FTD145

DETERMINATION (DETERMINATION NO. FTD145)

Note:  You are now editing this document.    Employer Party on Rec:HSE   Worker Party on Rec: Dr Mary Doherty Final  Date Finalised:  23/04/2014  Date Issued: 23/04/2014  Confidential: No  Embargo: 30/04/2014

Division Chairman: Mr Hayes Employer Member: Mr Murphy Worker Member: Mr Shanahan Date of hearing: 22/01/2014 Court Secretary: John Foley

FTC/13/34

DETERMINATION NO. FTD145 (R-134218-FT-13/RG)

SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :   HEALTH SERVICE EXECUTIVE

- AND -

DR MARY DOHERTY (REPRESENTED BY IRISH HOSPITAL CONSULTANT'S ASSOCIATION)

DIVISION :

Chairman                :  Mr Hayes Employer Member :  Mr Murphy Worker Member    :  Mr Shanahan         SUBJECT:

1. Appeal against Rights Commissioner's Decision r-134218-ft-13/RG.

  BACKGROUND:

2.  The Employee appealed the Rights Commissioner's Decision to the Labour Court on the 15th November, 2013.. A Labour Court hearing took place on the 22nd January 2014. The following is the Labour Court's Decision:-

DETERMINATION :

This is an appeal under Section 15(1) of the Protection of Employees (Fixed-Term Work) Act 2004,(the Act) by Dr Mary Doherty, (the Complainant) against Rights Commissioner Decision no r-134218-ft-13/RG issued on 9th October 2013. The appeal was filed with this Court on 14th November 2013. The Complaint The Complaint was lodged with the Labour Relations Commission on 24th May 2013. In it the Complainant stated “My employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration” The Rights Commissioner investigated the Complaint and decided that it was not well-founded.  The Complainant appealed against that Decision to this Court. Background The Complainant states that she was employed by the Respondent on a series of fixed-term contracts of employment, as a Consultant Anaesthetist from the 10th March 2008 until her employment was terminated on 31st May 2013. The Complainant states that she became entitled by operation of law to a contract of indefinite duration during that time. The Respondent states that there were, at all times, objective grounds justifying the renewal of the Complainant’s fixed-term contract of employment and accordingly, she did not become entitled to a contract of employment.  It further states that it set out in writing the objective grounds justifying the renewal of each of the fixed-term contracts of  employment. Employment History The Complainant sets out her employment history as follows Contract No Start Date End Sate Purpose 1 09/06/2008 Not Specified To replace another doctor who was on special leave 2 23/3/2009 20/09/2009 No written contract 3 21/09/2009 20/09/2010 Contract extended by letter issued in June 2010 4 20/09/2010 20/09/2011 Extension letter issued May 2011 5 01/10/2011 31/03/2012 Extended by letter issued in October 2011 6 01/04/2012 05/04/2012 Extended pending specialist registration 7 06/04/2012 No end date No written contract in place 8 01/04/2012 31/05/2013 Extended by letter dated 15 February 2013

