FTD144

FULL RECOMMENDATION

FTC/13/32

DETERMINATIONNO.FTD144

(R-130793-FT-13/SR)

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

PARTIES :

FROBEL COLLEGE OF EDUCATION
(REPRESENTED BY RUTH MYLOTTE B.L.
INSTRUCTED BY MASON HAYES & CURRAN SOLICITORS)

- AND -

MARIE RAFTERY
(REPRESENTED BY TOM MALLON B.L.
INSTRUCTED BY A C FORDE & CO SOLICITORS)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Doyle
Worker Member: Ms Tanham

SUBJECT:
1. Appeal of Rights Commissioner Decision No: r-130793-ft-13/sr

BACKGROUND:

2. This is an appeal by the worker of Rights Commissioner Decision No: r-130793-ft-13/sr made pursuant to Section 15(1) of the Protection of Employees (Fixed-Term Work), Act 2003. Labour Court hearings took place on 3rd December 2013 and 12th March 2014. The following is the Court's Determination:

DETERMINATION:

This is an appeal by Ms Máire Raftery against the Decision of a Rights Commissioner made under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) in her complaints against Frobel College of Education.

At the Rights Commissioner hearing Ms Raftery claimed that Frobel College of Education was her employer and that it had failed to provide her with a contract of indefinite duration in circumstances where she became entitled to such a contract pursuant to Section 9(1) of the Act. Furthermore she claimed that the College had breached Section 6 of the Act in failing to afford her the same terms and conditions of employment as comparable permanent employees and had failed to provide her with a written statement setting out the objective grounds justifying the renewal of her fixed-term contractand its failure to provide her with a contract of indefinite duration, in breach of Section 8 of the Act.

For ease of reference the parties are referred to in this Determination using the same designation as they had at first instance. Hence, Ms Máire Raftery is referred to as “the Complainant” and Frobel College of Education is referred to as “the Respondent”.

The Rights Commissioner found that as the Complainant had only one fixed term contract no breach of Section 9 had occurred; her claim under Section 8 was out of time and her claim under Section 6 was not well-founded. The Complainant appealed to this Court.

Background

TheComplainanthas been employed as a primary school teacher since July 1975. She worked with St. Patrick’s Boys National School in Drumcondra, Dublin (hereinafter referred to as “the School”). In mid-2007, she availed of a career break from the School for the academic year 2007 - 2008. During this time sheworked on a sessional basis for the Respondent as a substitute Lecturer and was paid an hourly rate of pay.

In January 2008, the President of the Respondent College approached her and asked her if she would be willing to take a secondment from her usual post if same could be organised.The Complainant applied for and was granted a secondment from theSchoolto take effect from 1^stFebruary 2008 until 31^stAugust 2008. The Complainant commenced on a full time basis working for the Respondent, on the same salary band she had previously been on and continued to be paid by the Department of Education and Skills (hereinafter referred“the Department”). Around this time the Chairperson of the Board of Management of the School wrote to the Respondent’s Principal stating

“This is to confirm that the Board of Management of St. Patrick’s Boys National School agrees to the secondment of Ms Marie Raftery to Frobel College, from 1^stFebruary to 31^stAugust 2008.”

In March 2008 the position she had effectively been filling was advertised, she applied and was the successful candidate. In April 2008, the Complainant was offered the position of“Co-ordinator of Special Education and Programme Development” as Assistant Lecturer with the Respondent on a fixed term basis from 1st September 2008 and until 31st August 2012. The salary offered to her for the position was €68,307, i.e. the 5^thpoint of the College Assistant Lecturer scale. However, the Complainant was paid a different rate, she was paid €81,477 which was the rate applicable to an Assistant Principal, as at this time she had been successful in a competition for a promotional position as Assistant Principal in the School, accordingly she was paid on the same salary band as would have applied to her if she had remained working at the School. Her pay continued to be paid by the Department and the Respondent reimbursed the Department.

In February 2012, the Complainant was advised that she would be offered a further fixed-term contract of employment with the Respondent for a period of one year. In April 2012, the Complainant received the new contract and she raised a number of concerns in relation to it. When her concerns were not resolved to her satisfaction, she did not accept the renewal.

The Complainant submitted claims under the Act to the Rights Commissioner on 26^thFebruary 2013.

