FTD1411

In keeping with the normal practice of this Court the parties are referred to as they were at first instance. Hence, Dr O’Keeffe is referred to as the Claimant and the National University of Ireland Maynooth is referred to as the Respondent.

Background
The Claimant has worked for the Respondent as an assistant lecturer in politics in the Respondent’s Department of Sociology. She was employed by the Respondent on a succession of fixed-term contracts, the first of which commenced on 1^stSeptember 2008. The history of the Claimant’s fixed-term employment is as follows: -

• First contract: 1^stSeptember 2008 to 31^stAugust 2009

  Second Contract: 1^stSeptember 2009 to 31^stAugust 2010

  Third contract: 1^stSeptember 2010 to 31^stAugust 2011

  Forth Contract: 1^stSeptember 2011 to 31^stMay 2012

  Fifth Contract: 1^stJune 2012 to 30^thJune 2013

The Claimant was subsequently reemployed by the Respondent on a fixed-term contract on 1^stSeptember 2013. That contract is due to expire on 30^thJune 2014. This contract was entered into after the within claim was presented to the Rights Commissioner. Consequently no issue in relation to that contract arises for consideration in this appeal.

By email to the Respondent dated 1^stOctober 2012 the Claimant claimed that by reason of the duration of her continuous fixed-term employment she had become entitled to a contract of indefinite duration. The Respondent denied that she had such an entitlement. On 28^thFebruary 2013 the Claimant referred two claims to a Rights Commissioner under the Act alleging that the Respondent has contravened sections 6 and 9 of the Act.

The Rights Commissioner found that both claims were well-founded. The finding of the Rights Commissioner in relation to s.6 of the Act has not been appealed. On the s.9 complaint the Rights Commissioner declared that the Claimant had become entitled to a contract of indefinite duration with effect from 31^stAugust 2012. The Respondent appealed against that decision.

Position of the Parties
The Respondent claims that each of the Claimant’s fixed-term contracts was for the purpose of meeting a temporary need of the University. It submitted that the number of academic posts which it can maintain is fixed by what is referred to as the Employment Control Framework (ECF). That is a mechanism by which employment in the public sector is fixed at a prescribed level. It applies to all public sector employments including Universities.

The Respondent contends that each of the vacancies that the Claimant was employed to fill arose from the temporary absence of another lecturer. The duration of the Claimant fixed-term employment corresponded to the length of the absence that she was employed to cover and came to an end when the permanent holder of the position returned. It was the Respondent’s case that the filling of a temporary vacancy on a fixed-term contract is inherently justifiable on objective grounds. The filling of the post corresponded to a legitimate objective of the Respondent, namely the continued provision of tuition to its students notwithstanding the temporary absence of a permanent lecturer. It further submitted that the means chosen to achieve this objective, namely, the filling of the vacancy on a fixed-term contract was both appropriate and necessary.

The Respondent contends that it is precluded from creating additional permanent posts without the sanction of the Department of Education and Skills by the ECF. It further contends that it is required by that Framework to fill any post leading to a permanent increase in its headcount by open competition with an interview so as to obtain the best available candidate. It relies upon that policy in contending that the Claimant could not be appointed to a permanent post by simply converting her fixed-term contract to one of indefinite duration.

The Claimant’s trade union does take issue with the proposition that the filling of temporary vacancies by the use of fixed-term contracts is objectively justified. It does not accept that the Claimant was employed to replace any identified permanent member of the academic staff of the University. Rather, it contends that the real and substantial reason for the continued employment of the Claimant on for a fixed-term rather than on a contract of indefinite duration is the Respondent’s adherence to the ECF. This, it submitted, is a general Government policy, the effect of which is to offset in an impermissible way the rights of fixed-term employees under the Act and the European Directive that it was enacted to transpose in domestic law.

Issues Arising and the Applicable Law
The net point being contended for by the Claimant is that her fixed-term contract became transmuted to one of indefinite duration by operation of the combined effect of sections 9(1) and 9(3) of the Act.

