FTD1326

SUBJECT:
1. An appeal against a Rights Commissioner's Decision r-120576-ft-12 JOC.


BACKGROUND:

2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 23rdNovember 2012. A Labour Court hearing took place on the 15th April 2013.

The following is the Labour Court's Determination:-



DETERMINATION:

This is an appeal by Ms Noelle Cunning (the Claimant) against the decision of a Rights Commissioner in her complaint against her former employer, Dublin Institute of Technology (the Respondent) under the Protection of Employees (Part-Time Work) Act 2003.

History of the Complainant’s Employment
The Complainant was informed on the 20^thSeptember 2006 that she had been successful at interview for the post of “Temporary Whole-time Assistant Lecturer in Pharmaceutical Chemistry”. She accepted the offer and commenced duties on the 4^thDecember 2006. The contract of employment given to her however covered the period from the 4^thNovember 2006 until the 31^stAugust 2007. The contract was signed by both parties on the 25^thNovember 2006.

The contract states that

• “this is a fixed term renewable contract between the Institute and the lecturer. The duration of the contract will be from 4^thNovember 2006 until 31^stAugust 2007”

A four month probationary period applied to the post. On the 5^thApril 2007 the Respondent wrote to the Complainant advising her that she had successfully completed her probation with effect from 4^thApril 2007. The Institute, in that letter, confirmed her appointment to the position of“Temporary Wholetime Assistant Lecturer in Pharmaceutical Chemistry – Quality Assurance (ref:40/06)”

The Respondent gave the Complainant a second contract of employment that it describes as a “specified purpose contract” for the post of Temporary Wholetime Assistant Lecturer. This contract took effect from the 1^stSeptember 2007. The relevant provision in the contract states

• “This is a specified purpose contract, insofar as you are replacing Dr. Gary Michael Cox who has been granted a career break extension”.

The contract contains no termination date.

The contract was signed by the Complainant on the 25^thJuly and by the Institute on the 1^stAugust 2007.

On the 17 July 2008 the Institute wrote to the Complainant in the following terms

As you are aware, your temporary employment contract ceases on 31^stAugust 2008.

• I am pleased to inform you that the Director and Dean of the Faculty of Science has recommended that you be re-appointed to the position of Temporary Wholetime Assistant Lecturer. This is a specified purpose contract, insofar as you are replacing Dr. Michael Gary Cox who has been granted a career break extension. The other terms and conditios of the position are the same as those indicated to you in your previous temporary wholetime assignment viz-a- viz holiday, sick leave, etc.

It goes on to set out the salary scale that will apply and finishes by saying

• If you are interested in accepting this position, please complete and return the enclosed acceptance form as soon as possible.

On the 22^ndJuly 2010 the Institute next writes to the Complainant in the following terms

• I wish to advice you that the College of Sciences has approved an extension to Dr Gary Cox’s career break for a further year, with effect from 1^stSeptember 2010.

  Consequently your Specified Purpose contract to cover Dr. Cox’s career break will continue until at least 31^stAugust 2011.

  All other terms and conditions remain the same.

On the 21^stJuly 2011 the Institute wrote to the Complainant. The letter, in relevant part, states: -

• I wish to thank you on behalf of the Institute for your dedicated work in the College of Sciences & Health.

  However I regret to advise that, in accordance with the terms of your contract of employment with the Institute, your employment will cease on the 31^stAugust 2011, as the career break for the staff member who you have been covering will cease on 31^stAugust 2011.

  Payroll will be notified to pay you any monies due and to issue you with your P.45.

The Institute then advertised a vacancy for a “Pro-Rata Part-Time Assistant Lecturer in Pharmaceutical Sciences (Specified Purpose)”. The Complainant was successful in the competition. She was so advised on the 28^thSeptember. The letter of offer contained the following terms

• “The post is offered on a specified purpose contract basis covering hours arising from a staff member’s job-share arrangement. The contract will cease on the staff member’s return to work on a wholetime basis.”

On the 3^rdof October 2011 the Complainant wrote to the Institute in the following terms

• “I understand that I have an entitlement to a Contract of Indefinite Duration from the commencement of the 2010/2011 academic year.

