FTD132a

Introduction

This is an appeal by Dr Abdel Raouf Sallam against the decision of a Rights Commissioner in his claims against the Health Service Executive made pursuant to the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). In keeping with the normal practice of the Court the parties are referred to in this Determination as they were at first instance. Hence, Dr Sallam is referred to as the Claimant and the Health Service Executive is referred to as the Respondent.

The complaints before the Rights Commissioner related to claimed infringements of sections 6, 8, 9, 10 and 13 of the Act. The Rights Commissioner found against the Claimant on all of his complaints. The Claimant appealed against the totality of the Rights Commissioner’s decision. At the hearing of the appeal only the complaint claiming a contravention of s.9 of the Act was pursued for the purpose of seeking redress. A claimed contravention of s.8 of the Act was, however, relied upon in advancing the claim pursuant to s. 9 of the Act.

Representation

The Claimant was represented by Ms Marguerite Bolger S.C, instructed by Hefferan Foskin, Solicitors. The Respondent was represented by Ms Mary Fay B.L.,instructed by Arthur Cox, solicitors.

The claim before the Court

The essence of the claim now before the Court is that the Claimant’s fixed-term employment was transmuted to employment of indefinite duration by operation of s. 9 of the Act.

Background

The Claimant is a Consultant Obstetrician and Gynaecologist. He qualified as a medical doctor in Egypt and obtained post qualification experience and post graduate qualifications in the UK. He was employed by the Respondent, and its statutory predecessor, on a series of fixed-term contracts in his capacity as a Consultant Obstetrician and Gynaecologist between 3^rdJune 2003 and 16^thAugust 2011. The Claimant’s employment history is as follows: -

Start Date	Finish Date	Location	Purpose of Contract
3rdJune 2003	2ndJune 2004	Wexford General Hospital	Temporary Consultant
3rdJune 2004	30thJune 2004	Wexford General Hospital	Temporary Consultant
1stJuly 2004	30thApril 2007	Wexford General Hospital	Pending permanent filling of post
17thMay 2007	18thMay 2007	Portlaoise Hospital	Locum for named Doctor
11thJune 2007	29thJune 2007	Cavan General Hospital	Locum for a number of named Doctors
1stJuly 2007		Sligo General Hospital	Locum for Named Doctor
1stJune 2008	(Revised Contract)	Sligo General Hospital	Locum for Named Doctor
	June 2010	Sligo General Hospital	Retirement of Named Doctor
	16thAugust 2011	Sligo General Hospital	Employment Terminated on Another Appointment being made Purpose of employment between retirement of named Doctor and Termination date in Dispute.

Position of the parties

The Claimant

The Claimant contends that he was continuously employed by the Respondent from June 2003 until August 2011, a period of some eight years. He claims an entitlement to a contract of indefinite duration by operation of law pursuant to s9(1) of the Act. In the alternative, if his employment is found not to have been continuous, he claims an entitlement to such a contract by virtue of his period of employment at Sligo General Hospital between July 2007 and 16th August 2011. Central to this latter proposition is the Claimant’s contention that his employment during that period was pursuant to successive fixed-term contracts rather than a single contract. On that point the Claimant asserts that his contract was renewed twice during that period; firstly in June 2008 when he became employed on the revised Consultants Contract and secondlywhen the named Doctor retired and the purpose of his employment changed.

The Respondent

The Respondent denies that the Claimant was continuously employed within the statutory meaning of that term. It contends that his service was broken between the expiry of his contract in respect of Wexford General Hospital on 30th April 2007 and the commencement of his next contract at Portlaoise General Hospital on 17th May 2007. According to the Respondent there was a further break in service between the expiry of that latter contract on 18th May 2007 and the commencement of next contract in Cavan General Hospital on 11th June 2007.

The Respondent contends that the Claimant’s reckonable service for the purpose of the within claim is that which he accrued in Sligo General Hospital between 1^stJuly 2007 and 16^thAugust 2011. It is the Respondent’s case that this period of employment was pursuant to a single fixed purpose contract. It contends that the stated purpose of the contract was to provide locum cover during the absence of a named Doctor or until alternative arrangements were made. The material facts surrounding this point, which are not in dispute, are that a named Doctor who was permanently employed as a Consultant Obstetrician Gynaecologist at Sligo Hospital was absent on long term sick leave. The Respondent needed another Consultant to cover that vacancy and employed the Claimant for that purpose. The permanent Consultant retired suddenly in or about June 2010. The Claimant remained in the post and continued to discharge his duties as before. The Respondent did not advertise the vacancy that then ensued. Rather, a Consultant was appointed permanently from a panel which had been created following the filling of another vacancy which arose during the previous year. The Claimant had applied for the earlier post but was unsuccessful. Nor was he found suitable at that time for placement on the panel.

