FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NATIONAL UNIVERSITY OF IRELAND GALWAY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - JOHN F CUNNINGHAM (REPRESENTED BY JAMES DORAN B.L INSTRUCTED BY BUTLER MONK SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Ms Tanham |
1. Appeal of Rights Commissioners Decision No: r-105088-ft-11/MH
BACKGROUND:
2. This case is an appeal by the worker of Rights Commissioner's Decision No: r-105088-ft-11/MH. The appeal is made pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. Labour Court hearings took place on 12th April 2012, 7th August 2012, 16th October 2012 and 11th March 2015. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Mr John F. Cunningham against the Decision of a Rights Commissioner which found that his complaints against the National University of Ireland Galway were out of time and therefore statute barred, consequently the Rights Commissioner found that he had no jurisdiction under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) to hear the complaints.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr John F. Cunningham will be referred to as “the Complainant” and National University of Ireland Galway will be referred to as “the Respondent”.
At the Rights Commissioner hearing the Complainant claimed that the Respondent failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract pursuant to Section 9 of the Act. He contended that the Respondent failed to provide him with a written statement setting out the objective grounds justifying the renewal of his fixed term contract when it renewed his contract from July 2004 onwards contrary to Section 8 of the Act.
Furthermore, the Complainant contended that the Respondent was in breach of Sections 6 and 10 of the Act in that he was treated less favourably than comparable permanent employees as he was not given access to training programmes or opportunities. He claimed that the Respondent was in breach of Section 11 in that employees’ representatives were not provided with information about fixed term work in the University and finally, he contended that the Respondent was in breach of Section 13 of the Act in that when he attempted to claim his rights under the Act, he was removed him from the Respondent’s e-mail system and denied access to the online learning tool (Blackboard). The complaints were referred to the Labour Relations Commission Rights Commissioner Service on 10thMarch 2011, received by the Service on 14thMarch 2011 and the hearing was heard on 6thMay 2011. An application for an extension of time for submission of his claim was made to the Rights Commissioner under Section 14 (4) of the Act. The Rights Commissioner did not grant the application.
At the hearing of the appeal before the Court on 12thApril 2012 the Court was informed that the claim under Section 11 was not being pursued. The case was the subject of a Case Management Conference between the parties on 7thAugust 2012 in order to clarify the issues in this case and, a further hearing to consider the issue of “mootness” was held on 16thOctober 2012. By agreement between the parties the case was “stayed” pending the outcome of a Rights Commissioner hearing on separate proceedings referred by the Complainant under section 6 of the Act in respect of pension entitlements, as any decision of the Court might prejudice that claim before the Rights Commissioner. The Court resumed its deliberations of the case at a final hearing on 11thMarch 2015.
Background
The Complainant commenced working as a Lecturer in the Respondent’s Industrial Engineering Department in the academic year 1998/99, in August 2008 he was furnished with a fixed-term contract for the academic year 2008/2009. Thereafter, he was employed on a part time basis which continued until he retired on 12thMay 2011.
The question of the Complainant’s status was in contention between the parties. The Complainant contended that he has been continuously employed by the Respondent on a series of fixed term contracts for each academic year from 1stOctober 1998 up to May 2011 as a Lecturer mostly in the Industrial Engineering Department.
The Respondent submitted that the Complainant was a self-employed contractor on a contract for services basis up until late 2008. In August 2008 he became an employee of the University and was issued with a fixed-term contract for one year to expire on 31stJuly 2009. Thereafter he was employed on a casual basis until his retirement in May 2011.
Summary of the Complainant’s Case
Mr. J Doran B.L. instructed by Butler Monks Solicitors contended that despite his long employment association, the Respondent had at various times denied that the Complainant was employed as an employee on a series of fixed term contracts; it failed to recognise that he became entitled to a contract of indefinite duration by operation of law and it treated him less favourably than comparable permanent employees in respect of his conditions of employment.Mr. Doran submitted that the Labour Court may draw an inference that this failure on the part of Respondent to inform the Complainant of the objective grounds for the renewal of his contracts was because there were none and that the Respondent was merely attempting to avoid its obligations under law.
Finally, Mr. Doran submitted that the Respondent had issued the Complainant with fixed-term contracts until 31stJuly 2009 and on expiry of that purported fixed term contract it retrospectively purported to engage him as a casual part-time employee.