Contract No 1: This contract was signed by the Complainant on 1/7/2008.  It was signed by the Respondent on 11/06/2008. The Contract commenced on 9th June 2008.  The “purpose” of the contract is set out in the following terms:- “Your employment with the HSE Dublin North East shall be for the purpose of providing Temporary Consultant Anaesthetist Services in the post of Consultant Anaesthetist, vacant as a result of Dr Deirdre Lohan’s Special Leave.  Your contract of employment will terminate on the return to work of Dr Lohan. The Complainant was notified by letter dated 6/3/2009 that her employment would end on 23/3/2008 on the return to work of Dr Lohan. In the event the Complainant’s employment was not terminated at that time. She continued working as a Consultant Anaesthetist without a written contract of employment between 23/3/2009 and 20/9/2009. On 4th June 2010 the Respondent wrote to the Complainant in the following terms “I write to advise you that you have been granted a twelve month extension of your employment as Temporary Consultant Anaesthetist at Our Lady’s Hospital, Navan.  Your contract is for a fixed-term period from 21st September 2009 to 20th September 2010. Your employment will cease with effect from 20th September 2010.  The terms and conditions of your temporary contract will apply.” The Respondent worked under that contract until she received a further letter on 25th May 2011 in which the Respondent stated: - “I write to advise you that you have been granted a twelve month extension of your employment as a Temporary Consultant Anaesthetist at Our Lady’s Hospital, Navan. This contract is temporary in nature and is for the fixed-term period from 20th September, 2010 to 30th September 2011 replacing Dr Deirdre Lohan who resigned. This post will be filled on a permanent basis by the PAS(Public Appointments Service). You are not being offered a Contract of Indefinite Duration as we are proceeding to fill this post through the Public Appointments Service(PAS). The Terms and Conditions of the Consultant Contract 2008 shall apply.” The Complainant worked under the terms of that contract until it expired and continued working for the Respondent until it wrote to her again on 13th October 2011.  In that letter it stated: - “Your appointment as Temporary Consultant Anaesthetist under the Health Service Executive based in the Department of Medicine ceases on 30th September, 2011. I now wish to offer you a six month extension to your contract for the fixed-term period 1st October  2011 to 31st March 2012 inclusive. You will be employed in a temporary capacity on a fixed-term contract. Your employment will cease on 31st March, 2012. This post will be filled on a permanent basis by the PAS (Public Appointments Service).  You are not being offered permanent employment as all permanent employment Consultant posts in the HSE are filled by the PAS. The Terms and Conditions of the Consultant Contract 2008 shall apply.” The Complainant worked under that contract of employment. On 29/3/2012 the Respondent wrote again to the Complainant.  It stated :- “Your appointment as Temporary Consultant Anaesthetist under the Health Service Executive based in the Department of Medicine ceases on 31st March, 2012. I now wish to offer you a Specified Purpose contract for the fixed-term period from Sunday, 1st April 2012 to Thursday, 5th April 2012 inclusive until the medical council have made their decision regarding your special registration on the 5th April 2012. If this decision is favourable to you will then be issued a further specified contract until the post is advertised in a permanent capacity at which stage you will be eligible to apply for the post through open competition by the PAS (Public Appointments Service). The Terms and Conditions of the Consultant Contract 2008 shall apply.”

The Complainant worked under this contract of employment. The Complainant then received a letter dated 15th February 2013 which states :- “As was advised in previous correspondence your temporary contract ceased on 31st March, 2012. I now write to offer you a revised Specified Purpose Contract for the fixed-term period 1st April 2012 to 31st May 2013 inclusive. You will be employed in a temporary capacity on this fixed-term contract effective from 1st April 2012. Your employment will cease on 31st May 2013.  The terms and conditions of your employment are as per Consultant Contract 2008 at 29th November 2012 (copy attached). For this period of employment your work base will be with the Louth Meath Hospital Group with an hourly commitment as agreed under the Consultant Contract 2008 at 29th November 2012. Your schedule of commitments will be as follows: -as agreed under the Consultant Contract 2008 at 29th November 2012. Statutory deductions will be made from your salary in respect of PAYE PRSI (Class A), Universal Social Charge and Pension Levies.  Your bank account will be credited by paypath, The HSE Dublin North East reserves the right to terminate this contract prior to the cesser of the above purpose on the giving of the appropriate period of notice set down by the Minimum Notice and Terms of Employment Act, 1973 – 1991. The Unfair Dismissals Act, 1977 – 1993 shall not apply to your dismissal, consisting only of the expiry of the purpose specified above. On the expiry of the period of this contract, you shall cease to be an employee of the HSE Dublin North East. In the event of any unforeseen occurrence or circumstance outside the control of the HSE Dublin North East which necessitates a temporary suspension of any work performed by you, the employer reserves the right to lay you off or to reduce your hours. You will receive as much notice as reasonably possible prior to such lay-off or short-time. Your employment is subject to you presenting details of your Irish Medical Council registration to Specialist Registration in Anaesthesia as well as the completion and return of the following statement, prior to commencement of employment under this contract: I have read Consultants Contract 2008 at 29th November 2012. I hereby accept the offer of the Temporary Consultant Anaesthetist Contract Type B, in accordance with the terms and conditions specified in Consultant Contract 2008 at 29th November 2012, with effect from 1st April 2012 to 31st May 2013 inclusive”.

