FTD1329

• “The Hearing declared the complaint to be out of time under Section 14(3) & (4) of the Protection of Employees (Fixed Term Work) Act 2003”

The case came on for hearing before the Court on 26^thJune 2013. The case was partially heard on that day and adjourned to allow the parties make further submissions to the Court. The matter was before the Court on the 26^thAugust and finally on the 7^thOctober 2013.

Background

The Complainant is employed by the Respondent as a Teacher. She commenced employment on 5^thFebruary 2003 and has been continuously employed on a series of fixed-term contracts of employment to date. She argues that she has been employed to meet a fixed and permanent need of the Respondent. She argues that she was employed on a series of fixed-term contracts and thereby became entitled by law, under Section 9(2) of the Act, to a contract of indefinite duration with effect from 1^stSeptember 2007.

The Respondent argues that the Complainant was employed to provide cover for other staff members who were availing of a statutory right to maternity leave or a contractual right to a career break and or a work-sharing arrangements. It argues that each of those schemes conferred on those staff members a legal or contractual right to return to work. It argues that it was accordingly required to keep their jobs open for them to accommodate their return to work. It argues that the Complainant was employed on a series of fixed-term contracts of employment, each one of which was for the purpose of providing such cover for one or more of the staff members availing of their statutory or contractual rights and entitlements. It argues therefore that the Complainant was not meeting a fixed and permanent need of the School and did not accrue a right to a contract of indefinite duration.

Preliminary Issue

The Respondent submits that the Court does not have jurisdiction to hear the appeal as the Complainant did not submit her appeal to the Court within the six-week time limit set out in the Act. The Respondent submits that Rights Commissioner issued the Decision under Section 14 of the Act on 10^thJanuary 2013. It submits that the Complainant submitted an appeal against the Decision under Section 15 of the Act on 6^thMarch. The Respondent submits that the appeal was submitted outside the six-week time period permitted under Section 15 of the Act.

The Complainant submits that she submitted an appeal against the Rights Commissioner’s Decision on 5^thFebruary 2013. She acknowledges that the appeal was submitted on the wrong form. However, she argues that the intention to appeal the Rights Commissioner’s Decision is clearly set out in the notice.

The Law

• 15.—
  
  (2)An appeal under thissectionshall be initiated by the party concerned giving, within 6 weeks of the date on which the decision to which it relates was communicated to the party, a written notice to the Labour Court containing any particulars that are determined by the Labour Court undersubsection (4)and stating the intention of the party concerned to appeal against the decision.

Section 15(2) of the Act is the relevant statutory provision. It sets out three conditions for an appeal to be validly before the Court. They are

• 
  1. that an appeal shall be initiated by the party concerned giving a written notice to the Labour Court

  2. That the notice shall contain any particulars that are determined by the Labour Court under subsection (4) and

  3. It shall state the intention of the party concerned to appeal against the decision.

In all other respects the forms are identical. The particulars sought by the Court on both forms relate to the details of the Recommendation/Decision under appeal; the Employee and his or her Representative’s details; the Employer and its Representative’s details and a brief summary of the grounds on which the appeal is being made.

The Complainant in this case completed the form and provided all of the relevant details. Not withstanding this, the Court notes that use of the form is not mandatory under the Act. What is mandatory is that the appeal be in writing and be lodged with the Court within six weeks of the date on which the relevant Decision was communicated to the parties by the Rights Commissioner. The form is an administrative facility afforded by the Court for the convenience of the parties and to assist with it's administration of the appeal. The particulars specified on the form are mandatory and the Complainant has included those in the appeal lodged with the Court.

Finally the Complainant states the following on the form submitted on the 15^thFebruary 2013:-

• The employee appeals this decision because it is an unduly restrictive interpretation of the Act.”

The Court finds that the notice of appeal sets out, in unambiguous terms, the Complainant’s intention to appeal against the Rights Commissioners Decision in this case.

Decision of the Court

The Court finds that the Complainant has complied with the requirements of Section 15(2) of the Act and that the appeal is properly before the Court.

