FTD1315

FULL RECOMMENDATION

FTC/13/18

DETERMINATIONNO.FTD1315

(R-115331-FT-11/MMG)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

NATIONAL PARKS & WILDLIFE SERVICE
(REPRESENTED BY DEPARTMENT OF ARTS, HERITAGE AND THE GAELTACHT)

- AND -

SHANE DUNNE
(REPRESENTED BY MS AUDREY COEN, B.L., INSTRUCTED BY AUGUSTUS CULLEN LAW, SOLICITORS)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal of Rights Commissioner's Recommendation r-115331-ft-11/MMG.

BACKGROUND:

2. The Employer appealed the Rights Commissioner's Decision to the Labour Court on the 12th February, 2013. A Labour Court hearing took place on the 15th May, 2013. The following is the Labour Court's Determination:-

DETERMINATION:

This is an appeal by the National Parks & Wildlife Service against the Decision of a Rights Commissioner which found in favour of Mr Shane Dunne in his claims under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).

For ease of reference the parties are given the same designation as they had at first instance. Hence the National Parks & Wildlife Service will be referred to as “the Respondent” and Mr Shane Dunne will be referred to as “the Complainant”.

The claim referred to the Rights Commissioner concerned an allegation that the Respondent failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract by operation of law pursuant to Section 9 (3) of the Act on 4^thMay 2010.

Background

The Complainant has been employed by the Respondent as a Temporary General Operative in the National Parks and Wildlife & Service (based in the Wicklow Mountains National Park) on a number of fixed-term contracts which commenced on 13^thOctober 2005. He continues to be employed by the Respondent in that capacity.

Details of the employment contracts are outlined hereunder:-

Temporary General Operative in the National Parks Wildlife Serviceto engage in path building works on a capital-funded project:-

13^thOctober 2005 - 23^rdDecember 2005
23^rdDecember 2005 - 22^ndDecember 2006
23^rdDecember 2006 - 20^thDecember 2007
21^stDecember 2007 - 30th September 2008
- Temporary General Operative (Band 3) in the National Parks & Wildlife Service to participate in deer and goat culling programme in Wicklow Mountains National Park:-
  
  10^thSeptember 2008 - 31^stDecember 2008 (overlap with contract above)

- Temporary General Operative (Band 3) in the National Parks & Wildlife Service to provide for general maintenance and wardening during the tourist season:-
  
  2^ndJune 2009 - 30^thOctober 2009

- Temporary General Operative in the National Parks & Wildlife Service to provide a deer and goat culling service:-
  
  3^rdNovember 2009 - 31^stDecember 2009
  
  Temporary General Operative in the National Parks & Wildlife Service to provide for general maintenance and wardening
  during the tourist season:-
  
  4th May 2010 - 31^s^tOctober 2010

- Temporary General Operative in the NationalParks & Wildlife Service to provide a deer and goar culling service:-
  
  1^stNovember2010 - 22^ndDecember 2010

- Temporary General Operative in the National Parks & Wildlife Service to provide for general maintenance and wardening during the tourist season:-
  
  11^thApril 2011 - 30^t^hSeptember 2011

Summary of the Complainant’s case

Ms Audrey Coen, B.L., instructed by Augustus Cullen Law, Solicitors, on behalf of the Complainant, submitted that the Complainant accrued an entitlement to a contract of indefinite duration by reason of the aggregate duration of his employment as a Temporary General Operative with the Respondent on successive fixed-term contracts on 4^thMay 2010.

Ms Coen stated that the Complainant was continuously employed by the Respondent from the period October 2005 to October 2011, at which point the claim was submitted under the Act, although he continues to be employed on fixed-term contracts. She said that at all material times the Complainant was employed as a Temporary General Operative in the Wicklow Mountains National Park.

Ms Coen submitted that any breaks between contracts ought to be regarded as periods of lay-off.With regard to the computation of continuous service provision in the First Schedule to the Minimum Notice and Terms of Employment Act 1973(hereinafter referred to as ‘the 1973 Act’)all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. The periods of lay-off involved were for"not more than 26 weeks between consecutive periods of employment" and therefore Ms Coen submitted that the Complainant’s employment as a Temporary GeneralOperative with the Respondent was at all timescontinuous within the meaning assigned to that term by Section 9(5) of the Act.

