FTD1328

FULL RECOMMENDATION

FTC/13/13

DETERMINATIONNO.FTD1328

(R-125071-FT-12)

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

PARTIES :

TEAGASC

- AND -

MS MAJELLA KELLY
(REPRESENTED BY IRISH MUNICIPAL, PUBLIC AND CIVIL TRADE UNION)

DIVISION :

Chairman: Mr Duffy
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioners Decision No: r-125071-ft-12/MH

BACKGROUND:

2. This is an appeal by the employer of Rights Commissioner's Decision No: r-125071-ft-12/MH submitted in accordance with Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on 26th September 2013. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Majella Kelly against the decision of a Rights Commissioner in her claim against Teagasc under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act of 2003).

In this Determination the parties are referred to as they were at first instance. Hence Ms Kelly is referred to as the Claimant and Teagasc is referred to as the Respondent.

The claim was heard by the Rights Commissioner in conjunction with a parallel claim by the Claimant under the Protection of Employees (Part-Time Work) Act 2001 (the Act of 2001).

The facts grounding both the within claim and the claim under the Act of 2001 are identical. However, the Rights Commissioner dealt with the matter under the Act of 2001. He found for the Claimant under the Act of 2001 and held that in these circumstances he had no jurisdiction to consider her claim under the Act of 2003. The Claimant’s trade union, IMPACT, appealed against that decision.

Parallel Claims

Section 18 (2) of the Act of 2003 provides as follows: -

(2) An individual who is a fixed-term employee under this Act and a part-time employee under the Act of 2001 may obtain relief arising from the same circumstances under either, but not both, this Act or under Part 2 of the Act of 2001.

This subsection prohibits the granting of double relief where an act or omission contravenes both the Act of 2001 and that of 2003. It does not oust the jurisdiction of a Rights Commissioner (or of this Court) to consider complaints based on the same facts under both statutes. The representative of the Claimant told the Court that her primary complaint was in respect of the Act of 2003 and the claim under the Act of 2001 was in the alternative. The Rights Commissioner had failed to deal with the claim under the Act of 2003. He appeared to hold that the Claimant was not a fixed-term employee as her fixed-term contract has become one of indefinite duration by operation of s.9(3) of the Act of 2003. The Court was told that the Claimant had not asserted that she was a permanent employee of the Respondent and no claim under s.9 of the Act of 2003 was before the Rights Commissioner in the instant case. The Claimant appealed against the decision of the Rights Commissioner not to hear her case under the Act of 2003.

The Respondent also took issue with the decision of the Rights Commissioner on this point. The representative of the Respondent pointed out that the Claimant’s status as a fixed-term employee was never put in issue before the Rights Commissioner and neither party sought or canvases a finding that her fixed-term contract had become one of indefinite duration.

In these circumstances the representatives of both parties agreed that the decision of the Rights Commissioner could not stand. It was further agreed that the Court should proceed to hear the claim under the Act of 2003. The representative of the Claimant agreed that in the event of her claim under that Act succeeding her parallel claim under the Act of 2001 could be regarded as having been withdrawn.

The Facts

The facts of this case are not disputed and can be briefly stated. The Claimant is employed by the Respondent as a clerical officer. She is employed in a part-time capacity and pursuant to a fixed-term contract. In or about April 2012 the Respondent advertised for a vacant post at administrative grade 2. This was a permanent, full-time promotional position. The Claimant applied for the position but her application was not accepted by the Respondent.

The reason for not allowing the Claimant to apply for this post was set out in an email sent on behalf of the Respondent to the IMPACT dated 19^thJune 2012. This stated: -

- “My email to you of 9^thMay 2012 sets out the rationale behind the filling of the Athenry Admin Grade 3 post.
  Majella Kelly is not a substantive post holder within the organisation. She has a specific purpose contract related to a job share arrangement with Muriel Clarke. As outlined on the Internal Vacancies section of Teagasc Tnet, temporary staff cannot be considered for such vacancies as appointment would require the issuing of a new contract of employment which is debarred by the Government moratorium on recruitment, pay and promotions”

The Claimant’s case

The Claimant contends that the Respondent’s refusal to allow her to compete for the post in issue contravened the Act of 2003 in that she was treated less favourably than a comparable permanent employee. Reliance was placed on sections 6 and 10 of the Act. However, in the course of this appeal the Claimant relied solely on s.10 of the Act in advancing her claim. In her claim under the Act of 2001 the Claimant contended that she was treated less favourably than a comparable full-time employee in respect to her conditions of employment contrary to s,9 of that Act.

The Respondent’s case

The Respondent case, in essence, is that it could not accept the Claimant’s application for the disputed post by reason of the Government moratorium and the employment control framework under which it currently operates. In effect, it contends that if the Claimant was appointed to the post it would have been required to issue her with a new permanent contract and it was precluded from so doing by the aforementioned Government decisions. It was submitted that the policy contained in those decisions provides objective justification for any less favourable treatment afforded to the Claimant.

