Complainant

Respondent

Anonymised Parties

Engineer

Local Authority

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-00012997-001

08/08/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00012997-002

08/08/2017

The facts of this case were not in dispute between the parties.

The Complainant was recruited following an open competition for the position of resident engineer on a departmental funded capital project for a watermain rehabilitation project on the 29th of July 2013 (Contract 1). The contract was a specific purpose contract.

While working in this position, the Complainant was appointed acting senior resident engineer when the then senior resident engineer resigned.

The Respondent advertised to recruit two temporary executive engineers on fixed term contracts by way of open competition. The Complainant came high on the panel and was offered the post.

This fixed term contract as temporary executive engineer was to expire on the 25th of August 2017. (Contract 2)

The Complainant then wrote to the Respondent confirming that he was resigning his post as resident engineer or acting senior resident engineer (Contract 1) in order to take up the position of temporary executive engineer (Contract 2).

The Complainant’s case is that he is entitled to a contract of indefinite duration in respect of Contract 2 for the following reasons:

a)       Section 9 of the Protection of Employee’s (Fixed-Term Work) Act 2003 (The Act)applied and in particular the Complainant relied on Sections 9 (2) and 9 (3).

b)      The Complainant’s case is that Section 9(3) operates so as to sever the term in the Contract providing for its expiry on the 25th August 2017. The contract was converted to one of indefinite duration from the date of its commencement.

The Complainant’s employment began on the 29th of July 2013 and ceased on the 25th of August 2017 and comprised a total of four years and twenty-seven days. He submitted that the second fixed term contract brought the duration of his successive employment over the four-year period set out in Section 9(2) of the Act.

The Complainant relied on the labour court determination of National University of Ireland Maynooth and Lorraine Keane (FTD1512) and Clare County Council and Rionach Power (FTD0812).

In addition, at the hearing of the claim, the Complainant raised a complaint of penalisation as per section 13(1)(d) of the Act.

The Respondent accepted that the Complainant was employed continuously on fixed contracts for more than the four years normally permitted by Section 9(2). However, it contented that there were objective grounds justifying the employment beyond the period referred to in Section 9(2) and the extension beyond 4 years was thus saved by Section 9(4).

The Respondent also argued that Contract 2 was not a renewal. It was a contract he had obtained through competition and he resigned from Contract 1 to take it up.

The fact of dismissal was not in dispute.

For the purposes of the Act a fixed-term contract is one in which the end of the contract of employment is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event (see s.2 of the Act).

I find that the Complainant was employed on two fixed term contracts. The Complainant commenced his employment with the Respondent on the 29th of July 2013 and worked the following contracts

There is no question of a break in the continuity of service.

Therefore, I find that Section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 applies.

Section 9. Successive fixed-term contracts

(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.

(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.

I further find that the aggregate of the two contracts of employment was four years and twenty-seven days and is prima facia in contravention of subsection 9 (2).

By letter dated 26th July 2017 the Complainant wrote to the Respondent asserting an entitlement to a contract of indefinite duration in accordance with section 9(2) of the Act. The Respondent replied by letter dated 1st August 2017 to the effect that the cessation of the Complainant’s employment was in accordance with the provisions of his contract of employment.  

I note that the objective justification was not set out in Contract 2 as required by Section 8(2).

Section 8 (2) 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.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to [an adjudication officer] or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the [adjudication officer] or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

I reviewed Contract 2 and note that it expressly identified the employment as being temporary and a fixed term contract, but it didn’t set out the purpose or the background to it being a fixed term contract or the objective justification for same.

At the hearing, the Respondent contended that the reason the objective grounds justifyingthe renewal was not in Contract 2 was that Contract 2 was a different job, a new contract.

I have been provided with a staffing request application form from the Respondent to the Department of Environmental Health and Local Government. This was dated the 9th of December 2014.

I was also furnished a letter from the Department of Environment Community and Local Government dated the 6th of February 2015 sanctioning the request for two executive engineers’ posts on a two-year contract basis.

