FTD1232

• 
  1. 2^ndJanuary 2002 - 30^thJune 2005

  2. 30^thJune 2005 - 7^thMarch 2011

  3. 7 March 2011 - 30 June 2011

  4. 30 June 2011 - 30 September 2011

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

Mr Coyne, on 22 July 2011, made a complaint to the Rights Commissioner pursuant to section 9 of the Act in the following terms

“I have not been offered a contract of indefinite duration despite over four years continuous service and 2 plus contracts. In my most recent contract I was not given objective grounds for not offering me a CID.”

The Respondent argued that there were objective grounds justifying the renewal of the fixed term contract of employment and accordingly the provisions of Section 9(4) of the Act apply.

The Rights Commissioner found that there were objective grounds justifying the renewal of the fixed-term contract on 30^thJune 2005 and on 7^thMarch 2011 but that there were no such objective grounds that justified the renewal of the Complainant’s fixed term contract of employment on 30^thJune 2011. He decided that contract had by operation become a contract of indefinite duration with effect from that date. He further decided that the Respondent failed, contrary to the provisions of Section 8 of the Act to set out in writing prior to the renewal of that contract of employment the objective grounds upon which it had decided not to offer him a contract of indefinite duration. The Rights Commissioner awarded the Complainant compensation in the sum of €1,000 in respect of the breach of Section 8 of the Act.

The Respondent appealed against that decision to the Labour Court pursuant to Section 15 of the Act.

The case came on for hearing before the Court on 31 July 2012.

Background

The Complainant was employed by the Respondent as a Security Attendant with responsibility for the safekeeping of the Gallery’s National Collection. He was employed on a series of fixed term contracts of employment between 2002 and 2011 when his employment was terminated following his failure to secure a permanent position in a confined competition conducted by the Respondent. The Complainant contends that he became entitled to a contract of indefinite duration by operation of law pursuant to the provisions of Section 9(1) of the Act. The Respondent submits that the provisions of Section 9(1) do not apply as there were objective grounds justifying the renewal of each of the fixed term contracts of employment under which the Complainant was employed. It submits that the provisions of Section 7(1) of the Act apply.

The Gallery’s Position

It was common case the Mr Coyne was employed on two or more fixed term contracts of employment the aggregate duration of which exceeded four years. The issue in dispute between the parties was whether there were objective grounds justifying the renewal of each of the fixed term or fixed purpose contracts of employment.

Counsel for the Respondent submits that objective grounds justifying the renewal of the fixed term contracts of employment exist in this case.

He refers to the provisions of Section 7(1) of the Act and submits that the renewal of the Complainant’s fixed-term contract of employment was for the purpose of achieving a legitimate objective of the employer and such treatment was appropriate and necessary for that purpose.

The First Contract

He submits that the first contract of employment provides as follows:

• “The specified purpose of this contract is that you are being employed to secure the National Collection at the National 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 cease 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

Counsel for the Gallery submits that the Complainant’s second fixed term contract of employment that commenced 30 June 2005 was for the purpose of undertaking the workinvolved “on a temporary basis until such time as refurbishment commences at the National Gallery’s Historic Buildings under the Gallery’s Master Development Plan.”It further provided as follows“Your employment will terminate automatically without any right to notice on the commencement of refurbishment as referred to in clause 1.1”

He submits that at the time the contract was issued the National Gallery was awaiting approval to proceed with the execution of the Master Development Plan. It was anticipated that large sections of the Gallery would be closed to the public for the duration of the redevelopment work involved. It was anticipated that the redevelopments would continue for several years during which there would be a reduced demand for the work for which the Complainant was employed.

In this context he submits that in the period leading up to the commencement of the development works the Gallery had a short term requirement for the work performed by the Complainant. He submits that the renewal of the fixed term contract of employment in those circumstances met a real need of the employer, was appropriate for achieving that purpose and was necessary to that end. He referred the Court to the judgement of the ECJ inBilks-Kaufhaus GmbH v Weber Von Hartz [1986] IRLR 317.

He submits that at that time Gallery management was in discussions with the Department of Finance seeking funding and approval for the appointment of additional staff. He submits that the Gallery, without funding and approval, did not have the finances or the authority to employ permanent staff or to convert the status of staff employed on fixed term contracts of employment to permanent status.