Issues to be decided

It is clear from the submissions advanced by the parties that there are essentially three questions that fall to be decided in this case. Firstly there is an issue as to the duration of the Claimant’s continuous / successive fixed-term employment. There is then the question of whether his employment at Sligo General Hospital was pursuant to a single fixed-purpose contract, as the Respondent contends, or to two or more contracts, as the Claimant contends. In the event of the Court deciding that the reckonable period of employment was pursuant to two or more continuous / successive fixed-term contracts extending beyond four years, a question arises as to whether there were objective grounds justifying the renewals

The Court notes that while the Claimant contends that his employment was continuous / successive on a series of fixed-term contracts the only issue as to the existence of objective grounds justifying the various renewals relates to the period during which he worked in Sligo General Hospital. The Claimant accepts that where a fixed term contract is for the express purpose of providing cover for a specific individual who is absent from work, or is concluded for the express purpose of providing cover while the process of filling a post is in train, the use of a fixed-term contract is generally to be regarded as justified (see, the decisions of the High Court inRussell v Mount Temple Comprehensive School[2009] 20 E.L.R 81, and that inHealth Service Executive Dublin North East v Umar22 E.L.R. 229). The Claimant does not dispute that his fixed-term employment, prior to his assignment to Sligo General Hospital, was for one or other of these purposes.

The law

The circumstances in which a fixed-term contract can be transmuted to one of indefinite duration are to be found at s.9 of the Act. Subsection (1) of this section provides: -

• (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.

• 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

Objective Justification

It is well established in the jurisprudence of the CJEU, and of this Court, that
s.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)

What constitutes a fixed-term contractis to be ascertained by reference to the statutory definition of a fixed-term employee contained at s.2 of the Act. It provides: -

• “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event….”

• “(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
  
  • arriving at a specific date,
    
    completing a specific task, or
    
    the occurrence of a specific event.
  
  (2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.
  
  (3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.
  
  (4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—
  
  (a) that an employer omitted to provide a written statement, or
  (b) that a written statement is evasive or equivocal,
  
  the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

It will be noted that s.9(1) refers to “continuous employment” and s.9(2) refers to “continuous fixed-term contracts” There is a difficulty in construing these terms which arises from the wording of Clause 5 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 1999/70, (hereafter the Directive) which the Act was enacted to transpose in domestic law. While s.9 of the Act is directed at preventing the unlimited use of continuous fixed-term contracts the objective of the Directive is to combat the abuse of successive fixed-term contracts. While the concept of successive periods of employment can include those which follow on from each other even if separated by time, the notion of continuous employment connotes unbroken service. In that regard,prima facie,there appears to be a conflict between the language used in the Act and that of the Directive. In considering this apparent conflict the Court must apply the well settled principle of European law that national law must be interpreted, as far as possible, in light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive.

While the expression “successive” is not defined in the Framework Agreement, s9(5) of the Act provides that the First Schedule of the Minimum Notice and Terms of Employment Act 1973 should apply for the purpose of determining if employment is continuous. The First Schedule of the Act of 1973 provides, in effect, that all service is to be regarded as continuous unless it is broken by dismissal or resignation. It goes on to provide that a lay-off does not constitute a dismissal. It also provides that a dismissal followed by immediate reemployment does not break continunity of service.

The apparent conflict between the language used in the Act and that used in the corresponding provision of the Directive was extensively considered by this Court inDepartment of Foreign Affairs v a Group of Workers[2007] E.L.R. 332 and inWilliam Beery v The Revenue Commissioners22 E.L.R 137. In both cases the Court found that any inconsistency between the Act and the Directive could be resolved by ascribing a liberal and expansive meaning to the term lay-off, thus complying with the interpretative obligation derived from European law.

Conclusion

Continuous / successive employment

Turning first to the question of whether the Claimant’s employment can be regarded as continuous / successive, it is noted that there was a break of 15 days between the end of his final contract at Wexford General Hospital and the contract in respect to Portlaoise General Hospital (30^thApril 2007 to 17^thMay 2007, exclusive). There was a further break of 21 days between the ending of the Portlaoise contract and the commencement of the next contract in respect to Cavan Hospital (18^thMay 2007 and 11^thJune, exclusive). It is also noteworthy that while the Claimant commenced employment in Cavan Hospital on 11^thJune 2007, the contract appears to have been concluded on 5^thJune 2007, as this is the date appearing on the letter from the Respondent notifying him of his appointment. Thus, the effective period in which the Claimant was not contractually engaged with the Respondent was one of 15 days.

In case C-212/04Adeneler and Ors. V Ellinikos Organismos GalaktosIRLR 716 the CJEU held that contracts separated by a period of 20 days must be regarded as successive. On that authority this Court inUCD and Dr Michael O’Mahonyrejected the Respondent’s contention that the Claimant’s service was broken by a gap of 16 days between contracts. In the instant case the Court does not accept that the period separating any of the Claimant’s contracts could provide a sufficient basis upon which it could be held that the full period of his employment, from 2003, was not successive / continuous.

