FTD1236

Background

The Complainant worked for the Gallery as a services attendant under a series of fixed-term contracts commencing on 2^ndJanuary 2002 (“the First Contract”). The First Contract contained the following provision

• “The specified purpose of this contract is that you are being employed to secure the National Collection at the Gallery incorporating the Millennium Wing, on a temporary basis until such time as refurbishment commences at the National Gallery’s Historic Buildings under the Gallery’s Development Plan. When this occurs, the specified purpose hereunder will cease and accordingly your employment will terminate in accordance with Clause 2. It is not possible to estimate when the specified purpose of your contract will case but your employment will not in any event continue beyond 30^thJune 2005 and therefore you are accepting this offer of employment on the strict understanding that the nature of your employment is temporary”

The Second Contract

The Complainant’s employment was renewed by way of a second fixed term contract of employment commencing on 30^thJune 2005 that contained the following provision:-

• “1.1 Your employment will continue on a temporary basis until such time as refurbishment commences ta the National Gallery’s Historic Buildings under the Gallery’s development plan.

  1.2 Your employment will terminate automatically without any right to notice on the commencement of refurbishment as referred to in clause 1.1

  1.3 The Unfair Dismissals Acts 1977 – 2001 will not apply to the termination of your employment by reason only of the circumstances outlined in clause 1.1

The first phase of the Gallery’s refurbishment works commenced in the “Dargan Wing” on 7 March 2011. The Complainant’s contract of employment was renewed on 3^rdMarch 2011 until the refurbishment works at the Milltown Wing commenced on 30^thJune 2011. A letter to this effect was issued to the Complainant by the Gallery.

Fourth Contract

The Complainant was issued with a further letter by the Gallery renewing his contract of employment until 30 September 2011.

The Complaint

The Complaint submitted a complaint under Section 14 of the Act to a Rights Commissioner on 22 July 2011 alleging a contravention of Section 9 of the Act in respect to his employment. He complained that the Gallery continued to deny his statutory entitlement to a Contract of Indefinite Duration. He contends that it continued to treat him as a fixed-term worker contrary to the provisions of section 9 of the Act.

The Rights Commissioner conducted an investigation into the Complaint and on 16 January 2012 the Rights Commissioner decided as follows: -

• “According to Sec 14(2) (a) I declare that the claim is well founded in part.

  As per Sec 14(2)� I require the employer to re-instate John Cleary with effect from 1^stOctober on a contract of indefinite duration on the same terms and conditions as applied when he was last employed there. The requisite retrospection in pay should be paid less the statutory redundancy received.

  As per Sec 14(2) (d) I require the employer to pay John Cleary €3,500 in compensation within six weeks of the date below”

The Complainant’s Position

The Complainant submits that he became entitled to a contract of indefinite duration by operation of law on 30 June 2006. He submits that he was employed as a fixed-term worker when the Act came into force. He submits that after he had completed three years’ service the Gallery was entitled to renew his contract on one occasion only and for no more than one year. He submits that the Gallery exercised this option when it renewed his contract of employment on 30 June 2005. As this contract did not expire within one year the Complainant submits that he became entitled to a contract of indefinite duration at that time unless its renewal was justified on objective grounds. He submits that no such grounds justifying its renewal existed at the time. He further submits that his contract was renewed on a number of occasions thereafter and the Gallery continued to treat him as a fixed term worker contrary to the provisions of Section 9(3) of the Act.

The Respondent’s Position

The Respondent submits that the Gallery was involved in a process of rebuilding and refurbishment and that its need for a services attendant was temporary in nature pending the commencement of the works. The Gallery submits that at the time the Complainant was employed it had submitted a proposed Master Development Programme to the Minister for his consideration and had received approval in principle to proceed. When the Gallery came to renew the Complainant’s contract of employment in 2005 it knew that many of the galleries would be closed when the Master Development Programme commenced. This has now come to pass and most of the galleries are closed to the public. As a consequence the Gallery does not have a need for the work of as many service attendants as when all the Galleries are open to the Public. Therefore, it submits, the objective grounds stated in the Second Contract have been borne out and are fully justifiable. The Gallery submits that when the third contract was entered into the first phase of the construction work on the “Dargan Wing” had commenced and it did have a continuing need for the Complainant’s services up until 30 June 2011 when the preparatory works for phase 2 commenced. For this reason the Gallery offered to renew the Complainant’s contract up until 30 June 2011. It submits that this is a fully justifiable ground.

