FTD1311

FULL RECOMMENDATION

FTC/12/25

DETERMINATIONNO.FTD1311

(FT 93095/10/MR)

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

PARTIES :

INSTITUTE OF TECHNOLOGY TRALEE
(REPRESENTED BY ARTHUR COX, SOLICITORS)

- AND -

MR FERGAL CUNNINGHAM
(REPRESENTED BY TEACHERS' UNION OF IRELAND)

DIVISION :

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

SUBJECT:
1. Appeal against a Rights Commissioner Decision ft/93095/10/MR.

BACKGROUND:

2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 9^thJuly 2012. A Labour Court hearing took place on the 6^thFebruary 2013. The following is the Labour Court's Determination:-

DETERMINATION:

This is an appeal by Mr Fergal Cunningham (the Complainant) against the Decision of a Rights Commissioner which found that his claims under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) were not well-founded.

The claims which were received by the Rights Commissioner on 15^thApril 2010 concerned an allegation that the Institute of Technology Tralee (the Respondent) had contravened Sections 6, 8, and 9 of the Act. The Complainant alleged (i) that the Respondent infringed his rights under Section 6 of the Act as it treated him less favourably whenpositions in construction-related areas were filled on a permanent basis and his was not; (ii) he submitted that the Respondent’s statements of objective grounds justifying the renewals of his fixed-term contracts were inadequate by reference to Section 7 of the Act;and (iii) 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 of the Act.

The Complainant appealed the Decisions under Sections 8 and 9 and not the Decision under Section 6 of the Act.

Background

The Complainant was employed by the Respondent from 10^thJanuary 2005 to 31^stAugust 2010, as an Assistant Lecturerworking 18 hours per week, in the School of Engineering and Construction Studies on the following fixed-term contracts of employment:-

10^thJanuary 2005 – 31^stAugust 2005
1^stSeptember 2005 – 31^stAugust 2008
1^stSeptember 2008 – 31^stAugust 2009
1^stSeptember 2009 – 31^stDecember 2009
4^thJanuary 2010 – 19^thMarch 2010
20^thMarch 2010 – 31^stAugust 2010

The Complainant had previously worked within the education sector in the Co. Kilkenny Vocational Education Committee from 2001-2005 as a permanent whole-time Teacher of Woodwork Construction and Technical Drawing and hisservice in the VEC and pension contributions were transferred to the Respondent.

The contracts furnished to the Complainant contained the following:-

1^stContract andLetter of Offer

Pro-rata Part-time Assistant Lecturer in Carpentry and Joinery
- 10^thJanuary 2005 – 31^stAugust 2005

- This is a fixed term renewable contract between the Institute and the
  lecturer.
  
  This contract is renewable and we have a commitment from theDepartment of Education and Skills to provide us with additional blocks upto the end ofthe academic year 2006/2007. Subject to satisfactory performance your contract will be renewedin Summer 2005 for the AY 2005/2006 and in Summer 2006 for the AY 2006/2007. At this stage we envisage that for the academic year 2005/2006 you will have full hours (18 hours).

2^ndContract andLetter of Offer

- Pro-rata Part-time Assistant Lecturer in Carpentry and Joinery
  
  1^stSeptember 2005 – 31^stAugust 2008

- This is a fixed term renewable contract between the Institute and the
  lecturer.
  
  The reason youare not being offered a contract of indefiniteduration is that funding approval from theDepartment of Education and Skills is on a fixed term basis, which does not allow us to offer you a contractlonger than the period statedabove.In addition the Institute has to take into account the falling demands in related areas, uncertainty inrelation to future studentnumbers and course viability. Furthermore, there is a pool of hours which are in existence as a result of current staff underutilisation, staff secondments,job share, short term strategic research etc. and this poolof hours will be further reduced in the futureby existing staff redeployment.Issues arising in this regard are being addressedinthe context of the Institute's Strategic Plan.

3^rdContract and Letter of Offer

- Pro-rata Part-time Assistant Lecturer in Carpentry and Joinery

- 1^stSeptember 2008 – 31^stAugust 2009
  
  This is a fixed contract between the Institute and the lecturer from 1st of September2008 to 31st August 2009.Itis not a contract ofindefinite duration because theCarpentryand Joineryblocks have declinedthis year andfurtherdecline is expected.

4^thContract and Letter of Offer

- Pro-rata Part-time Assistant Lecturer in Carpentry and Joinery
  
  1^stSeptember 2009 – 31^stDecember 2009
  
  This is a fixed contract between the Institute and the lecturer from 1st of September 2009 to 31st December 2009, with a possible extension to 31st August, subject to the Institute being allocated the same number of Carpentry and Joinery blocks from January 2010. This is not a contract of indefinite duration as the allocation of Carpentry and Joinery blocks to the Institute may end in 2010.

