UD114/2012, MN60/2012, RP87/2012, WT29/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                 CASE NO.

Muireann O’Farrell                                                                                          UD114/2012

- claimant                                                                                                         MN60/2012

                                                                                                                        RP87/2012                      

                                                                                                                        WT29/2012

Against

County Dublin Vocational Educational Committee

- respondent

under

MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005

UNFAIR DISMISSALS ACTS, 1977 TO 2007

REDUNDANCY PAYMENTS ACTS, 1967 TO 2007

ORGANISATION OF WORKING TIME ACT, 1997

I certify that the Tribunal

(Division of Tribunal)

Chairman: Ms. P. McGrath BL

Members: Mr. C. Lucey

Mr. J. Maher

heard this claim at Dublin on 16th May 2013

Representation:

Claimant(s) :                   Ms. Claire Bruton BL instructed by:

                                       Dermot Casserly, Beauchamps Solicitors, Riverside Two,

                                       Sir John Rogerson’s Quay, Dublin 2

Respondent(s) :              William Egan & Associates, Malt House Square, Bow Street, Smithfield,

                                        Dublin 7

Submissions were requested by the Tribunal by both parties in this matter.

Claimant’s Position:

Read into evidence by the claimant’s representative Claire Bruton BL on the 16th May 2013.

Opening Submission:

The claimant resumed her employment with the respondent in October 2008 and was employed as a part time tutor of food, catering and nutrition until the date of termination of her employment on 2 September 2011. The claimant worked 12 hours a week on the basis of a four day week. The claimant was placed in a centre called the Priory Youthreach and taught students FETAC level three who were early school leavers. Effectively the centre was a centre for further education and this is reflected in the title of the claimant as a tutor.

At the commencement of her employment, the claimant was furnished with a contract of employment on 12 December 2008 (some six weeks after the commencement of her employment) for the period of 28 October 2008-30 January 2009. This contract was not signed by either the claimant or the respondent. At its cessation on 30 January 2009, the claimant was not provided with any further contract be it fixed term or permanent and continued undertaking her duties of employment under the same terms and conditions of employment as she had since her commencement of employment at the Priory Youthreach. In a letter to the claimant's solicitors of 9 September 2011 from Mr Ken Smartt Regional Co-Ordinator of the respondent (after the termination of her employment), the respondent asserts that her contract was "extended via timesheets submitted and authorised to the end of the Youthreach academic year. Murieann was re-engaged for the 2009/2010 academic year and again from the 2010/2011 academic year." It appears that it is alleged that contracts were not provided. However this is inconsistent with the assertion that the claimant's employment was extended via timesheets. Therefore for the period of 1 February 2009-28 September 2010 (when the claimant was furnished with a purported fixed term contract of employment), the claimant worked and continued in the absence of any renewal of her contract of employment and no correspondence was furnished to the claimant extending her contract of employment.

STATUS OF CLAIMANT

It is submitted that the result of this mismanagement and significant gaps in contracts of employment provided to the claimant was that the claimant was employed on a permanent contract or contract of indefinite duration as an hourly paid part time tutor with the respondent from 1 February 2009 to the date of her termination of employment on 2 September 2011_

It has been established by the High Court in the judgment of Ms Justice Laffoy in Minister for Finance v McArdle [2007] 18 ELR 165 that a fixed term contract can become a permanent contract by operation of law_ In this regard, it is noteworthy that section 8(2) of the Protection of Employees (Fixed-Term Work) Act 2003 requires that a fixed-term employee be furnished with a written statement of the objective condition determining the contract both at the commencement of the employment and on renewal of the fixed-term contract. In the case of the latter, the employee must be informed of the objective grounds justifying the renewal and the failure to offer a contract of indefinite duration at the latest by the date of the renewal. There was a distinct failure on the part of the respondent to conform to this provision and there was no attempt on the part of the respondent to renew the complainant's contract and there was no notice in writing provided to the claimant of any renewal of her contract of employment. Instead she kept tutoring and working at the youth reach centre. Reliance is placed on the decision of the Employment Appeals Tribunal in Kinsella v Wicklow County Council UD302/2009 where the Tribunal held that whilst a breach of section 8(2) does not automatically give the claimant an permanent or contract of indefinite duration, this coupled with the fact that the claimant in that case did not have his contract renewed within a reasonable timeframe and the claimant remained on the same terms and conditions of employment for a period of 12 months meant that the contract became a contract of indefinite duration. The application of this dicta to the facts of the claimant's case is it is submitted irresistible. The claimant was without a contract of employment or renewal of same for a period of February 2009-September 2010. The provision of a purported fixed term contract to the claimant in or around September 2010 could not disentitle the claimant to her status as a permanent part time hourly paid employee of the respondent. The treatment of the claimant, even if unintentional, amounted to an abuse of the 2003 Act which the Act was designed to protect. Employees are entitled to know they are being retained on a fixed term contract as opposed to the more traditional permanent employment status and therefore section 8(2) provides this requirement for renewals to be in writing and to provide the precise reason for the non-provision of such a contract. The failure on the part of the respondent to management and regulate the claimant's employment in line with section 8 of the Act cannot be overlooked. The claimant also cannot be displaced from this permanent status to a fixed term status after attaining this permanent status and any reliance by the respondent on the final purported fixed term contract of employment provided to the claimant is it is respectfully submitted misguided.

Having regard to the foregoing, it is submitted that the claimant was a permanent part time hourly paid tutor as at the date of termination of her employment and the purported attempt on the part of the respondent to terminate her employment by reason of her alleged fixed term status is misguided and unlawful. The respondent appears to suggest that the claimant's employment simply came to an end by reason of her fixed term status. This must amount to an unlawful termination of employment in breach of the Unfair Dismissals Acts 1977-2007.

