FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NATIONAL UNIVERSITY OF IRELAND MAYNOOTH (REPRESENTED BY MCDOWELL PURCELL SOLICITORS) - AND - DR. JENNIFER WOOD (REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Ms Tanham |
1. An appeal of a Rights Commissioner's Decision no: r-140219-ft-13/EOS.
BACKGROUND:
2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 5th March 2015. Two Labour Court hearings took place on the 22nd April 2015 and on the 9th June 2015. The following is the Labour Court's Decision.
DETERMINATION:
This is an appeal by Ms Jennifer Wood against the Decision of a Rights Commissioner in a claim against her former employer the National University of Ireland Maynooth under the Protection of Employees (Fixed Term Work) Act 2003 (the Act).
The substance of the Complainant’s claim is that she became entitled by operation of law in accordance with the provisions of Section 9(3) of the Act to a contract of indefinite duration from 1stSeptember 2010. She claims that this entitlement arose from having completed more than four years continuous fixed-term employment and in the absence of objective grounds justifying the failure to offer her a contract of indefinite duration. The claim was referred to the Rights Commissioner Service on 28thNovember 2013. The Rights Commissioner found that due to the nature of the occasional/ casual work undertaken by the Complainant from September 2008 to July 2009 that she did not acquire the required four years aggregate service to qualify for a contract of indefinite duration under Section 9 of the Act.
In line with the normal practice of the Court the parties are referred to as they were at first instance. Accordingly, Ms Wood is referred to as the Complainant and the National University of Ireland Maynooth is referred to as the Respondent.
The facts of the case are not in dispute and can be briefly stated. The Complainant was employed by the Respondent in the Spanish Department on fixed-term contracts from
1stSeptember 2006 until her employment was terminated on 31stMay 2013 and she was paid a statutory redundancy payment but refused to accept it.
Her contracts were as follows:-
- 1stContract
1stSeptember 2006 – 31stAugust 2007 as a temporary Junior Lecturer
providing cover for Dr Catherine O'Leary who was on sabbatical leave.
2ndContract
1stSeptember 2007 – 31stAugust 2008 as a temporary Junior Lecturer
providing cover for Dr Catherine Leen who was on sabbatical leave. The contract explains why a further fixed term/specified purpose contract was required and why a contract of indefinite duration was not offered.
3rdPeriod of Employment
19thSeptember 2008 – 25thAugust 2009 the Complainant had occasional working hours at the University. The number of hours of work per week varied depending on the work available throughout this period. The work related to correction of written exams and essays,assessment of oral
exams, first year exam script preparation,tutoring and co-teaching of modules. The Complainant was not provided with a contract(s) of employment for this period.
4thContract
1stSeptember 2009 – 31stAugust 2010 as an Assistant Lecturer providing cover for Dr.Barnwell who was on sabbatical leave, as specified in the fixed term contract.
5thContract
1stSeptember 2010 – 31stAugust 2011 as an Assistant Lecturer providing cover for Professor John Kinsella who was on sabbatical leave, as specified in the fixed-term contract.
6thContract
1stSeptember 2011 – 30thJune 2012 as a temporary replacement Lecturer
in relation to the absences of Dr Catherine O'Leary and Professor John Kinsella on approved sabbatical leave, as specified in the fixed term contract.
7thContract
3rdSeptember 2012 – 3rdMay 2013 in relation to the absence of Dr
Catherine Leen on maternity leave, as specified in the fixed term contract.
8thContract
1stMay 2013 – 31stMay 2013 in relation to the absence of Dr Catherine Leen extended maternity leave, as specified in the fixed term contract.
