FTD1235

FULL RECOMMENDATION

FTC/12/13

DETERMINATIONNO.FTD1235

(r-108578-ft-11/JOC)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

WATERFORD CITY COUNCIL
(REPRESENTED BY LGMA)

- AND -

ANDREW KENNEDY
(REPRESENTED BY JAMES REILLY & SONS SOLICITORS)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner's Decision No: r-108578-ft-11/JOC

BACKGROUND:

2. This case is an appeal by the employer of Rights Commissioner's Decision No: r-108578-ft-11/JOC. The issue was referred to a Rights Commissioner for investigation. His Decision issued on the 15th March, 2012 and found in favour of the worker's claim. On 17th April, 2012 the employer appealed the Rights Commissioner's Decision in accordance with Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on 19th September, 2012. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Waterford City Council against the decision of a Rights Commissioner in a claim by Mr Andrew Kennedy brought under the Protection of Employees (Fixed-Term Work) Act 2003. In this Determination the parties are referred to as they were at first instance. Hence, Mr Kennedy is referred to as the Claimant and Waterford City Council is referred to as the Respondent.

The Claimant claims that his fixed-term contract with the Respondent became one of indefinite duration by operation of law. The Rights Commissioner found for the Claimant. The Rights Commissioner merely made a declaration that the Claimant’s fixed-term contract was transmuted to one of indefinite duration. At that time the Claimant had been dismissed on the expiry of his putative fixed-term contract. While the Rights Commissioner made no further order it appears that the Rights Commissioner may have intended that the Claimant be reinstated by the Respondent on a contract of indefinite duration. On this assumption the Respondent appealed to this Court.

Appearances

The Claimant was represented by Ms Marguerite Bolger S.C, with Mr Brian O’Shea B.L., instructed by James Reilly &.Son, Solicitors. The Respondent was represented by Mr Don Culliton of the Local Government Management Agency

Background

The factual background to this case is not materially in dispute and can be summarised as follows: -

The Claimant commenced employment with the Respondent on 16^thAugust 2006 pursuant to a fixed-term contract. He was engaged as a resident engineer to carry out work associated with a main drainage scheme. The terms of this contract are of considerable importance in the case. In so far as is material the contract, which is dated 15^thMay 2006, provided as follows: -

Clause 3 provided: -

“Position”

“You will be employed as Resident Engineer (Civil) on a fixed purpose contract basis. Your employment is for the purpose of Phase II of the Waterford Main Drainage Scheme. The Unfair Dismissals Acts 1977 -2001 shall not apply to your dismissal, consisting only of the cessor of the said purpose”

Clause 5 of the Contract provided: -

“Commencement and Duration”
“Your employment will commence on Monday 26^thJune 2006 and will cease on the date of issue of Certificate of Substantial Completion of the Design Build Operate (Contract 5). The expected duration of the contract is 2 years. If you are assigned to a different contract, the lesser of the 2 years or date of issue of the Certificate of Substantial Completion for that contract shall apply”

While this clause gives the commencement date of the employment as 26^thJune 2006, it is agreed that this is an error and that the employment in fact commenced on 16^thAugust 2006.

In keeping with the practice of Local Authorities generally the Claimant’s employment was confirmed by a Managers Order dated 22^ndMay 2006. In relevant part this Order recited the following: -

“THAT on the recommendation of Interview Board held on 7^thand 8^thApril 2004, Mr Andrew Kennedy, 9 Ballinakill Close, Dunmore Road, Waterford be and is hereby appointed as Resident Engineer (Civil) on a fixed-purpose contract basis commencing Monday 3^rdJuly 2006 (the expected duration of the contract is 2 years) or such lesser period as may be determined, in accordance with the terms and conditions of Contract of Employment which he has accepted and signed and subject to satisfactory performance of duties at all times.”

