FTD1513

The appeal came before the Court on 22 September 2015.

The Appellant is a local authority. The Complainant was employed by the Appellant on a series of successive fixed term contracts of employment commencing on 6 October 2005 as an engineer on capital works that were being undertaken in the Council area. On 1 July 2008 the Appellant extended the Complainant’s fixed term contract for a further period terminating on 31 December 2011. The Appellant renewed the fixed term contract again on 30 November 2010 until the relevant engineering works were “substantially complete”. At the date of the hearing the Complainant remained in the employment of the Appellant under the terms of that contract.

Workers Position

The Complainant argues that he acquired a contract of indefinite duration by operation of law pursuant to section 9(2) of the Act, on the renewal of his contract of employment on 1 July 2008. He argues that the Appellant had no or insufficient objective justification for the renewal of the fixed term contract of employment on 1 July 2008. He argues that the work he was employed to undertake is routine civil engineering work and that it is part of the fixed and permanent needs of the Appellant. While he acknowledges that the funding for the work was found in the public capital programme he argues that that capital engineering works are part of the ongoing functions of the Appellant and that the sources of funding or the nature of the funding programme is not objective justification for not employing him on a contract of indefinite duration rather than on a series of fixed term contracts of employment.

Employers Position

The Appellant argues that capital projects are each discretely funded from the public capital programme and are not part of its fixed and permanent needs. It argues that when those specific capital works are completed the requirement for the services of the Complainant will also cease. In that context the Appellant argues that the Complainant was given a contract of employment for the expected duration of the capital works for which he was employed. When those works continued beyond the expected completion date the Complainant’s contract was extended accordingly. Finally when the completion date of the capital works was again delayed the Appellant extended the Complainant’s contract until the relevant works were actually complete. In that context it argues that the Complainant’s employment is closely linked to the specific nature of the capital works and meets the test for objective justification for renewing a fixed term contract within the meaning of the Act.

The Law

The Law.
It is agreed that that s.9(2) of the Act applies in this case. This section provides: -

• 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 4 years.

• (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.

• (4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal..

“…the concept of “objective reasons” for the purposes of clause 5(1)(a) of the Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (Adeneler and Others, paragraphs 69 and 70: Case C-307/05 Del Cerrro Alonso [2007] ECR 1-7109 paragraph 53 and order in Vassilakis and Others, paragraph 88 and 89”.

Finally the Decision of the High Court (per Hanna J.) in inRussell v Mount Temple Comprehensive SchoolIEHC 533 is a clear authority for the proposition that the existence of objective grounds justifying the renewal of a fixed-term contract is to be judged at the commencement of the impugned contract.

Findings
The sole issue in dispute and which the Court must decide is whether there are objective grounds justifying the decision to renew the Complainant’s fixed term contract of employment rather than offer him a contract of indefinite duration.

The Appellant argues that the nature of the funding of the public capital programme together with its assertion that capital works are not part of its fixed and permanent need are sufficient to meet the test of objective justification set out in the Act of the term “objective reasons” set out by the CJEU in Angeliadake and quoted above.

Indeed the Appellant in its submissions states “ All posts in the local authority sector associated with capital projects are temporary by their definition.”

The Court does not accept that such a broad approach is or could be consistent with the tests set out in the Act or by the CJEU outlined above. Indeed the Court takes the view that, as so stated, it fails to address any of those tests. No legitimate objective of the employer is met by such a broad brush approach. Furthermore it fails to set out how the use of fixed term contracts of employment is appropriate and necessary for that purpose. Indeed in circumstances where the Local Authority is the medium through which successive engineering capital projects are carried out it is difficult to discern how the use of successive fixed term contracts of employment could be appropriate and necessary for the purpose of completing any one in a series of capital projects.

The Appellant relies on the nature of the funding for capital projects in support of the contention that it is legitimate to rely on the use of successive fixed term contracts of employment. While the source or nature of the funding of a project may be a factor in determining the circumstances of a “given activity” it is not determinative of the matter. That test is both more extensive than funding alone and more specific than the general proposition outlined by the Appellant. The test set out by the CJEU in C-380 Kiriake Angeliadake and others v Organismos Nomarkhiaki Aftondiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1- which in relevant part is referred to above.

It would appear that if the Court were to accept that funding was a factor that justified the use of successive fixed term contracts of employment beyond the statutory time limit set out in the Act, it must then go on to consider whether the activity being funded is such that it justifies the use of successive fixed term contracts of employment. In considering that the Court must look at the specific nature of the tasks being performed and at the inherent characteristics of those tasks and ask if they justify the use of successive fixed term contracts beyond the statutory limit set out in the Act.

In examining those factors in the circumstances of this case the Court finds that the Appellant carries out engineering capital projects on an ongoing basis. The funding for those projects comes from the same source as the funding of the other work of local authorities namely the Exchequer and from revenues raised locally. Accordingly there does not appear to be any distinguishing feature in the source and origin of the funding of capital projects that would justify the different treatment of staff employed on those projects as compared to staff employed on other non-capital projects.

Turning to the nature of the work undertaken the Court finds that the Complainant was employed to undertake routine civil engineering work. The Court was presented with no evidence that the work involved in this case was other than routine in nature. The Court is also satisfied that the Complainant was capable of being transferred to undertake engineering work on other capital projects being carried out by the Appellant. Accordingly the Court finds nothing in the inherent characteristics of the tasks involved in the projects that gave rise to the successive fixed term contract of employment that would warrant their continuation beyond the statutory limit.

Finally the Court finds that it was presented with no evidence that a legitimate social policy objective of the Member State such that would justify the use of successive fixed term contracts of employment beyond the statutory time limit was being pursued in this case.

Determination

The Court finds that the Appellant did not advance objective grounds for the use of successive fixed term contracts of employment beyond the statutory time limit set out in section (9) (2) of the Act and in accordance with section 9(3) of the Act theterm of the fixed-termcontract that purports to contravene subsection (2) has no effect and the contract concerned is deemed to be a contract of indefinite duration by operation of law with effect from 1 June 2008.

The complaint is well founded. The appeal is rejected. The decision of the Rights Commissioner is affirmed.

The Court notes that the Complainant has been in continuous employment while this matter has been processed under the Act. Accordingly the Court finds that there is no merit in the financial award made by the Rights Commissioner in this case and accordingly sets it aside.

The decision of the Rights Commissioner in this regard is accordingly varied.

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  The Court so determines.