- At present the Institute has been allocated two C and J blocks which will run to December 2009,we are hopeful of receiving a further two blocks in January 2010 but have been given no guarantee that this will happen. We do not expect to receive any blocks in the academic year 2010/2011.
  
  At present the Institute is in a position to offer you a fixed term contract to December 2009 with a possible extension to the end of the academic year 2009/2010 subject to the same number of blocks be assigned to IT Tralee in January 2010. The Institute is not in a position to offer you a contract of indefinite duration as the allocation of C&J apprentices to IT Tralee may end in 2010.

5^thContract and Letter of Offer

- 4^thJanuary 2010 – 19^thMarch 2010
  
  Post Pro-rata Part-time Assistant Lecturerin Carpentry and Joinery
  Position

- I am pleased to advise you that your fixed-term contract will be continued to 19th March 2010 with a possible extensionto 31stAugustsubject to the Institute being allocated the same numberof Carpentry and Joinery Block from March 2010. This is not a contract of indefinite duration as the allocation of Carpentry and Joinery blocks to the Institute may end in 2010.

6^thContract and Letter of Offer

- 20^thMarch 2010 – 31^stAugust 2010
  
  Post Pro-rata Part-time Assistant Lecturer in Carpentry and Joinery
  Position

- This is not a contract of indefinite duration as the allocation of Carpentry and Joineryblocks to the Institute may end in 2010.

Summary of the Complainant’s case

Dr Aidan Kenny, TUI, on behalf of the Complainant, submitted thatthe Respondent was made aware that the Complainant was giving up a permanent whole-time post to take a position in the Institute. However, he contended that the Respondent did not advise the Complainant of the potential risks he faced byleaving a permanent whole-time job to take up a fixed-term job, indeed, it suggested that he had a legitimate expectation that he would gain a whole-time permanent contract.

Dr Kenny stated that the Ministerof Education and Skills, his agents the Institutes of Technology and the TUI are parties to the Programme for Competitiveness and Work 1998 which established theagreed academic structure,contract and salary scales for the sector and to the Public Service Agreement 2010-2014 which makes provision for academic staff who are considered surplus to requirements:

- “TheGovernmentgives a commitment thatcompulsory redundancy will not apply withinthepublicservice, save where existing exit provisionsapply.This
  commitment is subject tocompliancewith thetermsof thisAgreement and,in
  particular,to theagreed flexibilityon redeployment being delivered. To thatend,theredeploymentarrangements referred to below will includeopportunitiesfor
  re-skillingandreassignment asa keymethod to retain andsecure employment in
  comparable roles in thepublic service.”

Dr Kenny submitted that the Complainant should be on a contract of indefinite duration and thereby should be covered by the terms of the PSA 2010-2014 and by Circular Letter0093/2007which set out the procedures and termsto be utilised by
Institutes of Technology where fixed-term academic staff are employed.The
Department of Education and Skillsin agreement with Institutes of Technology and the TUI issued several Circular Letters in relation to the provision arising from the enactment into Irish legislationof the 2003 Act. CircularLetterIT 15/05,Circular LetterIT 15/05andCircularLetter0093/2007set out the procedures and termsto be utilised by Institutes of Technology where fixed-term academic staff are employed.

Circular Letter0093/2007,2.2.1 states:-

- The employershall issuea contract of indefiniteduration to anyfixed term
  lecturerwith 4yearsor more successivelecturing serviceon the1st September2006 oranydate thereafter (those employed for thefirst timeafter 14th July2003 must have2or more successive contacts) who isdeemed qualified and who
  isnotexcluded by reason of oneor moreof thefollowing which the employer can
  demonstrate:
  - - (i)That thepostwill not be viable within a reasonableperiodandwhere sucha groundwas set out asanobjectiveground inwritingintheprevious contract;or
      (ii)That theperson iscovering for a post holder on an approved schemeof leave of absence;or
      (iii) thereare formalwritten disciplinarychargesof asignificant
      natureagainst anindividual on groundsof misconduct or other serious disciplinaryoffences. The exclusions at(i) and (ii) aboveshall not apply wherethe staffmemberhas notreceiveda writtencontract settingout
      objective grounds sinceSeptember2003.