  I would appreciate if you could confirm by return mail”

On the 20^thof October 2011 the Institute wrote to the Complainant in the following terms

• Re Pro-Rata part-Time Assistant Lecturer in Pharmaceutical Sciences (Specified Purpose – 8 hours per week)
  • Further to correspondence between you and the Institute in respect of the above post, I would like to advise as follows.

    In relation to our email dated 20^thOctober 2011, I now enclose a copy of the acceptance form for the above post and I would be grateful if you could complete and return to me as soon as possible, without prejudice to your claim for a Contract of Indefinite Duration which is currently being considered by the Institute.

    I also enclose two copies of your Contract of Employment. This is a Specified Purpose contract covering hours arising from Dr Michael Gary Cox’s job-share arrangement, the duration for which is expected to be for the 2011/12 academic session. Please sign both copies and return them to this office as soon as possible, without prejudice to your claim for a Contract of Indefinite Duration. A copy endorsed on behalf of the Institute will be returned to you for your retention.

    This contract is issued on the basis that you are available to each this number of weekly hours over the course of the academic year. You must also be available to carry out the full range of duties associated with a position at Assistant Lecturer level, as set out in the Contract of Employment and as discussed with your Head of School/Department. This requires attendance during the normal working week in addition to class contact hours as set out on your timetable, as issued by your Head of School/Department.

    Based on the number of weekly hours that you are required to teach over the course of the entire academic year (or as averaged over the year) you will be remunerated as follows:

    8/18 hours at point (08) of the Assistant Lecturer salary scale with effect from 03/10/2011.

    It is not anticipated that you will be assigned any additional hours over and above this contract unless in very exceptional circumstances and on prior advice from College Management.

    In accordance with Section 8 of the Protection of Employees (Fixed-Term Work) Act 2003, I wish to advise you that the Institute is not in a position to offer you a permanent position at this time as you are covering hours arising from Dr Michael Gary Cox’s job-share arrangement.

Finally, the letter goes on to deal with progression from assistant lecturer to lecturer. It also advises her of the institute’s procedure for advertising posts within the College.

The Complainant did not sign and or return the contract. The Contract contains a number of clauses that are not in earlier contracts of employment. These include

• The Institute is not in a position to offer you a permanent position at this time as you are covering hours arising from Dr Michael Gary Cox’s job-share arrangement. This contract does not confer any right to any permanent job that may become vacant or available you will however be entitled to apply for any permanent job for which you are qualified. The Institute advertises permanent vacancies on its website and in the national newspapers from time to time.

  The provisions of the Dublin Institute of Technology Acts 1992 to 2006 and any subsequent Acts replacing or amending these Acts and any orders and regulations made under these Acts will apply. The Education Sector Superannuation Scheme and any Acts replacing or amending it, will apply as provided for in the Institutes of Technology Acts, 1992 to 2006. The Provisions of the Public Service Superannuation (Miscellaneous Provisions) Act, 2004 apply to the post.

  You acknowledge that this contract is subject to public policy in respect of recruitment on the public sectors (for example as outlined in the “Employment Control Framework for Higher Education Sector” published by the Higher Education Authority pursuant to the Moratorium on Recruitment and Promotions in the Public Service). It is a condition of this contract that if the Institute is obliged to terminate the post for reasons outside of its control, such as state policy, a redundancy will arise in respect of this position.

On the 16^thNovember the Institute informed the Complainant that the Director had considered the claim for a Contract of Indefinite Duration and had recommended to the Human Resources Committee that it be contested. She was further advised that the Human Resources Committee had resolved accordingly.

On the 18^thNovember the Institute informed the Complainant that her employment would cease with effect from the 1^stDecember 2011. This event was brought about by the resignation from the Institute, with effect from the 30^thNovember 2011, of the person whose hours she had been covering.

The Complainant, in accordance with Section 14(1) of the Act, submitted a series of complaints to the Rights Commissioner. The complaint was submitted to the Rights Commissioner on 29^thFebruary 2012. The Complainant complained that the Institute had contravened Sections 6, 8(2) 9(2) and 13(1) of the Act.

