FTD184

FULL RECOMMENDATION

FTC/18/2

DETERMINATIONNO.FTD184

ADJ-00006973 CA-00009061-001

SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

DEPARTMENT OF EMPLOYMENT AFFAIRS AND SOCIAL PROTECTION
(REPRESENTED BY AOIFE CARROLL B.L., INSTRUCTED BY THE CHIEF STATE SOLICITOR'S OFFICE)

- AND -

ANNA CONCARR
(REPRESENTED BY F�RSA)

DIVISION :

Chairman: Ms Jenkinson
Employer Member: Mr Murphy
Worker Member: Mr Hall

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no ADJ-00006973.

BACKGROUND:

2. The Employer appealed the Adjudication Officer’s Decision to the Labour Court on the 9 January 2018. A Labour Court hearing took place on the 28 June 2018. The following is the Labour Court's Determination:-

DETERMINATION:

The appeal before the Court is on behalf of Department of Employment Affairs and Social Protection against a Decision of an Adjudication Officer in a claim by Ms Anna Concarr under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).

For ease of reference the parties are given the same designations as they had at first instance. Hence Ms Concarr will be referred to as “the Complainant” and Department of Employment Affairs & Social Protection will be referred to as “the Respondent”.

The Complainant referred her case to the Workplace Relations Commission on 13^thJanuary 2017. The hearing before the Adjudication Officer was held on 26^thJune 2017 and her Decision was issued on 30^thNovember 2017. Respondent’s appeal was received by the Court on 9^thJanuary 2018. The appeal came before the Court on 28^thJune 2018.

The substance of the Complainant’s claim is that she became entitled to a contract of indefinite duration under the provisions of Section 9 of the Act. She alleged that the Respondent had ‘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’. The Complainant alleged that having completed more than four years continuous fixed-term employment on one fixed-term contract that the Respondent had contravened Section 9(1) of the Act. Therefore, she claimed that by operation of Section 9(3) of the Act, her fixed-term contract was transmuted into one of indefinite duration by operation of law. In addition, she made a complaint that the Respondent was in breach of Section 7 of the Act.

The Adjudication Officer found that her claim was well-founded and held,inter alia, that“the Complainant has met all the criteria to meet the entitlement to a CID, having completed in excess of four years employment with the Respondent. In these circumstances the Respondent can only defeat the operation of the Act if they can demonstrate that the fixed-term contract is necessary because there are legitimate objective grounds which justify it and that it is appropriate and necessary (Section 7(1) of the Act)”.

Background

The Complainant was employed by the Respondent on a specified purpose contract as a Temporary Clerical Officer 30^thOctober 2012 and assigned to the Dunfanghy Social Welfare Office.

The contract stated :-

“In accordance with the protection of employees (Fixed-term Work) Act 2003, your contract is a fixed purpose contract on the following grounds:

This appointment will commence from 30^thOctober 2012 and will be for the purpose of general clerical officer duties in Dunfanghy SWSO to begin the rollout of the Public Service Card on a nationwide basis.”

Between 30^thOctober 2012 and 28^thJanuary 2018 the Complainant remained employed on one contract which was in force for the entire period of time. On 28^thJanuary 2018 (post the date of claim), the Respondent issued the Complainant with a contract of indefinite duration.

Summary of the Complainant’s Case

Ms Cliodhna McNamara, Forsa, on behalf of the Complainant, submitted that the Complainant had satisfied all the criteria to be entitled to a contract of indefinite duration under the Act. She said that as she had completed in excess of four years of employment with the Respondent therefore there was an obligation on the Respondent to demonstrate that a fixed-term contract was necessary due to legitimate objective grounds justifying it as set out in Section 7 of the Act. Ms McNamara disputed the Respondent’s contention that the Act does not cover employees on single specified purpose contracts where the employer has not justify its existence on legitimate objective grounds. She contended that to do so would suggest that an employee on a single long term contract would not be able to challenge its legitimacy under the legislation at any point which would leave them extremely vulnerable in the hands of unscrupulous employers.