Section 9(2) of the Act provides: -

• (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.

However, s.9(4) of the Act operates to save a term in a fixed-term contract which would otherwise contravene s.9(2) where there are objective grounds justifying the further renewal of the contract for a fixed-term. That subsection provides: -

• 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.

Section 7 defines what is to be regarded as an objective ground for the purpose of the Act. it provides: -

• 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(3) of the Act, and by extension s.9(4), 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. That approach was adopted by this Court in a number of previous decisions, most recently in Determination FTD141Thamir Ismaelv HSE West.

In order to make out a plea of objective justification the Respondent must first establish a legitimate objective to which the impugned measure is referable. It must then show that the means chosen are an appropriate and necessary means of achieving that objective. InAn Post v Monaghan & ors[2013] IEHC 404 the High Court, per Hedigan J, pointed out that in considering if a ground relied upon is an objective ground for the purpose of the Act the Court should ask itself 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.

Situations can and frequently do arise in which a worker is engaged on a fixed-term contract to perform work which corresponds to the fixed and permanent needs of the employer but the primary purpose of their employment is to provide temporary cover for an absent employee. It has been held that, in general, the conclusion of a fixed-term contract in these circumstances can be justified on objective grounds notwithstanding that the work to which the contract relates forms part of the employer’s fixed and permanent needs. This most frequently arises where, for example, a worker is temporarily employed to provide cover for an employee who is absent through such causes as illness, leave of absence or maternity leave. That was the type of situation that fell to be considered by the CJEU in case C-586/10K�c�k v Land Nordrhein-Westfalen[2012] IRLR 697

That case came before the Court by way of a reference for a preliminary ruling under Article 267 TFEU from the German Federal Labour Court. The Complainant in the main proceedings, Ms K�c�k, was employed by the Land between 2 July 1996 and 31 December 2007 under a total of 13 fixed-term employment contracts. She was employed as a clerk in the court office of the civil procedural division of the District Court, Cologne. The fixed-term employment contracts were always concluded because of temporary leave, including parental leave and special leave, having been granted to court clerks employed for an indefinite duration and served in each case to replace them.

Ms K�c�k claimed that a total of 13 fixed-term employment contracts concluded successively and without interruption over a period of 11 years cannot be deemed to be a response to a temporary need for replacement staff. She claimed that the continued renewal of her employment for a fixed-term over the period in question contravened Clause 5 of the Framework Agreement on Fixed-Term Work annexed to Directive 199/70. Accordingly she claimed an entitlement to a contract of indefinite duration. (Clause 5 of the Framework Agreement corresponds to s. 9 of the Act).

Having reviewed the relevant authorities the Court stated at pars 31 and 32 of the judgment: -

• In an administration with a large workforce like the Land, it is inevitable that temporary replacements will frequently be necessary due to, inter alia, the unavailability of employees on sick, maternity, parental or other leave. The temporary replacement of employees in those circumstances may constitute an objective reason under clause 5(1)(a) of the FTW Framework Agreement, justifying fixed-term contracts being concluded with the replacement staff and the renewal of those contracts as the need arises, subject to compliance with the relevant requirements laid down in the FTW Framework Agreement.

  This conclusion is all the more compelling where the national legislation justifying the renewal of fixed-term contracts in cases of temporary replacement also pursues objectives recognised as being legitimate social policy objectives. As evidenced by paragraph 27 of this judgment, the concept of objective reason in clause 5(1)(a) of the FTW Framework Agreement encompasses the pursuance of such objectives.

That case is not directly apposite in the instant case since it does not concern the question of replacement or substitute employees. Rather the case concerned a rule of Spanish law that allowed for the employment of part-time associate lecturers on fixed-term contracts without limitation. Part-time associated lecturers are employed in Spanish Universities to provide tuition in their specialist field. They are recruited from the private sector and are expected to resume employment in the private sector after completing a fixed term in the University. Their work is ancillary to the work of the University’s regular academic activity.

