ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00004862
Parties:
| Complainant | Respondent |
Anonymised Parties | A Project Officer | An Education and Training Co |
Complaint(s)/Dispute(s) for Resolution:
| 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-00006925-001 | 12/09/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001 | CA-00006925-002 | 12/09/2016 |
Date of Adjudication Hearing: 15/03/2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 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:
The Complainant is seeking a Contract of Indefinite duration. |
Summary of Complainant’s Case:
The case is taken under the Protection of Employees (Fixed Term Work) Act 2003. On the instructions of the Complainant we wish to withdraw our claim under the Protection of Employees (Part-time Work) Act 2001 and our claim under the Industrial Relations Acts 1969. The Complainant in this case has been employed as a Project Worker by the Respondent since November 2011 when he was issued his first contract. The Complainant was issued a second contract which covered the years 2012/2013, 2013/2014, 2014/2015. The First Contract: The contract issued to the Complainant in November of 2011 provides “this is a fixed term contract and not for an indefinite period because the ( Third Party named) has determined that funding for this programme is only guaranteed from 2nd April 2012 to 31st August 2013. This contract provided for 30 hours per week. The Second Contract: The contract issued to the Complainant for 2012/2013/2013/2014/2014/2015 provides “this is a specific purpose contract and not for an indefinite period because the ( Third Party named) funding for the School Completion Project is not guaranteed beyond 31st August 2016. The continuation of this post within this project is dependent on the amount of annual funding received.” This contract provided for the following: 2012/2013 30 hours per week 2013/2014 23.5 hours per week 2014/2015 19 hours per week. The Third Contract: The Complainant is working without a further written contract since the 1st August 2016. On that basis it is our position that, by default, the contract issued for 2014/2015 became a Contract of Indefinite Duration. The Law: Section 9(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year. Section 9(4) of the Act provides: (4) Subsections (1) to (3) shall not apply to the renewal of a contract of a contract of employment for a fixed term where there are objective grounds justifying such a renewal. Section 7 (1) of the Act provides: 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 8 (2) of the Act provides: Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal. On the 31st August 2016 the Claimant’s contract rolled over for a further year. No written statement was provided to the Complainant as to why the Complainant was not being offered a contract of indefinite duration. Section 8 (4) of the Act provides: If it appears to a rights commissioner or the Labour Court in any proceedings under this Act – That an employer omitted to provide a written statement, or That a written statement is evasive or equivocal, The rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances. Section 7(1) provides: 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 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. Case Law: Case law in relation to the respondent relying on matters relating to funding as an objective justification for not offering the the Complainant a Contract of Indefinite Duration is well settled. In Adeneler and Ors v Ellinikos Organismos Galaktos IRLR 716, Kiriaki Angelidaki and Others v Organismos Nomarkhaiki C-380/07 the CJEU drew a distinction between work undertaken for the purpose of meeting the fixed and permanent need of the employer and work for the purpose of some temporary or transient need. In the instant case the question that falls for determination is whether the work for which the Complainant is employed should properly be classified as coming within the fixed and permanent needs of the Respondent or whether it was part of a purely temporary or transient need. We contend that it is a permanent need of the Respondent. The CJEU in Hill and Stapleton v Revenue Commissioners [1969] 1 ICR 48 held “so far as the justification on economic grounds is concerned, it should be noted that an employer cannot justify discrimination ….. solely on the ground that the avoidance of such discrimination would involve increased cost”. We contend therefore that to uphold the Respondent’s position in relation the final fixed term contract under which the Complainant was employed would be to accept economic grounds as the justification for the use of successive fixed-term contracts of employment. In Summary: It is the case that the Complainant commenced employment with the Respondent in 2011 being issued with his first contract. In 2012 he was issued with a further contract covering the years 2012/2013, 2013/2014, 2014/2015. The Complainant has been working without being issued a further written contract since the 1st August 2016. On the 31st August 2016 the Claimant’s contract rolled over for a further year. No written statement was provided to the Complainant as to why he was not being offered a contract of indefinite duration. We contend therefore, that by default, the contract issued for 2014/2015 became a Contract of Indefinite Duration. We are asking the Adjudication Officer to find our claim well founded and to require the Respondent to issue a Contract of Indefinite Duration to the Complainant for 19 hours per week. |
Summary of Respondents Case
The case before the Adjudicating Officer relates to claims by Mr John Kelly, herein after referred to as the 'Claimant' against the Respondent under both section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 and section 16 of the Protection of Employees (Part-Time Work) Act 2001 that he was treated less favourably than a comparable full-time employee.
