FTD1413

FULL RECOMMENDATION

FTC/14/3

DETERMINATIONNO.FTD1413

(R-129908-FT-13/EOS)

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

MOUNT ST MICHAEL SECONDARY SCHOOL
(REPRESENTED BY JOINT MANAGEMENT BOARD)

- AND -

MARIE NICHOLSON
(REPRESENTED BY SÉAMUS MONAGHAN & CO., SOLICITORS)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Shanahan

SUBJECT:
1. An appeal against a Rights Commissioner's Decision no r-129908-ft-13/EOS.

BACKGROUND:

2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 16th January 2014. A Labour Court hearing took place on the 9th May 2014. The following is the Labour Court's Determination:-

DETERMINATION:

This is an appeal by Ms Marie Nicholson against the Decision of a Rights Commissioner which found against her in respect of her complaint of penalisation under Section 13 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) and found that her claim under Section 10 of the Act was out of time.

For ease of reference the parties are given the same designation as they had at first instance. Hence Ms Marie Nicholson will be referred to as “the Complainant” and Mount St Michael Secondary School will be referred to as “the Respondent”.

The Complainant presented her complaint to the Rights Commissioner on 8^thJanuary 2013 alleging that she was penalised by the Respondent when it failed to renewher fixed term contract of employment. Furthermore, she alleged that the Respondent’s failure to notify her of a vacancy was in breach of Section 10 of the Act.

The Complainant has also taken proceedings the under the Unfair Dismissals Acts 1977 – 2001 in respect of the non-renewal of her fixed-term contract with the Respondent. That claim was made as an alternative to a claim under Section 13 of the Act and is currently on hold pending the outcome of the appeal before the Labour Court.

Background

The Complainant wasemployed bythe Respondent School to teach Language
Support/Englishasan Additional Language (EAL) on a fixed-term contract. She also covered for a permanent teacher on maternity leave cover teaching Learning Support, CSPE, SPHE and English to Leaving Cert level for the following number of hours each week:-

20^thOct 2008 - 31^stAug 2009:22 hours EAL
1^stSept 2009 - 31^stAug 2010 : 22 hours

[15 hours EAL + 7 hours English]

1^stSept 2010 - 31^stAug 2011: 22 hours EAL
1^stSept 2011 - 31^stAug 2012 :19 hours 40 mins

[12 hours EAL + 7 hours 40 mins maternity leave cover]

8^thOct 2012 - 31^stMay 2013 :22 hours covering maternity leave

On 13^thJune 2012 the Complainant was informed that her contract of employment would terminate on 31^stAugust 2012.

Summary of the Complainant’s Case

Section 13 Claim

Mr Séamus Monaghan, Séamus Monaghan & Co., Solicitors, on behalf of the Complainant, submitted thatthe termination of her employment with the Respondent constituted penalisation within the meaning of Section 13(1)(d) of the Act.

When the Complainant queried the availability of hours for the school year 2012/2013 she was advised that there would be no hours available for her. Sheraised the matter of her entitlement to a contract of indefinite duration (CID) but was informed that there were no EAL/Language Support hours available.

Shelater found out that a colleague, Ms A,had been granted a fixed-term contract for 2.5 hours per week to teach EAL/Language Support for the duration of the 2012/13 school year. Ms Ais a Home Economics and Biology Teacher and was employed on a contract of indefinite duration (CID) with the Respondent on a part-time basis and shehad nottaught nor was she qualified to teach EAL/Language Support.

The Complainant’s contract terminated with the School on 31st August 2012. However, she was re-employed from 8^thOctober 2012 covering for a Teacher who was on sick leave/ maternity leave absence to teach Learning Support,CSPE,SPHE and English to Leaving Certificate level.

When she became aware that 2.5 hours per week teaching in Language Support had been allocated on a fixed-term basis to a part-time Teacher she sought an explanation from the Principal. By letter dated 27^thNovember 2012 she wrote to the Principal enquiring why she was not allocated those hours. The Principal responded on 7^thDecember 2012 advising that the Department of Education and Skills (“the DES”) had not made any EAL allocation to Post-Primary Schools in 2012/2013 and as a result the School was not in a position to renew her fixed-term contract of employment.

