must be advertised nationally”.
  
  The Claimant’s penultimate contract expired on 31^stAugust 2011. By letter dated 1^stSeptember 2011 she was informed by the Respondent that it had received Ministerial Sanction to extend her fixed-term employment up to but not beyond 31^stOctober 2011. On the expiry of that renewal her employment came to an end. The Claimant was not paid a redundancy lump. The only reason given to the Claimant at that time for the termination of her employment was that the relevant Government Departments had not approved her retention.
  
  The Respondent is subject to the public sector moratorium on the recruitment and retention of temporary staff. This moratorium was announced by the Department of Finance on 27^thMarch 2009. It appears that the refusal of the relevant Government Departments to approve the retention of the Claimant by the Respondent was based on the terms of this moratorium.
  
  In the course of the hearing of this appeal the Court was told by the representatives of the Respondent that following the termination of the Claimant’s employment agency staff were engaged to undertake the duties in which she had previously been engaged. It appears that some six months after the termination of the Claimant’s employment staff were redeployed from elsewhere in the public service to the Respondent.

  Position of the parties
  

  The Claimant

  The Claimant contends that the decision not to continue her employment beyond 31^stOctober 2011 was for the purpose of avoiding her fixed-term contract becoming one of indefinite duration by operation of law. This, she contends, amounted to penalisation within the meaning of s.13 of the Act. It was submitted on her behalf that the Respondent’s motivation is evident from the fact that the duties she was employed to undertake form part of the continuing needs of the Respondent. It was further submitted on behalf of the Claimant that in the circumstances of this case the onus is on the Respondent to prove that the dismissal of the Claimant was for a reason unconnected with the avoidance of her fixed-term contract becoming one of indefinite duration.

  The Respondent

  The Respondent contends that the Claimant’s contract was not renewed because the relevant Ministers did not approve the renewal of her fixed-term employment beyond 31^stOctober 2011. It was submitted on behalf of the Respondent that the Ministers’ decision was taken in light of the moratorium on recruitment in the Public Service and so as to facilitate the redeployment of staff elsewhere in the Public Service.
  
  The Respondent submitted that the Claimant did not accrue an entitlement to a contract of indefinite duration by operation of s.9 of the Act and in these circumstances the Respondent had no obligation to retain her in employment. It is the Respondent’s case that s.13(1)(d) of the Act applies only when fixed-term contracts are used as an instrument of abuse within the meaning of the applicable provisions of the Act. It was further submitted that the actions of the Respondent in not renewing the Claimant’s fixed-term employment was not abusive but was for the purpose of complying with its statutory obligations under the Act of 2001, to facilitate redeployment and in keeping with the required cost savings within the Public Service.
  
  The Claimant contends that the reason for terminating the Claimant’s employment was to facilitate the redeployment of surplus staff from elsewhere in the Public Service. Reference was made to correspondence passing between the relevant Government Departments to that effect. This correspondence was not put in evidence nor was it opened to the Court.(Following the hearing the Court was furnished with a copy of a letter on this topic, dated 30^thAugust 2011, sent by an official of the Department of Public Expenditure and Reform to an official of the Department of Education and Skills. This letter was not put in evidence in the course of the hearing nor was its author tendered as a witness to explain its content).
  

  Issues for consideration

  In this appeal the only issues before the Court are the Claimant’s contention that her employment came to an end in circumstances amounting to penalisation within the meaning of s.13(1)(d) of the Act and the adequacy of the redress ordered by the Rights Commissioner.
  
  In the course of the hearing of this appeal Counsel for the Claimant made extensive submissions to the effect that the objective grounds relied upon by the Respondent for the renewal of the Claimant’s fixed term contracts, namely, the provisions of s.13 of the Act of 2001, could not in law be accepted as having justified her continued employment for a fixed-term. The alleged breach of s.8 of the Act by the Respondent is not before the Court. However, by way of general observation, the Court should point out that there is clear authority in the jurisprudence of the Court of Justice of the European Union (formally the European Court of Justice) to support the proposition that a general provision of domestic law cannot, in and of itself, be relied upon to justify the successive use of fixed-term employment contracts within the meaning of Clause 5.1 of Directive 1999/70/EC. This was most recently made clear by the CJEU inCases C-378/07 to C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071, where it said at paragraph 103: -
  

  • “Nevertheless, as the Advocate General indicated at points 106 and 107 of her Opinion, it would be contrary to the objective pursued by that clause, which aims to prevent effectively the misuse of successive fixed-term employment contracts or relationships, if the renewal of such contracts or relationships were founded on the provisions of national legislation at issue in the main proceedings referred to in paragraph 101 of this judgment when, in reality, the needs covered by those provisions are not in fact of a temporary nature but are, on the contrary, 'fixed and permanent' (see, by analogy, Adeneler and Others, paragraph 88, and order in Vassilakis and Others, paragraph 110).