RELIANCE ON SECTION 2(2)(B) OF THE UNFAIR DISMISSALS ACTS 1977- 2007

The claimant is not a fixed term employee and was not a fixed term employee as at the date of her termination of employment. Therefore any reliance on section 2(2)(b) of the Unfair Dismissals Acts 1977-2007 cannot arise. Without prejudice to the foregoing, there was an entire lack of compliance on the part of the respondent to comply with the requirements of the section (which must be strictly construed against the claimant given the significant encroachment on her right to pursue a remedy in respect of the termination of her employment under the Acts) and therefore it cannot be relied upon. Section 2(2)(b) is as follows:

"(b) dismissal where the employment was under a contract of employment for a fixed-term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid"

The final purported fixed term contract dated 28 September 2010 was not signed by either the claimant or the respondent at the time of its purported coming into effect. Whilst some blame appears to be levelled at the claimant for her failure to return and sign the contract, there was no attempt on the part of the respondent to obtain a signed copy or to contact the claimant to clarity her position. The onus rests on the respondent to ensure the provisions of section 2(2)(b) are complied with and there is no suggestion that the respondent signed the contract. It is well established in the case law that the provisions of section 2(2)(b) must be complied with in full and therefore the respondent cannot seek to place any reliance on this section. In this regard, the Tribunal is referred to the decision of Sheehan v Dublin Tribune [1992] ELR 239 and Allman v Galway County and City Enterprises Board Ltd [2006] 17 ELR 196.

REDUNDANCY

The respondent seeks to rely on the defence of redundancy to justify the termination of the claimant's employment. This reason does not bear on the facts. The claimant was placed on a period of layoff during August 2011 as was standard within her employment as the premises was closed due to holidays. The claimant resumed her duties of employment as normal when the premises re-opened in late August 2011/early September 2011. Without any warning whatsoever at the end of the claimant's first week following the closure of the premises, on 2 September 2011 the claimant was informed by Mr Smartt that her employment contract would not be renewed and her contract was gone. There was no mention of redundancy and it is clear that the reason the claimant had her employment terminated was due to her perceived temporary and fixed term status which is not a fair reason for dismissal. This has been established in Sheehan v Dublin Tribune [1992] E.L.R. 239 as not being capable of amounting to a substantial reason justifying the termination of employment.

The first time redundancy was mentioned to the claimant was on 9 September 2011 when the claimant received a letter from Ms Murphy, Human Resources Manager.

Without prejudice to the foregoing, if the Tribunal finds that the claimant's employment was terminated by reason of redundancy, the claimant was unfairly selected by reason of her purported temporary employment, there was no fair procedures in the selection, no forewarning was provided to the claimant, there was no consultation with the claimant, no redeployment was offered or considered (when other colleagues of the claimant were provided with this option) and there were no alternatives to redundancy offered to the claimant. The claimant was effectively entirely blindsided by the entire process, was not afforded any opportunity to put forward any alternatives and was required to leave the premises that date. When the claimant returned to her employment, she was requested to leave and threatened with an injunction if she failed to leave.

IS THE CLAIMANT AN OFFICER WITHIN THE MEANING OF THE VOCATIONAL EDUCATION ACT 1930

The respondent purports to rely on section 2(1)(j) of the Unfair Dismissals Acts 1977­2007 which "excludes officers of a vocational education committee established by the Vocational Education Act 1930" from the protection of the Act. There is no meaning within the 1930 Act of officer or servant.

Section 23 of the Vocational Education Act 1930 provides as follows:

Subject to the provisions of this section, every vocational educational
committee shall appoint a chief executive officer and such other officers and servants as it shall from time to time think necessary for the due performance of its powers and duties under this Act.

The number, qualifications, salaries or remuneration, and appointment of all officers shall be subject to the approval of the Minister...

A vocational education committee may dismiss any servant of such committee and, with the approval of the Minister, remove any officer of such committee.

As there is no definition of officer within the 1930 Act, it is submitted that regard must be had to the case law on the issue in general terms. Hogan and Morgan, Administrative Law in Ireland (2" ed, 2010) at p. 697 state that "an office is a position to which certain important duties are attached usually more or less of a public character, with its holder likely to be better qualified and freer from day to day control than a servant." The Supreme Court in Glover v BLN Limited [1973] IR 388 posited the view that "The characteristic features of an office are that it is created by Act of the National Parliament, charter, statutory regulation, articles of association of a company or of a body corporate formed under the authority of a statute, deed of trust, grant or by prescription; and that the holder of it may be removed if the instrument creating the office authorises this." The decision of the House of Lords in Edwards v Clinch [1982] AC 845 is also instructive and Lord Wilberforce stated that an office "must have a sufficient degree of continuance to admit of its being held by successful

incumbents it cannot be limited to the tenure of one man, for were it so, it would
lack the independence existence which to my mind the word 'office' imports". By contrast a servant, such as the claimant, held a post which was personal and on the basis of a part time and hourly position. The claimant did not receive any benefits such as sick pay or allowances. Again this is consistent with her not being an officer.

It has been established by the EAT in Hanly v Mayo Vocational Educational Committee [1999] 10 ELR 10 that part time teachers are not officers within the meaning of the 1930 Act and the EAT has jurisdiction to determine their claims. The claimant was not entitled to sick pay and her annual leave entitlement was simply rolled up in her pay. She was very seen as a disposable commodity to the respondent on the basis of her pay being hourly and the way in which her employment was terminated. The claimant was placed on periods of lay off during August each year and was not paid for this period. This period was not annual leave as this was rolled up into her hourly rate of pay. Nowhere in her contracts of employment was she referred to as an officer and the first time this claim has been made is in the solicitor's letter of 29 April 2013. The termination of the claimant's employment was made without any sanction or approval of the Minister for Education and as far as the claimant is aware there was no sanction for her appointment. The claimant is unaware but believes that she was not on any list of officer/teachers provided to the Department of Education.The claimant was not entirely a teacher and was more akin to a tutor working with young adult who were early school leavers. The course she taught was accredited by FETAC and not the Department of Education. The claimant was engaged in tutoring students post third level education and this must all point away from her being an officer within the meaning the 1930 Act. The level of involvement of the Department of Education in the claimant's employment was tenuous at best and must point away from her being an officer within the meaning of the 1930 Act having regard to section 23 of the Act. The Tribunal in Hanly made it very clear that if an employee is to be defined as an officer than "all of the provisions pertaining in the relevant legislation regarding appointment, removal, etc must apply" to the employee. This must have a relevance to the claimant and she cannot be an officer within the 1930 Act and cannot be excluded from the very valuable protection of the Unfair Dismissals Acts 1977­2007. The claimant notes that the author Farry expresses the view in his book Vocational Teachers and the Law that "an hourly paid part-time or EPT teacher is not an officer and therefore is not excluded from the protection of the [Unfair Dismissals]Act".1