This letter went on to say that when the School's overall timetable had been completed in August 2012 a small number of hours arising from the Special Needs allocation were available so the Principal decided to assign 2.5 hours per week for Language Support from the remaining Special Needs allocation to a part-time CID holder on a fixed-term basis.

Mr Monaghan contended that when it became apparent to the Principal that Language Support hours would be availablethey should have been offered to the Complainant. This was at a time when the Complainant was still under a contract of employment with the Respondent. He contended that if she had been awarded these 2.5 hours then in accordance with the provisions of Section 9(2) of the Act she would have become entitled to a CID under Section 9(3) of the Act.

He relied on the case ofThe Teaching Council v Kirwan(FTCI12115)wherethe Labour Court had regard to thetiming of the dismissalas wellas the continuing need for the work, among other factors, in determining that a breach of Section 13(1)(d) had occurred.

Mr Monaghan contended that the fact that these hours were assigned to Ms A showed that there was a continuing needforateacher of LanguageSupport. He made reference to the Respondent’s assertion that the Principal had to have regard to Department of Education and Skills Circular letter 0034/2009 which provides that unassigned hours may be offered to a part-timeCID holder on a fixed-term basis.
However,Mr Monaghan stated that the Circular goes on to state:

"In doing so, as with all teachingappointments, employers must haveregard tothe curricular needs of theschool and the qualifications required for thepost".

He said that Ms A was not qualified to teach Language Support whereas the Complainant was and had 35 years’ experience of doing so.

Mr Monaghan stated that the Complainant returned to the School on 8^thOctober 2012 on foot of a fixed-term contract to cover sick leave and maternity leave for Ms B who primarily taught Special Educational Needs in the School. However, for the school year 2012/2013Ms B was assigned Learning Support, Civic Social and Political Education,Social Personal and Health Education and also English to Leaving Certificate level although she had never taught English before. This he submitted was highly unusual and shows that there was a need for English Teachers in the School.

Mr Monaghan submitted that the actions of the Respondent in denying the Complainant the 2.5 hours per week of EAL/Language Support was purely done to circumvent the provisions ofthe Act and to deny her a CID.

The Complainant sought to be reinstated to her position as a Teacher ofEAL/Language Support/English with the Respondent School and be provided with a contract of indefinite duration for 19 hours 40 minutes teaching per week with effect from September 2012.

Section 10 Claim

Mr. Monaghan contended that the decision not to inform the Complainant of the fact that there was 2.5 hours per week available to teach EAL/Language Support/ English was in breach of Section 10 of the Act.Mr Monaghan stated that by not informing her of the vacancy which became available for 2.5 hours per week the Complainant was denied the opportunity to secure a permanent position.In support of his contention he relied on the case ofAer Lingus v A Group of Workers [2005] E.L.R. 261where the Court stated the obligation in Section 10 of the 2003 Act is:

"..not just to inform the employees in question of vacancies for permanent positions but of vacancies which may enable them to obtain permanent positions ".

Mr Monaghan referred to the fact that this statement was approved by the Labour Court inSt.Patricks Classical School v Frank O'Keeffe FTD1319.

Mr Monaghan submitted that when the Complainant lodged her initial complaint on 2^ndJanuary 2013 with the Rights Commissioner she had ticked the box on the Workplace Relations Complaint Form that states:

"Myemployer failed to inform me (a fixed-term employee) of opportunities for (a) permanent employment or (b) of appropriate training opportunities. "

Therefore, he submitted that as the Principal had only become aware in August 2012 of the availability of asmall number of hours arising from the Special Needs allocation, the claim was referred to the Rights Commissioner Service within six months and was accordingly in time under Section 14 of the Act.

Summary of the Respondent’s Position

Section 13 Claim

Ms Kara Turner, Joint Management Board, on behalf of the Board of Management of the Respondent School, submitted that the Complainant’s complaint that the Respondent deliberately took steps to avoid the Complainant’s fixed-term contract being turned into a CID had no validity. The Complainant’s contract terminated on 31^stAugust 2012 in accordance with its original terms entered into and signed on 28^thOctober 2011.

The Complainant was employed on fixed-term contracts from 2008 until 2012 and at all material times her employment was wholly funded by the Oireachtas and derived in each of the said years from the DES annual allocation to the School. Ms Turner said that each of the Complainant’s contracts of employment for the above-mentioned school years refers to the fact that they are on a fixed-term basis primarily by reason of the temporary allocation of posts/hours to the School by the DES. Each of those contracts was entirely based on the funding available.

