FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : UCD (REPRESENTED BY ARTHUR COX) - AND - DR. MICHAEL O' MAHONY (REPRESENTED BY IFUT) DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Mr Shanahan |
1. Appeal of Rights Commissioner's Decision r-106183-ft-11-JT.
BACKGROUND:
2. The Employer appealed the Rights Commissioner's Decision to the Labour Court. Labour Court hearings took place on the 13th January, 2012, and the 6th September, 2012. The following is the Labour Court's Decision:-
DETERMINATION:
Introduction
This is an appeal by University College Dublin against the decision of a Rights Commissioner in a claim by Dr Michael O’Mahoney against the University for a declaration that his fixed-term contract of employment became one of indefinite duration by operation of Protection of Employees (Fixed-TermWork) Act 2003(the Act). The Rights Commissioner found that the University had contravened s.9(2) of the Act in relation to the renewal of Dr O’Mahony’s fixed-term employment contract in consequence of which he attained a contract of indefinite duration by operation of s.9(3) of the Act.
In this Determination the parties are referred to as they were at first instance. Hence, University College Dublin, which is the appellant in this case, is referred to as the Respondent. Dr O’Mahony is referred to as the Claimant.
Appearances
The Claimant was represented by Mr Mike Jennings, General Secretary of the Irish Federation of University Teachers. The Respondent was represented by Mr S�amus Given of Arthur Cox, Solicitors, Earlsfort Centre, Earlsfort Terrace, Dublin 2.
The first hearing of the appeal was held on 13thJanuary 2012. Following that hearing the Court requested further information from the parties. That information was provided and gave rise to further correspondence. At the request of the Solicitors for the Respondent a further hearing was held on 6thSeptember 2012.
Background
At the time the appeal opened the Claimant was employed by the Respondent pursuant to a contract of employment in writing which commenced on 1st July 2010 and was expressed on its face to end on 30th June 2012. In that contract the Claimant's job title was given as “UCD Post Doctoral Research Fellow Level 2”. The contract contained the following statement setting out the grounds upon which the contract was offered for a fixed-term rather than for an indefinite duration: -
- “Your employment with the university will commence on 1stJuly 2010 and will terminate on 30thJune 2012. This is a fixed-term training and development role. This will allow for progression over many years of large numbers of Post-doctoral trainees through the UCD Post-doctoral training programme, providing inter-generational training in the methods and practice of research and scholarship. The objective grounds for the issue of this fixed-term contract rather than a permanent contract is in keeping with the foregoing objectives of the university. It is intended that you will be assigned to the ‘Automated Recommender Systems’ project and it is intended that the project will end on 30thJune 2012. Should that project end prior to that date, UCD reserves the right to terminate your employment with UCD by giving not less than one months’ notice in writing.
Arising from the completion of this further fixed-term contract you will have accumulated 7 years and 4 months of Post-doctoral experience with UCD, and you will be deemed to have completed the UCD Post-Doctoral Fellow training period.”
The Claimant resumed employment with the Respondent pursuant to a fixed-term contract of employment commencing on 1stFebruary 2005 and ending on 31thMarch 2006 (the first contract). In this contract the job title was given as “Research Fellow”. The purpose of this contract was specified on its face as follows: -
- “This is a fixed-term contract of employment solely and exclusively for the purpose of undertaking duties associated with the grant code indicated in Section 3 of the contract. The contract is only valid if all six signature blocks are completed and the contract remains valid only in the event that the continued funding is provided by the funding agency”.
- “Funding Source: Grant Code Information 1. 3600-R8222”
This related to a research project externally funded by Enterprise Ireland. The first contract was renewed on its expiry for a further fixed-term from 1stApril 2006 until 30thJune 2006 (the second contract). The second contract was in identical terms to the first contract.
Following the expiry of the second contract on 30thJune 2006 there appears to be a gap in the Claimant’s employment until 17thJuly 2006 when he was again engaged on foot of a fixed-term contract to carry out further research on an externally funded project. That contract commenced on 17thJuly 2006 and was to run until 30thSeptember 2007 (the third contract). The purpose of this contract was expressed in identical terms to that specified in the first and second contracts. While the commencement date of this third contract, shown on its face, was 17thJuly 2006, it was signed and dated by the Claimant on 16thJune 2006, some two weeks before the second contract expired. This is a point of some significance in considering if the continuity of the Claimant’s employment was broken between the second and the third contract.
