FTD1410

This matter came before the Court by way of an appeal by Athlone Institute of Technology against a decision of a Rights Commissioner in a complaint by Paula McManus made under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). In this Determination the parties are referred to as they were at first instance. Hence, Ms McManus is referred to as the Claimant and Athlone Institute of Technology is referred to as the Respondent.

Background

The Respondent is a third level education institute established by statute. The Claimant is a College Lecturer. The Claimant first entered employment with the Respondent on or about 24^thSeptember 2007 pursuant to a fixed-term contract. She was employed as a part-time Assistant Lecturer. The contract was expressed to run for the duration of the academic year 2007 / 2008. That contract will be referred to hereafter as the ‘first contract’

The first contract expired on 3^rdJuly 2008. In June 2008, during the currency of the first contract, the Claimant applied for a post as Assistant Lecturer in Accountancy with the Respondent. That vacancy had been advertised nationally. The Claimant was successful in that application. She was so informed by the Respondent on 29^thJuly 2008. The Claimant commenced employment pursuant to this contract on 1^stSeptember 2008. This contract will be referred to hereinafter as ‘the second contract’.

In relevant part the second contract provides: -

• Termination dateSubject to satisfactory service, this contract will terminate when the post holder returns to this position or leaves for any reason.

  It goes on to provide: -

  Nature of Position

  This is a fixed purpose contract covering for the post holder on Career Break. Subject to satisfactory service, this contract will terminate when the post holder returns to the position or leaves for any reason. Please note that as this is a fixed purpose contract it will not lead to a provision of a Contract of Indefinite Duration, regardless of the length of time the contract lasts.

Position of the Parties

The Claimant

The Claimant contends that she was employed on two successive / continuous fixed-term contracts for an aggregate duration of six years. She submits that as this duration of fixed-term employment exceeded four years the Respondent contravened s.9(2) of the Act in consequence of which her fixed-term contract was transmuted to one of indefinite duration by operation of s.9(3) of the Act.

The essence of the Claimant’s case is that, contrary to what the second contract asserted on its face, she was not employed as a replacement for Ms S or any other Lecturer. Rather, she contends, her employment was at all material times intended to meet the normal and fixed teaching needs of the Respondent and that she never acted as a substitute for any other teacher. The Claimant contends that her employment pursuant to the first and second contract was continuous within the statutory meaning of that term and any break in her employment between the two should properly be classified as a layoff.

The Claimant contends that the work in which she was engaged during the currency of the second contract was unrelated to the duties previously undertaken by Ms S. Documentary evidence was provided which purported to show that the teaching duties undertaken by the Claimant were the same as those which she undertook during the currency of the first contract. There is no suggestion that the Claimant was acting as a substitute for any other lecturer during the currency of the first contract.

The Respondent

The Respondent took two points in defence of the Claimant’s case. Firstly, it contends that there was no continuity between the first and second contract. It submitted that on the completion of the first contract the Claimant’s employment terminated by dismissal on its expiry without renewal. The second contract was filled by an open competition in which the Claimant was successful. According to the Respondent, neither it nor the Claimant could have known with any probability that she would be successful in that competition. Consequently, it was submitted, the break in the Claimant’s employment between the first and second contract could not be classified as a layoff as that term is statutorily defined. It contends that the Rights Commissioner erred in construing the break as such. Based on that submission the Respondent contends that the Claimant was not employed on two or more continuous fixed-term contracts and that her employment did not come within the ambit of s.9(2) of the Act. The Respondent also contends that there were material differences in the job which the Claimant held under the first contract and that which she held under the second contract. These differences, it contends, were such that the second contract could not be considered as a ‘renewal’ of the first contract.

In the alternative the Respondent submitted that the continuance of the Claimant’s fixed-term employment beyond the four years normally permitted by s.9(2) of the Act was justified on objective grounds and was thus saved by s.9(4) of the Act. The objective grounds relied upon are that the Claimant was at all material times employed as a replacement for a permanent post holder who was on a career break and that her engagement on a fixed-term contract was both appropriate and necessary in order to facilitate the eventual return of the permanent post holder.