Conclusions of the Court

The Court is satisfied that this case falls to be considered by application of s.10(1) of the Act of 2003. That provides: -

10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

The effect of this subsection was considered by the High Court in inMinister for Finance v Una McArdle[2007] 2 ILRM 438. Here, in reviewing the arguments advanced by the parties Laffoy J said: -

I did not understand it to be the plaintiff's case either before the Labour Court or in this court that the defendant was not entitled to information in accordance with s.10(1). Further, the plaintiff accepted that the obligation in s.10(1) to inform employees of vacancies carries a concomitant obligation to allow the employees to apply for such vacancies.

While a point conceded in a case is not the equivalent of a point decided, Ms Justice Laffoy went on to hold that the finding of this Court that the Respondent had contravened s.10(1) of the Act in disqualifying the Claimant from competing for the disputed permanent vacancy because of her status as a fixed term employee did not involve an error of law. That case, like the instant case, involved a promotional vacancy . More recently, in Determination FTD1321,Marks and Spencer (Ireland) Ltd and Lyster, the Court made a similar decision on the application of s.10 of the Act 2003.

In that case the Court observed that it would be a manifest absurdity to hold that an employer could be obligated to inform a fixed term employee of a permanent vacancy and yet be free to deny such an employee an opportunity to compete for the vacancy on the same terms as other workers.

Objective Justification

The Respondent contends that its refusal to allow the Claimant to compete for the post in issue was objectively justified. It is also noteworthy that unlike sections 6 and 9 of the Act of 2003, s.10 is not expressly subject to a defence of objective justification. In addressing this apparent difficulty the Respondent relied on the wording of s.7(1) of the Act of 2003, which is as follows: -

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.

It was submitted that the reference therein to ‘an objective ground for the purposes of any provision of this Part’should be interpreted as meaning that a defence of objective justification is available in respect of any claim grounded on Part 2 of the Act, which includes a claim grounded on s.10 of the Act. The Court does not accept that s.7(1) can be read in that way. The words in question are intended to indicate what is meant by the expression‘objective grounds’where it appears in sections 6(2), 6(3) 8 and 9(4). If s.7 could be read in the manner suggested by the Respondent and a defence of objective justification was provided by that section in any claim arising under Part 2 of the Act the aforementioned provisions would be superfluous or tautologous. On the established cannons of statutory construction a provision could not be construed in that way.

Even if a defence of objective justification was available to the Respondent it could not be relied upon on the facts of the instant case. As is clear from a plain reading of s.7(1) of the Act a ground cannot be regarded as an objective ground unless it is based on considerations other than the statues of the employee concerned as a fixed-term employee. As appears from the Respondent’s email to IMPACT dated 19^thJune 2012 the reason proffered by the Respondent for not allowing the Claimant to apply for the vacant post was indissociable from her status as a fixed-term employee. Moreover the broad Government policy contained in the moratorium and the employment control framework could not have the effect of offsetting or supplanting the Claimant’s rights under the Act. That is the clear import of the decision of the CJEU in case C-212/04Adeneler and Ors. V Ellinikos Organismos GalaktosIRLR 716.

In the course of the hearing of this appeal the Respondent told the Court that a consideration taken into account for not allowing the Claimant to compete for the post in issue was that it would have been obliged to provide her with a contract of employment for full-time hours if she obtained the post. That, according to the Respondent would have resulted in an increase in its effective headcount in contravention of the Government moratorium. That consideration was not mentioned in the email dated 19^thJune 2012, previously referred to, and in these circumstances it could reasonably be inferred that it was not a factor operating on the mind of the decision maker at the time the impugned decision was made.

Result

For all of the reasons set out herein the Court is satisfied that the Respondent’s refusal to consider the Claimant’s application for the post in issue contravened her rights under s.10 of the Act of 2003. Accordingly she is entitled to succeed in her appeal. The decision of the Rights Commissioner is set aside and substituted with a finding in terms of this Determination. Having so found, and by consent, the decision of the Rights Commissioner in so far as it relates to the Claimant’s claim under the Act of 2001 is also set aside

Redress

The Court was told that the Claimant was highly qualified for the disputed post. While there could be no certainty as to what the outcome of the competition may have been had she been allowed to compete the Respondent did accept that she was qualified for the post and would have been a serious candidate.

In these circumstances the Court believes that the appropriate form of redress is an award of compensation. The Court measures the appropriate quantum at €9.500. The Claimant is awarded compensation in that amount. No aspect of this award is in the nature of remuneration.

Signed on behalf of the Labour Court

Kevin Duffy
21st October 2013______________________
AHChairman

NOTE

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