FTD1412

In this Determination Dr Benson is referred to as the Claimant and the National University Maynooth is referred to as the Respondent.

This appeal was heard in conjunction with the Respondent’s appeal against a related decision of a Rights Commissioner in the case of Dr Theresa O’Keeffe and National University of Ireland Maynooth. In that appeal the Court has issued Determination FTD1411. The applicable statutory provisions and legal principles referred to in that Determination are equally applicable in this case and have been considered and applied in formulating this Determination.

Background
The Claimant commenced employment with the Respondent on 1^stFebruary 2007 pursuant to a fixed term contract expressed to run until 1^stSeptember 2007 (the first contract). Following the expiry of the first contract the Claimant entered into a further fixed-term contract on 2^ndSeptember 2007 (the second contract). That contract was expressed to run until 31^stAugust 2008.

The Claimant third contract commenced on 1^stSeptember 2008 and ran until 31^stAugust 2011. On the expiry of the third contract the Claimant was again reemployed for a fixed-term commencing on 1^stSeptember 2011 and ending on 31^stMay 2012 (the fourth contract). That contract was renewed on its expiry by a further fixed term contract which ran from 1^stJune 2012 to 30^thJune 2013 (the fifth contract). On the expiry of the fifth contract the Claimant’s employment was terminated on grounds of redundancy and she was paid a redundancy lump sum. It appears, however, that the Claimant has since been reemployed by the Respondent on a further fixed term contract. However, no issue arises in this appeal concerning that contract.

The Relevant Contract for the Purpose of the Claim
Before the Rights Commissioner and in their initial submissions to the Court both parties proceeded on the basis that if the Claimant’s fixed term employment transmuted to employment of indefinite duration, it occurred on the conclusion of the fourth fixed term contract on 1^stSeptember 2011. In the course of the hearing of the appeal the Court suggest to the parties that, having regard to the combined effect of subsections (2) and (3) of s.9 of the Act, it was the third contract that gave rise to a contract of indefinite duration unless the conclusion of that contract for a fixed term was saved by s. 9(4) of the Act. The parties were invited to make supplemental submissions on this point. They did so, in the case of the Claimant on 29^thApril 2014 and in the case of the Respondent on 2^ndMay 2014.

Both parties now accept that it is the third contract that is relevant for present purposes.

The Third Contract
The third contract was to fill a vacancy that arose for a post of Assistant Lecturer in the Respondent’s Department of Sociology. This post was expressed to be for a three year period. The Claimant applied for the post and following a competition in which six other candidates participated she was selected for appointment. At the time that this contract commenced, the Claimant had accrued 18 months of continuous fixed-term employment with the Respondent. Consequently, the conclusion of a further fixed-term contract for three years purported to extend the aggregate duration of her fixed-term employment with the Respondent beyond four years. It follows that it is this contract that contravened s’9(2) of the Act, if there was in fact a contravention of that section.

Purpose of the Third Contract
In relevant part the third contract provides as follows: -

• “Renewal of your employment is justified by the fact that further temporary work is becoming available and that funding is being provided to the University through SIF business unit number 255098 to support that work for a fixed period of three years. The University is unable to offer a contract of indefinite duration as the funding is being made available to the Department for a fixed period”.

It is noteworthy that the Claimant fixed term employment continued after the expiry of the project to which Dr Fagan had been appointed. In the first submission filed on its behalf, the Respondent claimed that the fourth contract was concluded for the purpose of facilitating Dr Fagan’s secondment to the post of Dean of Graduate Studies. It was also submitted by the Respondent that the fifth contract was for a similar purpose.

No oral evidence was adduced to explain the circumstances in which the Claimant came to be employed under her third contract. However, the Court was furnished with copies of email correspondence between the Respondent’s Human Resources Department and the then head of the Sociology Department, Dr O’Riain. Of particular significance is an email dated 11^thAugust 2008 from Dr O’Riain in response to a query from the Human Resources Department concerning a number of posts that were then being filled. Dr Riain was asked to indicate who the various appointees were intended to replace.

In relevant part Dr Riain replied as follows: -

• The three year ‘SIF post’ then goes to Dr Mary Benson as the leading candidate on the shortlist for the three year post. I have informed Dr Benson unofficially (given the pressure of time and planning) but she will need to receive formal notification. The ‘superior position’ Mary Benson has been offered [is] the SIF three year post,and is not a direct replacement for any individual.[Emphasis added]

There are, however, two other sets of email correspondence in the bundle of documents furnished by the Respondent which, it is claimed, paints a somewhat different picture. There is a copy of an email from Professor Mary Corcoran, of the Department of Sociology, to the Respondent’s Human Resources Department dated 29^thAugust 2008. This email is in the following terms: -

• Just to be clear-the two business numbers I received from Aphra and Jane, are they for [redacted]?