Summary of the Complainant’s Case
Ms Joan Donegan, IFUT, on behalf of the Complainant stated that during the period19thSeptember 2008 to 25thAugust 2009when the Respondent deemed the Complainant as “occasional” staff even though there was no substantive difference in the work undertaken by her between this periods and other periods when she had a fixed term contract in place, her hours in the period19thSeptember 2008 to 25thAugust 2009were 13.75 hours per week in Semester I and 12.25 per week in Semester II. The Complainant taught the second year Spanish course for the first time during the 2008 - 09 period. However,she went on to teach them again the followingacademic yearsin 2009-10, and again in 2010-11 and 2011-12.
The Complainant taught on the NUI Certificate in Spanish course in Kilkenny in the academic years 2007-08, 2008-09 and 2011-12 and was solely responsible for the course in the academic year 2008-09.
Ms Donegan submitted that in reality there was no substantive difference in the work undertaken by the Complainant between the periods when she had a written contract and the periodfrom19thSeptember 2008 to 25thAugust 2009 when she did not.She contended that the Complainant was in continuous employmentfor over six years, and the period during the academic year2008-09 did not break her continuity of employment as defined by the Act.
Ms Donegan disputed the Respondent’s contention that there were objective grounds for the renewal of the Complainant’s employment in September 2010 when she became entitled to a contract of indefinite duration by operation of Section 9(3) of the Act. She contended that the contract issued was designed to cover for Professor Kinsella in name only. She said that simply naming the person absent on leave in the fixed-term contract is not sufficient in itself to discharge the burden of proof that lies with the Respondent. It must also show that the work being undertaken by the person on that fixed-term contract of employment amounted to a genuine replacement of the person on leave. The Respondent must demonstrate the reality of the replacement in order to rely on Section 9(4) of the Act. In support of her contention, Ms Donegan citedUCD v.WorkerFTD 1129 where the employer argued that the complainant had been employed on fixed term contracts to cover maternity leave to named employees. The Labour Court held there was no objective grounds and found that the complainant undertook work that had no relationship to that which had been carried out by the two staff members whom she was allegedly replacing.Instead she had carried out substantially the same work before they went on maternity leave as she did after.
For the academic year 2010-11, when she was covering for Professor Kinsella, she said that the Complainant undertook completely different work to that carried out by the Professor, with the exception of one full and one part module. During his absence on sabbatical leave there was no change in the senior administrative responsibilities, these were already been carried out by senior management (Dr O'Leary), therefore she contended that there was no need for any significant reallocation of duties or reorganisation.
For the academic year 2011-12, when she was covering for Dr O’ Leary and for Professor Kinsella, she said that the Complainant was undertaking completely different work to that carried out by both with the exception of one part module.
Ms Donegan contended that there was a continuous requirement for the Complainant to work in the Spanish Department, for the academic year 2012-2013whenthe post that she had undertaken for the previous two academic years was offered on a fixed-term basis to an external candidate. She said that the Respondentobviously required extra staff in the Spanish Department, as not one but two fixed term posts were created in this period, one in 2011-2012 (renewed 2012-2013) and one in 2012-2013 (renewed until 2015) which suggests that there was a need for extra staff in the Department due to the introduction of the MA programme.The new Spanish MA programme introduced in 2010-2011 necessitated a general increase in lecturing hours by all academics in the Spanish Department, including the Complainant.
Ms Donegan contended that if the re-organisation of the Department was solely due to the seniority of Professor Kinsella, then one would assume that the Department would revert to the previous work allocation on his return. However, this did not happen and the Complainant retained most of her roles and teaching duties.
She stated that Dr O’Leary was also Acting Head of Department in 2009-10 prior to Professor Kinsella's sabbatical in 2010-11 so had already assumed the larger portion of his senior administrative or non-teaching responsibilities in the previous year.
Kilkenny Course
Ms Donegan stated that the NUI Certificate in Spanish came under the auspices of the Adult Education Department and Kilkenny Campus. The Certificate was proposed to the University by Professor Kinsella. In 2008-09,the Complainant delivered, administered, coordinated and assessed the entire course, she prepared the exam papers which were approved by the Spanish Department's external examiner.The Oral Examinations were conducted by the Complainant and Professor Kinsella.The Complainant attended Open Evenings in Kilkenny to promote the Certificate and dealt with enquiries and other correspondence in relation to it. She submitted that it was one of the complainant’s acknowledged duties.Due to demand in Kilkenny, the Complainant was also in the process of preparing documentation to propose the running of a NUI Diploma in Spanish.