Preliminary Issue

Ms Ruth Mylotte, B.L.,instructed by Mason Hayes & Curran, Solicitors, on behalf of the Respondent submitted to the Court thatthat the Respondent was not the Complainant’s employer, that she was and continues to be employed by St Patrick's Boys' National Schooland therefore she does not have the necessarylocus standito maintain a claim under the Act.

In consideration of this point the Court notified both parties that the first issue the Court must consider is whether it has jurisdiction to hear the case i.e. does the Complainant havelocus standito maintain the claims under the Act. This is dependent on her falling within the definition of “fixed-term employee” as set out in Section 2 of the Act. The Court informed both parties of its intention to deal with this question as a preliminary matter before it could proceed to hear the substantive case. Both parties agreed and requested to be given the opportunity to furnish written submissions on the issue.

The Court received the submissions in January 2014 and proceeded to conduct a hearing on 12^thMarch 2014 to deal with this issue as a preliminary matter.

Summary of the Complainant’s Position on the Preliminary Issue

Mr Tom Mallon, B.L. ,instructed by AC Forde & Co Solicitorssubmitted thatit was not appropriate for the Court to look outside the relationship which existed between the Complainant and the Respondent. He said that the Complainant was an employee of the Respondent employed on a fixed term basis and in accordance with the definition of“fixed-term worker”as provided for in the Directive and the Act, she was not a permanent employee of the Respondent and submitted that there was no other category of worker referred to in the legislation.

He said that the fact that there exists a relationship of employer and employee between the Complainant and a school is wholly irrelevant. The Complainant had not worked in the School for nearly a decade.

Mr Mallon submitted that an employee may be the employee of more than one employer and is entitled to exercise all of his/her rights and entitlements pursuant to each contract against each employer and those rights cannot be defeated by the mere existence of a contemporaneous permanent employment. To do so would be contrary to the provisions of the Act and would fail to give an effective remedy for breach of the Directive.

Mr Mallon submitted that the mere fact that the Complainant has a contemporaneous permanent employment with the School does not mean that she is not a fixed term workervis a vizthe Respondent for the purposes of the Act.

Mr Mallon contrasted this case with theAthlone Institute of TechnologyCases Labour Court Determinations No: FTD1117, FTD1118, FTD1119 and FTD1120 where the Court determined that it had no jurisdiction under the Act as the contracts entered into between the Claimants and the Respondent were not fixed-term contracts within the meaning of the Act and were by their own terms contracts for an indefinite duration.

He stated that in the instant case the Complainant was furnished with a letter of 22nd January 2008 which records that the Respondent was offering a"lecturing and administrative position"to the Complainant"from February 1^st2008 to August 31^st2008". That is a fixed duration and accordingly the contract which that letter evidences is a contract of fixed duration. The second relevant document is the letter dated 19th May 2008 which provides that the Complainant be appointed"as Assistant Lecturer on a fixed term contract for four years". The letter goes on to provide that it is a"full time four year appointment with effect from 1st September 2008 to 31^stAugust 2012".It provides that as the appointment is for a fixed period the provisions of the Unfair Dismissals Act do not apply on the termination thereof.

On the issue of ‘secondment’ Mr Mallon submitted that while teachers are paid by the Department of Education & Skills it is undisputed that they are employees of the Boards of Managements of individual schools. If a teacher moves from one school to another, this may be done seamlessly in terms of salary and other benefits, including and in particular continuity of service for pension and other purposes, but their employer changes from one Board to another. He maintained that when a person moves on secondment, her employer also changes. The Complainant in performing her duties pursuant to the contractual documents referred to above, was integrated into the business of the Respondent and was under the direct control of the Respondent. She was no longer in the employment of the school. Mr Mallon held that her employment was at least ‘suspended’. The fact that she may have had aright,at somefuture date,to recommence heremployment with that School,did not and could not undoher employmentrelationship with the Respondent. He said that in all the documentation there is only one reference to secondment. He disputed the Respondent’s contention that the Complainant was"merely loaned out to the Respondent"by the School and held that this was incorrect and there was no factual basis for that contention. He said that in reality the School had no role in this matter.The creation of the"secondment"did no more than to keep the Complainant's right to return at some future date,alive.However, he submitted that there was no doubt that she became the Respondent's employee.