In dealing with the Claimant’s contention that her duties were not the same as those formally performed by Ms S, the Respondent asserts that the allocation of teaching duties is a matter for the head of the relevant department and can vary from year to year. It contends that the Claimant was employed as a Lecturer in accountancy and that Ms S was employed in a similar capacity. In essence, the Respondent’s case is that had Ms S not been on a career break she would have undertaken the duties undertaken by the Claimant.

Continuity of the Claimant’s Employment

The first submission advanced by the Respondent raises questions concerning the duty of this Court, in European law, to interpret the Act in light of the wording and purpose of Directive 1999/70/EC so as to produce the result envisaged by the Directive.

This question has been considered by the Court previously inWilliam Beary v Revenue Commissioners[2011] 22 ELR 137 and in the earlier case ofDepartment of Foreign Affairs v A Group of workersELR 332. In both cases this Court gave extensive consideration to the dichotomy between the language of Clause 5 of the Framework Agreement on Fixed-Term Work annexed to Directive 1999/70/EC, which applies to the ‘successive’use of fixed-term contract and the wording of s.9 of the Act which applies to‘continuous’fixed-term employment. The problem caused by this dichotomy was extensively considered by the Court in both of the aforementioned cases and it is unnecessary to repeat conclusions reached by the Court therein. Suffice it to say that in both cases the Court found that it was possible to construe breaks in the employment of the Claimants as layoffs which did not have the effect of breaking the continuity of their employment.

Layoff

In this case the Rights Commissioner followed the decisions of this Court in Departmentof Foreign Affairs v A Group of Workersand inWilliam Beary v Revenue Commissionersin holding that the period between the Claimant’s first and second contract was a layoff. The Claimant now relies on both cases in advancing her submissions in this appeal.

A layoff is defined by s.11(1) of the Redundancy Payments Act 1967, as follows: -

• 
  11.—(1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—
  • (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

    (b) the employer gives notice to that effect to the employee prior to the cessation,

  that cessation of employment shall be regarded for the purposes of this Act as lay-off.

Dismissal followed by Immediate Reemployment

An approach that could also be taken so as to reconcile the dichotomy between the wording of the Directive and that of the Act would be to ascribe an extended meaning to the terms ‘immediately reemployed’ as it appears at Rule 6 of the definition of continuous employment in the First Schedule to The Minimum Notice and Terms of Employment Act 1973-2001. In applying the Unfair Dismissals Act 1977 - 2005, the Employment Appeals Tribunal have been prepared to interpret the word ‘immediate’ in a liberal fashion and have overlooked short breaks for the purpose of determining if an employee has one years’ continuous service so as to come within the ambit of that Act. InKenny v Tegral Building Products Limited[2006] E.L.R. 309the EAT held that an employee who was dismissed and reemployed within a month was continuously employed for the purposes of the Unfair Dismissals Act 1997. But it appears that the decision of the Tribunal was influenced by its belief that the dismissal was being used as a device to avoid the application of the Act. Nevertheless, Rule 6 of the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2011 does provide scope for construing successive periods of employment as being continuous within the statutory meaning ascribed to that term.

Application in the Instant Case

In BothWilliam Beary v Revenue CommissionersandDepartment of Foreign Affairs v A Group of Workersthis Court held that breaks in the Claimants’ employment of varying duration could properly be regarded a periods of layoff. In both cases the Claimants were casual workers who were members of a panel from which they were provided with work as and when required. On each occasion on which their employment ended they returned to the panel with the expectation of recall.