On the expiry of this third contract the Claimant’s employment was renewed for a further fixed-term commencing on 1stOctober 2007 and ending on 31stMarch 2008 (the forth contract). Again, the purpose of this contract was expressed in identical terms to those of the earlier contracts.
On the expiry of the fourth contract the Claimant’s employment was immediately renewed on a contract that commenced on 1stApril 2008 for six months duration to 30thSeptember 2008 (the fifth contract). This contract appears to have been an extension of the fourth contract and was in identical terms to each of the earlier contracts.
The penultimate and sixth contract under which the Claimant was employed commenced on 1stOctober 2008 for a 21 month period ending on 30thJune 2010. The purpose and objective grounds relied upon in the case of this contract were materially different to those specified in each of the earlier contracts. It provided as follows: -
- “The objective grounds for issuing a fixed-term contract and not a contract of indefinite duration is to ensure the provision of specialist expertise in sensor technology and the transfer of knowledge in this subject, supporting the development of the clarity deliverables. The fixed-term nature of this contract underpins the fulfilment of a legitimate objective of the university, specifically to develop internal capability in the field of personalisation technology and developing this research activity using a skills transfer approach.”
By e-mail dated 29thNovember 2010 the General Secretary of IFUT, the Claimant’s Trade Union, wrote to the Director of Employee Relations, Equality and Diversity of the Respondent asserting that the Claimant became entitled to a contract of indefinite duration by the combined effect of ss.9(2) and 9(3) of the Act. The Respondent replied by e-mail dated 24thFebruary 2011 rejecting the Union’s claim. The matter was then referred to a Rights Commissioner pursuant to s.14 of the Act. In a decision issued on 23rdAugust 2011 the Rights Commissioner upheld the Claimant’s complaint. In his decision the Rights Commissioner held that the Claimant became entitled to a contract of indefinite duration with effect from 1stFebruary 2009.
By notice dated 6thSeptember 2011 the Respondent herein appealed to the Court. While the Claimant’s seventh contract was expressed to expire on 30thJune 2012, the Court was told that he has since been appointed to a position of College Lecturer with the Respondent on a five-year fixed-term contract following an open competition for that post.
Position of the Parties
The Respondent
The Respondent contends that the Claimant’s continuous period of employment, for the purposes of s.9 of the Act, commenced on 17thJuly 2006. It contends that the break in his employment history between the expiry of his second contract on 30thJune 2006 and the commencement of his third contract on 17thJuly 2006 broke the continuity of his employment. Based on that contention the Respondent submits that anyprima facieentitlement that the Claimant may have accrued to a contract of indefinite duration would have crystalised on 16thJuly 2010. Consequently, it was submitted, the validity of within claim should be judged by reference to the objective grounds relied upon in renewing his fixed-term employment on 1stJuly 2010 for a two-year period.
The Respondent contends that the Claimant was, at all material times, engaged in research on funded projects as part of a post-doctoral training and development facility provided by the Respondent. That, according to the Respondent, is abundantly clear from the terms of the seventh contract the relevant provisions of which are recited earlier in this Determination. The Court was told that such externally funded research posts are made available to successive cohorts of post-doctoral students for the purpose of providing them with opportunities to develop their research skills. It was submitted that the seventh contract which took effect from 1stJuly 2010 fully and accurately describes the nature of the post occupied by the Claimant and provides the objective grounds justifying his continued employment for a fixed-term beyond the period normally permitted by s.9(2) of the Act.
The Respondent contends that the use of fixed-term contracts for such posts allows for a continuing throughput of graduates in these posts and that the practice serves a legitimate need of the Respondent and is an appropriate means of meeting that need. In advancing its submissions on that point the Respondent likened the role in which the Claimant has been engaged since 2005 with an internship. It was submitted that, as recited in his seventh contract of employment, the Claimant will have accrued seven years and four months post-doctoral experience and that he would then be well equipped to take up employment in his chosen field outside of the University.