Mr Mallon contended that there was no change in her employment status with the Respondent. He said that whilst the Department paid her teaching salary this was recouped from the Respondent and the Respondent became the de facto paymaster and thereby became responsible for every element of the Complainant's employment pursuant to a fixed-term contract. He contended that the fact that she was paid by the Department does not alter her employment status as an employee of the Respondent. In this regard Mr Mallon relied upon the Supreme Court decision inO'Keeffe v Hickey [2008] IESC 72. The Complainant was fully under the control and direction of the Respondent as its employee and was fully integrated into its business. The Complainant whilst an employee of the Respondent had no ongoing responsibility towards the School and had no rights and entitlements arising from any contract of employment with the School save only a potential right to return at some time in the future. The Board of Management of the School could not in any way direct or interfere with the contractual relationship between the Complainant and the Respondent. It was not open to the School to dismiss the Complainant from her role with the Respondent.

Mr Mallon disputed the relevance of the case cited by the Respondent in support of its position, namelyTrinity College Dublin -v- MossandRailway Procurement Agency -v- Bell & others., Athlone Institute of Technology v Hannify and UCC v Ms Nieustratenwhere the Court found that that the employees concerned were working pursuant to permanent contracts and not fixed-term contracts, he held that all of those cases dealt with situations where there was only one employer and the question which arose in each concerned the nature of the contractual relationship between the employee and that one employer. Unlike the instant case where there exists a separate contract between the Complainant and an entirely separate organisation (St Patrick's Boys National School).

Summary of the Respondent’s Position on the Preliminary Issue

Ms Mylotte submitted that theRespondent was not the employer of the Complainant and she was and still is employed by the School. At all times she required the consent of her employer and the Department to the secondment arrangement in order to perform her duties with the Respondent. She further submitted, taking account of the circumstances of this case that the Complainant cannot be deemed to be concurrently employed by both the Respondent and the School under separate and distinct contracts of employment where the permission of her permanent employer to allow this arrangement is fundamental to its operation.

In support of Ms Mylotte’s position she cited a number of Labour Court cases where it was held thatan employee cannot be both a fixed term employee and permanent employee with the same employer (see Determinations No.FTD1117Athlone InstituteofTechnology v Brendan Hanniffyand Determination FTD1122University College Cork v Dr. Inge Nieuwstraten. She said that the reasoningin these decisions should extend to a secondment arrangement as the Complainant was merely "loaned out" to the Respondent and continues to be employed by her permanent employer, St Patrick's Boys National School. Ms Mylotte held that the idea behind a secondment to an external organisation is that the secondee remains employed by their original employer during the secondment, and will, following the termination of the secondment, "return" to it

Ms Mylotte cited the UK decision ofDenham v Midland Employers Mutual
Assurance Ltd[1955] 2 Q.B. 437where the Court of Appeal held that an
employee who was lent to another employer remained employed by the original employer, as it was only the use and benefit of his services which had been transferred.Ms Mylotte submitted that this was entirely different to having two separate employers where any alteration to one does not impact upon the other. She contended thatin this secondment
arrangement the Respondent could not dismiss the Complainant as this was solely within the ambit of her employer (i.e. the Board of Management of St Patrick's) and where the rate of pay is linked to the permanent post.

Ms Mylotte stated that the Complainant at all times enjoyed the benefit of having her full public sector entitlements, including pension rights, security of tenure, promotional rights etc and her period of secondment was recognised as continuous service as an employee with Assistant
Principal status.

Ms Mylotte suggested that the Complainant wishes to be deemed a fixed-term employee of the Respondent even though she explicitly agreed to the engagement on the basis of a secondment from her employer, retained her position with her employer, insisted on her public sector entitlements whilst working with the Respondent,was paid by theDepartment and was entitled to the benefits of the“Department of Education & Science Primary Branch Circular11/2002 Secondments”.

Conclusion of the Court on the Preliminary Issue

The Court must consider whether or not the Complainant is a fixed term employee, does she havelocus standito maintain the claims under the Act. This is dependent on her falling within the definition of“fixed-term employee”as set out in Section 2 of the Act.