The Complainant then received a further letter dated 19th February which stated :- I refer to previous correspondence in relation to your appointment as Temporary Consultant Anaesthetist under the Health Service Executive based in the Department of Medicine. As was advised your temporary contract ceased on 31st March 2012.  The permanent appointment is imminent and is subject to the revised salary scales for New Entrant Medical Consultants from October 2012.  Please be advised that this new salary scale shall apply from your next pay date. In the interim I wish to offer you an extension to your temporary contract for the fixed-term period 1st April 2012 to 31st May 2013 inclusive. You will be employed in a temporary capacity on this fixed -term contract until the permanent appointment is finalised.  Your temporary consultant employment will cease 31st May 2013. The Terms and Conditions of the Consultant Contract 2008, at 29th November 2012, shall apply. The Complainant’s employment was terminated on the 31st May 2013. Complainant’s Position The Complainant states that she commenced employment on 9th June 2008 to replace another Doctor that was on special leave.  She states that when that Doctor returned to work her employment was not terminated.  Instead, she continued in employment without a formal contract of employment between March and September 2009.  She states that she was advised by letter dated 4th June 2010 that her employment as a Temporary Consultant Anaesthetist was being extended for a fixed-term period from 21st September 2009 to 20th September 2010. She states that there was no reference to Dr Lohan in that letter. She states that that Dr Lohan had in fact resigned her post in or around April 2009. She states that the HSE was aware of this from at least the 8th April 2009 as it had applied for sanction to fill the vacant position. She states that she only became aware of that application when the current complaint came before the Rights Commissioner. She states that she received a further contract of employment by letter dated 25th May 2011 covering the period 20th September 2010 to 30th September 2011.  She states that in the letter the HSE advised her that it had not offered her a permanent appointment on the grounds that it was seeking to have the post filled through the PAC on a permanent basis. She states that the stated grounds do not amount to objective grounds within the meaning of the Act.  She argues that the contract she was offered was not coterminous with the occurrence of the grounds relied on.  Rather, it terminated when that event occurred or on a specific date whichever occurred first. She argues that such a termination date has no connection with the purported justification for the temporary or fixed-term contract on which she was employed. She further argues that she was not undertaking the work for which Dr Lohan had been employed.  She states that she was employed to undertake work in a specialist area of Anaesthetics.  She states that the vacancy created by the resignation of Dr Lohan did not relate to the work for which she was employed. She further argues that the fixed-term contract of employment on which she had been employed terminated in September 2010.  It was not renewed until 25th May 2011 some eight months after the renewal date. She argues that the HSE could not therefore have complied with the provisions of Section 8(1) or Section 8(2) of the Act. She states that the she was employed under that contract until it expired. She states that she continued in employment without a contract of employment between 1st October 2011 and the 13th October 2011 at which point she was offered a further contract of employment. She states that this contract of employment was not coterminous with the filling of the permanent post through the Public Appointments Service. The Contract made reference to the requirement to fill all consultant posts through that process but was nevertheless for a period of six months only. She states that she received a further time limited contract of employment by letter dated 29th March 2012. This contract of employment was for the period 1st April 2012 to 5th April 2012.  It was for the purpose of maintaining her in employment while the Medical Council decided on her application to be included in specialist register relating to a particular field of Anaesthetics. She notes that the Respondent states in that contract that she will, if her application is successful, be offered a contract of employment until the permanent vacancy is filled through the PAC. She states that this is the first time such a specific purpose contract is mentioned.  All other contracts were for time periods that were not coterminous with the statutory process of filling the permanent vacancy. She states that she received a further contract by letter dated 13th February 2013.  She states that this contract covers the period 1st April 2012 to 31st May 2013. She states that this contract is for a specified period of time and makes no reference to objective justification or to the filling of a permanent position through the PAC. She states that she received a further contract by letter dated 19th February 2013.  She states that this contract is again time limited to the period 1st April 2012 to 31st May 2013. She states that it contains the following two irreconcilable statements :- You will be employed in a temporary on this fixed -term contract until the permanent appointment is finalised and Your temporary consultant employment will cease on 31st May 2013. She states that this severs the connection between the purported fixed purpose nature of the contract and the filling of the permanent vacancy as the contract and the process are not coterminous. She argues, that at all times she was placed on fixed-term contracts of employment. She argues, that she was not undertaking the work arising from the resignation of Dr Lohan  She argues, that the post that was left vacant by the resignation of Dr Lohan was not the post that she was filling. She argues, that the nature of the contracts of employment, offered to and accepted by her were not tied to the process of filling the permanent vacancy created by the resignation of Dr Lohan.  To be so, she argues, they would have been determined by the occurrence of that event. Instead, they were time bound by the arrival of a specific day unconnected with the occurrence of that event. She argues, that the time limited contracts of employment under which she was employed all expired before they were renewed. Nevertheless, she remained in employment without contract. She argues, that the Respondent therefore could not have complied with Section 8(2) of the Act and accordingly, cannot rely on the purported statements of objective reasons for not offering her a contract of indefinite duration when renewing the fixed-term contracts under which she was employed.