Mr. Doran submitted that having completed his third year of continuous employment with the Respondent the Complainant’s fixed-term contract of employment was renewed for longer than one year and/or on more than one occasion, the aggregate duration of which exceeded four years. He submitted that the renewal of the Complainant’s fixed-term contract was not justified on objective grounds. Consequently by operation of law his contract of employment with the Respondent became a contract of indefinite duration on 1st July 2004.
By letter dated of 29thJune 2009 the Respondent wrote to the Complainant advising him that his"fixed term is due to finish on 31stJuly 2009"
The Complainant responded by e-mail dated 9th July 2009 stating that he had been working in the University on a fixed term contract basis on every Monday of each semester since 1998 in the Industrial Engineering and I.T. /Informatics Departments, and that this had changed in August 2008 to a 12 month, 4 day week basis. He said that he had been given to understand that the courses he was running for second year Health & Safety and the Quality Management Course for second year B.Comm would continue for the next year and would probably require him to revert back to a September to June fixed-term contract from 1stSeptember 2009.
In the email he sought all entitlements, including pension entitlements, due under the Act pertaining to his employment as a fixed-term employee of 11 years.
Mr. Doran submitted that during his period of employment the duties carried out by the Complainant were similar to and of equal value to that carried out by comparable permanent employeesandthe manner in which the work was carried out in the period 1998 to 2007 was in all material respect the same as the work carried out by him in the period 2008 to 2011.
Mr. Doran submitted that the classification of the Complainant as an independent contractor does not reflect the factual situation. Rather this classification was an administrative convenience used to hide the actual position from the Higher Education Authority and the Department of Education and Skills in relation to employment levels within NUIG. This it is contended was not unique to the Complainant but was and is an established practice.
Summary of the Respondent’s Case
Mr John Brennan, Ibec, on behalf of the Respondent stated that up until late 2008 the Complainant supplied contracts for services as a self-employed contractor to the University. He used the sole trader status and name of 'Business Excellence Systems' which was registered for VAT as a registered business name. The business was set up as a consultancy/sole trader service by the Complainant supplying services to the University and other interests and customers around the country.
Up until August 2008 he was not employed as an employee on a contract of service with the Respondent.He invoiced the Respondent up to that point as a sole trader. Mr Brennansaid that since late 2008 he was employed by the Respondent on a casual part-timeemployee basis and accepted that from August 2008 up until his retirement in May 2011, the Complainant was an employee of the Respondent, working under a series of employment contracts, the first of which was for 12 months and the rest were casual. He was paid through the normal payroll system. Therefore, while the Respondent accepted that the Complainant had locus standi to take his claim under the Act in 2011, it denied that he was entitled to a contract of indefinite duration as he did not have the required four years continuous service as an employee.
Preliminary Issue - Timing of Complaints
The Rights Commissioner decided that, pursuant to Section 14 (3) of the Act he had no jurisdiction to hear the complaints referred because they were presented outside the prescribed six month time limit. An application to extend the time in accordance with Section 14(4) was made to both the Rights Commissioner and the Court.The Respondent submitted that the Labour Court has no jurisdiction to hear this case on the grounds that the complaints were submitted to the Rights Commissioner outside the statutory time limit.
Summary of the Respondent’s Case on the Timing of Complaints
Mr Brennan submitted that as the Rights Commissioner ruled only on the preliminary issue before him, i.e. the question of time limits and jurisdiction then that is the only issue on appeal to the Court.
Mr. Brennan stated that the Rights Commissioner was correct in his Decision. Under Section 14(3) of the Act, neither a Rights Commissioner nor the Labour Court can entertain a complaint, if it is presented after a period of six months beginning on the date of the contravention or the date of termination of the contract of employment concerned, whichever is the earlier. He said that the Complainant presented his claim to the Rights Commissioner on 14thMarch 2011. Therefore the time limit runs from six months before that date, i.e.14thSeptember 2010.Anything earlier than that is statute barred.Therefore, Mr. Brennan argued that all the Complainant’s complaints under various sections of the Act, as outlined in his complaint form, were in one way or another statue barred if they predated 14thSeptember 2010.
Mr Brennan denied the Complainant’s allegation that the reason for the delay in submitting his complaints to the Rights Commissioner was due to the behaviour of the Respondent towards him, in particular he denied the reference to the "constant changes in position". Mr Brennan said that the Respondent issued a written contract of employment to the Complainant on 11thJuly 2008 which was duly signed and accepted by him on the 21stJuly 2008. It was a contract of employment with effect from 1stAugust 2008 for a period of one year. This and written communication to the Complainant dated 22ndJuly 2009shows the Respondent's position from this date forward when he was clearly on a contract of employment.