He submits that when refurbishment work on the Dargan Wing commenced on 7 March 2011 the fixed purpose for which the Complainant had been employed was exhausted. However because the refurbishment works were being undertaken on a phased basis the Complainant’s services were required for a further short period of time pending the commencement of the refurbishment on the Milltown Wing that were scheduled to start in early 2012. For this reason the Respondent extended the Complainant’s fixed term contract of employment until 30 June 2011when it was envisaged that the preparatory works for phase 2 would commence.

During this time the Gallery was in discussions with the Department of Finance seeking funding and approval for the appointment of additional permanent staff. The Gallery had lost 6.5 attendant staff since March 2009 and it was seeking permission to replace these from amongst the cohort of fixed term workers then in employment. Because vacancies for permanent staff are advertised amongst a closed pool of workers the Gallery extended the Complainant’s fixed term contract of employment to enable him to compete for one of those positions. To this end the Complainant’s contract was further extended until 30 June 2011. However at that time the approval and finances sought had not been forthcoming from the Department of Finance and the Complainant’s employment was terminated.

The Complainant’s Case

The Complainant’s Trade Union Representative submits that the Complainant was employed on a series of fixed term contracts of employment that brought him within the scope of the Act. He submits that the renewal of the Complainant’s fixed term contract of employment in June 2005 comes within the provisions of Section 9(1) of the Act. He submits that the Gallery was entitled to renew the Complainant’s contract of employment at that time on one occasion and for no more than one year only. He submits that the decision to renew the Complainant’s contract for an indefinite period of time was contrary to the provisions of the Act.

He submits that the Respondent has failed to make out a case of objective justification within the meaning of Section 7(1) of the Act for this or subsequent renewals of the Complainant’s fixed term contract. He submits that at the renewal of the Complainant’s contract in 2005 the timescale for the commencement of the Master Development Plan was vague and no finances were in place to enable the work to be undertaken within any reasonably foreseeable period of time. He submits that the Complainant was meeting a fixed and permanent need of the Respondent. He submits that this was evidenced by the repeated submissions made by the Gallery to the Department of Finance seeking approval for the appointment of permanent staff in the grade in which the Complainant was employed. He submits that the subsequent contracts of employment he received were to enable the Gallery to meet its fixed and permanent needs. He submits that the reason the Complainant was maintained in employment on successive fixed term contracts of employment arose out of the Department of Finance’s refusal to provide funding for the post rather than any short term need of the Respondent. He submits that it is settled law that funding cannot be objective justification for the use of successive fixed term contracts of employment. He submits that the final contract of employment that was issued to the Complainant establishes beyond doubt that funding was the primary reason he was retained on a series of fixed term contracts of employment. He submits that the letter of 29 June 2011 to the Complainant setting out the terms of the extension of his contract of employment to 30 September 2011 does not set out objective grounds within the statutory meaning of that term. Accordingly he submits the provisions of Section 8 of the Act have not been complied with.

Findings of the Court

Section 9(1) of the Act provides

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

• 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

Accordingly unless it is saved by the provisions of Section 9(4) of the Act it is pursuant to the provisions of Section 9(3) of the Act be deemed a contract of indefinite duration.

• .

(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 furtherfixedterm) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

The concept of “objective reason” has been addressed by the European Court of JusticeinKonstantinos Adeneler and Others v Ellinikos Organismos Galaktos (ELOG) Case C-212/04where it held

• 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.

When determining whether the renewal of the Complainant’s fixed term contract of employment in 2005 comes within the scope of section 9(4) of the Act, the Court must consider whether it had the the purpose of “achieving a legitimate objective of the employer” and it must be appropriate and necessary for that purposethe circumstances in which it was issued. It must also measure it against the test set out in Adeneler, i.e. determine whether its renewal arises out of and relates to the“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” andin order to meet the requirements of the Act, be.

In this case the Gallery put forward three objectives that it submits meets these tests. It submits that the demand for the work performed by the Complainant would cease when the development works commenced; it submits that it did not wish to have surplus permanent staff employed when the works commenced as it could not make them redundant under the terms of the various collective agreements in place in the public service and thirdly it submits that the Department of Finance had not given approval or funding for the permanent employment of the requested number of Service Attendants.

The question for the Court to decide therefore is whether the grounds advanced by the Respondent for the renewal of the fixed term contract of employment for a further period amounts to objective grounds within the meaning of the Act.

