FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : TRINITY COLLEGE DUBLIN - AND - DR. RACHEL MOSS (REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Ms Ni Mhurchu |
1. Appeal of Rights Commissioner’s Decision r-107562-ft-11/JC.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 27th September, 2011. A Labour Court hearing took place on the 17th January, 2012. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Dr Rachel Moss (the Complainant) against the Decision of a Rights Commissioner which found that she had no ‘locus standi’ under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Rights Commissioner accordingly held she that had no jurisdiction to hear the Complainant’s claims.
At the Rights Commissioner hearing the Complainant complained that Trinity College (the Respondent) refused to concede her entitlements under Section 9 of the Act by continuing to treat the Complainant as a fixed-term employee and deny her ‘contract of indefinite duration’ status.
Background
The Complainant was employed by the Respondent on a number of successive fixed-term contracts as follows:
October 1996 - September 1997 Part-Time Lecturer
Department of History of Art
October 1997 - September 1998 Part-Time Lecturer
Department of History of Art
October 1998 - September 2000 Student – Research Studentship Department of History of Art
July 2001 - September 2001 Student – Research Studentship Department of History of Art
October 2002 - September 2003 Part-Time Lecturer
Department of History of Art
October 2003 - September 2006 Lecturer/Archivist
Irish Art Research Centre
On 6thSeptember 2006 the Complainant was appointed on a contract of indefinite duration as a Lecturer in the History of Art, effective from 1stOctober 2006. The contract contained the following clauses:-
- “Commencement Date and Term
This appointment is offered with effect on and from 1stOctober 2006 will be on an indefinite duration basis. This employment is supported by income which accrues to the Irish Art Research Centre from external sources.
The Lecturer's appointment will be terminable by three month’s notice from either side. Such notice to take effect on March 31st, June 30th or December 31st”
On 21stMarch2011 the Complainant was notified that her employment would cease and she would be declared redundant with effect from 30thJune 2011, due to lack of funding for the position held by her in the College.
Summary of The Complainant’s Case
Mr Mike Jennings, IFUT, on behalf of the Complainant, submitted to the Court that the contract of indefinite duration offered to the Complainant by the Respondent in 2006 was invalid and inconsistent with the terms of the Act, and that consequently the Complainant wasde factoon a fixed-term contract, contrary to Section 9 of the Act. He submitted that this act by the Respondent was misleading and ultimately led to her being made redundant. He sought to have that redundancy reversed.
Mr Jennings contended that the redundancy notice issued by the Respondent amounted to a unilateral repudiation of the Complainant’s permanent status thereby placing her on a fixed-term contract from that date, 21stMarch 2011, to expire on 30thJune 2011. He suggested that such actions by the Respondent effectively brought the Complainant within the definition of “a fixed-term employee” under Section 2 of the Act. He also stated that declaring the Complainant redundant was contrary to the ban on compulsory redundancies in the public service.
Mr Jennings contended that the Complainant’slocus standiderives from her actual circumstances -i.e.having her employmentterminated due to the occurrence of a specificevent - as opposedto the apparentspurious status of being on a contract of indefinite duration.
Mr Jennings contended that it is well established in law that (in the absence of valid objective grounds for further extending the contract) where a fixed-term employee qualifies for a contract of indefinite duration by virtue of Section 9(3) of the Act then it has the effect of rendering void any term of the contract (such as a conditionality regarding funding) which “purports to contravene subsections (1) or (2)". Therefore, the Complainant’s contract of indefinite duration dated 1stOctober 2006 should not have contained a contingent clause. By insisting on inserting it, he submitted that the Respondent denied the Complainant her legal rights.
Mr Jennings stated that almost all posts in the College are funded from ‘external’ sources; universities have always sought external funding and assistance.He said that some universities actually demand that an ability to raise external funds is a precondition for promotion.
Mr Jennings referred to a statement by the Minister for Education where he stated in answer to a Dáil question that“where a teacher is a holder of a Contract of Indefinite Duration their position is analogous to that of a permanent teacher in relation to security of employment”.