The Respondent is a statutory authority which has responsibility for education and training, youth work and a range of other statutory functions. The Respondent manages and operates second level schools, further education colleges and a range of adult and further education centres delivering education and training programmes.
The Respondent promotes the principles of equality and integration for all staff and students regardless of gender, religion, socio-economic background or sexual orientation.
The Claimant commenced employment with the Respondent organisation on 7th November 2011 as a temporary/substitute project worker on the School Completion Programme. The School Completion Programme (SCP) was set up as part of Department of Education and Skills (DES) DEIS Strategy- Delivering Equality of Opportunity in Schools. Its aim is to increase the numbers of young people staying in primary and second level school and in doing so improve the numbers of pupils who successfully complete the Senior Cycle, or the equivalent.
Each of the 124 local SCP projects is led by a management committee comprising school principals, HSCL co-ordinators, parents and voluntary and statutory agencies. SCP work focuses on targeting and providing supports to young people identified to be most at risk of early school leaving.
In February 2012 the Claimant was appointed to the role of SCP Project worker and continued on an annual basis in that role with his timetabled hours reducing year on year in accordance with the available funding. This was expressly set out in the Terms and Conditions of Employment provided to the Claimant.
The Terms and Conditions provided to the Claimant on 25th November 2014 stated as follows under the Clause "Hours of Employment" 'Your hours of work are subject to review year on year dependent on available funding for this post. The following is a record of your annual hours to date:
2012/2013 30 Hours per week
2013/2014 23.5 Hours per week
2014/2015` 19 Hours per week
By letter dated 12th September 2016 from the Head of Human Resources with the Respondent the Claimant was advised that "the available funding for the year 2016/17 will support a timetable of 12 hours under the School Completion Programme. The Co-ordinator has discussed the timetable and the duties to be completed during these 12 hours.". "In addition to the above you have been engaged, by the School Principal, on school related projects which have supplemented your SCP hours year on year. These hours have been funded from various sources as finances became available. The available funding for the year 2016/17 for work of this nature, generated by the Principal, will support a timetable of 10 hours. Your specific purpose contract of employment reflects the nature of the above. The continuation of SCP is dependent on the amount of annual funding received."
The Claimant appears to be alleging that he is entitled to a contract of indefinite duration under the Protection of Employees (Fixed-Term Work) Act 2003 and that he was treated less favourably than a comparable full-time employee under both this Act and the Protection of Employees (Part-Time Work) Act 2001 with respect to this Terms and Conditions of Employment.
Section 9 of the Fixed-Term Work Act 2003 ('the 2003 Act') states at subsection 2
"(1) ....where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year
(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."
Similarly section 9 of the Protection of Employees (Part-Time Work) Act 2001 ('the 2001 Act') states
- 1) Subject to subsection (2) and (4) and section 11 (2). a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.
(2) Without prejudice to section 11 (2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.
(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8 , to a part-time employee.
The Respondent submits that the Claimant's claim in relation to the 2003 Act should not be upheld because there were, and continue to be, objective grounds for not providing the Claimant with a contract of indefinite duration and the Respondent relies on section 9(3) of the Act as set out above.
Section 7(1) of the 2003 Act provides as follows with regard to objective justification:
"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 the employee (which treatment may include the renewal of a fixed-term employees contract for a further fixed-term) is for the purpose of achieving a legitimate objective of the employer and such treatment as is appropriate and necessary for that purpose".
