ADJ-00005329

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005329

Parties

	Complainant	Respondent
Anonymised Parties	A Teacher	A Community Secondary School

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00007484-001	06/10/2016

Date of Adjudication Hearing: 27/03/2017

Workplace Relations Commission Adjudication Officer: Emile Daly

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

This complaint is brought under the Unfair Dismissals Acts 1977-15 (hereinafter referred to as “the UD Acts.”)

A preliminary application is made by the Respondent that there is no jurisdiction to hear the complaint because the employment was under a fixed term contract and the termination arose only as a result of the expiry of the fixed term under section 2 (2) of the UD Acts. The fixed term contract was in writing, it was signed by both parties and the contract excludes the provisions of the UD Acts.

The Complainant contends that the Respondent is attempting to rely on a series of roll-over fixed term contracts which is disallowed by section 2 (2A) of the UD Acts. The Respondent denies this and submits that there was only one fixed term contract.

The Complainant contends that if section 2 (2A) of the UD Acts does not prevent the ouster of jurisdiction, then she has an alternative ground of claim. Namely, reliance upon a series of Department of Education circulars; 55/08, 34/09 and 24/25. These hold certain protections for teachers in relation to roll over fixed term contracts. Circular 55/08 also states that if a teacher holds a post she shall not be required to reapply to the school for the same post.

The Respondent denies jurisdiction based on the DoE circulars in that the Complainant fails to meet the criteria.

The Complainant’s representative conceded on day 2 of the hearing that DoE circular 24/15 (the “Ward agreement”) does not benefit the Complainant because the union to which she is a member is not party to it, however she is still protected by the previous 55/08 circular.

The Respondent submits that as the fixed term contract meets the criteria of section 2 (2) of the UD Acts, there is no jurisdiction to hear the claim.

Summary of Complainant’s Case:

The Complainant was employed to teach at the Respondent school in the academic years 2013-14, 2014/15, and 2015/16. After qualifying as a teacher in 2012/13 she was engaged by the Respondent to teach each year from August to May. Her teaching hours were typically between 15 to 16 hours per week. There were no written contracts for the first two academic years.

After commencing her third year, she was asked by the school principal, to sign a written fixed term contract. This was in October 2015. The contract stated that she was engaged to teach at the school between 8 October 2015 until 31 August 2016 and it contained an ouster clause in relation to the Unfair Dismissals Acts. She signed it on 22 October 2015.

In 2016 the Complainant was asked to apply for the post that she had been teaching. She did so, she was interviewed but she was not successful and her position was terminated in August 2016.

Anti abuse protections under section 13 of Acts

1. Section 13 of the UD Acts precludes anyone excluding by way of contract, the protection of the UD Acts.

2. The Complainant had been working in excess of one year before she was required to sign the fixed term contract, therefore she was already an employee who already possessed all the benefits of the Unfair Dismissals legislation.

3. She did not know that she was signing away her rights when she was required to sign the fixed term contract by her employer.

4. In these circumstances, the legal implications should have been brought to her attention by the Respondent before she was made sign the fixed term contract.

5. Consequently, the clause in the fixed term contract should be interpreted like a waiver or exemption clause. For example she should have received independent advice (as per Hurley v. Royal Yacht Club 1997 8E.L.R. 225) because she was signing away protections that she already enjoyed.

6. This case should be distinguished from cases where the employee is required to sign a fixed term contract at the start of their employment, where they are not signing away any acquired rights.

Protection against roll over fixed term contracts under section 2 (2A) of the Acts

7. The Complainant contends that there is protection against roll-over fixed term contracts when they are used to defeat the provisions of the Unfair Dismissals legislation.

8. Section 2 (2A) of the UD Acts apply where there is an abuse of successive fixed term contracts. Where the dismissal of a fixed term employee consists only of the expiry of the fixed term contract and the employee concerned is re-employed within three months under another fixed term contract and the employee is then dismissed by reason of the expiry of the second or subsequent fixed term contract, then the exclusion permitted by section 2(2) of the Act, is not available to the employer concerned.