The Court was told that the role occupied by the Claimant was in line with a research career framework put in place by the Respondent. This career framework was developed having regard to a report prepared by Forfás and the Advisory Council for Science, Technology and Innovation on the development of career opportunities for PhDs outside of academia. A copy of this report, which was published in October 2008, was opened to the Court.
The Claimant
It was submitted on behalf of the Claimant that the role he has fulfilled with the Respondent since 2005 involves normal research and has nothing to do with training or development. It was submitted that the Claimant is neither a student nor a trainee and that there is no justification for treating him as such. The Claimant contends that the objective grounds relied upon by the Respondent to justify the initial five fixed-term contracts under which the Claimant was employed related to the source of funding for the projects on which he was engaged. According to the Claimant the Respondent did not seek to contend that his employment was related to training or development until July 2010, at which point he had been employed for over five years in mainstream research projects.
The Claimant contends that there is no material difference between the work which he performs and that which is undertaken within the University by other researchers engaged on contracts of indefinite duration. The essence of the Claimant's case is that the objective grounds relied upon by the Respondent to justify the continued renewal of his fixed-term contracts do not accord with the reality of his employment or the role which he fulfils.
The Law
Statutory provisions and relevant authorities
The relevant statutory provisions are to be found in ss. 7, 8 and 9 of the Act. The Act was enacted so as to transpose into domestic law the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the then European Communities. Consequently the provisions of the Act must be interpreted and applied so as to achieve the objective pursued by the Framework Agreement.
Turning first to the Framework Agreement, it is clear from Clause 1 thereof that its purpose is twofold. Firstly it is to improve the quality of fixed-term work by applying the principle of equal treatment to fixed-term workers. Secondly it is intended to provide a framework for the prevention of abuse arising from the successive use of fixed-term employment contracts.
Section 9(2) of the Act, which is relevant for present purposes, provides:
- (2)Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed four years.
Section 9(4) provides that subs. (1), (2) and (3) of s.9 are not applicable to the renewal of a fixed-term contract where there are objective grounds justifying such a renewal.
Section 7 (1) of the Act deals with what constitutes objective grounds for this purpose and provides:
- (1)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.
Subsection (3) of s.9 of the Act is of particular significance in the instant case. It provides:
- (3)Where any term of a fixed term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
InMinister for Finance v Una McArdle[2007] 18 ELR 165 Laffoy J quoted with approval the following passage from this Court’s Determination in the case in which the effect s.9(3) was considered:
- “That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio , the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms as to pensionability and termination, which, as already observed, would have had to be aligned with those of a comparable permanent employee in accordance with section."
Section 9(4) of the Act allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene subsections (1) or (2)where there are objective grounds for so doing. This provision allows for a derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the subsection (see the dictum of the CJEU to that effect in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430, (at par 39).
As previously observed the domestic statutory provisions must be construed as to comport with the law of the European Union from which they are derived. In that regard the jurisprudence of the CJEU (formally the ECJ) provides definitive guidance on how the legal principles encapsulated in those statutory provisions are to be applied.
Continuous / Successive Contracts
In the course of the hearing of this appeal reliance was placed by both parties on the judgment of the CJEU in case C-212/04Adeneler and Ors. V Ellinikos Organismos GalaktosIRLR 716 as an authority on what constitutes objective grounds justifying the successive renewal of fixed-term contracts. While the case is undoubtedly a leading authority on that question it also provides helpful, and in this case relevant, guidance on the circumstances in which periods of employment are to be regarded as successive for the purposes of Clause 5 of the Framework Agreement.
In that case the Respondent in the main proceedings (ELOG) was the Greek Milk Marketing Board. It was designated as part of the Greek public service. There were 18 Claimants in the main proceedings each of whom was employed by ELOG on a succession of fixed-term contracts. Each of these contracts was separated by a period of time ranging from 22 days to 10 months. The Claimants brought proceedings before a Greek Court claiming an entitlement to contracts of indefinite duration pursuant to Clause 5 of the Framework Agreement. Greek law provided that contracts that were separated by more than 20 days could not be regarded as successive. The Greek Court stayed the proceedings and referred a number of questions to the CJEU pursuant to Article 234 EC (now Article 267 TFEU). They included a question on the compatibility with the Framework Agreement of the Greek provision that limited the notion of successive contracts to those that are separated by 20 days or less. In holding that the provision in question did offend against the object pursued by the Directive Advocate General Kokott, at par 67 of her opinion, had this to say: -
- “Defining the concept of succession so restrictively that it cannot even apply to a substantial proportion of the cases of successive fixed-term employment relationships and so that the definition chosen is without any effect is incompatible with that objective. In so doing, the cases concerned would effectively fall outside the scope of the national measures affording protection against abuse of fixed-term employment relationships, and the protection afforded to workers - the objective pursued by the directive - could not take effect.”
