FTD1419

This is an appeal by Alma Wildes, represented by ASTI, against the decision of a Rights Commissioner (erroneously referred to as a “Determination”) in her claim under the Protection of Employees (Fixed Terms Work) Act 2003. In this Determination Gorey Community School is referred to as the Respondent and Ms Wildes is referred to as the Claimant.

The complaint was lodged with the Rights Commissioner on 17^thJuly 2013.

Facts

The Claimant is a teacher of maths and science. She has worked for the Respondent on a succession of fixed term contracts since 2007. She claims that her continued engagement on fixed term contracts contravened s.9(2) of the Act and that by operation of s.9(3) of the Act her employment became subject to a contract of indefinite duration.

The Claimant’s employment history is as follows: -

It is clear that the aggregate duration of the Claimant’s fixed term contracts exceeds four years. Hence, prima facie, there was a contravention of s.9(2) of the Act. The question then arises as to whether her continued employment for a fixed-term was justified by an objective reason within the meaning of s.9(4) of the Act. If it was not so justified the Claimant’s fixed term employment was transmuted to one of indefinite duration by operation of s.9(3) of the Act.

The fixed term contract entered into by the Claimant in 2011was for a 12 month period. At that point she had accrued an aggregate duration of 39 months fixed term employment. As that contract purported to extend her aggregate fixed term employment beyond four years it attracted the operation of s.9(3) of the Act and it became one of indefinite duration by operation of law unless it can be shown that there were objective grounds for its renewal for a fixed term. Consequently the only issue in this case is whether the renewal of the Claimant’s fixed term employment in 2011 was objectively justified.

Objective Grounds Relied Upon

The objective grounds relied upon by the Respondent for the renewal of the 2011 contract were set out by the Principal of the Respondent in a letter to the Claimant dated 13^thJune 2011. In relevant part this letter contains the following statement: -

• “This is a temporary fixed-term contract for the 2011 /2012 school year due to the following objective grounds: -
  • 
    •Your hours are available as we currently have two teachers on career break and eight teachers on job-sharing.

    •The Department of Education and Skills have advised me that as the Gorey Community School staffing allocation is currently in a supernumerary position we are prohibited from any PWT or CID appointments

    •The position is not viable in the long term as our enrolments and teacher allocations are decreasing due to the opening of a new second level school in Gorey in September 2011.”

The Law

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).

In order to make out a plea of objective justification the Respondent must first establish a legitimate objective to which the impugned measure is referable. It must then show that the means chosen are an appropriate and necessary means of achieving that objective. InAn Post v Monaghan & ors[2013] IEHC 404 the High Court, per Hedigan J, pointed out that in considering if a ground relied upon is an objective ground for the purpose of the Act the Court should ask itself the impugned measure (in this case employing the Claimant for a fixed-term) was the minimum unfavourable treatment necessary to enable the employer obtain its objective.

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

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

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

The Court held that the successive use of fixed term contract in the circumstances giving rise to the case could, potentially, be objectively justified. But the Court emphasised that the facts of every case should be closely examined by the national Court so as to ensure that the use of fixed term contracts in the circumstances prevailing is justified on objective grounds and that such contracts are not being used to meet the fixed and permanent needs of the employer (See paragraph 36 of the Judgment). The Court also pointed out that general and abstract reasons relied upon cannot be accepted as they do not relate to the precise and concreate circumstances of the work being performed and do not conform to the general principles relating to objective justification laid down by the Court inKiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou(cited above)

In Case C-190/13Samohano v University Pompeu Fabra[2014] IRLR 459, the CJEU referred again to the principal that, in general, fixed-term contracts are an inappropriate means of meeting what are in reality the fixed and permanent needs of an employer. At paragraphs 55 and 56 of the Judgment the Court said the following: -

• It should be borne in mind in that regard that the renewal of fixed-term employment contracts or relationships in order to cover needs which are, in fact, not temporary in nature but, on the contrary, fixed and permanent, is not justified under clause 5(1)(a) of the Framework Agreement (see, inter alia,K�c�k, paragraph 36).

  Such use of fixed-term employment contracts or relationships conflicts directly with the premise on which the Framework Agreement is founded, namely that contracts of indefinite duration are the general form of employment relationship, even though fixed-term employment contracts are a feature of employment in certain sectors or in respect of certain occupations and activities (seeAdeneler and others),

• 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.