Márquez Samohano signed an employment contract with the University Pompeu Fabra for the purpose of exercising the duties of part-time associate lecturer for the period from 30 September 2008 to 29 September 2009. That contract was renewed on three occasions. It was first renewed until 21 September 2010, then until 21 September 2011, and finally until 28 July 2012.

Mr Samohano claimed that the continued renewal of his employment on fixed-term contracts constituted an abuse and contravened Clause 5 of the Framework Agreement annexed to Directive 1999/70/EC. The University accepted that the work of part-time associated lecturers corresponded to its fixed and permanent needs. It claimed, however, that the need for any individual lecturer is temporary as they are expected to resume their employment in the private sector after the completion of their term with the University.

The matter came before the CJEU by way of a reference for a preliminary ruling under Article 267 TFEU from the Barcelona Labour Court.

The Court held, at par 57: -

• The mere facts that fixed-term employment contracts concluded with associate lecturers are renewed in order to cover a recurring or permanent need of the relevant universities and that such a need can be met within the framework of a contract of an indefinite duration are not, however, such as to preclude the existence of an objective reason within the meaning of clause 5(1) of the Framework Agreement because the nature of the teaching activity at issue and the inherent characteristics of that activity can justify the use of fixed-term employment contracts in the context in question. Whilst fixed-term employment contracts concluded with associate lecturers cover a permanent need of the universities, in that the associate lecturer performs, under such a fixed-term employment contract, specifically defined tasks which are part of the universities’ usual activities, the fact remains that the need in terms of employment of associate lecturers remains temporary in so far as that lecturer is supposed to resume his professional activity on a full-time basis at the end of his contract (see, to that effect, K�c�k, paragraphs 38 and 50).

• • Having regard to all the above considerations, the answer to the first question is that clause 5 of the Framework Agreement must be interpreted as not precluding national rules, such as those at issue in the main proceedings, which allow universities to renew successive fixed term employment contracts concluded with associate lecturers, with no limitation as to the maximum duration and the number of renewals of those contracts, where such contracts are justified by an objective reason within the meaning of clause 5(1)(a), which is a matter for the referring court to verify. However, it is also for that court to ascertain that, in the main proceedings, the renewal of the successive fixed-term employment contracts at issue was actually intended to cover temporary needs and that rules such as those at issue in the main proceedings were not, in fact, used to meet fixed and permanent needs in terms of employment of teaching staff
  
  
  

There is authority for the proposition that a provision of nation law which requires the filling of certain permanent posts by open competition cannot be relied upon to defeat an entitlement to a contract of indefinite duration under the Act. The High Court so held inAhmed v Health Service Executive,unreported, High Court, Laffoy J., 6^thJuly 2006.

The material facts of that case can be briefly stated. The plaintiff was employed by the defendant's predecessor, the North Eastern Health Board, as a locum consultant surgeon at Louth County Hospital. His employment was on a succession of fixed-term contracts commencing in July 2000. In October 2003 the Local Appointments Commission advertised for three permanent posts of consultant surgeon with the defendant's predecessor in Dundalk. The plaintiff applied for one of the posts but was unsuccessful. In August 2004 the defendant purported to terminate the defendant’s temporary appointment so as to make way for one of the successful applicants.