The Gallery submits that it offered the Complainant a further contract renewal up until 30 September 2011 pending the outcome of its discussions with the Department of Finance as to whether it was possible to offer permanent employment to any of the security and service attendants including the Complainant. It submits that this is a fully justifiable objective ground. Furthermore, it submits that it acted in the best interest of the Complainant in this matter at all times, by attempting to obtain permanent placements from this group of staff. It submits it would be inequitable if it were now to be penalised for seeking to retain as many staff as possible.

The Respondent submits that it is entitled to rely on the provisions of Section9(4) of the 2003 Act. It submits that it had objective grounds for renewal of the fixed term contract of employment on each occasion as it was for the purpose of achieving a legitimate objective of the employer and such treatment was appropriate and necessary for that purpose. The Respondent referred the Court to the decision of the ECJ inAdeneler and Others – v – Ellinikos Organismos Galaktos[2006] IRLR 716 P50 in which it held as follows:-

• “… the concept of “objective justification” 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.”

The Respondent referred the to the tests set out by the European Court of Justice in Case C-170/84,Bilka Kafuhaus GmbH – v – Karen Weber von Hartz [1986] E.C.R. 1607and to the decision of this Court inMarie Inoue – v - NBK Designs Limited [2003] E.L.R. 98.It submitted that the Gallery could show that over the course of the Complainant’s employment, the measure in question (the use of fixed-term/specified purpose contracts in this case) corresponds to a real need on the part of the employer; is appropriate with a view to achieving the objective pursued; and is necessary for that purpose. It submitted that the means chosen to fulfil its requirements were proportionate to the objectives they were intended to achieve and there were no alternative means having a less discriminatory affect by which the Gallery’s objectives could have been achieved.

The Respondent submits that when issuing the Complainant with a second fixed term contract of employment in 2005 the Gallery knew that when the Master Development Programme commenced, many of the galleries would be closed. This has now come to pass and the Gallery does not have work for as many service attendants to carry out. Therefore the objective grounds stated in the Second Contract have been borne out and are fully justifiable.

The Respondent submits that at the time it issued a third fixed term contract of employment to the Complainant the first phase of the redevelopment work had commenced on the Dargan Wing. The Gallery did have a continuing need for the Complainant’s services up until 30 June 2011 when the preparatory works for phase 2 commenced. For this reason the Gallery offered to renew the Complainant’s contract up until 30 June 2011. This is a fully objective ground.

The Respondent submits that at the time it issued a fourth fixed term contract of employment to the Complainant Gallery Management was in discussions with the Department of Finance seeking approval to convert a number of staff members from fixed term to permanent contracts of employment. The Gallery extended the Complainant’s contract of employment pending the outcome of those discussions. This measure was taken in the Complainant’s best interest as it ensured that he was in a position to submit an application for consideration for appointment to a permanent post when approval was forthcoming. It submits that this is a fully objective grounds.

The Respondent referred the Court to the decision of the Supreme Court of the United Kingdom inDuncombe and Others - v – The Secretary of State for Children, Schools and Families[2011] IRLR 498, and to the decision of the Court of Justice of the European Union in Case C-586/10Bianca Kucuk – v – Land Nordrhein-Westfalen.[2012] IRLR 697

The Respondent submitted that the purpose of the European Directive on Fixed Term Workers was to prevent abuse arising from the use of successive fixed-term employment contracts or relationships. It submitted that the facts in this case showed that the Gallery did not issue the Complainant with a series of fixed term contracts of employment in order to avoid its obligations to the Complainant under the 2003 Act. Finally the Respondent referred to the Determination of this Court inNational University of Ireland Maynooth – v- Dr Anne Buckley(FTD092) in which it held that

“… the Appellant, having signed a binding contract agreeing to the objective reasons for its renewal on a fixed-term basis, cannot subsequently resile from this position and is therefore not entitled to a contract of indefinite duration”

The Respondent submits that the Complainant signed a series of binding contracts agreeing to the objective reasons for their renewal on a fixed-term basis and cannot now resile from this position.

Findings of the Court

The Complainant was first employed on a fixed term contract of employment on 2 January 2002. The Act came into operation on 14 July 2003. Section 9(1) of the Act provides

9 (1) Subject to subsection (4) , where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

Section 9(3) of the Act provides: -

• “where any terms 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”

• Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed-term where there are objective grounds justifying such renewal”

When the Complainant’s contract of employment expired on 30 June 2005 he had completed his third year of continuous employment with the Respondent. The Gallery, in accordance with s9(1) of the Act was entitled to “renew” the fixed term contract of employment “on one occasion” for a “fixed term of no longer than one year”. The Respondent renewed the Complainant’scontract “until such time as refurbishment commences at the National Gallery’s Historic Buildings under the Gallery’s development plan.”Work on that development plan did not commence until 2011. Accordingly the Complainant became entitled to a contract of indefinite duration by operation of law, with effect from the date on which the contract was renewed, unless the Gallery had, within the meaning of Section 7 of the Act, objective grounds justifying the renewal of the fixed term contract of employment.

