FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : OFFICE OF PUBLIC WORKS (REPRESENTED BY BEAUCHAMPS SOLICITORS) - AND - BIANCA O' NEILL (REPRESENTED BY MR DES RYAN B.L., INSTRUCTED BY MC DOWELL PURCELL SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Murphy Worker Member: Mr Shanahan |
1. An appeal against a Rights Commissioner Decision r-126656-ft-12/JW.
BACKGROUND:
2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 23rdSeptember 2013. A Labour Court hearing took place on the 28th November 2013.
The following is the Labour Court's Determination:-
DETERMINATION:
This is an appeal by Ms Bianca O’Neill against the Decision of a Rights Commissioner made under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) in her complaints against the Office of Public Works.
For ease of reference the parties are referred to in this Determination using the same designation as they had at first instance. Hence, Ms Bianca O’Neill is referred to as “the Complainant” and the Office of Public Works (OPW) is referred to as “the Respondent”.
At the Rights Commissioner’s hearing the Complainant claimed that the Respondent 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 Respondent 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 durationin breach of Section 8 of the Act. The Complainant also alleges that she was penalised contrary to Section 13 of the Act when she was made redundant in July 2012 for having sought a contract of indefinite duration from the Respondent.
The Rights Commissioner found that the Respondent was not the employer of the Complainant and accordingly held that her complaints under the Act were not well-founded. The Complainant appealed the Decision to this Court.
Background
The Complainant qualified as an Architect in 2004. On 5thJuly 2004 she commenced a two year graduate programme with the Royal Institute of Architects of Ireland and was seconded to work with the Respondent.
From 5thJuly 2006 the Complainant was employed by Techstaff Limited, an employment agency, and assigned to work with the Respondent. This contract terminated on 4thJune 2007.
The Complainant was then employed by Hayes Higgins Partnership, Consulting Engineers and assigned to work with the Respondent from 4thJune 2007. This contract terminated on 31stJuly 2012 when she was made redundant.
The complaints under the Act were presented to the Rights Commissioner on 3rdOctober 2012.
Summary of the Complainant’s Case
Mr Desmond Ryan, B.L., instructed by McDowell Purcell, Solicitors, on behalf of the Complainant, submitted that she had has worked pursuant to a number of fixed-termcontractswithin the Respondentorganisation since July 2004 and was in an
employment relationship with the Respondentsince 6 July 2006. Herrolehas always been thatof Architect inArchitecturalServices 4and herplace ofworkhas
continuously been the Respondent's offices atStStephen's Green,Dublin 2.
Mr Ryan submitted that, as her employer, the Respondent had breached the Act when (i) it failed to grant her an entitlement to a contract of indefinite durationin
circumstances where she had the maximum aggregate periodduring which shecould be employed onfixed-termcontracts andin circumstances where no objective justification existed for so doing;(ii) it breached itsobligationsunderSection 8 oftheActinfailing to furnishwrittenstatements setting out objective grounds justifying therenewal of the her first andsecond fixed-term contract; and (iii) itpenalised the Complainantfor havinginvoked theprotectionsopen to her underthe Act, inthe contextof the alleged redundancyofher positionin July2012.
Mr Ryan stated that when her Graduate Programme with the Royal Institute of Architects of Ireland was nearing completionthe Complainant was approached by the Respondent,whichspecifically asked her whethershe would be interested in staying oninher current role through anadditionaleleven-monthcontract,which wouldbe
"facilitated'bya recruitmentagency,Techstaff Limited.Mr Ryan submitted that albeitthat the written contract entered into with Techstaff Limited described thelatter as the Complainant's employer,this was notcorrectas a matterof employmentlaw, and flies directly inthe face of,inter alia,authoritative statements of the law in this area such as,inter alia,this Court's decision inDiageo GlobalSupplies v Rooney[2004]ELR 133. He maintained that there was no doubt thatthe Respondentwas the Complainant's employer from at least 6thJuly 2006, the start date of the fixed-term contract enteredinto with Techstaff Limited, whereby the Complainant would work for the Respondent.