The Rights Commissioner decided that the complaints under sections 8(2), 9(2) and 13(1) of the Act were not well founded. The Rights Commissioner did not address the Complaint under Section 6 of the Act.

The Complainant appealed to the Labour Court, under Section 15 (1) of the Act, against those decisions. The Respondent did not cross-appeal against the decisions of the Rights Commissioner.

The substance of the complaints
In substance the complaints are: -

• 
  1. That the Respondent did not provide the Claimant with a written statement in respect of each of the renewals of her fixed-term employment in September 2009 setting out the objective grounds justifying the renewal and the reasons for not offering her a contract of indefinite duration.

  2. That her fixed-terms employment was transmuted to employment of indefinite durations by operation of s.9(3) of the Act by virtue of having completed four years of continuous employment on fixed-term contracts and there being no objective grounds justifying further renewals.

  3. In the alternative to 2 above, that in or about September 2009, on the expiry of a fixed-term contract under which she had been employed, she remained in the employment of the Respondent pursuant to an implied contract which was not a fixed-term contract and which was, as a matter of law, a contract of indefinite duration. Implicit in that contention is a submission that any subsequent contracts that purported to be of fixed-term duration were void and of no effect. In essence, the Claimant contends that she became a permanent employee of the Respondent in September 2009 and that continued to be her employment status notwithstanding the purported conclusion of subsequent fixed-term contracts.

The Respondent’s case
In summary, the Respondent submitted that the Claimant was, at all material times, employed pursuant to fixed-term contracts. It contends that the contracts were for the purpose of providing cover for Dr Cox who was on a career break. It submits that the duration of the Claimant’s employment was at all times limited to the duration of Dr Cox’s absence and that her employment would terminated by fulfilment of its purpose when Dr Cox ceased to be on a career break.

It is the Respondent’s case that the renewal of the Claimant’s fixed-term employment beyond the four years normally permitted by s.9(2) of the Act was justified on objective grounds inherent in the purpose of her employment. It contends that cover was required for the temporary absence of Dr Cox and that on his return the requirement for that cover would cease. According to the Respondent there were no alternative means by which that objective could be pursued.

In relation to the alternative line of argument advanced by the Claimant in contending that she had attained the status of a permanent employee, the Respondent asserts that the failure to inform the Claimant, in September 2009, that her fixed-term employment was being renewed was an oversight. It submits that the Claimant was fully aware that her employment was being renewed for the purpose of accommodating the continuing absence of Dr Cox and that her tenure was at all times limited to the duration of that absence.

With regard to the Claimant complaint in so far as it relates to s.8 of the Act, the Respondent denies that it failed to provide a statement of objective grounds in accordance with that section. Without prejudice to its contention in that regard the Respondent submits that the complaint in relation to the renewal of the Claimant’s employment in 2009 is statute-barred.

Conclusions of the Court

Section 8 of the Act.
The Court first considered the Claimant’s complaint in so far as it relates to s.8 of the Act. This complaint relates to the renewal of the Claimant’s employment in September 2009. It is noted that the Claimant in fact contends that this renewal was not for a fixed-term but was for an indefinite duration. If she is correct in that contention s 8 of the Act could have no application since it relates only to the renewal of a fixed-term contract for another fixed-term.

The event giving rise to this complaint occurred in September 2009. The within complaint was presented to a Rights Commissioner on 29^thFebruary 2012. Section 14(3) of the Act provides, in effect, that a Rights Commissioner (and by extension this Court) cannot entertain a complaint unless it is presented within six-months from the date of the contravention to which the complaint relates, or the termination of the employment, whichever is the earlier.

The obligation to provide a statement under s.8 of the Act arises on the renewal of a fixed-term contract. It is at that point that any cause of action arising from a failure to comply with the section accrues. The within complaint was presented to a Rights Commissioner some 29 months from the date of the contravention complained of. Accordingly this aspect of the complaint is out of time and it cannot be entertained by the Court.

Renewal of the Claimant’s employment in 2009
It appears that on the expiry of the Claimant’s fixed-term contract in or about September 2009 she was not formally notified that her fixed-term contract was being renewed. Rather, she simply remained in employment and continued to perform her duties and to receive remuneration. In these circumstances she contends that she became employed on an implied contract. She further contends that since this implied contract did not contain a term providing for its termination by an objective condition it was, as a matter of law, a contract of indefinite duration. On that basis she contends that the subsequent contracts which purported to be for a fixed-term were void and of no effect. In the result the Claimant contends that she became a permanent employee of the Respondent from September 2009 onwards.