- "As to the remainder, clause 5(2) in principle leaves it to the Member States to determine the conditions under which fixed-term employment contracts or relationships are to be regarded, first, as successive and, second, as contracts or relationships of indefinite duration.
While such a reference back to national authorities for the purpose of establishing the specific rules for application of the terms 'successive' and 'of indefinite duration' within the meaning of the Framework Agreement may be explained by the concern to preserve the diversity of the relevant national rules, it is, however, to be remembered that the margin of appreciation thereby left for the Member States is not unlimited, because it cannot in any event go so far as to compromise the objective or the practical effect of the Framework Agreement (see paragraph 68 of this judgment). In particular, this discretion must not be exercised by national authorities in such a way as to lead to a situation liable to give rise to abuse and thus to thwart that objective.
Such an interpretation is especially vital in the case of a key concept, like the concept of 'successive' employment relationships, which is decisive for definition of the very scope of the national provisions intended to implement the Framework Agreement.
It is clear that a national provision under which only fixed-term contracts that are separated by a period of time shorter than or equal to 20 working days are regarded as successive must be considered to be such as to compromise the object, the aim and the practical effect of the Framework Agreement."
Subsection (5) of s.9 of the Act imports the provisions of the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2001 for the purpose of determining if service is to be regarded as continuous. This Schedule provides that the all service shall be deemed to be continuous unless it is broken by dismissal or by the employee voluntarily leaving his or her employment. The Schedule goes on to provide that continuity of employment is not broken by, inter alia, by a lay-off (par 3of the Schedule) or by the dismissal of the employee by his employer followed by the immediate re-employment of the employee (par 6 of the Schedule). These provisions must be interpreted in light of the wording and purpose of the Directive as interpreted by the CJEU.
Objective Reasons
Where there are objective grounds for so doing s.9(4) of the Act a renders lawful a renewal of a fixed-term contract beyond the period normally permitted by s.9(1) or 9(2) of the Act. Section 7 of the Act, the terms of which are set out earlier in this determination, defines what is meant by objective grounds in that context.
There is a line of authorities in the jurisprudence of the CJEU dealing with how the notion of objective grounds should be applied. InAdenelerthe Court first considered the underlying rationale for the Framework Agreement. It said, at par 61 of its judgment:
- "The Framework Agreement proceeds on the premise that employment contracts of indefinite duration are the general form of employment relationship, while recognising that fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (see paragraphs 6 and 8 of the general considerations in the Framework Agreement)."
The Court then continued at par 62:
- "Consequently, the benefit of stable employment is viewed as a major element in the protection of workers (see Mangold, paragraph 64), whereas it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers (see the second paragraph of the preamble to the Framework Agreement and paragraph 8 of the general considerations)."
The Court went on to hold, at pars 69-70: -
- “[T]he concept of 'objective reasons', within the meaning of clause 5(1)(a) 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 employment 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 pursuit of a legitimate social-policy objective of a Member State.”
- “....that 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.”
Finally, the provision of s.8 of the Act should be considered. This provides: -
- “(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
arriving at a specific date,
completing a specific task, or
the occurrence of a specific event.
(2) 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.
(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.
(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—
(a)that an employer omitted to provide a written statement, or
(b) that a written statement is evasive or equivocal,
the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.”
InDr Mohammad Khan v HSE North Eastern Region[2006] ELR 313, this Court said the following in relation to the effect of this section of the Act: -
- "It seems to the Court that the purpose of Section 8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed. On a reading of the Section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under Section 9(4). Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with Section 8(2), it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary."