Summary of the Respondent’s Position
Mr Barry Walsh, McDowell Purcell Solicitors on behalf of the Respondent denied that the Complainant was entitled to a contract of indefinite duration as she did not have the requisite service under Sections 9(1) and 9(2) and furthermore he submitted that there was objective justification under Section 9(4) of the Actfor the use of successive fixed term / specified purpose contracts as the purpose of same was to cover for approved sabbatical leaves. Mr Walsh contended that for the period from 19thSeptember 2008 until 25thAugust 2009 the Complainant was not on a fixed term/specified purpose contract of employment. She was not provided with a contract of employment for the period as she had occasional working hours at the University. The number of hours of work per week varied depending on the work available throughout this period. The work related to correction of written exams and essays,assessment of oral exams, first year exam script preparation,tutoring and co-teaching of modules.It was very different to the previous engagements.
With reference to the claim for a contract of indefinite duration from 1stSeptember 2010, Mr Walsh submitted that from 1stSeptember 2010 to 31stAugust 2011, the Complainant was employed as an Assistant Lecturer in relation to the approved sabbatical leave of Professor Kinsella.Her contract was expressly stated to be fixed term and the contract,covering letter and Contract Staff Appointment Form stated that the employment was related to the absence of Professor Kinsella on sabbatical leave.Herfixed term contract required a reallocation of teaching modules and administrative duties in the Spanish Department.He told the Court that on the termination of her employment on 31stMay 2013 the Complainant was paid a redundancy payment.
Mr Walsh contendedthe use of a fixed-term contract to provide for an employment need created by a sabbatical absence can be an appropriate and necessary means of
achieving a legitimate objective as in the instant case for the renewal of the Complainant’s employment. In support of this contention he citedO'Keeffe v NUI MaynoothFTD 1411 of 4 June2014where the Court stated the following:-
- "it seems clear that the provision of sabbatical leave isadesirable objective which brings benefits to both the University and the teacher who avails of the leave.During the period of leave the University must continue to provide tuition to its students and it must provide that tuition while recognising the right of the teacher on leave to return to his orher post at the end of the leave.The Court has found as afact that the Claimant's employment was renewed on 1stJune 2012 for the purpose of replacing Dr Coulter during the currency of his sabbatical leave.In these circumstances the Court accepts that her
employment onafixed-term contract was both appropriate and necessary to achieve the legitimate objective of providing tuition for the duration on that sabbatical."
Mr Walsh strenuously denied the assertion that the Complainant had created her own free standing role or that she would have been required regardless of the existence of the sabbatical leave. The Respondent is not required to engage an exact or direct replacement of the employee on sabbatical leave. Heasserted that it is legally entitled to engage a person with a different skill set that does not necessarily match the skill set of a person on sabbatical leave.Furthermore, it is entitled to generally reallocate work within a group or department to match skill sets while the replaced employee is on sabbatical leave. He said that there was a significant reallocation of work within the Spanish Department in the academic year 2010-2011 in order to facilitatethe sabbatical of Professor Kinsella.Given the seniority of Professor Kinsella's role,the other most senior members of the Department took on most of his faculty and administrative duties. This resulted in a very significant reorganisation or reallocation of work which meant that the Complainant took on some of the duties previously allocated to the senior members of the faculty.
Mr Walsh citedUniversity College Dublin and a WorkerFTD 1129 where the Court held that the employer, when relying on sabbatical leave as objective justification:-
"must also show that the work being undertaken by the person on that fixed-term contract of employment amounted toagenuine replacement ....The Court takes the view that this might be either by way of a simple and direct assignment of the work of those on leave to the person who was contracted to replace them.Alternatively,it might be by wav of a general reallocation of work within agroup to match skill sets whilst the replaced personnel are on leave."