Substantive Issue

Complainant’s Position

The Complainant argues that she acquired a contract of indefinite duration under Section 9(2) of the Act in September 2006. She argues that the decision to continue to offer her fixed-term contracts of employment was without objective justification and accordingly the Respondent could not rely on the defence set out in Section 9(4) of the Act. She argues that she was meeting a fixed and permanent need of the School. She argues that she undertook hours that were vacated by staff members that were variously on maternity leave or other contractual leave schemes. However she argues that in addition to those hours she taught courses and hours that met a fixed and permanent need of the school. She maintains that those courses and hours were not vacated by any of the staff members on which the Respondent relies.

Respondent’s Position

The Respondent argues that the Complainant was employed to replace another member of staff on statutory or contractual leave on each and every occasion on which she was offered a fixed-term contract of employment. It submits that the school is under a statutory or contractual obligation to facilitate a return to work by staff on contractual or statutory leave in accordance with the provisions of those schemes. It submits that it employed the Complainant on fixed-term contracts of employment to perform the duties of those staff members while they availed of their entitlements to leave of absence. It submits that at no time during her employment with the school was the Complainant employed other than to cover for another staff member so availing of such leave. It submits that it is required by law or by contract to permit staff availing of such leave to return to work in accordance with the terms of the relevant legislation or scheme. In order to do so it must keep their jobs open to facilitate their return. It submits that this amounts to objective justification for offering the Complainant a fixed-term contract of employment on each and every occasion while employed by the school. It submits that such fixed-term contracts of employment constitute a legitimate objective of the employer and that their use is appropriate and necessary for that purpose. It submits that its decision not to offer the Complainant a contract of indefinite duration is consistent with the provisions of Section 9(4) of the Act and is objectively justified within the meaning of the Act.

It submits that the Complainant’s case was referred an adjudicator under the terms of the Transitional Agreement for the Implementation of Protection of Employees (Fixed-term Work) Act 2003. It submits that the Adjudicator found against the Complainant and held that the decision of the school to employ the Complainant on fixed-terms contracts of employment at the relevant time was objectively justified within the meaning of Section 6 of the Act.

The Law

The Act of 2003 gives effect to the provisions of Directive No. 1999/70/EC of 28th June 1999, of the Council of the European Communities. The relevant Sections of that Act state:-

• 7.—(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.
  
  (2) Where, as regards any term of his or her contract, a fixed-term employee 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 the terms of the fixed-term employee’s con-tract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment.
  

  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.
  
  (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 4 years.
  
  (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.
  
  (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.

In interpreting the Directive and the Act this Court must have regard to the Decisions of the CJEU and of the Irish High and Supreme Courts. Taken together those Courts have set out how the law should be interpreted and applied in an individual case. The current state of the law in this regard is set out below.

The existence of objective grounds justifying the renewal of a fixed-term contract (and by extension the operation of Section 9(3)) is to be ascertained by reference to the circumstances pertaining at the commencement of the contract in question. This was made clear by Hanna J inRussell v Mount Temple Comprehensive SchoolIEHC 533.

It is well established in the jurisprudence of the CJEU, and of this Court, that 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). Moreover, since it operates as a defence to a claim that would otherwise succeed, it is for the Respondent to establish on cogent evidence every element of that defence.

There is a wealth of jurisprudence at both National and European level on the test to be applied in considering if a plea of objective justification can succeed. It is clear from this jurisprudence that mere generalisations in relation to the effect of a measure cannot be sufficient to make out a defence of objective justification (Case 171/88Rinner-Kuhn v FWW Spezial-Gebaudereinigung GmbH & Co. KG[1989] ECR 2743).

In order to make out the defence it is for the Respondent to identify a real need and to show that the less favourable treatment is effective in meeting that need. The Respondent must then go on to prove that the effect of the less favourable treatment on the employee is proportionate to the need of the employer which it is intended to achieve. This requires the Court to balance the detriment suffered by the worker against the benefit accruing to the employer. The Respondent must then establish that there are no alternative means by which the objective in view could be achieved which have a less deleterious effect (Inoue v NBK Designs[2003] 14 E.L.R..98).