InRailway Procurement Agency v Alan Bell&Others this Courtheld:-

“The protection of the Act is conferred solely on fixed-term employees andacomplaint under the Act can only be entertained if it relates toaperiod of fixed-term employment.Hence, the first point for consideration is whether the Complainants were fixed term employees within the statutory meaning in the six-month period ending on the date on which their complaints were referred to the Rights Commissioner. If they were not fixed-term employees during that period they cannot maintain these proceedings and the Court has no jurisdiction to entertain their claim”

Furthermore, inAthlone InstituteofTechnology v HanniffyandUniversity College Cork v Dr. Inge Nieuwstratenthis Courtheld that the protections afforded by the Act do not apply to employees having the benefit of permanent contracts of employment with their employer.

In the recent caseLouth County Council v Paul KellyFTD1320 this Court held that a worker cannot be protected under the Act where that worker is already a permanent employee on secondment.The Court held that Mr Kelly held a substantive post as Executive Engineer with Louth County Council and at no point was his substantive post at risk nor was his employment with the Council contingent on the continuation of the temporary projects to which he had won an appointment.The Court reasoned that the fixed-term contracts were supplemental to the Complainant's permanent employment as at the end of the secondment, the Complainant was always permitted to return to his substantive post and continue in employment.

The Law

The Protection of Employees (Fixed Term Work) Act 2003 transposes Council Directive No. 1999/70/EC into Irish law. The intent and purpose of the Directive was to safeguard employees against the instability of employment by the use of successive fixed-term contracts of employment.

The Directive states at paragraph 14

(14) The signatory parties wished to conclude a framework agreement on fixed-term work setting out the general principles and minimum requirements for fixed-term employment contracts and employment relationships; they have demonstrated their desire to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination, and to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.
(17) As regards terms used in the framework agreement but not specifically defined therein, this Directive allows Member States to define such terms in conformity with national law or practice as is the case for other Directives on social matters using similar terms, provided that the definitions in question respect the content of the framework agreement;

Article 1 of the Directive states

Article 1

The purpose of the Directive is to put into effect the framework agreement on fixed-term contracts concluded on 18 March 1999 between the general cross-industry organisations (ETUC, UNICE and CEEP) annexed hereto.

Purpose (clause 1)

The purpose of this framework agreement is to:
(a) improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;
(b) establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

Scope (clause 2)

1. This agreement applies to fixed-term workers who have an employment contract or employment relationship as defined in law, collective agreements or practice in each Member State.

Definitions (clause 3)

1. For the purpose of this agreement the term "fixed-term worker" means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.

The 2003 Act transposed the Directive in relevant part in the following terms.

Interpretation

The meaning of the term fixed term employee for the purposes of the 2003 Act is expressed in terms identical to the meaning set out in the Directive

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include……

The Court’s Findings:

In reaching its decision on this preliminary issue the Court has considered the oral and written submissions of both parties. In particular the Court notes the correspondence supplied by the Respondent, including the following:-

A letter addressed from the President of Frobel College of Education to the Primary Payments Section, Department of Education and Science, dated 22^ndJanuary 2008 stating:

“I wish to apply for the secondment of above teacher [the Complainant] to take up a lecturing administrative position in the Frobel College of Education from February 1, 2008 to August 31, 2008.

I enclose a letter from the Board of Management giving permission for her secondment up to August 31, 2008”

A letter addressed to the Complainant dated 7th July 2008 from the Chairperson, Board of Management, St. Patrick’s Boys National School, stating:-

“I write to you regarding your request to continue your secondment to Frobel College. This is to confirm our agreement for an extension for a further year (2008-2009).”

Further letters furnished to the Court from theChairperson, Board of Management, St. Patrick’s Boys National School make it clear that the Schoolwas required each year to consent to the Complainant's secondment with the Respondent.

- (i)Addressed to the Principal, Frobel College of Education dated 22^ndJune 2009
- - “This is to confirm that the Board of Management of St. Patrick’s Boys National School Drumcondra agrees to the extension of the secondment of Ms Marie Raftery to Frobel College, from 1^stSeptember 2009 – 31^stAugust 2010.”
  (ii)Addressed to the Principal, Frobel College of Education dated 2^ndJune 2010
  - “This is to confirm that the Board of Management of St. Patrick’s Boys National School Drumcondra agrees to the extension of the secondment of Ms Marie Raftery to Frobel College, from 1^stSeptember 2010 – 31^stAugust 2011.”
  (iii)Addressed to the Principal, Frobel College of Education dated 18^thAugust 2011
  - “This is to confirm that the Board of Management of St. Patrick’s Boys National School Drumcondra agrees to the extension of the secondment of Ms Marie Raftery to Frobel College, from 1^stSeptember 2011 – 31^stAugust 2012.”