Where a member ofstaff is identified as surplus to requirements Section 8.6 of the Circular Letter0093/2007details the procedure to followed and the sequential steps:-

- • Re-deployment within theInstitutetosuitablealternativeposts for whichthe
  surplus staffarequalified.
  • Re-training toprovidetheadditional qualifications required tobere-deployed to an identifiable vacancy
  • Reductionofhours(and pay) involvingoneor more staff - ona voluntarybasis•Termination ofthe employment of fixed-termemployees whose contracthas
  expired (with paymentofredundancypay). Thisoptionwould be severelylimited incases wherethe fixed-termemployee would otherwisebedue to receive a
  contractofindefiniteduration.It mayalso benecessary to insert the termsof the
  collectiveagreement into futurefixed-termcontracts.
  •Agreementto thefilling ofa vacantpermanent post ona fixed-term basisforup
  totwoyears whereit isagreed thatthepost isunlikelyto be viablebeyondthat
  period.
  • Voluntary severancearrangementsto beagreed at theInstitutesof
  TechnologyIndustrial RelationsForum.

Dr Kenny referred to The Instituteof Technology Tralee (2010) Self Evaluation Report (SER) for its InstitutionalReview claimed that the Institute has successively'expanded its portfolio of programmes, the Institute has enhanced its status and is now a higher education provider with an establishednational profile and a growing international profile'.

The SER notes that the totalstudent enrolments for 2009/10 was 3,395 this includes full-time,part-time and apprentice students.The SER details the student enrolment trend from 2004/05to 2009/10whichdemonstrates the natural 'peaks and troughs' that occur in student enrolments. In 2004/05there was a peak of 3,500 students compared to the trough in 2007/08when there were 2,900 students which represents a 17% decline in student numbers.

The SER notes that the Institute employees 363 staff, of which 216 areclassified as academic staff,stating that, 'The involvement of staff members in continuing
professional development, research, development and consultancy activities helps build up-to-date academic and professional practice'. In terms of strategic planning the SER states;'The current plan is better fit for purpose, more focused and more robust. This Strategic Plan is flexible and adaptable to changing circumstances'. The SER presents a portrait of a confident, viable, capable, expanding Institute that cares for its staff,students and stakeholders and,plans for their needs.

Dr Kenny disputed the Respondent’s contention that there were objective groundsjustifying the renewal ofthe Complainant’sfixed-term employment and its failure to offer him a contract of indefinite duration. The Respondent’s argument thatthe objective ground for not offering a contract of indefinite duration related to the
uncertainty concerningapprenticeship student numbersand external funding.
However, Dr Kenny stated thatthis is a common featureof higher educationand thatall Institutes are uncertainabout enrolment numberseachyear. He contended that this is normal practice and cannot be considered as a concrete objectiveground. He contended that student enrolment numbers in the highereducation sector havebeen and areprojected toincrease substantially. He cited figures from the Central Statistics Office [2008],Department of Education and Skills [2007]and Higher Education Authority [2009] which demonstrate theexpansion of Higher Education enrolments in the IT sector from 60,000 students in 1996 toapproximately 78,000 in 2005. He also quoted fromDepartment of Education and Skills’ [2011]figures on the projected expansion of student enrolment for all higher education sectors from 150,000 students in 2011 up to 350,000 students in 2029.

Dr Kenny submitted that the case law on objective grounds was clearand he cited the CJEU caseAdeneler v Ellinikos Organismos Glalaktos [2006] ECR 1-6057which found thatin order to satisfy the legislation it is necessaryto show that the ground relied upon"responds to a genuine need,is appropriate for achievingthe objectivepursued and is necessaryfor that purpose".The CJEU stressed that the concept of"objective reasons"within the meaning of Clause 5 of the Framework Agreement could only be understood as referring to"precise and concrete circumstances characterising agiven activity".Dr Kenny submitted that theuncertainty of student numbers was not precise and concrete therefore it cannot be an objective ground. He said that the purpose of the Directive was to:

- (a) improvethequalityof fixed-termwork by ensuringtheapplicationofthe
  principleof non-discrimination;
  (b) establish a framework to prevent abusearising from theuseof successive
  fixed-termemployment contracts or relationships.

Furthermore, he relied upon Labour Court Determination no FTD1127County Dublin VEC v.O'Gradyand Others[2011] where the Court rejected the objective grounds advanced by the Respondent which he submitted included uncertainty of student numbers:-

The Court finds that the grounds advanced by the Respondent for the different treatment of the Complainants arises out of the fixed term nature of their contracts of employment and consequently cannot amount to objective grounds as required by Section 6(2) of the Act in order to justify the less favourable terms and conditions of employment contained in their contracts of employment relative to their chosen comparators.