CONCLUSION

The claimant respectfully requests that this Tribunal find that she was unfairly dismissed. Whilst the claimant has secured alternative employment since the termination of her employment, she is currently working on a self employed basis and is working longer hours to receive a broadly similar salary. She requests either the remedy of reinstatement/re-engagement.

The right is reserved to raise further or better submissions.

CLAIRE BRUTON BL

Respondent’s Position:

Read into evidence by the respondent’s representative from William Egan & Associates on the 16th May 2013

Opening Submission:

In September 2008 the Department of Education and Science sanctioned the opening of a new Youthreach Centre in the Tallaght area of County Dublin. The Appellant, Muireann O’Farrell, was known to the Acting Coordinator, Nora Byrne. A need was identified for the delivery of a catering module.

The Appellant was invited to make contact with Mr Ken Smartt, Regional Coordinator, who she contacted and who she met. Mr Smartt indicated that there were catering hours on offer on a fixed purpose/term basis pending formal recruitment for the Centre. The Appellant, who had worked previously for the VEC, was offered and accepted twelve temporary catering hours and was advised that in due course that formal recruitment of Centre Coordinator and instruction staff would be made. It was agreed that the Appellant would commenced employment on 28th October 2008 and she worked on this basis until 30th July 2009. Following the Appellant taking up her position in the Centre she was sent a document entitled “Statement of Terms and Conditions of Employment” (Document 2) which expressly stated that the Contract was temporary and that provisions of the Unfair Dismissals Act would not apply to dismissal consisting only of the expiry of the Contract. She was asked to sign that document and return it to the VEC. The Appellant had taken up her position by the time this Statement was provided but did not sign or return the Statement according to the VEC records. The Appellant had previously been employed by the VEC under a casual teaching Contract of Employment of a fixed term nature in September 2004, which she had signed and returned to the VEC. (Document 1)

The Appellant, who was not employed for August 2009, was reengaged on a temporary specific purpose basis from September 2009 onward pending the filling of a fixed term post through an open recruitment competition process.

The open recruitment competition was publicly advertised in March 2010 (Documents 3 and 4). The Appellant applied for the position in open competition, which was stated to be fixed term/part time class contract hours Contract in the advertisement (Document 5). She was successful and received a letter of offer of the position on 29th June 2010 (Document 6). She signed an acceptance form of the position on 30th June 2010 (Document 7). She took up her position on 31st August 2010 as a fixed term part time teacher/tutor up to 31st July 2011 on fourteen hours per week. Again there was a break in her employment from 31st July 2010 to

31st August 2010. Two months after taking up her position in a document dated 1st November 2010 the Appellant was provided with particulars of her employment and was requested to sign the document and attached appendix and return it to the Human Resources Department of County Dublin VEC (Documents 8 and 9). The VEC has no record of the Appellant returning the particulars of employment or the appendix duly signed.

Mr Smartt wrote to the Appellant on 30th June 2011 advising her that her Fixed Term Contract would terminate on 29th July 2011 (Document 10).

Mr Paul Curtis, the Centre Coordinator spoke with the Appellant on 25th July 2011 advising her that her Fixed Term Contract would expire on 29th July 2011 as per the previous notice and also informed her that her Contract might not be renewed for the next academic year because of redeployment of permanent and indefinite duration staff from Travelling Training Centres. Following that meeting Mr Curtis made a record of consultation on the end of a Fixed Term Contract (Document 11). A verbal agreement was reached between Mr Curtis and the Appellant that pending the completion of redeployments that she would return to the Centre on 30th August 2011 on a day to day basis, which the Appellant agreed to. On 2nd September 2011 Mr Curtis informed the Appellant that a permanent teacher from St. Kieran’s

Traveller’s Training Centre was being transferred to the Centre.

Relevant Legislative Provisions

Section 23 of the Vocational Education Act, 1930:

“23. (1) Subject to the provisions of this section, every vocational education committee shall appoint a chief executive officer and such other officers and servants as it shall from time to time think necessary for the due performance of its powers and duties under this Act.

(2) The numbers, qualifications, salaries or remuneration, and appointment of all officers shall be subject to the approval of the Minister.

(3) Every vocational education committee shall take from its chief executive officer and any other of its officers who receives or pays money on its behalf such security as may be directed by the Minister.

(4) A vocational education committee may dismiss any servant of such committee and, with the approval of the Minister, remove any officer of such committee.

(5) A vocational education committee shall be deemed to be a local authority within the meaning of the Local Authorities (Officers and Employees) Act, 1926 (No. 39 of 1926), and for that purpose the expression “the Minister” in that Act shall in relation to a vocational education committee mean the Minister for Education.”

Section 112 of the Vocational Education Act, 1930:

“112—The Minister may by regulations made under this Act prescribe the minimum rates of travelling and maintenance expenses payable to teachers and officers of vocational education committees who have to travel in the performance of their duties.”

Section 10 of the Vocational Education (Amendment) Act, 1944:

“10— Section 112 (which relates to travelling expenses for officers) of the Principal Act is hereby amended by the insertion of the word “other” before the word “officers”.”