  Do you have a business unit number for Mary Benson. I know it’s SIF funding but we still need a business unit number before we can proceed”

The first email from the Human Resources Department to Mr Kitchin is in the following terms: -

• “I am hoping you can help me.

  Dr Mary Benson was successful in a competition for a three year contract post of Lecturer in Sociology which is being funded through SIF. Mary Corcoran indicated that the money is channelled through NIRSA. Would you have a business unit number in relation to this or could you direct me to the right person? We are just waiting on the business unit to issue a contract to Dr Benson”

• • “I am not sure who is in charge of the SIF2 funding- it’s either [redacted] or [redacted]. They told us we were successful in the SIF2 bid and to go ahead and recruit someone to deliver the component. That someone is Honor Fagan and she is being replaced in Sociology by Mary Benson. We do not have a NIRSA business unit for SIF2 set up as far as I’m aware and the money has not been transferred to us (I can’t check this until [redacted] is back on Wed). I do know the budget is €200K over three years. In the short term you can use account [number given] until we get one set up…..”
  
  
  

The Respondent contends that each of the vacancies that the Claimant was employed to fill arose from the temporary absence of another lecturer. It was the Respondent’s case that the filling of a temporary vacancy on a fixed-term contract is inherently justifiable on objective grounds. It was submitted that 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 told the Court that it is precluded from creating additional permanent posts without the sanction of the Department of Education and Skills by the ECF. It further submitted that it is required by that Framework to fill any post leading to a permanent increase in its headcount by open competition 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 takes 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 contract, 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.

The Union claims that the reference to the Claimant ‘replacing’ Dr Fagan in the emails of 29^thand 31^stAugust 2008 indicates an accountancy exercise designed to allocate funding from different sources to meet the wage costs of different people. It was submitted that this does not show that the Claimant was replacing Dr Fagan in any real sense.

The Law
The statutory provisions and legal principles applicable in the instant case are identical to those which fell for consideration in the related case of Dr O’Keeffe and NUIM. They are fully and comprehensively set out in Determination [Put in Number of that Determination] relating to that case and need not be reproduced here. However, of considerable relevance to the instant case is the passage quoted therein from paragraph 60 of the decision of the CJEU in C-190/13Samohano v University Pompeu Fabra(Unreported, 13^thMarch 2014). In that passage the national referring Court was enjoined to ensure that the teachers associated with the main proceedings were not in fact used to meet the fixed and permanent needs of the University. The Court said: -

• • “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”
  
  
  

• (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

The renewal of a contract for a further fixed term beyond the period normally permitted by s.9(2) can, of course, be saved where there renewal is justified on objective grounds. That arises from subsection (4) of s. 9 of the Act. However, subsection (4) of s.9 provides an employer with a defence to a claim based on the section. As in any case in which a party relies on a statutory defence it is for that person to prove the facts necessary to make out the defence.

The factual basis upon which the Respondent’s reliance on s.9(4) is grounded is that the Claimant’s third contract was for the purpose of providing cover for the temporary absence of a colleague. The Claimant does not accept that she was acting as a replacement for anyone. Whether or not the Claimant was in fact replacing another lecturer is a question of fact which can only be established on reliable evidence.

Various documents were put in evidence with the object of showing that the Claimant was replacing Dr Fagan at the material time. But that assertion appears to be contradicted by the email written by Dr O’Riain on 11^thAugust 2008, referred to earlier in this Determination. In that email Dr O’Riain stated, in what appear to be unequivocal terms, that the Claimant was not a direct replacement for any individual. That accords with the position advanced on behalf of the Claimant. It may be that Dr O’Riain was mistaken, or that he expressed himself in infelicitous terms. But that could only be explained by the author of the email. Dr O’Riain was not available to give evidence. Consequently, the Court cannot engage in speculation that Dr O’Riain meant something other what he said.

The content of the emails of 29^thand 31^stAugust are also relevant to this question. The Respondent relies on them as indicating that the Claimant was in reality employed to replace Dr Fagan. That is what Mr Kitchin said in his email of 31^stAugust 2008. However, that correspondence appears to have arisen in the context of a discussion concerning the budgetary allocation of funding to different activities. At best it indicates that certain funding that had become available to the Respondent was being used to meet the costs associated with the Claimant’s employment.

The source from which funding is derived for a particular post may be a relevant consideration if it indicates that the post is intended to meet a once-off or transient need of an employer, such as were a special project is being undertaken. However, in this case the correspondence upon which reliance is placed indicates that the Claimant’s was being appointed as a Lecturer in Sociology in the Respondent’s Department of Sociology. That suggests that the post in issue was intended to meet a permanent or core need of the Respondent. It appears that the appointment was made for a fixed term rather than on a contract of indefinite duration because of uncertainty concerning the continuing availability of funding rather than because the requirement for the post was temporary. That conclusion is consistent with the wording of the relevant provision contained in the third which is recited above.