Dr Kenny also cited Labour Court Determination No. FTD 1117Athlone Institute of Technology v. Brendan Hanniffy[2011] where the Court notes that uncertainity of apprenticeship student numbers is not a reasonable objective ground,stating:-

- “As recorded earlier in this Determination the objective grounds relied upon as justifying the 2008 contract were expressed in the following terms: -
  - - “This is a fixed purpose contract between the Institute and thelecturer. Subject to satisfactoryservice, this contract will continue pendingthecontinuation of apprenticecoursein the [plastering/brick and stonelaying area]”
  Thisprovision amounts,ineffect,to a statement ofthepurposeofthe contract and impliesthat the employment will cometo anend if theservicesof the employeeareno longer required. Redundancyis,unfortunately,acommon featureof
  employmentgenerallyand thepossibilitythat itmayoccurcould notbe regarded asan objective ground justifyingthecontinuanceof fixed-termemployment for an indefiniteperiod.
  
  Consequently,theCourtcannotaccept that what the contract provided amounts to an objective ground justifyingthe continuation of theClaimants'employment fora fixed-term beyond thefouryearspermitted by s.9(2) of theAct.”

Dr Kenny submitted that the objective grounds set out by the Respondent do not pass the objective test set out in the case law of the CJEU inBilka Kaufaus GmbHvKarin Weber von Hartz [1986J ECR 1607.He referred toInouevMBK Designs [2003]14ELR96 where the Labour Court held that the test requires the employer to show that the impugned measures:

- (a)Correspond to a real need on the part of the undertaking;
  (b)Are appropriate with a view to achieving the objective pursued; and
  (c)Are necessary to that end.

Dr Kenny also cited the Labour Court in the caseHSE North Eastern AreavKahn [2006] J E.L.R. 313which held that if an employer wishes to rely on objective grounds to justify the renewal of fixed term contracts, it must establish"on credible evidence the factual matrix"relied upon as constituting objective justification. Dr Kenny referred to the recent case ofDITvDan Barry(FTD1237) where the Labour Court did not uphold the argument of the Respondent"that the continuation of the post is subject to external funding".

Dr Kenny submitted that in the instant case the Respondent deliberately sought from the start to deny the Complainant a contract of indefinite duration based on general objective grounds such as the uncertainty of apprentice student numbers and external funding. Dr Kenny contended that the use of these general objective grounds by the Respondent was an attempt to fulfil the requirements of Section 8 (2) while at the same time seeking to avoid the employer's obligations under Section 9 (3), namely, the awarding of a contract of indefinite duration.

Dr Kenny stated that the Respondentmanages variance instudent numbers on a continuous and regular basis,this iscustomand practicein the higher educationsector,enrolment numbers varyfrom time to time,eachyearHeads of Department,Heads of Schooland Colleges endeavour to calculate the enrolment numbers and how to makeprovision and manage their programmes.He contended that uncertaintyofnumberstherefore cannot beconsidered as apreciseand concreteobjective ground andas such it is not an unknown factor or something thatisunpredictable.

Dr Kenny stated that the Employment Control Framework requires Institutes to reduce their WTE headcount and lettingthe Complainantgo wasan easy way to achieve such a reduction. He referred to the Rights Commissioner case of Limerick CountyCouncil (lFT20387/04/JH) where it was held that'head count restrictions'do not constitute objective justification for not renewing a fixed-term contract. He stated that even the Employment Control Framework acknowledges a worker's right to a contract of indefinite duration, Section 8 states:-

- TheMoratorium must not be used as a meansof avoiding Contracts of
  Indefinite Duration (CIDs).

Dr Kenny submitted that through the Respondent's avoidance of awarding a contract of indefinite duration, the Complainant was not protected by the terms of the Public Service Agreement 2010-2014,which states:-

- TheGovernment gives a commitment that compulsory redundancy will not apply within the public service, save where existing exit provisions apply.

In this regard Dr Kenny submitted that the Complainantwas treated differently from other permanent staff by not being afforded protection against compulsory redundancy nor being afforded the option of redeployment.He submitted that permanent academic staff are afforded an opportunity and time to research new programmes in terms of content development, consultation with industry, marketing and accreditation whereas the Complainant was not, despite his skills and development of new programme proposals for Auto Cad 2D; Auto Cad 3D; Advanced Carpentry and Joinery City and Guilds and Cabinet Making City and Guilds. He said that these programmes would have catered for upskilling unemployed apprentices and qualified trades people.