Section 2 of the Unfair Dismissals Act, 1977 as amended by Section 3 of the Unfair Dismissals (Amendment) Act, 1993:

“3.—Section 2 of the Principal Act is hereby amended by—

(a) in subsection (1), the substitution of the following paragraph for paragraph (j):

“(j) officers of a health board (other than temporary officers) or a vocational education committee established by the Vocational Education Act, 1930 .”,

(b) in subsection (2), the insertion after paragraph (b) of the following proviso to subsection (2):

“Provided that where, following dismissal consisting only of the expiry of the term of a contract of employment such as aforesaid (‘the prior contract’) without the term being renewed under the contract or the cesser of the purpose of the contract—

(i) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment such as aforesaid made between the employer and the employee (‘the subsequent contract’) and the nature of the employment is the same as or similar to that of the employment under the prior contract,

(ii) the employee is dismissed from the employment,

(iii) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and

(iv) in the opinion of the rights commissioner, the Tribunal or the Circuit Court, as the case may be, the entry by the employer into the subsequent contract was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act—

then—

(I) this Act shall, subject to the other provisions thereof, apply to the dismissal,

and

(II) the term of the prior contract and of any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.

In this proviso ‘antecedent contract’, in relation to a prior contract, means—

(A) a contract of employment such as aforesaid the term of which expired not more than 3 months before the commencement of the prior contract, or

(B) each of a series of contracts the term of the last of which expired not more than 3 months before the commencement of that of the prior contract and the term of the other or of each of the other contracts in the series expired not more than 3 months before the commencement of that of the other, or the next, contract in the series,

being a contract or contracts made between the employer and the employee who were parties to the prior contract and the nature of the employment under which was the same as or similar to that of the employment under the prior contract.”,

and

(c) the insertion of the following subsection after subsection (4):

“(5) Notwithstanding subsection (4) of this section, the dismissal (not being a dismissal referred to in the proviso (inserted by the Unfair Dismissals (Amendment) Act, 1993) to subsection (2) of this section) of an employee

followed by his re-employment by the same employer not later than 26 weeks after the dismissal shall not operate to break the continuity of service of the employee with the employer if the dismissal was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act.”.”

The Appellant’s Claims

1. Redundancy Payments Act, 1967 – 2007

No particulars of any claim have been set out in the Form T1-A. A Notice for Particulars was sent to the Appellant’s Solicitors seeking information concerning this claim (Document 12). The Appellant’s Solicitors elected not to provide the information sought and indicated that they would address the issues referred to in our Notice for Particulars on the date of the hearing (Document 16). As a matter of fact, a sum of €4,086.00 was paid to the Appellant on 21st December 2011 in respect of a redundancy entitlement (Documents 14 and 15). The Form T1-A does state that the employer has not issued a Redundancy Certificate and that the Appellant had not applied to the Employer for a redundancy payment. This does not appear to correspond with the written records and the payment made.

2. Minimum Notice and Terms of Employment Act, 1973 – 2005

Again, no particulars of any claim under this legislation were provided in the Form T1-A. The Respondent believes that the Appellant is entitled to a sum of €1,143.80 in lieu of notice and is in the process of discharging this liability (Document 18). The Appellant was invited to quantify and particularise her claim and did not do so (Document 12).

3. Organisation of Working Time Act, 1997

The position is the same in respect of the claim under this heading. No particulars have been provided either in the Form T1-A or in the form of a Reply to the Notice for Particulars raised. If there is an entitlement it is only in respect of the few days worked in the first week of September. The Appellant has been invited to submit a computation of any monies due to her under this heading, which she has declined to do (Document 12).

4. Unfair Dismissals Acts, 1977 – 2007

The Appellant’s claim is particularised in the Form T1-A (Document 17) as

follows:

i. She was unfairly dismissed;

ii. There was no justification for the termination of her employment;

iii. She was dismissed in the absence of fair procedures;

iv. There was a lack of consultation with her prior to the termination of her

employment;

v. Ten items of correspondence were attached to the Form T1-A.

While the claim is unclear, what appears to run through the correspondence appended to the Form T1-A is an assertion that the Appellant is an employee of the VEC under a Contract of Indefinite Duration (permanent employee) and in this regard reliance is placed upon Section 2 of the Unfair Dismissals Act, 1977 as amended by Section 3 of the Unfair Dismissals (Amendment) Act, 1993. The Appellant states that she has rights under the Unfair Dismissals

legislation by virtue of the fact that she is not excluded under Section 2 (2) (b) and in particular it is asserted:

i. That there was no written Contract;

ii. That Contract was not signed by or on behalf of the employer and the

employer and that;

iii. There was no contractual exclusion of the provisions of the Unfair Dismissals legislation.

The VEC responds as follows:

i. While the initial employment was on foot of an oral Contract, full particulars of that employment were reduced to writing in a manner as complied with the provisions of Terms of Employment (Information) Acts (Document 2);

ii. That those Terms of Employment expressly referenced the Unfair Dismissals Acts and in particular provided:

“As this is a temporary Contract the provisions of the Unfair Dismissals Acts shall not apply to a dismissal consisting only of the expiry of this Contract.”

This express provision was incorporated into the Statement of Terms and Conditions of Employment issued in November 2008 to the Appellant, and also upon her appointment following the public competition for her office and these particulars of employment were provided to the Appellant on 1st November 2010, some two months after she took up her office (Documents 8 and 9).

The VEC has no record of the Terms of Employment document or the Statement of Terms and Conditions of Employment having been signed by the Appellant who had, in 2004, signed similar documentation (Document 1). It may be that the employee made a decision to avoid the signing of the documentation with a view to acquiring rights under the Unfair Dismissals legislation and in particular to obtain an unintended Contract of Indefinite Duration. In the Notice for Particulars the Appellant has been requested to provide copies of documentation issued to her and to indicate why she saw fit not to acknowledge her Terms and Conditions of Employment by signing and returning both documents (Document 12)

The VEC can produce no single Contract in writing signed for and on behalf of it and by the Appellant within which is contained a provision that the Unfair Dismissals legislation shall not apply to a dismissal consisting only of the expiry of the Contract. The VEC submits that the conduct of the parties is consistent with the Appellant having been a fixed term worker. The VEC asserts that the Contract of Employment is one of service (whether oral or in writing) of a type which rendered the employee a fixed term employee within the meaning of that expression as set out in the Protection of Employees (Fixed Term Work) Act, 2003.

