FTD1417

Background

The Complainant was initially employed as a “Temporary Clerical Officer” on 6 February 2007. The letter of appointment dated 19 January 2007 states

“This is a specified purpose contract covering a staff member’s secondment to an Acting position within the Institute.

The Contract of Employment which was signed by the Complainant on 6 February 2007 states

“This is a Specified Purpose Contract. The Institute is offering you a Specified Purpose Contract covering a staff members acting role. When this acting post finishes your contract will cease.”

It is common case that the “acting post” finished sometime in mid-2008. Neither part could be any more precise regarding the date.

The Complainant’s employment was not terminated on the occurrence of that event. The Institute continued him in employment and he carried out the work assigned to him. No further contract of employment was issued to him at that time.

In January 2009 the Institute offered the Complainant a further “Specified Purpose Contract”. It states

“The Institute is offering you a Specified Purpose Contract covering an existing staff member who is seconded into another role within the Institute. When this staff member returns to their post, your contract will cease.”

The Complainant signed that contract on 30 January 2009. The Institute signed it on 3 February 2009.

The Complainant worked under that contract until 5 June 2013 when the Respondent notified him that his employment would cease on 7 July 2013 “in accordance with the terms of your contract of employment with the Institute.”

The Institute subsequently terminated his employment as notified.

The Complainant, on 22 July 2013 filed a complaint with the Labour Relations Commission under the Act. The Rights Commissioner conducted an investigation into the complaint on 12 November 2013 and issued his decision on 1 April 2013. The Respondent filed its appeal with this Court against that decision on 11 April 2014.

Complainant’s Position

The Complainant argues that he was employed to cover the secondment of a specific worker whom he identifies as AB. He states that he attended a meeting with the Respondent on 28 May 2013 at which he was advised that he had been appointed to provide cover for AB. He argues that when AB’s secondment ended his employment was not terminated. He argues that the Respondent is now seeking to substitute a different employee, JF for AB and to rely on the terms of the 2009 specified purpose contract to terminate his employment. He argues that the person referred to the 2009 contract cannot be substituted in this way. He argues that when the identified person’s secondment ended the contract was fulfilled and his employment after that date was no longer subject to its terms. He argues that he consequently became entitled to a contract of indefinite duration as he was employed on a contract employment that was not determinable “by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific”

He argues that the Respondent continued to treat him as a fixed term worker and accordingly it cannot now resile from that position.

Respondent’s Position

The Respondent states that the Complainant was employed in 2007 to replace an employee that was on secondment to another position. When that person’s secondment came to an end the Complainant was in 2009 given a further fixed term contract of employment to replace another employee, JF, for the duration of her secondment. It denies that it told the Complainant at a meeting on 28 May 2013 that he was providing cover for AB. It submits internal emails that it argues disclose a consistent paper trail in support of its contention that the Complainant was back filling for JF and not for AB. It argues the Complainant was all times aware of that and that his employment was terminated when JF’s secondment ended and she returned to her original substantive post.

The Law

Section 2 of the Act in relevant part contains the following provisions

• “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—
  • (a)employees in initial vocational training relationships or apprenticeship schemes, or
    (b)employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;
  • “permanent employee” means an employee who is not a fixed-term employee ;

Successive fixed-term contracts

• • 9.—(1)Subject tosubsection (4), where on or after the passing of thisActa fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
    
    (2)Subject tosubsection (4), where after the passing of thisActa 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 thisActis passed, the aggregate duration of such contracts shall not exceed 4 years.
    
    (3)Where any term of a fixed-term contract purports to contravenesubsection (1) or (2)that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
    
    (4) Subsections (1) to (3)shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.
    
    (5)The FirstSchedule to the Minimum Notice and Terms of Employment Acts 1973to2001shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

In this case the Complainant was initially employed in 2007 under a fixed term contract of employment “covering a staff members acting role.” The contract went on to state “When this acting post finishes your contract will cease.”

It is common case that the acting post finished in mid-2008. Neither party could put a precise date on it but is was agreed that it finished circa July 2008. At that point the specific event terminating the contract had occurred and the contract was fulfilled.