Following correspondence from the plaintiff's solicitors it was accepted that by operation of s.9(3) of the 2003 Act his contract had become one of indefinite duration with effect from June 30, 2004. The defendant, however, proposed transferring the plaintiff to fill temporary positions at other locations. The plaintiff resisted the defendant's moves and claimed that since he had been originally appointed to Louth County Hospital he was contractually entitled to continue working there on a permanent basis. The defendant countered that it was constrained in making appointments to permanent posts of the type at issue by the Local Authorities (Officers and Employees) Act 1926. In addressing that submission Laffoy J. had this to say:

• “First, the defendant submitted that it was, and remains, constrained in the manner in which it may assign the plaintiff to a post by the statutory provisions which govern the appointment of permanent consultants. The statutory provisions invoked are the provisions of the Local Authorities (Officers and Employees) Act 1926 (the Act of 1926) which regulate selection of persons for appointment to certain *71 offices to which the Act applies. In the past, in general, selection was by means of a competitive examination conducted by the Local Appointments Commission until its dissolution by the Public Service Management (Recruitment and Appointments) Act 2004 (the Act of 2004). Currently, recruitment for appointment to positions in the defendant's organisation to which the Act of 1926 applies is subject to that Act and the subsequent amendments thereof, including the provisions of the Act of 2004 amending it, and it is regulated by the Commission for Public Service Appointments established by the Act of 2004. There is inherent in the defendant's submission the proposition that, by seeking to enforce his rights under s. 9 of the Act of 2003, the plaintiff is seeking to compel the defendant to circumvent the provisions of the Act of 1926, as amended by the Act of 2004, or, alternatively, the proposition that it is a necessary corollary to the enforcement of the plaintiff's right that such circumvention would occur and that such circumvention would beultra viresthe powers of the defendant. In my view, neither proposition is correct. The plaintiff is not seeking to be appointed to an office the filling of which is governed by the Act of 1926. The defendant must comply with the provisions of the Act of 2003 and such compliance falls outside the ambit of the Act of 1926. That, it seems to me, is a sufficient answer to this point without having to go into the minutiae of the provisions of the Act of 1926, as amended.”

This Court accepted that the temporary filling of a post which is the subject of an open competition is objectively justified. It held, however, that in having regard to the history of the Claimant’s fixed-term employment the opening of the post then held by the Claimant to competition was disproportionate and could not, therefore, constitute an objective ground for renewing the Claimant’s fixed-term employment beyond the permitted four years.

In holding that this Court had fallen into error in so finding, Hedigan J focused on the circumstances pertaining at the time that the Claimant’s final fixed-term contract was concluded. He said: -

• The purpose of Council Directive 1999/70 of June 28, 1999 is to prevent the abuse of fixed-term contracts. The Directive recognises that there are good reasons for maintaining fixed-term contracts in certain work areas. Paragraph 2 of the preamble states:
  • “The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed-term employment contracts respond, in certain circumstances, to the needs of both employers and workers.”
  The role of consultants in the medical care services would by any measure be one of those work areas where fixed-term contracts are appropriate because while open competitions to fill permanent consultant posts are conducted, it will inevitably be necessary to have those posts filled on a temporary basis in order that adequate medical coverage is provided while the competition is held.

  The Labour Court at p. 16 of its decision sets out what I may call a provisional determination to the effect that in the circumstances that prevailed herein holding an open competition for the permanent post was a legitimate aim corresponding to a real need of the respondent. That objective they held would have been defeated by appointing the complainant to the permanent post. The use of a fixed-term contract to fill the post pending the open competition was necessary. Thus far the decision of the Labour Court was in accordance with law.

  The Labour Court then however went on to broaden its approach. It noted, as it already had, that the complainant had been employed on successive contracts since August 2004. He had been on fixed-term contracts all this time. The Labour Court considered, as it already had, that the objective of seeking the most suitable available person was a legitimate one. It further found in reliance on Lommers v Minister Van Landbouw, Natuurbeheer en Visserij [2002] I.R.L.R. 430 that they should consider the proportionality of what was proposed. The court considered that the appellant ought to have balanced its needs and requirements with those of the respondent. In describing the needs of the appellant the Labour Court considered it to be for a suitable and qualified doctor to provide a consultancy in emergency medicine. It is to be noted that this was not what the appellant considered to be their need. Their stated need was for the“best available person”. This was a different need and involved a criterion of excellence. The need identified by the Labour Court involves a criterion of acceptability. Balancing this need, as they perceived it, against the respondent's right to stable employment it noted his ability to fill the post satisfactorily; opening the post to competition might have resulted in his losing his employment. The Labour Court observed there was no evidence the appellant had given any or any adequate consideration to the rights of the respondent in not appointing him to the permanent post. It concluded that the decision was disproportionate and therefore inappropriate.

