ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00007029

Parties:

Complaint:

Date of Adjudication Hearing: 15/08/2017

Procedure:

In accordance with Section 41 of the Workplace Relations Act, and following the referral of the complaint to me by the Director General, I inquired into the complaint) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

The Complainant was employed on an initial fixed-term contract of employment from 1^st September 2008 to 31^st August 2013 following an open competition for the position. While employed the Complainant again applied for the position by way of open competition, was successful and was appointed on a second fixed-term contract from 1sat September 2013 to the termination of this contract on 31^st August 2016. The Complainant was employed on a part-time basis earning €6333.00 gross per fortnight, or €133937.00 per annum according to the Contract of Employment.. The Complainant was provided with a Fixed-Term Contract of Employment to cover both periods of employment. In the Contract dated 29^th October 2013 at Section 1.7 the purpose of the Contract and the reasons why a Contract of Indefinite Duration was not offered was set out. The Complainant signed this Contract on 29th October 2013.

The Complainant referred a complaint to the Workplace Relations Commission on 6^th February 2017 alleging the Respondent had breached Section 9 of the Act in that she had not been offered a Contract of Indefinite Duration.

SUMMARY OF COMPLAINANT’S POSITION.

The Complainant is a Consultant Psychiatrist, engaged in a specified riole in the area of mental health since 2008. She applied for this specified post through open competition and was provided with a Fixed-Term Contract of Employment for a period of 5 years. She was provided with a Contract of Employment and stated that this first Contract did not contain a policy on rotation professionals through the Respondent’s employment. A similar post was advertised in June 2013 prior to the expiry of her first Contract. She applied, was successful and was appointed on a three year Fixed-Term Contract from 1^st September 2013 to expire on 31^st August 2016. She received a second contract which did contain a clause of rotation of professionals through he Respondent’s employment. This was the Respondent’s “objective justification” for not offering Contract of Indefinite Duration.

The Complainant was one of a number of professionals appointed under the Mental Health Act, 2001. The Complainant argued in their submission that the Respondent breached Section 6(1) of the Act of 2003 when her first five year contract came up for renewal on 1^st September 2013 by not granting her a Contract of Indefinite Duration after she succeeded in an open competition and she was treated in a less favourable manner than a comparable named employee who was appointed on a Contract of Indefinite Duration and she was only offered a three year fixed-term contract of Employment.

The Complainant alleged that the principle of equal treatment has not been applied to the renewal of her contract on 1^st September 2013 and raised a presumption of unlawful discrimination of a direct nature as there is no apparent reason for the difference in treatment of two equivalent employees. The Complainant stated that she had sought clarification from the named CEO in August 2016 prior to the termination of her employment concerning the less favourable treatment of her and a named colleague who was appointed on a Contract of Indefinite Duration and was told the appointment of her colleague was a completely different matter and she referred to a note of this meeting presented to the Hearing. (However during an examination of this note at the Hearing the Complainant acknowledged there was no reference to this issue in the notes).

The Complainant stated the Respondent had breached Section 6(2) of the Act where she believes she was treated in a less favourable manner to a named colleague in circumstances where this can not be objectively justified and stated this raises a prima facie presumption of unlawful indirect discrimination. The Complainant stated she wished to have both forms of discriminatory practices – direct and indirect – removed and her claim that the granting of a CID in the operation of her second contract dated 1^st September 2013 would restore her conditions of employment to that of a comparable permanent employee around that time.

The Complainant challenged the objective grounds set out by the Respondent in relation to –

-the requirement for experienced professionals. The Complainant argued that not all were professionals in specified roles.

-the requirement for a rotation of these professions to ensure that these professionals are up to date with the latest developments and challenges. This the Complainant argued could be achieved by ongoing continuous professional development.

- the interests of both the professionals and the Respondent employment is better served by this requirement. The Complainant argued that not all professions do return to front line services.

- the requirement to have new ideas and thoughts on the service provided by the Respondent through successive employees. The Complainant argued this can be acquired through ongoing study.

- the requirement by the Respondent for new ideas and standards to be applied to the service provided. The Complainant argued that some of these professionals do not return to front line services.