In Determination FTD1234UCD and Dr Michael O’Mahony, this Court, having reviewed the applicable jurisprudence, synopsised the principles involved as follows: -

• 1.The Framework Agreement recognises that the benefit of stable employment is a major element in the protection of workers and it is only in certain circumstances that fixed-term employment contracts are liable to respond to the needs of both employers and workers;(C-212/04Adeneler and Ors. v Ellinikos Organismos GalaktosIRLR 716, at par 62)2.The successive use of fixed-term contracts is a potential source of abuse to the disadvantage of workers;(Adenleler, par 63)

• 3.The Framework Agreement lays down a minimum number of protective provisions designed to prevent the status of employees from being insecure. One of the measures intended to achieve that aim is the requirement that there be objective reasons which justify the renewal of fixed-term employment relationships;(Adeneler, par 65)4.The concept of objective reasons must be understood as referring to precise and concrete circumstances characterising a given activity, which are capable in that particular context of justifying the use of successive fixed-term employment contracts;(Adeneler, par 69)5.These circumstances may result, in particular, from: -
  • a.The specific nature of the tasks performed and;

    b.The inherent characteristics of those tasks or;

    c. The pursuit of a social policy objective of the Member State
    (Adeneler, par 69-70)

  6.The justification relied upon must be based on objective transparent criteria which in fact respond to a genuine need, are appropriate for achieving the objective pursued and are necessary for that purpose.(C-307/05,Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud[2007] IRLR 911, at par 58)

  7.Recourse to fixed-term employment contracts solely on the basis of a general provision, unlinked to what the activity in question specifically comprises, does not permit objective and transparent criteria to be identified in order to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.(Adeneler, par 74 and Alonso, par 55)

Applying the law to the facts in this case the Court finds that it is common case that the Complainant would have acquired a contract of indefinite duration by operation of law with effect from 1st September 2006 unless the decision to employ the Complainant on a further fixed-term contract of employment comes within the scope of Section 9(4) of the Act.

The Court is required to consider the position of the parties at the commencement of that contract of employment. The history of that contract is as follows. On 31 May 2006 the Respondent wrote to the Complainant in the following terms:-

• It is proposed that subject to hours being available for the next session you will be appointed as a pro rata part-time teacher for the session 2006/2007 with Dun Laoghaire VEC.

  It will not be necessary for you to be re-interviewed this year and you will be offered a Fixed-Term PRPT contract for the session 2006/2007 subject to satisfactory service and provided that the hours are available.

  You are being offered a fixed-term contract and not a contract of indefinite duration due to the following objective grounds: -

  • 
    1.You are replacing a teacher who is currently on Career Break.
  
  To indicate you are available for the forthcoming session please sign and return both copies of the enclosed Conditions of Service .

On the 18^thDecember 2006 the Chief Executive Officer wrote again to the Complainant. In this letter he states:-

• Further to my letter of 31^stMay 2006 I am pleased to confirm you have been sanctioned as a qualified Pro-Rata Part-time Teacher of Architecture with AutoCad and that you have been appointed to a fixed term contract for the 2006/2007 session.

  I would be obliged if you would sign and return both copies of the enclosed Conditions of Service, Sick Leave/Maternity Procedure, the Computer Usage and Network Policy and the Confidentiality Agreement.

  If you have any queries please do not hesitate to contact the HR Section.

It is common case that the Complainant was working in the post with effect from 1st September 2006.

The Contract of Employment states that the:-

• The purpose of the contract is to teach the assigned number of hours each week over the course of the full school year. The contract commences on 1^stSeptember 2006 and will end on 31^stAugust 2007.

  The Contract is renewable subject to satisfactory service and where the service is required on a part-time basis by the employer for a further fixed period. The appointment is terminable by one months notice in writing from either side subject to statutory provisions and relevant collective agreements.

  The Unfair Dismissals Acts, 1977 to 1993, shall not apply to a dismissal consisting only of the expiring of the fixed-term of this contract without its being renewed.

Ms C commenced her career break in September 2004 and returned to teaching in September 2009. During that time the Respondent submits that the Complainant was employed on successive fixed-term contracts of employment replacing Ms C.

