ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003034

Parties:

	Complainant	Respondent
Anonymised Parties	Consultant	Hospital

Complaint

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00004161-001	29/04/2016

Date of Adjudication Hearing: 13/04/2017

Workplace Relations Commission Adjudication Officer: Eugene Hanly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015, 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.

Background:

The Complainant was employed as a Locum Consultant Neurologist since 1^st December 2011 on a series of specified purpose contracts. He was paid €6,979.88 gross per month. He has sought a contract of indefinite duration.

Summary of Complainant’s Case:

The Complainant received the following contracts of employment:

1^st 1^st December 2011 on a 6 month contract.

2^nd 1^st June 2012 to 31^st December 2012

3^rd 1^st January 2013 to 3^rd June 2013

4^th 1^st July 2013 to 31^st December 2013

5^th 1^st January 2014 to 30^th June 2014

6^th 1^st July 2014 to 31^st December 2014

7^th 1^st January 2015 TO 30^TH June 2015

8^th 1^st June 2015 to 31^st December 2015

9^th 1^st January 2016 to 30^th June 2016

Throughout this employment the Complainant has done the same job with no break in service and is rostered 2 days per week. He is integrated into the Team at the hospital.

The aggregate of the first 8 contracts is 4 years and 1 month. So contract 8 cannot be regarded as a fixed term contract. According to Sec 9(2) of this Act he is entitled to a contract of indefinite duration.

The Respondent is governed by law as anyone else. The objective of this legislation is not to facilitate the employers; it is to protect the employees. The Complainant has been doing precisely the same work and is still doing it. These contracts are trying to “ride two horses” both fixed term and specified purpose. The reason for fixed term contracts must be clear and objectively justified. There are no objective grounds justifying such a renewal. If an employer wants a “get out clause” then it has to be water tight. These contracts are not objectively justified.

He is entitled to a contract of indefinite duration.

Summary of Respondent’s Case:

The Complainant commenced employment on a locum halftime contract to provide cover for Professor PK who was on secondment. Such secondments are always temporary and generally unpredictable in terms of duration. It is normal practice to recruit consultants on a specified purpose or fixed term contract while the secondment continues. In his contracts it clearly states the reason for the specified purpose nature of the contract and this was understood by the Complainant. In June 2013 his contract was further extended to provide locum cover for Professor TL to facilitate his secondment. That employment has been extended by a series of specified purpose contracts since that date to 30^th June 2016. On 30^th June the Complainant left the employment. He subsequently accepted a different specified purpose contract with the Respondent to provide locum cover for Professor PK during his absence and it is anticipated that the contract will continue for a number of years.

The Complainant has exceeded periods provided for in subsection (1) and (2) of Sec 9 of this Act. The Respondent submits that the subsections do not apply as provided for in subsection (4) on the basis that there are objective grounds justifying the continuing renewal of the Complainant’s contract of employment on a specified purpose basis. The entire duration of this employment has been locum cover for other consultants seconded to the health service to act as national leads in various clinical programmes. The temporary nature of such appointments, in order to allow consultants and other practitioners to be seconded to the health service and elsewhere to fulfil critical national roles in the service is widely known and understood. The inability to backfill roles on a specified purpose or fixed term basis would be seriously damaging to the ability of the health service in general to maintain the national service. Each specified purpose contract made it clear what the reason for the continued specified purpose nature of the contract was. He accepted each successive contract on that basis. The Respondent had a very specific reason for hiring the Complainant to temporarily fill the posts of certain consultants seconded to the health service. The Complainant always knew the temporary nature of the employment offered. There is also a legitimate social policy objective in this case concerning hospitals ability to release consultants and other staff on secondment. The Complainant has waived any entitlement to a contract of indefinite duration by leaving his employment at the end of his specified purpose contract on 30^th June 2016. He cannot at law be party to two employment contracts with the Respondent. He voluntarily entered into the locum contract in August 2016 that must be taken as the existing legal relationship between the parties and cannot be disturbed by this appeal to the Commission.

The Respondent has objective justification for continuing to issue specified purpose contracts to the Complainant. The claim should be dismissed.