Inthis correspondence the Respondent referred directly tothe Complainant’s
fixed-term contract of employment and confirmed that the previous correspondence
dated 29thJune 2009 was inrelation to hisfixed-term contract of employment.The subsequentparagraph confirms that apart from the above position,he had been engaged under the company name “Business Excellence Systems” and assuch was a
self-employed contractor.Onthe 24thJuly 2009 the Pensions Office ofthe University wroteto him outlining the pension entitlements to which hehad accrued and advised him of the options etc. Onthe 7thAugust 2009 the University's Pensions Office again wrote to the Complainant stating that his service was reckonable only from the 1stAugust 2008 through to the 31stJuly 2009.Mr. Brennan submitted that it was clearfrom these correspondences that the Complainant could have beenin no doubt as to his
status prior to 1stAugust2008 and his changed status from that date. Despite having this knowledge, Mr. Brennan submitted that the Complainant failed to move in good time, i.e. within thestatutory time limit provided for under the Act and consequently there was noreasonable cause shownto satisfy an extension of the 6 month time limit.
Mr. Brennan contended that the Complainant had also engaged in considerable delay and acquiesced to his status as a self-employed person. He never challenged his status as self-employed consultant/ sole trader untilthe summer of 2009, albeit his services had been used by the University since 1998 as a sole trader. He never tried to dispute his status or prove he was an employee or establish he was an employee prior to 2009, eleven years after he first provided services to the University as a self- employed person.He was at the time self-employed and so registered with the Revenue and gave tax clearance certs for some years. He did not raise the question of his employment status with the University.Henever sought to enforce his entitlements until March 2011.
- Summary of the Complainant’s Case on the Timing of Complaints
Mr. Doran submitted that thetest to be applied in considering if a time limit can be extended on grounds of reasonable cause was set down by this Court in Determination DWT0333-Cementation Skanska v Tom Carroll,as follows:-
- "It is the Court's view that in considering if reasonable cause exists, it is for the claimant to show that there are reasons which both explain the delay and afford an excuse for the delay.The explanation must be reasonable, that is to say it must make sense, be agreeable to reason and not be irrational or absurd.In the context in which the expression reasonable cause appears in the statute it suggests an objective standard, but it must be applied to the facts and circumstances known to the claimant at the material time. The claimant's failure to present the claim within the six-month time limit must have been due to the reasonable cause relied upon. Hence there must beacausal link between the circumstances cited and the delay and the claimant should satisfy the Court, as a matter of probability, that had those circumstances not been present he would have initiated the claim in time.
The length of the delay should be taken into account. A short delay may require only a slight explanation whereasalong delay may require more cogent reasons. Where reasonable cause is shown the Court must still consider if it is appropriate in the circumstancestoexercise its discretion in favour of granting an extension of time.Here the Court should consider if the respondent has suffered prejudice by the delay.”
Mr. Doran stated that the behaviour of the Respondent towards the Complainant and the constant changes in position gave rise to reasonable cause. He contended that the denial of the Complainant's rights under the Act constitute a continuum or a "chain of events". He stated that the Court and the Equality Tribunal in exercising their jurisdiction under the Equality Acts have found that discrimination cases may involve a series of alleged incidents, some occurring more than six months before the complaint is referred. Quite often complaints are made about successive discriminatory incidents where the most recent was in time but others were not. The cases disclose that in such situations the complaints that arose before the six months will be deemed to be within time provided the incidents are similar and related. He citedANamed Female Employeev ANamed Respondent,Dec-E2003-001where the Equality Officer held that the Tribunal had jurisdiction to investigate certain incidents occurring outside the six month time limit because they were related to the most recent act complained of, which fell within the six months before referral.
- “… and should also consider if the claimant hasagood arguable case”.
Mr. Doran submitted that with the coming into force of the Act the Complainant became entitled, by operation of law, to a contract of indefinite duration. The Respondent not merely failed to acknowledge his entitlement to a contract of indefinite duration but denied his status as an employee. He submitted that because of this the fixed-term contracts ofemployment of the Complainant, by operation of law became contracts of indefinite duration and the Complainant was not obliged to bring a complaint in order to obtain a contract of indefinite duration or vindicate his rights under law.