Therefore, Ms Coen contended that the Complainant hadaccrued an entitlement to a contract of indefinite duration by operation of Section 9(2) of the Act.

Ms Coen referred to the number of fixed-term contracts furnished to the Complainant and submitted that on each occasion there was a reasonable expectation of re-employment following termination of the earlier fixed-term contract and/or that the cessation in employment would not be permanentas could be seen from the sequence of contracts. In support of her contention she citedRevenue Commissioners v Beary FTD 2/2011 [2011] E. L.R 137wherethe Labour Court construed the First Schedule to the 1973 Act so as to produce the result envisaged by Clause 5 of the Directive 1999/70 (Council Directive concerning the Framework Agreement on Fixed-Term Work).The concept of"successive employment" arose where a person was engaged to do the same job intermittently. Where a person's employment was terminated because there was no longer work available for him or her to do, and it was envisaged at the time of the termination that his or her service would be required again in the future,the employment could be regarded as "continuous". Consequently,Ms Coen submitted thateven though there were gaps in the Claimant’s employment inBeary, the longest being 35 weeks,the Labour Court regarded the employment as being continuous.

Objective Justification

Ms Coen contended that there were no objectively justifiable grounds upon which the Complainant could be denied a contract of indefinite duration. She argued that there is a permanent need for General Operative staff to provide seasonal cover to maintain the upkeep of the Park and for the culling season. She submitted therefore that the work of the Complainant should be regarded as part of the fixed and permanent needs of the Respondent. In advancing this argument Ms Coen stated that no reasons were proffered at the time the Complainant’s fixed-term contracts were renewed for their renewal.

Summary of the Respondent’s Case

Mr Paul Connolly,Department of Arts, Heritage & the Gaeltacht, on behalf of the Respondent, appealed the Rights Commissioner’s Decision and submitted that the Complainant was not entitled tobe awarded a contract of indefinite duration in line with his existing contract.

Mr Connolly stated that the Complainant was employed on a fixed-term basis between 13^thOctober 2005 and 31^stDecember 2008 and was subsequently employed from a specially formed panel for two separate fixed-periods in 2009 and also in 2010 albeit from a separately formed panel.In 2011 he was employed from a specially formed panel for a single fixed-period.Mr Connolly stated that when thisemployment relationship ended on 31^stDecember2008itwasnot anticipated that anyfurther contractual relationshipwould exist between the Department and the Complainant.

The purpose of his initial employment with the Respondent was to engage in path building works on a capital-funded project in the Wicklow MountainsNational Park.The project did not continue beyond 2008 as there was no further capital-funding for the project. However, shortly before the final fixed-term contract expired on 30^thSeptember 2008, the Complainant was offered a new fixed-term contract for the period from 10^thSeptember2008 to 31stDecember 2008.Mr Connolly stated that this employment was for the specific purpose of participating in the deer and goat culling in the Wicklow Mountains National Park. When this contract expired, the Complainant's employment with the Respondent was terminated.

Mr Connolly stated that in early 2009 the Respondent soughtand receivedsanction from the Department of Finance to recruit Seasonal General Operatives forthe 2009 summer season. This was the first occasion that the Department employed General Operatives for the summer season in the Wicklow Mountains National Park. When sanction was received in April 2009 the Department, through an open recruitment process, advertised for Seasonal Temporary General Operatives.

The advertisement stated:"Duties may include the maintenance and development of paths and walking trails, signage survey and erection,the daily wardening of the Glendalough area during peak season, participation in the deer and goat culling programmes. These are temporary seasonal
positions"

Mr Connolly stated that the Complainantapplied for the publicly-advertised posts and following a competition was successfully placed on a panel. During the interviews for the posts, candidates were asked if they were also interested in applying for the deer and goat culling programme and, if so, certain questions regarding this work were put to them. A separate panel was established for the deer and goat culling contract andthe Complainantwas also successful in this regard.

Following the interview processthe Complainantwas offered a fixed-term contract from 2^ndJune2009 to 30^thOctober 2009. The purpose of this contract was to provide for"general maintenance and wardening during the tourist season”.On the expiry of this fixed-term contract the Respondent advised the Complainant that his employment would cease as per his contract. However, Mr Connolly stated that, as the Complainant was also on the panel for the deer and goat culling programme, he was subsequently offered a new and separate fixed-term contract for the purpose of deer and goat culling with effect from 3^rdNovember 2009 to 31^stDecember 2009. On the expiration of this contract the Complainant's employment with the Respondent was terminated.

