FTD1319

In this Determination St Patrick’s Classical School is referred to as the Respondent and Mr O’Keeffe is referred to as the Claimant.

The claim

The claim relates to an alleged contravention of Section 10 of the Act which provides: -

• • 10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

    (2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

    (3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.

  
  
  
  

The Claimant is a teacher of mathematics. He was employed in that capacity by the Respondent on 1^stSeptember 2009 pursuant to a fixed-term contract for the school year 2009 to 2010. His fixed-term contract was renewed for the school year 2010 to 2011 and again for the school year 2011 to 2012. On or about 30^thMay 2012 the Claimant was informed by the Principal of the Respondent school that his contract would not be renewed on its expiry at the end of that school year.

In or about June 2012 the Respondent had a temporary need for a teacher of Mathematics and Geography. It was decided to fill the post pursuant to a fixed-term contract. That post was advertised in a newspaper. The Claimant was not personally informed of the vacancy nor was it communicated by way of general announcement within the school. At or about the same time a further vacancy arose for a permanent teacher of English and Music. The Claimant was informed of this vacancy by way of a text message to his mobile phone. It is agreed that the Claimant did not have the necessary qualifications for that post.

The Claimant referred a complaint to a Rights Commissioner on 19^thSeptember 2012 alleging a contravention by the Respondent of s.10 of the Act. He also referred a complaint under the Unfair Dismissals Acts 1977 to 2007. It appears that the latter claim was made as an alternative to a claim under s.13 of the Act.

The claims were heard together by a Rights Commissioner on 14^thJanuary 2013. The Rights Commissioner gave his decision on 26^thMarch 2013. The Rights Commissioner found that the Respondent had contravened s.10 of the Act although the basis of that decision is not entirely clear. The only point taken by the Claimant was that the Respondent contravened s.10 by not informing him of the fixed-term vacancies arising in the school year 2012 to 2013. The Rights Commissioner did not address this aspect of the claim. Rather, he found that the communication of the permanent vacancy for a teacher of English and Music by way of a text message did not constitute sufficient compliance with s.10 of the Act. The Rights Commissioner awarded the Claimant compensation in the amount of €12,000 for the contravention of the Act which he found to have occurred. The claim under the Unfair Dismissals Acts 1977 to 2007 was dismissed.

The Respondent appealed against the Rights Commissioner’s finding that it had contravened the Act. In the alternative the Respondent appealed against the quantum of the award as being excessive.

Position of the parties

The Respondent contends that the Rights Commissioner erred in holding that the communication of a vacancy by text was insufficient to discharge its obligation under s.10 of the Act. In relation to the fixed-term vacancies, the Respondent contends that s.10 of the Act obligates an employer to inform a fixed-term employee of permanent vacancies. It was submitted that since the vacancy that arose in respect of the school year 2012 to 2013 was not a permanent vacancy s.10 of the Act had no application. The Respondent further contends that the Claimant was not qualified for the post in issue. The Respondent further submitted that in forming the view that its obligation to inform fixed-term employees of vacancies relates only to permanent positions it relied on a circular to that effect issued by the Department of Education and Skills (Circular 0034/2009).

The Claimant contends that he did not see the advertisement for a teacher of Mathematics and Geography. He claims that the Respondent was obliged to inform him personally of the vacancy or to communicate the existence of the vacancy by a general announcement in his workplace. He submitted that had he known of the vacancy he would undoubtedly have applied for the post. He further contends that had he obtained the post in issue it is likely that he would have accrued an entitlement to a contract of indefinite duration by operation of law.

The Claimant’s representative confirmed to the Court that his claim did not relate to the vacancy for a teacher of English and Music, nor was he contending that the communication of this vacancy by text contravened the Act.