9. Section 2 (2A) of the Unfair Dismissals Acts has the following criteria:

i. The employee must be dismissed due to the expiry of a fixed term contract (the prior contract)

ii. The employee must be then reemployed within 3 months and given another subsequent contract, which must be the same kind of contract, as the prior contract.

iii. The nature of the employment in the subsequent contract must be the same or similar to that under the prior contract

iv. In the opinion of the Adjudicator the entry into the contract must be in whole or in part be to avoid liability under the Unfair Dismissals Act.

10. In response to a contention that, in order for section 2 (2A) to apply, the fixed term contract must be in writing, the Complainant submits that there is nothing in the section or the wider Acts to say that the fixed term contracts must in writing.

11. What should not be permitted however, is by it’s failure to provide a complainant with written terms and conditions (in breach of the Terms and Conditions of Employment Information Act 1994) for a period of two years (in the Complainant’s case for in the academic years 2013/14 and 2014/15) that the Respondent can be allowed benefit by that breach by claiming that the written fixed term contract signed in 2015/16 was the first fixed term contract.

12. There was an abuse of 3 successive fixed term contracts. The first were not written (academic years 2013/14 and 2014/15) and the third (2015/16) was written. Therefore applying the criteria of section2 (2A), the Complainant was;

i. Dismissed due to the expiry of a fixed term contract

ii. Was re-employed between each contract within 3 months

iii. The nature of the work was the same

iv. The last fixed term contract was entered into at least in part to avoid liability under the UD Acts

Then all the criteria of section2 (2A) have been met. Therefore the exclusion of the UD cannot hold and the substantive hearing of the case should be allowed to proceed.

Department of Education Circular 55/08

13. It was accepted by the Complainant’s representative at the hearing that the DoE Circular 24/15 does not apply.

14. The Complainant submits that under the previous DoE circulars 55/08 and 24/2009 apply to the Complainant. The fact that the Complainant was required in August 2016 to be interviewed for a post that she already held was in breach of these circulars.

Paragraph 3.10.1 of Circular 55/2008 states as follows:

“ a teacher who was recruited initially by an employer through a formal recruitment process and was suitably qualified for the original appointment, shall not be required to engage again in a formal recruitment process for reappointment by the same employer in the same or similar teaching post on successive fixed term contracts.”

15. The Complainant was appointed to a role in the school year 2015/16 but was requested to apply and attend an interview for the same post in August 2016 for the school year 2016/17.

16. In requiring the Complainant to engage in a formal recruitment process for the school year 2016/1 the Respondent was acting in breach of DoE Circular 55/2008

Authorities relied upon by the Complainant:

NUI Maynooth v. Michelle O’Reilly (FTD1217)

HSE v. Oshodi (FTD0913)

Hurley v. Royal Yacht Club [1997 ELR 225]

Sunday Newspapers v. Kinsella and Bradley [2008 19 ELR 53]

Thornton v. Shoe Lane Parking [1971] 2 QB 163

Carroll v. An Post Lottery Company [1996] 1 IR 443

Finnegan v. J&E Davy High Court 26 January 2007

Hooper v. Mary Immaculate College 2008 (UD 1167/2006)

Martin Allen v. Board of Management, CBS Secondary School, Limerick Ref: r-139407 – ud – 13/GC

Fitzgerald v. St. Patricks College Maynooth (UD 244/1978)

St. Joseph’s School v Grehan FTD 1416

Summary of Respondent’s Case:

Anti abuse protections under section 13 of Acts

1. The signed fixed term contract dated October 2015 contains the three necessary ingredients of section 2 (2) of the Acts, to be effective; it was in writing, it was signed by both parties and it excluded the provisions of the UD Acts.

2. Section 2 (2) of the UD Acts is unambiguous. Once those 3 criteria are met the UD Acts do not apply.

3. The operation of section 2(2) is not limited only to cases where the employee signs the fixed term contract at the start of the employment. For an Adjudicator to insert a term into the Act to say that this is a pre-condition to section 2 (2) that the employee must be at the commencement of her employment, would do violence to the language of the Act.

O’Cunnegain v. Guardian Angels National School (UD1008/2006)

4. The case law on statutory interpretation holds that if a statutory section of an Act is clear and unambiguous, then the Court/ Adjudicator must apply the ordinary meaning of that section to the facts. There is no liberty to introduce other criteria or consider the wider contents of the Act.