• 
  Section 13

• (1) An employer shall not penalise an employee—
  
  • (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,
    • (b) for having in good faith opposed by lawful means an act which is unlawful under this Act,
  • • (c) for giving in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or
  • • (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 under section 9(3).

The Act is silent on the allocation of the burden of proof in cases grounded on s.13(1)(d) of the Act. However since the presumed fact in issue in such cases is the motive or reason for the dismissal it is a matter which is peculiarly within the range of the Respondent’s capacity of proof. In these circumstances, where there is prima facie evidence to indicate that the subsection has been contravened, what is known in the law of evidence as the peculiar knowledge principle applies and it is for the Respondent to prove that the operative reason for the dismissal was not the avoidance of the Act (seeMahony v. Waterford, Limerick and Western Railway Co.[1900] 2 I. R. 273, per Palles CBand the more recent in both the dicta ofHenchy JinHanrahan v Merck Sharpe and Dohme[1988] ILRM 629and that ofHardiman JinRothwell v Motor Insurers Bureau of Ireland[2003] 1 IR 268).

Conclusion of the Court

The Respondent accepts that the non-renewal of the Claimant’s fixed-term contract on 31st October 2011 was a dismissal. It is clear to the Court that the Respondent did not initiate the decisions to dismiss the Claimant and that the real decision makers were the relevant Government Departments. The Respondent contends that it acted on the instructions of the Government Departments but that does not overcome the possibility that the underlying and operative reason for the dismissal was the avoidance of the Claimant’s fixed-term contract becoming one of indefinite duration by operation of s.9(3) of the Act. Nor can it relieve the Respondent of liability to the Claimant for any contravention of s.13 that may have occurred. It is noted that the Respondent accepts that, as the Claimant’s employer, it is liable for any such contravention.

No representative of either Department was tendered as a witness to explain the rationale for the decision to terminate the Claimant’s employment. Consequently, the explanations for the dismissal provided by the representatives of the Respondent were based on their understanding of what they were told by the Government Departments concerned. Since the explanations proffered were based on hearsay they are of limited probative value.

The Respondent says that the dismissal was for the purpose of facilitating the redeployment of staff from elsewhere in the Public Service. This was not given as the reason for the dismissal at the time of its occurrence. Moreover, it is clear that following the dismissal the Claimant was not replaced with redeployed staff and that she was, in fact, replaced with staff engaged through an employment agency. While the representatives of the Respondent appeared to be uncertain as to when directly employed replacement staff became available through redeployment, it appears clear that it was at least some six months later.

There are also two other facts of significance which point to the underlying motive for the dismissal being the avoidance s.9(3) of the Act. Firstly, on the expiry of the Claimant’s penultimate contract it was renewed for a period of eight weeks which brought her to within three weeks of the fourth anniversary of her initial employment, at which point, prima facie, she would have accrued an entitlement to a contract of indefinite duration. The pattern of her previous employment was that the renewals were for significantly longer periods. Secondly, the possibility of the Claimant’s role eventually being taken over by redeployed staff was never adverted to in the purported objective grounds relied upon for the renewals of her fixed-term employment. It is also significant that while the moratorium on recruitment in the Public Service came into effect on or about 29th March 2009 it did not operate as an impediment to the renewal of her employment subsequent to that date.

The timing of the dismissal, the continuing need for the work in which the Claimant was engaged, the facts that she was replaced by agency staff and the absence of any prior reference to an intention to take on redeployed staff, point inexorably to the conclusion that the operative reason for the dismissal was the avoidance of the Claimant’s fixed-term contract becoming one of indefinite duration by operation of law. In these circumstances the Court is satisfied, on the balance of probabilities, that the Claimant was dismissed in circumstances amounting to penalisation within the meaning of s.13(1)(d) of the Act.

Redress

In considering the question of redress the Court has had regard to the circumstances of the Claimant arising from her disability and the attendant difficulties that those circumstances will pose for her in seeking alternative employment. The Court is also influenced by the acknowledged suitability of the Claimant for the role which she fulfilled with the Respondent and her exemplary record in the employment of the Respondent. Moreover, there is no suggestion that the trust and confidence between the parties has been compromised by the events surrounding her dismissal.

In these circumstances the Court considers the appropriate redress to be an order directing the Respondent to reinstate the Claimant with effect from 1st November 2011 on the same terms and conditions of employment applicable to her immediately before her dismissal and to pay her arrears of wages accruing to her since the date of her dismissal up to the date on which the reinstatement takes effect.

Determination

The Claimant’s appeal is allowed. The Respondent’s cross-appeal is disallowed. The decision of the Rights Commissioner is varied in the terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
26th July 2012______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.