Respondent’s Position

The Respondent states that the Complainant was at all times aware that the post she was filling on a fixed-term basis was one for which the HSEA is required to seek approval and thereafter fill by way of public competition through the Public Appointments Commission. It submits, that the Complainant was initially employed to replace a Doctor who was on special leave. The Doctor in question did not return to work, the Complainant’s employment contract was extended while the necessary approvals were sought and the post filled. The Complainant was offered and accepted successive fixed-term employment contracts that expressly state that the appointment is on a fixed-term basis pending the filling of the post on a permanent basis through open competition. The Respondent states that this amounts to objective justification for it's decision not to offer the Complainant a contract of indefinite duration. It relies on Section 9(4) of the Act in this regard. The Respondent further relies on the Decision of Hedigan J. in Health Services Executive v Umar [2011] E.L.R. 229 in which the High Court has ruled that the practice of using fixed-term contracts to fill a vacancy pending the filling of the post in a permanent capacity is a legitimate aim corresponding to a real need of the employer. It argues that this Decision case is on all fours with that Decision. The Respondent was seeking approval to fill a post in a permanent capacity and employed the Complainant on a series of fixed-term contracts of employment the filling of the post. It argues the it at all times advised the Complainant that the reason it could not offer her a contract of indefinite duration was because of the need to fill the post on a permanent basis and the requirement to complete the necessary processes to enable this to occur.  Accordingly, it argues that it complied with the Section 8(2) of the Act. The Law The Act Section 7 of the Act deals with the term “objective grounds” used in the Act Objective grounds for less favourable treatment 7.  (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. Section 8 deals with Written statements of employer 8 (1)  Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is— (a)  arriving at a specific date, (b)  completing a specific task, or (c)  the occurrence of a specific event. (2)  Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal. (3)  A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act . (4)  If it appears to a Rights Commissioner or the Labour Court in any proceedings under this Act — (a)  that an employer omitted to provide a written statement, or (b)  that a written statement is evasive or equivocal, the Rights Commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances. Section 9 of the Act sets out the basic law regarding the treatment of fixed-term Workers :-  (1)  Subject to Subsection (4) , where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed-term of no longer than one year. (2)  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. (3)  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. (4)  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. (5)  The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2005 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous. Case Law Objective Grounds The test for objective grounds was set out in Inoue v MBK Designs [2003] 14 ELR 98. In that case it was held that the employer must show that the impugned measures: - 1. Correspond to a real need on the part of the undertaking 2. Are appropriate with a view to achieving the objective pursued, and 3. Are necessary to that end The Decision of the High Court (per Hanna J.) in in Russell v Mount Temple Comprehensive School [2009] IEHC 533 is a clear authority for the proposition that the existence of objective grounds justifying the renewal of a fixed-term contract is to be judged at the commencement of the impugned contract. Since the Decision of the CJEU in case C-212/04 Adeneler and Ors. V Ellinikos Organismos Galaktos [2006] IRLR 716 it is settled that the concept of objective grounds 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. In applying that test the CJEU, in  Adeneler and again in C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071, 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. Findings of the Court It is common case that the Complainant was employed on two or more successive fixed-term contracts of employment extending over a period of more than four years. In accordance with Section 9(2) of the Act the Complainant is entitled to a contract of indefinite duration unless the defence set out in Section 9(4) applies in this case. In order to rely on that defence the Respondent must make out each and every element of it.  