Section 7 provides

Objective grounds for less favourable treatment

• (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 afixed-termemployee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of afixed-termemployee's contract for a furtherfixedterm) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

  (2) Where, as regards anytermof his or her contract, afixed-termemployee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2)) be regarded as justified on objective grounds, if theterms of thefixed-termemployee's contract of employment, taken as a whole, are at least as favourable as theterms of the comparable permanent employee's contract of employment.

The Court of Justice of the European Union addressed the concept of objective grounds in Joined Cases C-378/07 to C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071, where it said at paragraph 96

• 
  "In those circumstances, the concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the Framework Agreement must, as the Court has already held, 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 (Adeneler and Others, paragraphs 69 and 70; Case C-307/05 Del Cerro Alonso [2007] ECR I-7109, paragraph 53; and order in Vassilakis and Others, paragraphs 88 and 89)".

From the information provided to the Court the legitimate objective of the employer was to engage a sufficient number of staff to cover the period between the approval of the Master Development Plan and the commencement of the associated works. Thereafter the Gallery’s requirement for services staff would be considerably diminished as a large number of the galleries would be closed to the public. These objective reasons do not appear to meet the test set out in Angelidaki; they do not result from the “specific nature of the tasks for the performance of which such contracts have been concluded”, nor do they result from the “inherent characteristics of those tasks” nor do they result from the “pursuit of a legitimate social-policy objective of a Member State.” It is clear from the submissions of the parties that the work the Complainant was employed to perform was part of the Gallery’s fixed and permanent needs. It was only in the context of the proposed building works; the fear that it would not have work for everyone when the works began and the refusal of the Department of Finance to approve the appointment of permanent staff that caused the Gallery to issue the Complainant with successive fixed term employment contracts.

Taking each in turn, the proposed redevelopment of the Gallary may be a legitimate objective of the employer if the finances to undertake the works were in place, a plan had been prepared and the works were contracted for and scheduled to start at a definite time. In this case the Court was told that Minister for Arts, Heritage, Gaeltacht and the Islands had in June 2002 agreed in principle to Phase 1 – 6 of the Development Control Plan dated December 1999. However the Minister had suggested a shorter time scale for the completion of the works and this was considered feasible by the Office of Public Works. The revised proposal provided for the work associated with phases 1 – 6 to be carried out between 2002 and 2007. Phases 7 – 10 were scheduled to commence in March 2004 to be completed in April 2008. Accordingly at the time the Complainant was employed on the First fixed term contract of employment the conditions set out above were not in place. When the first contract was renewed in 2005 no further progress had been made. No finances were in place, no planning approval had been secured, no building contracts had been signed and no commencement date for the works had been agreed. A letter dated September 2005 from Mr John Sydenham Project Management Services, OPW to Mr Gerry D’Arcy of the National Gallery sets out the position at that time. It says

• Dear Gerry

  Further to your request today please see the following update on the proposed project known as Phases 1 to 4 & 6 10.

  Description of Project

  The National Gallery of Ireland is housed in a composite building, part modern part historical. The current renovations concern themselves with the historic building and not the newly built Millenium Wing. Planning permission will be required for the proposed works, and the building under renovation is a protected structure. The works, while comprising one works package, are conceptually divisible into categories by location and comprise the following:

  1864 Wing

  • 
    •New roof glazing to south and new slates to roof

    •Ventilation on roof to lower solar gain temperature

    •Glass ceiling to be removed and new glass ceiling installed

    •All old heating pipes and systems replaced

    •New lighting

    •Refurbishment

  
  Portrait Gallery
  • 
    •Fire protection works

    •New Lighting

    •All old heating pipes and system to be replaced

  
  Infill Building
  • 
    •A new building, intended to connect the 1864 Wing to the Milltown Wing, and to contain new Conservation and Framing Departments
  
  Area Over Merrion Square Entrance
  • 
    •Existing flat roof to be replaced with pitched roof

    •Modifications to heating system and ventilation

    •Refurbishment

  
  Milltown Rooms
  • 
    •Removal of old heating system and installation of air conditioning to the 3 levels at basement, ground and first floor.

