FTD1318

In this Determination Dr Mihaylova is referred to as the Claimant and Dublin Institute of Technology is referred to as the Respondent.

Complaints properly before the Court

The complaints referred to the Rights Commissioner were grounded on alleged contraventions of ss.6, 8, 9 and 10 of the Act. The complaint under s.6 of the Act was not pursued in the appeal. However, the Claimant raised a new complaint in her appeal alleging a contravention of s.13 of the Act. That complaint was not before the Rights Commissioner. As this Court only has appellate jurisdiction a complaint which was not presented to a Rights Commissioner cannot be entertained by the Court. Accordingly, that aspect of the claim was disallowed by the Court.

The within complaints were presented to a Rights Commissioner on 29^thMay 2012. Accordingly the cognisable period for the purpose of these proceedings is that commencing on 30^thNovember 2011. It became clear at the commencement of the hearing that the complaints in relation to s.8 of the Act related to statements of objective grounds furnished to the Claimant by the Respondent at various times before 30^thNovember 2011. There was no application to extend the statutory time limit. Consequently, the complaints in relation to s.8 cannot be entertained by the Court. It also became clear that the complaint under s.10 of the Act related to the filling of a post in or about November 2012. Since the occurrence to which that complaint relates post-dated the referral to the Rights Commissioner it could not have been contemplated by that referral. In these circumstances that aspect of the Claimant’s complaint must also be disallowed as being outside the appellate jurisdiction of the Court.

In these circumstances the appeal proceeded only on the basis of the Claimant’s contention that she accrued a contract of indefinite duration by the combined effect of ss.9(2) and 9(3) of the Act.

Facts
There is no material dispute concerning the factual background giving rise to this case. Those facts can be summarised as follows: -

The Claimant was employed by the Respondent as a researcher and in the supervision of post graduate students. She held a number of fixed-term contacts between 2000 and November 2012. There were a number of breaks in her employment. For present purposes her aggregate period of employment commencing on 1^stJanuary 2008 is being relied upon in grounding her claim under s.9 of the Act.

In that period the Claimant had four period of fixed-term employment as follows: -

The Claimant is currently engaged in a contract involving the supervision of a student in the Respondent Institute. The question of whether this contract is a contract of employment is a matter of contention between the parties. However, that is not a matter of any materiality for the purposes of this appeal.

On the expiry of the Claimant’s third contract in this series, on 31^stJuly 2011, her employment was not renewed. She was informed that her position had become redundant and she was offered a statutory redundancy lump sum. She disputed the existence of a redundancy situation and she did not sign the statutory redundancy forms. Nevertheless, a payment in respect of a redundancy lump sum was transferred to her bank account. The Claimant sought to return this amount to the Respondent.

At the material time the Claimant was aware that the Respondent had been approved to undertake a project which subsequently commenced in November 2011, and on which she was subsequently employed. She believed that this project would require research skills in her field of expertise. She also believed that the Respondent was delaying the commencement of this project so as to break the continuity of her employment and thus deprive her of the opportunity to obtain a contract of indefinite duration by operation of law.

The Respondent accepts that approval for this project had been obtained at the material time. The Court was told that it was nonetheless unable to commence the project until the funding was actually received. Moreover, the Respondent was obliged to advertise the post associated with this project and the Claimant could not be appointed to it without a public competition.

In the event, the post was advertised and the Claimant applied for the post. She was successful and resumed her employment with the Respondent in relation to that project on 30^thNovember 2011 pursuant to a fixed-term contract of 12 months duration. The role was differently described than that of her former role and the applicable salary was different. There was a break of some four months between the end of her previous period of employment and the commencement of the contract associated with this project. .

Issue for consideration
Against that factual background the issue now arising is whether that gap of four months broke the continuity of the Claimant’s employment for the purpose of applying s.9(2) of the Act. That section provides: -

• (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.

Section 9(3) provides: -

• (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.

If the Claimant’s employment up to 31^stJuly 2011 and that commencing on 30^thNovember 2011 is to be regarded as continuous for the purposes of the Act, the fixed-term contract commencing on 30^thNovember 2011 would have contravened s.9(2) of the Act. That would arise because the final contract purported to extend her fixed-term employment beyond the four years permitted by that subsection. If that is a correct construction of the facts the contract commencing on 30^thNovember 2011 would have transmuted to one of indefinite duration, by operation of s.9(3), with effect from that date unless there were objective grounds justifying its conclusion for a further fixed-term. However, in this case the Respondent is not relying on the defence of objective justification.

Position of the parties
In summary the Respondent contends that the Claimant’s employment ended on 31^stJuly 2011 by dismissal on grounds of redundancy on the completion of the project on which she was then engaged. It was submitted that where employment terminates by dismissal without immediate reemployment the continuity of employment is broken.

The Claimant contends that a redundancy situation did not exist at that time because the Respondent had received approval for the project on which she was subsequently employed. It was contended that the Respondent delayed commencing that project in order to break the continuity of her employment and thus avoid her fixed-term contract becoming one of indefinite duration. The claim which the Claimant sought to raise under s.13 of the Act was grounded in that contention. However, as previously pointed out in this determination that claim was not properly before the Court.