In support of his case Mr Jennings cited Labour Court Determination No.FTD1127County Dublin VECwhere the Labour Court ruled that contracts of employment which included a clause stating that the employment was"subject to programme funding,studentenrolment and registration with the Teaching Council"were incompatible with contracts of indefinite duration.
Therefore, he disputed the Respondent’sdesignation of the Complainant as being on a valid, genuine and meaningful contract of indefinite duration and contended that if it were to be so then the reference to the contingency regarding funding must go.
He also cited Labour Court Determination No.FTD0611HSE West vNinety Named Complainantswhere theCourtheld that"In addition,while the term"contract of indefinite duration"is not defined by the Act,the Court is of the view that the terms of such a contract must have the same meaning as those applicable to a comparable permanent employee".
Mr Jenningsreferred to the Department of EducationCircular Letter0093/2007 where the Department defines a “Contract of Indefinite Duration” as follows:
- “A person who has an expectation that, subject to the normal date of retirement in the employment,she or he will be retained in the employment and will not be dismissed without there being any good reason such as misconduct or unfitness fortheir position,or other compelling or unavoidable circumstances.Any dismissal shall be achieved by the application of the agreed termination arrangements for the particularsector or the application ofthe relevant statute,as the case may be."
Mr Jennings also cited the recent cases involvingAthlone Institute of TechnologyLabour Court Determinations No: FTD1117, FTD1118, FTD1119 and FTD1120 where the Institutesought to make a number of Lecturers redundant. The Labour Court held that the Lecturers were in fact on contracts of indefinite duration. He said that despite the fact that the Institute had disputed the validity of the contracts of indefinite duration it would not proceed with the redundancies. He contrasts the Institute’s position with the Respondent’s where the latter seeks to enforce a redundancy even where it itself has declared unequivocally that the Complainant is on a contract of indefinite duration.
Finally, Mr Jennings asked theCourt to determine that the contract of indefinite duration which the Respondent offered to the Complainant was invalid and inconsistent with the Act, and that therefore she has de facto been retained on a fixed-term contract, contrary to the Act. He sought to have the Complainant’s redundancy reversed.
Summary of The Respondent’s Case
Ms Maeve McElwee, IBEC, on behalf of the Respondent, refuted the claim that the College refused to concede to the Complainant’s entitlements under Section 9 of the Act. She said that the Complainant’s entitlement to a contract of indefinite duration under the legislation was formally acknowledged in the contract of employment issued to her in September 2006 in accordance with the provisions of the Act. She disputed the Union’s viewthat the Complainant is a fixed-term employee and accordingly held that the claim under the 2003 Act was inappropriate.
Ms McElwee told the Court that in December 2010 the Complainant was advised that the continuation of her employment was in jeopardy due to the deteriorating funding situation. The Complainant was advised that she would be assisted in everyway to explore alternative work opportunities in the College. On 23rdDecember 2010 it was confirmed to her that a further pledge from the Foundation meant that her salary could be continued to the end of June 2011. Then on 11th March 2011the Head of School met with her formally to confirm that the funding situation necessitated the ceasing of her employment with the College on 30th June 2011. The formal notice letter to this effect was subsequently issued to the Complainant on 21st March 2011.
The letter states as follows:
- “I refer to our meeting on Friday 11th March 2011.As advised, your post of Lecturer in the History of Art based in Irish Art Research Centre (TRIARC) is funded from sources external to the University. The continuation of your post is contingent therefore upon the continued availability of this funding. As advised at our meeting the funding situation necessitates the ceasing of your employment with the College on 30thJune 2011, in accordance with the terms of your contract.
I am advised that as you have the required service under the redundancy payments legislation you are entitled to receive a statutory redundancy payment of €…….In accordance with the provisions of the Redundancy Payments Act 1967-2003 please find attached the formal notification of redundancy form (i.e. Form RP50). Section B of the form will be completed on the date of termination, at which time you will receive a cheque in the amount of your statutory redundancy entitlement. The Staff Office will make contact with you nearer the time to make arrangements for you to collect this payment.
The Staff Office will assist you in every way to explore alternative work opportunities in the College. I would encourage you to pursue this in the first instance by contacting ………..
I wish to express my sincere appreciation to you for your contribution to TRIARC and offer my best wishes for your future career.”
