FTD192

FULL RECOMMENDATION

FTC/18/4

DETERMINATIONNO.FTD192

ADJ-00010004-CA-00013065-001/002/003

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

PARTIES :

KERRY COUNTY COUNCIL
(REPRESENTED BY LGMA)

- AND -

CORA CARRIGG
(REPRESENTED BY F�RSA TRADE UNION)

DIVISION :

Chairman: Mr Foley
Employer Member: Ms Connolly
Worker Member: Ms Treacy

SUBJECT:
1. Appeal of Adjudication Officer's Decision ADJ-00010004

BACKGROUND:

2. The Employer appealedAdjudication Officer's Decision ADJ-00010004to the Labour Court in accordance with Section 15(1) of the Protection of Employees (Fixed-Term Work) Act, 2003. A Labour Court hearing took place on 12th September, 2018. The following is the Determination of the Court:

DETERMINATION:

This is an appeal by Kerry County Council against the decision of an Adjudication Officer in a claim made by Ms Cora Carrigg under the Protection of Employees (Fixed Term Work) Act 2003 (the Act).

The Complainant’s claim is that she became entitled by operation of law in accordance with the provisions of Section 9(3) of the Act to a contract of indefinite duration from 13^thJuly 2010. She claims that this entitlement arose from having completed more than four years continuous fixed-term employment and in the absence of objective grounds justifying the failure to offer her a contract of indefinite duration. She also claims that the failure of the Respondent to afford her incremental credit throughout her employment constituted less favourable treatment of her by comparison with a comparable permanent employee.

The claim was referred to the Workplace Relations Commission on 10^thAugust 2017. The Adjudication Officer found that the complaint was well founded and awarded compensation to the Claimant in the amount of €48,153.86.

Ms Carrigg is referred to in this determination as the Claimant and Kerry County Council is referred to as the Respondent.

The facts of the case are not in dispute and can be briefly stated. The Complainant was employed on fixed-term contracts from 21^stSeptember 2006 as a Sports Co-ordinator. The Claimant contends that she was employed by the Respondent from that date while the Respondent contends that she was employed by another entity for at least a period of her employment. She was employed initially on a salary which was set at point 3 of the Local Authority Grade VII Administrative scale. Following a review in 2007 the Claimant’s salary was increased to point 6 on the same scale.

Her contracts were as follows:

1^stContract
21^stSeptember 2006 – 1^stApril 2008

2^ndContract
1^stApril 2008 – 31^stMarch 2010

3^rdContract

29th March 2010. This contract specified that ‘any further facilitation of your employment’ by the Respondent will be subject to the outcome of discussions between the Respondentand two other entities.
- 4^thContract
  1^stJuly 2010 for two weeks
  
  5^thContract
  13^thJuly 2010. This contract specified that it would continue indefinitely for as long as a named entity exists and is supported and funded as appropriate.

Summary of the Claimant’s Position

The Claimant contends that she did not receive increments while employed by the Respondent as a fixed term worker within the meaning of the Act. She contended that permanent administrative staff of the Respondent at administrative officer level did receive increments annually and were comparable permanent employees within the meaning of the Act at section 5. She contended that she had suffered financially as a result of the denial of annual increments to her and that the Respondent had breached the Act at Section 6 throughout her employment in that it had treated her in a less favourable manner than a comparable permanent employee.

She submitted that a named sports partnership co-ordinator employed by another local authority did receive annual increments following his appointment on a contract of indefinite duration in 2012. She submitted that the named sports partnership co-ordinator was a comparable permanent employee within the meaning of the Act at section 5 and that the local authority employing that person was an associated employer of the Respondent within the meaning of the Act at Section 5.

The Claimant submitted that the Respondent did not set out in the fixed term contract issued in July 2010, any objective grounds for the renewal of the fixed term contract and the failure to provide a contract of indefinite duration.

Summary of the Respondent’s Position

The Respondent submitted that it accepted that the Claimant was entitled to a contract of indefinite duration with effect from the date upon which she had completed four years as a fixed term employee which was, the Respondent submitted, on 22^ndSeptember 2010.

The Respondent submitted that the Claimant was paid at a salary related to Administrative Officer Grade VII salary and that employees of the Respondent at that grade were the appropriate comparator for the purposes of the act. The Respondent submitted that all such employees are recruited at the relevant point of the Grade VII scale by reference to Circular EL5/67and progress thereafter through the scale on the basis of annual increments in accordance with relevant circulars.