AND THAT he be remunerated at [salary given] (Max point of Resident Engineer scale). A fixed allowance of [amount given] will be paid fortnightly, and in addition a further sum at the rate of [amount given] per annum will be paid as a lump sum at the end of the Contract subject to Mr Kennedy remaining on site on the project until the Issue of the Certificate of Substantial Completion”

It appears that the completion of the project on which the Claimant was employed was delayed and a further Managers Order dated 12^thOctober 2009 was made extending the Claimant’s employment to 1^stFebruary 2010. This was followed by another Managers Order dated 25^thJanuary 2010 continuing the Claimant’s employment to 30^thJuly 2010. This Claimant was furnished with a copy of this Managers Order under cover of a letter from the Senior Executive Office of the Respondent dated 27^thJanuary, in the following terms: -

“Re Extension of Contract”

“Dear Andrew”,

“Please find enclosed Managers Order extending your contract to 30^thJuly 2010. I wish to advise you that this is an extension of your contract for a specified purpose (Main Drainage Phase II) and I am not in a position to offer you a Contract of Indefinite Duration”

The Certificate of Substantial Completion in respect of the project on which the Claimant was employed was issued on 21^stJuly 2010. On the same date a further Managers Order was made continuing the Claimant’s employment. In relevant part this Order states as follows: -

“THAT further to order of 25^thJanuary 2010 and on the recommendation of Mr Ray Mannix, Senior Engineer, Environmental & Water Services, Mr Andrew Kennedy, be and hereby is continued as Resident Engineer (Civil) to 30^thOctober 2010 subject to satisfactory performance of duties at all times”

A further Managers Order was made on 21^stOctober 2010 continuing the Claimant’s employment to 31^stJanuary 2011. The Claimant’s employment then terminated on that aforementioned date.

Position of the parties

The Claimant
The Claimant contends that the fixed-term contract under which he was originally employed expressly provided that it would come to an end on the occurrence of an event, namely, the issuing of a Certificate of Substantial Completion in respect of the project on which he was employed. That event occurred on 21^stJuly 2010 and the Claimant’s fixed-term contract thereby came to an end in accordance with its terms. Counsel for the Claimant, Ms Bolger S.C, submitted that the Claimant’s employment was then renewed on a verbal contract pursuant to the Managers Order dated 21^stJuly 2010. That Order purported to extend the Claimant’s fixed-term employment beyond a period of four years, in contravention of s.9(2) of the Act. There was nothing in the Order or in any documents furnished to the Claimant which set out any objective grounds on which the Respondent sought to rely in justification of the extension of his employment beyond the period normally permitted by that section of the Act.

The Respondent
The Respondent contends that the Claimant’s employment was pursuant to a single contract throughout its currency. In advancing that submission, Mr Culliton, on behalf of the Respondent, relied on Clause 3 of the contract dated 15^thMay 2006, the terms of which are reproduced above. It was submitted that the clearly stated purpose of the contract was to undertake work associated with phase II of the Waterford main drainage scheme and that the tenure of the Claimant’s employment was clearly linked to that scheme. The associated work was intended to last for approximately two years but due to unforeseen circumstances it extended significantly beyond that period. It is the Respondent’s case that the various Managerial Orders merely continued the original contract which was never renewed. This, it was submitted, is evident from the language used in each of the Managers Orders giving effect to the continuation.

It was pointed out that s.9(2) of the Act applies only in circumstances in which a fixed-term employee was employed on two or more continuous fixed-term contracts. According to the Respondent, as the Claimant was employed throughout the currency of his employment on a single contract this section of the Act has no application.

In the alternative, the Respondent contends that there were objective grounds justifying the continuation of the Claimant’s fixed-term employment. A Number of documents were put in evidence in which the Senior Engineer recommended the continuation of the Claimant’s employment, and stated the reason for the continuation, on each occasion on which a new Managers Order was required. Each of these documents specified that the purpose of the Claimant’s employment was linked to the main drainage scheme.