That is not the position in the instant case. The uncontested evidence is that the first contract ended on or about 19^thJuly 2008 and the Claimant had no entitlement to further work at that time. However, she applied for an alternative position that had become vacant before 19^thJuly. She submitted an application for that post on 18^thJuly 2008 and she was interviewed on 21^stJuly 2008. She was informed that her application was successful on 29^thJuly 2008. She commenced working for the Respondent pursuant to the second contract at the commencement of the next academic year which commenced on 1^stSeptember 2008.

The essential rationale for the decisions inWilliam Beary v Revenue CommissionersandDepartment of Foreign Affairs v A Group of Workerswas that the use of a panel gives rise to an expectation of further employment and that when one assignment ended the employer must have anticipated the probability of the workers in question being reemployed. The different factual matrix in the instant case significantly diminishes the precedent value of these cases. Unless it could be shown that, at the time the first contract came to an end, the Respondent anticipated that it was at least probable that the Claimant would be successful in her application for the second post the reason for the decision in both cases is inapplicable in the instant case. There was no evidence to that effect before the Court.

There is, however, another case to which the Court was referred in which the facts are somewhat similar to those of the instant case. Determination FTD1315National Parks and Wildlife Service and Shane Dunnealso involved a break in the Claimant’s employment between the end of one contract on 31^stDecember 2008 and the commencement of another contract in May 2009, which had been filled by an open competition in which the Claimant was successful. In that case the Claimant was a seasonal worker whose pattern of employment was consistent over the duration of his engagement with the Respondent. The Claimant was on a panel from which seasonal workers were drawn. The panel was renewed in May / June 2009 following a public advertisement and a competition. The Court found that the period between 31^stDecember 2008 and June 2009 was one during which the Claimant would not normally have worked. In finding that the Claimant’s employment was continuous the Court accepted that the Claimant was laid off at the end of 2008 in keeping with the normal pattern of his employment. It found that he was reemployed in June 2009 when work again became available, albeit on a reconstituted panel. The Court did not attach any significance to the fact that the Claimant had to apply for inclusion on the reconstituted panel and undergo a selection process involving an interview. That case, however, again concerned workers who were drawn from a panel for seasonal or casual work and were placed back on the panel after each assignment. That was not the position in the instant case.

Was the Claimant laid-off?

In the Court’s view it would be going too far on the facts of the instant case to construe the period between the ending of the first contract and the commencement of the second contract as one of layoff. The ending of the first contract without its renewal had all the appearances of a dismissal. The Claimant applied for another vacancy that had arisen which was to be filled by open competition. There is nothing in the evidence before the Court from which it could reasonably be inferred that the Respondent knew or ought to have known that the Claimant would be appointed to the post. Nor is there anything in the surrounding circumstances from which such an inference could be drawn.

In these circumstances the Court has concluded that the period between the first and second contracts cannot be construed as one of layoff.

Was the ending of the first contract followed by immediate reemployment?

If the ending of the first contract and the commencement of second contract cannot be construed as a layoff, the ending of the Claimant’s first contract without it being renewed was a dismissal. As previously observed, for the purpose of the First Schedule of the Minimum Notice and Terms of Employment Act 1973, a dismissal severs continuity of employment unless it is saved by Rule 6 of the Schedule (dismissal followed by immediate reemployment).

If the Claimant was dismissed the dismissal occurred on or about 19^thJuly 2008 when she last worked for the Respondent. She was offered further employment on 29^thJuly 2008 and presumably accepted that offer on or about that date. As a matter of law a contract comes into being where there is an unconditional offer followed by an unconditional acceptance of the offer. Except in limited circumstances which are not here relevant (for example contracts dealing with land and real estate) a verbal contract is perfectly enforceable. Consequently a contract of employment came into being between the Claimant and the Respondent as soon as she accepted the offer of employment. On this construction the document which was signed by the parties was merely a written record of the contract which came into being on the date of acceptance of the offer of employment.

