FTD141

In this Determination Mr Ismael is referred to as the Claimant and the Health Service Executive is referred to as the Respondent.

The Facts
The material facts of the case are as follows: -

The Claimant is presently a Consultant Plastic Surgeon. He was employed by the Respondent in various medical posts on a succession of fixed-term contracts between July 2002 and June 2008. He was again employed from September 2008 until 17^thJuly 2011. At all material times he was employed at University College Hospital Galway.

In the period up to July 2007 the Claimant was employed to provide cover for two Consultant Plastic Surgeons. On or about 2^ndJuly 2007 he was appointed as a temporary Consultant Plastic Surgeon, again pursuant to a fixed-term contract. This appointment was to provide cover while the process of appointing a permanent Consultant was being undertaken.

By letter dated 28^thMay 2008 the Respondent wrote to the Claimant in the following terms: -

• “ I wish to advise you that the permanent consultant appointed through the PAC will take up post on 1^stJuly 2008. The contract you hold will finish on 30^thof June 2008.

  I would like to take this opportunity to thank you for your work and commitment to Galway University Hospital.

  Best wishes for the future.”

The Claimant recommenced working for the Respondent on 12^thSeptember 2008 on a fixed term-contract up to 15^thSeptember 2008 providing short-term absence cover. He entered into a further fixed-term contract for the same purpose for the period 18^thand 19^thSeptember 2008.

It is common case that on 22^ndSeptember 2008 the Claimant was employed to provide cover for a named Consultant Plastic Surgeon on Friday and Thursday each week and on Friday Saturday and Sunday each 4^thWeek. The circumstances in which this arose are that the named Consultant was appointed as Clinical Director of the Hospital and the Claimant’s appointment was to relieve the named Consultant of certain duties so as to attend to the duties of that appointment.

The contract under which this appointment took effect was, in fact, issued on 29^thOctober 2008 but it was expressed to take effect on 22^ndSeptember 2008.

In relevant part this contract provided: -

• “Purpose and Termination

  Your employment with the Health Service Executive –West shall be for the purpose of Cover for Mr [named Consultant] (Friday, Thursday from 5pm of each week, and Friday, Saturday and Sunday each 4^thweek)”

The person appointed to the permanent post took up her appointment on 18^thJuly 2011. As that person was not required to undertake the duties of Clinical Director, the requirement to provide cover during the times specified in the contract which commenced on 22^ndSeptember ceased. By letter dated 1^stJuly 2011 the Claimant was advised that his appointment would terminate on 17^thJuly 2011.

Issues Arising
The gist of the Claimant’s case is that by operation of s.9 of the Act the contract into which he entered on 22^ndSeptember 2008 must be deemed to have been one of indefinite duration. The substance of his claim, as it was confirmed to the Court, is that he continues to be entitled to employment with the Respondent for the purpose of providing his services on Thursdays and Fridays in each week and on Saturday and Sunday each 4^thweek.

The Respondent denies that the Claimant became entitled to a contract of indefinite duration by operation of law. It further denies that the contract entered into by the Claimant on 22^ndSeptember 2008 was a fixed-term contract within the statutory meaning of that term. Rather, it was submitted, the contract was to remain extant for the continuance of the named Consultants employment and that it did not envisage a specific termination date by reference to a period of time or the occurrence of an event. It was submitted that if this contract was not for a fixed-term it could not be transmuted into one of indefinite duration by operation of law.

The Respondent denied that the Claimant had the requisite period of continuous / successive employment so as to bring s.9(1) or 9(2) of the Act into play. In advancing that submission the Respondent contended that the Claimant was dismissed on 30^thJune 2008 thus breaking the continuity of his employment. According to the Respondent his period of continuous / successive employment on 17^thJuly 2011 was less than four years.

Finally, the Respondent contends that even if the contract entered into on 22^ndSeptember 2008 was a fixed-term contract within the statutory meaning, which was denied, there were objective grounds justifying its conclusion for a fixed term.

The Claimant’s response is a traverse of the Respondent’s case. He claims that the contract into which he entered on 22^ndSeptember was a fixed-term contract in that it was determinable by the occurrence of an event, namely the retirement of the named consultant. He claims that he was placed on lay-off on 30^thJune 2008 and that his employment resumed on 12^thSeptember 2008. On that basis he contends that he had accrued six years continuous / successive years of fixed-term employment by 22^ndSeptember 2008 thus entitling him to a contract of indefinite duration. Finally, he contends that there was no objective justification for the conclusion of the aforementioned contract for a fixed-term and there continues to be a need for the provision of the services provided for by that contract.