Section 2 of the Protection of Employees (Fixed Term Work) Act, 2003

includes definitions inter alia:

“ “contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third

person is a party to the contract);”

“ “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;”

The VEC submits that the status of an employee who has been employed by the same employer without an effective break in continuity is either a Fixed Term Employee or is an employee under a Contract of Indefinite Duration. The Protection of Employees (Fixed Term Work) Act, 2003 does not require a written Contract of Service. The status of an employee cannot be both a Fixed Term employee or an employee who holds office under a Contract of Indefinite Duration. The employee is either as a matter of law a Fixed Term worker or is an employee under a Contract of Indefinite Duration.

Is the Appellant an Officer or a Servant of the VEC?

Section 2 of the 1977 Unfair Dismissal Act as amended by Section 3 of the 1993 Act expressly provides that the provisions of the legislation shall not apply to Officers of a Vocational Education Committee established by the Vocational Education Act, 1930. County Dublin VEC is such a statutory body. It is the VEC’s submission that in the circumstances of the Tribunal not determining the Appellant to be a Fixed Term Worker and being excluded from the application of the legislation by virtue of Section 2 (2) (b), that she is, in any event, an Officer of the VEC and is precluded from redress under Section 2 (1) (j).

The documentation of record, which includes assertions made by the Appellant (Document 19) as to her status establishes as a matter of indisputable fact that she regarded herself as a teacher and was employed as a teacher and her duties related to teaching (Documents 8 and 9).

The Vocational Education Act, 1930 refers to two categories of staff – officers and servants. A person can become an officer or office holder by virtue of holding an office or being appointed to an office. VEC teachers have always been treated as the Plaintiff was a statutory employee. Notwithstanding this argument, the provisions of Section 7 and 8 of the Vocational Education (Amendment Act), which exclusively relate to officers were applied. Section 23 of the Vocational Education Act, 1930 gives a VEC the authority to appoint officers and servants. Teachers, clerical officers and staff with offices are treated as officers, while technicians, caretakers and groundpersons employed in Vocational Schools are regarded as servants. The position of a VEC Teacher is not expressly designated or indicated to be an officership in the Vocational Education Acts but if a VEC appoints a person as an officer or to hold an office, that person is an officer or the holder of an office under the VEC. The documentation issued to the Appellant in respect of the Terms and Conditions of her Employment expressly indicated that her employment was subject to the provisions of the Vocational Education Acts and subsequent Acts replacing or amending these Acts. This term was necessary to expressly highlight the fact that the Appellant as an officer would fall to be dealt with in accordance with the legislation. Officers of the VEC are treated differently to servants of a VEC, one distinction being that a servant of a VEC is not precluded from redress under the Unfair Dismissals legislation while an officer is.

Section 112 of the Vocational Education Act, 1930 which relates to the payment of

travelling or maintenance expenses

“payable to teachers and officers of Vocational Education Committees”

appeared on the face of it to indicate a distinction between teachers employed by a VEC and officers. The matter however was resolved by an amendment to the section by Section 10 of the Vocational Education (Amendment) Act, 1944 which states:

“10— Section 112 (which relates to travelling expenses for officers) of the Principal

Act is hereby amended by the insertion of the word “other” before the word “officers”.”

This amendment expressly states that a Vocational Teacher is an officer.

In Western Health Board .v. Quigley Barrington J held that a temporary staff nurse was employed at most as a temporary officer and thus the Employment Appeals Tribunal had no jurisdiction to deal with the case because officers of a Health Board are excluded from the Unfair Dismissals Act, 1977. Officers of a VEC are similarly excluded from the scope of the Act. On the basis of the Quigley decisions a temporary VEC Teacher would come within the ambit of the Quigley case and be excluded also from the Unfair Dismissals Act, 1977 in accordance with the dictum of Barrington J.

In a case entitled “Teachers Union of Ireland and County Sligo Vocational Education Committee” CD92333-DUM14192 the Labour Court held that it had no jurisdiction to hear a dispute between an eligible part time teacher, as in such capacity the complainant was an officer of the Respondent VEC, and therefore was not a “worker” within the meaning of the Industrial Relations Act, 1946/1990. The Court determined that the Claimant was excluded from access to the Court and declined to hear the substantive case. In a case before the Labour Court between the Respondent in this case and “A Worker” the Court, on the basis of the decision in the Teachers Union of Ireland and County Sligo Vocational Education Committee case determined that “A. Worker” who was an unqualified, eligible, part time teacher within the VEC, was an officer and again the Court held that it lacked jurisdiction to

investigate the claim.

The Appellant, in her own hand in a sworn Affidavit, represented herself as being:

1. From March 1996 to December 1997 Catering Instructor;

2. From December 1997 to April 2005 Catering Teacher;

3. From October 2008 up to August 2011 Catering Teacher at Priory Youthreach

(CDVEC) Dublin 24.

The 2010 Terms and Conditions of Employment and in particular the appendix records her as being a teacher. She has registered herself with the Teaching Council.

The manner in which Youthreach Teachers/Tutors are dealt with for Disciplinary Purposes within the VEC.

The manner in which disciplinary issues are addressed in respect of an officer of a VEC are distinct and different to those relating to a servant of a VEC. As a matter of fact and record, the Respondent and all other VEC’s have treated Youthreach tutors/teachers as officers and in dealing with disciplinary issues have conducted same in accordance with what is required in the VEC legislative code.

The Appellant’s appointment was made pursuant to Section 23 of the Vocational Education Act, 1930 which required compliance in respect with Section 23 (2), which requires the numbers, qualifications, salaries or remuneration and appointment of all officers to be subject to the approval of the Minister. Her superannuation was that of a type afforded to officers and not to servants.