The Court considered the renewal of each of the fixed term contracts in turn commencing with the contract dated 30 June 2005. It is clear that in June 2005 the work performed by the Complainant met a fixed and permanent need of the Respondent. At that time the Gallery was seeking approval from the Department of Finance to fill a number of vacancies at the Complainant’s grade on a permanent basis. This appears to have been a permanent feature of the Gallery’s relationship with the Department of Finance at that time. The Court was told that as it was not given approval to appoint permanent staff it was left with no choice but to employ staff on fixed term contracts of employment at that time. The numbers employed on such contracts of employment varied from a high of 30 to a low of 20 at that time.

In the absence of approval from the Department of Finance to appoint permanent staff the Complainant was employed on a fixed term contract to undertake the relevant work. The fixed term contract of employment dated 30 June 2005 does not refer to approval from the Department of Finance as a justification for not offering the Complainant a contract of indefinite duration. Instead it relies on the planned redevelopment work to justify that decision. Accordingly the Court must decide if, at that time in June 2005, there was a realistic prospect of the refurbishment work commencing within a time scale that would justify the renewal of the fixed term contract of employment on that occasion for a period in excess on one year that was permitted by the provisions of Section 9(1) of the Act.

The information supplied to the Court indicates the Architectural Services Division of the Office of Public Works, in 1999, prepared a detailed plan for the completion of the Master Development Programme (MDP). The programme of work was segregated into 10 phases the first of which was due to commence in the year 2000 after the expected completion of the Gallery’s new Millennium Wing (”Clare Street Extension”) and with an anticipated completion date of 2004. The Minister for Arts, Heritage, Gaeltacht and the Islands, agreed in principle to the refurbishment phases of the plan in 2000. In December 2001 the Department of Finance approved the additional attendant posts for the new Millennium wing on fixed term contracts until such time as the Gallery’s existing wings closed for essential repairs. The millennium Wing was not completed until January 2002 with a consequent delay to the MDP project. In June 2002, the 1999 plan was updated to include a new commencement date of late 2002 with completion date of April 2007. Nothing further occurred between 2002 and 2005 the date on which the Complainant’s fixed term contract of employment was renewed. No information or evidence was presented to the Court that would indicate that there was any real prospect of financing or approval for the commencement of the Master Development Plan within any reasonable timescale. No funding had been approved, no contracts had been entered into, no planning permission had been sought and no realistic time table for the commencement of the works had been developed. It would appear that the project at the time of the renewal of the Complainant’s contract of employment had not advanced beyond the draft proposal put forward in mid- 2002. Indeed Counsel for the Gallery said that no further material steps had been taken to advance the project when the Complainant’s fixed term contract of employment was renewed in 2005.

The Court notes that Gallery had been in regular discussions with the Department of Finance seeking approval for additional permanent staff during this period. The Gallery had limited success in this regard. In effect the numbers of permanent staff it sought to meet its fixed and permanent needs had not been approved by the Department of Finance. Instead it had given approval to employ a significant number of staff on fixed term contracts of employment pending the commencement of the redevelopment plan. That same Department however made no provision for the financing or execution of that plan.

In the absence of any timescale for the commencement of the refurbishment works, the fixed and permanent need for the work the Complainant was employed to perform and the Gallery’s repeated applications to the Department of Finance for approval to appoint additional permanent members of staff to meet those needs, the Court finds that at the time the Complainant’s contract was renewed in 2005 he was meeting a fixed and permanent need of the Gallery.

The “objective grounds for the renewal of the Complainant’s fixed-term contract w” were set out by the Gallery in the following terms: -

Firstly the Gallery required but did not secure Department of Finance approval for the appointment of staff to permanent positions. The Department of Finance did not explain this decision to the Court. The Gallery clearly felt it had a fixed and permanent need for attendant staff. Indeed the document entitled “Master Development Programme” submitted by the Respondent to the Court seems to indicate that it was the Department of Finance that decided to approve the additional attendant posts for the new Millennium Wing on fixed term contracts of employment “until such time as the Gallery’s existing wings close for essential repairs.” Accordingly it would appear that the driving force behind the appointment of staff on successive fixed term contracts of employment was the Department of Finance rather than the Gallery itself.

Secondly the Gallery and apparently the Department of Finance had a concern that the demand for permanent staff would be reduced during the development works that were planned for some future date.

Finally the Gallery did not wish to have surplus staff when the works actually commenced as redundancy was not a practical option available to it to deal with a surplus staff numbers.

The Court of Justice of the European Union addressed the concept of objective grounds in the 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 advanced by the Gallery was that its need 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. During the works the Gallery’s requirement for services and security staff would, temporarily, be considerably diminished as a large number of the galleries would be closed to the public.