Summary of the Respondent’s Position

Mr S�amus Given Solicitor, Arthur Cox, Solicitors, on behalf of the Respondent, stated that the FÁS Carpentry and Joinery Apprenticeship Programme is a seven-phase programme. As part of their training, Apprentices are scheduled by FÁS to attend block release in an Institute of Technology for Phase 4 and Phase 6 of that Programme.Phase 4 attendance should occur in the second year following recruitment and Phase 6 should occur in the third year following recruitment.

Therefore, Mr Given stated that a one-year and two-year lag occurs between initial recruitment and demandfor courses, accordingly, any decline in recruitment will result in a decline in demand on the educational sector at a later date. He stated that in practice, a major surge in recruitment from 2000 to early 2006 exceeded capacity and Apprentice block releases were delayed further than normal until places were available.

Mr Given stated that the Complainant was employed on the basis set out above because the Respondent had at all relevant times been concerned about the viability of the Carpentry and Joinery Apprenticeship Programme. He said that the Complainant's initial appointment arose from the temporary need by the Department of Education and Skills to tackle a backlog of Apprentices arising from the demands of the then construction boom. He told the Court that due to the significant downturn in the building industry there was a consequent downturn in the take-up of trade apprenticeships in the construction sector, including in Carpentry and Joinery. This in turn impacted on the viability of the Carpentry and Joinery Apprenticeship Programme offered by the Respondent.

Mr Given stated that theComplainant first became employed by the Institute as an Assistant Lecturer on 10^thJanuary 2005 under a fixed-term contract of employment which terminated on 31^stAugust 2005.This occurred because of a temporary increase in the then number of Carpentry and JoineryFÁSApprenticeship blocks allocated to the Respondent which arose because of a then backlog of Apprentices waiting for places in Carpentry and Joinery at national level.

Thereafter, the Complainant was employed on a second fixed-term contract of employment for a three-year fixed-term from 1 September 2005 to 31 August 2008.

Mr Given stated that the initial appointment and the second three-year contract were sanctioned by the Department of Education and Skills on the basis that (a) they were strictly ring-fenced for the Apprenticeship area; and (b) they were to be filled on a temporary basis. By letter of 3^rdAugust 2005 from the Department to the Respondent it stated that appointments in this area were to be filled on a temporary basis for a three-year period to allow for assessment of the longer term need for these additional blocks.

Mr Given stated that theaverage monthly number of recruits to Carpentry and Joinery began to decline from 176 per month in June 2006 and declined continuouslyto 5 per month by September 2012. By the start of the academic year 2008 the Respondent’s allocation of blocks was reduced from 8 blocks to 6 blocks per term and further decline was expected. Accordingly, the Complainant was employed on a one-year fixed-term contract from 1^stSeptember 2008 to 31 August 2009. He said that by July 2009, the numbers registering for the Carpentry and Joinery Apprenticeship Programme had collapsed and it was clear that the available blocks would further substantially reduce once the backlog was eliminated and the reduced level of registrations fed through the system.

Mr Given stated that it was unclear initially as to how allocations of blocks for
2009/2010would develop but in the final outcome the Respondent was allocated 6 blocks per term as in the previous year. The 1^stSeptember 2009contract furnished to the Complainant was written to allow for termination in December 2009 if the expected 6 blocks did not materialise. The 6 blocks were eventually scheduled for the second and third terms and accordingly the Complainant's employment was extended to 31^stAugust 2010 when it and the employment of two other fixed-term employees expired without renewal.

Mr Given stated that it was because of the profound decline in the allocation of Carpentry and Joinery blocks to Institutes/Colleges at that timethat the Complainant’s last fixed-term contract expired without renewal. He said that between November 2009 and January 2010, the HEA,through an Expert Panelhadconducted a further detailed evaluation of national allocations based on future demand forecast by an inter-Departmental Forecasting Committee. As a result the Respondent was allocated 3 blocks per term (9 blocks annually). In fact only 8 blocks materialised. This level was less than the original allocation in 2004 and brought the Respondent back below the number of blocks per term that existed before the Complainant was first employed.In fact only two blocks were allocated in the final two terms of that year. As a consequence of this,no work was available for the Complainant in the academic year 2010/2011.

Mr Given stated that by the academic year 2011/2012 the number of blocks allocated to the Respondent fell to 2 blocks in total out of 12 blocks nationally which had to be distributed amongst six Institutes/Colleges. He said that these factors caused the Respondent to review the viability of the Programme going forward and it made the decision to disengage from Carpentry and Joinery with effect from 1^stApril 2012 because the Programme was no longer viable.

