FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : SCOIL DARA - AND - LUCY MC CARTHY (REPRESENTED BY ASTI) DIVISION : Chairman: Mr Hayes Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing against a Rights Commissioner's Decision R-105881-FT-11/TB
BACKGROUND:
2. The worker referred her case to the Labour Court on the 23rd November, 2011. A Labour Court hearing took place on the "8th February, 2012. The following is the Court's determination:
DETERMINATION:
Lucy McCarthy, (the “Complainant”), represented by ASTI, has brought this appeal pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act 2003 (the “Act”) against Decision r-105881-ft-11 of the Rights Commissioner made on 3rdNovember, 2011, (the “Decision”).
The Rights Commissioner decided that a complaint made by the Complainant that she was, pursuant to Section 9(2) of the Act entitled, by operation of law, to an employment Contract of Indefinite Duration with Scoil Dara (the “Respondent”) was not well-founded.
Background:
The facts of the case are not in dispute. The Respondent employed the Complainant on a series of six continuous, annual fixed term contracts of employment commencing on 1 September 2005. The Complainant was employed to provide temporary replacement cover for a permanent teacher who was initially away from work on Sick/Maternity Leave 2005 – 2007, was subsequently away from work on Carer’s Leave 2007 – 2009 and finally was away from work on a Career Break 2009 – 2011.
The absent teacher was employed primarily to teach music in the school. The Complainant was employed to take up those teaching duties. Over the following six years of her employment the Complainant taught all of the music classes in the school. However the demand for music classes was not sufficient to provide the Complainant with a full complement of hours. To make up the balance of her hours the Complainant was initially additionally assigned 10 class periods of Religious Education (2005/06). In subsequent years, as the demand for music class periods fluctuated, the school assigned other class periods to the Complainant including Health Education (2008/2009 4 class periods), SPHE (2008/2009 2 class periods) and finally 3 class periods of Geography (2009/2010).
The permanent teacher returned to work at the start of the 2011 school year and the Complainant’s contract of employment was not renewed.
Position of the Parties:
Complainant’s Position
The Complainant submits that in September 2009 the Respondent had employed her on two or more continuous fixed-term contracts of employment the aggregate duration of which exceeded four years. She submits that the combined effect of Sections 9(2) and 9(3) of the Act is to convert that fixed-term contract of employment into a contract of indefinite duration.
She acknowledges that the provisions of Sections 9(2) and 9(3) would not apply if there were, pursuant to Section 9(4) of the Act objective grounds justifying the renewal of the fixed term contract of employment in September 2009.
She submits that this defence is not available to the Respondent. She submits that the teacher she was employed to replace was neither qualified to nor was ever assigned to teach geography. She submits that the inclusion of three class periods of geography in the 2009/2010 contract of employment broke the nexus between her and the teacher she was originally employed to replace. She submits that the requirement for a teacher of geography for those three class periods was a fixed and permanent need of the school. She submits that those classes were assigned to another fixed term worker after her employment terminated. She submits that this ongoing requirement for a geography teacher has the effect of depriving the Respondent of the defence set out in Section 9(4) of the Act as there was no longer any nexus between the work she was employed to do and the person she was originally employed to replace.
Respondent’s Position
The Respondent submits that the Complainant was employed to replace a teacher who was on approved leave from the school. Whilst the nature of the leave changed over time it was all provided for by statute or by policy decision of the Department of Education and Science that binds the employer in fact and in law. The Respondent submits that the Complainant was employed to replace the music teacher that was on leave. All of the music classes that would have been taken by that teacher were assigned to the Complainant. However the total number of music periods required varies from year to year. It ranged from 22 music periods per week in academic year 2008/2009 to 28 in 2006/2007. A full complement of hours consists of 34 class periods per week. In order to make up the balance of the hours the complainant was assigned additional class periods in other subjects that she was qualified to teach. In 2005/2006 the Complainant had sought teaching hours in geography, a subject she was qualified to teach to Junior Certificate level. The Respondent assigned 3 geography class periods to the complainant when the opportunity arose in academic year 2009/10. These classes arose out of a reallocation of duties amongst the existing cohort of teachers and were not additional or extra classes that could be assigned to the complainant when her contract came to an end. When the teacher that she was replacing returned to work the school reassigned those hours in such a way as to secure the best mix of hours and teachers consistent with the provisions of Section 22 of the Education Act 1998.
The Respondent submits that the Complainant was at all stages aware that she was employed to replace a teacher on approved leave. The Complainant received a letter from the school each year setting out the details of the contract on offer, the person she was replacing and the fixed term nature of the contract. She signed DES form S/CC that contains precise details of the person she was employed to replace and the reason for the vacancy. In this case in 2009 the form specifies that the fixed term contract she was accepting arose out of a requirement to replace a teacher who was on an approved “Career Break.”
The Respondent submits that it is entitled to rely on the provisions of Section 9(4) of the Act.
Findings of the Court
The Court notes that the details of the case are not in dispute.
Both parties agree that the permanent music teacher was between 2005 and 2011 away from work successively on sick leave, statutory maternity leave, carer’s leave or a career break. Both parties agree that this absence from work gave rise to a temporary vacancy for which the Complainant was employed on a series of fixed term contracts of employment pending the permanent teachers return to work. Both parties agreed that there was objective justification for each of the fixed term contracts of employment between 2005 and 2009. The Complainant submits that in 2009/2010 she ceased to be employed exclusively for that purpose when she was assigned 3 geography class periods that year. She submits that the objective justification for offering her a further fixed term contract of employment in 2009/2010 was no longer present as her work was no longer contingent on the music teacher’s absence from work. She submits that the geography teaching hours she received severed the nexus between the permanent music teacher’s career break and her employment in the school. Accordingly she submits she became entitled to a contract of indefinite duration pursuant to Sections 9(2) and 9(3) of the Act and the Respondents could no longer rely on the assertion of objective justification available to them under section 9(4).
The Court does not accept this view.
The Court finds that the Complainant was primarily employed to teach the music in the school consequent upon the temporary departure of the permanent music teacher on successive forms of statutory or approved leave. As the number of music classes varied from year to year and did not amount to a full time post it was reasonable for the Respondent to make up the balance of the contracted full time hours with other classes the Complainant was qualified to teach. The Court finds that the allocation of classes in those other subjects closely followed those of the permanent music teacher. However the minor variations in those allocations from year to year did not materially affect the primary purpose for which the Complainant was employed. In this regard the Court notes that the Complainant was assigned all of the music classes that arose in the school in each of the years during which she was employed. Accordingly the Court rejects the Complainant’s submission that the allocation of 3 class periods of geography to her in 2009/2010 materially changed the nature or purpose of her employment in the school and the Respondent is entitled to maintain that there was objective justification for the renewal of the Complainants contract in that year.
Determination
The Court rejects the appeal and upholds the Decision of the Rights Commissioner.
Signed on behalf of the Labour Court
Brendan Hayes
23rd March, 2012______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.