What appears to be contended for by the Respondent is that Dr Fagan vacated her post in the Department of Sociology to work on a project for which the additional funding was intended. Rather than assigning the funding to that project it was used to cover the costs of employing the Claimant. That is suggestive of an accountancy exercise rather than indicating that the post to which the Claimant was appointed corresponded to a temporary need of Respondent or that its viability was dependant on the absence of Dr Fagan for a defined period.

The Respondent contends that the Claimant’s third contract was concluded to facilitate the redeployment of Dr Fagan to the project for which the SIF funding was received. It submitted that the post would only remain available to the Claimant until Dr Fagan returned. On this point it is significant that the Claimant remained in her post after the expiry of the third contract and that Dr Fagan did not return to teach in the Department of Sociology on the expiry of that contract.

It is settled that the existence of objective grounds for the renewal of a fixed term contract is to be judged by reference to the circumstances prevailing at the commencement of the contract (Russell v Mount Temple Comprehensive SchoolIEHC 533). In this case no evidence was tendered to support the Respondent’s contention that in August 2008 it was genuinely intended that Dr Fagan would return to her former teaching duties in the Department of Sociology or, if so, when she might return.

There is a further point made by the Union which merits consideration in this case. It was pointed out in the course of submissions that in or about June 2012 the Claimant was offered a contract of indefinite duration in her post and that this offer was subsequently withdrawn. The Respondent accepts that such an offer was made. The Court was not told why that offer was withdrawn. The Court accepts that this does not indicate what considerations were operating on the mind of the relevant decision makers in August 2008. But it does indicate that in June 2012, at least, there must have been some reason for believing that the post occupied by the Claimant corresponded to a continuing need of the Respondent. However, as already observed, there was no evidence before the Court from which it could objectively conclude that Dr Fagan’s departure from her teaching role in the Department of Sociology was expected to be temporary and that the Claimant’s third contract was intended to facilitate such a temporary absence.

Uncertainty of Funding
The Respondent’s submissions in this case raises the question of whether uncertainty in funding can give rise to objective justification for the use of a fixed term contract in the filling of a post that corresponds to the fixed and permanent needs of an employer. In the oft quoted passage from the decision of the CJEU in C-212/04Adeneler and Ors. V Ellinikos Organismos GalaktosIRLR 716 the Court pointed out as follows: -

• “[T]he concept of 'objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, 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.

  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.”

Conclusion
It is well settled in the jurisprudence of the CJEU that the fixed and permanent needs of an employer should normally be fulfilled by the use of permanent employment relationships (see Cases C-378/07 to C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071). It is also clear that the circumstances under which work that corresponds to an employer’s fixed and permanent needs is to be performed can provide objective justification for the use of fixed terms contracts. That would typically arise where a worker is engaged to provide temporary cover for an absent colleague.

The Claimant’s third fixed-term contract purported to extend the aggregate duration of her fixed term employment beyond four years. That could only have been lawful if it was justified on objective grounds. The objective grounds relied upon is that she was a replacement for Dr Fagan. The Claimant denies that she was a replacement for anyone. It is for the Respondent to prove as a matter of probability that the Claimant was a replacement for Dr Fagan and, in that context, that the conclusion of the third contract for a fixed term was objectively justified.

It is clear from the decision inSamohano v University Pompeu Fabrathat in a case such as this the Court must be careful to satisfy itself that the Claimant was not in fact used to meet fixed and permanent needs in terms of employment of teaching staff. On the evidence the Court cannot be so satisfied. The head of her Department, Dr O’Riain, appeared to believe that she was not replacing any individual. The other documentary evidence proffered indicates that references therein to the Claimant replacing Dr Fagan relate to the allocation of funding rather than any tangible correspondence between the post held by the Claimant and the absence of Dr Fagan. Moreover, while the Court was told that Dr Fagan has returned to the Sociology Department it is not suggested that the termination of the Claimant employment coincided with her return. In this case there is no firm or clearly discernable connection between the absence of Dr Fagan and the employment of the Claimant so as establish that the latter was a replacement for the former.

Determination
For all of the reasons set out herein the Court has reached the conclusion that the Respondent has failed to establish that the Claimant’s third contract was concluded for the purpose of providing cover for the duration of the temporary absence of any other person. In these circumstance it appears that the Claimant is entitled to succeed.

Accordingly, the Court must disallow the Respondent’s appeal and affirm the decision of the Rights Commissioner.

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.