In October 2012 an opportunity arose whereby the Respondentwas in a position to offer the Complainant substitute work and on a fixed-term contract of employment for Learning Support and English which derived from the approved absence on sick leave and subsequent maternity leave of a permanent member of its teaching staff. This was an entirely separate contract from the previous contracts and arose from a set of circumstances which were entirely unconnected to the Complainant’s previous contracts.

Ms Turner contended that the Complainant's claim of penalisation grounded on the termination and non-renewal of her fixed-term contract of employment as an EAL/Language Support Teacher with the School on 31^stAugust 2012 was inaccurate as the Complainant was in fact employed by the Respondent on a fifth fixed-term contract of employment in October 2012. Furthermore, she rejected any complaint that the Respondent acted unlawfully in terminating the Complainant's employment on 31st August 2012.

Ms Turner stated that the DES controls the allocation of teaching posts to Post-Primary Schools for a given school year by approving and funding a quota of teaching posts in a School by reference to student enrolment and additional temporary allocations which are dependent on school needs and corresponding DES resources. The appointment of the Complainant and the renewal of her employment on an annual fixed-term basis up until the 2011/2012 school year was, in the main, possible by virtue of the Department's approved annual additions to the Respondent’s quota of non-national/EAL hours.

Ms Turner said that the reduced allocation in Language Support and teaching English as an Additional Language formed part of the 2012 Government Budget cuts and received widespread publicity at the relevant time. Budget 2012 provided changes to the education budget including at Post-Primary Level. The Budget of 2012 made the following changes:-

“Learning Support and language support will be combined into a single allocation process. The combined resources available for learning support and language support (currently about 850 posts) will be used to create this single simplified allocation process.

The new arrangement will involve an allocation of 0.9 of as post for schools with an enrolment of less than 600 pupils and an allocation of 1.4 posts for schools with an enrolment of 600 or more pupils.”

As the Respondent had less than 600 pupils and had one whole-time post (Ms C) dedicated to Learning Support/Special Needs it was allowed to retain her services under the new Budget rules.

Furthermore, the Budget stipulated:

“Schools that currently have 2 temporary language support posts will be allocated 1 permanent post.

Schools that currently have 1 temporary language support will be allocated 0.5 of a permanent post.”

However, the School only had an allocation of 0.55 of a Language Support post in 2011/2012. This meant that there would be no such allocation to the School for Language Support in the school year 2012/2013 and in those circumstances the Complainant's fixed-term contract of employment duly terminated on 31^stAugust 2012 and was not renewed for the school year 2012/13.

The Principal advised the Complainant in or around January/February 2012 that it was unlikely the Respondent school would get a Department allocation for EAL/Language Support in the school year 2012/ 2013due to a cut in these resources to schools.

The allocation at issue in the present case is not to an individual Teacher but to the School and this is clear from Section 7(2) of the Education Act 1998 which provides for the Minister's functions as including:-

"(a) to provide funding to each recognised school and centre for education and to provide support services to recognised schools centres for education, students including students who have a disability or who have other special educational needs, and their parents, as the Minister considers appropriate ... "

Ms Turner stated that the manner in which the allocation of hours/posts in
Oireachtas-funded Post-Primary Schools is determined by the DES. The allocation of Oireachtas-funded teaching posts, both permanent and temporary/fixed-term, to each Post-Primary School is determined by the Minister for Education and Skills having regard to available resources. It is not open to the Respondent to recruit Oireachtas-funded Teachers in excess of its approved annual allocation from the DES.

In this regard, Ms Turner referred to Section 24(2) of the Education Act 1998 which states:-

"The numbers and qualifications of teachers and other staff of a school, who are to be paid from monies provided by the Oireachtas, shall be subject to the approval of the Minister, with the concurrence of the Minister for Finance.”

Ms Turner said that the Respondent accepted that there is a very real need within the school for Language Support/EAL for its students. However, due to the fact that the Departmental allocation had been withdrawn there was no specific Language Support resource available to enable the Respondent to employ a Language Support/EAL Teacher. Accordingly, the Complainant’s contract had to be terminated.