The following table demonstrates the Carpentry and Joinery blocks allocated to the Respondent:-

Academic Year Carpentry and Joinery Blocks Per Year

2003/2004 12
2004/2005 16
2005/2006 18
2006/2007 24
2007/2008 24
2008/2009 18
2009/2010 18
2010/2011 8
2011/2012 2
2012/2013 None
2013/2014 None

Mr Given stated that the collapse in the number of blocks could be explained by the collapse in the number of Apprentices. In 2012 only 91 Apprentices registered for Carpentry and Joinery nationally. At its peak, in 2005, there were 2124 registered apprentices. He supplied the following data on the number of registrations per year :-

YEAR 2002 2003 2004 2005 2006 2007 2008 2009 2010
REGISTERED 1547 1849 2089 2124 1907 1353 511 140 96

Mr Given contended that the significant reduction in the demand for tuition in the trade of Carpentry and Joinery constitutes objective grounds for not affording the Complainant a contract of indefinite duration. He stated that the objective grounds were set out in the Complainant's contracts and contended that they were justified and valid.He stated that at present there is still a surplus of c. 28 permanent hours as a result of the loss of the Carpentry and Joinery Programme, this figure would have been greater had it not been for three staff members retiring.

Mr Given cited Circular0093/2007which culminated from an agreement between the Institutes of Technology sector and the TUI, and approved by the Minister for Education and Skills, on the interpretation to be given to the term'objective grounds'as contained at Section 7 of the Act.

Mr Given relied on paragraph 2.2.1. of the Circular (quoted above) which states,
inter alia, that the employer shall issue a contract of indefinite duration in accordance with the provisions of the Act if he/she isnotexcluded by reason of a post not being
viable within a reasonableperiodandwhere sucha groundwas set out asanobjectiveground inwritingintheprevious contract.He contended that the circumstances that arose in this case fell within the concept of objective grounds as defined in the Circular.

Mr Given also citedAdenelerwhere, in the following paragraphs, the Court addresses the objective justification issue:-

- "In those circumstances, the concept of 'objective reasons', within the
  meaning of clause 5(l)(a) of the Framework Agreement,must be understood as referring to precise and concrete circumstances characterising a given activity which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a
  Member State."

Mr Given submitted firstly that the instant case is entirely distinguishable from theAthlone Institute of Technologycase as in that case itwas only in mid-2010 that the
futureviability of the courses was seriously inquestion and the posts in question became non-viable in 2011. The Court held that:

- “It could not beaccepted that the difference in time between the conclusion of the 2008 contracts and the courses ceasing to be viable constituted a reasonable period for the purposes of the agreement [i.e. the Circular] ".

Whereas in the instant case, Mr Given stated that the non-viability of thepost wasclear from 2008, although the precise dateon which thiswould impact was uncertain until 2009.That was thereason whyfrom August 2008thefixed-term contracts awarded to the Complainant were of short duration. Mr Givensubmitted that thetwo-year period fromAugust2008 to August 2010 (thedateof completionof thelast block) was a
"reasonableperiod"ascontemplated by the Circular. He said that in theAthlonecasesthe equivalent period was3.5 years.

Secondly, Mr Given submitted that in the instant case,the Respondent advisedthe Complainantand his Union in clear and express terms that the futureviabilityof the
postswasin question at the time of thecontracts concerned unlike the finding in theAthlonecase where the Court held that it could not be accepted that:-

- “ ….anemployeecould beexpected to draw aninferencethat thepost may becomenonviablefrom ageneralor ambiguous statementsuch asthat usedintheinstantcase."

Mr Given referred the Court to the statement of Mr MauriceDoran, Higher Education Authority (HEA), who was seconded from Sligo Institute of Technology in 2001, to advise the Department of Education and Skills on the rapid expansion in apprenticeships. Mr Doran continued in that role until the HEA took over the responsibilities of the Institutes of Technology when his role was expanded to advise the HEA and the Department. As part of his work Mr Doran produced a monthly analysis on recruitment into each trade which he provided to the Department, HEA, individual Institutes and the TUI. Around 3^rdJune 2008 Mr Doran visited the Respondent and advised them that carpentry and joinery recruitment was diminishing and that it would not be possible to maintain national provision at current levels.

Mr Given referred to a meeting which took place on 13^thFebruary 2008 between management and the TUI at which the Complainant was present. The Strategic Plan and the Carpentry Apprentice Programme was discussed at this meeting. This stated that there was a 61% drop in carpentry student numbers and if the backlog was cleared that figure would drop quickly.

Mr Given also referred to a letter from the Respondent’s HR Manager to the TUI dated 15^thApril 2008 regarding “Carpentry Apprenticeship Block – Decline” which outlined that should the possible sharp decline in Carpentry Apprenticeship numbers take place it would have a negative impact on those staff on fixed-term contracts who were recruited to deal with the backlog. The HR Manager proceeded to inform the TUI that in order to inform staff members of this issue Departmental Managers were being requested to discuss the issue with their staff which Mr Given told the Court did happen.