Ms McNamara said that it was the Complainant’s understanding that there was a target date of 2017 by which three million public service cards would be issued. However, she contended that the Complainant was performing the same clerical duties as her permanent colleagues and that such duties were not associated with a temporary and/or transient need of the Respondent. She stated that as there was no end date on the contract and the work associated with the Public Services Card has been absorbed into the Local Office's clerical work, that the Complainant’s work became part of the on-going permanent work of the office. Consequently, Ms McNamara argued that there were no objective reasons for the continuation of the fixed-term contract. Therefore, she argued that the Complainant having completed more than four years’ service continuous employment on one fixed-term contract, the Respondent had contravened Section 9(1) of the Act and by operation of Section 9(3) of the Act, the Complainant’s fixed-term contract had transmuted into one of indefinite duration by operation of law.

Summary of the Respondent’s Appeal

Ms Aoife Carroll, B.L., instructed by the Chief State Solicitor’s Office, on behalf of the Respondent, maintained that the Complainant was not entitled to a contract of indefinite duration by the operation of the Act. She stated that it is the Respondent’s position that the Adjudication Officer erred in law and misapplied the Act in awarding a contract of indefinite duration to the Complainant. Ms Carroll stated that as an employee who was only employed on one fixed-term contract, the Complainant has no entitlement to a contract of indefinite duration under the Act.
Ms Carroll said that the Act was enacted for the purposes of putting into effect the Council Directive 1999/70/EC – 28th June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (‘the Directive’). Article 2 of the Directive requires member states to “bring into force, the laws, regulations and administrative provisions necessary to comply with this Directive”. The framework agreement is annexed to the Directive with Clause 5 providing:

- 1.“To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, member states, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners shall, where there are no equivalent legal measures to prevent abuse, introduce a manner which takes account of needs of specific sectors and/or categories of worker, one or more of the following measures:
  - (a)Objective reasons justifying the renewal of such contracts or relationships
    (b)The maximum total duration of successive fixed-term employment contracts or relationships
    (c)The number of renewals of such contracts or relationships
- 2. The member states after consultation with social partners and/or the social partners shall, where appropriate, determine under what conditions fixed-term employment contracts or relationships
  - (a) Shall be regarded as successive
    (b) Shall be determined to be contracts or relationships of indefinite duration.”

Ms Carroll made reference to Section 9(2) of the Act, which provides that an entitlement to a contract of indefinite duration will arise where the fixed-term employee“is employed by his/her employer or associated employer on two or more continuous fixed-term contracts”and confirms that the aggregate duration of those contracts shall not exceed four years. The requirement of having two or more fixed-term contracts is a condition precedent to the entitlement of an employee to be granted a contract of indefinite duration. In circumstances where an employee has not been employed on two or more successive fixed-term contracts, Section 9 (2) of the Act does not apply and there is no entitlement to a contract of indefinite duration. Therefore, Counsel for the Respondent contended that Section 9(2) of the Act is not simply linked to the passage of four years’ service in employment but rather contains a dual requirement that the employee be employed on two or more continuous fixed-term contracts and be employed for a period in excess of four years.

Ms Carroll pointed out that it is not disputed that in this case the Complainant was employed on one fixed-term contract which was in place between 30th October 2012 and 28th January 2018. Therefore, she contended that the Complainant cannot and does not satisfy the conditions set out at Section 9(2) of the Act which require both employment for a qualification period of four years and employment“on two or more continuous fixed-term contracts”.

Through Counsel, the Respondent submitted that the Adjudication Officer erred in holding that as the Complainant had been employed for four years, the Respondent could only defeat the operation of the Act if it could demonstrate that the fixed-term contract was necessary due to legitimate objective grounds justifying it and that it was appropriate and necessary, under “Section 7(1) of the Act” and furthermore that she had erred in holding that the Respondent had not set out‘legitimate objective grounds’.
Ms Carroll submitted that this finding was misconceived in law.

Referring to Section 7 of the Act, Ms Carroll maintained that it operates to define objective grounds for the purposes of Part 2 of the Act. It does not operate as a stand-alone requirement obligating an employer to provide objective grounds for granting an initial fixed-term or fixed purpose contract of employment. It further does not place any temporal limitation on a fixed purpose contract. A fixed purpose contract is linked to a specified purpose, not to a specific period of time. She maintained that there is nothing in the Act that prevents a fixed purpose contract from lasting for a period in excess of four years. There is further no obligation arising from the Act that the Respondent is required to provide reasons and/or objective grounds for the length of time that the fixed purpose contract has lasted.