  Notwithstanding that it considered the above was dispositive of the case, the Labour Court went on to consider necessity. Were there alternative means of achieving the end the appellant's sought? They noted the respondent was appointed to the fixed-term contract in Letterkenny and Cavan following competition. They considered this meant he was the best available candidate for a temporary post. It must however be noted that there is a significant difference between a competition for a temporary post and one for a permanent post. Those doctors seeking a permanent post would quite likely not apply for a temporary one. The Labour Court goes on to consider that over time more suitable persons will eventually emerge in respect of any person holding a post. They observe that short of proven incompetence that would not be a justifiable reason to require him to re-apply for his job from time to time. This however was not the situation in relation to the respondent. He was not in a permanent position. His three contracts had all been fixed-term and fixed-purpose ones. Moreover although they do not say so, as a proposition it comes close to suggesting that, save for proven incompetence, the appellant would have been obliged to accept the respondent as the best person available. This it must be noted changes the criterion further. From excellence it thereby is reduced to bare competence.

The Evidence
Oral evidence was given on behalf of the Respondent by Mr Michael O’Malley. Mr O’Malley is the Bursar and Secretary of the Respondent. He has previously acted in the role of Director of Human Resources. The witness testified that it was his role to monitor the number of staff employed by the Respondent and to ensure that it remained within approved limits. He said that where a temporary vacancy arose the head of the relevant department could make an application in writing seeking to fill the vacancy during the absence of the permanent holder of the post. He said that filing posts in this way did not result in the overall headcount within the University increasing beyond the permitted level. He referred the Court to forms submitted by the head of the Department of Sociology. In these forms the justification for the Claimant’s employment was stated as being to cover for certain staff members who were absent on sabbatical leave. According to Mr O’Malley, it was on that basis that the Claimant’s employment on a fixed-term contract was sanctioned. Her employment was terminated when the permanent lecture returned at the end of his or her sabbatical.

Mr O’Malley told the Court that a number of permanent members of the academic staff had been granted sabbatical leave but he did not know which of those staff members the Claimant was to replace. Nor did he have any direct knowledge of the teaching duties that the Claimant performed.

Ms Rosaleen McCarthy gave evidence. Ms McCarthy was the Acting Director of Human Resources at the material time. This witness gave evidence concerning the circumstances in which each of the Claimant’s fixed-term contracts came to be concluded. She said that each of the contracts were concluded to fill teaching vacancies which arose from the temporary absence of a permanent lecturer within the Respondent’s Department of Sociology.

It was Ms McCarthy’s evidence that the fixed-term contract into which the Claimant entered on 1^stJune 2012 was for the purpose of replacing a Dr Coulter who has been granted sabbatical leave. The Court was told that Dr Counter’s sabbatical leave ended on or about 30^thJune 2013 and he resumed his teaching duties. The Claimant’s contract expired on that date and was not renewed.

Ms McCarthy’s attention was drawn to a letter that she had sent to the Claimant dated 14^thJuly 2011 in which she stated that the reason for not offering the Claimant a contract of indefinite duration was the existence of the ECF. The witness told the Court that the content of the letter in question was taken from a standard template used for other purposes. She said that the letter’s content in so far as it placed reliance on the ECF alone in justifying the renewal of the Claimant employment for a fixed-term was inaccurate and the only reason for extending the Claimant’s fixed-term employment was to provide tuition to students during Dr Coulter’s absence.