The timetabling exercise undertaken by the Principal of the School each year involves many variables including student enrolment, uptake of elective subject options, breakdown between higher and ordinary level subjects, allocation of SEN resources to the school/to specific students, the time allocated to each subject and banding of subjects on the timetable together with the requirement of the Respondent to maintain the timetables of its permanent staff members. It is not unusual that the final timetable schedule can present some unassigned hours.

Conscious of the need to provide Language Support/EAL if at all possible to the students in August 2012, on finalisation of the timetable for the school year 2012/2013,the Principal of the School realised that she had a small number of unassigned hours from the Department's special needs allocation to the School. Recognising that these were only available on an ad hoc basis she decided to offer one of the Teachers in the School who was on a CID a fixed-term contract for the school year 2012/2013 to teach Language Support/EAL for 2.5 hours per week.

Ms Turner submitted that it is the Principal's prerogative to use the resources available to the School to ensure that the educational needs of its students are identified and provided for and furthermore submitted that the Complainant did not have a right to these hours. This prerogative is given effect to in Sections 9 and 22 of the Education Act 1998 which provide that:-

Section 9

“A recognised school shall provide education to students which is appropriate to their abilities and needs and, without prejudice to the generality of the foregoing, it shall use its available resources to-
(a) ensure that the educational needs of all students, including those with a disability or other special educational needs are identified and provided for, ...

Section 22

(1) “The Principal of a recognised school and the teachers in a recognised school, under the direction of the Principal, shall have responsibility, in accordance with this Act, for the instruction provided to students in the school ...

(2) Without prejudice to subsection (1),the Principal and teachers shall-
(a)…..
(b)…..
(c)…..
(d) subject to the terms of any applicable collective agreement and their
contract of employment carry out those duties that –
- (i) in the case of teachers, are assigned to them by or at the direction of the Principal, and
  (ii)in the case of the Principal, are assigned to him or her by the
  board."

Ms Turner submitted that the assignment of 2.5 hours per week from the school's Special Needs Allocation for the school year 2012/2013 to Language Support teaching by a part-time CID Teacher was done having regard to the provisions of DES Circular Letter 0034/2009 which allows a school with unassigned hours to offer same on a fixed-term basis to a part-time CID holder with the objective of maximising the resources available to it. A fixed-term contract did in fact issue to the relevant Teacher in respect of the Language Support hours in question.

Ms Tuner stated that this contract was not renewed and that no employee was in fact issued with a fixed-term contract for Language / Learning Support in the following school year 2013/2014. All of the Respondent’s current Language/Learning Support needs are met by its permanent staff members.

Contrary to the Complainant’s contention Ms Turner stated that there was no requirement for a Post-Primary Teacher of Language Support to have a specific qualification in that area. She said that the Teaching Council does not register Teachers in the specific areas of SPHE, Learning/Language Support, Special Educational Needs and Career Guidance. Eligibility to teach in the foregoing areas is based on registration as a subject Teacher. It is a matter for the Principal to determine an individual Teacher's suitability to teach in one of these areas. She said that Ms A, who was offered the 2.5 hours in Language Support in 2012/2013,had commenced employment with the Respondent as a support Teacher in 2005 and therefore was qualified. The Principal assigned the 2.5 hours to this Teacher as her subject teaching timetable was not full and having regard to her previous teaching experience.

Ms Turner stated that the Respondent did offer the Complainant substitute work and then a fixed-term contract of employment in October 2012 in Learning Support, CSPE, SPHE and English which derived from the approved absence on sick leave and subsequent maternity leave of a permanent member of its teaching staff. She said that if the termination of the Complainant's employment on 31^stAugust 2012 was connected with the purpose of avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under Section 9(3) of the Act then it does not stand to reason that the Respondent would have offered the Complainant employment in October 2012.

In this regard Ms Turner referred to the case ofDITvMandy0'Neill
FTD 1233 wherein the Complainant was employed as a Technician on a specified purpose contract which expired on 11th June 2011 without its renewal. The Respondent had offered the Complainant further fixed-term employment from September 2011 until June 2012 as a Tutor/Senior Demonstrator but the Complainant had resigned on commencement of that contract. The Complainant contended that the failure of the Respondent to offer her a further contract as a Technician was to avoid her contract becoming one of indefinite duration and that this constituted penalisation
within the meaning of the 2003 Act. The Court in considering the claim of
penalisation stated as follows:-

"The Complainant contends that she was dismissed by the Respondent for the purpose of avoiding her fixed-term contract becoming one of indefinite duration. Such a contention does not sit easily with the fact that the Complainant continued in employment post the expiry of her specified purpose contract until her resignation on 29th August 2011."