    •Removal of existing flat roofs and replacement with pitched roofs with vertical glazing and shading

    •Refurbishment

  
  Finger Development at rear of No.90 Merrion Square

  A new three-story link building intended to connect 88-90 Merrion Square with the main buildings of the Gallery.

  Programme

  The programme for Phases 1 to 4 &6 was detailed in the last version of the Development Control Plan (June 2002): -

  Approval to appoint consultants September 2002 (presumes Finance Sanction)

  Planning Permission Application March 2004

  Contract Placed August 2005

  Practical Completion April 2007

  Owing to the later inclusion of Phase 10 and the lack of available funds, financial sanction to appoint consultants was not received by OPW until this year. The current indicative programme is as follows

  Approval to appoint consultants 2005

  Planning Permission Application March 2007

  Contract Placed July 2008

  Practical Completion December 2009

  This Office is currently finalising the EC Tender Documents for the procurement of the consultant Design Team and expects to publish the Invitation to Tender in October 2005.

  I trust that the above information is what you require, however if you have any queries please let me know."

No information was presented to the Court on the situation that pertained in June 2006 the date at which the additional year provided for in Section 9(1) expired.

In the circumstances where no approvals were in place and no timescale for the commencement of the redevelopment works could be identified the Court finds that the renewal of the fixed term contract of employment was not, within the statutory meaning of the term, meeting a legitimate objective of the Gallery. The Court notes the decision of the European Court of Justice inAdeneler and Others – v –Ellinikos Organismos Galaktos[2006] IRLR 716 P50 where it said

“… the 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.”

In this circumstance it is clear that the Complainant, in the absence of any imminent redevelopment works, was employed to meet a fixed and permanent need of the Gallery. Had the works been imminent in the sense that they were planned, approved, financed and contracts for commencement agreed with the relevant professionals then the temporary nature of the requirement would have been clear. However where the redevelopment works are no more than approved in principle the precise and concrete circumstances characterising that given activity were such that after four years of continuous fixed-term employment, the Complainant was meeting a fixed and permanent need of the Gallery as no realistic date for the commencement of the redevelopment works could be reasonably foreseen.

A concomitant and perhaps more important objective of the Respondent was its desire to avoid a situation in which it might find itself with more permanent staff than it required during the period in which the anticipated refurbishment work was in progress. Rather than deal with this situation when it arose the Gallery decided to prevent the eventuality occurring by employing staff, for whom it had a fixed and permanent need, on successive fixed term contracts of employment. When it did so it was totally unaware of the time scale in which approval and financing to undertake the work would be granted if at all. Accordingly the objective of the Gallery at this time amounted to its desire to avoid the need to deal with a possible number of surplus staff that would arise if ever and whenever it was given approval to undertake the refurbishment work. A desire to avoid a contingent liability to the Complainant that might arise at some point in the future could not of itself be a legitimate objective of an employer for the purposes of the Act nor could it justify the use of successive fixed term contracts of employment. Successive fixed-term contracts of employment are intended to address a temporary as opposed to fixed and permanent need for the work performed by the worker to whom they are issued in place of a contract of indefinite duration. The Court finds that a desire to avoid an uncertain eventuality that may or may not occur does not amount to a legitimate objective of an employer within the meaning of the Act.

Accordingly the Court finds that at the time the Second Contract came into force the Gallery had a fixed and permanent need for the work the Complainant was employed to perform. There was a contingent possibility that this need might be temporarily interrupted while the refurbishment work was being carried out. Accordingly the objective was no legitimate within the meaning of the Act and furthermore the means chosen to deal with what was in fact a temporary, contingent and uncertain reduction in the demand for the Complainant’s services to take effect at an unknowable date was “not capable in that particular context of justifying the use of successive fixed-term employment contracts”.

It appears that at all stages during the period the Complainant was employed on successive fixed term contracts of employment the Gallery was seeking approval from the Department of Finance to appoint permanent staff to replace staff that were leaving through natural wastage but this was not forthcoming. Accordingly the withholding of the necessary approval appears to have been a further influencing factor in the decision to employ the Complainant on a succession of fixed term contracts of employment. The withholding of approval to appoint a person on a permanent contract of employment by a third party is not a valid basis upon which to issue a series of successive fixed term contracts of employment to a worker that is meeting a fixed and permanent need of an employer.

As the Court has found that the renewal of the fixed-term contract of employment was not for the purpose of achieving a legitimate objective of the employer the treatment of the Complainant cannot be appropriate and necessary for that purpose.

The Court finds that even if the fixed term contract of employment was meeting a legitimate objective of the employer the means chosen to do so was not appropriate in this case. The Gallery, when renewing the Complainant’s fixed-term employment contract in 2005, could not have known the probable timescale within which or if at all the Minister and Department of Finance would approve the financing of the Master Development Plan.