The Respondent refers the Adjudicator to the three tier test for objective justification as established by the European Court of Justice in Bilka-Kaufhaus Cease Cl170184). In summary, the measure must meet a "real need" or legitimate objective of the employer, the measure must be "appropriate" to meet the objective which it pursues and the measure must be "necessary" in order to achieve that objective. In this case the Respondent had a real need to employ a co-ordinator for the school completion programme, this is a requirement of the funding provider and such co ordinator is on an incremental scale whereby her salary increases year on year. The remaining funds can be used as the programme operator chooses and in this instance a Project Worker was hired but expressly on the basis that the funds available for the Project Worker role year on year would be subject firstly to the overall funding available and secondly to paying the salary of the co-ordinator. The "real need" in this instance was therefore the role of programme co-ordinator. Given that the SCP is allocated funding on a yearly basis ( the year being the school year September to August) a contract of indefinite duration is not the appropriate form of contract and the issuing of a specific purpose contract to the Claimant is therefore entirely appropriate. Furthermore, the issuing of a specific purpose contract to the Claimant is necessary i.e. there are no other means by which the Respondent's objective can be achieved.
It is clear from the foregoing, that the Respondent satisfies each limb of the three tier test.
The Claimant was fully engaged with the Respondent on matters of funding and project duration as evidenced by the letter to him from the Respondent dated 12th September 2016 and the content of the Terms and Conditions issued to him.
In short, the Claimant knew the terms upon which he was offered employment. He was not offered a contract of indefinite duration. He was offered a specified purpose contract for a finite period for which external research funding was made available only on a yearly basis and which expressly stated that his hours of work were subject to review on a yearly basis.
The fact that an employee is employed on more than one continuous fixed-term contract where the aggregate duration exceeds 4 years does not give rise to an automatic entitlement to a contract of indefinite duration.
The Respondent refers the Rights Commissioner to a recent decision of the Labour Court in National University of Ireland Galway v Clare Welford dated 3 October 2013. In Welford, the Claimant was a lecturer in nursing studies employed pursuant to a series of fixed-term contracts commencing on 13 April 2005. Dr. Welford was issued with six fixed term contracts, the last of which commenced on 1 September 2011 and ended on 30 June 2012. By that time Dr. Welford had in excess of four years' continuous service and sought a contract of indefinite duration pursuant to Section 9 of the 2003 Act.
The Labour Court rejected the employee's claim and upheld the objective grounds relied upon by the Respondent. In so doing, the Court stated the following in its decision:-
"In this case the net question that falls for determination is whether the work for which the Claimant was employed pursuant to the contract of 1 December 2007 should properly be classified as coming within the fixed and permanent needs of the Respondent or whether it was part of a purely temporary or transient need.
In considering that question the Court accepts the submissions made on behalf of the Claimant to the effect that the conduct of research per se is part of the core functions of an academic and forms part of the fixed and permanent needs of a University. However, what is in issue in this case is whether the particular study which the Claimant was contracted to undertake in December 2007 could properly be classified as fanning part of its fixed and permanent needs or whether it fulfilled a temporary or transient need.
Having considered all the evidence it is clear to the Court that this project in question was in the nature of a stand-a/one undertaking rather than fanning part of continuing similar projects which could be regarded as meeting the Respondent's permanent needs. The project was to last for a defined period of three years and this was recognised by the Claimant in a letter that she sent to the Respondent dated 15 October 2007. It is also of significance that the funding for the project was arranged by the Claimant herself and was part of a PhD programme that she was then undertaking. It was in that regard an undertaking of a temporary or transient nature and did not form part of the Respondent's continual or permanent research requirements.
In these circumstances the Court has come to the conclusion that on the facts of this case there were objective grounds justifying the renewal of the Claimant's employments for a fixed-term to under this specific project. Accordingly Section 9(3) of the Act did not apply to this renewal."
Like Dr. Welford, the Claimant was engaged to work on a project which was scheduled to run for a finite period and for which external funding had been provided. From the start, the Claimant was aware of the finite duration of the project for which he was engaged. This was evident from the terms and conditions provided to the Claimant and from subsequent correspondence between the Claimant and the Respondent.