SUMMARY OF RESPONDENT’S POSITION.

The Respondent stated the complaint from the Respondent is clearly a complaint under Section 9 of the Act in relation to the provision of a Contract of Indefinite Duration.

The Respondent is an independent statutory body under the Mental Health Act, 2001 and their primary function is to promote, encourage amd foster good standards and practices in the delivery of specified services provided and the protection of individuals availing of this service. To ensure the fulfilment of its statutory functions a number of professionals are recruited and the Complainant was one such professional

The Complainant was recruited through an open competition and appointed on a five-year Fixed-Terms Contract of Employment from 1^st September 2008 to expire on 31^st August 2013. Following an open competition the Complainant was again appointed, this time on a three-year Fixed Term Contract of Employment from 1^st September 2013 to 31^st August 2016. There was no automatic renewal of her First Contract into her Second Contract. The open public competition which gave rise to the award of the second contract was held during the period of the first contract. She was employed up to the natural expiry of this second contract.

The Respondent notified the Complainant by letter dated 13^th July 2016 that the Respondent would not be in a position to renew or extend the Second Contract on its expiry. The Respondent argued the Complainant is not entitled to a Contract of Indefinite Duration and the objective justification relied on is expressly set out in the Second Contract of Employment.

Section 9(2),(3) and (4) of the Act are relevant to this complaint. Section 7(1) of the Act clearly specifies that a ground shall not be regarded as an objective ground unless it is based on considerations other than the status of the employee as a Fixed-Term Employee. The Respondent referenced a number of Decisions of the Labour Court, the High Court to support their argument that the grounds specified are objective grounds as specified in the Act i.e achieving a legiminate objective of the employer and be appropriate and necessary for that purpose. The objective justification is set out at Section 1.7 of the Second Contract of Employment provided to the Complainant.

The Respondent has clearly defined statutory powers and itss primary responsibility is owed to the users of the service provided. It is from this duty that the objective grounds were derived. In particular to benefit from new views and standards to be applied in respect of these services. These conditions determined by the Respondent was only done with the consent of the Minister for Health and the Minister for Finance.

The Respondent stated that it commenced an organisation review in 2016 and the Complainant was informed in the latter dated 13^th July 2016 that when this review was completed she could apply for any new posts subject to any eligibility criteria that may apply. This review has been completed and is currently with the Department of Health.

The Respondent stated their policy of renewal has been in operation since 2004 and the Complainant herself has confirmed that during her employment with the Respondent some seven professional like the Complainant have left the service of the Respondent. This allowed new ideas to be imported into the Respondent’s Services through the new personnel recruited.

The Respondent asserted that the Complainant suffered no financial loss and had secured employment immediately after her contract expired. The Complainant also became eligible for a position on the Respondent’s Tribunal, she applied and was successful and is currently a member of this Tribunal.

FINDINGS AND CONCLUSIONS.

Preliminary Issue. – The Complaint.

At the Hearing the Complainant in her submission argued that the Respondent had contravened Section 6(2) of the Act which refers to conditions of employment for fixed-term employees and provides that a fixed-term employee shall not be treated in a less favourable manner than a comparable permanent employee. She argued that she was discriminated against both directly and indirectly.

However the Complaint Form that was received by the Workplace Relations Commission on 6^th February makes no complaint under Section 6 of the Act. The complaint refers to an alleged breach of Section 9(1) of the Act where the Complainant states as follows; I believe that having been given two separate contracts, exceeding a four-year period, I should be entitled to a contract of indefinite duration. Therefore the only complaint I can adjudicate on is the complaint as specified in the complaint form concerning an alleged breach of Section 9 of the Act in relation to the provision of a Contract of Indefinite Duration.

I find I have no jurisdiction to hear a complaint under Section 6 of the Act

On the basis of the evidence and written submissions from both Parties in relation to the complaint under Section 9 of the Act, I find as follows

Section 9 of the Act of 2001,provides as follows – “(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer…on two or more continuous fixed-term contracts and the date of the first contract is subsequent to the date on which this Act is passed, the aggregrate duration of such contracts shall not exceed 4 years. (3) Where any term of a fixed-term contract purports to contravene subsection….(2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration. (4) Subsections (2) and (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.