Mr Walsh also relied upon the caseMcManus v Athlone Institute of TechnologyFTD 1410 Here the Court referred to the test established inUniversity College Dublin v A Workerand held that:-
- "the evidence established that there wasarelationship between the work performed by the Claimant and that performed by the absentee in that they were both lecturers in Accountancy.Furthermore, the Court accepts that the Respondent did engage inageneral reallocation of the work in the Department in question.Accordingly the Court accepts as afact that there wasareallocation of teaching duties within the relevant Department.The Court also accepts that there wasaclearly discernible relationship between the work performed by the Claimant and that performed by Ms Sin that they both lectured in Accountancy"
Mr Walshsaid that it was important to note that the modules taught by academics changed from one year to the next and the allocation depended on a number of factors, such as expertise, specialisms, administrative responsibilities and timetable clashes.At this time, there was a University wide re-organisation of the module system and some of the modules he had delivered were discontinued.As the Complainant did not specialise in the subject matter of the majority of Professor Kinsella's modules, this necessitated a general reallocation of these modules to the other senior academics within the Spanish Departmentand she was timetabled to deliver predominantly core modules to more junior level students, primarily first and second year undergraduates.A new MA programme was also introduced in 2010-2011 and this necessitated a further reallocation of modules and a general increase in lecturing hours by all academics in the Spanish department.
Furthermore he stated that the Certificatein Spanish (Kilkenny) Co-ordinator and the Leaving Certificate Revision Day Course were not run by the Spanish Department and she was not required by the Spanish Department to undertake this work.
Mr Walsh addressed the issue of the Professor Kinsella’s non-teaching responsibilities, these were taken over by another senior colleagueDr O’Leary and thereforethe Complainant assumed some of Dr. O’Leary’s modules.
The Complainant also undertook some administrative roles (i) second year coordinator for the academic year 2010-2011, a post that was carried out by Professor Kinsella prior to his sabbatical (ii) Mature Student Officer for 2010-2011 and (iii) Disability Officer.
For the academic year from 1stSeptember 2011 until 30thJune 2012 the Complainant provided cover for both Dr O'Leary and Professor Kinsella on approved sabbatical leave and the anticipated dates of such leave was indicated at that time.Professor Kinsella availed of the Incentivised Early Retirement Scheme announced by the Government and retired on 29thFebruary 2012, at that point the academic year had not yet concluded and the need the Complainant was engaged for still remained, therefore the contract in situ ran its course
In the new academic year following Professor Kinsella's retirement, the Complainant was providing cover for Dr Leen who was on maternity leave and the Respondent recruited an external candidate to cover from 6thSeptember 2012 until 31stAugust 2013 pending the advertising of a permanent replacement for the Professor, this was extended for a further academic year. Anew Professor was appointed in January 2014.
Preliminary issue
The Court considered the question of whether thenature of the occasional/ casual work undertaken by the Complainant from19thSeptember 2008 until 25thAugust 2009has the effect of breaking continuity of employment, as held by the Rights Commissioner. During this period the Complainant worked as an Occasional Lecturer, working on average approximately 14 hours per week in Semester I and just over 12 hours per week in Semester II.
Continuity of employment for the purposes of the Act is defined by the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2001, which provides as follows: -
- 1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—
- ( a ) the dismissal of the employee by his employer or
( b ) the employee voluntarily leaving his employment.
3. A lay-off shall not amount to the termination by an employer of his employee's service.
4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.
5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.
6. The continuous of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee. - ( a ) the dismissal of the employee by his employer or
In the circumstances of this case, the Court can find no grounds why the Complainant’s employment from19thSeptember 2008 until 25thAugust 2009could break continuity of employment and therefore does not uphold the Rights Commissioner’s finding on this point.