Conclusion of the Court

Much of the argument advanced on behalf of the Claimant in the course of this appeal was directed at showing the unfairness of the Respondent’s failure to advise him of the vacancy in issue and the consequences that flowed from that failure. It was suggested that in terminating the Claimant’s employment in circumstances in which another suitable teaching post was available the Respondent was motivated by a concern to prevent him from accruing a contract of indefinite duration by operation of s.9 of the Act. If the Claimant is correct in that contention (and the Court makes no such finding) his remedy lay in a claim for penalisation under s.13 of the Act. Sections 13 and 10 of the Act do not operate as alternatives. Consequently, redress for what may have been a contravention of s.13 cannot be obtained by calling in aid the provisions of s.10 of the Act.

In these circumstances the net issues for determination in this case concerns the nature and extent of the obligation imposed on employers by s.10 of the Act and whether the Respondent failed to fulfil that obligation. In contending that the section applies only to vacancies for permanent positions the Respondent relied on the circular issued by the Department of Education in 2009 which is referred to earlier in this Determination. Suffice it to say that the interpretation of the statute is a matter for a Rights Commissioner and this Court on appeal. Consequently, this Court cannot be influenced in construing the section by the option set out in the circular relied upon.

It is clear from subsection (1) of the section that the objective of the provision is to enable fixed-term workers to have the same opportunity to secure a permanent position in their employment as that available to other workers. The language of this subsection is a direct transcription of the language used in Clause 6 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP of 18^thMarch 1999 which is annexed to Directive 1999/70, which the Act transposed in domestic law. Section 2(3) of the Act provides that a word or expression that is used in this Act and is also used in the Framework Agreement has, unless the contrary intention appears, the same meaning in this Act as it has in the Framework Agreement.

In the law of the European Union, due in the main to the difficulties posed by linguistic differences in the various texts, legislative measures are generally interpreted by adopting a schematic or teleological approach. That approach involves identifying the objective pursued by the measure and giving the provision an interpretation that best achieves its objective. There is also authority for the proposition that in interpreting national legislative provisions enacted to transpose a provision of Union law a similar approach should be adopted (seeLawler v Minister for Agriculture1 IR 365. See alsoBosphorus Hava v Minister for Transport2 ILRM 551)

The objective pursued by Clause 6 of the Framework Agreement and s.10 of the Act is to facilitate fixed-term workers in obtaining permanent employment in the enterprise in which they work on the same terms as all other employees. Consequently, the ambit of the obligation which these measures impose on employers must be limited to the provision of information on such vacancies as may achieve the objective in view.

It seems to the Court that if the European or national law makers had intended to obligate employers to inform fixed-term workers of all vacancies arising they could have said so in simple terms. Moreover, if that was their intention there would have been no need to qualify the provision by stating its purpose.

InCork City Council v Whillock[1993] 1 IR 231, O’ Flaherty J observed, at 237: -

• “…a construction which would leave without effect any part of the language of a statute will normally be rejected”

• “There is abundant authority for the proposition that words are not used in a statute without a meaning and are not tautologous or superfluous, and so effect must be given, if possible, to all the words used, for the legislature must be deemed not to waste its words or say anything in vain”

• The first limb of the subsection clearly obliges an employer to inform fixed-term employees in relation to vacancies which become available. The second limb describes the object or purpose of this requirement as being to ensure that fixed-term employees have the same opportunity to secure a permanent position as other employees. It is noteworthy that the obligation created is not just to inform the employees in question of vacancies for permanent positions but of vacancies which may enable them to obtain permanent positions. Thus it is wide enough to cover a situation in which a position may be initially temporary but will be subsequently made permanent.

Having regard to the plain language and stated purpose of s.10(1) of the Act, the Court is satisfied, on the facts of this case, that the Respondent did not contravene s.10 of the Act by failing to inform the Claimant of the vacancy giving rise to this complaint. Accordingly his claim cannot succeed.

Determination

For the reasons set out in this Determination the Decision of the Rights Commissioner cannot stand. The Respondent’s appeal is allowed and the Decision of the Rights Commissioner is set aside.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
23rd July, 2013.Chairman



NOTE

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