It was submitted on the Respondent’s behalf that the objective ground was that there was a temporary two-year vacancy at Director of Service level which gave rise to a consequential back filling. A management decision was taken to the effect that it was deemed appropriate to fill the position of Executive Engineer and at the same time another position of Executive Engineer became temporarily vacant due to maternity/sick leave of another employee.

The Respondent contended that this was the objective ground justifying the renewal of the Claimant’s fixed term contract within the meaning of s.7 of the Act and that Contract 2 was saved by s.9(4) of the Act from being a contract of indefinite duration.

In Health Service Executive v Sallam [2014] IEHC 298, Baker J. said that, as a matter of law, a failure by an employer to comply with the requirements of sub-section 9(4), did not of itself mean that no objective justification exists. A failure to provide a written statement was merely a factor that may be taken into account in coming to a determination as to whether the objective condition did, as a matter of fact, exist at the date of renewal. She added that the terms of subs. 8(4) required an Adjudication officer or the Labour Court to “engage in the exercise of considering the circumstances and the equity and justice between the individual parties before it comes to a conclusion or draws an inference from a failure under s.8”.

In University College Dublin v McConnon FTD 23/2014, the Labour Court has ruled that a breach of s.8, although giving rise to an adverse inference, did not automatically result in a fixed-term contract being deemed to be one of indefinite duration.   In that case, it held that had the legislature intended that a failure to comply with s.8 would produce such a result, it could easily have said so in express terms by creating an irrebuttable presumption that a failure to state the objective grounds meant that none existed.

In Board of Management of St Joseph's School for Deaf Boys v Grehan [2015] IEHC 605 Noonan J. noted that s.8(4) empowers an adjudication officer or the Labour Court to draw inferences from an employer's failure to provide a written statement or the provision of one that is considered to be evasive or equivocal.   He continued:

“An inference cannot however be drawn in a vacuum and must have regard to the evidence and the facts which such evidence establishes in a given case … “

The burden of proof is on the Respondent to objectively justify Contract 2 where the period of employment exceeded four years.  

Based on the evidence provided to me both orally and in writing, I accept that there was objective justification to the provision of a fixed term contract for Contract 2. The reasons as stated meet the requirements of both section 8 and section 7 of the Act in that they sought to achieve a legitimate objective of the Respondent i.e. filling a temporary vacancy due to the secondment of a member of staff and maternity / sick leave. I am satisfied, in all the circumstances of this case, that the use of successive fixed-term contracts was a proportionate and appropriate means of achieving that objective. Furthermore, it is also the case that those objective grounds were present and operating in the mind of the Respondent at the time that Contract 2 was put in place.

Therefore, I find that the complaint under CA-00012997-001 fails.

The Complainant made a further complaint at the hearing under section 13(d) of the Act in respect of penalisation.

The hearing was within three months of the date of dismissal and within the statutory time frame required under section 14. I allowed the Respondent time to make written submissions in this regard.

13. Prohibition of penalisation of employee by employer

(1) An employer shall not penalise an employee–

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

(2) For the purposes of this section, an employee is penalised if he or she–

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

In Clare County Council -v- Rionach Power FTD0812, the employer accepted that the non-renewal of the complainant's fixed-term contract constituted a dismissal for the purpose of subs.(1)(d). Accordingly, the case turned on whether the purpose of avoiding a fixed-term contract being transmuted to one of indefinite duration was an “influential factor” operating on the mind of the decision-maker. In finding that it was, the Labour Court awarded the complainant compensation.

In this case, the Respondent confirmed that both staff whose absence from the workplace and created the temporary vacancy returned their positions.

Therefore, I do not find that non-renewal of the complainant's fixed-term contract constituted a dismissal for the purpose of subs.(1)(d).

The claim under CA -00012997-002 fails.

I have considered the evidence provided to me both orally and in writing. I find that both claims fail.

Fixed Term contract.   Objective justification. Penalisation.