Section 10 Claim

Ms Turner submitted that the Complainant’s complaint of a breach by the Respondent of Section 10 of the Act was out of time as it was not referred until 23^rdJuly 2013 when it was presented by way of a supplementary written submission to the Rights Commissioner and referred to events in August 2012.

Without prejudice to the foregoing, Ms Turner disputed any breach by the Respondent of Section 10. In support of her contention she also cited the case ofSt. Patrick's Classical SchoolvFrank O'Keeffeholding that Section10 of the Act does not apply to the facts of this case in circumstances where the 2.5 hours in respect of which the Complainant contends she ought to have been informed were temporary in nature and assigned to the other Teacher on a fixed-term contract basis for which there existed objective grounds. The 2.5 hours in question were clearly temporary in nature and there could have been no expectationthat these hours would subsequently become permanent nor did they.

Issues for consideration

In this appeal the issues before the Court are the Complainant’s contention that her employment came to an end in circumstances amounting to penalisation within the meaning of Section 13(1)(d) of the Act and that the Respondent was in breach of Section 10 of the Act in not informing her in relation to a vacancy which became available in July 2012.

Section 13(1) of the Act provides: —

(1) An employer shall not penalise an employee—
- (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,
  - (b) for having in good faith opposed by lawful means an act which is unlawful under this Act,
- - (c) for giving in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or
- - (d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

Section 13(1)(d) is in issue in this case. This renders unlawful a dismissal which is wholly or partly to avoid a fixed-term contract being transmuted to one of indefinite duration by operation of Section 9(3) of the Act. This raised the question of the motive or reason for the impugned dismissal. The avoidance of the fixed-term contract becoming one of indefinite duration need not be the only reason for the impugned dismissal. It is sufficient if it is an operative reason in the sense that ‘but for’ that consideration the dismissal would not have occurred.The Act is silent on the allocation of the burden of proof in cases grounded on Section 13(1)(d) of the Act. However, this Court has held that since the presumed fact in issue in such cases is the motive or reason for the dismissal it is a matter which is peculiarly within the range of the Respondent’s capacity of proof. In these circumstances where there isprima facieevidence to indicate that the Subsection has been contravened, what is known in the law of evidence as the ‘peculiar knowledge principle’ applies and it is for the Respondent to prove that the operative reason for the dismissal was not the avoidance of the Act (seeMahony v. Waterford, Limerick and Western Railway Co.[1900] 2 I. R. 273 per Palles CB and more recently in the dicta of Henchy JinHanrahan v Merck Sharpe and Dohme[1988] ILRM 629 and that of Hardiman J inRothwell v Motor Insurers Bureau of Ireland[2003] 1 IR 268).

Conclusion of the Court – Section 13 Claim

The case before the Court is whether or not the non-renewal of the Complainant’s fixed-term contract which terminated on 31^stAugust 2012 constituted a dismissal prohibited by Section 13(1) (d) of the Act.

The Complainant did not have the requisite four years’ service required under Section 9(2) of the Act to give her a CID by operation of law when her contract came to an end on 31^stAugust 2012. Therefore, Sections 9(3) and (4) of the Act can have no application.

Therefore, the Court must consider what was the motive or reason for the impugned dismissal. Why did the Respondent decide not to renew the Complainant’s employment in September 2012? The Respondent accepts that the non-renewal of the Complainant’s fixed-term contract on 31st August 2012 constituted a dismissal.

The Complainant was issued with contracts for the school years 2008/2009, 2009/2010 and 2010/2011 each of which contracts was headed “Fixed Term Qualified Teacher – concessionary/special needs/etc hours” and referred to the number of hours she was required to teach Language Support. The contract for the school year 2011/2012 stated that the objective grounds for the contract were“the EAL Allocation to the school by the DES”and she was also given 7 hours’ and 40 mins’ cover for a colleague on maternity leave.