Mr. Doran cited the case ofCounty Cork VEC v Hugh Rance FTD 0818which encapsulates the position regarding the refusal/failure of an employer to offer a contract of indefinite duration. In that case the Labour Court took the view that the failure to offer a contract of indefinite duration can be regarded as a continuing act commencing on the date on which the complainant /employee became entitled to one and extending over the period of employment with the Respondent.Furthermore,theLabour Court took theview that thecomplaintsunderSections6 and 10also involvecontinuing
breachesand are thereforeadmissible.
Court’s findings on the Preliminary Issue of Timing of Complaints
The Court notes that the reason given to the Rights Commissioner for the delay in submitting the complaint was due to Complainant’s misunderstanding that the six months stipulation for the lodging of the complaints would only commence after the breakdown of local discussions, these occurred after he received the Respondent’s letter dated 10thOctober 2010.
The alleged date of the contract of indefinite duration was due on 1stJuly 2004; the alleged failure to provide him with written statements setting out the objective grounds justifying the renewal of his fixed term contracts occurred between July 2004 and September 2009; the alleged failure to provide him with access to training opportunities occurred in July 2004; the alleged pensalisation when he was removed from the e-mail system and denied access to the online learning tool (Blackboard) occurred between 27thJuly and 11thSeptember 2009. The complaint was referred to the Rights Commissioner on 14th March 2011. Therefore all alleged incidents occurred outside the prescribed six month time limit. Even if the Court were to grant an extension under Section 14(4) to enlarge the time for the bringing of the complaint to eighteen months, i.e. back to 15thSeptember 2009, it would still not encompass the complaints made. However, the Court is of the view that where a Respondent fails to recognise the permanent nature of the Complainant’s employment by operation of Section 9(3) this may be regarded as a continuing contravention of the Complainant’s statutory rights.
In the case ofHSE Dublin North East and Ali Umar FTC/09/28,this Court held as follows:
- “The Complainant was not obliged to bring a complaint to a rights commissioner in order to obtain a contract of indefinite duration; he obtained such a contract by virtue of Section 9(3). In so far as there was a contravention of the Complainant’s legal rights, which would arise if the Respondent could not rely on Section 9(4), it was the Respondent’s failure to acknowledge his status as a permanent employee by operation of law.”
The Court went on to say that, because there was a“continuing breach”of the Act by way of failure to acknowledge the entitlement to a contract of indefinite duration that it did“not accept that the Complainant’s complaint was presented after the expiry of the time limit prescribed by Section 14(3) of the Act.”
Accordingly, the Court is of the view that it has jurisdiction to entertain the complaint under Section 9 and therefore, overturns the Rights Commissioner’s decision in this regard.
The complaint under Section 8 is inadmissible as it involves a discrete breach of the provisions of the Act and the complaint in respect of that breach was not made within either the six months of the breach or within eighteen months if the Court were to grant the application for an extension of time. The Court may however draw such inferences as it sees fit from the failure to furnish objective grounds for the renewal of the Complainant's fixed term contract when considering his complaint under Section 9.
Accordingly, the Court must hold that the complaints under Sections 6, 8, 10 and 13 are statute barred. The Court will proceed to hear the complaint under Section 9.
Mootness
The Respondent did not dispute the Complainant’slocus standiand his right to the protection under the Act in respect of his employment post 1stAugust 2008. However, it disputed hislocus standiprior to that date and consequently submitted that the Court has no jurisdiction to determine his complaint under Section 9 where he seeks an entitlement to a contract of indefinite duration from 1stJuly 2004.
In order to determine the Complainant’s status it is necessary to examine the Complainant’s individual situation on its own facts. This requires the Court to hear evidence from the Complainant and a number of other witnesses and to examine the legal complexity surrounding the distinction between a contract of service and a contract for services, these are significant issues which would have to be considered if the Court were to determine the issue of the Complainant’s status raised in this appeal. Such an exercise may not be necessary if the claim before the Court is moot.
The object of a Section 9 complaint is to have an unlawful term in a contract providing for its expiry by efflux of time severed, it does not grant entitlements in respect of allegations of less favourable treatment, it is declaratory relief.
In such a situation a declaration that a contract was transmuted to one of indefinite duration in circumstances where the contract has already come to an end would be of no practical significance to the Complainant. Therefore, in such circumstances a complaint grounded solely on Section 9 of the Act would be moot.