In support of her case Ms McElwee citedNUI Galway v DrDonnchadh PhelanLabour Court Determination No:FTD1016 where the Labour Court found that DrPhelan was not a fixed-term employee at the time he made his complaint to the Rights Commissioner and so had no ‘locus standito maintain his complaints. Similarly, in the case ofUniversity College Cork and Dr IngeNieuwstraten(represented byIFUT), the Court found that Dr Nieuwstraten had nolocus standito maintain the complaint as she was not a fixed-term worker at the time she made her complaint to the Rights Commissioner.
Ms McElwee also citedUniversity College Cork vTomásO'RiordanLabour Court Determination No:FTD1116 where the Labour Court concluded that, although the Complainant became entitled to a contract of indefinite duration, due to the lack of funding, the project came to an end and in those circumstances the University was entitled to make the Complainant redundant. She stated that as in theTomás O'Riordancase if the funding had continued the Complainant’s role would have continued until the funding subsequently ran out.
Ms McElwee contendedthat the Complainantceased to be a fixed-term employee on the award of a contract of indefinite duration in 2006.
She held the view that the Complainant’s redundancy was wholly legitimate, compliant with the terms of her employment contract and in accordance with College norms.
Findings of the Court
The protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period of fixed-term employment. Hence, the first point for consideration is whether or not the Complainant was a fixed-term employee within the meaning of Section 2 of the Act in the six-month period ending on the date on which her complaint was referred to the Rights Commissioner. If she was not a fixed-term employee during that period then she does not have ‘locus standi’to maintain her complaint and the Court has no jurisdiction to entertain her claim.
The Court’s jurisdiction is derived from the statute and consequently this is a question which the Court must consider.
Following the hearing Mr Jennings sought to address the issue of the claim being “in time” under the Act. He held that the claim relates to the change made by the Respondent on 21stMarch 2011 to the contract of indefinite duration supplied to the Complainant in September 2006, whereby it changed it to a contract “contingent” on funding and the Respondent used this “contingency” to justify the Complainant’s termination of employment.
Mr Jennings submitted that the Respondent held the belief that the Complainant’s continued employment was conditional on a contingency which had either always existed since the issue of the contract of indefinite duration in 2006 or was conditional on a contingency which was lawfully and logically justified in March 2011 by reference to the term of that contract. Both positions he submitted were in conflict with Section 9(2) of the Act.
The Respondent stated that the contract entered into by both parties on 6thSeptember 2006 was a contract of indefinite duration to take effect from 1stOctober 2006. It stated that that contract continued until her employment was terminated by reason of redundancy on 30thJune 2011.
The Complainant told the Court that she considered herself to be on a contract of indefinite duration from the effective date of that contract (1stOctober 2006) until the Respondent decided to inform her by letter dated 21stMarch 2011 that her employment was about to cease at the end of June 2011. It was at that point that she believed that the contract dated 6th September 2006 was a spurious one and was not in fact a contract of indefinite duration at all.
In order to have ‘locus standi’ under the Act the Complainant must be a fixed-term employee. Section 2 of the Act provides the following definition: -
- “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event ….”
The contract entered into on 6thSeptember 2006 expressly states that it “will be on an indefinite duration basis”, it does not have an expiry date and does not state that the end of the contract will be determined by an objective condition. It does include a statement informing the Complainant that her employment is supported by income which accrues to the Irish Art Research Centre from external sources.
It is the Complainant’s contention that the contract issued in September 2006 was in fact a “spurious” contract since it contained an element which rendered it invalid and instead gave it the character of a Fixed-Term Contract, whereby her continued employment was conditional on a (funding) contingency. This it is submitted was evidenced by the Respondent’s letter to the Complainant dated 21stMarch 2011 which changed the contract from one of indefinite duration to a contract “contingent” on funding and the Respondent used this “contingency” to justify her termination of employment. Mr Jennings submitted that the Complainant’s employment was terminated on the sole criterion that her continued employment was conditional on the continuation of specific funding.
It is the Respondent’s contention that while the employment was supported by external funding its duration was unknown and potentially could have continued for many more years or alternativelyin the event of the funding ceasing alternative work opportunities could be found in the College to secure the continuation of her employment.