It is clear to the Court that the decision to dismiss the Complainant came about as a result of Budget cuts in 2012 where, as a result of new DES rules, the Respondent had no allocation for Language Support/EAL in the school year 2012/13. Therefore, the decision was effectively out of the Respondent’s hands. It was made equally clear that no such funding was provided in the school year 2013/2014 either. In such circumstances the Complainant's position became redundant. Therefore the Court is satisfied that the reasons submitted by the Respondent are cogent reasons and accordingly finds the decision not to continue the Complainant’s employment beyond
31^stAugust 2012 was not for the purpose of avoiding her fixed-term contract becoming one of indefinite duration by operation of law.

The contention raised by the Complainant is that, upon discovering that there were 2.5 unallocated hours per week available from the Special Needs allocation, instead of offering these to another Teacher they should have been offered to her or at least she should have been invited to apply for them. The Complainant contended that if she had been informed and had been successful in her application that would have entitled her to claim a CID on the same terms as she previously worked, namely, 19 hours and 40 minutes per week. The Court cannot accept this contention.

The contract under which the Complainant was employed i.e. a contract specifically and separately funded by the DES came to an end in August 2012 when those funds dried up following the 2012 Budget. When the Principal discovered that she had 2.5 hours available to teach Language Support/EAL from her Special Needs allocation, this in the view of the Court was entirely unconnected with the decision to terminate the Complainant’s contract and therefore the Court is satisfied that the Principal’s decision to allocate those hours on a fixed-term basis to Ms A was within her prerogative when setting the timetable for the school year 2012/2013 and she had no obligation to re-employ the Complainant in those circumstances.

At the time the Complainant submitted her claim under the Act she was on a fixed-term contract of employment for the express purpose of providing cover for a named colleague on sick/maternity leave. The contract expired when its purpose was fulfilled on the return to work of that colleague on 31^stMay 2013. Hence the termination of the Complainant’s employment was unconnected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under Section 9(3) of the Act. Accordingly, there was no contravention of Section 13 of the Act.

Conclusion of the Court – Section 10 Claim

The Court is satisfied that the original complaint form referred to the Rights Commissioner 2^ndJanuary 2013 contained a reference to a claim under Section 10 and accordingly the Court is satisfied that the complaint was made in time within the terms of Section 14 of the Act.

The complaint related to an alleged breach by the Respondent of Section 10 in that it failed to inform the Complainant of a vacancy teaching Language Support/EAL which became available in August 2012 for 2.5 hours per week and therefore denied the Complainant the opportunity to secure a permanent position.

The Respondent contended that the 2.5 hours per week in question were temporary in nature and there was no expectationthat they would subsequently become permanent nor did they. Therefore it submitted that there was no vacancy within the meaning of Section 10 of the Act.

Section 10 (1) provides:

“An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees”

The objective of the provision is to enable fixed-term workers to have the same opportunity to secure a permanent position in their employment as that available to other workers. The language of this Subsection is a direct transcription of the language used in Clause 6 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP of 18^thMarch 1999 which is annexed to Directive 1999/70 and which the Act transposed into domestic law. Section 2(3) of the Act provides that a word or expression that is used in this Act and is also used in the Framework Agreement has, unless the contrary intention appears, the same meaning in the Act as it has in the Framework Agreement. The objective pursued by Clause 6 of the Framework Agreement and Section 10 of the Act is to facilitate fixed-term workers in obtaining permanent employment in the enterprise in which they work on the same terms as all other employees. Consequently, the ambit of the obligation which these measures impose on employers must be limited to the provision of information on such vacancies as may achieve that objective.

The Court is satisfied that there were no ‘vacancies’ to fill in this case and, in the light of the Budget cuts of 2012, there was no prospect that the 2.5 hours per week which were available on a temporary basis for the school year 2012/2013 would become a ‘permanent position’ as envisaged by the Act.

In all the circumstances of this claim the Court is not satisfied that there was a vacancy within the meaning of Section 10(1) of the Act and accordingly finds that the complaint is not well-founded.

Determination

For the reasons set out in this Determination the appeal herein is disallowed and the Decision of the Rights Commissioner is affirmed.

Signed on behalf of the Labour Court

Caroline Jenkinson
CR______________________
9th June, 2014Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.