Mr Ryan submitted that although the above-mentioned contract was described as a fixed-term contract which deployed her to work in the Respondent’s offices it did not specify the duration of the contract and made no reference to any objective grounds. He said that Techstaff Limited was the paying agent, the Complainant was obliged to complete weekly time sheets which weresigned by the Respondent’s Senior Architect and then sent to Techstaff Limited. Techstaff Limited paid the Complainant's salary and monthly expenses and was then reimbursed by the Respondent.In relation to annual leave and other key incidents of employment status, the Respondent exercised complete and exclusive control over the Complainant in thisrespect. He pointed out that the Complainant's salary was specifically - and by express direction of the Respondent - linked to the Respondent's official OPW Salary Scale,and the Complainant's annual leave entitlements were precisely in keeping with those constituting the Respondent's standard practice for permanent employees.
The contract with Techstaff Limited as paying agent was due to end on 5thJune 2007. In the period leading up to this time the Complainant was again approached by the Respondent to ascertain if it could find a way of retaining her in Architectural Services 4 would she interested in continuing her employment with it. The Complainant confirmed that she would be interested and would fully cooperate with the implementation of such an arrangement. She was advised that this could be achieved through a firm of Consultant Engineers,Hayes Higgins Partnership, with the Complainant focusing for the time being ona development project which the Respondent was supervising at Dublin Zoo.
Mr Ryan said that the Respondent made allthe necessary arrangements regarding
contract information/salary level, etc.and once again the Complainant interpreted this as a further manifestation of securing a continuation of her employment with the Respondent. This arrangement with the Respondent continued for a further five-year period until her position was purportedly made redundant on 31stJuly 2012.Mr Ryan submitted that yet again the Respondent had chosen to make use ofanelaborate pay agent mechanism (similar pay and expenses arrangement to the Techstaff Limited arrangement) which was simply an administrative convenience and had no bearing on the legal status of the Complainant whom he submitted was in an ongoing employment relationship with the Respondent.The Complainant continued to reportto her usualdesk in the Respondent's premises on St. Stephen’s Green and neverattended the offices ofHayes Higgins Partnership. Mr Ryan submitted that there was no reality to
the suggestion that Hayes Higgins Partnership was her employer. Nowritten contract was ever furnished to her.
Mr Ryan submitted that, thecontinuing employment of the Complainant in 2007 after the Techstaff Limited contract hadceased amounted to a"renewal" within the
meaning of Section 9 of the Act. In support of his contention Mr Ryan cited
DeterminationAndrew KennedyvWaterford City Council(FTD1235) wheretheLabourCourt held that:
- "thereis nothing magicalin theword 'renew',Itisa plain and ordinaryEnglishwordwhich canproperly beused to describe the continuationofsomething thatwouldotherwise come to anend.The Oxford Concise Dictionarydescribesthe termsasconnoting, inter alia,"to extend the period of validity of(alicence,subscription,or contract)".
Therefore, he submitted that inentering the arrangement withHayes Higgins Partnership, this constituted a renewal for the purposes of the Act.Notwithstandingthe lack of contractual documentationfrom 2007onwards, the Complainant was expressly advised that her salary, including salary increases, would remain linked tothe Respondent's Salary Scale and her annual leave entitlements wouldcorrespond to those of the Respondent.
Mr Ryan stated that over the many years of herworking with the Respondent the Complainantfulfilled a range of functionsinconnection with herrole as Architect in
the ArchitecturalServices 4 Group. He said that while the Complainant latterly focused on the Dublin Zoo project,it was nevercommunicated to her that this project andits
funding arrangements constituted a fundamental pre-requisite orpre-condition to
hercontinued employment withthe Respondent.InJune 2012,when making reference
tothe cessation of the Dublin Zoo project,the Respondent informedthe Complainant that she would be “finishing up work beforethe endofJuly".At a subsequent meeting with Hayes Higgins Partnership she wasinformed that as paying agent it would pay her a redundancy payment if its accounts were credited withthe fullamount.Theysubsequently informed herthat they had been asked by the Respondent to provide her with aterminationletter to allow herto claim social welfare benefits.
Mr Ryan submitted that in all these circumstancesthe Respondent was in breach of the Complainant's statutory entitlementsin circumstances where she enjoyed the ongoing entitlement to a contract of indefinite duration since 6thJuly 2010.