Discussion
The legal principles applicable in this case have been reviewed earlier in this Determination. The decision inKiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamouindicates that, in general, the use of a fixed-term employment contract to meet the fixed and permanent needs of an employer will normally be regarded as an unlawful abuse. That general proposition was qualified inK�c�k v Land Nordrhein-Westfalenand again inSamohano v University Pompeu Fabra.In both cases the Court of Justice acknowledged that situations can arise in which workers are engaged in work that corresponds to the fixed and permanent needs of their employer but the circumstances under which the work is performed meets a purely temporary need. It held that in such circumstances the continuous use of fixed-term employment contracts can be justified.

The duration of the Claimant’s fixed term employment with the Respondent exceed four years.Prima facieshe became entitled to a contract of indefinite duration on that account by the combined effect of subsections (2) and (3) of s.9 of the Act. However, subsection (4) allows for the renewal of a fixed-term contract beyond the four year period normally permitted where there are objective grounds for so doing. Reliance on s.9 (4) is in effect a defence to a claim under the Act. Consequently, it is for the Respondent to make out that defence. The defence relied upon by the Respondent in this case is that the Claimant contract was renewed on 1^stJune 2012 for the purpose of meeting a temporary need caused by the absence of a named lecturer on sabbatical leave.

In advancing that defence evidence was proffered by two witnesses called by the Respondent. The Court found the evidence of Mr O’Malley of little probative value. He did not know who the Claimant had replaced or what teaching duties she had performed. In contrast, Ms McCarthy had a direct involvement in the decision to renew the Claimant’s employment for a fixed-term in July 2011 and again in June 2012. She testified that the reason for that decision was provide cover so as to facilitate Dr Coulter in taking sabbatical leave and to maintain the number of lecturers at the approved level during his absence. The Court accepts that Ms McCarthy gave honest evidence to the best of her recollection.

In seeking to rebut this evidence the Claimant sought to rely on various emails and other documents that tended to imply that the reason for her continued employment was other than that stated by Ms McCarthy. InRyanair v The Labour Court[2007] 18 ELR 58, the Supreme Court criticized this Court for purporting to make findings of fact based on documentary evidence in the face of conflicting oral evidence. In this case no testimony was tendered to refute the evidence given by Ms McCarthy.

The inconsistencies relied upon, and in particular the assertion in Ms McCarthy’s letter to the Claimant of 14^thJuly 2011 that the reason for not providing her with a contract of indefinite duration was attributable to the ECF may well connote a degree of carelessness that would not be expected from an employer such as a University. However, as was pointed out by O’Sullivan J. inMulcahy v Minister for Justice, Equality and Law Reform and v Waterford Leadership Limited[2002] E.L.R. 12, it cannot be held, as a matter of law, that a bad reason for an occurrence is not the real reason. Moreover, any inconsistencies in the documents relied upon by the Claimant were cogently explained by Ms McCarthy although it must be said that the reasons proffered could not be regarded as a good reason for what occurred.

The Claimant also relied upon the decision of this Court in Determination FTD1129,University College Dublin and a Worker, in advancing her claim and in particular the statement therein to the effect that simply naming two people that are absent on maternity leave in a fixed-term contract is not sufficient to prove that the Claimant was replacing either of those people. The relevant passage from the Court’s Determination is a follows: -

• The Court takes the view that simply naming two people that are absent on maternity leave in the fixed-term contract is not sufficient in itself to discharge the burden of proof that lies with the Respondent. It must also show that the work being undertaken by the person on that fixed-term contract of employment amounted to a genuine replacement of the two people on maternity leave. The Court takes the view that this might be either by way of a simple and direct assignment of the work of those on leave to the person who was contracted to replace them. Alternatively, it might be by way of a general reallocation of work within a group to match skill sets whilst the replaced personnel are on leave. However, whichever way is chosen, the employer must demonstrate the reality of the replacement to the Court in order to rely on Section 9(4) of the Act.