What works would eventually be approved, when they would commence, and how long they would take was unknown and unknowable in 2005 when the Complainant’s fixed term contract of employment was renewed. Clearly the Gallery did not wish to have a number of staff members that were surplus to requirement while the works were taking place. However to appoint the Complainant on a series of fixed term contracts of employment for what was in effect an indefinite period of time, pending the commencement of redevelopment works at some unspecified time in the future, appears to this Court to amount to the very abuse of successive fixed term contracts of employment the Directive and consequently the Act was designed to prevent.

The Court, finds that the work the Complainant was employed to undertake was part of the Gallery’s fixed and permanent needs, does not accept that there were objective grounds that would justify the decision to renew the Complainant’s fixed term contract of employment in June 2005 for a period in excess of 1 year as provided for in Section 9(1) of the Act and determines that that contract is deemed a contract of indefinite duration by operation of law in accordance with the provisions of Section 9(4) of the Act.

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 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. In effect the approval to undertake the Development Plan was approved in principle as it had been when the First Contract had been issued. Counsel for the Gallery told the Court that “approval in principle” did not imply any timescale within which the project must commence. Indeed it was acknowledged that there were many projects that had been “approved in principle” by various Ministers in various governments that were delayed for very long periods of time or indeed were never proceeded with at all.

In these circumstances 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.

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 avoid such an eventuality 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 concomitant objective of the Gallery at this time was 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 redevelopment 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. Avoiding a legal liability to a worker is not a legitimate objective of an employer.

Finally 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. However the approval sought was not forthcoming. This 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 by a third party of approval to appoint a person on a permanent contract of employment is not a valid basis upon which to issue a series of successive fixed term

In all of the circumstances the Court finds that the fixed term contract of employment that issued to the Complainant on 1 February 2007 became a contract of indefinite duration by operation of law from that date.

Having so determined the matter is disposed of. However for completeness sake the Court also finds that the Gallery had a less discriminatory means available to it to deal with the circumstances it faced. The Gallery had the option to employ the Complainant on single fixed purpose contract or alternatively to employ him permanently and redeploy him, put him on short time or lay him off or make him redundant whilst the development works were taking place. The purpose of the Act is to prevent the abuse 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 vehicle for employing people over an extended period.

The Court was told that redundancy is not a realistic option in the public service which removed such an option from the Gallery. The Court does not accept this view. The Gallery entered into an agreement with its trade unions as part of a series wider public service agreement by which it limited its capacity to make its permanent staff redundant in return for certain concessions by them on mobility and change. Having willingly done so, the Gallery cannot now seek to use this self imposed limitation as a justification for denying the Complainant assess to the standard for of employment contract. His statutory entitlement cannot be compromised in this this way without his agreement. The fact remains that the Gallery has a lawful option to make staff redundant where there is no work for them. Any decision it takes not to avail of this lawful option does not give rise to a legitimate objective on which the Gallery can rely in deciding to renew a fixed term contract of employment. Furthermore redundancy was not the only option available to the Gallery to deal with a temporary situation that would arise whilst the redevelopment works took place.

The Court examined the subsequent contracts of employment issued to the Complainant. The Court is satisfied that there were objective grounds advanced by the Gallery for the third contract of employment. The works at that stage had been approved and a schedule against which they were due to be carried out was agreed. The Gallery clearly had a temporary need to bridge the gap between the commencement of the works on the Dargan Wing and the commencement of the preparatory works on the Millotown Wing.

The Court finds that no objective grounds were advanced by the Gallery for the fourth fixed term contract of employment. In this case the Gallery acknowledges that the refurbishment works were now underway and the original justification for the fixed term contracts of employment had now come to pass and no longer applied. The fourth fixed term contract of employment was therefore not related to the refurbishment works. Instead the Gallery told the Court that it had sought approval from the Department of Finance to appoint permanent staff to meet its fixed and permanent needs. On this basis it extended the Complainant’s fixed term contract of employment to enable him to participate in a confined competition for any permanent posts that might be approved by the Department of Finance. In the event his employment was terminated before the approval was forthcoming.

The gallery submits that the Complainant was advantaged by this extension to his Contract and that this amounts to an objective justification on the one hand and is envisaged in the Directive where it recognises that fixed term work can “suit the needs” of both workers and employers. In this case it suited the worker to be granted a fixed term contract to enable him to participate in the prospective confined competition.