The Court was also furnished with letters addressed to Frobel College from the Department of Education and Science dated:-

21^stAugust 2009,
6^thOctober 2009,
16^thAugust 2010,
16^thSeptember 2010,
20^thOctober 2011,
20^thSeptember 2012.

These letters relate to the Department’s approval of the Complainant’s secondment arrangement to Frobel College of Education which it confirms is in line with Circular 11/2002. The letter put in place the Department’s arrangements for recouping the costs associated with the Complainant’s secondment and outlines the details of her salary.

The Court was also supplied with a copy of theSecondment Agreemententered into betweenFrobel College of Education and St. Patrick’s Boys National School, dated 20^thApril 2012, which the Complainant was prepared to sign however due to a difficult she had with a clause relating to “Intellectual Property Rights”, she declined to do so. In its opening paragraph this Secondment Agreement refers to the“Employing Entity”i.e. the School and to the“Secondee Entity”i.e. the Respondent and proceeds to state as follows:

To assist the Secondee Entity in the conduct of its business, the Employing Entity is prepared to provide the services of its employee, Ms Marie Raftery to the Secondee Entity on the terms set out below.

The Court is satisfied from the details supplied that there can be little doubt that the Complainant was on a secondment arrangement each year from February 2008 until end of the academic year 2011/2012, all parties to the arrangement were clearly aware of and freely entered into such an arrangement, in line with the Department’s policy. A further secondment arrangement was initiated for the academic year 2012/2013, however, that did not transpire for reasons unrelated to the secondment.

In support of its view the Court further notes the following:

•While on secondment with the Respondent since February 2008, the Complainant applied for and was successful in attaining the position as Assistant Principal in the School in July 2008; at this the time the Complainant had entered into a contract with the Respondent for her second secondment. As a result the salary attached to the role she was performing with the Respondent was substantially increased to reflect her success in attaining the Assistant Principal position in the School and shecontinued to be paid her public sector salary by the Department.

•While she was employed with the Respondent on the secondment arrangements, her role as Assistant Principal in the School was filled on an acting up basis and continues to this day on this basis.

•The Complainant never resigned her position with the School and has the right to return to that role. Sheis currently on a career break from the School.•Unlike the Respondent’s other employees who did not have reductions in their salaries, as a public sector employee the Complainant was subjected to reductions in accordance with theFinancial Emergency in the Public Interest Acts 2009 and 2010(FEMPI). This demonstrates that although employed to work with a private sector employer, she retained her public sector status.

•It was accepted by all parties that the Complainant’s employment was continuous and reckonable for all public sector benefits during the entire period she was on secondment with the Respondent.

•The Complainant was on the Public Sector Superannuation Scheme, costing the Respondent an additional 25% of her salary, whereas the Respondent’s employees were on a PRSA contributed to by the Respondent at the rate of 5%.

For all of the above reasons the Court is satisfied that the Complainant was and remains a permanent employee of the School. As in theLouth County Council v Paul KellyDetermination,the Court hereby finds that the Complainant's underlying permanent post governing her relationship is with the School and the fixed term secondments with the Respondent were supplementary to this position. The Court is satisfied that the Complainant’s employment with the School was not in suspension during this time, but she was “on loan” to the Respondent, in line with theDenham v Midland Employers Mutual Assurance Ltdcase, the Complainant while on loan to another employer remained employed by the original employer (the School), and it was only the use and benefit of her services which had been transferred.

In conclusion, the Court finds that at all material times the Complainant was a permanent employee of the Schooland her employment status was never at risk while on secondment with the Respondent. In order to come within the ambit of the Act a Complainant must have the status of a fixed term worker. As the Court has found in the past aComplainant who can revert to their substantive grade and whose employment continues at the end of a fixed term assignment does not enjoy the protection of the Act. Therefore, the Complainant does not have the requisitelocus standito maintain her complaint under the Act.

Determination

Accordingly, the Court is satisfied that it has no jurisdiction to hear the complaint. The Rights Commissioner’s Decision is varied accordingly. The Complainant’s appeal fails.

Signed on behalf of the Labour Court

Caroline Jenkinson
9th April 2014______________________
AHDeputy Chairman

NOTE

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