FTD1325

SUBJECT:
1. Appeal Against Rights Commissioners Decision r-114783-ft-11/EOS


BACKGROUND:

2. This case is an appeal by the employer of Rights Commissioners Decision No: r-114783-ft-11/EOS. The appeal was submitted on the 19th December 2012 pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on 24th September 2013.




DETERMINATION:

This is an appeal by the National University of Ireland Galway against the decision of a Rights Commissioner in a claim by Dr Clair Welford under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). In this Determination the parties are referred to as they were at first instance. Hence, Dr Welford is referred to as the Claimant and NUIG is referred to as the Respondent.

The Claimant was employed by the Respondent on a series of fixed-term contracts. She contends that by operation of s.9(3) of the Act she became employed by the Respondent on a contract of indefinite duration. The Rights Commissioner found for the Claimant on that point and the Respondent appealed to this Court. While other issues were canvased before the Rights Commissioner the only issue for determination in this appeal relates to whether she was correct in her conclusion that the Claimant became employed by the Respondent on a contract of indefinite duration by operation of law.

The Facts

The material facts of the case as admitted or as found by the Court can be summarised as follows: -

The Claimant commenced her employment with the Respondent on 13^thApril 2005, pursuant to a fixed-term contract, as a lecturer in Nursing Studies. That contract was expressed to run until 12^thApril 2006. On the expiry of that contract it was extended to 12^thApril 2007. By letter dated 3^rdApril 2007 the Claimant’s employment was further extended for a fixed-term commencing on 13^thApril 2007 and expiring on 31^stAugust 2008.

During the currency of that contract funding was received from the Health Research Board in order to undertake a study entitled ‘Measuring and Improving Resident Autonomy in Long-Stay Care of Older People’. The Claimant was to undertake this study. There is some confusion as to when this contract commenced but in a letter from the Respondent to the Claimant dated 12^thNovember 2008 it was expressed to have commenced on 1^stDecember 2007 and was to run to 30^thNovember 2010. The reason given in the aforesaid letter for providing a fixed-term contract for this period of employment was that the funding provided for this research would cease on 30^thNovember 2010. It appears that funding was in fact extended to 31^stDecember 2010 and by letter dated 16^thSeptember 2010 the Claimant’s fixed-term contract was extended to that date.

The Claimant subsequently obtained a further fixed-term contract commencing on 1^stJanuary 2011 and ending on 21^stAugust 2011 as a lecturer in General Nursing. This contract was for the purpose of providing maternity leave cover. Finally, the Claimant’s employment was continued on a fixed-term contract as a part-time teaching assistant in the School of Nursing and Midwifery for the purpose of providing ‘a temporary period of teaching’. This contract was expressed to run from 1^stSeptember 2011 to 30^thJune 2012. It appears that the post in question was to provide cover pending the permanent filling of the posts within the discipline.

The Question for Determination

In essence the Claimant’s case is that she completed four years continuous fixed-term employment on or about 12^thApril 2009. She contends that her continued employment on a fixed-term contract beyond that date contravened s.9(2) of the Act and, by operation of s.9(3) of the Act, her fixed-term contract was transmuted to one of indefinite duration by operation of law.

The Respondent relies on s.9(4) of the Act and contends that there were objective grounds justifying the continued employment of the Claimant for a fixed-term beyond the period normally permitted by s.9(2) of the Act. The objective grounds relied upon by the Respondent related to the temporary nature of the research project for which she was employed by the contract commencing on 1^stDecember 2007which was limited by the finite nature of the funding available to the Respondent.

Conclusions of the Court

The Claimant commenced employment as a fixed-term worker on 13^thApril 2005. The effect of s.9(2) of the Act was to prohibit her continued employment for a fixed-term beyond 12^thSeptember 2009 unless there were objective grounds for so doing.

InMinister for Finance v Una McArdle[2007] 18 ELR 165 Laffoy J quoted with approval the following passage from this Court’s Determination in the case in which the effect s.9(3) was considered: -

• “That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio , the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration.

It is also clear that s.9(4), and by extension s.9(3) of the Act, takes effect at the commencement of the impugned contract. This was made clear by Hanna J inRussell v Mount Temple Comprehensive SchoolIEHC 533. This can have the practical effect of transmuting a fixed-term contract to one of indefinite duration before the expiry of the duration referred to in either subs (1) or (2) of s.9 of the Act. In the instant case the Claimant entered into a further fixed-term contract which was expressed to commence on 1^stDecember 2007 and to continue to 30^thNovember 2010. The effect of that contract was to extend the Claimant’s fixed-term employment beyond the period of four years provided for at s.9(2) of the Act. Hence s.9(3) of the Act would have operated to transmute that contract to one of indefinite duration from the date of its conclusion unless the renewal was saved by s.9(4) of the Act.

Objective Grounds

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.

There is a wealth of authority in the jurisprudence of the Court of Justice of the European Union (formally the ECJ) on how the concept of objective justification should be applied. In case C-212/04Adeneler and Ors. V Ellinikos Organismos GalaktosIRLR 716, the CJEU 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.”

In case 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 pursuant to the contract of 1^stDecember 2007should 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.

In considering that question the Court accepts the submissions made on behalf of the Claimant to the effect that the conduct of researchper seis part of the core functions of an academic and forms part of the fixed and permanent needs of a University. However, what is in issue in this case is whether the particular study which the Claimant was contracted to undertake in December 2007 could properly be classified as forming part of its fixed and permanent needs or whether it fulfilled a temporary or transient need.

Having considered all the evidence it is clear to the Court that this project in question was in the nature of a stand-alone undertaking rather than forming part of a continuum of similar projects which could be regarded as meeting the Respondent’s permanent needs. The project was to last for a defined period of three years and this was recognised by the Claimant in a letter that she sent to the Respondent dated 15^thOctober 2007. It is also of significance that the funding for the project was arranged by the Claimant herself and it was part of a PhD programme that she was then undertaking. It was in that regard an undertaking of a temporary or transient nature and did not form part of the Respondent’s continuing or permanent research requirements.

In these circumstances the Court has come to the conclusion that on the facts of this case there were objective grounds justifying the renewal of the Claimant’s employment for a fixed-term to under this specific project. Accordingly s.9(3) of the Act did not apply to this renewal.

No issue was taken in relation to the contracts under which the Claimant was employed for a fixed-term following the completion of this project. Her employment was renewed on 1^stJanuary 2011 in order to provide maternity leave cover. That renewal was clearly objectively justified. Nor was it suggested that the final renewal on 1^stSeptember 2011 attracted the operation of s.9(3) of the Act.

Result

On the facts of this case the Court has come to the conclusion that the Respondent is entitled to rely on s.9(4) of the Act in defending each renewal of the Claimant’s employment for a fixed-term. According her claim cannot succeed.

Determination

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
3rd October 2013______________________
AHChairman



NOTE

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