It is common case that the Complainant continued working for the Respondent. No further fixed term contract of employment was offered to the Complainant. Accordingly he was employed on something other than a fixed term contract after July 2008.

Section 2 of the Act makes provision for two types of employees

, a fixed term employee and

a permanent employee.

It defines a fixed term employee in the following terms

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event

It defines a permanent employee in the following terms

“permanent employee” means an employee who is not a fixed-term employee ;

It is common case that the Complainant’s fixed term contract of employment expired in July 2008. It is also common case that he was thereafter employed by the Respondent. Both parties accepted that he was thereafter working under a contract of employment that was not determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event. Accordingly he was not a fixed term employee at that time.

As the Act defines a permanent worker as an employee who is not a fixed-term employee, and as it is common case that the Complainant was not employed under a fixed term contract of employment, the Court must conclude that for the purposes of the Act the Complainant was at that point a permanent employee of the Respondent.

The Complainant was in 2009 offered a fixed term contract of employment. It states that the Respondent is offering the Complainant a “Specified Purpose Contract covering for an existing staff member who is seconded into another role within the Institute. When this staff member returns to their post, your contract will cease.”

However nowhere does that contract purport to change or reduce the Complanant’s status as a permanent employee within the meaning of the Act. Indeed the Respondent acknowledged in the course of the Hearing that it was not clear what the Complainant’s employment status was subsequent to the expiry of the 2007 fixed term contract of employment. At no point did it assert that it sought to diminish or alter that status. It appears that it was at all times operating on the assumption that the Complainant continued to be a fixed term worker after the expiry of the 2007 contract and before it offered him a further fixed term contract of employment in January 2009.

If the Court were to accept that his status was that contended for by the Respondent then it would have to find that the purported fixed term contract of employment under which he worked between July 2008 and January 2009 was one that did not have a termination trigger and that taken together with the 2007 fixed term contract would have constituted consecutive fixed term contracts of employment that exceeded 4 years duration. As the Respondent could offer no explanation for its decision not to offer the Complainant a contract of indefinite duration, as opposed to a fixed term contract of employment in July 2008, it cannot and did not seek to rely on Section 9(4) of the Act to justify such a decision. Accordingly the Court must conclude that he acquired a contract of indefinite duration by operation of law in July 2008. The fixed term provisions of the Contract issued to the Complainant in January 2009 infringe section 9(2) of the Act and in accordance with Section 9(3) of the Act have no effect.

If the Court takes the view that the Complainant was not working under a fixed term contract of employment after July 2008 then under the Act he was a permanent worker. As a permanent worker he would not have locus standii under the Act.

However the Respondent ignored that reality and treated him as a fixed term worker after January 2009 and issued him with a fixed term contract of employment. Having so done the Respondent then purported to terminate his employment on the termination of that fixed term contract.

In that context the Respondent could not seek to benefit from its own behaviour and deprive the Complainant of the benefit of permanency by treating him as a fixed term worker while simultaneously benefiting from his loss of locus standii under this Act. This is particularly the case where the Respondent has never acknowledged either his permanency under the Act or clarified his status after the 2007 contract expired.

The Court therefore concludes that the Complainant acquired a contract of indefinite duration with effect from July 2008. While the terms of that contract were not reduced to writing the Court finds that they were identical to that under which the Complainant was employed between 6 February 2007 and July 2008 save for the fixed term nature of that contract.

Remedy

The Court takes the view that the correct remedy in this case is to reinstate the Complainant into the post he held before his employment was terminated. Furthermore the Court takes the view that the Complainant should not suffer any financial loss as a result of his loss of income in the intervening period. Finally the Court takes the view that the Complainant should receive a measure of compensation for the infringement of his rights under the Act.

Determination
The Court determines that the Complainant acquired a contract of indefinite duration by operation of law in July 2008. The Court orders that the Respondent reinstate the Complainant without loss of income with effect from the date of the termination of his employment.

This Decision is substituted for the Decision of the Rights Commissioner.

The Court so determines.



Signed on behalf of the Labour Court



Brendan Hayes
CR______________________
6th October, 2014Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.