Summary of the Respondent’s Position
Ms Claire Callanan, Solicitor, of Beauchamps, Solicitors, on behalf of the Respondent, raised a preliminary issue at the outset of the hearing. She challenged the Court’s jurisdiction to hear the case asserting that the Complainant was never an employee of the Respondent and that there was no evidence of either a fixed-term contract or any successive contracts in existence. She submitted that the Complainant only had one single continuous contract with Hayes Higgins Partnership from the commencement of her employment with them in 2007.
Ms Callanansubmitted to the Court that the Complainant was employed by Hayes Higgins Partnership at all times and that the latter accept that it was her employer and was responsible for the Complainant’s redundancy when Dublin Zoo ceased engaging
their services.Ms Callananstated that Hayes Higgins Partnership is an independent professional partnership, with whom the Respondent has conducted business for a
considerable number of years and with "clients" of the Respondent. In its dealings with the Respondent, Hayes Higgins Partnership has at all times appeared to have understood the meaning, nature and effect of contracts that it enters into.
Ms Callanansaid that the only relationship that the Respondent had with the Complainant arises from the fact that while she was employed by the RIAl on their Graduate Programme, some of the projects she worked on during her assignment to the Respondent related to project work they were engaged on with Dublin Zoo, where the Respondent was the project architect. When the Graduate Programme finished in 2006 she then worked for a year with Techstaff Limited and continued working on the Dublin Zoo project. During that year Dublin Zoo started additional projects and required the Complainant’s services. Hayes Higgins Partnership was providing
engineering services on various contracts to Dublin Zoo and had agreed to provide the services of site coordinator to Dublin Zoo. Dublin Zoo paid Hayes Higgins Partnership for alltheir fees and paid them for cost of providing her services to the projects.Ms Callanansubmitted that this was very significant as Dublin Zoo would have been entitled to these services on a without charge basis provided by the Respondent.
The Complainant did not work on any other OPW work but the publicly-funded projects at Dublin Zoo.The Complainant was told on a number of occasions that she could not work on other OPW projects because she was contracted by the Zoo.
Ms Callanan told the Court that the Complainant applied through the Public Appointments Service for an advertised Architect position withthe OPW on 25thMay 2006.She was advised that she had been appointed number 23 on a panel by letter dated 1stAugust 2006. She accepts she was not an employee of the Respondent at the time. Ms Callanan stated that the Complainant knew the terms and conditions of the panel and knew that she had not been appointed. She also knew colleagues and friends who were subsequently offered jobs from the panel, however, theMoratorium on Recruitment and Promotions in the Public Servicecame into being before the panel reached number 23 and as a result the panel is no longer active.
The contract with Techstaff Limited coincided withher application to thePublic Appointments Service.Ms Callanan referred to the contradictionsin the Complainant’s case whereby sheworked forHayesHiggins Partnershipon projects in Dublin Zoo yet she claimedshe was entitled tobetreated as anemployeeof the Respondent at the same time as accepting thatshewasnotanemployee as she hadapplied for and was successful in beingplaced 23rdon the Public AppointmentsServicePanel.
Ms Callanan submitted that the Complainant voluntarily entered into the contract with Techstaff Limited in 2006 and with Hayes Higgins Partnership in 2007 and she must also have known that given she was only number 23 on the panel she was going to be waiting for a considerable period of time for a vacancy.
Ms Callanan referred to the Complainant’s submission where she stated that"in my particular situation, the rolling contracts began as an intermediary measure before the permanent position I was due commenced. I was complicit in the arrangements with the understanding that it was a reasonably temporary arrangement. 1 didn't want it to come to this. I thought the OPW would do the right thing and just hire me off the original list".
Furthermore the Complainant stated that"after my successful selection onto the Panel I was happy to continue my services to the OPW through Hayes Higgins until I was recruited from the Panel on a permanent basis by the OPW".
Ms Callanan submitted that while the Complainant had areasonable expectation that at some point she would be offered a position with the Respondent following her appointment to the panel, a reasonable expectation does not create a legal right.
Ms Callanan submitted to the Court that the fact that the Complainant worked as Project Architect for Hayes Higgins Partnership on OPW projects at Dublin Zoo does not make her an employee of the Respondent any more than it makes her an employee of Dublin Zoo.The only relationship that the Respondenthad with the Complainant arose out ofthe fact that they were the supervising Architect for their client, Dublin Zoo.
