FTD185

• 
  “I require that the CID issued be consistent with the pattern of hours worked for the respondent in the 12 months preceding the date upon which he became entitled to the said contract i.e. 13th December 2015."

While the Complainant had worked for the Respondent on fixed-term contracts since 2004, Ms McCallum relied upon the premise that since 12th December 2011 the Complainant had been employed on five continuous fixed-term contracts. The dates of those contracts are as follows:-

• �12th December 2011 to 19th March 2012;
  �3rd March 2014 to 1st September 2014;
  �1st September 2014 to 10th October 2014;
  �24th November 2014 to 29th May 2015;
  �27th July 2015 to 29th January 2016;

• "Workers who have accrued an aggregate of48months casual/seasonal employment, where any two periods were not broken by a period in excess of 26weeks, should be entitled to placement on the panel for an indefinite duration up to normal retirement age.”

• "The First Schedule to the Minimum Notice and Terms of Employment Acts1973to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous."

• "The fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence successive periods of employment, which are not continuous in the literal sense, because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the words "continuous" as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning. As sodefined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive."
  
  “………... Hence, the net question arising is whether the breaks in service are to be regard as lay-off or as dismissal followed by re-employment under a new contract. This is essentially a question of fact and degree. It turns on whether, at the time each assignment came to an end, it was reasonable in the circumstances then prevailing to believe that the cessation would probably not be permanent. Obviously, the standard of reasonableness does not require the parties to know with any degree of certainty that the employment will resume; it merely requires that they have reason to believe that it will probably resume."

• "It is clear that while such service is not computable, an absence on lay-off in excess of 26 weeks does not break continuity of service. This was made clear by O'Sullivan J in An Post vMcNeill [1998] ELR 19."

• " In my view, the Labour Court did not fall into error in expressing the view that any conflict of meaning between the words "continuous" and "successive" could be resolved by "ascribing a liberal and expansive meaning to the term "layoff"" and it followed the decisions referred to in its judgment in Department of Foreign Affairs v. AGroup of Workers [2007] 18 E.L.R. 332and William Beary v. Revenue Commissioners [2011]22E.L.R. 137,that a "liberal and expansive meaning" had to be given to the term layoff in order to interpret that concept in the context of the Framework Agreement and the Act of 2003.In An Post v. McNeill [1998]9E.L.R. 19,the High Court gave a wide interpretation to the concept of layoff and accepted that there was no temporal limitation on the concept. The Labour Court made no error of law in following these decided cases."

Mr Keith Irvine, Local Government Management Agency, on behalf of the Respondent, disputed the Adjudication Officer’s findings that the Complainant was entitled to a contract of indefinite duration and submitted that the award of €5,000 compensation was erroneous as there was no loss incurred nor compensation for loss sought by the Complainant.



Mr Irvine said that while the Complainant had been appointed to a permanent position since 11th September 2017, the Respondent wished to proceed with its appeal of the Adjudication Officer’s Decision due to significant legal points at issue which could adversely impact on its employment of seasonal workers and potential unfounded claims for entitlements under the Act.

Referring to the Complainant’s work record with the Respondent, Mr Irvine said that he was employed as a seasonal employee on a limited emergency relief basis during the period December 2011 and March 2012 (working a total of 3 days). The Complainant was not employed by the Council in any capacity for the two-year period from March 2012 to February 2014. The Complainant's most recent employment commenced on 3rd of March 2014. The Complainant had in fact worked for the Council on varying fixed-term contracts from 2004 up to 2016 with varying contract lengths each year depending on the Council's requirements to augment its workforce having regard to workloads and funding.

Mr Irvine submitted that the Complainant did not meet the criteria as set out under Section 9 of the Act to be entitled by law to a contract of indefinite duration. This, he submitted, was based on the fact that as he had a break in service in 2013, his employment for reckonable purposes under the Act only commenced on 3rd March 2014.

It was the Respondent’s position that it was not reasonably foreseeable that the Complainant's cessation would not be permanent. In fact, the Complainant's break in service from 2008 to 2011 would be significant enough to lead the Respondent to believe that the cessation would be permanent. Similarly, the period from 2012 to 2014 when the Complainant was not employed by the Respondent, was significant enough for the Council to believe the same.