Accordingly the Court finds that the Gallery had a less discriminatory option available to it namely to employ the Complainant on a permanent contract of employment and to make him redundant if and when the works associated with the Master Development Plan commenced. The purpose of the Act is to prevent the use of successive fixed term contracts of employment. It is not to guarantee employment for life. Fixed term contracts of employment may be necessary and appropriate where a project has an expected life and runs over. However where permission is sought to undertake a project and no timescale for approval can be realistically anticipated successive fixed term contracts of employment are unlikely to be an appropriate means of achieving the objective of employing staff pending the commencement of works associated with the project where there is a fixed and permanent demand for that work should approval for the project not be forthcoming. That is what applied in this case. At the time of the renewal of the Complainant’s contract of employment in 2005 there was a fixed and permanent need for the work the he was performing. It may well be that at some point in the future there may not, for a temporary period of time, be such a demand whilst the reconstruction work was undertaken. This contingency could have been addressed in a less discriminatory way. The Gallery could have employed the Complainant on a contract of indefinite duration to meet its fixed and permanent need and either laid him off or made him redundant when circumstances arose in which the work for which he was employed ceased to exist. As this disposed of the matter the Court did not go on to consider the position of the Complainant under the subsequent contracts of employment issued to him by the Gallery.

The Court was referred to the Decision of the Supreme Court of England and Wales inDuncombe and Others - v – The Secretary of State for Children, Schools and Families[2011] IRLR 498, and to the Decision of the Court of Justice of the European Union in Case C-586/10Bianca Kucuk – v – Land Nordrhein-Westfalen.[2012] IRLR 697

The Court has considered these cases in detail and finds that they can be distinguished on their facts from the case before this Court. Ms Kucuk was performing the work left vacant by other staff that were on maternity leave. The work in question fell to be completed while the worker went on maternity. Accordingly the work itself was a fixed and permanent need of the employer and the worker on maternity leave was employed to perform that work. Through measures that comply with public policy objectives of the European Union those workers were afforded maternity leave. Ms Kucuk was employed to replace each of those workers in turn. Accordingly Ms Kucuk was at no point meeting a fixed and permanent need of the Employer as the workers she was engaged to replace were entitled as a matter of law to return to work when their periods of maternity leave were at an end. In this case the Complainant was himself performing work for which there was a fixed and permanent need. He was not replacing another worker that was on leave with a statutory entitlement to return to work. Accordingly the Court finds that the case cited is not relevant to this case.

The Court takes a similar view of the relevance of Dunscombe and Others –v- The Secretary of State for Children, Schools and Families [2011] IRLR 498. In that case the complainants were employed as teachers in the European School in Culham, Oxfordshire on a fixed term contract of employment that, by regulation, could not exceed 9 years. The complainant was employed on an initial two year contract of employment, a probationary period, after which he was employed for a further three year period, extended for a further four years, and then an additional one year, making a total of ten years in all. They complainants claimed that they were permanent employees by virtue of regulation 8 of the Fixed-term regulations.

Rejecting the claim Lady Hale, delivering the judgement of the Supreme Court, summarises the position at para 23 as follows: -

“The teacher’s complaint is not against the three or four periods comprised in the nine year rule but against the nine year rule itself. In other words, they are complaining about the fixed-term nature of their employment rather than about the use of the successive fixed-term contracts which make it up”

She said that the Directive affords protection against the abuse of successive fixed-term contracts of employment and “not against fixed-term employment as such”

In this case the Complainant is objecting to the use of successive fixed term contracts of employment and not against fixed-term employment itself. Accordingly the Court does not consider the cases to be at all similar.

Determination

The Court determines that the Complaint is well founded. It is the determination of the Court that the Claimant’s fixed-term contract of employment was transmuted to one of indefinite duration by operation of Section 9(3) of the Act from the commencement of his second contact on 30^thJune 2005. The Court requires the Respondent to comply with the Act by recognising the permanent nature of the Claimant’s employment thereafter. It is clear to the Court from the submissions and evidence tendered by the Respondent that the Claimant’s employment was terminated principally because he was erroneously and unlawfully classified by the Respondent as a fixed-term worker and had he not been so classified he would have been retained in employment. In these circumstances the Court further requires the Gallery to re-instate the Complainant with effect from the date of his purported dismissal. The Court requires the Gallery to pay the Complainant compensation for breaches of the Act in the sum of €3,000.00.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
12th October, 2012______________________
JFDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.