InAthlone Institute of Technology v Mr David HollandFTD1120 this Court held that for a contract of employment to be a fixed-term contract, the completion of the task or the occurrence of the event must be foreseeable at the time the contract is concluded otherwise every contract of employment could be designated as fixed-term:-
- “It seems clear from the definition at s.2 of the Act that the defining feature of a fixed-term contract is that the tenure which it creates is finite and that it will be discharged by performance at some point in the future (subject to the right of either party to terminate it on notice). It follows that in the case of a fixed-term contract determinable on the completion of a task or the occurrence of an event, the completion of the task or the occurrence of the event must be foreseeable at the time the contract is concluded. Were it otherwise then every contract of employment could be designated as fixed-term since all employment relationships can be lawfully terminated in a variety of circumstances which could constitute the occurrence of an event including where work runs out and a situation of redundancy arises.
In the instant case neither party contended thatthe completion of the task or the occurrence of the event was foreseeable at the time the contract was entered into with the Complainant in September 2006. Indeed MrJennings told the Court that almost all posts in the College are funded from ‘external’ sources. The Court is satisfied that the 6thSeptember 2006 contract did not contain a contingency clause such that its termination was foreseeable. The contract is not expressly determinable either on the occurrence of a specific event or on any specified period(s) of time.
The language used in the 2006 contract refers quite explicitly to it being a contract of indefinite duration and it states that the employment was supported by income which accrues to the Irish Art Research Centre from external sources. It does not say that it was subject to termination on the expiry of a fixed amount of funding or on specific funding commitments from any one source. As Mr Jennings stated it is similar to almost all posts in the College as it was supported by funding from ‘external sources’.There is no doubt that the Complainant’s employment from 2006 until 2011 has been continuous and was not subject to renewal.
For all of the reasons set out herein the Court is satisfied that the Complainant ceased to be a fixed-term employee on 30thSeptember 2006. Her status as an employee on a contract of indefinite duration commenced on 1stOctober 2006 and was confirmed to her by her employer by letter of appointment dated 6thSeptember 2006. The Court does not accepts the Complainant’s assertion that the letter dated 21stMarch 2011 rescinds that position and places her on a new contract, one of a fixed-term nature for a period of just over three months. While not making any finding on any matters pertaining to the redundancy itself the Court is satisfied that the letter dated 21stMarch 2011 can be viewed as complying with the Respondent’s contractual and legal obligations to notify the Complainant of its intention to make her redundant.
Hogan J. inHolland v Athlone Institute of Technology [2012] 23 E.L.R. 1referred to a finding by the Labour Court that Mr Holland and his colleagues were“not fixed-term contracts within the meaning of the Act and that they were, by their own terms, contracts for indefinite duration”. The Labour Court found that in the alternative that the fixed term nature of the contracts contraveneds.9 (2)so that the contract thus became contracts of indefinite duration by operation of law under s.9 (3). Hogan J held that
- “The real point here, however, is that a finding of this nature does not place such an employee in a superior position to that of an ordinary employee whose status as the holder of a contract of indefinite duration was never in doubt.”
InMcGrath v Athlone Institute of Technology (2011)the applicant claimed he was a permanent employee pursuant to the 2003 Act and, although the High Court accepted that it could grant injunctive relief in such circumstances, it refused as in law an employer can dismiss for any reason or for none on giving reasonable notice, even in the case of a permanent employee.
The Court is satisfied that the Respondent did not contravene Section 9 of the Act by placing her on notification of redundancy in the letter dated 21stMarch 2011. The Court does not accept the Complainant’s contention that the Respondent purported to renew her contract of employment for a fixed-term after she had accrued an entitlement to a contract of indefinite duration pursuant to Section 9(3) of the Act.
It follows that the contract issued in September 2006 was for an indefinite duration and was not for a fixed-term within the statutory meaning. In consequence, the Complainant ceased to be fixed-term employee on the conclusion of 30thSeptember 2006. In that event she does not havelocus standito maintain the within claim and in claiming a contract of indefinite duration under the Act she was seeking something that she already had.
Determination
In the circumstances, the Court upholds the Rights Commissioner’s Decision.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
12th March, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.