The Respondent also relies on the decision of the Labour Court in National University of Ireland Maynooth and Dr. Ann Buckley (FTD092l . That case also related to a third party funded project In that case the Claimant secured the funding and approached the university and asked the university to host her. For that purpose the university employed Ms Buckley on a succession of fixed-term contracts.
Once Ms Buckley passed the four year threshold she claimed that she should be deemed to be employed under a contract of indefinite duration under section 9 of the 2003 Act. The relevant clause in Ms Buckley's contract of employment was in the following terms:
"Renewal of your employment is justified by the fact that further temporary work has become available and that funding is available to support work for a fixed period. The university is unable to offer a contract of indefinite duration as the funding in question is available for a fixed duration only':
The Labour Court concluded that the text in question was plainly expressed and it was made clear that further fixed-term work, rather than a contract of indefinite duration, was being offered. The Labour Court concluded in Maynooth as follows:-
''The Court is of the view that the Claimant, having signed a binding contract agreeing to the objective reasons for its renewal on a fixed-term basis, cannot subsequently resile from this position and is therefore not entitled to a contract of indefinite duration':
It is clear that in this case the Claimant at all times understood the nature of his contractual relationship with the Respondent. The Claimant in this case was always aware that it was never intended that the position would be available indefinitely.
The Respondent submits that these claims are not well founded for the reasons set out in detail above. It is submitted that:
the complaint made under the 2003 Act should not be upheld because objective grounds existed to justify the renewal of the Claimant's specified purpose contract;
the Claimant has no entitlement to a contract of indefinite duration under section 9 of the 2003 Act;
Without prejudice to the foregoing if the Adjudicator finds that the Claimant is entitled to a Contract of Indefinite Duration then the terms of same should be identical to the preceeding contract from which it is derived other than the term of expiry. Health Service Executive v Khan FTD 4/2006. Therefore the Claimant's hours of work should be 12 hours of work only on the SCP as per the 2015/16 contract subject to review year on year.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
At the Hearing the Complainant withdrew Claim reference Number CA-00006925-002.
With regard to the Complainants claim CA-00006925-001 the Relevant Section of the Act is as follows;
Section 9 of the Fixed-Term Work Act 2003 ('the 2003 Act') states at subsection 2
"(1) ....where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year
(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."
In this case the Complainant was employed on the following contracts;
A contract from April 2nd 2012 to August 31st 2013. In this contract the statement “ This is a fixed term contract and not for an indefinite period because the (Third Party named) has determined that funding for this programme is only guaranteed from April 2nd 2012 to August 31st 2012”.
An Implied Contract operated from September 1st 2013 to August 31st 2016. There are no objective grounds stated in this contract obviously as it was unwritten,
A contract September 1st 2016 to August 31st 2017. In this contract the statement “This is a specific purpose contract and not for an indefinite period because the (Third Party named) funding for School Completion Project is not guaranteed beyond 31s August 2016. The continuation of this post within the project is dependent on the amount of annual funding received “ is included.
The combined service of Contracts 1 and 2 are for a duration of greater than four years. The Third contract above was issued to the Complainant after the expiry of four years service ( April 2nd 2012 to April 1st 2016). Therefore Section 2 above applies to the Complainant as the duration of the first two contracts exceeds four years.
The next issue is whether the Section 4 exemption applies to the case Section 4 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."
As the Implied Contract, due its nature, has no stated objective grounds justifying the renewal the exemption for “objective grounds” in Clause 4 does not apply to this case. The Respondent advanced no grounds to the contrary.
In effect the Act was breached on April 1st 2016 under Section 2 when the total service reached four years. It would appear that the Complainant was working 19 hours per week at that time, albeit on a contract with flexible hours. As the Complainants hours were also 19 in 2014/2015 it seems reasonable that these hours were consistent. As a result the Complainant became entitled to a CID on April 1st 2016 for 19 hours per week and I deem his claim for a CID to be well founded, on a go forward basis from the date of this decision, subject to any appeal, on 19 hours per week.
Dated: 08 May 2017
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Key Words:
Fixed term claim |