5. Section 2 (2) is a clear express exception to section 13 rather being at odds to it. The 2 sections can be interpreted sympathetically as follows: No contract shall be permitted to exclude rights under the UD Acts other than if it is a fixed term contract in writing, is signed by both parties and excludes the provision of the UD Acts (and is not a series of roll over fixed terms designed to thwart the operation of the UD Acts.)

Protection against roll over fixed term contracts under section 2 (2A) of the Acts

6. Fixed term contracts of employment referred to in section2 (2A) of the Acts must be written.

7. Section 2(2A) of the Acts refers to “a contract of employment of a kind mentioned in subsection (2) (“ the prior contract”).” Therefore the question arises what is meant by “a kind mentioned in subsection 2?” Subsection 2 refers to a contract of employment that must be in writing, signed by both parties and which expressly excludes the provisions of the UD Acts. Therefore it cannot mean, on an ordinary reading of it, that it is an unwritten contract. Otherwise the section would have simply stated that and not made any reference to the “kind of contract set out under section2 (2).”

8. Also in order to be a contract of “a kind mentioned in subsection 2” it must contain a waiver because that too is one of the criterion in section2 (2). If a waiver is necessary component of the “kind of contract in section 2(2), it must be set out in writing. Waivers generally are not orally agreed.

9. Section 2(2A) deals with successive fixed term contracts. There was only one written contract. This was for the academic year 2015/16. Therefore section 2(2A) does not apply as there were no successive written fixed term contracts.

10. Furthermore, in order for section 2(2A) to apply, the service must be continuous. However there were breaks in her service, from May until August each year, during which she was not paid. So the section 2 (2A) is inapplicable because the service throughout the three years was broken.

11. Breaks in service occurred every holiday season. Christmas, Easter and during the summer summer. She was only paid for the time that she worked, therefore section 2(2A) does not apply.

Department of Education Circular 55/2008 and 24/2009

12. While it was conceded on day 2 of the hearing that the Complainant cannot benefit from circular 24/2015 (the Ward agreement) the Respondent felt bound by it and terminated the Complainant’s contract in August 2016 in order to comply with the Ward agreement. The agreement states that a teacher, on their first fixed term contract, must have that contract terminated at the end of the school year.

13. It is accepted that the Complainant is covered by the DoE circulars 55/2008 and 24/2009. These apply where a teacher has four years of continuous teaching under two or more written contracts; which was not demonstrated by the Complainant, as she only had one written contract.

14. A further criterion of circular 55/08 is that the hours of work be continuous, also did not apply to the Complainant as there were breaks in her service.

15. A last criterion of circular 55/08 is that the teacher be paid out of monies provided by the Oireachtas, which didn’t apply to the Complainant, who until her last year was paid partly out of school funds.

16. But in any event, reliance on the DoE circulars is not relevant to the present complaint which is brought under the UD Acts. There is no jurisdiction under the UD Acts to make a CID ruling. If such a complaint were made it would be made either under the Protection of Employees (Fixed Term) Workers Act 2003 or under the internal adjudication process set up by the DoE. Either way, such a case, were it to be brought would be fully defended on the grounds that the criteria have not been met.

17. If a CID were so found, then a fixed term contract could not undermine that finding and the UD Acts would apply however in the absence of a CID being established, the issue of a CID is irrelevant.

18. Therefore in requesting the Complainant apply for and be interviewed for a teaching post for year 2016/17, the Respondent did not act in breach of DoE circular 55/2008, but even if it did, it is not material to the present claim

Cases considered:

Ressa O’Cunnegain v. Guardian Angels National School Case No. UD 1008/2006

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

Anti abuse protections under section 13 of Unfair Dismissals Act 1993

1. The Complainant’s contention that section 2 (2) of the Acts is subject to the preconditions that accompany waivers under section 13 (as per Hurley v. Royal Yacht Club) is an interesting one. However there is no authority to support it and in the absence of either express wording in the section itself or an authority to support it, I have no discretion to interpret it in that way.

2. There is no discretion for an Adjudicator to read -in a pre-condition that the exclusion provisions of section 2 (2) so that it only applies to employees either at the commencement of their employment or within the first year of their employments (i.e. before they acquire rights under the UD Acts.) There is no authority cited to support this contention and in the absence of either express wording in the section itself or an authority to support it, again there is no discretion to allow it.