The Court was told that after the Certificate of Substantial Completion was issued in relation to the main drainage scheme there were some outstanding works to be completed on the project, including final accounts, an ongoing conciliation process and the handover of the plant. According to the Respondent the Claimant’s employment was continued to deal with those matters, which, it was submitted, were intrinsically linked to the scheme itself.

The Court’s attention was drawn to a document dated 7/7/2010 which is in the nature of a memorandum from the Senior Engineer to the Human Resources Officer of the Respondent. It recites that the previous Managers Order was due to expire on 30^thJuly 2010. It recommended that the Claimant’s employment be extended for 3 months and the stated reason for the recommendation was “Completion of Waterford Main drainage Contract 5 – Conciliation”.

It was submitted that the works in which the Claimant was engaged did not form part of the fixed and permanent needs of the Respondent and that in these circumstances the use of a fixed-term contract was appropriate and necessary.

Conclusions of the Court

Was the Claimant’s fixed-term contract renewed?
The Court first considered the Respondent’s submissions to the effect that the Claimant was employed on a single fixed-purpose contract of employment in consequence of which he cannot avail of s. 9 of the Act. 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(3) goes on to provide:-

(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.

A fixed-term contract which is prima facie transmuted to one of indefinite duration by operation of s.9(3) can be saved by s.9(4), the effect of which will be considered later in this Determination.

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.

It is clear from that passage that s9(3) only comes into play where a fixed-term contract is renewed and the duration of the renewal extends the employee’s fixed-term employment beyond the period normally permitted by s.9(1) or s.9(2) of the Act. Hence, if the Respondent is correct in its contention that the Claimant was employed on a single contract which was not renewed, s.9(3) has no application in this case.

For the purposes of the Act a fixed-term contract is one in which the end of the contract of employment is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event (see s.2 of the Act).

The import of the Respondent’s submission is that on its correct construction Clause 3 of the contract entered into between the Claimant and the Respondent, dated 15^thMay 2006, was for the purpose of Phase II of the Waterford Main Drainage Scheme.This, it was submitted, rendered the contract one for the completion of a specific task and that this was the determining condition bringing the contract to an end. It is the Respondent’s case that throughout the currency of his employment the Claimant was engaged in work associated with the specified task and that his employment terminated with the final completion of the task. It contends that as additional work necessary to complete the scheme became necessary the Claimant’s employment was continued but it remained part of the same task that he was contracted to perform.

The Claimant relies on Clause 5 of the contract. It was submitted on his behalf that on a plain reading of this Clause the end of the contract was to be determined by the occurrence of a specific event, namely, the issuance of a Certificate of Substantial completion. It was pointed out that this event occurred on 21^stJuly 2010 thus bringing the contract entered into on 15^thMay 2006 to an end in accordance with its terms. It is the Claimant’s case that his fixed-term employment was then renewed on an oral contract pursuant to the Manager’s Order dated 21^stJuly 2010. This renewed contract purported to bring the aggregate duration of the Claimant fixed-term employment beyond four years, and thus became one of indefinite duration by operation of s.9(3) of the Act.

Finding
The Court is satisfied that Clause 3 of the contract dated 15^thMay 2006 merely defined the purpose for which the Claimant was being employed. That Clause did not specify the objective condition by which the duration of the contract would be determined. The contractual term in that regard is to be found in Clause 5. That Clause is headed “Commencement & Duration” and goes on to plainly and unambiguously provide that the Claimants employment would cease on the date of issue of a Certificate of Substantial Completion. The only viable construction which can be placed on this Clause is that it limited the tenure of the Claimant’s employment to the issuance of the Certificate of Substantial Completion. On the occurrence of that event the contract was discharged by performance and came to an end.

In the course of the hearing of this appeal much was made of whether the Claimant’s fixed-term employment was renewed or continued. In the Court’s view there is nothing magical in the word ‘renew’. It is a plain and ordinary English word which can properly be used to describe the continuation of something that would otherwise come to an end. The Oxford Concise Dictionary describes the terms as connoting,inter alia,“to extend the period of validity of (a licence, subscription, or contract)”.