Approach of the Court
As previously noted the Claimant was employed on a succession of fixed-term contracts between July 2002 and June 2008. There is no dispute concerning the Claimant’s status as a fixed-term employee over that period. Nor was there any dispute concerning the continuity of the Claimant’s employment at that time. However, he is not claiming that any of those contracts became one of indefinite duration by operation of s.9 of the Act. He expressly confined his case to a claim that the contract entered into on 22^ndSeptember 2008 to provide part time cover attracted the operation of the Act. What the Claimant is now seeking is that he be provided with ongoing employment to provide consultant services on Thursdays and Fridays each week and on Saturdays and Sundays every 4^thweek.

If any one of the conclusions contended for by the Respondent in defending this claim are correct the Claimant cannot succeed. If his employment status was not that of a fixed-term employee he did not havelocus standito maintain a claim under the Act. Nor could he succeed if the cessation of his employment on 30^thJune 2008 was a dismissal as that would have broken the continuity of his employment. However, even if both of these points were resolved in the Claimant’s favour he could not succeed if there were objective grounds justifying the conclusion of the contract of 22^ndSeptember 2008 for a fixed-term.

For the reasons that follow the Court has concluded that even if it took the Claimant’s case at its height in relation to his status as a fixed-term employee and in relation to the continuity of his employment between 2002 and 2011 he could not succeed. The Court has reached that conclusion because it believes that in September 2008 there were objective grounds justifying the Respondent’s decision to fill the specific post now in issue on a fixed-term contract rather than on one of indefinite duration. The Court is also satisfied, for reasons that follow, that the Claimant is, in effect, seeking a permanent appointment to a post that has ceased to exist.

Statutory Provisions
Section 9 of the Act provides: -

• 9.—(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 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

• 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.

• 
  In those circumstances, the concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the Framework Agreement must, as the Court has already held, 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 (Adeneler and Others, paragraphs 69 and 70; Case C-307/05 Del Cerro Alonso [2007] ECR I-7109, paragraph 53; and order in Vassilakis and Others, paragraphs 88 and 89).

It is clear that s.9 (4) of the Act, and by extension s.9(3), takes effect at the commencement of the impugned contract. This was pointed out by Hanna J inRussell v Mount Temple Comprehensive SchoolIEHC 533. It follows that the reasons relied upon as constituting objective grounds for the purposes of the Act must have been the reasons operating on the mind of the relevant decision maker at the time the impugned decision was made. The fact that those circumstances may have changed during the currency of the contract could not retrospectively render it unlawful if it was lawful at the time of its making.

It is clear on the agreed facts of this case that the contract into which the Claimant entered in September 2008 was to facilitate the named Consultant in undertaking the duties of Clinical Director of the Hospital. That was a temporary requirement that would last only for so long as the named Consultant continued to undertake those duties. Logically, the eventual retirement of the named Consultant must have been anticipated in September 2008. It must also have been anticipated that his successor, whenever he or she was appointed, would not need to be facilitated with relief in order to undertake other duties. In the event, on the retirement of the named Consultant and his eventual replacement by a Consultant who performed the full range of duties attaching to her post, the position that the Claimant held under the contract of 22^ndSeptember 2008 ceased to exist.

Against that background it could not be held that in September 2008 the requirement of the post that the Claimant filled formed part of the fixed and permanent needs of the Respondent. It seems clear to the Court that in these circumstances the conclusion of a temporary or fixed-term contract was a proportionate means of achieving the legitimate objective of the Respondent in seeking to accommodate its need to provide cover for the period during which the Clinical Director was performing the duties of that position.

In considering that point the Court has also been guided by the decision of the High Court inAn Post v Monaghan & ors[2013] IEHC 404. Here. Hedigan J held that a Court should ask itself if the impugned measure (in this case employing the Claimant for a fixed-term) was the minimum unfavourable treatment necessary to enable the employer obtain its objective. In that regard the Court cannot see how else the Respondent could have provided for what was undoubtedly a purely temporary need.

Conclusion
The Court is satisfied that in the circumstances prevailing on 22^ndSeptember 2008 there were objective grounds justifying the Claimant’s employment for a fixed-term to provide cover for the named Consultant on the days in question. Accordingly he cannot succeed in his claim to a contract of indefinite duration in that post. In these circumstances it is unnecessary for the Court to deal with the other points arising in this case.

Determination
Although for different reasons than those relied upon by the Rights Commissioner the Court finds that the within complaint is not well-founded. The Decision of the Rights Commissioner is varied in the terms of this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
19th February, 2014.Chairman



NOTE

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