It appears clear that notwithstanding what occurred in 2009 the Claimant continued to regard herself as a fixed-term employee. She signed the later contracts which were proffered by the Respondent and she did so without demur. Moreover, the Complainant wrote to the Respondent by letter dated 3^rdOctober 2011 claiming an entitlement to a contract of indefinite duration from the commencement of the academic year 2010/2011. The terms of this letter clearly acknowledge her status as a fixed-term employee prior to that date.

There is a further consideration that is central to this aspect of the Claimant’s case. The within complaints are grounded on the Claimant being a fixed-term employee within the statutory meaning of that term. Hence, she is relying on the validity of subsequent fixed-term contracts for the purpose of establishinglocus standiunder the Act while repudiating their validity for the purpose of advancing her claim to permanent status. This amounts to the Complainant seeking to approbate and reprobate.

InSuperwood Holdings plc v Sun Alliance & London Insurance plc[1995] 3 I.R. 303 Blayney J quoted with approval the following passage from the decision of Budd J. inCoen v Employer's Liability Assurance Corporation[1962] I.R. 314: -

• “….the repudiating party cannot be allowed to approbate and reprobate. He cannot thus be allowed to say: ‘I deny the existence of the contract which you say exists between us, but I also rely on a term of that contract ….”

A similar position was adopted by McMahon J inManor Park Homebuilders Limited v AIG Europe (Ireland) Limited[2009] 1 ILRM 190.

In these circumstances the Court is of the view that the Claimant is now estopped from denying the validity of the contracts into which she entered subsequent to September 2009.

For the sake of completeness, the Court should point out that the position in that regard in the instant case is different to that which arose in other cases in which it was held that the coming into effect of a contract of indefinite duration, by operation of s.9 of the Act, did not deprive a Claimant oflocus standito pursue a case under the Act. In this case the Claimant is not contending that she acquired a contract of indefinite duration in September 2009 by operation of any provision of the Act. Consequently, it is not a case of a continuing failure of the Respondent to recognise and apply her entitlements under the Act. Further, unlike what occurred inMinister for Finance v Una McArdle[2007] 18 ELR 165 this is not a case of the Respondent seeking to rely on the permanent status of the Claimant so as to defeat her claim while having treated her as a fixed-term employee up to the date of the hearing. In the instance case it is the Claimant who is repudiating her fixed-terms contracts while relying on those contracts in order to establish her standing under the Act.

Objective justification of the subsequent renewals
The Court next considered if the Claimant’s contention that her fixed-term contracts were transmuted to one of indefinite duration by operation of law.

Section 9(2) of the Act provides: -

• 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 4 years

Subsection (3) of that section provided:-

• 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

Subsection (4) of this section provides: -

• Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

The Claimant commenced her fixed-term employment with the Respondent on 4^thNovember 2006. Consequently, any renewal of her fixed-term employment beyond the period commencing on 3^rdNovember 2010 offended against s.9(2) and by operation of s.9(3) her employment must be deemed to have been transmuted to that of fixed-duration unless the renewal was saved by s.9(4). The Claimant’s fixed-term employment was renewed on 22^ndJuly 2010 up to 31^stAugust 2011. Her employment was again renewed on 20^thOctober 2011 for the academic year 2011 to 2012 on what purported to be a fixed-term contract.

Prima facie, both of these renewals contravened s.9(2) of the Act. Consequently, unless the renewals were saved by s.9(4) she attained a contract of indefinite duration by operation of law.

The question then arising is whether either or both renewals were objectively justified.

The applicable law on objective justification
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.

This statutory formulation is derived from the jurisprudence of the Court of Justice of the European Union (formerly the ECJ) on how the notion of objective justification should be applied. InAdeneler and Ors. V Ellinikos Organismos Galaktosthe Court held, at pars 69-70: -

• “[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 dicta 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 as between a fixed-term worker and a comparable permanent worker was 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 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.”

