FTD1510

This is an appeal by Dr Amanda Kelly (hereafter the Claimant) against the decision of a Rights Commissioner in her claim against National University of Ireland Galway (hereafter the Respondent) under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Claimant contends that the circumstances in which her employment with the Respondent came to an end on 21^stJuly 2013 amounted to penalisation within the meaning of s.13(1)(d) of the Act.

Following the hearing of the appeal the representative of the Claimant sought a facility to make supplemental submissions in writing on matters that emerged in the course of the hearing. The Court extended that facility to both parties. Further submissions were received from both parties and these, together with the original submissions advanced at the hearing have been taken into account in formulating this Determination

The facts

The material facts of this case are not in dispute and can be briefly stated. The Claimant was employed on a succession of fixed term contracts in various teaching roles. At the time her employment terminated she had accrued continuous service of three years and eleven months. The final contract on which the Claimant was employed commenced on 1^stAugust 2010. It is described as a “University Fellowship” The terms of this contract were recited in a document headed “Statement of Main Terms & Particulars of Employment” and “University Fellow (Teaching and Research) in Classics (Ancient and Medieval Art or Archaeology) -3 years”.

At clause 1 of the document, under the heading “Position and Duties”, the following appears: -

• “The University Fellowship is full time and temporary in accordance with the terms of these conditions effective from the 1^stAugust 2010 to 31July 2013. The appointment will not exceed the duration of this contract and, given the training nature of the fellowship, will be non-renewable”

• “In accordance with the Protection of Employees (Fixed Term Work) Act I am informing you that a permanent contract of employment is not being issued in this instance because this is a fixed purpose fellowship contract to provide training to the post holder through service to the School of Languages, Literature and Culture and to replace the teaching of Dr Edward Herring during his service as Dean of the College of Arts Social Sciences and Celtic Studies”

Position of the Parties

The Claimant contends that the refusal of the Respondent to accept her application for the Post of University Fellow, in April 2013, was an act of penalisation within the meaning of s.13(1)(d) of the Act. In advancing that contention it was pointed out on her behalf that when her contract came to an end on 31^stJuly 2013 she had accrued aggregate service of three years and eleven months. Against that background her exclusion from consideration for the post advertised in April (which was to commence in September 2013 and last for three years) prevented her fixed term contract from transmuting to one of indefinite duration by operation of s.9(3) of the Act.

The Respondent denies that the Claimant was penalised within the meaning of s.13 of the Act. It was submitted on its behalf that the Claimant’s employment terminated when her fixed term contract expired by effluxion of time. The Court was told that the consistent policy of the Respondent is to fix Fellowships at three years duration and that they are non-renewable. This is based on the nature of a Fellowship, which is regarded as being for the purpose of providing training or development. It was the Respondent’s position that having already had the benefit of one Fellowship the Claimant was precluded by the policy of the Respondent for being appointed to a further fellowship.

Discussion

It should first be observed that neither the Act nor the European Directive upon which it is based provides a fixed-term worker with a general or free standing right to have his or her fixed term contract renewed. This Court so held in Determination FTD062,Prasad v Health Service Executiveand inOur Lady’s Children’s Hospital Crumlin[2008] E.L.R. 314. In so holding this Court adopted the reasoning of the Court of Appeal for England and Wales inDepartment of Works and Pensions v Webley[2005] IRLR 288.

However the Claimant in this case is not claiming such a right and she has taken a narrower point. She contends that the Respondent’s refusal to allow her to apply for a second fellowship deprived her of the opportunity to accrue more than four years fixed term employment and thus deprived her of an opportunity of having her fixed term contract transmuted to one of indefinite duration by operation of law. This, she claims, was an act of penalisation contrary to s.13(1)(d) of the Act.

It was also submitted on her behalf that her fixed term contract was for a fixed purpose, namely, to provide cover for the absence of Dr Herring during his tenure as Dean of the of the College of Arts Social Sciences and Celtic Studies. Dr Herring had not returned to his teaching duties at the time that the Claimant employment terminated. Hence, it was argued, it could not be said that the Claimant’s contract ended within its own terms by performance.

The Court cannot accept that latter submission. While the purpose of the contract is expressed to be,inter alia,to replace the teaching duties of Dr Herring, it was clearly limited by time as it was expressed to run for a fixed period of three years from 1^stAugust 2010 to 31^stJuly 2013.

Penalisation

Section 13(1) of the Act, upon which reliance is placed by the Claimant, provides as follows: -

• 
  (1) An employer shall not penalise an employee—
  • (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

    (b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

    (c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

    (d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration undersection 9(3).

  (2) For the purposes of this section, an employee is penalised if he or she—
  • (a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

    (b) is the subject of any other action prejudicial to his or her employment.

In this case the Claimant’s contract came to an end by effluxion of time and without the intervention of either party. As earlier observed, the Claimant is not taking issue with the failure of the Respondent to renew her contract on its expiry. Rather, she contends that the Respondent’s refusal to allow her to apply for a new position was, in light of the consequences that flowed from that refusal, an act of penalisation prohibited by s,13(1) of the Act. That raises the question of whether s.13(1) of the Act, properly construed, imposes liability on an employer for refusing to allow a fixed term employee to apply or compete for further fixed term employment on the expiry of a prior fixed term contract.

Section 10 of the Act obligates an employer to inform a fixed term employee of vacancies which become available so as to ensure that he or she has the same opportunity to secure a permanent position as other employees. The duty to inform fixed-term employees of such vacancies must carry a concomitant obligation to consider any such application. However, this case does not concern s.10 of the Act as no reliance is placed on that section by the Claimant. Moreover, what is in issue here is not a vacancy for a permanent position but a vacancy for another fixed term vacancy.

It seems clear to the Court that had the Oireachtas intended to classify a refusal on the part of an employer to consider a fixed term employee for further fixed term employment as penalisation it could have easily done so in express terms. On its plain and ordinary meaning the language used in s.13(1) of the Act does not extend to the type of situation of which the Claimant complains. It is trite law that a Court cannot rewrite a statutory provision under the guise of interpretation so as to produce what might be considered a fair result. To do so would involve an impermissible trespass on the legislative domain.

For the sake of completeness, the Court accepts on the evidence that in not considering the Claimant for a second Fellowship contract the Respondent was acting in pursuance of a generally applicable policy which was not directed at the particular circumstances of the Claimant. The policy pursued by the Respondent in confining lecturers to one Fellowship is grounded in its understanding of the training and development opportunities that these appointments offer.

Undoubtedly, one consequence of the policy may be to hinder the possibility of a person appointed to a Fellowship having his or her fixed-term contract transmuted to one of indefinite duration. But there is no principle in law or in logic upon which the Court could hold that because the application of the impugned policy had a particular adverse consequence in the circumstances of the Claimant it was directed wholly or partly for or connected with the purpose of achieving that consequence.

In these circumstances the Court must hold that the subject matter of the within complaint does not come within the intendment of s.13(1) of the Act and it cannot be held to constitute penalisation for the purpose of that section.

Conclusion

For all of the reasons set out herein the Court must hold the Claimant’s complaint is not well founded. Although for different reasons, the Court must uphold the decision of the Rights Commissioner and disallow the appeal.



Signed on behalf of the Labour Court



Kevin Duffy
19th May 2015______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.