The Respondent submitted that, by operation of the Act at Section 5, it is only if, and which is not the case here, no comparable employees exist within the employment can the Claimant be permitted to maintain her claim based on a comparator outside the employment. The Respondent submitted that no other Local Authority could be regarded as an associated employer within the meaning of the Act in that no Local Authority is, having regard to the act at Section 2(2)(b), under direct or indirect control of any third party. The Respondent drew the Court’s attention to Brides v Minister for Agriculture, Food and Forestry [1998] 4IR250 in support of its contention. The Respondent submitted that Local Authorities are autonomous, established by statute and controlled by their elected members.

The Respondent accepted that the person employed by another local authority and advanced as a comparable permanent employee by the Claimant performs the same work as the Claimant. The Respondent however submitted that 27 other sports partnership co-ordinators equally perform the same role as the Claimant and consequently any comparison would have to take account of the terms of the entire group of such persons nationally whose terms and conditions of employment are not homogenous.

The Respondent submitted that the Claimant secured incremental advancement through her scale upon her appointment and again nine months later when three increments were applied to her. She had, as a result, advanced in a manner not made available to any permanent administrative officer of the Respondent at Grade VII. The Respondent submitted that the Claimant had received greater remuneration during her employment than she would have received had she been appointed as a permanent employee at the outset. She had received superior remuneration to that of any comparable permanent employee albeit she was not in receipt of annual increments and progressed on the incremental scale at an accelerated rate upon and shortly after her recruitment.

The Respondent submitted that, by reference to the Act at section 6(2) and 7(2), the Claimant had, when the terms of her fixed term contracts are taken as a whole, received terms which were at least as favourable as the terms of a comparable permanent employee’s contract of employment.

The Law

The Appellant contends that the Respondent breached the Act at sections 6 and 9.

The Act at section 6 in relevant part provides as follows

- - - 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.

- - - (2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

Section 7(2) of the Act, which relates to Section 6(2), provides as follows

- - - 7(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 of section 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.

Section 5 of the Act, which sets out the provision as regards comparable permanent employees, provides as follows

- - - 5.(1) For the purposes of this Part, an employee is a comparable permanent employee in relation to a fixed-term employee if—

- - - - (a) the permanent employee and the relevant fixed-term employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

- - - - (b) in case paragraph (a) does not apply (including a case where the relevant fixed-term employee is the sole employee of the employer), the permanent employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant fixed-term employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable permanent employee in relation to the relevant fixed-term employee, or

- - - - (c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant fixed-term employee and one of the conditions referred to in subsection (2) is satisfied in respect of those employees,

- - - and references in this Part to a comparable permanent employee in relation to a fixed-term employee shall be read accordingly.

- (2) The following are the conditions mentioned in subsection (1)—

- - - - (a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

- - - - ( b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

- - - - (c) the work performed by the relevant fixed-term employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.

The act at section 9 provides as follows

- - - 9.(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.

Discussion and conclusions

The parties have made submissions as regards the identity of the appropriate comparator for the purposes of the within complaint.

The High Court in UCC v Bushin [2011] IEHC 76affirmed that the Labour Court was correct in its interpretation of what constitutes an appropriate comparator for the purpose of the Fixed Term Work Act. In FTD 1121 University College Cork and Dr. Naomi Bushin the Labour Court sets out the test as follows:

- “Section 5 of the Act provides that in choosing a comparator the complainant must under s 5(1)(a) first examine their own employer and any associated employer for any valid comparator. If unsuccessful, then the complainant must proceed under section 5(1)(b) to examine any employees employed under a collective agreement, which agreement also affects them. If not successful under either of the above, then under s. 5(1)(c) the complainant may seek a comparator in the same industry or sector of employment with a proviso that the selected comparator must be engaged in the same or similar work of equal or greater value.”

The Court is satisfied that Section 5(1)(a) is applicable and condition 5(2)(c) has been met. The Claimant has correctly identified at least one internal comparator in that she has identified employees of the Respondent at Grade VII. In the light of that finding it is not necessary to consider the alternative comparator put forward by the Claimant.

It is clear from the submissions of the parties that the question of the Complainant’s entitlement to a contract of indefinite duration was no longer in issue. The Respondent accepted that the Complainant was entitled to a contract of indefinite duration with effect from 22^ndSeptember 2010. The Court finds that the Claimant’s contract of July 2010, which purported to be a fixed term contract of employment was, by operation of the law at Section 9(3), transmuted to a contract of indefinite duration on 20^thSeptember 2010.

