FTD1229

On the 18^thJune 2010 the H.S.E. wrote to the Complainant advising him that his employment would terminate on 28^thJune 2010. He was re-employed on the 5^thJuly on a further fixed-term contract of employment by the H.S.E. in Our Lady of Lourdes Hospital. This contract continues to date.

The Complainant submits that through the combined effect of Sections 9(2) and 9(3) of the Protection of Employees (Fixed Term Work) Act 2003, the provision of the fixed-term contract under which he was employed from the 10^thNovember 2008 or in the alternative the fixed-term contract of employment under which he was employed with effect from the 5^thJuly 2010 that each purported to limit it's duration to a specific date or the occurrence of a specific event, have no effect and the contract concerned is by operation of law deemed to be a contract of indefinite duration.

The Respondent submits that Subsection 9(4) of the Act applies in this case; that the fixed-term contract of employment is not deemed to be a contract of indefinite as the decision to renew each of the fixed-term contracts of employment was justified on objective grounds.

Processing the Complaint

The Complainant made a complaint to the Rights Commissioner pursuant to Section 14 of the Act.

The Rights Commissioner decided as follows

“According to Sec 14(2) I declare that the claim was not well founded and that it fails”

The Complainant appealed against that Decision to the Labour Court pursuant to Section 15 of the Act.

The Labour Court heard the parties on several occasions the final hearing taking place on 21st June 2012.

The Complainant’s Position

The Complainant’s Case

The Complainant submits that he was employed on a series of fixed-term contracts of employment the aggregate duration of which exceeded four years. He submits that Section 9(2) of the Act provides that

“where after the passing of this Act afixed-termemployee is employed by his or her employer or associated employer on two or more continuousfixed-termcontracts 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 4 years”

The Complainant submits that at the date of the termination of his employment, when allowance is made for the contractual notice period to which he was entitled, the aggregate duration of the successive fixed-term contracts of employment on which he was employed exceeded four years. He further submits in the alternative that the fixed-term contract of employment on which he was employed by the H.S.E. in Our Lady of Lourdes Hospital commencing on 5 July 2010 taken together with the successive fixed-term contracts of employment upon which he was employed commencing on 1 July 2006 exceed four years. He submits that if the Court accepts the submissions regarding the inclusion of the contractual notice period for the purpose of calculating his total service the fixed-term contract of employment that commenced on 10 November 2008 is deemed, by operation of law, a contract of indefinite duration. Should the Court not accept that submission he submits that the fixed-term contract of employment under which he was employed commencing 5 July 2010 is deemed a contract of indefinite duration.

The Respondent submits that the Complainant, at the date of the termination of his employment in the H.S.E. on 27th June 2010, did not have an aggregate of four years’ service. On this basis it submits that the provisions of Section 9(2) of the Act do not apply to the Complainant.

The Respondent further submits that there were objective grounds for renewing the Complainant’s fixed-term contract of employment and for not offering him a contract of indefinite duration in November 2008. The Respondent relies on the provisions of Section 9(4) of the Act in this regard. It submits that the Complainant was filling a temporary position whilst a permanent vacancy was advertised and filled. It submits that this amounts to objective justification for filling the vacancy on a fixed-term basis, was a real need of the employer, was an appropriate manner in which to address this need was necessary for that purpose as the hospital could not be left without the services of a Consultant Anaesthetist. The Respondent referred the Court to the provisions of Section 7 (1) of the Act in this regard.

The Respondent submitted that it was not involved in the awarding of the fixed-term contract of employment dated 5 July 2010 as it related to a different area of the H.S.E. Accordingly it could make no submissions with regard to that contract of employment.

Findings of the Court

Section 9(2) of the Act provides

• (2) Subject to Subsection (4), where after the passing of this Act afixed-termemployee is employed by his or her employer or associated employer on two or more continuousfixed-termcontracts 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 4 years.

  Section 9(3) provides

  9(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

The Respondent submits that irrespective of this submission the awarding of a fixed-term contract of employment and not a contract of indefinite duration in November 2008 is justified on objective grounds within the meaning of Section 9(4) of the Act.

Section 9(4) of the Act provides

(4) 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 a renewal.

Objective grounds are described in Section 7(1) in the following terms: -

• (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 furtherfixed-term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

• 60 As this concept of ‘objective reasons’ is not defined by the Framework Agreement, its meaning and scope must be determined on the basis of the objective pursued by the Framework Agreement and of the context of clause 5(1)(a) thereof (see, to this effect, inter alia Case C-17/03 VEMW and Others [2005] ECR I-4983, paragraph 41, and the case-law cited, and Case C-323/03 Commission v Spain[2006] ECR I-0000, paragraph 23).
  

  61 The Framework Agreement proceeds on the premiss 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).
  

  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).
  

  63 From this angle, the Framework Agreement seeks to place limits on successive recourse to the latter category of employment relationship, a category regarded as a potential source of abuse to the disadvantage of workers, by laying down as a minimum a number of protective provisions designed to prevent the status of employees from being insecure.
  

  69 In those circumstances, 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.
  

  70 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.
  

  72 Such a provision, which is of a purely formal nature and does not justify specifically the use of successive fixed-term employment contracts by the presence of objective factors relating to the particular features of the activity concerned and to the conditions under which it is carried out, carries a real risk that it will result in misuse of that type of contract and, accordingly, is not compatible with the objective of the Framework Agreement and the requirement that it have practical effect.

In this case the H.S.E. had a temporary need for to provide anaesthetic services to the hospital’s patients whilst it set about filling a vacancy on a permanent basis. This matter was addressed by the High Court inH.S.E. -v-Umar[2011] IEHC 146 (Hedigan J, 7 April 2011)wherein it held that the temporary filling of a hospital consultant post whilst a competition for a permanent post was held was an objective justification within the meaning of Section 7 (1) of the Act. Accordingly the Court takes the view that the H.S.E. had objective grounds for offering the Complainant a further fixed-term contract of employment and not offering him a contract of indefinite duration in November 2008.

However the Court has also examined the contract of employment offered to the Complainant by the H.S.E. on 5 July 2010. That contract contains no objective grounds for renewing the Complainant’s fixed-term contract of employment rather than offering him a contract of indefinite duration. Furthermore the H.S.E. submitted no such grounds in the course of the investigation into the complaint. The Court adjourned the hearing to allow the H.S.E. make further submissions on this point. However no additional submissions addressing this issue were made.

Accordingly the Court finds that the 'fixed-term' contract of employment entered into by the H.S.E. and the Complainant on 5 July 2010 is deemed to be a contract of indefinite duration.

Determination

The Court determines that the Complaint is well founded. The Court further determines that the Claimant’s fixed-term contract dated 5 July 2010 of employment was transmuted to one of indefinite duration by operation of Section 9(3) of the Act. The Court requires the Respondent to acknowledge the indefinite nature of that contract of employment.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
27th September, 2012______________________
JFDeputy Chairman



NOTE

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