Conclusion
Period of continuous / successive employment
The first issue that falls for consideration concerns the period over which the Claimant has been in the continuous fixed-term employment of the Respondent. The answer to that question will determine when the Claimant accrued aprima facieentitlement to a contract of indefinite duration. It will also determine the question of whether it is the final or the penultimate contract that offended against s.9(2) of the Act unless saved by s. 9(4) of the Act. This question is of considerable significance having regard to the material differences in the objective grounds relied upon to justify each of these contracts.
The Respondent contends that there was a break in the Claimant’s employment between 30thJune 2006 and 17thJuly 2006. On that basis the Respondent contends that continuity of the Claimant’s employment from 2005 was broken and that his period of continuous service, for the purposes of his present claim, runs from 17thJuly 2006. If that contention is correct it is the seventh contract that is material for the purposes of subsections (2), (3) and (4) of s.9 of the Act. The Claimant contends that his employment with the Respondent is continuous from 1stFebruary 2005. In the event that he is correct on that point it is the sixth contract that must be considered in applying the aforementioned subsections of s.9 of the Act.
It will be noted that subs. (1) and (2) of s.9 of the Act refer to contracts which are continuous whereas Clause 5 of the Framework Agreement applies to contracts which are successive. There is a significant qualitative difference between the concept of a continuous employment relationship and one which is successive. The former connotes an employment relationship without interruption whereas the latter indicates a series of relationships which follow each other but can be separated in time. It will be noted that clause 5.2(a) of the Framework Agreement permits Member States to define,inter alia,the conditions under which fixed-term contracts will be regarded as successive. This provision, however, could hardly authorise a Member State to define the concept of successive employment as meaning something which it qualitatively different and narrower in scope than that term would normally bear.
While the expression “successive” is not defined in the Framework Agreement, s9(5) of the Act provides that the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2001 applies for the purpose of determining if employment is continuous. The first Schedule of the 1973 Act provides that all service in employment is deemed to be continuous unless it is broken by dismissal or resignation. For the purpose of that provision a break in employment occasioned by,inter alia, a lay-off, does not break continuity nor does a dismissal followed by immediate reinstatement.
In this case the gap between the Claimant’s second contract, which ended on 30thJune 2006, and the commencement of his third contract was 16 days. The decision inAdenelermakes it clear that a gap of 20 days between successive contracts could not render the protection of the Framework Agreement inapplicable. In light of that decision it is clear that the Court could not hold that a break of 16 days could have the effect of breaking the continuity of the Claimant’s employment.
There is, however, a further consideration in this case. The contract that commenced on 17thJuly 2006 was signed by the Claimant and on behalf of the Respondent on 16thJune 2006, some two weeks before the earlier contract concluded. Thus, at the time the second contract expired on 30thJune 2006, the parties were contractually committed to the resumption of the employment on 17thJuly 2006. In these circumstances the gap was either a lay-off or an authorised absence and was not a dismissal. Consequently the Claimant’s employment is continuous from 1stFebruary 2005.
Objective reasons
The first reference point in considering if grounds relied upon as justifying the renewal of a fixed-term contract constitute objective reasons, within the statutory meaning, is s.7 of the Act. But the Court must interpret and apply that provision in light of the principles enunciated by the CJEU inAdenelerandAlanso. Those principles, which can be distilled from both judgments, and from the provisions of the Act, can be adumbrated as follows: -
- 1. The Framework Agreement recognises that the benefit of stable employment is a major element in the protection of workers and it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers;2. The successive use of fixed-term contracts is a potential source of abuse to the disadvantage of workers;
- 3. The Framework Agreement lays down a minimum number of protective provisions designed to prevent the status of employees from being insecure. One of the measures intended to achieve that aim is the requirement that there be objective reasons which justify the renewal of fixed-term employment relationships;4. The concept of objective reasons must be understood as referring to precise and concrete circumstances characterising a given activity, which are capable in that particular context of justifying the use of successive fixed-term employment contracts;5. These circumstances may result, in particular, from: -
- (a) The specific nature of the tasks performed and;
(b) The inherent characteristics of those tasks or;
(c) The pursuit of a social policy objective of the Member State
6. The justification relied upon must be based on objective transparent criteria which in fact respond to a genuine need, are appropriate for achieving the objective pursued and are necessary for that purpose.
