FTD1312

In this Determination Mr Moran is referred to as the Claimant and Wicklow County Council is referred to as the Respondent.

Facts
The material facts of the case are not seriously in dispute and can be summarised as follows: -

The Claimant was first employed by the Respondent on 12^thJune 2006 as a Senior Resident Engineer pursuant to a fixed-term contract. The objective condition determining the contract was the completion of specified water supply scheme. The contract stated on its face that the expected duration of the contract would be 36 months. During the currency of that contract the Claimant applied for and was appointed to a temporary post of Chief Resident Engineer on a separate civil engineering project. On 1^stFebruary his employment was continued pursuant to a second fixed-term contract the duration of which was fixed to the completions of the project in question. The stated expected duration of that contract was to be two years although it is accepted that it extended beyond that duration. The project in fact ended on or about 31^stOctober 2010. The Claimant attained four years of continuous fixed-term employment on 11^thJune 2010.

In or about May 2010 a vacancy arose for a Resident Engineer with the Respondent in connection with a third civil engineering project. The Claimant applied for this post and was successful. He commenced employment in that capacity on 1^stNovember 2010, again pursuant to a fixed-term contract limited to the duration of the project to which the contract related. The Claimant continues to be employed by the Respondent pursuant to that contract.

Position of the parties
This matter came on for hearing before the Court on 21^stNovember 2012. The Respondent contended that each renewal of each of the three contracts in issue was saved by s.9(4) of the Act because there existed at the material times objective grounds justifying the continued employment of the Claimant for a fixed term. The Claimant contended that there were no such objective grounds and that his second fixed-term contract was transmuted to one of indefinite duration by operation of s.9(3) of the Act.

Negotiations between the Parties
In the course of the hearing on 21^stNovember 2012 the Respondent indicated to the Court that it wished to have an opportunity to negotiate with a view to reaching a settlement of the within claim. The Court adjourned the matter to allow negotiations to take place. These negotiations were unsuccessful and the Claimant applied to the Court for a determination of his claim.

The Court convened a further hearing on 1^stMay 2013.

The resumed hearing
At the resumed hearing the representative of the Respondent told the Court that he was prepared to accept that the Claimant became entitled to a contract of indefinite duration by operation of law on the conclusion of the his third contract. He conceded that the Claimant is now employed pursuant to such a contract on the same terms as the fixed contract which commenced on 1^stNovember 2010. The Claimant’s position remains that it was his second contract that became one of indefinite duration. Arising from the Respondent’s concession the only remaining question which the Court must decide is whether the Claimant became permanently employed as a Resident Engineer (the position to which he was appointed under the third contract) or a Chief Resident Engineer (which is the position in he was employed under the second contract)..

Conclusion of the Court
The Court first considered if the conclusion of the Claimant’s second fixed-term in February 2008 was justified on objective grounds. That contract was for the post of Chief Resident Engineer on a specific project.

The decision of the High Court (per Hanna J.) in inRussell v Mount Temple Comprehensive SchoolIEHC 533 is a clear authority for the proposition that the existence of objective grounds justifying the renewal of a fixed-term contract is to be judged at the commencement of the impugned contract. Hence, the focus of the Court’s enquiry must be directed at the circumstances pertaining in February 2008 when the Claimant’s second contract came into effect. Since the decision of the CJEU in case C-212/04Adeneler and Ors. V Ellinikos Organismos GalaktosIRLR 716 it is settled that the concept of objective grounds 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.

In applying that test the CJEU, inAdenelerand again in C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071,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.

The Court is satisfied on the evidence that at the material time the Respondent did not have a fixed or permanent need for the services of a Chief Resident Engineer and its requirement in that regard was genuinely confined to the duration of the project on which the Claimant was employed. It is significant that the Respondent then employed one other Chief Resident Engineer who was also engaged on project work under a fixed-term contract. That person’s employment has since terminated. Neither the Claimant nor that person has been replaced in that capacity. The Court is also satisfied that the Claimant recognised the temporary nature of the post in which he was then employed when he applied for the position that he now holds. He did so in the knowledge that the post that he then held as a Chief Resident Engineer would shortly come to an end on the completion of the project in question and that no further work in that capacity would be available.

The Claimant relies on events subsequent to the conclusion of the second contract in claiming that the objective grounds ceased to exist during its currency. He claims that he was assigned to undertake work, which was unrelated to the project specified in his contract, involving the fixed and permanent needs of the Respondent. Taking the Claimant’s evidence in that regard at its height it could not render the conclusion of the second fixed-term contract unlawful if, at the time of its commencement, it was justified on objective grounds. As the Court is satisfied that in February 2008 the renewal of the Claimant’s employment for a fixed-term was so justified it must hold that it was saved by s.9(4) of the Act and therefore lawful.

Having regard to the concession made by the Respondent regarding the conclusion of the third contract on 1^stNovember 2010 the Court is satisfied that the Respondent then had a fixed and permanent need for a Resident Engineer. Consequently, the renewal of the Claimant’s fixed-term employment, and in that capacity, contravened s.9(2) of the Act. Hence, by operation of s.9(3) of the Act that contract was transmuted to one of indefinite duration by operation of law from the date of its conclusion.

On the authority ofMinister for Finance v Una McArdle[2007] 18 ELR 165 the Court must hold that the contract which became one of indefinite duration by operation of law was identical in its terms to the fixed-term contract from which it was derived. It follows that the Claimant became and continues to be employed on a contract of indefinite duration as a Resident Engineer.

The Respondent contravened s.9(2) of the Act in purporting to renew the Claimant’s employment for a fixed term on 1^stNovember 2010. The Court awards the Claimant compensation in the amount of €5,000 in respect of that contravention.

Determination
The appeal is allowed and the decision of the Rights Commissioner is set aside and substituted with this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
28th May 2013______________________
AHChairman



NOTE

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