Such a conclusion is supported by the facts. The Claimant commenced employment pursuant to this contract on 1^stSeptember 2008. That was the first possible date on which she could have commenced her duties. There is no evidence to indicate when this document was proffered to the Claimant. But it is clear that she signed it on 9^thSeptember 2008. It is also clear that the contract was only signed on behalf of the Respondent on 6^thOctober 2008 (wrongly dated as 06/10/01]. That raises the question as to the legal basis for the Claimant’s employment between the date on which she started working for the Respondent, namely 1^stSeptember 2008 and the 6^thOctober 2008 when the written contract was concluded.

These facts support the conclusion that the Claimant entered into a contract with the Respondent on or about 29^thJuly 2008 to work for the Respondent and the contract then came into being. The College was closed for the summer holidays and her employment could only commence on its reopening on 1^stSeptember 2008. Likewise, when the Claimant accepted the Respondent’s offer of employment the parties became contractually bound to do that which they had agreed to do. If the Respondent had withdrawn the offer of employment after it had been accepted the Claimant could have had a cause of action either for unfair dismissal or for breach of contract.

In these circumstances the Court holds that the Claimant was reemployed on or about 29^thJuly 2008. That was some ten days (eight working days) after the termination of her first contract. Accordingly the Court holds that the expiry of the first contract amounted to a dismissal but that the Claimant was immediately reemployed on the second contract, thus preserving the continuity of her employment. This construction ensures that the Act and the Directive can be construed in harmony on the facts of the instant case.

Was the Claimant doing the same job intermittingly?

The Respondent contends that the Claimant was doing a different job under the second contract than that which she performed under the first contract. That contention is based on the proposition that she was an hourly paid part-time Lecturer under the first contract whereas she was a pro-rata salaried Lecturer under the second contract. This, according to the Respondent, meant that the second contract could not be regarded as a renewal of the first contract.

There are frailties with this line of argument. 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.

Objective Justification

The net point arising on this aspect of the case is whether the second contract was in reality for the purpose of replacing Ms S during the currency of her career break. The Claimant contends that the approach previously adopted by the Court in considering if one employee is a replacement for another was to look at the duties performed by the absentee and compare them to the duties performed by the putative replacement. In advancing that submission the Claimant relies on the Determinations of the Court in Determination FTD1129 inUniversity College Dublin and aWorkerand Determination FTD1329,Dun Laoghaire VEC and White.

The Respondent submitted that on the facts of the instant case the specifics of the teaching duties of Lecturers are decided from time to time by the head of the relevant Department. It contends that the Claimant was employed as a Lecturer in Accountancy and that Ms S was likewise employed in that capacity. In so far as the Claimant was engaged in teaching different aspects of that subject than those taught by Ms S, this arose because the Respondent decided that the direction of the course should be modified. The Respondent submitted that if Ms S had remained in employment she too would have been assigned to teach those subjects.

The Respondent contends that previous Determinations relied upon by the Claimant in fact supports its case when considered as a whole.

Previous Cases

In light of the submissions advanced by the parties the Court has carefully examined the decision of this Court in Determination FTD1129 inUniversity College Dublin and aWorker and Determination FTD1329,Dun Laoghaire VEC and Whiteto see what, if any, precedent value they have in the instant case.

University College Dublin and a Worker

The decision inUniversity College Dublin and a Workerwas relied upon by the Rights Commissioner in reaching her decision. The Respondent did not argue that this case was wrongly decided. Rather it argued that it in fact supported its position. The Respondent relies on the underlined language used in the following passage that appears in this decision: -

• 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.[Emphasis added]

In this case the evidence established that there was a relationship between the work performed by the Claimant and that performed by the absentee in that they were both lecturers in Accountancy. Furthermore, the Court accepts that the Respondent did engage in a general reallocation of the work in the Department in question. Accordingly the Court accepts as a fact that there was a reallocation of teaching duties within the relevant Department. The Court also accepts that there was a clearly discernable relationship between the work performed by the Claimant and that performed by Ms S in that they both lectured in Accountancy.