It follows that when the Certificate of Substantial Completion issued in respect of the Main Drainage Scheme the Claimant’s employment was renewed. It is clear from the decision inMinister for Finance v Una McArdlethat s.9 of the Act applies where an employee is given a renewed fixed-term contract. On the facts of this case the Court is fully satisfied that the Claimants contract was renewed pursuant to the Managers Order of 21^stJuly 2010. That renewal purported to extend the duration of his fixed-term contract beyond the four year period permitted by s.9(2) of the Act and the contract as renewed became, prima facie, one of indefinite duration by operation of law.

Objective grounds justifying the renewal
The second point taken by the Respondent is that even if the Claimant’s fixed-term contract was renewed beyond the period normally permitted by s.9(2) of the Act there were objective grounds for so doing. Thus, it was submitted that any renewal was saved by s.9(4) of the Act. The Respondent contends that it was at all times clear that the Claimant was employed to work on a specific project. It was submitted that the objective grounds relied upon by the Respondent for continuing the Claimant on a fixed-term contract were set out in the documents created by the Senior Engineer each time a new Manager’s Order was required. These documents were put in evidence and are referred to earlier in this Determination. The objective grounds relied upon were helpfully set out in the Respondent’s written submission in tabular form as follows:

Regarding Manager’s Order From	Stated Purpose by Senior Engineer
2^ndJuly 2008 to 1^stApril 2009	*Completion of Treatment Plant* Contract Dated 21^stJuly 2008
1^stApril 2009 to 1^stFebruary 2010	**Required for handover of Waste Water Treatment PlantDated 28^thSeptember 2009**
1^stFebruary 2010 to 30^thJuly 2010	**Commission and Final Account of Waste Water Treatment PlantDated 7^thJanuary 2010**
30^thJuly 2010 to 30^thOctober 2010	*Completion of Waterford Main Drainage contract 5-Conciliation* Dated 13^thJuly 2010
30^thOctober 2010 to 31^stJanuary 2011	**Waterford Main drainage –Conciliation on WWTP(Waste Water Treatment Plant) dated 1^stOctober 2010**

There documents were in the nature of internal memoranda from the Senior Engineer to the Human Recourses Manager. These documents were not addressed to the Claimant nor is there evidence that he was ever aware of their existence. In essence the Respondent’s case is that the justification for the use of fixed-term contracts lies in the purpose for which the Claimant was employed. It was submitted that the work which the Claimant was employed to perform was essentially temporary and transient in nature and was not for the purpose of meeting a fixed and permanent need of the Respondent. In reliance on the decision of the CJEU in C-212/04Adeneler and Ors. V Ellinikos Organismos GalaktosIRLR 716, the Respondent contends that in these circumstances the use of fixed-term contracts of employment is both appropriate and justified.

Counsel for the Claimant pointed out that none of the documents relied upon by the Respondent make any mention of objective grounds for the various renewals of his fixed-term employment. The only documents with which the Claimant was furnished were copies of the Managers Orders renewing his employment and these Orders do not provide any objective grounds for the renewals to which they relate.

Counsel relied upon the obligation placed on an employer who proposes to renew a fixed-term contract of employment by s.8 of the Act to inform the fixed-term employee of the objective grounds justifying the renewal and the reasons for not offering the employee a contract of indefinite duration. In particular Counsel referred to s.8(4) of the Act which provided: -

(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.”

The Court in its own decision inDr Mohammad Khan v HSE North Eastern Region[2006] 17 ELR considered the effect of s.8 of the Act and found as follows:-

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.

It was submitted that the renewal of the Claimant’s fixed-term employment, which took effect after the purpose of the original contract was fulfilled on 21^stJuly 2010, gave rise to an entitlement to a contract of indefinite duration since it purported to extend the period of his fixed-term employment beyond four years. At the material time no objective grounds were relied upon for extending that contract and that it is not now open to the Respondent to introduce justification for that renewal which was not relied upon at that time.