In reality little turns on this point since the Claimant accepts that each of the renewals prior to the contract in respect of Sligo General Hospital were, in fact, objectively justified.

However, even if the Court is wrong on that point, it is clear that the contract in respect of Sligo General Hospital followed almost immediately on the conclusion of the contract in respect of Cavan General Hospital. Consequently, the contract in respect of Sligo Hospital was a renewal of the contract in respect of Cavan Hospital. In that regard the contract in respect of Cavan General Hospital expired on Friday 29^thJune 2007. His next contract, in respect of Sligo General Hospital commenced on Sunday 1^stJuly 2007. Thus, only one day separated the ending of the Cavan contract and the commencement of the Sligo contract. On that basis alone the Rights Commissioner’s finding that the Claimant’s period of continuous employment commenced on 1^stJuly 2007 and that his fixed-term employment was not renewed could not be correct.

In light of this finding it is unnecessary for the Court to consider if the revised contract entered into between the parties in 2008 constituted a renewal for the purposes of s.9(1) or s.9(2) of the Act. However, for the sake of completeness, the Court has considered the submissions made on this point and has come to the conclusion that what occurred at that time was that the Respondent merely gave effect to the terms of an agreement reached between the Respondent and trade unions representing the Consultants whom it employed. The Act, and the Directive which it was enacted to implement, is directed at preventing the abusive renewal of fixed term contracts or employment relationships. The Court does not believe that the revision of contractual terms for the purpose of giving effect to such an agreement could, either in law or in logic, be regarded as an abuse coming within the intendment of the Act.

Purpose of the Sligo Contract

The construction of the provision in the contract entered into between the parties in respect of Sligo General Hospital, in so far as it relates to the purpose of the contract, is a matter of considerable contention between the parties.

The contract executed by the parties is headed“Amended Specified Purpose Contract of Employment (Temporary)”. At Clause 1 it recites the title of the post to which the Claimant is appointed as “Locum Consultant Obstetrician Gynaecologist”. Under the heading “Purpose and Termination” the following is recited: -

• “Your employment with the Health Service Executive shall be for the purpose of Locum Consultant Obstetrician Gynaecologist in the absence of [a Named Doctor].

• “This is a fixed-term contract, which will end on 31^stDecember 2007. It may be renewed again at that time unless [named Doctor] returns to work. There is an obligation on the HSE to write to you setting out objective grounds why it will not be renewed if he has not returned by then”

• “You are being offered a Specific Purpose Contract as Locum Consultant to fill the post as [named Doctor’s] Locum. You are not being offered a post of indefinite duration as this post is vacant on a temporary basis and the duration of such a post will cease on the return of [named Doctor] or until alternative arrangements are put in place.”

• Since the phrase ‘in full and final settlement of all claims’ emanated from the company, it must be construed against them. I do not agree with the submission on behalf of the company that it was for the Union to state that acceptance of the offer was without prejudice to back claims. This would have the effect of negating the rule that a document must be construed contra proferentum. I agree with the Labour Court finding that a promise not to pursue the equal pay claim is not clear.

• “Dr Sallam was appointed to this position on 1^stJuly 2007 on a specified purpose contract to cover the leave of absence of the permanent post holder [a named Doctor]. Following the retirement of the [named Doctor] in 2010, Dr Sallam continued to cover this post in a temporary capacity pending the filing of the permanent vacancy through open competition through the Public Appointments Service. Dr Sallam applied for the position but was unsuccessful at interview. Dr Sallam continued to fill the post in a temporary capacity until the successful candidate was ready to take up the post pending medical/garda clearances”

Determination

For all of the reasons set out herein the Court has come to the conclusion that the Claimant became employed by the Respondent pursuant to a contract of indefinite duration by operation of s.9(3) of the Act following the retirement of the named Doctor for whom he had acted as Locum. He is therefore entitled to succeed in his claim under the Act.

In considering the question of redress the Court is satisfied that had the Claimants true status been recognised by the Respondent he would not have been dismissed in August 2011. In these circumstances the Court considers that the appropriate form of redress is an order for reengagement. The Claimant is also entitled to compensation for any pecuniary loss which he suffered in consequence of his dismissal. The Court was told that the Claimant obtained alternative employment and his earnings would have mitigated his loss. The Respondent is entitled to the benefit of that mitigation.

While the Court will make an Order for the reengagement of the Claimant on a contract of indefinite duration in accordance with s.14(2)(c) of the Act it will leave over for negotiations between the parties the question of the date from which that Order is to take effect and the quantum of compensation due to the Claimant. In the event of these matters not being agreed either party may apply to the Court for a final Determination on those questions.



Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
17th January, 2013Chairman



NOTE

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