Conclusions of the Court
The Court must first deal with the preliminary question whether it has jurisdiction to hear the case i.e. does the Complainant havelocus standito maintain the within claims, this is dependent on her falling within the definition of“fixed-term employee”as set out in Section 2 of the Act. The Complainant referred her claim to the Rights Commissioneron 3rdOctober 2012 within six months of the completion of her contract with Hayes Higgins Partnership. Included in this and other referrals to the Rights Commissioner Service were separate claims citing OPW, Hayes Higgins Partnership and Dublin Zoo as her employer. The Court does not intend at this point to investigate this question as it will deal with the issue oflocus standias a preliminary matter in the first instance.
The Court has given careful consideration to the substantial number of submissions presented to it from both sides.
The Law
The Protection of Employees (Fixed Term Work) Act 2003 transposes Council Directive No. 1999/70/EC into Irish law.
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
- 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.
- 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.
- 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.
- 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.
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 …..
- (4) Notwithstanding subsection (3), a rights commissioner may entertain a complaint under this section presented to him or her after the expiration of the period referred to in subsection (3) (but not later than 12 months after the end of that period) if he or she is satisfied that the failure to present the complaint within that period was due to reasonable cause.
(5) A complaint shall be presented by giving notice of it in writing to a rights commissioner and the notice shall contain such particulars and be in suchform as may be specified from time to time by the Minister.
- “the protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period 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.”
“The essence of a fixed-term contract is that it will come to an end by the occurrence of an objective condition specified in the contract itself. That condition can be the effluxion of time, the completion of a specific task or the occurrence of an event. It would appear logical that where the completion of a specific task is the determining event, it would have to be a clearly identified and specific task which would eventually come to an end, such as a task or project which is not part of the fixed and permanent needs of the employer. Were it otherwise practically every employment contract could be regarded as being for a fixed-purpose and therefore a fixed-term contract within the meaning of the Act.”
No contract of employment with Hayes Higgins Partnership was furnished to the Complainant and hence the Court must rely on the Complainant’s submission to examine the nature of that contract and whether or not it was a fixed-term contract or a contract of indefinite duration. Mr Ryan in his submission to the Court, when referring to the period encompassed by the Hayes Higgins Partnership contract, stated that the Complainant’s employment“continued for a further five year period until her position was purportedly made redundant on 31stJuly 2012”. He outlined the projects she worked on during this period which included work at Fota Wildlife Park and at Dublin Zoo. He said that while the Complainant“latterly did focus on the Dublin Zoo project, it was never communicated to her that this project and its funding arrangements constituted a fundamental pre-requisite or pre-condition to her continued employment with the Respondent”. On 8thAugust 2008 the Complainant wrote to the Chairman of the Respondent and brought to his attention her concerns about her entitlement to a contract of indefinite duration. In her submission to the Court she refers to the fact that the Chairman did not state that her employment was conditional on funding and instead it relied on the argument that she was a Consultant employed by Hayes Higgins Partnership.
It seems clear to the Court that the Complainant was under the impression that, despite the lack of a written contract of employment with Hayes Higgins Partnership, she was on a continuous contract, not fixed-term contract(s), which was brought to a conclusion when she was made redundant. She stated that she was most surprised when she was made redundant“since there were and are many diverse duties to which an Architect could turn his or her focus in the discharge of his or her duties with the Respondent”.Evidence was presented to the Court by Mr Ryan of a contract dated 23rdApril 2007 from Hayes Higgins Partnership to OPW concerning the former’s offer of services as site co-ordinator at Dublin Zoo for the completion of the Elephant House project and the Haughton House project, “to be on site until May 2008”. This he submitted was evidence of a fixed-term contract. In the letter it mentions its appointment of the complainant as Architect for the projects. This letter followed an email dated 20thApril 2007 from the OPW to Hayes Higgins Partnership outlining what should be in the letter. The Court is satisfied that this is a commercial contract between the two organisations and not a contract of employment with the Complainant and consequently cannot be considered as a fixed-term contract within the meaning ascribed by Section 2 of the Act..
The contract between Techstaff Limited and the Complainant was presented to the Court along with the“Contract for the Supply of Services of Independent Contractor”between Techstaff Recruitment Limited and the Respondent.
