FTD171

This is Dr Jamil’s (“the Complainant”) appeal pursuant to section 44 of the Workplace Relations Act 2015 from a decision of an Adjudication Officer dated 22 July 2016 in which the Adjudication Officer determined two separate complaints (r-151956-ft-14/DI; r-158917-ft-15/DI) under the Protection of Employees (Fixed-term Work) Act 2003 (“the Act”). The Notice of Appeal was received by the Court on 1 September 2016.

The Complainant was employed under a series of fixed-term and specified purpose contracts between 18 January 2010 and 5 July 2015. Throughout that entire period he provided anaesthetic services at Mater Misericordiae University Hospital (“the Respondent”) as a Temporary Consultant Anaesthetist. However, at various times he also provided similar services at Cappagh Hospital. The Complaint submits that he is entitled by operation of law to a contract of indefinite duration with the Respondent pursuant to section 9 of the Act. He also submits that he was treated less favourably than a named comparable permanent employee during the course of his employment with the Respondent in contravention of section 6 of the Act. The Complainant had also referred a complaint to the Adjudication Officer alleging a breach of section 8 of the Act but did not pursue this claim at first instance. That claim is not, therefore, before the Court. The Adjudication Officer found against the Complainant in respect of his complaints under both section 6 and section 9 of the Act.

(a) Alleged Less Favourable Treatment

In the course of his duties as a Consultant Anaesthetist, the Complainant provided a pain service to patients. In doing so, he depended on the availability of a range of facilities including outpatient clinics, inpatient facilities, secretarial and administrative support. He alleges that he was treated less favourably than a permanently appointed comparator in the following manner:

• 
  •He was provided with a lower level of secretarial and nursing support during his clinics and interventional pain procedures than that provided to his colleagues;

  •Communications between his patients and the pain clinic were afforded less priority than those of his colleagues;

  •He experienced difficulties in scheduling inpatient beds for patients he had assessed as needing relevant procedures;

  •He was excluded from Departmental meetings;

  •He had limited access to data on “Patient Centre” and unable to type, edit or print his own clinic letters;

  •He was not provided with a typing service for clinic letters and correspondence related to patients.

Dr Griffin’s evidence was that the Complainant had been invited to attend the multidisciplinary pain meetings on Tuesdays but failed to attend them. However, Dr Griffin also informed the Court that a Departmental meeting was held every 2 months but that this was attended by permanent consultants only; locum consultants were not invited to attend. In his answers to questions addressed to him by the Court, the Complainant confirmed that he was aware of the weekly multidisciplinary pain meetings and that there was no impediment to his attending them,per se, although the timing of the meetings wasn’t compatible with his schedule of work. However, his evidence was that that he only received 10 minutes’ advance notice of such meetings on Outlook.

(b) Claim in Respect of a Contract of Indefinite Duration

The details of the series of fixed-term and specified purpose contracts under which the Complainant was employed between 18 January 2010 and 5 July 2015 are as follows

There was a conflict in the parties’ evidence regarding contract 2. The Respondent submitted that Cappagh Hospital was the employer and paymaster for this contract. The Complainant submits that, in fact, the Respondent was the employer and paymaster for contract 2. Although it doesn’t appear to the Court that anything of significance turns on this issue, in the context of this case, the Court does note that the Complainant failed to submit any documentary evidence in support of his submission in this regard whereas the Respondent furnished the Court with copies of employment agreements and other relevant documentation relevant to contracts 1, 3, 4 & 5. The Court, therefore, accepts the Respondent’s position with regard to the identity of the employer and paymaster for the purposes of contract 2, in the absence of evidence to the contrary being proffered by the Complainant.

Section 9 of the Act provides:

• 9.—(1) Subject tosubsection (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.
  (2) Subject tosubsection (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 contravenesubsection (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 2001 shall apply for the purpose of ascertaining the period of service of an
  employee and whether that service has been continuous.