3. I find that section 2(2) as amended by section 2(2A) is an exception to section 13. It contains three criteria. These criteria apply in order that the employee can read the contract before accepting it. Section 2(2) applies unless the Complainant can argue that there is an abuse of successive fixed term contracts, as set out in section 2(2A)

4. Therefore the Complainant’s defence to the preliminary point fails on this ground.

Protection against roll over fixed term contracts under section 2 (2A) of the UD Acts

5. In relation to successive fixed term contracts, Section 2 (2) of the 1977 Act was amended firstly by section 3 of the Unfair Dismissals Act 1993 and later by Part 7 of the Protection of Employment (Exceptional Collective Redundancies and Related Matters) Act 2007. The different amendments to section 2(2) of the UD Act (and where the amending enactments are to be found) make for circuitous reading so for the sake of completeness I will set out the current version of section 2 (2) with the various amendments incorporated.

________________________________________________________________________

Section 2(2)

Subject to subsection (2A), this Act shall not apply to –

(a) dismissal where the employment was under a contract of employment for a fixed term made before 16 day of September 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

(b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without it being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

(2A) Where, following dismissal consisting only of the expiry of the term of a contract of employment of a kind mentioned in subsection (2) (“the prior contract”) without the term being renewed under the contract or the cesser of the purpose of the contract –

(a) the employee concerned is re-employed by the employer concerned within 3 months of the dismissal under a contract of employment of that kind made between the employer and the employee (“the subsequent contract”) and the nature of the employment is the same as or similar to that of the employment under the prior contract,

(b) the employee is dismissed from the employment

(c) the dismissal consisted only of the expiry of the term of the subsequent contract without the term being renewed under the contract or the cesser of the purpose of the contract, and

(d) in the opinion of the rights Commissioner, the Tribunal or the Circuit Court, as the case may be, the entry by the employer into the subsequent contract was wholly or partly for or was connected with the purpose of the avoidance of liability under this Act –

then-

(I) this Act shall, subject to the other provisions thereof, apply to the dismissal, and

(II) the term of the prior contract and or any antecedent contracts shall be added to that of the subsequent contract for the purpose of the ascertainment under this Act of the period of service of the employee with the employer and the period so ascertained shall be deemed for those purposes to be one of continuous service.

(2B) In subsection (2A), “antecedent contract”, in relation to a prior contract means –

(a) a contract of employment of the kind mentioned in subsection (2) the term of which has expired not more than 3 months before the commencement of the prior contract, or

(b) each of a series of contracts the term of the last of which expired not more than 3 months before the commencement of that of the prior contract and the term of the other or of each of the other contracts in the series expired not more than 3 months before the commencement of that of the other, or the next, contract in the series,

being a contract or contracts made between the employer and the employee who were parties to the prior contract and the nature of the employment under which was the same or similar to that of the employment under the prior contract.

___________________________________________________________________________

6. Section 2(2A) prevents the application of section 2 (2) exclusion when it is being abused by successive fixed term contracts.

7. The first issue that arises is whether the fixed term contract needs to be in writing or not.

8. The Complainant submits that a fixed term contract does not have to be in writing because on the present facts, there was only ever one written fixed term contract. If there is only one fixed term (and no account is given to the academic years 2013/14 and 2014/15) then there can be no basis to contend that there has been an abuse by the use of successive contracts.

9. It is true that not all fixed term contracts must be in writing. In the Protection of Employees (Fixed Term Workers) Act 2003 a contract of employment is defined as “a contract of service whether express or implied and if express whether oral or in writing.” A similar definition is found in the UD Act itself (again, “oral or in writing”)

10. However, when interpreting a section of a statute, a court is bound to consider only the section that is being interpreted and is limited to considering the natural and ordinary meaning of the words in that section. It can only look to the purpose of the Act or other provisions in the Act, if there is an ambiguity within the section itself.

11. Section 2 Sub-section (2A) refers to “a contract of employment of a kind mentioned in subsection (2) (“the prior contract”).