Finding
As found earlier in this Determination the renewal of the Claimant’s fixed-term employment after the Certificate of Substantial Completion was issued in respect of the Main Drainage Scheme gave him a prima facie entitlement to a contract of indefinite duration by operation of s. 9(3) of the Act. This subsection 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.

Section 9(4) provides that subsection (3) does not apply were there are objective grounds justifying the 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.

This statutory formulation is derived from the jurisprudence of the Court of Justice of the European Union (formally the ECJ) on how the notion of objective justification should be applied. InAdeneler and Ors. V Ellinikos Organismos Galaktosthe Court held, 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 dicta was restated and further developed by the Court of Justice in case C-307/05,Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud[2007] IRLR 911. This was a case in which the objective justification for a difference in employment conditions as between a fixed-term worker and a comparable permanent worker was in issue. However, the Court made it clear that the interpretation of what constitutes objective grounds is the same whether it arises in relation to the renewal of successive fixed-term contracts, as inAdeneler,or in relation to the principle of equal treatment, as in the case under consideration inAlonso. In giving judgment in the latter case the Court of Justice said, in relation to objective grounds, at par 58: -

“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.”

It is clear that s.9(4), and by extension s.9(3), takes effect at the commencement of the impugned contract. This was made clear by Hanna J inRussell v Mount Temple Comprehensive SchoolIEHC 533. In this case both parties are agreed that the relevant contract, for the purpose of applying subsections (3) and (4) of s.9 is that which took effect on 30^thJuly, after the Certificate of Substantial Completion issued in respect of the Main Drainage Scheme. Thus, unless the Respondent makes its case in relation to objective justification that contract was transmuted to one of indefinite duration by operation of s.9(3) of the Act.

Section 9(4) of the Act 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)

Section 8 of the Act is also relevant for present purposes. It 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.”

Objection was taken by Mr Culliton concerning the Claimant’s entitlement to rely on s.8 of the Act having regard to the time limit prescribed by s.14 of the Act for the bringing of claims. However, the Claimant is not seeking redress for a contravention of s. 8 but is seeking to rely on the provision at subsection (4) of that section in advancing his claim. Mr Culliton accepted that while s.14 may bar a claimant from seeking redress for a contravention of s.8 it does not bar the Court from drawing an appropriate inference in accordance with s.8(4) of the Act.

It is clear from the decision of this Court inKhanthat an employer must commit itself, at the point at which a fixed-term contract is being renewed, to objective grounds upon which it will relay if defending a claim under the Act. InMargaret Moran & Helen Moloney v St Catherine’s College for Home Economics and the Minister for Education and Science20 ELR 143 a question arose as to whether the Respondent could rely on objective grounds in advancing a defence under the Act which had not been relied upon at the time of the impugned occurrence. This case arose from the closure of the College and the redundancy of its staff. The Claimants, who were fixed-term employees, were afforded less favourable redundancy payments than comparable permanent staff. It was clear that the Respondents decided to treat the Claimants less favourably because they believed that non-statutory redundancy terms were not pay and therefore outside the guarantee of equal treatment afforded by the Act. At the hearing Counsel for the Respondent properly conceded, based on established authority, that the Respondent had misconstrued the Act and that redundancy pay is a condition of employment in respect of which the Claimants had a prima facie entitlement to equal treatment. Counsel, however, sought to rely on objective grounds to justify the difference in treatment based on the remaining tenure of the Claimants employmentvis-á-visthat of their comparators. Such grounds had not been relied upon previously. In addressing that point this Court held as follows: -

“It appears to the Court that in considering how to deal with the situation arising from the closure of the College the responsible Officials of the Respondent decided to adopt a severance package which was first introduced in 1988 and was applicable to permanent staff only. No consideration was given to the need to ensure equality of treatment between permanent and fixed-term staff because the decision makers believed that ex-gratia payments are not pay and are outside the intendment of s. 6 of the Act. This was made perfectly clear by the Minister for Education and Science in her letter of 25^thJuly 2007 to the General Secretary of IFUT, the relevant passage from which is recited earlier in this Determination. Counsel for the Respondent now rightly concedes that the stated position of the Minister is unsustainable in law. Thus the operative reason for the impugned difference in treatment was the Respondent’s mistaken view of its legal obligations vis-á-vis the Complainants. This could not be relied upon as constituting an objective ground within the meaning of s. 7 of the Act.”