Mr Irvine submitted that a gap of two or three years is of such significance that it would not be unreasonable to assume that the Complainant would have sought employment elsewhere. At no point in that period did the Complainant contact the Respondent to advise that he was available for work or was seeking employment. With this in mind and following on from the Court's considerations inBeary, the Respondent asserted that this establishes that the breaks in service were dismissal and not "lay-off" which would put the relevant date for the start of reckonable employment at 3rd March 2014 thereby implying that Sections 9(1) and 9(2) of the Act were not breached and Section 9(3) of the Act did not apply.

Mr Irvine also made reference to Labour Court Recommendation LCR19685 where the Court recommended"Workers who have accrued an aggregate of 48months casual/ seasonal employment, where any two periods were not broken by a period in excess of26weeks, should be entitledtoplacement on the panel for an indefinite duration uptonormal retirement age".He said that the Complainant did not meet this 'test' as his employment was broken by more than 26 weeks. In any event there were more than twenty-six weeks’ break in his service prior to 3rd March 2014 also.



Mr Irvine submitted that the Complainant's grievance that a contract of indefinite duration should be provided on the basis of whole-time working is a flawed proposition. Seasonal working, by its very nature, is work for which additional resources are employed to fulfil a genuine working need of the organisation thereby providing objective justification for seasonal working as opposed to full-time working and, indeed, the offering of a contract of indefinite duration as a whole-time employee. Management, in the context of ensuring proper governance, determines what working arrangements and duration of works apply in any given year. This was upheld by the High Court inMinister for Finance v McArdle[2007] E.L.R.165 where Laffoy J considered the effect ofs.9(3): -

• "That Section appliestoa situation where an employee is given a renewed fixed-term contract in contravention of subs.(1)or(2).In such a case subsection(3)would operate so as torender void, ab initio, the term of the contract which purportstoprovide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed-term,toone of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms astopensionability and termination, which as already observed, would have hadtobe aligned with those of a comparable permanent employee in accordance with Section 6."

Ms McCallum contended that as the Complainant is now employed as a permanent full-time General Operative, the parameters of any contract which should be awarded, if the Court agrees with the decision of the Adjudication Officer, are therefore moot.

Nevertheless, in making its appeal of the Adjudication Officer’s Decision the Respondent has raised issues in relation to the latter’s decision to award the Complainant a contract of indefinite duration where he had breaks in employment exceeding twenty-six weeks, in awarding a contract of indefinite duration superior to the fixed-term contracts which preceded it and in awarding compensation where no losses were incurred.

The Law Applicable

Section 9 provides as follows:

• (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.(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.

Continuity of the Complainant’s Employment

As was pointed out inRevenue Commissioners v Bearywhile Section 9 of the Act is directed at preventing the unlimited use ofcontinuousfixed-term contracts the objective of the Directive is to combat the abuse ofsuccessivefixed-term contracts and the Court must apply the well settled principle of European law that national law must be interpreted as far as possible in the light of the wording and purpose of a Directive so as to achieve the result envisaged by the Directive. InBearythe Court also held that Section 9 is unduly limited in its ambit in that it excludes from the protection of the Act successive periods of employment which are not physically continuous and held that the result plainly pursued by the Directive is to prevent the abuse of “successive” fixed-term contracts. It pointed out that Clause 5.2(a) of the Framework Agreement left it open to the Oireachtas to provide an outer temporal limit beyond which renewed contracts would not be regarded as successive, however, as the legislature chose not to do so, it was not now open to the Court by way of interpretation to import such a provision into the statute.

Having examined the First Schedule to the 1973 Act the Court held that the fundamental effect of the provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence, successive periods of employment which are not continuous in the literal sense because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the word “continuous” as used in the Act has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can in certain circumstances have a meaning more akin to the ordinary meaning of the word successive.

Therefore, in the instant case, this Court must consider if the Complainant was employed on a series of separate contracts, some of which did not contain a break in service, or whether the periods between contracts can be regarded as lay-offs thus preserving the continuity of the employment within the statutory meaning accorded to that term.

For present purposes the term "lay-off" is defined by Section 11 of the Redundancy Payments Act 1967 as follows: -

• 11.— (1) Where after the commencement of this Act an employee's employment ceases by reason of his employer's being unable to provide the work for which the employee was employed to do, and—
  • (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and
    • (b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off.

