FTD161

Background

2.Commencing in February 2008 the Respondent engaged the complainant to assist it stage events within, or organised by, the Museum.. It employed her under a contract for services and continued to do so through successive contracts over a period of years. On occasions contracts followed immediately upon each other On other occasions they were punctuated by periods of days or weeks during which the Complainant was out of work.. A schedule of each of the contracts and the purpose for which they were concluded was submitted to the Court by the Complainant. The schedule was not disputed by the Respondent.

3.On the 19^thDecember 2009 the Complainant was engaged to undertake the duties of a permanent member of staff who had been granted leave of absence in the nature of a career break. This arrangement was made verbally with her “manager” Mr Cillian Hayes. As evidence of this arrangement the Complainant refers to an email from Mr Hayes dated 21 December 2009 which in relevant part states “Could you liaise directly with Antoinette oncollection issues as she has no taken over from Gillian fulltime. She has her own e-mail.” It is further referred to in the Respondent’s submission to the Court of the 20 July 2015 where it states“On 31 December 2009, Ms G F commenced a three year incentivised career break, which was due to cease on 31 December 2012. As the general rationale for the incentivised career breaks was to reduce costs, these posts were not normally replaced during the substantive post holder’s absences. However, M F’s career break was granted on compassionate grounds and there remained a requirement for her duties to be fulfilled in order to meet service delivery requirements. For this reason a decision was made to cover the position for the duration of her absence.”……… “Due to Ms Emoe’s particular skill set, she was asked to cover Ms F’s role for the duration of her absence, which included both the Collections Department work and the general technical crew duties. Ms Emoe was informed that Ms Fitzpatrick would be absent for three years on a career break.”While the Respondent provided the Complainant with a desk and an email address it continued to employ her on a contract for services and treated her as a contractor. It is common case that Respondent also continued to engage the Complainant to undertake the duties she had traditionally undertaken.

4.The Complainant worked under those arrangements over the following three years. In mid-2012 Mr Hayes, a Technical Supervisor with the respondent, and the Complainant’s manager, told her that he could not guarantee her any more work after the Sydney Nolan exhibition came to an end in October 2012. The Complainant was not offered work after that exhibition concluded. Around that time the Complainant decided to go travelling. The Respondent exhibits an internal email to the Accounts Department from the Head of Operations which states“As a point of information, Cillian has told me that Antoinette Emoe has decided to go travelling and will not be available for any work with the Tech Crew for a while. I am letting you know so you can wrap up any outstanding invoices etc from her in a timely fashion. I am not sure of her exact plans/dates so you might need to check in with her”. On this point there is a conflict between the positions of both sides. The Complainant states that she took the decision to go travelling after she was told that there would be no work available for her when the Sydney Nolan exhibition ended in October 2012. She says that she remained available for work had she been offered any but she was offered none. The Respondent argues that she made herself unavailable for work and accordingly no work was offered to her.

5.On the 24^thOctober 2012 the Complainant wrote to the Respondent in the following terms“I sincerely wish to regularise my position going forward. Whilst I have been informed there is no more work from November I anticipate there will be work in the near future and therefore I would like to request a contract of employment. I hope we can reach an agreement, however, if not I reserve my position and rights fully.”

6.In December 2012 another contractor who was working for the Respondent raised a query with the Department of Social Protection Scope Section that resulted in a determination that his employment with the Respondent was insurable under the Social Welfare Acts at PRSI Class A. In essence it decided that he was an employee rather than a self-employed contractor.

7.The Respondent did not appeal that decision. Instead it discharged its outstanding Social Welfare liabilities in respect of all of similar staff it had engaged as contractors in the relevant period. It also prepared contracts of employment which it issued to the staff affected. That contract purported to regularise the affected contractors’ employment retrospectively to their commencement dates. The Complainant was offered a similar contract on 20^thJune 2013.

8.That contract contains 12 clauses covering the usual terms and conditions of employment one would expect to find in such a contract of employment. It describes the complainant’s employment in the following terms

• a.Date of Commencement of Employment Your employment with the Museum commenced in 2008. Please note that you are employed by the Museum on an “as required” basis. While this appointment may result in you being offered work from time to time, please be aware that it does not infer any obligation upon you to accept work from the Museum nor does it require the Museum to offer you any work. Insofar as it is possible, you will be provided with reasonable notice of any work from time to time.”

10.The substance of the Rights Commissioner decision is set out at paragraph 1 above. The Complainant appealed against that decision to this Court.

Complainant's Case

11.The Complainant states that though engaged as a contractor she was at all material times an employee of the Respondent. She argues that this matter was determined in another case by the Department of Social Protection Scope Section in 2012 and in her own case in 2014. She argues that the Respondent itself recognised this in 2013 when it sought to retrospectively describe her as commencing employment in 2008. She argues that each of the commercial contracts on which she was employed were in fact fixed term contracts of employment within the meaning of the Act. She argues that on the occasion of the renewal of each contract she was told the purpose of the contract and that it would terminate when that purpose had been fulfilled. She states that she acquired a contract of indefinite duration by operation of Section 9(2) of the Act when she was offered a contract of employment in 2009 to replace a permanent member of staff who had been granted a career break. She states that she was simultaneously engaged to undertake the work for which she had until that time been employed. She states that she carried out the work of both positions under that contract of employment. She states that at that point she had been employed on continuous fixed term contracts of employment the aggregate duration of which exceeded four years and accordingly became entitled to a contract of indefinite duration by operation of law.

12.She further argues that when undertaking the work of the person on a career break she was employed on less favourable conditions of employment. She argues that such unfavourable treatment infringes section 6 of the Act and she asks the Court to order the Respondent to remedy this and to compensate her for the breach of her rights.