The Law
In this case the relevant statutory provisions are to be found in Sections 7, 8 and 9 of the Act. The Act was enacted so as to transpose into domestic law the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the then European Communities. Consequently the provisions of the Act must be interpreted and applied so as to achieve the objective pursued by the Framework Agreement.
The purpose of Clause 1 of the Framework Agreement is twofold. Firstly, to improve the quality of fixed-term work by applying the principle of equal treatment to fixed-term workers. Secondly, it is intended to provide a framework for the prevention of abuse arising from the successive use of fixed-term employment contracts.
Section 9(2) of the Act, which is relevant for present purposes, provides:-
- (2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed four years.
Section 9(4) provides that subsection (2) and (3) does not apply were there are objective grounds justifying the renewal.
Section 7 (1) of the Act deals with what constitutes objective grounds for this purpose and provides:
- (1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
Subsection (3) of Section 9 of the Act is of particular significance in the instant case. It provides:
- (3) Where any term of a fixed term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
InMinister for Finance v Una McArdle[2007] 18 ELR 165 Laffoy J quoted with approval the following passage from this Court’s Determination in the case in which the effect Section 9(3) was considered:
- “That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms as to pensionability and termination, which, as already observed, would have had to be aligned with those of a comparable permanent employee in accordance with section."
Section 9(4) of the Act allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene subsections (1) or (2)where there are objective grounds for so doing. This provision allows for a derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the subsection (see the dictum of the CJEU to that effect in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430. As in any case in which a party relies on a statutory defence it is for that person to prove the facts necessary to make out the defence.
Objective Justification
There is a wealth of authority in the jurisprudence of the Court of Justice of the European Union on how the concept of objective justification should be applied. InAdenelerthe CJEU made it clear that the grounds relied upon must be objectively justified by reference to the work actually performed and the circumstances under which it is performed.
Again inAdenelerand in C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071, the CJEU drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category.
If there were no objective grounds justifying the renewal of the Complainant’s employment the contract which commenced with effect from 1stSeptember 2010 would have become one of indefinite duration by operation of Section 9(3) of the Act.That is the contract which the Court must examine in terms of the objective grounds for its renewal on a fixed-term basis beyond the period normally permitted by Section 9(2) of the Act.
In this case the Respondent’s reliance on Section 9(4) is grounded upon the premise that the Complainant was covering for Professor Kinsella who was on sabbatical leaveand this required a reallocation of teaching modules and administrative duties in the Spanish department.The Complainant asserted that she undertook completely different work to that carried out by the Professor, with the exception of one full and one part module, therefore the grounds relied upon by the Respondent did not correspond to the reality of her employment and that the objective grounds stated in her fixed-term contract were not the reality of the situation.
As previously stated, in considering if the renewal of a fixed-term contract gives rise to a contract of indefinite duration the Court should look no further than the objective grounds relied upon for the contract thatprima faciecontravenes Sections 9(1) or 9(2) of the Act. That appears to be the import of the decision of the High Court inHSE v Umar[2011] 22 ELR 229. In this case the Complainant has been employed on fixed-term contracts covering for colleagues on sabbatical leave/maternity leave, other than for one academic year when she was employed to work occasional hours. There is no dispute that the named members of staff were on sabbatical leave/maternity leave during the relevant periods.
The Complainant stated that there was no substantive difference in the work she was carrying out with that normally carried out by Dr. O’Leary in 2006-07, Dr. Leen in 2007-08 and in 2012-13 and for Dr. Barnwell in 2009-10 while they were on leave, however she contended that that was not the case when she was covering for Dr. O’Leary and Professor Kinsella in 2010-11 and 2011-12.
The Respondent submitted that in renewing the Complainant’s employment for 2010-11 it complied with the objective justification requirements under Section 9(4) of the Act, as the Complainant continued to carry out teaching duties providing cover due to Professor Kinsella’s absence on sabbatical leave and for this reason she was not granted a contract of indefinite duration.