The Respondent submits that in the academic year 2003/2004 the Ms C had 18 class contact hours 12 of which were transferred to the Complainant. The classes/subjects transferred to the Complainant were as follows

Course Hours

ID/ID2 4

ID/ID3 4

CmSub 2

Tutorial 2

The Complainant in addition was assigned the following classes/hours

CAD/IDA 3

CAD/IDB 3

CAD/LSD1 3

CAD/ID3 1

In 2006 the Complainant’s timetable was as follows

Total Hours 22

Tutorial 2

CmSub 2

Design/IDA 3

Design/IDB 3

Draught/ID2 2

Studio/ID3 2

Studio/LSD2 2

Studio/GD1 2

Construction/ID2 2

Prof Prac/LSD1 1

Construction LSD2 1

The Respondent argues that the difference between the two timetables can be accounted for by the ordinary development of course design and content over a period of years and the difference in the amount of class contact hours required of each of the staff members. The Complainant was required to undertake 22 class contact hours. Ms C was required to undertake 18 class contact hours. She was allocated a further 4 hours per week in which to discharge her duties as an Assistant Principal.

The Complainant argues that an analysis of the pattern of her teaching duties do not support that contention. She submits that she undertook ID3 duties consistently over a period of 9 years between 2004 to date. She further submits that she taught LSD2 classes consistently for 8 hours per week over a 10 year period. She further submits that she taught GD1 and GD2 classes, a new course, consistently for a period of 8 years. As this was a new course she submits that she could not have been substituting for another member of staff. She specifically argues that in 2006/2007 12 of the hours she was teaching were in subjects that had either never been taught by Ms C or were part of a new course that had not been taught before.

The Court has examined the extensive documentary evidence together with the respective submissions of each party. The Court finds that the Complainant was employed in 2004/05 to replace a teacher who was on a career break. That teacher worked 22 hours per week 18 of which were class contact hours. The Complainant therefore was required to replace the 18 class contact hours left vacant by the teacher on career break. The Complainant was employed for 22 hours per week however. The Respondent did not adequately explain this discrepancy in hours.

It submitted that it was permitted to employ the Complainant on a 22 hour contract and did so. It took advantage of the administrative flexibility in the system. However such an administrative arrangement does not meet the test set out by the CJEU that the employer seeking to rely on the defence of objective justification must demonstrate that the decision made and actions taken by it are necessary for the purpose. If the requirement was to replace Ms C’s class contact hours then there was a requirement for no more than 18 hours per week. The balance of 4 hours was not necessary for that purpose.

It was suggested that another teacher may have been assigned the Assistant Principal role thereby giving rise to four additional hours that may have been assigned to the Complainant. However no evidence to this effect was presented to the Court. This Court has consistently held that mere assertions are not sufficient to discharge the burden of proving each aspect of the defence on which the Respondent seeks to rely.

Accordingly the Court finds that the Respondent has failed to explain four of the hours the Complainant was contracted to work.

The Court has also examined the timetable worked by the Complainant. The Respondent submits that in 2004/2005 the Complainant was assigned 12 hours from Ms C’s timetable. That teacher had 18 class contact hours. The Respondent did not explain what arrangements were made in respect of balance of the six hours that were not assigned to the Complainant. 10 hours of subjects/classes that were not part of Ms C’s timetable were assigned to the Complainant. The Respondent has not explained to the Court where or how these hours arose that year.

The Respondent states that Ms C was qualified to teach those subjects. However that is not the question at issue. In 2004/05 close on 45% of the hours allocated to the Complainant did not come from the timetable of the teacher she was replacing. By 2006 the figure was well in excess of 50% of the hours she was allocated.

The Respondent seeks to justify the allocation of hours on the basis that the teacher the Complainant was employed to replace while on leave of absence was qualified to teach those hours and that school curricula and courses change from year to year.

Neither of those submissions adequately explain the initial decision to employ the Complainant for 22 hours to replace a teacher whose class contact hours were 18, or to assign to the Complainant only 12 of Ms C’s hours or to assign her 10 hours in her first year and more than 10 hours of subjects and classes in each successive year including 2006/07 that Ms C had never taught though qualified to do so.

In accordance with Section 9(2) of the Act the Complainant became entitled to a contract of indefinite duration in September 2006 unless Section 9(4) applies. In order for Section 9(4) to apply the Respondent must make out on cogent evidence every element of the defence. It is well settled that such a defence may arise from the following:-

• a.The specific nature of the tasks performed and;

  b.The inherent characteristics of those tasks or;

  c.The pursuit of a social policy objective of the Member State
  (Adeneler, par 69-70)