FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : MINISTER FOR JUSTICE AND EQUALITY - AND - JOHN RYAN DIVISION : Chairman: Mr Duffy Employer Member: Ms Doyle Worker Member: Ms Ni Mhurchu |
1. Appealing of Rights Commissioner's Decision r-130063-ft-13/MMG.
BACKGROUND:
2. The Worker appealed the Rights Commissioner's Decision to the Labour Court. A Labour Court hearing took place on the 17th September, 2013. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Mr John Ryan against the decision of a Rights Commissioner in his claim under the Protection of Employees (Fixed-Term Work) Act 2003. His claim is against the Minister for Justice Equality and Law Reform.
In accordance with the normal practice of this Court the parties are referred to herein as they were at first instance. Hence Mr Ryan is referred to as the Claimant and the Minister for Justice Equality and Law Reform is referred to as the Respondent.
The facts giving rise to the case can be summarised as follows: -
The Claimant is a Barrister. He was appointed as Chairperson of the Refugee Appeals Tribunal in a temporary capacity on 3rdDecember 2003. The appointment was made pursuant to the Refugee Act 1996. This initial appointment was expressed to cover the period up the filling of the post by open competition. The Claimant subsequently applied for the post and he was successful in the open competition. He was then appointed to the post for a five year term up to September 2010. In anticipation of his term ending the Claimant wrote to the Department of Justice Equality and Law Reform indicating his willingness to serve for a further five year term.
It would appear that at the time the Claimant’s five year appointment came to an end new legislation was in contemplation which would have abolished the Refugee Appeals Tribunal. The creation of a new body to be known as the Protection Review Tribunal was envisaged by this legislation.
The Secretary General of the Department wrote to the Claimant by letter dated 4thAugust 2010 indicating that he was prepared to recommend to the Respondent that he be reappointed in a temporary capacity. In relevant part this letter stated: -
- Having taken advice I am minded to recommend to the Minister that he appoint you to the position of Chair under Paragraph 8(2) of the Second Schedule of the Refugee Act 1996. Your appointment, which would take effect shortly after the expiry of your current contract, would be temporary, lasting until such time as the Chair of the Refugee Appeals Tribunal, who would be Protection Review Tribunal Chair-designate, is appointed following an open competition. It will, of course, be open to you to apply for this competition if you so wish.
The Claimant accepted the position on the terms offered.
On 14thSeptember 2010 the Claimant was appointed to the post by the Respondent on the terms set out in the Secretary General’s letter of 4thAugust 2010. The Claimant was provided with details in writing of the terms and conditions attaching to the appointment. Under the heading of “Tenure”, it recited the following: -
- The appointment will last until such time as a Chair of the Refugee Appeals Tribunal who would be Protection Review Tribunal Chair-designate, is appointed following an open competition.
By letter dated 29thMarch the Claimant was informed that the Respondent did not intend to proceed with the appointment of a Chair-designate of the Protection Review Tribunal. Rather, the Respondent decided to appoint a Chairperson of the Refugee Tribunal who would hold office until the abolition of that body. On the appointment of a new Chairperson the Claimant’s temporary appointment was terminated.
Position of the Parties
The Claimant
The Claimant is claiming that his fixed-term contract issued in September 2010 was transmuted to one of indefinite duration by operation of s.9(3) of the Act. In essence he contends that the objective grounds relied upon by the Respondent for the renewal of his earlier contract for a fixed-term was that the next Chairperson of the Refugee Appeals Tribunal would become Chairperson of the new Protection Review Tribunal and it was proposed to hold a competition with that in view. He contends that the Respondent subsequently changed his position in that regard and decided to proceed to fill the post which the Claimant had held. That appointment was to be for a five year period or until the Refugee Appeals Tribunal was abolished. In these circumstances, he contends, the objective grounds originally cited cannot be relied upon. Mr Boyle S.C., on behalf of the Claimant, submitted that s.9(3) of the Act came into play and the contract by which he was appointed in September 2010 became one of indefinite duration.
The Respondent
The Respondent, in the written submission filed on his behalf, raised a number of points in justification of the decision to appoint the Claimant in a temporary capacity in September 2010 and to hold a competition for the filling of the post. These related to the specific provisions of the Refugee Act 1996 and what was described as public policy directed at preventing one person from holding a position of this nature for an indefinite duration. However, in the course of the appeal Counsel for the Respondent, Ms McGowan B.L. did not proceed with this line of argument. Rather, she confined her case to an assertion that at the time the 2010 contract was concluded there were objective grounds for the renewal of the Claimant’s employment for a fixed-term, namely, the then imminent abolition of the Refugee Appeals Tribunal, the creation of the Protection Review Tribunal and the desire to appoint a person who would be specifically chosen to become Chairperson of that body. It was submitted that at the material time, namely, September 2010, the Respondent believed that the enactment of the legislation providing for this new body would shortly be passed and in that belief the Claimant’s employment was extended on a temporary basis. It was submitted that if, as in the present case, objective grounds justifying the temporary appointment existed at the time appointment was made it was lawful and it could not be rendered unlawful by a subsequent event.
Conclusion of the Court
In his decision the Rights Commissioner held against the Claimant and in so doing appears to have taken the view that the provisions of the Refugee Act 1996 prevented the Respondent from appointing the Claimant on a contract of indefinite duration. The Court cannot uphold that conclusion. The Act of 2003 was enacted to fulfil the States obligation to give effect to Directive 1999/70/EC and the Framework Agreement on Fixed-Term Work annexed thereto. Any rights that accrued to the Claimant under the Directive, or under the Act which gave it effect in domestic law, could not be offset or supplanted by a provision of purely domestic law. However, Counsel for the Respondent did not seek to defend or rely upon the decision of the Rights Commissioner in that regard.
The point on which this case turns is a relatively straightforward one. At the time the Claimant’s contract was renewed in September 2010 the Respondent believed that the body to which he was being appointed would shortly cease to exist. He wished to appoint a person by open competition who would become Chairperson of the Protection Review Tribunal which was then in contemplation. Thebona fidesof that belief was not called into question. Nor was it suggested that the stated grounds for the renewal of the Claimant’s appointment in a temporary capacity did not amount to objective justification within the statutory meaning.
The decision of the High Court inRussell v Mount Temple Comprehensive School,Unreported, High Court, Hanna J. 12thDecember 2009, is clear authority for the proposition that the where objective grounds exist for the renewal of a fixed-term contract at the date on which the contract is concluded it is lawful and cannot be rendered unlawful by the occurrence of a subsequent event. In this case it is clear that in September 2010 the Respondent believed that the enactment of legislation which would have abolished the Refugee Appeals Tribunal was imminent. Consequently, the objective grounds relied upon for the renewal of the Claimant’s appointment on a temporary basis was then valid and that rendered the renewal lawful. The requirements of legal certainty dictate that the lawfulness of that renewal could not be affected by the delay in enacting the proposed legislation and the subsequent decision of the Respondent not to proceed in the manner originally envisaged.
For these reasons the Court must hold that the renewal of the Claimant appointment for a fixed-term in September 2010 was lawful by operation of s.9(4) of the Act and that s.9(3) had no application in relation to that appointment.
Determination
While the Court cannot uphold the reasoning of the Rights Commissioner it has, for the reasons set out herein, concluded that his complaint under the Act is not well founded.
Accordingly, the appeal is disallowed.
Signed on behalf of the Labour Court
Kevin Duffy
18th September, 2013______________________
JMcCChairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.