The law
The circumstances in which broken periods of employment can be regarded as continuous has been considered by this Court in a number of previous cases starting with the decision inDepartment of Foreign Affairs v Group of Workers[2007] ELR 332. The most recent decision in this line of authorities is that inWilliam Beary v Revenue Commissioners[2011] 22 ELR 137.

In these cases the Court had to consider the apparent conflict between the language of Article 5 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC, (hereafter the Directive) and that of the Act, which was enacted to transpose the Directive in domestic law. While s. 9 of the Act is directed at preventing the unlimited use ofcontinuousfixed-term contracts the objective of the Directive is to combat the abuse ofsuccessive fixed-term contracts. In that regard, at first blush, there appears to be a conflict between the language used in the Act and that of the Directive. As the Court pointed out inWilliam Beary v Revenue Commissioners, while all periods of employment which are continuous are necessarily successive not all employment which is successive is necessarily continuous.

InWilliam Beary v Revenue Commissionersthe Court observed as follows: -

• The relevant statutory provisions in that regard are to be found at s.9 of the Act of 2003 and in the First Schedule of the Minimum Notice and terms of employment Act 1973-2001. It is noteworthy that the marginal note to s.9 refers to “successive fixed-term contracts”. However under s.18 (g) of the Interpretation Act 2005 the marginal note is not to be regarded as part of a statute.

  The section plainly refers to continuous employment and continuous contracts. However, s 9(5) makes it clear that what constitutes continuous employment is to be determined by reference to the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2001. It is well settled that where an Act provides its own definitions a Court should not look outside those definitions in ascribing meaning to word used in the statute (seeMason v Levy[1952] IR 40)

• • ( a ) the dismissal of the employee by his employer or

    ( b ) the employee voluntarily leaving his employment.

  
  

  2. A lock-out shall not amount to a dismissal of the employee by his employer.

  3. A lay-off shall not amount to the termination by an employer of his employee's service.

  4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.

  5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.

  6. The continuous of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.

  7. If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.

  
  Computable Service
  
  8. Any week in which an employee is not normally expected to work for at least twenty-one hours or more will not count in computing a period of service.

  9. If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence shall count as a period of service.

  10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—

  • ( a ) a lay-off,

    ( b ) sickness or injury, or

    ( c ) by agreement with his employer,

  such period shall count as a period of service.

  11. If, in any week or part of a week, an employee is absent from his employment because he was taking part in a strike in relation to the trade or business in which he is employed, that week shall not count as a period of service.

  12. If, in any week or part of a week, an employee was, for the whole or any part of the week, absent from work because of a lock-out by his employer, that week shall count as a period of service.

Where employment comes to an end and there are reasons to believe that the cessation will not be permanent the break in employment can be regarded as a lay-off, which in accordance with the First Schedule does not break continuity of employment. In previous cases the Court was prepared to take a liberal view of what constitutes a lay-off in order to reconcile the apparent dichotomy between the wording of the Act and that of the Directive. There are, however, limits to which the language of the Act can be strained in order to achieve that objective.

InWilliam Beary v Revenue Commissionersthe Court held: -

• • The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive. In that regard it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently. Hence it could reasonably be said that where a person's employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous. This would be to adopt an extended and somewhat more liberal interpretation of the term “lay-off” such as was done inDepartment of Foreign Affairs v A Group of Workers [2007] E.L.R. 332. Whiles.11 of the Redundancy Payments Act 1967, which defines the notion of lay-off for the purposes of both that Act and the Act of 1973, requires that notice of the employers belief that the cessation of employment will not be permanent be given, the law has long accepted that notice can be actual, constructive or imputed.
  
  
  
  

It seems to the Court that in July 2011 the Respondent believed that the requirement for the Claimant’s services had come to a permanent end. Based on that belief the Respondent decided that her contract would not be renewed and that she be paid a redundancy lump sum. Based on what occurred at that time the Court is satisfied that the non-renewal of the Claimant’s contract in July 2011 constituted a dismissal and it could not be construed as a lay-off. The fact that the Claimant resumed employment with the Respondent some four months later, following an open competition, does not alter the Court’s understanding of the situation that pertained in July 2011.

It may be that on an objective view of the facts the decision to dismiss the Claimant (by not renewing her fixed-term employment) was unfair in light of the possibility of further employment opportunities arising in the future. However, the fairness of that decision is not a matter which can be taken into consideration in this case. In that regard the Claimant contends that the Respondent delayed the commencement of the project work for which it had then obtained approval in order to bring about a state of affairs in which it could terminate her employment thus preventing her from accruing an entitlement to a contract of indefinite duration. The claim that she sought to pursue under s.13 of the act was grounded in that contention. However, for reasons referred to elsewhere in this Determination that claim was not properly before the Court and cannot be considered in this appeal.

Determination
For the reasons set out herein the Court has concluded that the Claimant’s employment terminated by dismissal on 31^stJuly 2011. Consequently, in accordance with par 1(a) of the First Schedule of the Minimum Notice and Terms of Employment Act 1973, the continuity of her service after that date was broken. In these circumstances the Claimant’s aggregate duration of continuous fixed-term employment did not exceed four years and the Respondent did not contravene s.9 of the Act.

The decision of the Rights Commissioner is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court



Kevin Duffy
18th July 2013______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.