The Court then continued: -

It seems to the Court that the requirements of this test could only be met if at the time the decision to discriminate was taken the objective which it was intended to pursue was actually within the contemplation of the decision maker. As already found by the Court, the desirability of compensating those being displaced by reference to their potential service or tenure was not a factor which influenced the decision to treat the Complainants differently from their permanent colleagues. Hence, the Court cannot see how it could now be relied upon as an objective ground justifying that decision.

While the facts of the instant case are different to those in St Catherine’s College, that case nonetheless illustrated that the objective grounds relied upon must have been the operative reason, operating in the mind of the decision makers at the time the impugned decision was taken.

It is also clear from a plain reading of s.8(2) of the Act that the requirement to inform a fixed-term employee of the objective grounds justifying the renewal of his or her fixed-term contract carries a concomitant obligation to explain why a contract of indefinite duration is not being offered. In this case the Respondent never proffered any explanation to the Claimant for either the decision to renew his fixed-term contract or why he was being offered a contract of indefinite duration. Even taking the documents created to obtain a Managers Order for the renewals at their height they do no more than describe the purpose for the renewals sought but offer not explanation as to why a fixed-term contract as opposed to a contract of indefinite duration was being recommended.

In these circumstances it is apt for the Court to infer in accordance with s. 8(4) of the Act that the reason for this omission was that the relevant decision makers had given no consideration to these questions at the material time. The reason for that failure can also be inferred from the facts surrounding the first point taken by the Respondent in this appeal. It is clear that at all times the relevant decision makers proceeded in the belief that they were not renewing the Claimant’s fixed-term contract and in consequence there was no need to either identify objective grounds or to consider offering the Claimant a contract of indefinite duration. This is further confirmed by the fact that the Claimant was never furnished with a renewed contract in writing after the expiry of his original contract following the issuance of the Certificate of Substantial Completion and that he continued thereafter on an oral or implied contract. Nothing which has been placed before the Court goes far enough to rebut those inferences.

It is clear to the Court that the Respondent is now seeking to retrospectively justify the renewal of the Claimant’s fixed term employment (while continuing to deny that there was any such renewal) on grounds that were never adverted to at the material time. This approach cannot be accepted. If such an approach were to be accepted it would undermine the effectiveness of the Act and the Directive that it was enacted to transpose in our law. In particular it could not meet the requirement forobjective and transparent criteriawhich the CJEU indentified inDel Cerro Alonso v. Osakidetza-Servicio Vasco de Saludas inherent in the test for applying the notion of objective justification.

Determination

For all of the above reasons the Court has concluded that the Respondent’s appeal cannot succeed. It is the Determination of the Court that the Claimant became entitled to a contract of indefinite duration with effect from either 22^ndJuly2010, the day following the expiry of his original contract and the commencement of the oral or implied contract on which he continued to work, or from 30^thJuly 2010, when the authorisation of the previous Managers Order continuing his employment expired.
In considering the question of redress the Court is satisfied that the operative reason for the Claimant’s dismissal was the purported expiry of his fixed-term contract. It follows as a matter of probability that had the Respondent recognised the permanent nature of the Claimant’s employment status he would not have been dismissed at that time. Having so concluded the Court is satisfied that it is appropriate in this case to order the reinstatement of the Claimant.

Redress

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

Outcome

The Respondent’s appeal is disallowed and the decision of the Rights Commissioner is modified so as to conform to the terms of this Determination.

Signed on behalf of the Labour Court

Kevin Duffy
11th October 2012______________________
AHChairman

NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.