The Complainant submits that, in accordance with section 9 of the Act, “by the passage of time, [he] has become entitled to a contract of indefinite duration.” He further submits that the Respondent has failed to provide a valid objective reason for its failure to offer him such a contract. In support of his position, the Complainant points to the history of his employment with the Respondent since 2010 which he says was “without blemish or criticism”. Furthermore, the Complainant’s written submission to the Court quotes from a written reference supplied by the Chair of the Department of Anaesthesia in December 2013 in which the Complainant’s work is described as “of the highest standard in clinical anaesthesia”.

The Respondent relies on section 9(4) of the Act and submits that there were objective grounds justifying each temporary renewal of the Complainant’s contract in consequence of which he did not become entitled to a contract of indefinite duration either by operation of law or the passage of time.

The Respondent submits that when a position in a voluntary hospital becomes vacant due to the resignation of a Consultant from a permanent position, that position can only be filled on a permanent basis once the Consultant Appointments Unit of the HSE has given prior approval to do so. Once the necessary approval has been given, a competitive recruitment process must then be undertaken in order to fill the position. The Respondent’s position is that it clearly informed the Complainant in the relevant correspondence to him that the objective grounds for issuing him with fixed-term contracts and for their renewal was to backfill a vacant permanent position on a temporary basis, pending the appointment of a Consultant on a permanent basis.

The Respondent submits, therefore, that the Complainant was aware at all material times that he was filling a permanent position on a temporary basis. On all occasions where approval was received for the filling of the permanent position, the Respondent informed the Complainant of this fact, thereby discharging its obligations under Section 10 of the Act. On the two occasions on which the Complainant was interviewed for the permanent position he was unsuccessful. The Complainant did not apply for the permanent position which was advertised in October 2014. The competitive recruitment process conducted by the Respondent was, it submits, the only means available to it to fill that position in a permanent capacity.

Discussion and Decision

(a) Breach of Section 6 Complaint

Section 6(1) of the Act provides:

• 6.—(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.

• “conditions of employment” includes conditions in respect of remuneration and matters relating thereto (and, in relation to any pension scheme or arrangement, includes conditions for membership of the scheme or arrangement and entitlement to rights thereunder and conditions related to the making of contributions to the scheme or arrangement)

(b) Breach of Section 9 Complaint

Section 9(4) of the Act (which is relied on by the Respondent) provides that an employee who has been engaged on a series of fixed-term contracts contrary to section 9(2) or 9(3), as the case may be, shall not be entitled to a contract of indefinite duration where there existed on the date of the renewal of his or her contract “objective grounds justifying such a renewal”. Section 7 of the Act deals as follows with the concept of “objective grounds” within the meaning of the Act:

• 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.
  (2) Where, as regards any term of his or her contract, a fixed-term employee is
  treated by his or her employer in a less favourable manner than a comparable
  permanent employee, the treatment in question shall (for the purposes ofsection
  6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term
  employee's contract of employment, taken as a whole, are at least as favourable as
  the terms of the comparable permanent employee's contract of employment.

• (a) correspond to a real need on the part of the undertaking;

  (b) are appropriate with a view to achieving the objective pursued; and

  (c) are necessary to that end.

• "The parties to this agreement recognise that contracts of an indefinite duration are, and will continue to be, the general form of employment relationship between employers and workers. They also recognise that fixed- term employment contracts respond, in certain circumstances, to the needs of both employers and workers."

• "The role of consultants in the medical care services would by any measure be one of those work areas where fixed-term contracts are appropriate because while open competitions to fill permanent consultant posts are conducted, it will inevitably be necessary to have those posts filled on a temporary basis in order that adequate medical coverage is provided while the competition is held."

When the Consultant Appointments Unit of the HSE gave approval for the filling of the positions arising from the resignations of Dr MacSullivan and Dr Chambers on a permanent basis, the Respondent was required to conduct a competitive process to fill these positions. The Respondent could not do otherwise.

It follows that the Respondent had objective grounds for renewing the Complainant’s employment on a series of fixed-term contracts on each and every occasion that it did so and, accordingly, there has been no contravention of Section 9, as alleged, or at all.

The Court finds, therefore, that the complaint alleging a breach of section 9 of the Act is not well founded.

Conclusion

The Appeal fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
19th May 2017______________________
JKDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.