It is clear that s.9(4), and by extension s.9(3), takes effect at the commencement of the impugned contract. This was made clear by Hanna J inRussell v Mount Temple Comprehensive SchoolIEHC 533.

It is well settled that s. 9(4) of the Act allows for derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the subsection (see the dictum of the CJEU to that effect in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430, (at par 39). Moreover, in effect, this subsection provides an employer with a defence. Consequently, it is for the person seeking to rely on that defence to establish the factual basis upon which it is grounded.

The statutory and jurisprudential formulation of what constitutes objective justification requires an examination of two fundamental questions. Was the renewal of the fixed-term contract in pursuance of a legitimate objective. If that question is answered affirmatively it is necessary to consider if the means chosen (in this case the renewal of the Claimant contract for a fixed-term) were appropriate and necessary. That raises the question of proportionality.

In a recently delivered judgment inAn Post v Monaghan and Wade, Unreported, High Court, Hedigan J, 26^thAugust 2013, the Judge pointed out that it is necessary to consider if the impugned measure is the minimum unfavourable treatment necessary to enable the Respondent to obtain its objective.

Renewal of the Claimant’s Contracts
The objective grounds advanced by the Respondent for the renewal of the Claimant contracts, up to and including that of 22^ndJuly 2010, are that another employee, Dr Cox was given a career break and that the requirement for the services provided by the Claimant was a purely temporary and would cease on the return of Dr Cox. Employees of the Respondent are entitled to apply for a career break which can be for up to five years. At the end of a career break an employee is entitled to return to his or her job. If Dr Cox was entitled to return on the termination of his career break and it is not suggested by the Claimant that he was not so entitled, the Respondent had a concomitant obligation to facilitate his return. It was, therefore, a legitimate objective of the Respondent to keep the post which he formally occupied open. The filling of the temporary vacancy on a fixed-term basis was an appropriate and proportionate means of achieving that objective. Hence, up August 2011, when the maximum allowable duration of Dr Cox’s career break expired, the renewal of the Claimant’s employment on fixed-term contracts satisfied the test for objective justification. It follows that the renewal of the Claimant fixed-term contract in July 2010 was objectively justified at the time the renewal took effect.

Renewal on 28^thSeptember 2011
The Claimant’s fixed-term contract which commenced on 22^ndJuly 2010 came to an end on 31^stAugust 2011 when Dr Cox’s career break terminated. She was then reappointed to by the Respondent on a further fixed-term contract but in a part-time capacity. The Respondent does not contend that the break in employment of some 28 days broke the continuity / succession of the Claimant’s employment.

The position in September 2011 was, however, different to that which previously existed. At that stage Dr Cox had returned. Rather than resuming full-time employment he sought to be accommodated with a job-sharing arrangement. The evidence before the Court was that he was contractually entitled to resume full-time working at some point thereafter.

The Claimant was again employed by the Respondent on a fixed-term contract which provided that her employment would come to an end if and when Dr Cox resumed full-time working. In its submission to the Court the Respondent contends that the import of the contract was that the Claimant’s employment would terminate not only if Dr Cox resumed full-time work but also if he resigned. The Claimant’s employment was, in fact, terminated on the subsequent resignation of Dr Cox on or about 30^thNovember 2011.

The Respondent, by way of justification, submits that it was contractually bound to provide Dr Cox with a right to resume full-time employment. It submits that it offered the Complainant fixed-term part-time employment commensurate with the period of Dr Cox’s part-time work. It submits that the use of a fixed-term contract of in these circumstances was necessary appropriate and proportionate.

The Court finds that the Respondent was contractually bound to permit Dr Cox return to full-time work under the terms of the Part-Time Work Scheme in operation in the Institute. The Court finds that the use of a fixed-term contract of employment to cover the balance of Dr Cox’s hours while his contractual entitlement to return to full-time working continued met a real need and was appropriate and proportionate.

Determination
For all of the reasons set out herein the Court is satisfied that the Claimant’s complaints are not well-founded. The Decision of the Rights Commissioner is upheld. The appeal is not allowed.

The Court so determines.

Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
7th October, 2013.Deputy Chairman



NOTE

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