Section 7(1) of the Act of 2001 provides as follows: - 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 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.

The established facts in relation to this complaint under Section 9 of the Act are –(1) There was an open competition in 2008 from which the Complainant was appointed to a specified position on a five year fixed term contract of employment from 1^st September 2008 to terminate on 31^st August 2013. (2) The Complainant applied through an open competition in 2013 for a similar position, was successful and was appointed on a fixed-term contract of employment for a period of three years from 1^st September 2016 to expire on 31^st August 2016. (3) The second fixed-term contract of employment set out the reasons in the contract as to why she was not being offered a Contract of Indefinite Duration (4) the reasons as set out can be summarised as –experienced health professionals are required to fulfil the position she held – the statutory body requires a continuing rotation of such professionals to ensure the positions are held by professionals with the most up to date experience to deal with the latest developments and challenges in delivering the service – by ensuring the return of staff to front line services after completing their contract – the policy ensures that new ideas and experiences in the provision of the service are brought into this service – this require new views on the service being supplied and the standards to be applied. (5) For these reasons the Respondent believes that it is necessary and proportionate not to renew or extend contracts but to fill posts by open competition. (6) The Respondent Organisation is an independent body with clearly defined statutory functions. (7) The Respondent Organisation in 2016 had undertaken an organisational review. Following this the Respondent was to consider the recommendations from this review following which the Respondent would make the necessary business case to the Department of Health in relation to the future staffing of the Respondent Organisation. (8) The Complainant was informed of this by way of a letter dated 13^th July 2016, prior to the expiry of her fixed-term contract on 31^st August 20216. In this correspondence the Complainant was also informed that she would be welcome to apply for any such position that may be advertised by way of open competition subject to eligibility criteria. (9) No such posts have been advertised as awaiting sanction from the Department to do so.

Objective Justification. The concept of objective justification is well established in law since the decision of the European Court of Justice as it then was in the Case of MARLEASING in which the Court held that the requirement must be for achieving a legitimate objective of the Employer – must be appropriate to achieving that objective and must be necessary for that purpose. The Respondent has operated their policy of filling all such positions as that occupied by the Complainant by way of open competition since 2004. The Respondent is an independent statutory body set up under the Mental Health Act, 2001 and whose primary function include the promotion, encouragement and fostering of high standards and good practices in the delivery of mental Health Services in Ireland and the protection of those who use the mental health services in this country. To fulfil their statutory obligations this includes regulating and inspecting designated mental health facilities and to this end a team of professionals are employed on fixed-term contracts appointed by way of open competition since 2004. The objective of the Respondent is to fill these specified posts by way of open competition is to ensure that these professionals are recruited through open competition so as to attract the best people on a continuing basis to provide the service required of them and to bring the most recent developments and standards to the service. The Complainant is seeking that as she had completed 4 years continuous service with the Respondent she was entitled to a contract of indefinite duration. This issue was considered by the High Court in its Decision in 2011 IEHC 146 between Health Service Executive Dublin North East and Ali Umar delivered on 7^th April 2011 in which the HC Judge overturned a decision of the Labour Court of 20^th April 2010 in which the Labour Court held that the Complainant Mr Umar was entitled to a contract of indefinite duration without an open competition in order for the Respondent the HSE to recruit the best possible consultant to fill a post. The High Court held that the holding of an open competition to fill a permanent post was a legitimate aim relating to a real need on the part of the HSE.

On the basis of the evidence presented to me by way of written submissions and cross examination at the Hearing I find that the Respondent has established that the filling of the specified posts by way of continuous open competition and the appointment of the successful candidates on fixed-term contracts of employment for the purpose of attracting on a continuous basis the best possible professionals for the positions and to import new employees with the latest developments and standards so as to ensure the Respondent complies with its statutory function has shown objective justification for not offering the Complainant a Contract of Indefinite Duration.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

In accordance with Section 41(5) of the Workplace Relations Act, 2015 I declare the complaint is not well founded. The Respondent has established objective justification in relation to their recruitment and appointment process and therefore satisfies Section 7(1) of the Act of 2001.

Dated:   11 December 2017

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