In conclusion, Ms Carroll stated that for the purpose of this case, the relevant Section is Section 9(4) of the Act. That Subsection provides that “sub-Sections (1), (2), (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”. Therefore, Section 9(4) of the Act only applies where there is a renewal of a contract. That obligation does not extend to the initial entering into of the fixed-term or fixed purpose contract of employment. The issue of objective justification does not arise for consideration in this case and it was not invoked by the Respondent. In those circumstances there is no basis in the Act for the argument made by the Complainant or the findings of the Adjudication Officer.

Findings and Conclusions of the Court

The Court was informed at the hearing of the appeal that the Respondent has issued a contract of indefinite duration since the appeal was made thereby addressing the Complainant’s claim. Hence, it would appear to the Court, the issue in dispute had been rendered moot.

In Goold v Judge Collins and Others[2004] IESC38 the Supreme Court in a unanimous judgement dealt with the concept of mootness where Mr. Justice Hardiman described it in the following terms:

"A proceeding may be said to be moot where there is no longer any legal dispute between the parties. The notion of mootness has some similarities to that of absence of locus standi but differs from it in that standing is judged at the start of the proceedings whereas mootness is judged after the commencement of proceedings. Parties may have a real dispute at the time proceedings commence, but time and events may render the issues in proceedings, or some of them, moot. If that occurs, the eventual decision would be of no practical significance to the parties."

Nevertheless, the Court is fully satisfied that in making its appeal of the Adjudication Officer’s Decision the Respondent has raised serious issues in relation to the latter’s interpretation of the law. Therefore, the Court will address the legal points arising.

In essence, the Respondent contended that the Adjudication Officer erred in her interpretation of an entitlement to a contract of indefinite duration under Section 9 of the Act. Counsel for the Respondent, submitted that Section 9 (2) of the Act does not apply where there has only been one fixed-term contract, i.e. where there has been no renewal of a fixed-term contract (including a specified purpose contract) and in such situations there can be no entitlement to a contract of indefinite duration.

The Law Applicable

It is not in dispute that the Complainant being on a specified purpose contract is a “fixed-term employee” for the purposes of the Act. The definition of the term “fixed-term employee” is contained at Section 2 of the Act, which provides:-

"fixed-term employee" means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—

The Complainant relies on Section 9(1), 9(2) and 9(3) of the Act to ground her claim.

Section 9(1) and (2) provides: -

(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 four years.

Section 9(3) provides :-

- (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.

Application of Section 9 of the Act

Section 9 of the Act is intended to give effect to Clause 5 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 99/70/EC. That provision in the Framework Agreement requires Member States to introduce measures to prevent the abuse of successive fixed-term contracts. It provides: -

- To prevent abuse arising from the use of successive fixed-term employment contracts or relationships, Member States, after consultation with social partners in accordance with national law, collective agreements or practice, and/or the social partners, shall, where there are no equivalent legal measures to prevent abuse, introduce in a manner which takes account of the needs of specific sectors and/or categories of workers, one or more of the following measures:

- (a) objective reasons justifying the renewal of such contracts or relationships;
  
  (b) the maximum total duration of successive fixed-term employment contracts or relationships;
  
  (c) the number of renewals of such contracts or relationships.

The language of Section 9 must also be examined carefully. It seems clear from the wording of Section 9 as a whole that it is directed as regulating the circumstances in which fixed-term contracts can berenewed. This appears to comport fully with the requirements of Clause 5 of the Framework Agreement, just quoted, which is also focused on the successiverenewalof fixed-term contracts.

Where a fixed-term contract isnot renewedthere can be no contravention of Section 9(1), (2) or (3) of the Act. The Court is entirely satisfied that this is a correct interpretation of the Act. On this crucial point the Court respectfully disagrees with the contrary conclusion reached by the Adjudication Officer.

Determination

For the reasons set out above the Court is satisfied that the Complainant’s claim is wholly unsustainable. Consequently, she cannot rely on Section 9(3) of the Act for the purpose of asserting an entitlement to a contract of indefinite duration.

In consequence the Court must hold that the Respondent did not contravene Section 9 of the Act and that the Complainant’s complaint is not well-founded.

Accordingly, the Court must determine that the Adjudication Officer’s Decision be set aside and substituted with a finding that the complaint herein is not well-founded.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson
CR______________________
18 July, 2018.Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.