There is, however, no fixed or closed category of circumstances in which one worker can be properly classified as a replacement or substitute for another. The fundamental test will always be whether, viewed objective, the viability of the fixed-term employee’s role is dependent on the continued absence of another or whether he or she is occupying a freestanding post which corresponds to the fixed-and permanent needs of the employer.

Conclusion

Objective Justification
The Court has carefully considered all of the evidence tendered in the course of this appeal. There is an absence of clarity as to the underlying reason for the earlier fixed-term contracts concluded with the Claimant. It appears from the documents put in evidence that the first contract which commenced was for the purpose of replacing another academic who was taking sabbatical leave. However, the reason for the second fixed-term contract which commenced on 1^stSeptember 2009 is less clear. The documentary evidence relating to this post tends to suggest the principal reason for providing the Claimant with a fixed-term contract rather than one of indefinite duration was uncertainty concerning the funding for the post. The third contract, which commenced on 1^stSeptember 2010 was concluded in circumstances in which the Respondent came into funds for the purpose of undertaking a special project (referred to as “NIRSA). Two lecturers transferred from the Department of Sociology to work on this project and the Claimant was to act as replacement for one of them.

As previously noted it is the contract that commenced on 1^stJune 2012 that is material for present purposes. It is that contract that extended the Claimant aggregate fixed-term employment beyond four years. It is that contract that would have attracted the operation of s.9(3) of the Act unless it was saved by operation of s.9(4). Consequently, even if there were no objective grounds justifying the conclusion of the contacts which preceded that of 1^stJune for a fixed term (and the Court makes no such finding) that could not avail the claimant in advancing the within claim.

The contract that commenced on 1^stJune 2012 was, in effect, an extension of the contract which ran from 1^stSeptember 2011 until 31^stMay 2012 and for the same purpose as that latter contract. On the evidence the Court has come to the conclusion that the fixed-term contract into which the Claimant entered on 1^stJune 2012 (and that entered into on 1^stSeptember 2011) was for the purpose of replacing another lecturer, Dr Counter, who was absent on sabbatical leave. That earlier contract coincided with the departure of Dr Coulter and her final contract terminated on Dr Counter’s return. Both Dr Counter and the Claimant were involved in teaching duties in Respondent’s Sociology Department and the same number of lecturers were engaged in teaching duties in that Department both before and after the departure of Dr Counter.

The authorities indicate that while the renewal of a fixed-term contract in the type of circumstances arising hereinmaybe justified. But it remains for the national Court to determine if, on the facts of the particular case, the renewal in question was in fact justified by a legitimate objective and that the means chosen are appropriate and necessary for the achievement of that objective. As stated by Hedigan J inAn Post v Monohan & orsthe Court should ask itself 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.

On that point it seems clear that the provision of sabbatical leave is a desirable objective which brings benefits to both the University and the teacher who avails of the leave. During the period of leave the University must continue to provide tuition to its students and it must provide that tuition while recognising the right of the teacher on leave to return to his or her post at the end of the leave.

The Court has found as a fact that the Claimant’s employment was renewed on 1^stJune 2012 for the purpose of replacing Dr Coulter during the currency of his sabbatical leave. In these circumstances the Court accepts that her employment on a fixed-term contract was both appropriate and necessary to achieve the legitimate objective of providing tuition for the duration on that sabbatical. Accordingly the Court must hold that the renewal of the Claimant’s fixed-term contract for a further fixed-term was saved by s.9(4) of the Act.

Requirement to fill Permanent Posts by Competition
Having so found it is unnecessary for the Court to consider the Respondent’s alternative plea that it was prevented from providing the Claimant with a contract of indefinite duration by the general policy requirement to fill permanent posts by open competition.

Determination
For all of the reasons set out herein the Court finds that the Respondent did not contravene s. 9(2) of the Act in relation to the Claimant. The Respondent’s appeal is allowed and the decision of the Rights Commissioner is set aside.

Signed on behalf of the Labour Court



Kevin Duffy
CC______________________
4th June, 2014Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.