The Court raised this question with the parties, in circumstances where it appeared to it that the Complainant is seeking a contract of indefinite duration effective from1st July 2004, yet he has been working continuously in the University until he retired on 12thMay 2011. The Complainant identified the issue of his pension entitlement as the only detriment he claimed he suffered due to the alleged contraventions of the Act by the Respondent. The Court notes that the issue of pension entitlements was the subject of separate proceedings under the Act, the Rights Commissioner’s has issued his Decision and that Decision is also on appeal to the Court, under separate proceedings.
If the Court were to find that the alleged breach of Section 9 of the Act is effectively moot it may dispose of the case. The Court drew the parties attention to two cases dealing with this question,Department of Education and Science v Deborah Skelly Determination No.EDA0813andElectricity Supply Board v James Killally Determination No FTD122. Both parties issued written submissions on this point and the Court conducted a hearing to take into consideration the arguments made by both parties.
The above cases relate to situations in which the relief sought was of no practical significance to the parties and the purpose of the claim was to decided ancillary questions, which if answered in one parties benefit might bring collateral advantages. InSkellythe complainant brought a claim under the Employment Equality Act1998 and 2004 in a dispute with the Department of Education concerning its refusal to sanction a career break so as to enable her to study for the Bar. Her claim was taken against the Department rather than the school in which she was employed. The Equality Tribunal found that the Department was the appropriate respondent but found against Ms Skelly on the merits of her complaint. The Department appealed against the finding that it could be impleaded in the case. Since the original claim was initiated, Ms Skelly had completed her studies, had resigned as a teacher and was in practice at the Bar. Ms Skelly had not appealed.
The Court took the view that the relief sought in the case was redress for an alleged act of discrimination. Ms Skelly no longer wished to pursue that claim. The Department argued that it was disadvantaged by the decision of the Equality Tribunal that it could be impleaded in circumstances in which it was not the complainant's employer. They claimed that the precedent set by the decision could operate against its interest in future cases. The Court took the view that as Ms Skelly was no longer pursuing a claim against the Department a decision in the case would have no practical consequence for the matter before the Court (whether or not Ms Skelly suffered discrimination) and that the Department was no longer on hazard of having an award made against it. Accordingly it held that the case was moot.
InKillallyan issue arose as to whether or not the complainant was employed on a contract of service so as to afford himlocus standiunder the Act of 2003. He was retired at the time of the hearing. He had no section 6 claim although it was clear that his objective was to secure a pension in respect of his service while designated as a contractor. The claim before the Court was for a contract of indefinite duration and his Counsel contended that since his prior fixed-term contract had no retirement age the contract of indefinite duration to which he became entitled would not have contained a term entitling the ESB to force him to retire at any particular age. The Court took the view that even if Mr. Killally succeeded in his claim for a contract of indefinite duration it would have contained a term providing for his retirement at age 65, in common with all other permanent employees of ESB. As he was already over that age a finding in his favour on the point actually before the Court could have no practical significance for Mr. Killally.
Summary of the Complainant’s Position on Mootness
Mr. Doran, on the issue of mootness,submitted that Section 14(2) of the Act provides that an"employee or any trade union of which the employee is a member, with the consent of the employee may present a complaint to a rights commissioner that the employer has contravened any provision of this Act in relation to the employee and, if the employee or such trade union does so the commissioner shall …".He submitted that the Act in its definition of employee/contract of employment under Section 2 of the Act expressly provides for the situation where the employment relationship has ended, thereby providing for a post retirement situation.
Mr. Doran said that in theSkellycase there was no appeal regarding the practical effect of the decision at firstinstance and Ms. Skellyhad not in fact appealed. The Complainant in the instant case is appealing the very essence of the appeal at firstinstance and its practical effect.
Mr. Doran referred to theKillallycase and submitted that on its facts while there are similarities to that in the instant case it differs on some points. The Complainant in the instant case has at all times sought to enhance his status as an employee. In theKillalycase the Labour Court held that the complainant could not be held to have suffered any detriment warranting an award by reason of the Respondent's failure to continue his employment beyond the normal retirement age within the employment. In theKillalycase there was no Section 6 claim consequently questions concerning the pensionability of his employment did not arise. In the instant case Mr. Doran referred to the separate proceedings concerning the pension claim before the Rights Commissioner.