The judgment delivered by Laffoy J. in Minister for Finance v Una McArdle2007 E.L.R 165 considered the form and content of a contract of indefinite duration that comes into being by operation of Section 9(3) of the Act is. Here, in considering a question similar to that which arises in the instant case, the Judge accepted as containing a correct statement of the law, the following passage from this Court’s Determination in the case that was then under appeal: -

- - - The expression ‘contract of indefinite duration’ should be understood in contradistinction to a contract of definite duration or a fixed-term contract. The terms and conditions of a contract of indefinite duration which comes into being by operation of s.9(3) must therefore be the same as those in the fixed-term contract from which it is derived, as modified by s. 6, in all respects other than its fixed duration. Obviously, these terms will vary from one employment to another and every case will be decided mainly on its own facts.

The central finding in that case is that where a fixed-term contract transmutes to one of indefinite duration by operation of law the resulting contract is in the same terms as that from which it is derived save in respect of tenure.

The decision in McArdle was later applied by this Court in the case of William Beary v Revenue Commissioners [2011] 22 E.L.R 137. Here the Court stated: -

- - - The decision of the High Court inMinister for Finance v McArdle [2007] E.L.R. 165is authority for the proposition that where a fixed-term contract transmutes to one of indefinite duration by operation of law the resulting contract is identical to that from which it is derived in every respect other than in regard to its tenure. Consequently, a fixed-term worker cannot accrue a better contract than that which he or she held on a fixed-term other than in respect to the circumstances in which the contract will come to an end.

The High Court, in Holland v Athlone Institute of Technology [2012] 23 E.L.R. 1., pointed out that a finding that an employee acquired a contract of indefinite duration by operation of law does not place such an employee in a superior position to that of an ordinary employee whose status as the holder of a contract of indefinite duration was never in doubt.

The Claimant submits that she should have received annual increments throughout her employment and that the Respondent’s failure to apply annual increments to her constituted discrimination against her in contravention of the Act.

The Court notes that the Claimant was employed in 2006 and advanced through the incremental scale for grade VII employees at an accelerated rate as a result of engagement with the Respondent in 2007.

The Respondent submits that had she had been recruited as a permanent employee under relevant circulars in 2006 she would, upon the date of her claim, have earned less than she did in fact earn across that period as a result of her different treatment. The Respondent submits that any award to the Claimant in respect of alleged discrimination would, in fact, place her in a superior position to any person whose status as a permanent employee of the Respondent was never in dispute.

The Act at Section 7(2) states as follows

- 7 (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.

The Court finds that the Claimant was, throughout her employment, treated differently than a comparable permanent employee but that different treatment has not resulted in less favourable terms and conditions of employment being experienced by the employee when those terms and conditions are considered as a whole.

The within complaint was made on 10^thAugust 2017 and consequently the Court is confined to consideration of any breach of the legislation which could be taken to have occurred in the cognisable period for that complaint. The cognisable period for the within complaint is, in accordance with the Workplace Relations Act, 2015 at Section 41(6), 11th February 2017 to 10th August 2017.

The Court finds that the Claimant would have been positioned differently on the Grade VII scale during the cognisable period for the within complaint had she been treated in the same manner as a comparable permanent employee throughout her employment. The Court therefore finds that the Claimant should, with effect from 11^thFebruary 2017, be placed on the Grade VII scale at the point she would have been positioned on that date had she been recruited as a permanent employee on her recruitment in 2006.

Determination

The Court determines that the Claimant should, with effect from 11^thFebruary 2017, be placed on the same incremental point on the Grade VII pay scale as she would have been positioned on that date had she been recruited as a permanent employee in 2006 and that she should advance through the scale in accordance with relevant circulars thereafter.

The Court also determines that, by operation of the law, the Claimant’s contract of employment transmuted to one of indefinite duration on 20^thSeptember 2010.

The Court cannot find that the Claimant was at any financial or other disadvantage versus a comparable permanent employee of the Council as a result of her different treatment by the Respondent throughout her employment and consequently finds that no award of compensation is just and equitable in all of the circumstances.

The decision of the Adjudication Officer is set aside.

The Court so determines.

Signed on behalf of the Labour Court

Kevin Foley
4th February 2019______________________
SCChairman

NOTE

Enquiries concerning this Determination should be addressed to Sharon Cahill, Court Secretary.