Mr Connolly stated that in spring 2010the Respondent againsought and received sanction from the Department of Public Expenditure and Reform and advertised for temporary seasonal posts.Again theComplainantwas successful at interview for placement on the general maintenance panel and alsoforthedeerand goat culling panel.He wasgiven a fixed-term contract for thepurpose of general maintenancefor thetouristseason and this wasfollowed by a second and separate fixed-term contract for thepurpose of deerand goat culling.Again when this contract cameto its expiration date,theComplainant's employment with the Department terminated.

In2011 the Respondent again sought and received sanction for seasonal posts and onceagain theComplainantapplied for an openly-advertised post as a Temporary General Operative and was successful at interview.He was offered a contract from 11^thApril2011 to 30^thSeptember2011 for the purpose of providing"maintenance and upkeep of Wicklow MountainsNational Park during the tourist season".No temporary panel was established for the deer and goat culling in 2011.

Mr Connolly submitted that in order for a breach of Section 9(2) ofthe Act to occur, theComplainantmust be employed byhis employer on two or more continuous fixed-term contracts and the aggregate duration of such contracts must not exceed four years.The computation of"continuous service"is regulated by Paragraphs 1-7 of the First Schedule tothe 1973 Act which provide that the service of an employee in his employmentis deemed to be"continuous"unless that service isterminated either bythe employee's dismissal or his voluntarily leaving the employment.

Mr Connolly also citedRevenueCommissioners v.Bearywhere the Labour Court found thatprimafaciethere appears to be a conflict between the language used in Section 9(2) ("continuous fixed-term contracts") and that of Clause 5 of the Framework Agreement ("successive fixed-term contracts"). The Court observed that, while all periods of employment which were "continuous" were necessarily "successive", not all periods of employment which were "successive" were necessarily "continuous". The approach favoured by the Court was to construe the First Schedule to the 1973 Act so as to produce the result envisaged by the Directive. The Court found that the concept of "successive employment" arose where a person was engaged to do the same job intermittently. Where a person's employment was terminated because there was no longer work available to do, and it was envisaged at the time of the termination that his or her service would be required again in the future, the employment could be regarded as continuous.

Mr Connollysubmittedthat in applying thisrationale to the instant case,theComplainant's periods of employment with the Department cannotbe regarded as"continuous"for the purposes of Section 9 of the Act. He was first employed in October2005 on a one-off capital-funded project.At the end of this funding the work for which theComplainantwas employed ceased. He was, however, re-engaged for a short period to assist with deer and goat culling.

Mr Connollysubmittedthat when theComplainantwas re-employed it was for a different rolefollowing a decisionto employ seasonal employees in the National Park for the first time and any such employment was subject to sanction from theDepartment of Finance.The recruitment process was by public advertisement and an open competition for temporary seasonal work from which staff were employedbased on their performance at interview and subsequent ranking on a panelfrom which posts were filled.

At the time of the termination of his employment on each occasion there could not be any reasonable expectation that theComplainantwould be employed at any future date with the Respondent and no such expectation was given to theComplainantnorwas it known whether or not the Department would even be recruiting seasonal staff for the National Park in the future.

Therefore, it is submittedthat each period of employment following termination was a separate contractandthat no contractual nexus existed between the Complainant and the Respondent during the breaks in employment and he was at all times perfectly free to take up employment elsewhere. Mr Connolly submitted that the Complainant's employment with the Respondent could not, therefore, be considered "continuous" for the purposes of Section 9 of the Act. Consequently, he held that there was no breach of Section 9(2) of the Act by the Respondent.

Objective Justification

Mr Connolly submitted that in the event that theCourt finds that the Complainant's employment with the Respondent is deemedcontinuous,then, without prejudice to its stated position above, the Respondent contended that there were objective grounds justifying the extension of the Complainant's specified purpose employment beyond the period referred to in Section 9(2) and the extension was therefore saved by Section 9(4) of the Act.