12. So what is meant by “a contract of a kind mentioned in subsection (2)?”

13. Section 2 subsection 2 refers to

“a contract of employment for a fixed term … and the dismissal consisted only of the expiry of the term without it being renewed … and the contract is in writing, was signed by or on behalf of the employer and employee and provides that this Act shall not apply””

None of the ingredients of the definition of contract in this subsection can be ignored.

14. I am of the view that section 2(2) is not ambiguous and that the fixed term contract must be in writing.

15. I am precluded from considering the wider purpose of the Act given that the section is clear and unambiguous. However it seems that to find otherwise would undermine the purpose for which fixed term contracts have always been permitted under the UD Acts. Namely, to give flexibility to the parties to commit to a contract for a limited period or for a limited purpose and as long as all the specified protections are in place, the Employer is protected from exposure to the UD Acts.

16. I accept that this interpretation might potentially mean that an employee could work for many years with no written contract and if a written fixed term agreement is presented after ten years and it contains the three criteria of section 2 (2), and the employee signs it, then he might then be prevented from bringing a UD claim. Despite this apparent unfairness (although I am certain that a would-be Respondent would argue otherwise; that an employee is expected to know what they are agreeing to etc.) but nonetheless the Adjudicator is bound to apply the law not make it. He or she must apply the clear and unambiguous wording of the statute to the facts.

17. For instance if I were to accept the Complainant’s interpretation, it would render the wording of the section 2 (2), that the contract be in writing and the wording of section2 (2A) that the contract be “of a kind mentioned in subsection (2) (“the prior contract”)” to be meaningless. What can be meant by “a kind mentioned in subsection 2” other than all the descriptions of the agreement that are in subsection 2?

18. Therefore as there was only one written fixed term contract the Complainant cannot in my view benefit from the provisions in section 2(2A) protecting against abuse of successive fixed term contracts.

19. For these reasons I find that the preconditions as set out in section 2 (2) (that the contract be in writing, that it be signed by both parties and the provisions of the Unfair Dismissals Acts are excluded) are present.

20. Therefore, the Complainant defence to the preliminary point fails on this ground.

Department of Education Circular 55/2008 and 24/2009

21. The reliance on the DoE circulars by the Respondent altered between day 1 and day 2 of the hearing.

22. Initially the Respondent sought to argue that the Complainant had a right to a Contract of Indefinite Duration (CID)because she came within the criteria of three DoE Circulars (55/2008 and 24/2009 and 24/2015)

23. However on day 2 theComplainant conceded that she did not have the protection of circular 24/2015 as she was a member of a Union which was not party to the Lansdowne Road Agreement. I accept this as an uncontested fact and I do not query that position for the purpose of this decision.

24. It was unclear on day 2 whether the claim for a Contract of Indefinite Duration, under the previous circulars (to which the Complainant was party to) was being made out.

25. However insofar as this is still claimed I find as follows:

26. This is a claim under the UD Acts

27. There is no provision in the UD Acts to make a finding in relation to a CID.

28. In order to defeat an exclusion under the UD Acts, an entitlement to a CID must have already been established. This can be done either by the adjudication system set up by the circulars or by making a claim under the Protection of Employees (Fixed Term Workers) Act 2003. In other words there is a process to go through in order for a worker to have a CID declared and where there is dispute between the parties as to if a worker is entitled to a CID or not, no CID exists until so found.

29. Therefore there is no jurisdiction in the UD Acts for a declaration that a complainant is entitled to a CID, which has neither been claimed for, or found.

30. A CID, once so found, will protect against a dismissal occurring however it is from a statutory point of view a separate and different process from acquiring rights under the UD Acts under section 2(2A) as referred to already.

31. The second reliance the Complainant places on the circulars is to say that the Respondent acted in breach of DoE 55/08 by requiring the Complainant to undergo a job application process for a post that she already held.

32. This last contention may or may not be the case, but this is not a proper part of a UD claim and for this reason, this part of the appeal is misconceived.

33. The remedy for a breach under the circulars is the adjudication process set up under the Circulars, not within a claim for unfair dismissal.

34. Therefore the Complainant’s defence to the preliminary point fails on this ground.

35. In conclusion as the three criteria in section 2 (2) of the UD Acts, have been met there is no jurisdiction for an Adjudicator to hear this claim