Mr Given denied that the Respondent failed tospecify adequately theobjectivegroundsunderSection 8 ofthe Act. Without prejudice to theforegoing, any complaint underSection 8 about theadequacy ofthestatement ofobjectivegroundsin any of the
fixed-termcontracts,the most recent ofwhich issued on 14^thAugust 2009, wasoutof
time.

Findings of the Court

The Complainant’s case is that he commenced employment as a fixed-term employee on 10^thJanuary 2005. When he was given a contract on 1^stSeptember 2008 to expire on 31^stAugust 2009, the aggregate duration of his fixed-term employment had exceeded four years. He disputes the validity of the objective grounds relied upon by the Respondent that the decline in student numbers precluded his employment on a contract of indefinite duration. He contends that uncertainty about the future availability of students was common among all Institutes and could not amount to an objective ground for the continued renewal of his employment for a fixed-term. He submitted that this issue of uncertainty was not “precise and concrete”. Moreover, he contended that he could have been redeployed to other areas within the Institute as he haddeveloped new programme proposals for Auto Cad 2D; Auto Cad 3D; Advanced Carpentry and Joinery City and Guilds and Cabinet-Making City and Guilds.

Mr Given submitted to the Court that the Complainant was taken on to address a backlog which emanated from the surge in recruitment which occurred between 2000 and 2006 and was accordinglygiven a fixed-term contract of employment from January 2005 until 31^stAugust 2005.However, due to the Respondent’s concern regarding the futureviability of the Carpentry and Joinery Apprenticeship Programme at that time, the Complainant was given a three-year fixed-term from 1 September 2005 to 31 August 2008 on the basis that it was ring-fenced for the Apprenticeship area, as sanctioned by the Department of Education and Skills to allow for assessment of the longer term need for these Apprenticeships. At the time the number of recruits to Carpentry and Joinery began to decline and by July 2009 the numbers had collapsed to such an extent that once the backlog was eliminated and the reduced level of registrations fed through the system by September 2010 there was no longer a need for the temporary post filled by the Complainant nor for two other fixed-term employees.Mr. Given stated that the Complainant’s career was in construction and there were no roles available in construction at this time.

He relied on Circular0093/2007and submitted that the post occupied by the Complainant was not going to beviable within a reasonableperiodand this was expressly stated in his renewed fixed-term contracts.Dr Given stated that the
non-viability of thepost wasclear from 2008although the precise dateon which thiswould impact was uncertain until 2009.

He distinguished the instant case with the Labour Courts decision in theAthlonecases and held that the factsofthe Traleecase areentirely different:-

i. Thereis no disputedspecific purposecontract in this Traleecase;
ii. Theviabilityissue crystallisedwithin a reasonabletimein theTraleecase; and
iii. TheComplainantand the TUI wereatall times aware of theimminent
non-viability issuein thisTraleecase.

The Law

The relevant statutory provisions applicable in this case are to be found in Section 9 and Section 7 of the Act.

Section 9(2) 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 four 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.

Section 9(4) provides that Subsections (1), (2) and (3) of Section 9 are not applicable to the renewal of a fixed-term contract where there are objective grounds justifying such a renewal.

In this case the Complainant was employed on six continuous fixed-term contracts the aggregate duration of which exceeded four years. Consequently, his third fixed-term contract would have been transmuted to one of indefinite duration by operation of law unless there were objective grounds justifying that renewal.

Section 7 (1) of the Act deals with what constitutes objective grounds for this purpose and provides:

- “(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.

Both parties have sought to rely on Department of Education and Skills Circular 0093/2007 in advancing their respective positions on issues arising in this case. As was pointed out by this Court in Determination FTD1117,Athlone Institute of Technology v Hannify and Ors,this Circular and the collective agreement to which it gave effect, provide a useful indication of the intention of the parties to the agreement on what can constitute objective grounds for the purposes of the Act. However, neither the Circular nor the collective agreement can offset or supplant the clear provisions of the Act nor can they be relied upon to determine the entitlement of any person to a benefit created by the Act. Accordingly, this case must be determined by the application of the legal principles derived from Sections 7, 8 and 9 the Act itself.There is a wealth of authority in the jurisprudence of the Court of Justice of the European Union on how the concept of objective justification should be applied. In case C-212/04Adeneler and Ors. v Ellinikos Organismos Galaktos[2006] IRLR 716 the CJEU (formerly the ECJ) made it clear that the grounds relied upon must be objectively justified by reference to the work actually performed and the circumstances under which it is performed. The Court said at pars 69-70 of its judgment: -

- “[T]he concept of 'objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.
  
  Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.”

That principle was restated and further developed by the Court of Justice in case C-307/05,Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud[2007] IRLR 911. This was a case in which the objective justification for a difference in employment conditions are in issue. However, the Court made it clear that the interpretation of what constitutes objective grounds is the same whether it arises in relation to the renewal of successive fixed-term contracts, as inAdeneler,or in relation to the principle of equal treatment, as in the instant case under consideration inAlonso. In giving judgment in the latter case the Court of Justice said, in relation to objective grounds, at par 58: -

- “....that concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.”

InAdenelerand again in C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071 the CJEU drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category.

In this case the net question that falls for determination is whether the work for which the Claimant was employed should properly be classified as coming within the fixed and permanent needs of the Respondent or whether it was part of a purely temporary or transient need.

Conclusions of the Court

The Court is satisfied that the Complainant was notified on each renewal of the temporary nature of his contracts and that initially his contract was to deal with the backlog of Apprentice numbers awaiting places in Carpentry and Joinery. When his contract was renewed for the first time on 1^stSeptember 2005 it stated that due to a number of issues including falling demands, uncertainty regarding future student
numbers and course viability all of which were being addressedinthe context of the
Institute's Strategic Plan, he was not being offered a contract of indefiniteduration.

While it is fully accepted thatuncertainty of student numbers may not be precise and concrete and can be due to natural ‘peaks and troughs’ , however, in this case
the Court is satisfied that there is a link between the Institute’s Strategic Plan and the premise why further contracts issued to the Complainant were of short duration. The Respondent had made it clear to the TUI and the Complainant on 13^thFebruary 2008 and reaffirmed it in a letter to the TUI on 15^thApril 2008 that the Complainant’s post was non-viablein the long term. This was then affirmed in his contract dated 1^stSeptember 2008 when it stated that he was not being furnished with a contract ofindefinite duration due to decline in Carpentryand Joineryblocks thatyear and the
furtherdecline which was expected.

The Court notes that it was not knownuntil 2009whenthis declinewould impact therefore he was issued with short renewals of his contract until the situation finally became untenable at the end of August 2010 when the Complainant along with two other members of staff on fixed-term contracts in the Carpentry and Joinery area were let go. The Court is satisfied that the reasons for the fixed-term nature of the Complainant’s contracts were due to a temporary situationover which the Respondent had no control. Consequently, the work concerned was not part of the fixed and permanent needs of the Respondent. This was made clear by the Respondent in written notifications furnished to the Complainant on each occasion on which his employment was renewed for a fixed-term.

The contracts set out the objective justification for the renewals which the Court regards in such circumstances as comporting with the requirements of Section 7 of the Act. Accordingly, the Court is satisfied that the renewal of the Complainant’s employment on 1^stSeptember 2008 was saved by Section 9(4) of the Act.

The Complainant’s employment then came to an end by reason of redundancy. While the Complainant stated that he was qualified to undertake alternative roles within the Institute, the Respondent stated that following the termination of the Carpentry and Joinery Programme there was still a surplus of c. 28 hours remaining and there were no other alternative positions available.

For the reasons outlined the Court is satisfied that this instance case can be distinguished from theAthlone Institute of Technologycase, as the objective grounds relied upon by the Respondent for not issuing a contract of indefinite duration were clear and consistent, in that the post would not be viable within a reasonable period - two years.

The Court is also satisfied that this case is in line withAdeneler,as the objective grounds specified in the Complainant’s renewed contracts of employment and relied upon by the Respondentrespond to a genuine need, to cover a backlog in a situation where there was a declining need for a Lecturer in the Carpentry and Joinery Programme. To issue short fixed-term contracts when it was clear that the number of Apprenticeship blocks was coming to an end wasappropriate for achievingthe objectivepursued and was necessaryfor that purpose.

The Court is further satisfied that the Respondent complied at all times with the obligations imposed on it by Section 8 of the Act. Each of the contracts issued to the Complainant was accompanied by a statement in writing setting out the objective grounds for the renewal of his employment for a fixed-term and the reasons for not offering him a contract of indefinite duration.

Determination

For all the reasons set out above the Court determines that the Complainant’s complaint is not well-founded, the Decision of the Rights Commissioner is affirmed and his appeal is therefore disallowed.

Signed on behalf of the Labour Court

Caroline Jenkinson
CR______________________
8th May, 2013Deputy Chairman

NOTE

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