On these findings the instant case andUniversity College Dublin and a Workercan clearly be distinguished on their respective facts.

Dun Laoghaire VEC and White.

In this case the Claimant was employed on a succession of fixed-term contracts from 2003. The Respondent contended that each of the contracts was justified on the basis that she was replacing other members of staff who were either on maternity leave, a career break or engaged in work-sharing. The relevant contract, for the purposes of applying s.9(4) of the Act, was one that came into being on 1^stSeptember 2006. The Court found that the Respondent had failed to show objective grounds for the conclusion of that contract for a fixed-term.

In approaching its decision the Court looked at the content of the duties performed by the Claimant and those performed by the person whom she reputably replaced. It found that the absentee had 18 class contact hours 12 of which were transferred to the Claimant. The Claimant worked 22 hours per week. The Court found that the Respondent had failed to explain the difference in the hours worked by the Claimant relative to the teaching hours worked by the absentee. The basis for the decision is encapsulated in the following passages of the Determination.

• The Court has examined the extensive documentary evidence together with the respective submissions of each party. The Court finds that the Complainant was employed in 2004/05 to replace a teacher who was on a career break. That teacher worked 22 hours per week 18 of which were class contact hours. The Complainant therefore was required to replace the 18 class contact hours left vacant by the teacher on career break. The Complainant was employed for 22 hours per week however. The Respondent did not adequately explain this discrepancy in hours.

  It submitted that it was permitted to employ the Complainant on a 22 hour contract and did so. It took advantage of the administrative flexibility in the system. However such an administrative arrangement does not meet the test set out by the CJEU that the employer seeking to rely on the defence of objective justification must demonstrate that the decision made and actions taken by it are necessary for the purpose. If the requirement was to replace Ms C’s class contact hours then there was a requirement for no more than 18 hours per week. The balance of 4 hours was not necessary for that purpose.

  It was suggested that another teacher may have been assigned the Assistant Principal role thereby giving rise to four additional hours that may have been assigned to the Complainant. However no evidence to this effect was presented to the Court. This Court has consistently held that mere assertions are not sufficient to discharge the burden of proving each aspect of the defence on which the Respondent seeks to rely.

• The Court has also examined the timetable worked by the Complainant. The Respondent submits that in 2004/2005 the Complainant was assigned 12 hours from Ms C’s timetable. That teacher had 18 class contact hours. The Respondent did not explain what arrangements were made in respect of balance of the six hours that were not assigned to the Complainant. 10 hours of subjects/classes that were not part of Ms C’s timetable were assigned to the Complainant. The Respondent has not explained to the Court where or how these hours arose that year.

  The Respondent states that Ms C was qualified to teach those subjects. However that is not the question at issue. In 2004/05 close on 45% of the hours allocated to the Complainant did not come from the timetable of the teacher she was replacing. By 2006 the figure was well in excess of 50% of the hours she was allocated.

  The Respondent seeks to justify the allocation of hours on the basis that the teacher the Complainant was employed to replace while on leave of absence was qualified to teach those hours and that school curricula and courses change from year to year.

  Neither of those submissions adequately explain the initial decision to employ the Complainant for 22 hours to replace a teacher whose class contact hours were 18, or to assign to the Complainant only 12 of Ms C’s hours or to assign her 10 hours in her first year and more than 10 hours of subjects and classes in each successive year including 2006/07 that Ms C had never taught though qualified to do so.

Objective Justification – the Legal Principles

There is a considerable body of jurisprudence in both European and domestic law on how the notion of objective grounds encapsulated in s.7 of the Act should be applied. In Joined Cases C-378/07 to C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071, the Court of Justice of the European Union (CJEU) held, at paragraph 96: -

• 
  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 if the impugned measure (in this case employing the Claimant for a fixed-term) was the minimum unfavourable treatment necessary to enable the employer obtain its objective.

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.

The facts of this case can be summarised as follows: -

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 Spanish Court.

The CJEU 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).