Association of Documentation

When the 2010 advertisement, the Appellant’s application, the signed letter of offer, the signed acceptance form and the compliance with Section 3 of the Terms of Employment (Information) Act, 1994 are read conjunctively, the VEC submits that the documents ought to be read as one and that read conjunctively they constitute compliance with the provisions of Section 2 of the 1997 Act as amended and constitute a Contract of Employment for a fixed term in writing signed on or on behalf of the employer and by the employer and including a provision that the Unfair Dismissals Act shall not apply to a dismissal consisting only of the expiry of the Contract.

Summary

The Respondent submits:

1. That the Appellant is precluded from recourse to the legislation by virtue of the

fact that she is a fixed term worker and/or;

2. Irrespective of whether she is a fixed term worker or held her office under Contract of Indefinite Duration she was an officer of a VEC and is precluded from recourse to the legislation on that basis.

The VEC submits that these preliminary issues require to be addressed before a substantive hearing proceeds in the same manner as the Labour Court declined jurisdiction on two occasions in two cases on the basis of an officer not being “a worker” within the meaning of the Industrial Relations Acts, 1946 – 1990.

Claimant’s Position:

Additional submission received by the claimant’s representative on the 11th November 2013.

Additional Submission:

1. These within submissions are furnished as directed by the Employment Appeals Tribunal and will only deal with the issue of whether the claimant is prevented or prohibited from maintaining a claim of unfair dismissal under the Unfair Dismissals Acts 1977-2007.

2. It is argued on behalf of the respondent that that the claimant is barred from any relief under the Acts due to her being an 'officer' of a vocational education committee established by the Vocational Education Act 1930. Section 23 of the 1930 Act allowed for VECs to appoint officers or servants. However crucially section 23 of the 1930 Act was repealed in its entirety by the Vocational Education (Amendment) Act 2001 effective from 20th July 2001.1 There is a very limited saving provision contained in the Vocational Education (Amendment) Act 2001 (Commencement Order) 2001 (S1 380/2001) which applies for officers appointed prior to the date of repeal of section 23 of the Act. This clearly has no application to the claimant (without prejudice to her contention that she is not an officer within the meaning of the Vocational Educational Act 1930) given that she commenced her employment with the respondent on 28th October 2008.

3. Since the repeal of section 23, the power of VECs to appoint employees emanates entirely from section 20 of the Vocational Educational (Amendment) Act 2001. This is the section under which the claimant would have been appointed. This section clearly refers to the power of Vocational Educational Committees to appoint "persons to be members of the staff ' of the vocational education committee as it may from time to time determine. It is submitted that clearly therefore following the repeal of section 23 of the 1930 Act in July 2001 there is no longer the power of VECs to appoint any `officers' save as to a Chief Executive Officer (as defined by section 15 of the 2001 Act). The reference to members of staff in section 20 clearly means that the claimant is not an officer of the respondent and cannot lawfully be treated as such given the repeal of section 23 of the 1930 Act some considerable period prior to her appointment. The meaning of repeal and the cessation of any legal effect of any section repealed was set out by the Supreme Court in DPP v Gilligan [1993] 1 I.R. 92 as follows:

"To 'repeal' an enactment is to cause it to cease to he in law as part of the Act containing it"

Repeal is defined by section 2 of the Interpretation Act 2005 to include "revoke, rescind, abrogate or cancel" therefore clearly cessing any reliance/effect on section 23 apart from the saver contained in the 2001 Statutory Instrument which has no application to the claimant.

4. Indeed it is significant in the letter of Ms Tara Carton, Assistant Principal Officer of the Department of Education, of 17th July 2013 to Ms Pauline Murphy of the Dublin and Dun Laoghaire Educational Training Board, it is stated the 2001 Act is "silent on the issue of officers/servants". Whilst it appears the respondent may argue, similar to the contention of Ms Carton in her letter of 17th July 2013, that it was the practice to treat all members of VEC staff (including Youthreach teachers/tutors) as officers, it is submitted that this cannot be correct and cannot oust the jurisdiction of the Employment Appeals Tribunal under the Unfair Dismissals Acts 1977-2007. Section 2(1)(j) clearly refers to the exclusion of "officers of a vocational educational committee established by the Vocational Education Act 1930". As no further officers (perhaps save with the exception of the Chief Executive Officers of the various VECs as defined in section 15 of 2001 Act) can be created by VECs following the repeal of section 23, it is submitted that section 2(1)(j) of the Unfair Dismissals Acts 1977-2007 cannot have any application to the claimant's employment and it is respectfully submitted that the Employment Appeals Tribunal must assume jurisdiction to determine the claim of the claimant under the Acts.

5. It has consistently been the case that any exception or ouster of jurisdiction of the Employment Appeals Tribunal under the Unfair Dismissals Acts 1977-2007 must be strictly construed. This is very evident in the jurisprudence of the Tribunal when dealing with the section 2(2)(b) and fixed term contracts where absolute compliance with this sub-section is required (see for example Sheehan v Dublin Tribune [1992] ELR 239 and Allman v Galway County and City Enterprises Board Ltd [2006] 17 ELR 196 both of which were relied upon by the claimant in the original submissions). Therefore in order for the claimant to be precluded from maintaining the within proceedings she would have to be an officer as appointed by section 23 of the 1930 Act which cannot arise given the repeal of this section. It is submitted that any purported reliance by the respondent as an effectively an implied officer of the VEC is misguided and it is not legitimate or lawful for the respondent to regard the claimant as an officer in the absence of any legislative provision allowing for the claimant to be appointed as an officer. In addition in none of the documentation provided to the claimant during the tenure of her employment was the claimant referred to as an officer of the VEC and therefore it is submitted that the respondent cannot purport to treat her as an officer to undermine the jurisdiction of the Employment Appeals Tribunal.

6. The case law referred to the by respondent in its submissions on where the Labour Court refused to accept jurisdiction makes no reference to the effect of the repeal of section 23 and indeed it is likely that the employee in this case was an officer having been appointed prior to the repeal of section 23. Therefore this case can have no application and must be distinguishable on that basis. From the case law referred to by the claimant in her initial submissions, there is no basis for her to be an officer having regard to the nature of her duties of employment.