Respondent's Case

13.The Respondent argues that the Complainant was employed as a contractor until the Department of Social Protection determined it was a contract of services and that a normal employer/employee relationship applied in this case. It argues that it genuinely believed that it was compliant with all of its legal obligations and acted immediately to correct the error and paid all outstanding monies due to the Department. It argues that it offered the Complainant a contract of indefinite duration in 2013 that recognised the reality of the Complainants historic relationship with it. It argues that the Complainant was on a panel of casual contractors who were called for work as and when required. It argues that after the Department of Social Protection determined that this was insurable employment under the Social Welfare Acts it accepted that decision and recast the relationship accordingly. It argues that the reality of that relationship is that the Complainant was on a panel of workers that were called for work as and when required. It argues that the Complainant therefore has a contract of indefinite duration that accurately reflects that relationship.

14.It further argues that as a consequence the Complainant has no locus standi to bring the present proceedings as she is not and never was a fixed term worker within the meaning of the Act.

15.It further argues that the Complainant did not bring her complaint under section 6 of the Act within six months of the date on which any such infringement, which it denies, occurred. Accordingly it argues that the Court is statute barred from considering that complaint.

The Law

16.The Act in relevant part states.

“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—

“permanent employee” means an employee who is not a fixed-term employee ;

Section 5 broadly prohibits less favourable treatment of fixed terms workers in respect of conditions of employment. It states

(1) Subject to subsections (2) and (5) , a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable permanent employee.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1) , be so treated.

Section 7 of the Act permits less favourable treatment of fixed term workers where such treatment can be objectively justified. It states

7 (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.

Section 9 provides sets out the circumstances in which a fixed term worker becomes entitled to a contract of indefinite duration. It states

9(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 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.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to [2005] shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

Section 14 deals with the processing of complaints under the Act. Subsection (3) states

18.The respective positions of both sides is set out in paragraphs 11 to 15.

19.The Act defines a fixed term worker in the following terms

• a.“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—

21.The Complainant in her submissions to the Court states that from 2009 onwards she was employed on a fixed term contract of employment to replace another person who was granted a career break. She was told that person would be returning to her post after a three year period and the purpose of the contract was to cover the resulting vacancy. The respondent argues that the granting of a 3 year career break amounts to objective justification for offering the complainant a fixed term contract of employment at that time.

22.It is well settled that the granting of career breaks to staff is a family friendly facility that is designed to facilitate work life balance and can constitute objective grounds under the Act. In this case the Court finds that the Respondent was required to keep the position open for that employee to return to when the leave of absence expired. It further finds that it was reasonable to fill the resulting vacancy on a fixed-term basis for the duration of the leave of absence granted to her in this case a period of in excess of three years.

23.The Court finds therefore that the Respondent had objective justification in 2009 for renewing the Complainant’s fixed term contract of employment and section 9(4) of the Act applies. The fact that the Respondent laid off the Complainant during the currency of that contract is another matter that is not before this Court.

24.As the Complainant was a fixed term worker within the meaning of the Act she comes within the provisions of section 6 of the Act. The Respondent argues that this aspect of her complaint is out of time as it was submitted more than six months after her employment ended in October 2012. The Court does not accept that argument. The Complainant’s fixed term contract ran from the commencement of the leave of absence that gave rise to it until it ended. They are the terms that the Respondent gave to the Complainant when she was offered the contract. The Complainant accepted those terms. When she was laid off in October 2012 both sides anticipated that she would return to work. That is not disputed by either side. She returned to work on 16 May 2013 and resumed her duties. The person she was replacing returned on the 20^thMay 2013. The Complainant alleges that an infringement of the Act occurred in that period and the complaint was submitted to the Rights Commissioner within six months of that time.

25.Section 6 of the Act states that fixed term workers cannot be treated less favourably in respect of their terms and conditions of employment than a comparable permanent employee. The Complainant submitted evidence to the Court that she was treated less favourably than a number of permanent employees whom she argues were undertaking comparable work. The Respondent does not dispute that the Complainant was treated less favourably than those workers but argues that it arose out of her mistaken status as a self-employed contractor and not because she was a fixed term worker.

26.The Court does not accept that argument. The Complainant was a fixed term worker and was entitled to be treated no less favourably than a comparable full time worker. In this case she was not afforded such treatment. The Court was provided with statements from each of those workers that the Complainant was undertaking comparable work. They were not disputed by the Respondent. Moreover the Respondent accepts that it appointed the Complainant to replace another employee and to undertake her work. In those circumstances the Court finds no merit in the Respondent’s statement that it acted in compliance with the Act when it treated the Complainant less favourably than a comparable permanent employee.

27.The Court finds that the Complainant’s rights under Section 6 of the Act were infringed.

28.The Court has considered the extent to which the Complainant was denied her entitlements under the Act. The Court notes that the denial of her rights affected her level of pay, her annual leave entitlements, membership of the pension scheme, and other ancillary benefits outlined by the Complainant. Taking all of these matters into account the Court orders the Respondent to admit the Complainant to the appropriate pension scheme with full retrospection to the date on which her employment commenced. The Court further orders the Respondent to pay the Complainant compensation in the sum of €27,500.00 in respect of her actual loss in respect of the said matters including pension.

30.The Court determines that the Complaint under Section 6 of the Act is well founded.

31.The Court further orders the Respondent to pay the Complainant compensation in the sum of €5,000 for the infringement of her rights under Section 6 of the Act and thus a total award of compensation of €32,500.00 comprising an award of compensation of €27,500.00 in respect of the Complainant's actual loss as aforesaid and a further award of compensation of €5,000.00 in respect of the infringement of the Complainant's rights under the Act as aforesaid.