The Complainant was initially engaged for work associated with a capital project and these projects are one-off, precise and limited works programmes. It was not ongoing permanent work which the Respondent undertakes. The subsequent work for which the Complainant was employed was temporary seasonal work which is time limited due to its seasonal nature.

Mr Connolly contended that theobjective grounds relied upon met the test first formulated by the Court of Justice of the European Union (CJEU) in the case ofBilka-Kaufhaus GmbH v. Karin Weber van Hartz[1986] ECR 1607 and he said that it satisfies the three-tier test set out by the CJEU,viz,it must meet a "real need" of the employer; the measures taken must be "appropriate" to meet the objectives which the employer pursues and, finally, the measures must be "necessary" to achieve those objectives.

Legitimate objective

Mr Connolly stated that in the instant case the Respondent had a legitimateneed to fill a temporaryposition initially for the provision of path building work on a capital
project and subsequently had a legitimate need for general maintenance and deer and goat culling during the peak tourist and culling seasons. He maintained that when the
specific works associated with a project were completed the position was no longer required. Similarly, at the end of the tourist season, he submitted that there was no longer a requirement for work associated with the tourist season.

Are the means chosen appropriate?

Mr Connolly referred to the CJEU inLommers v.Minister Van Landbouw,Natuurbeheer en Visserij[2002] IRLR 430 which held that when seeking to derogatefrom individual rightsdueregard must be had to proportionality which requires such derogation to be appropriate and necessary. He cited theHigh Court in thecase of
H.S.E. v. Umar[2011] IEHC 146 where the Court found that the Act seeks to do exactly that by providing for an exception where there are objective grounds justifying the renewal of a fixed-term contract. He submitted that the provision of services on a specifically funded project and/or on a purely seasonal basis is by any measure one of those work areas where fixed-term contracts are appropriate and necessary because it is necessary to fill such posts on a temporary basis as the work is time limited and not the normal ongoing permanent work of the Department.

Are the meanschosen necessary?

Mr Connolly submitted that the work for which the Complainant was initially employed was never going toexist beyond the lifespan of the paths building project.Similarly, he said thatthe seasonal work for which the Complainant was employed was not going to exist beyond the tourist season.Mr Connolly submitted that the Complainant was aware on each occasion when he applied for an open competition of the nature and theduration of each contract.The work for which he was employed did not exist outside of the tourist season.It is submitted that there is no other or less onerous basis available in practice by which the Respondent could achieve its objective other than by the use of fixed-term contracts.

Findings of the Court

As was pointed out inRevenue Commissioners v Bearywhile Section 9 of the Act is directed at preventing the unlimited use ofcontinuousfixed-term contracts the objective of the Directive is to combat the abuse ofsuccessivefixed-term contracts and the Court must apply the well-settled principle of European law that national law must be interpreted as far as possible in the light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. InBearythe Court also held that Section 9 is unduly limited in its ambit in that it excludes from the protection of the Act successive periods of employment which are not continuous and held that the result plainly pursued by Directive 1999/70 is to prevent the abuse of “successive” fixed-term contracts. It pointed out that Clause 5.2(a) of the Framework Agreement left it open to the Oireachtas to provide an outer temporal limit beyond which renewed contracts would not be regarded as successive, however, as the legislature chose not to do so, it was not now open to the Court by way of interpretation to import such a provision into the statute.

Having examined theFirst Schedule to the 1973 Act the Court held that the fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence successive periods of employment which are not continuous in the literal sense because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the word “continuous” as used in the Act has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can in certain circumstances have a meaning more akin to the ordinary meaning of the word successive.

Therefore, in the instant case this Court must consider if the Complainant was employed on a series of separate contracts, some of which did not contain a break in service, or whether the periods between contracts can be regarded as lay-offs thus preserving the continuity of the employment within the statutory meaning accorded to that term.

For present purposes the term "lay-off" is defined by Section 11 of the Redundancy Payments Act 1967 as follows: -

11.—(1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.