By way of contrast, in Determination FTC1410,Athlone Institute of Technology and Maura McManus,the Court was satisfied that the renewal of a College Lecturer’s employment on successive fixed term contracts was justified on the basis that she was genuinely replacing a person who took a career break. In that case the Claimant was not undertaking precisely the same teaching duties as had been undertaken by the absent Lecturer. However, the Court found that the impugned renewal of the Claimant’s fixed term contract coincided with the departure of the permanent Lecturer and it was expressed to run until her expected return. The Court was also satisfied that the Respondent had engaged in a reorganisation of work within the department in which both the absent Lecturer and the Claimant worked resulting in the modules delivered by the Claimant replacing those previously taught by the person on career break.

Discussion

Is the Claimant Filling a Temporary Vacancy?

In this case the Principal of the Respondent told the Court in evidence that the Claimant’s employment was made possible because teaching hours had become available because permanent members of its teaching staff had either left on career break or had reduced their working hours through a job sharing arrangement. The Principal referred in particular to one teacher who had reduced her hours by 11 per week and these hours were allocated to the Claimant. However, there is no discernible connection between the work performed by that teacher and that performed by the Claimant. The renewal of Claimant’s fixed term employment in 2011 did not coincide with the other teacher reducing her hours. The Claimant taught different subjects to those taught by person on reduced hours. The Claimant had taught the same subjects since 2007 and the Respondent did not claim to have engaged in any reorganisation of the work such that the work which she performed could be regarded as a substitute for the work performed by the teacher who worked reduced hours.

The Claimant is a teacher of maths and science. Her work corresponds to a fixed and permanent need of the Respondent. While the Respondent holds the view that one of the teachers who is on reduced hours could teach those subjects there is no evidence to indicate if or when that person will resume full time work and there is the possibility that she may never do so. In that regard the Respondent accepted that in these circumstances the Claimant could, potentially at least, be retained on fixed term contracts well into the future if the continuance of the current arrangement with the other teacher were to be accepted as justifying the successive renewal of the Claimant’s employment for a fixed term.

The Court accepts, as it did inAthlone Institute of Technology and Maura McManus,that keeping a position open for a permanent employee who has a right to return can be a legitimate objective which an employer is entitled to pursue. However, there must be some reality in the likelihood of the absent person actually returning. As previously observed, there was no evidence proffered to indicate if or when the teacher on reduced hours will seek to resume full time work.

Proportionality

It is clear that the means chosen to pursue a legitimate objective must be appropriate and necessary in order to achieve the objective pursued. As was pointed out inAn Post v Monaghan & ors,that calls for consideration of questions of proportionality. As was pointed out by Hedigan J in that case, in considering if a ground relied upon is an objective ground for the purpose of the Act the Court should ask itself the impugned measure (in this case employing the Claimant for a fixed-term) was the minimum unfavourable treatment necessary to enable the employer obtain its objective.

It was pointed out on behalf of the Claimant that arrangements are now in place by which teachers who become surplus to requirements can be subject to compulsory redeployment to other schools within a radius of 50 kilometres. That would seem to be an obvious alternative means of addressing the situation that could potentially arise in the event of the teacher on reduced hours opting to resume full time work resulting in the Claimant becoming surplus to the Respondent’s requirements. No explanation was offered as to why that option would meet the objective that it is seeking to pursue.

Other Grounds Relied Upon

In the letter sent to the Claimant on 13^thJune 2011, the Respondent relied upon two other considerations for renewal of the impugned fixed term contract. The Respondent relies on advice which it received from the Department of Education and Skills relating to what is described as thesupernumerary positionof the school. This is a general and abstract reason which does not relate to the precise and concrete circumstances of the work being performed. Accordingly it cannot be accepted as an objective ground justifying the successive use of fixed term contracts. Reference was also made to the opening of another second level school in the Gorey area and its possible impact on teacher requirements of the Respondent school. Suffice it to say that the Claimant continues to be employed by the Respondent and it appears that the opening of this new school did not impact on either the number of students attending the Respondent school or its requirement for teachers.

Conclusion

For the reasons referred to herein the Court cannot accept that the renewal of the Claimant’s employment for a fixed term in 2011 was justified on objective grounds within the statutory meaning of that term. That contract purported to extend the aggregate duration of her fixed term contracts beyond four years. Consequently it contravened s.9(2) of the Act. In the absence of an objective ground justifying the conclusion of that contract for a fixed term s.9(3) of the Act operated to transmute it to one of indefinite duration.

It is the determination of the Court that the Claimant became employed by the Respondent on a contract of indefinite duration at the commencement of the school year 2011 /2012. All of the other terms of that contract, other than that providing for its expiry by effluxion of time are unaffected by this determination.

The within appeal is allowed and the decision of the Rights Commissioner is set aside and substituted with the terms of this Determination.



Signed on behalf of the Labour Court



Kevin Duffy
28th October 2014______________________
SCChairman



NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.