The Court has considered the submissions of both parties and notes that the Complainant’s teaching and administrative roles varied significantly from year to year due to the fact that she was replacing different academics each year. Furthermore, during the academic year 2010 -11 when she was covering for Professor Kinsella the MA programme in Spanish commenced with a consequently rise in student numbers. This coupled witha University wide re-organisation of the module system and a discontinuation of some of Professor Kinsella’s teaching modules resulted inthe Complainant being timetabled to deliver predominantly core modules to more junior level students, primarily first and second year undergraduates.
Moreover, with the reallocation of Professor Kinsella’s administrative duties to senior staff members and a general reallocation of teaching to match skill sets this resulted in the Complainant carrying out duties which were not a direct replacement of Professor Kinsella’s normal duties. The Court must consider whether in these circumstances the Complainant was genuinely employed on a fixed-term contract due to Professor Kinsella’s absence on sabbatical leave.
The Court accepts that as Professor Kinsella was Head of the Department, it was not unreasonable that a significant reallocation of work within the Spanish Department in the academic year 2010-2011 would take place in order to facilitate his sabbatical. Again due to his seniorityas Head of the Department, it was not unreasonable that themost senior members of the Department undertook most of his faculty and administrative duties. The Court can understand how in such circumstances this resulted in a very significant reorganisation or reallocation of work within the Department resulting in the Complainant taking on some of the duties previously allocated to the senior members of the faculty. In line withUniversity College Dublin and a Workerthe Court accepts thatwhile this was not byway of a simple and direct assignment of the work of Professor Kinsella to the Complainant contracted to replace him,it was by way of a general reallocation of work to a number of academic staff .
And furthermore in line withMcManus v Athlone Institute of Technologythe Court is satisfied that the evidence established that there was a relationship between the work performed by the Complainant and that performed by Professor Kinsella in that they were both lecturers in Spanish and there was a general reallocation of the work in the Department in question.
On that basis the Court is satisfied thatthe work undertaken by the Complainant amounted to a genuine replacement for Professor Kinsella while he was on sabbatical leave which was temporary in nature.In line withRussell v Mount Temple Comprehensive Schoolthe Court is satisfied that the objective grounds in this case were as specified in the Respondent’s offer of the position to the Complainant in its letter dated 19thJuly 2010 and in her contract of employment signed and dated on 2ndAugust 2010provides the objective grounds justifying her continued employment for a fixed-term beyond the period normally permitted by Section 9(2) of the Act.Therefore the Court finds that there were objective grounds justifying the successive renewal of the Complainant’s fixed-term contract within the meaning of Section 7 of the Act.
While the Complainant was retained on fixed term contracts post the 2010 – 2011 contract, she was retained to continue providing cover for Professor Kinsella’s sabbatical, in addition to Dr. O’Leary who was also on sabbatical that academic year. The terms of this fixed term contract were essentially on the same terms as the previous year, for which the Court has upheld the objective grounds. And the Complainant’s last period of employment was specifically to provide cover for Dr. Leen who was on maternity leave. On the return of Dr. Leen from maternity leave the Complainant’s employment was terminated and she was paid a redundancy payment in line under the provisions of the Redundancy Payments Acts 1967 – 2003. The decision of Hogan J inHolland v Athlone Institute of Technology[2012] 23 E.L.R 1 makes it clear that even if the Complainant had obtained a contract of indefinite duration by operation of law she could not be placed in a superior position to that of a worker whose status as a permanent employee was never in doubt. The Court makes no finding on the appropriateness of the selection of the Complainant for redundancy.
Determination
For the reasons set out herein the Court has concluded that the Complainant was not employed by the Respondent pursuant to a contract of indefinite duration. Consequently she cannot maintain a claim under the Act. In these circumstances the Complainant’s appeal is disallowed and the decision of the Rights Commissioner is upheld albeit, for substantially different reasons.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
25th June, 2015.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jonathan McCabe, Court Secretary.