Mr Doran referred toGoold v Judge Collins and Others[2004] IESC38 which the Supreme Court in a unanimous judgement, where Mr. Justice Hardiman described the concept of mootness in the following terms:
- "A proceeding may be said to be moot where there is no longer any legal dispute between the parties.The notion of mootness has some similarities to that of absence of locus standi but differs from it in that standing is judged at the start of the proceedings whereas mootness is judged after the commencement of proceedings. Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs,the eventual decision would be of no practical significance to the parties."
Hardiman J held that the rationale for modern mootness rules were well expressed in the leading Canadian case ofBorowskiv.Canada [1989] 1 SCR342.ln that case the Supreme Court of Canada held that:
- "An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceedings is commenced but also when the Court is called upon to reach a decision. The general policy is enforced in moot cases unless the Court exercises its discretion to depart from it."
The Supreme Court of Canada went on to say that Courts should be guided in the exercise of the discretion to hear a moot case by a consideration of the underlying rationale of the mootness doctrine. This was expressed as follows:-
- "The first rationale for the policy with respect to mootness is that a court's competence to resolve legal disputes is rooted in the adversary system. A full adversarial context, in which both parties have a full stake in the outcome, is fundamental to our legal system. The second is based on the concern for judicial economy which requires that a court examine the circumstances of a case to determine if it is worthwhile to allocate scarce judicial resources to resolve the moot issue. The third underlying rationale of the mootness doctrine is the need for the Courts to be sensitive to the effectiveness or efficiency of judicial intervention and demonstrate a measure of awareness of the judiciary's role in our political framework. The Court, in exercising its discretion in an appeal which is moot, should consider the extent to which each of these three basic factors is present. The process is not mechanical. The principles may not all support the same conclusion and the presence of one or two of the factors may be overborne by the absence of the third, and vice versa."
In concluding his judgement Hardiman J stated inter alia that:
- " ... the present case is moot in the sense that it does not feature a live, concrete dispute between the parties:a decision on the outstanding issues would have no direct impact on the parties..."
Summary of the Respondent’s Position on Mootness
Mr Brennan raised the question - given that the Complainant retired in May 2011, what if any are the consequences if the Court saw fit to hold that he was entitled to a contract of indefinite duration. Mr Brennan also relied upon the above quote from Mr Justice Hardiman inGoold. For these reasons Mr Brennan held that the claim by the Complainant for a contract of indefinite duration was moot.
Court’s Findings
The Act of 2003 has two separate objectives; to provide for equal treatment of fixed-term workers and to prevent the abuse of fixed-term contracts. The scheme of the Act is to provide two separate and self-contained provisions by which each of these objectives can be pursued. The Court is of the view that the Complainant cannot rely on a provision intended to prevent abuse so as to achieve the result provided for by the provisions intended to achieve equal treatment. Section 6 of the Act provides the appropriate statutory mechanism by which a grievance concerning equal treatment can be pursued. However, in this case the Complainant did not pursue a claim under Section 6 of the Act until May 2011 in respect of the period 1998 to 2008, thereby allowing those rights to be extinguished by a statutory limitation period. Therefore he cannot revive that right by the taking of a section 9 claim.
As was found InMinister for Finance v Una McArdle[2007] 18 ELR 165 Laffoy J, the object of a section 9 claim is to have an unlawful term in a contract providing for its expiry by efflux of time severed. That is the only relief that can be granted (together with an ancillary award any compensation that is just and equitable in the particular circumstances). In this case the Complainant accepted his employment status with the Respondent over many years, therefore the Court is of the view that the question of compensation could not arise in either justice or equity. In these circumstances a declaration that a contract was transmuted to one of indefinite duration in circumstance where the contract has already come to an end would be of no practical significance to the Complainant, as he is now retired, a finding in his favour on the point before the Court is purely theoretical, accordingly the claim grounded solely on section 9 of the Act becomes moot.
Therefore, the dispute between the parties which is the subject of the instant claim does not require a determination of the question advanced in this application. Accordingly the Court is of the view that it is not necessary to consider this matter as the question raised is moot and should not be dealt with by the Court.Determination
The Court finds that the claims under sections 6, 10, and 13 of the Act were out of time and accordingly the Court is statute barred from hearing them. The Court finds that the claim under section 9 of the Act is moot and accordingly makes no finding under that section of the Act.
Therefore, the Complainant’s appeal fails.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
13th April 2015______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.