It must show that “there are objective grounds justifying such a renewal.” It is common case that the filling of a vacant Consultant position in a public hospital is a legitimate need of an employer. Relying on an open competition in order to secure the best available candidate for the post is an appropriate way to achieve that end. No evidence was presented to the Court in support of the proposition that filling the post by open competition is necessary to achieve the best person to fill the post. However, it was not disputed by the Complainant in this case. The Court therefore must examine the Contracts of employment issued to the Complainant. The Decision in Russel v Mount Temple Comprehensive School requires the Court to examine the objective grounds as they existed at the commencement of the impugned contract of employment. The Complainant commenced employment with the Respondent on 9th June 2008.  She acquired a contract of employment by way of letter dated 15th February 2013 covering the period 1st April 2012 to 31st May 2013. This contract had the effect of bringing the Complainant’s employment within the scope of Section 9(2) of the Act.  Accordingly, it is the content of this contract that must be examined to determine the extent to which Section 9(4) can be relied upon by the Respondent. Firstly, the letter is dated 15th February 2013 and applies to the period commencing 1st April 2012.  Accordingly, it was issued 10 months into the contract.  The terms of the Contract are quite detailed. They begin to noting that the Complainant’s previous contract expired on 31st March 2012.  It then goes on to offer her a revised Specified Purpose Contract for the fixed-time period 1st April 2012 to 31st May 2013 inclusive.  It then states that the terms of the contract are as set out in the Consultant Contract 2008 at 29th November 2012. It proceeds to set out the Complainant’s place of work and her weekly hours commitment. It then sets out the deductions from salary that will apply and refers to PAYE PRSI (Class A), Universal Social Charge and Pension Levy. The Respondent then reserves the right to terminate the Complainant’s employment in accordance with the Minimum Notice and Terms of Employment Act 1973–1991. It states that the Unfair Dismissals Act 1973-1991 does not apply to the termination of the employment on the expiry of the specified purpose. It then reserves to the Respondent the right in the event of unforeseen occurrence or circumstance to lay-off the Complainant or place her on short-time. Nowhere in the contract does it make reference to the filling of the permanent Consultant post. Neither does it make the termination of the Complainant’s contract to the filling of such a post. Indeed the contract is silent in respect of such matters. The Respondent seeks to rely on the wording of the contracts to argue that it complied with Section 8(2) of the Act. If so, the wording of the contract is of no assistance to it in this case. Section 8(2) requires that written notice of the objective grounds for renewing a fixed-term contract of employment be given to the Worker before it is renewed. In this case that could not have been complied with as the letter of 15th February was issued some 10 months after the contract commenced. More importantly the letter contains no reference to objective grounds or any grounds at all for renewing the fixed-term contract of employment. The Respondent sent the Complainant a further letter dated 19th February that purports to be a further contract of employment covering the period 1st April 2012 to 31st May 2013.  It purports to be a fixed-term contract until the permanent appointment is finalised. It states that the Complainant’s employment will cease on 31st May 2013. There is no evidence before the Court that the Complainant accepted this revised contract of employment.  Accordingly, the Court concludes that at the time this contract was sent to the Complainant the offer of 15th February had been received and accepted and the contract of indefinite duration by operation of law had become effective. The contract offer of 19th February was in fact based on the premise that the Complainant was working without contract since April 2012.  In fact she had been subject to contract since 15th February which had been converted to a contract of indefinite duration by operation of law. Determination The Court finds that the Complaint is well-founded. The Court orders the Respondent to reinstate the Complainant to the post she held under the contract dated 15th February 2013 with effect from 1St June 2013.

 Signed on behalf of the Labour Court

 Brendan Hayes 23rd April, 2014 ______________________ JF Deputy Chairman  

NOTE

Enquiries concerning this Determination should be in writing and addressed to John Foley, Court Secretary.