The decision inKiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamouremains of great importance in that it set down the basic criterion for deciding if the use of a fixed-term contract is appropriate. Such contracts are not appropriate if the work to which they relate corresponds to the fixed and permanent needs of the employer. The Claimant in the instant case was employed to teach and that corresponded to the fixed and permanent needs of the Respondent. But the decision inAngelidakiwas 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.

It would appear that where a worker is employed to cover the temporary absence of another the use of a fixed-term contract for that purpose is inherently justified.

Conclusion

In essence this case comes down to a question of fact – was the Claimant in reality employed to replace Ms S during her temporary absence or was she not. Both the contract itself and all other documentation put in evidence indicate that the Claimant was employed because Ms S took a career break. The filling of the job coincided withMs S’sdeparture and it ended on the expiry of the career break. While the Claimant taught different modules than those taught by Ms S they were both lecturers in Accountancy and they taught students of Accountancy. The number of teachers remained the same before and after Ms S’s departure. On these facts the Claimant had all the appearances of a replacement.

What the Claimant in this case is contending for is that the teaching duties which she undertook were unrelated to those undertaken by Ms S and were not intended to meet a temporary need of the Respondent. In support of that contention she points out that she was engaged in delivering the same modules while engaged on the first contract as those that she delivered on the second contract. She also points out that some of the modules that she taught were never taught by Ms S. The gist of her case is that the Respondent had a fixed and permanent need for a teacher in those modules in consequence of which the use of a fixed-term contract to deliver that teaching was unjustified. The Respondent argues that both were teachers of Accountancy and that the difference in the subjects taught is explained by the evolution of the course. The Respondent made the point that had Ms S not been on a career break she would have been required to teach these subjects.

Having considered the evidence as a whole the Court has come to the conclusion that it is more probable then not that had Ms S not taken a career break there would have been no vacancy for the Claimant to fill. Moreover, the Court is also satisfied that when the second contract came into being it was objectively clear that the vacancy filled by the Claimant would subsist only during the currency of Ms S’s absence. Under the terms of the career break Ms S had a right to return to work on the termination of the career break. At the time the second contract was concluded the Respondent had no reason to believe that Ms S would not exercise that right.

The decision of the High Court inRussell v Mount Temple Comprehensive Schoolmakes it clear that the existence of objective grounds justifying the renewal of a fixed-term contract is to be ascertained by reference to the circumstances prevailing at the time the impugned contract is renewed. The judge pointed out that if a fixed-term contract is lawful at the time of its conclusion it cannot be subsequently rendered unlawful by the occurrence of some unforeseen intervening event. Consequently, the facts that Ms S subsequently decided not to return to her former post could not affect the lawfulness of the renewal of the Claimant’s employment for a fixed-term if it was genuinely concluded for the purpose of filling what was expected to be a temporary absence.

Having regard to the totality of the evidence before it, the Court is satisfied that the Claimant’s second fixed-term contract was concluded for the purpose of filling a temporary vacancy caused by Ms S taking a career break. The provision of career breaks to the staff of the Respondent is a desirable objective which can have important social benefits. The Institute must continue to provide tuition to its students during the currency of the career break and it must do so in a way that recognises the right of the person on leave to return to his or her post at the end of the leave. In that regard it seems to the Court that if the Respondent could not fill temporary vacancies created by an employee availing of a career break on a fixed-term contract, it is highly probable that this facility would not be made available to its employees.

The Court has found as a fact that the Claimant’s employment was renewed for a fixed-term for the purpose of replacing Ms S during the currency of her career break. 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 career break. 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.

Determination

For all of the reasons set out herein the Court finds that the Respondent did not contravene s.9 of the Act in relation to the Claimant. In these circumstances the Court must allow the Respondent’s appeal and the decision of the Rights Commissioner is set aside.

Signed on behalf of the Labour Court



Kevin Duffy
CC______________________
21st May 2014Chairman



NOTE

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