Findings and Conclusions:

I note that Sec 9(2) of this Act states “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.

I note that Section 9(4) of the Act states 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.

I note that Section 7(1) of the Act states “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.”

I note in the ECJ Adeneler case in Sec 69 it stated, “the concept of objective reasons …must 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”.

Therefore when determining whether the renewal of the Complainant’s fixed term contracts comes within the scope of section 9(4) of the Act, it is necessary to consider whether it had the purpose of “achieving a legitimate objective of the employer” and it must be appropriate and necessary for that purpose the circumstances in which it was issued.

It must also measure it against the test set out in Adeneler, i.e. determine whether its renewal arises out of and relates to the “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. .

In this case the Respondent put forward two objective grounds that it submits meets these tests.

1) “Specified purpose to provide locum cover for Professor PK to facilitate his role as Clinical Lead” .

2) “Specified purpose to provide locum cover for Professor TL to facilitate his role as Clinical Lead.

The contracts were as follows:

Contracts

The 2^nd contract issued it stated “Specified purpose to provide locum cover for Professor PK to facilitate his role as Clinical Lead” .

The 3^rd Contract stated ” Specified purpose to provide locum cover for Professor PK to facilitate his role as Clinical Lead” .

The 4^th Contract stated,” Specified purpose to provide locum cover for Professor TL to facilitate his role as Clinical Lead.

The 5^th Contract stated,” Specified purpose to provide locum cover for Professor TL to facilitate his role as Clinical Lead.

The 6^th Contract stated,” Specified purpose to provide locum cover for Professor TL to facilitate his role as Clinical Lead.

The 7^th Contract stated,” Specified purpose to provide locum cover for Professor TL to facilitate his role as Clinical Lead.

The 8^th Contract stated,” Specified purpose to provide locum cover for Professor TL to facilitate his role as Clinical Lead.

The 9^th Contract stated,” Specified purpose to provide locum cover for Professor TL to facilitate his role as Clinical Lead.

So the question for this adjudication is to decide whether the grounds advanced by the Respondent for the renewal of the fixed term contract of employment for a further period amounts to objective grounds within the meaning of the Act.

The Court of Justice of the European Union addressed the concept of objective grounds in the Joined Cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071, where it said at paragraph 96

In those circumstances, 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 Cerro Alonso [2007] ECR I-7109, paragraph 53; and order in Vassilakis and Others, paragraphs 88 and 89).

The Court went on, at paragraph 103 of its judgment, to draw a distinction between successive contracts the purposes of which are to meet needs that are temporary in nature and those which, in reality, are intended to meet the fixed and permanent needs of the employer. In the case of the former the use of successive fixed-term contracts may be legitimate but in the case of the latter their use would be contrary to the objective pursued by the Directive.

The Respondent submitted that work performed by the Complainant would cease when cover for the Professors ceased upon their return to the hospital.

However I note that the cover switched from Professor PK to TL.

I note that the Respondent had no knowledge of how long this cover would be required.

Therefore there was the possibility that this arrangement could go on for some considerable time.

Therefore I find that these fixed term contracts are not meeting needs that are strictly temporary in nature as they are continuing without any clear knowledge of when they might end.

I form the view that the objective of this Act is to prevent these type of extensions to contracts that lacked “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”.

I find therefore that these contracts are not saved by the objective grounds as set out by the Respondent because they are not precise and/or concrete to justify such a ground.

I therefore find that the Complainant is entitled to a contract of indefinite duration by operation of law with effect from the issuing of the 8^th contract issued on 1^st June 2015 to end on 31^st December 2015, because by 1^st December 2015 the Complainant would have had 4 years and 1 day as a fixed term worker.

Decision:

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.

I have decided that the Respondent has breached this Act.

I have decided that the Complainant is entitled to a contract of indefinite duration by operation of law with effect from 1^st June 2015.

I require the Respondent to pay the Complainant compensation of €6,000 for breach of his rights under this Act.

This is to be paid within six weeks of the date below.

Dated: 04 July 2017