FTD181

This is an appeal brought by Mr Roache (‘the Complainant’) against a decision of an Adjudication Officer (ADJ-00003672, dated 4 October 2017) under the Protection of Employees (Fixed-Term Work) Act 2003 (‘the 2003 Act’). The Court received the Complainant’s Notice of Appeal on 10 November 2017. It heard the appeal in Dublin on 12 January 2018 in tandem with the Complainant’s appeal under the Industrial Relations Act 1969 (CD/17/337).

In his original complaint form, the Complainant identified his complaint under the 2003 Act as follows: “My employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration.” In fact, as will be evident from what follows below, the Complainant’s case is not that he didn’t receive a written statement on each of the two occasions that his fixed-term contract was renewed by his former employer, Liebherr Container Cranes Limited (‘the Respondent’), but that the reasons stated therein for the renewal of his contract for a further fixed term were allegedly inadequate and did not meet the requirements of section 7(1) of the 2003 Act.

The Complainant was employed by the Respondent pursuant to a series of fixed-term contracts as follows:

Contract 1: 9 June 2014 stated to be for twelve months;

Contract 2: 5 June 2015 until 30 November 2015; and

Contract 3: 30 November 2015 until 27 May 2016.

Contract 2 and Contract 3 both contained a clause which identified the reason for the Respondent’s decision to offer the Complainant a further fixed-term contract was ‘fluctuation in business demand’.

The Claim before the Court

The Court spent some time, at the outset of the within appeal, trying to identify exactly what claim was being advanced before it on behalf of the Complainant. His Solicitor did concede that the Complainant could not (and was not attempting to) pursue a claim that section 9 of the 2003 Act had been breached in his case. He likewise conceded that the Complainant was not claiming that there had been a breach of section 6 of the 2003 Act. It appears to the Court, therefore, that the essence of the complaint being advanced is that the Respondent, on both occasions, that it had renewed the Complainant’s employment by offering him a further fixed-term contract, had failed to fulfil its obligations under section 8 of the 2003 Act in so far as it had identified as its objective grounds for those additional fixed-term contracts, grounds which – in the Complainant’s submission - did not meet the requirements of section 7(1) of the Act.

Section 7(1) provides:

• “(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.”

Mr Fagan, Solicitor for the Complainant, also referred the Court to the following passage at paragraph 53 of the judgment of the Court of Justice in Case C-307/05,Del Cerro Alonso v Osakidetza - Servicio Vasco de Salud:

• “The Court held that that 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. 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).”

The Respondent submits that on both occasions that the Complainant’s fixed-term contract with it was renewed, he was issued with a statement in writing that clearly identified the objective grounds for the renewal within the meaning of section 8 of the Act. It further submits that the Court has no jurisdiction – pursuant to section 8 alone– to evaluate the quality or veracity of the objective grounds identified in the renewal of the fixed-term contract; such an analysis, it submits is only permissible in the context of a claim under section 6 or section 9 of the Act. Ms Bolger SC for the Respondent states that the only analysis required by section 8(2) of the Act is whether the employee has been informed in writing of the objective grounds justifying the renewal of the fixed-term contract. Once he has been so informed, the Court is not permitted – in her submission – to engage in any analysis of the quality of that objective ground, in the absence of a claim being pursued under section 6 and/or section 9 of the Act. The Court was referred to its previous determination inUniversity College Dublin v McConnonFTD1423 in support of this submission.

Discussion and Decision

The well-settled view of the Court of Justice of the European Union is that the fixed and permanent needs of an employer should normally be fulfilled by the use of permanent employment contracts (see Cases C-378/07 to C-380/07,Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071). However, it is also clear from the jurisprudence of that Court that the circumstances under which work that corresponds to an employer’s fixed and permanent needs is to be performed can provide objective justification for the use of fixed-term contracts.

As previously stated by this Court inUniversity College Dublin v McConnonFTD1423:

• “There is no closed category of circumstances in which that can arise. It may be that an employee is employed for a fixed term to perform work which corresponds to the fixed and permanent needs of the employer but they do so in order to provide cover for another employee who is temporally absent. It could also arise in circumstances where a regular workforce has to be augmented so as to meet some temporary exigency of the business. In that regard, while the Framework Agreement on Fixed-Term Work annexed to Directive 99/70/EC (upon which the 2003 Act is based) recognises that while employment contracts of indefinite duration are to be regarded as the general form of employment relationships, fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers (see Recitals 6 and 8 in the preamble to the Framework Agreement).”

The grounds specified in the Complainant’s second and third contracts for their renewal for a fixed term, recited earlier in this Determination, relate to the fluctuating nature of the Respondent’s requirement for the work that the Claimant was employed to perform. The Court is satisfied that those grounds 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. responding to ongoing fluctuations in the demands of the Respondent’s business. The Court is 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 the impugned contracts were concluded. (See the determination of this Court inSt Catherine’s College for Home Economics v Maloney[2009] 20 E.L.R. 143.)

The appeal, therefore, fails and the decision of the Adjudication Officer is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
19 February, 2018______________________
CCDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.