7. Therefore it is respectfully submitted that section 2(1)(j) of the Unfair Dismissals Acts 1977-2007 has no application to the claimant.

8. Without prejudice to the foregoing, it is submitted that the purported criticism levelled at the claimant for her alleged failure to sign any of the alleged fixed term contracts of employment provided to her is unwarranted and unfair. The respondent cannot provide any fixed term contract signed on its behalf which is a clear requirement of section 2(2)(b) of the Unfair Dismissals Acts 1977-2007. None of the contracts received by the claimant (being two, her initial fixed term contract and later purported fixed term contract of September 2010 following a considerable gap between contracts) were signed by the respondent. The contract provided by the respondent in the papers purportedly dated 1 November 2010 was not provided to the claimant and again this is not signed by the respondent. Indeed this is recognised by the respondent in its letter to the claimant's solicitors of 9th September 2011 where it is stated that the contract of the claimant was "extended via timesheets submitted and authorised to the end of the Youthreach academic year". On this basis the requirements of section 2(2)(b) of the Unfair Dismissals Acts 1977-2007 were simply not met and any arguments to the contrary are misconceived.

9. It is not correct for the respondent to purport to argue that the claimant intended to create a contract of indefinite duration by failing to avoid the signing of her fixed term contract. First there was no fixed term contract of employment provided to the claimant for the period of 31 January 2009-28 September 2010 such that it is submitted that the claimant accrued a right to a contract of indefinite duration/permanent contract. Secondly there was no attempt on the part of the respondent to have this contract returned like the other two purported fixed term contracts. Any criticism therefore levelled at the claimant is unwarranted.

10. As has been argued on behalf of the claimant in her initial submissions to the Tribunal as at the date of the termination of her employment, she was employed pursuant to a contract of indefinite duration and the purported cessation of her fixed term contract of employment by the respondent is therefore unlawful and misguided. The claimant's entitlement to a contract of indefinite duration arises in the context of her fixed term contract not being renewed post the cessation of her initial fixed term contract of employment as of 30th January 2009. A further decision of the Tribunal is relied upon being Blackman v Dublin Cemeteries Committee UD 807/2012 where it held that a breach of section 8(2) of the Protection of Employees (Fixed-Term Work) Act 2003 does not give rise to an automatic contract of indefinite duration but as the contract of the employee was not renewed within a reasonable time and the claimant remained on the same terms and conditions of employment for a period of almost 12 months this did give rise to such an entitlement. This decision is in a similar vein to the decision of Kinsella v Wicklow County Council UD302/2009 referred to the claimant's initial submissions and the Tribunal is urged to apply this dicta. There was a failure on the part of the respondent to put in place a fixed term contract of employment in writing 4

for the period of 31st January 2009-27 September 2010 a period of over 18 months.

Therefore there were no reasons for the non-provision of a contract of indefinite duration (as required by section 8(2) of the 2003 Act) set out or provided to the claimant at the relevant time such that it is appropriate for the inference of the claimant being employed pursuant to a contract of indefinite duration as at 315' January 2009 to be drawn. It is also submitted that the failure of the respondent to provide any objective reason in writing as required by section 8(2) means that the argument made on its behalf that a fixed term contract can continue by way of an oral fixed term contract is bound to fail. The purported fixed term contract provided to the claimant in September 2010 was not signed either by the claimant or the HR Officer on behalf of the respondent and therefore cannot be relied upon in any manner. In addition it is not lawful for an employer to purport to have a permanent employee subsequently become a fixed term employment given the vulnerable employment status of such employees and the wording of section 8(2) which requires the fixed term contract to be provided on renewal.

11. It is submitted therefore that the claimant was employed as a permanent employee as at the date of termination of her employment and the purported cessation of her fixed term contract was unlawful/her dismissal was unlawful. In addition it is submitted that the claimant was not an officer of the respondent and is not prevented from maintaining her claim either pursuant to section 2(1)(j) of the Unfair Dismissals Acts 1977-2007 or section 2(2)(b) of the Unfair Dismissals Acts 1977-2007.

12. The claimant reserves her right to make further or better submissions as required.

CLAIRE BRUTON BL

Dated this 5th day of November 2013

Determination of the Division of the Employment Appeals Tribunal:-

This matter first came before this Division of the Tribunal on the 16th of May 2013. At that time a number of preliminary issues were opened to the Tribunal which went right to the heart of the Tribunal's jurisdiction to hear this matter. In effect the Respondent has made the case on a number of fronts that this Claimant cannot claim to be an Employee as defined and protected under the relevant legislation. As a preliminary point the Respondent makes the case that the Claimant is an Office Holder and thereafter that the Employee operated under a series of fixed term Contracts which precluded her from seeking the benefits conferred under the Unfair Dismissals legislation.

On the 16th of May legal representatives opened up and read into evidence lengthy submissions which they had prepared. The Tribunal was not inclined to make a final decision on that day and sought instead that copies of the said submissions be made available to the Division with any further submissions to be made in due course. It was understood that the submissions would be tendered within 6 to 8 weeks of the 16th of May.

In fact, Submissions were not received until in and around October and November of 2013 and matters rested with the Claimant's final submissions dated the 5th of November 2013. For clarity, the Tribunal has included the full copies of the submissions above. The Tribunal Division met in early January, and having noted that the Respondent had reserved it's right to reply to any further points raised by the Claimant, the Tribunal felt it only fair and correct to allow time for any further reply and it was understood at that time that the Respondent required a further 4 weeks for the presentation of a final submission.

Despite numerous attempts to ensure that any further submissions would be received by the Tribunal these have in fact not arrived and the Tribunal must proceed at this time to making findings on the preliminary issues raised as the delay becomes untenable and unjustifiable at a certain point.