7. Recourse to fixed-term employment contracts solely on the basis of a general provision, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose. - (a) The specific nature of the tasks performed and;
In considering the type of activities for which the conclusion of fixed-terms contracts may be appropriate, the CJEU inAdenelerand again in C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071,drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category. This would include, for example, once-off project work which is temporary and non-recurring by its nature.
It should also be noted that at par 70 of the judgment of the CJEU inAdeneler(and in proposition 5 above) it is stated that the circumstances justifying the use of successive fixed-term contracts may result,in particular, the specific nature of the tasks for the performance of which such contracts have been concluded and from he inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State. It is thus clear that there can be other circumstances in which fixed-term contracts are appropriate outside of the examples given. These other circumstances would clearly arise where an employee is engaged in work which forms part of the fixed and permanent needs of the employer but in circumstances in which they are providing cover for an absent permanent employee. It would also arise where the object or purpose of the contract is to provide the worker with training or development opportunities over a defined timescale even where the work in which the worker is engaged meets the fixed and permanent needs of the employer.
InAdenelerthe Court also referred to circumstances resulting from the pursuit of social policy objectives of the Member State. This would apply where a Member State has in place work experience schemes so as to provide for the reintegration of long term employed persons, or young people, into the workforce. It is noteworthy that the Court referred to the social policy objectives of a Member State rather than those of an individual employer. What the Court appears to have had in mind is that Member States may provide for the exclusion of certain types of employment contracts, on social policy grounds, in transposing the Framework Agreement in domestic law. In our law such an exclusion is contained in s.2 of the Act which, in effect, excludes from the ambit of the Act: -
(a) employees in initial vocational training relationships or apprenticeship schemes, or
(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme.
Point at which Section 9(4) takes effect
Where there is a succession of fixed-term contracts based on different objective grounds it appears clear that the Court should have regard to the grounds relied upon in the contract which,prima facie, gives rise to a contract of indefinite duration. In the instant case the Claimant was continuously employed, within the meaning of s.9of the Act, from 1st February 2005. He would have exceeded four years of fixed-term employment on or about 2nd February 2009. The sixth contract under which the Claimant was employed commenced on 1st October 2008 and purported to run for a fixed-term up to 30th June 2010. That contract,prima facie,contravened s.9(2) of the Act. Consequently it would have become one of indefinite duration by operation of s.9(3) unless it is saved by s.9(4) of the Act. It is, therefore, this contact that must form the focus of the Court’s enquiry in considering if the Claimant’s claim to a contract of indefinite duration can succeed.
Section 9(4) amounts to a defence under the Act and it is for the Respondent to make out that defence. The essence of the Respondent’s position is that the Claimant is, and always was, employed in undertaking research in a training or development role. It contends that the role now occupied by the Claimant is intended to provide a succession of post-doctoral students with experience in the conduct of research so as to equip them with employable skills outside the University. They say that it is essential to fill these posts on successive fixed-term contracts as the granting of permanent status to those occupying them would destroy the objective which these posts are intended to achieve. The Respondent contends that the true purpose of the post occupied by the Claimant is encapsulated in the statement of objective grounds contained in his present contract which took effect on 1stJuly 2010.
The Claimant’s position is, essentially a traverse of that taken Respondent. He claims that he is, and always was, employed in conducting research as part of the fixed and permanent functions of the Respondent. He says that he was never employed on either a training or development programme, that the grounds now relied upon by the Respondent do not correspond to the reality of his employment. While he did not say so in express terms the import of the submissions made on behalf of the Claimant is that the objective grounds stated in his current contract are a colourable device intended to obfuscate the true nature of his employment.
As previously stated, in considering if the renewal of a fixed-term contract gives rise to a contract of indefinite duration the Court should normally look no further than the objective grounds relied upon for the contract thatprima faciecontravenes s9(1) or 9(2) of the Act. That appears to be the import of the decision of the High Court inHSE v Umar[2011] 22 ELR 229. In this case the Respondent contends that the entire period of the Claimant’s employment, since 2005, was for a single purpose, namely to undertake research as part of his post-doctoral training or development. In testing the veracity of the Respondent’s contention on this point the nature of his prior employment is obviously of evidential value and should be examined.