The first contract entered into stated that the Complainant was being employed as a Temporary General Operative – Wicklow Mountains National Park under the direction of the Divisional Manager of the Eastern Division of the National Parks and Wildlife Service and was for the period from 13^thOctober 2005 until 23^rdDecember 2005. It does not state that the position was related to special project funding. The terms of this contract were renewed on 22^ndDecember 2005 for one year and this contract stated that budget constraints prevented the Respondent from offering a longer contract. However, the terms of the original contract were then further extended on 21^stDecember 2007 until 30^thSeptember 2008 stating that it was for the continuation of the pathworks project. The Complainant then received a separate contract to take effect from 10^thSeptember 2008 until 31^stDecember 2008 for the specific purpose of participation in the deer and goat culling programme in Wicklow Mountains National Park. This latter contract overlapped with the 21^stDecember 2007 to 30^thSeptember 2008 contract.

The position advertised for which the Complainant was successful at interview in May 2009 stated that the duties included maintenance and development of paths and walking trails, signage survey and erection, daily wardening of the Glendalough area during peak season and participation in the deer and goat culling programmes which were temporary seasonal positions.The Respondent told the Court that work did not exist outside of the tourist or culling seasons.

The Court is satisfied that any breaks in service following this appointment came about as a result of the seasonal aspects of the work and the Complainant remained on a panel to be called in each tourist or culling season and continues to be so engaged. Ms Coen told the Court that each time the Complainant’s contract came to an end there was an expectation that his employment would be renewed and it was. However, Mr Connolly stated that it was only after the Department decided to maintain the upkeep of the park and sanctioned funding in 2009 that a panel was set up, therefore, the Complainant could have had no expectation of continuity of employment. Mr Connolly told the Court that the Complainant’s current employment status is that he is on a “seasonal fixed-term contract” with the same terms and conditions of employment as permanent employees.

The Court notes the Respondent’s contention that the recruitment process in April/May 2009 was by public advertisement and open competition for temporary seasonal work from which staff were employedbased on their performance and ranking on a panel and therefore the Complainant’s employment was terminated at the end of his contact on 30^thDecember 2008 and recruited on the seasonal panel in June 2009. However, the Court notes that theduties undertaken by the Complainant prior to that competition - General Operative duties including maintenance and deer/goat culling - continued as his duties following the competition. Furthermore, these duties reflected the seasonal nature of the job which had been established up to then and which continues to the present day.

The Court is of the view that the June 2009 appointment must be considered in the light of the Complainant’s subsequent employment history with the Respondent, his pattern of employment as aTemporary General Operative-Wicklow Mountains National Parkhas been similar every year since 2005, he has had to go through a recruitment process every year since 2009 and has consistently worked the tourist season every year and the deer/goat culling season when required.

It is clear that on each occasion on which the Complainant’s employment ceased it was due to the end of either the tourist or thedeer/goatculling seasons and it was resumed on the commencement of the new season(s).

On that basis the Court is satisfied that the periods in between seasons can be regarded a periods of lay-off. In line with theBearycase the Court is satisfied that the Complainant had been engaged over the years to do the same job intermittently andat the time each season came to an end it was reasonable in the circumstances to believe that the employment would probably resume at the commencement of the next season.

Therefore the Court is satisfied that the Complainant’s employment with the Respondent can be regarded as continuous.

Objective Justification

The Court must now turn to consider the question of whether the renewal of the Complainant’s fixed-term employment beyond the point normally permissible by Section 9(1) was justified on objective grounds within the statutory meaning of that term.

Section 7(1) of the Act sets out the test for objective justification for the purposes of the Act. It provides: -

- 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.

The Respondent had addressed its position on the objective grounds for renewing the Complainants contract on 4^thMay 2010 in accordance with the three-tier test established by the CJEU inBilka-Kaufhaus GmbH v. Weber Von Hartz[1986] ECR 1607. This test imports questions of proportionality and whether alternative means having a less discriminatory effect are available to achieve the objective in view. There is no dispute that the renewal in the Complainant’s case came about due to the seasonal nature of the business. In such circumstances the Court cannot see how such grounds meet the test required when the granting of a contract of indefinite duration in the circumstances herein would in no way alter that reality.

Determination

For the reasons set out herein the Court determines that the Complainant accrued a contract of indefinite duration by operation of Section 9(3) of the Act from 4^thMay 2010on the same terms as subsisted at that date.

Accordingly, the Decision of the Rights Commissioner is affirmed and the appeal is disallowed.

Signed on behalf of the Labour Court

Caroline Jenkinson
21st June, 2013______________________
JFDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.