• • “The existence of a reasonable belief to that effect is an essential element of a lay-off (Irish Leather Limited v Minister for Labour and James Foley [1986] IR 177). It seems to the Court that where such a reasonable belief existed, but the employees were not given notice to that effect, the employer could not subsequently claim an advantage from its default so as to defeat a claim by an employee to an entitlement of the type contended for in this case. In that regard it would appear that the requirement to give notice would have to be regarded as directory in nature rather than mandatory. Moreover, the law has always recognised that notice for some legal purposes can be constructive or imputed.”

In the instant case, having examined the fixed-term contracts which commenced in 2004, the Court is satisfied that on each occasion there was a reasonable expectation of re-employment following termination of the earlier fixed-term contract and/or that the cessation in employment would not be permanent as can be seen from the sequence of the contracts. In this case, the Complainant was drawn from a panel for seasonal or casual work and he was placed back on the panel after each assignment. The Court is satisfied that when the Complainant’s employment was terminated because there was no longer work available for him, it was envisaged at the time of the termination that he would be required again in the future and he was placed on a panel for further temporary work and therefore in such circumstances and in line withBeary, the Court is satisfied that the Complainant’s employment can be regarded as "continuous" within the meaning of the First Schedule of the Minimum Notice and Terms of Employment Act 1973 and for the purpose of Section 9 of the Act. Consequently, even though there were gaps in the Complainant’s employment, including two lengthy gaps due to the moratorium, the Court is satisfied that his employment was continuous.

Contract of Indefinite Duration

The decision of Hogan J inHolland v Athlone Institute of Technology[2012] 23 E.L.R 1 makes it clear that even if the Complainant had obtained a contract of indefinite duration by operation of law he could not be placed in a superior position to that of a worker whose status as a permanent employee was never in doubt.

A contract of indefinite duration which comes into being by operation of Section 9(3) of the Act is of course terminable just like all contracts of employment on contractual or reasonable notice and subject to any generally applicable statutory restrictions. On the findings inMcArdle, where a fixed-term contract is transmuted into one of indefinite duration by operation of Section 9(3) of the Act the resulting contract is identical to that from which it is derived save that the term providing for its expiry by effluxion of time (or the occurrence of an event) is severed. The import of Ms Justice Laffoy’s ruling in the appeal of that case, to the effect that Section 6 of the Act does not extend to tenure, is that a fixed-term contract of employment is terminable in accordance with its own terms or on the giving of reasonable notice.


Conclusion of the Court

Based on the above findings, the Court is satisfied that by 22nd August 2008 the Complainant had completed four years of continuous fixed-term employment. On 30th August 2008 he was issued with a contract which purported to extend his fixed-term employment up to 1st October 2008. The term of that contract which provided for its expiry by effluxion of time contravened Section 9(2) of the Act. Therefore, by operation of Section 9(3) of the Act, the contract which issued to him on 31st March 2008 and which was due to expire on 29th August 2008 became a contract of indefinite duration on its commencement on 31st March 2008 in the absence of objective grounds justifying its renewal. By operation of Section 9(3) of the Act that contract was transmuted into one of indefinite duration by operation of law. That is the clear import of the decision of Laffoy J. inMcArdlewherein it was held that where a term in a fixed-term contract contravenes Section 9 of the Act the offending term is voidab initiobut that all of the other terms of the contract continue and the contract operates as one of indefinite duration. In such circumstances, Laffoy J. pointed out that the contract continues with its original terms in tact except for the term providing for its termination by effluxion of time or the occurrence of an event. Hence in the instant case, it is clear that the contract which commenced on 31st March 2008 became one of indefinite duration from that date.

However, as the Complainant has, since referring his claim under the Act, been issued with a permanent contract with the Respondent as a General Operative on a wholetime basis, the claim for a contract of indefinite duration does not arise. The Court merely expresses its conclusion that the Complainant was employed by the Respondent on a contract of indefinite duration from 31st March 2008 onwards. In that regard, the Complainant’s complaint under the Act is well-founded which would have had the impact of allowing him to maintain a permanent placing on the panel until retirement while simultaneously allowing the Respondent to continue to issue temporary contracts based on its varying needs and requirements over time.

In all the circumstances of this case the Court sees no reason to interfere with the compensation awarded by the Adjudication Officer.

Determination.

The Decision of the Adjudication Officer is varied accordingly and the award of €5,000 in compensation is affirmed.

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.