Before proceeding further the Court should consider if the grounds relied upon by the Respondent in justifying the use of successive fixed-term contracts, assuming that they accord with the reality of the Claimant’s employment, can in law provide a defence under s.9(4) of the Act. The Respondent accepts that the carrying out of research is part of the fixed and permanent needs of the University although it points out that individual research projects are not. It seems clear, however, that research is normally undertaken in the context of individual projects which are limited in time.
There is no evidence before the Court from which it could be concluded that the nature of the work involved in research,per se, inherently justifies the use of fixed-term contract. On that point, in response to questions raised by the Court after the first hearing in this appeal, it was established that 24 permanent employees of the Respondent are primarily engaged in research, albeit that those employees attained that employment status by operation of the Act. However, if this work is undertaken as part of a genuine training or development programme, such as that envisaged by the Forfas report which was opened to the Court, the position may be different. In Determination FTD1116,University College Cork and Thomás O’Riordanthis Court held as follows: -
- “The Court accepts that it is an entirely legitimate objective of the Respondent to use fixed-term contracts to provide graduates with access to research opportunities and that they are entirely appropriate and necessary for that purpose. However, while these may be legitimate objectives for the employer they cannot be deployed in a general sense to justify the renewal of fixed-term contracts of employment divorced from the facts of the actual case before the Court”
On the evidence before the Court it appears that the Claimant was first formally designated as a participant in a training / development scheme in his last contract which commenced on 1stJuly 2010. The Court asked if there were any documents in being which indicated that the Claimant was engaged in a training and development role prior to the issuance of the seventh contract in July 2010. The Respondent told the Court that there are no such documents although it contends that the Claimant was at all times aware that his employment was for that purpose. The Claimant, however, takes issue with that contention.
It is the sixth contract, which took effect on 1stOctober 2008, that extended the Claimant’s employment beyond four years. Hence, it is this contract which, in the absence of objective grounds justifying its conclusion, became one of indefinite duration. The statement of objective grounds contained in that contract is at best equivocal and somewhat obscure in the context of the reasons for its conclusions now canvassed by the Respondent. In these circumstances it seems to the Court that s.8(4) of the Act comes in to play. The seventh contract expressly referred the “UCD post-doctoral training programme”. If, in fact, the earlier contracts were for the purpose of providing the Claimant with an opportunity to participate in that, or some similar programme, the omission of any reference to that effect in the statement of objective grounds is extraordinary. Consequently, in accordance with s.8(4) of the Act it is apt to infer that the Claimant was not participating in any such training / development programme and it is for the Respondent to prove otherwise. Neither the evidence before it, nor the careful submissions advanced on behalf of the Respondent, goes far enough to rebut that inference. Rather, the Court is satisfied, as a matter of probability, that the Claimant was employed for the purpose of undertaking research as part of the normal and continuous functions of the University at the time that his fixed-term employment was extended beyond four years.
Accordingly, the Court must hold that there were no objective grounds within the meaning of s.7 of the Act justifying the Claimant’s sixth fixed-term contract which commenced on 1stOctober 2008. Consequently, the term in that contract providing for its expiry by effluxion of time contrived s.9(2) of the Act and was void,ab initio, by operation of s.9(3) of the Act. It follows that the contract was transmuted to one of indefinite duration by operation of law with effect from the date of its commencement, namely, 1stOctober 2008.
Redress
Mr Given submitted that in the event of the Court finding for the Claimant it should follow the decision in Determination FTD1116,University College Cork and Thomás O’Riordanto award the Claimant compensation is lieu of a declaration in line with s.9(3) of the Act. The redress decided upon in that case arose from the fact that the Claimant had been made redundant and the post in which he had been employed no longer existed at the time of the hearing. Consequently there was a practical impediment to an order directing his reinstatement on a contract of indefinite duration. There is no such impediment in this case which would justify an interference with the redress ordered by the Rights Commissioner.
Determination
For the reasons set out herein the Court determines that the Respondent’s appeal be disallowed and the decision of the Rights Commissioner be affirmed.
Signed on behalf of the Labour Court
Kevin Duffy
2nd October, 2012______________________
JMcCDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.