The Court does not accept this view. The Complainant was clearly meeting a fixed and permanent need of the Gallery. It in turn was seeking approval and financing from the Department of Finance to meet this need. But for the withholding of finance it is clear that the Complainant would not have been employed on successive fixed term contracts of employment. Rather he would have been employed on a contract of indefinite duration which the Directive recognises as the normal employment contract that provides workers with security and certainty of employment. Furthermore the Court notes the decision of the CJEU ininHill and Stapleton v Revenue Commissioners [1969] 1 ICR 48where it held

• “So far as the justification on economic grounds is concerned, it should be noted that an employer cannot justify discrimination … solely on the ground that the avoidance of such discrimination would involve increased cost”

The Court was referred to the decision of this Court in National University of Ireland Maynooth v Dr. Ann Buckley (FTD092) in which the Court held

“The Court is of the view 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 Court has carefully considered the details of that case and is satisfied that the circumstances that applied there do not apply here. The Complainant in that case had approached the University seeking an accommodation to enable her to secure funding to undertake research. The University accommodated her. She then sought to assert an entitlement to a contract of indefinite duration. It was in this context that the determination was issued.

None of those circumstances apply in this case. Accordingly the Court does not consider it to be relevant to the case under consideration.

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.

Section 8

Section 8 of the Act provides

• (2) Where an employer proposes to renew afixed-termcontract, thefixed-termemployee shall be informed in writing by the employer of the objective grounds justifying the renewal of thefixed-termcontract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

The Complainant submits that the Gallery failed to meet its statutory obligations as set out above. The Respondent submits that the Gallery issued the Complainant with a letter dated 29 June 2011 that meets the terms of Section 8 of the Act.

The relevant section of the letter states:

I refer to your current fixed-term contract dated 3^rdmarch, 2011 which is due to expire on 30^thJune, 2011. The Gallery is currently in discussion with the Department of Finance regarding the possibility of retaining on a permanent basis a certain number of fixed-term employees notwhitstanding the commencement of the construction work on the Historic Buildings of the Gallery. In order to accommodate this possibility, the Gallery is in a position to continue to employ you on a temporary basis sup until and including 30^thSeptember 2011 by which time the Gallery will have received confirmation from the Department of Finance as to how many staff, if any, it is possible to retain on a permanent basis. For this reason, the Gallery proposes to renew your fixed-term contract for a further period ending on 30^thSeptember, 2011 and consequently, it is not in a position to offer you a contract of indefinite duration.”

On the face of it the Gallery, in that letter, has set out what it considers to be objective grounds for renewing the Complainant’s fixed term contract of employment and for not offering him a contract of indefinite duration. The Rights Commissioner seems to have confused two sections of the Act. Section 8 requires that the employer set out the objective grounds it intends to rely on for renewing the fixed term contract of employment. Whether they amount to “objective grounds” within the meaning of Section 7 of the Act is quite a separate matter. If and when the Rights Commissioner or this Court decides that they do not amount to objective grounds within the meaning of Section 7 of the Act such a decision does not then retrospectively place the Employer in breach of Section 8 of the Act. All the employer is required to do to comply with the provisions of Section 8 of the Act is to set out in writing to the worker concerned the objective grounds upon which he is deciding to renew the fixed term contract of employment rather than offer him or her a contract of indefinite duration. It is then a matter for the worker concerned to challenge those grounds and for a Rights Commissioner or this Court to ultimately decide the matter in the context of the provisions of Section 7 of the Act.

Determination

The Court determines that the fixed purpose contract of employment set out by letter dated 15^thJune 2005 was not justified on objective grounds within the meaning of Section 7(1) of the Act and is by operation of law deemed a contract of indefinite duration. The Court further finds that, if it is wrong in this, the fixed term contract of employment offered to the Complainant by way of letter dated 29^thJune 2011 was not justified on objective grounds within the meaning of Section 7(1) of the Act and is by operation of law deemed a contract of indefinite duration. The Court orders the Gallery to reinstate the Complainant into his employment with effect from the date of the termination of his employment. The Court further orders the Gallery to pay to the Complainant any arrears of pay due to him less the amount of monies paid to him by way of redundancy pay he has already received.

The Court upholds the appeal by the Gallery against the adverse finding made against it under Section 8 of the Act.

The Court awards the Complainant compensation in the sum of €3,000 for breach of his entitlement under section 9 of the Act

The Rights Commissioner’s decision is varied accordingly.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
17th September 2012______________________
CRDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.