For the purposes of these proceedings, the relationship between the claimant and the Respondent commenced in and around September or October 2008. The Claimant was taken on to provide FETAC catering training to students attending the Priory Outreach Programme. It is acknowledged that the Claimant would be expected to provide 12 hours on site teaching each week. At a point unknown but after she had commenced in the position described, the Claimant was provided with a Statement of the Terms of Conditions of Employment. In it the Respondent asserts that the position is part time and temporary which is signalled by the fact that the Statement indicates that the temporary Contract would terminate in January 2009 (some 4 months after the Claimant takes up the position). This first Statement goes on to state that subject to student enrolment the Contract will be renewed for a further fixed period. As it happened the Claimant retained her position right up to the end of the academic year in and around July of 2009. No second Contract was provided in January of 2009 nor had the Claimant signed the Statement provided though that document may well have become obsolete from the 30th of January 2009.

The Claimant returned to her position in September of 2009 at the start of a new academic year. In the course of 2010 the Claimant applied for publically advertised positions in her field, and on the 29th of June was advised that she was being appointed as a part time Tutor of Food and Nutrition in the Priory Youth reach programme. This in effect seems to have been an appointment of the Claimant to the Claimant's position though it was on foot of a formal interview process.

The Claimant's hours rose to fourteen per week at the start of the academic year 2010. The Claimant was provided with a further Contract of Employment type document in and around November of 2010. The Employment is described as part time but also temporary though it's temporary nature seems to be predicated on ongoing student enrolment and demand.

The Claimant worked the academic year 2010 through to the end of July 2011. However, before the end of the year, the Claimant was advised by letter dated the 30th of June 2011 that her part time teaching Contract of Employment would be terminated at the end of July 2011.

The Tribunal must go right back to the start of the relationship in order that it might determine where the parties stood in July of 2011.

It is a fact that the Respondent issued up to two separate Contracts of Employment (Statements of Terms and Conditions) in the course of this relationship. It is also clear that neither of these were signed off on and both were issued after an employment pattern had already been entered in to. The first Statement of Terms is significant of course because it purports to satisfy the criteria set out in Section 2(2)b of the 1977 Act wherein the Unfair Dismissals is deemed not to apply to Contracts which are in writing, signed by both parties and specifically waive the Unfair Dismissals protection in circumstances where the Contract is clearly entered into for a defined period or a specific purpose. It seems clear to the Tribunal that even if both parties had signed this Contract it's effect terminated at the end of January 2009 and another of the same type would need to be entered into so as to again create a fixed term/purpose Contract which would not be covered by the Unfair Dismissals legislation simply by reason of it having terminated in accordance with the event or timing pre-disclosed in the Contract. From the 1St of February 2010 therefore the Claimant's status was unclear. The Claimant points out that this uncertainty is contrary to the obligation on the employer to justify the continuous use of fixed term Contracts as specified in the Protection of Employees (Fixed Term Work) Act of 2003.

In reality, the Claimant worked on in a part time capacity of 12 to 14 hours a week for a period of some 19 months. Some significance seems to be attached to a break in employment in and around July/August of each year but in reality this is the natural break in the academic year as the Claimant works to the academic timetable.

During this time was it reasonable for the Claimant to consider that she had transformed from temporary part time to permanent part time. On balance, the Tribunal finds that it was reasonable for the Claimant to make that assumption and finds as a matter of fact that the Claimant was a permanent part time employee when her relationship once again came into focus in and around November of 2010 when her employer, the Respondent herein, purported to downgrade her status by introducing a Contract of Employment which very clearly attempts to regularise and establish that which should have been established in February of 2009.

The Tribunal fully accepts the Claimant's argument that the attempt to displace the permanent status to a fixed term status is misguided.

The Tribunal notes that in and around May 2010 the Claimant applied to and was successful in obtaining an advertised job. The advertisement seen by the Tribunal is vague on part time/full time and fixed term positions for the plethora of positions referred to, but the Tribunal is satisfied that the Claimant came to the interview process as a permanent part time employee and that it was only after she had been appointed a part time tutor that there was any suggestion that this position was to be of a limited fixed term duration. The advertisement seen by the Tribunal forsees that permanent employees may well be included amongst the candidates applying for any one of the positions (see under heading "Medical"). The letter of offer describes the position as that of a part time tutor. The suggestion that the post was of a temporary nature was only made some six months later when the Respondent provided the Claimant with a statement of Employment which purported to establish the temporary nature and exclude the protection of the Unfair Dismissals legislation. In any event this document was never signed and therefore cannot be adduced as some sort of relevant evidence for the purpose of relying on Section 2(2)b of the Unfair Dismissals Act.

The Claimant continued in the work place for another academic year from September 2010 through to June of 2011 when she was advised that her employment would be terminated on the 29th of July 2011. The Claimant engaged with her employer and it became apparent that the Claimant was not being accorded the status of a permanent employee and there then ensued a confusing period wherein the Claimant actually did return to the workplace in September 2011 but was then notified that her position had been made redundant. What is clear is that the Respondent did not perceive they had any Contractual obligation towards the Claimant as they held the belief her status was that of a fixed term employee whilst the Tribunal finds as a fact that the Claimant should have been accorded the status permanent part-time employee.

In the circumstances, there is an obligation on the employer to establish that any selection for Redundancy has been fairly and reasonably implemented.

The Respondent has also put forward the proposition that the Claimant is an Office Holder of the VEC and is therefore precluded from the protection afforded by the Unfair Dismissals legislation pursuant to Section 2(1) j. The Tribunal again prefers the Claimant's legal submissions in this regard and in particular must be mindful of the fact that Section 23 of the Vocational Education Act of 1930 has been repealed since 2001. This fact must undermine the Respondent's definition of the Claimant as an Office Holder as the Vocational Educational (Amendment) Act of 2001 now affords such appointees to be given the description "members of staff".

The Tribunal is perfectly satisfied that the Claimant is entitled to pursue her claim.

Sealed with the Seal of the

Employment Appeals Tribunal

This ________________________

(Sgd.) ________________________

(CHAIRMAN)