The former states that it is a fixed-term contract from 26thJune 2006 between Techstaff Ltd and the Complainant and it does not state a termination date. It defines the following terms:-
“Bianca O’Neill (“Hereinafter referred to as “Employee”)”
““The Employer” shall mean Techstaff Ltd”
“”Client of the Employer” shall mean any person, firm, corporation to which the Employee of the Employer is assigned for a Fixed Term”
“To which assigned: OPW, 51-52 St Stephens Green, Dublin 2”.
The latter contract (Contract for the Supply of Services of Independent Contractorbetween Techstaff Recruitment Limited and OPW) states:-
- “I refer you to the terms and conditions overleaf and which to confirm that Techstaff Limited will supply OPW with the services of Bianca O’Neill of Techstaff Limited, commencing on 5thJuly 2006 on a salary of €xxxx per annum.”
Section 2 of the Act provides as follows: -
"contract of employment" means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract);
Since the coming into force of the Act, the Protection of Employees (Temporary Agency Work) Act 2012 was signed into law on 16thMay 2012. Its purpose is to transpose into Irish law Directive 2008/104/EC of the European Union on Temporary Agency Work, the purpose of the Directive is set out at Article 2 thereof as follows: -
- The purpose of this Directive is to ensure the protection of temporary agency workers and to improve the quality of temporary agency work by ensuring that the principle of equal treatment, as set out in Article 5, is applied to temporary agency workers, and by recognising temporary work agencies as employers, while taking into account the need to establish a suitable framework for the use of temporary agency work with a view to contributing effectively to the creation of jobs and to the development of flexible forms of working.
The principle of equal treatment, referred to in this Article, is elaborated by Article 5 as follows: -
- The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job.
Having examined the terms of both contracts referred to above, the Court is satisfied that the arrangement entered into with Techstaff Ltd with the Complainant, recognises Techstaff Ltd as the employer and the Complainant as the person assigned to the Respondent to do or perform personally any work or service for it. Furthermore the Court is satisfied that the contract between Techstaff Ltd and the Respondent is a contract for the purposes of providing that service to the Respondent. In that sense the Court is satisfied that it was a normal standard agency workers arrangement which is now protected by the Act 2012 and is entirely different toDiageo.
During her employment with Techstaff Ltd, the Complainant had been working on projects at Dublin Zoo, at the New Education Building at the Garda Training College in Templemore and also at the new Garda Training Centre, Dromard House.
Mr Ryan submittedthat inentering the arrangement withHayes Higgins Partnership, this constituted a renewal of the above mentioned contract for the purposes of the Act. This he submitted occurred when the Complainant commenced working as project architect for Hayes Higgins Partnership on OPW projects based at Dublin Zoo and Fota Wildlife Park. In support of his contention Mr Ryan citedWaterford City Council case) wherethe term “renewal” was considered by theLabourCourt. The Court is satisfied that the relationship between Techstaff Ltd and the Complainant came to an end, and the relationship between Techstaff Ltd and the Respondent also came to an end, therefore the Court finds that the entering into a contract with Hayes Higgins Partnership did not constitute a renewal of her July 2006 contract with Techstaff Limited.
In the absence of any written contract of employment, and having carefully examined the contract with Hayes Higgins Partnership as set out in the submissions, the Court is satisfied that the contract by its nature was not a fixed-term contract for the following reasons:-
- •there was no indication of an end date to the contract;
•there was an acceptance by the Complainant that the contract was not subject to funding constraints;
•the Complainant was of the view that the work would continue indefinitely; and
•the Complainant was of the view that the contract would continue until at least she was recruited from the panel by OPW on a permanent basis.
In these circumstances the Court is satisfied that the contract with Hayes Higgins Partnership cannot be considered a fixed-term contract of employment within the meaning of the Act.
Even if the Court were to accept that the contract with Hayes Higgins Partnership was a specified purpose contract based on the last point above, the Court has found that the contract with Techstaff Limited was not renewed, and therefore there were no successive contracts with the same employer and accordingly the provisions of Section 9 (3) cannot apply.
Determination
Having so concluded the Court must hold that the Complainant was not a fixed-term employee in the six months prior to the date on which she made her complaints and therefore she has nolocus standito maintain the within complaints and the Court has no jurisdiction to investigate this dispute.
For the reasons set out above the Court varies the decision of the Rights Commissioner and rejects the Complainant’s appeal.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
20th December, 2013______________________
CRDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.