FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : ST ATTRACTA'S COMMUNITY SCHOOL - AND - GRAINNE BREHONY (REPRESENTED BY ASTI) DIVISION : Chairman: Mr Duffy Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. Appeal of Rights Commissioner's Decision r-103884-ft-11/SR.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court on the 26th September, 2011. A Labour Court hearing took place on the 24th April, 2012. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Ms Grainne Brehony (hereafter the Claimant) against a decision of Rights Commissioner in her complaint against her former employer, the Board of Management of St. Attracta's Community School (hereafter the Respondent) under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act)
In her complaint to the Rights Commissioner the Claimant alleged contraventions of sections 6, 8, 9, 10 and 13 of the Act. The Rights Commissioner found that none of these provisions had not been contravened in relation to the Claimant. In this appeal the Claimant confined her complaints to alleged contraventions of sections 6 and 8 of the Act.
The Facts
The material facts giving rise to this dispute are not in contention and can be summarised as follows: -
The Claimant was employed by the Respondent as a Guidance Counsellor on a series of fixed-term contracts between 1st September 2006 and 31st August 2010. The stated purpose of her employment was to provide cover for another teacher who was on an approved scheme of absence. The Claimant had four such contracts each commencing on 1st September and ending on the 31st August on the following year. Each of these contracts was accompanied by a statement in writing which recorded that the purpose of the contract was to provide cover as aforesaid. The Teacher for whom the Claimant was providing cover retired during the school year 2009 - 2010. On the expiry of the Claimant's fixed-term contract on 31st August 2010 it was not renewed and her employment with the Respondent came to an end. At that stage the Respondent school had 2.92 teachers over the quota allowed by the Department of Education and Skills.
The Respondent sought applications from existing permanent teachers within the school to undertake the role previously undertaken by the Claimant. A permanent teacher was selected and trained for this role.
The Claimant's Case
The essence of the Claimants case is that she was treated less favourably that a permanent teacher in that such a teacher would not have had her appointment terminated and her role transferred to another teacher. This, she contends, amounted to a contravention of s.6 of the Act. In relation to s.8 of the Act, the Claimant contends that the fact that the school was over quota was never given a an objective ground justifying the renewal of her final fixed-term contract and the failure to appoint her on a contract of indefinite duration.
The Respondent's Case
The Respondent denies that it contravened the Act in the manner alleged or at all. The Respondent pointed out that the Claimant's fixed-term employment did not extend beyond four years and so she did not accrue an entitlement of a contract of indefinite duration under the Act. It was submitted on its behalf that the Claimant's employment came to an end because the school was over quota in the number of teachers employed and that the Department of Education and Skills would not sanction the appointment of the Claimant on a permanent contract. It further submitted that had such sanction been forthcoming the Claimant could not have been automatically appointed and that a competition for the post would have been required.
In relation to the complaint under s.8 of the Act the Respondent contends that each contract issued to the Claimant was accompanied by a statement in righting setting out the objective grounds relied upon the contract.
Conclusion
The Court accepts that the Claimant had an expectation that when teacher for whom she was providing cover retired she would have been continued in her position. Had her employment been extended beyond 31st August 2010 she would, by the combined effect of section 9(2) and 9(3) of the Act, have acquired a contract of indefinite duration by operation of law. However, her employment came to an end on the completion of her fourth year of continuos fixed-term employment and so an entitlement to a contract of indefinite duration did not arise.
Section 6 of the Act provides an fixed-term employee with an entitlement to the same conditions of employment as a comparable permanent employee. However, as was pointed out by the High Court inMinister for Finance v McArdle[2007] 18 ELR 165, this entitlement to equality of treatment does not extend to conditions as to tenure. (see also the decision to like effect of the Court of Appeal for England and Wales inDepartment of Work and Pensions v Webley[2005] IRLR 288). Consequently, the Claimant cannot rely on s.6 of the Act to advance a claim that she should have been continued in employment after the retirement of the Teacher for whom she was providing cover because a comparable permanent employee would have been continued in employment in similar circumstances. The difference in treatment of which the Claimant complains arose from the difference in tenure attaching to her employment as a fixed-term employee and that inherent in the contract of a permanent comparator. It is well settled on the authorities referred to that such a difference in treatment is not precluded by s.6 of the Act.
In relation to the complaint under s.8 of the Act, it is clear that at all material times the objective grounds relied upon by the Respondent to justify the renewal of the Claimant's employment for a fixed-terms and the failure to provide her with a contract of indefinite duration was the fact that she was employed to cover for a Teacher who was on temporary leave of absence. This was fully and comprehensively recited in written statements accompanying each renewal of her fixed-term contracts. Consequently there was no contravention of s.8 of eh Act.
Determination
For all of the reasons set out above the Court must conclude that the Respondent did not contravene the Act in the manner alleged. In these circumstances the the Claimant's appeal cannot succeed and the decision of the Rights Commissioner must be affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
14th May, 2012______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.