Complainant

Respondent

Anonymised Parties

A Foreign Language Teacher

An Institute of Education and a Notice Party

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-00023632-001

29/11/2018

This case involves the circumstances surrounding the complainant, a foreign language teacher in her pursuance of a contract of indefinite duration. She was represented by TUI.

The Respondent has faced several difficulties in seeking to address this complaint. The Respondent submits that it plays host to the complainant but is obligated to follow the ultimate direction from a Government Department who serves as funder for the complainant and similar posts.

The Hearing was attended by a representative from the Language Initiative who explained that they appeared as a Notice Party.

The Complainant commenced work with the Respondent (Company A) in September 2010. The Complainant has worked continuously on a Post Primary Language Initiative commissioned by a Government Department which appears to be administered through a Company B, a representative of whom was present at hearing. The Government Department was on notice of the complaint through the Respondent but was not in attendance and had not issued any instructions on how to proceed. The Complainant had never met anyone from the Government Department during her work.

The Complainants contract was renewed annually on a fixed term basis. The first contract exhibited described the complainant as a Language Development Officer, 6 hours 11 minutes per week, linked to a named Project and had the following clause inserted at 2.1:

This contract is specifically entered on the basis that the Post Primary Languages Initiative continues to receive X funding. It is accepted by both parties to this contract that given the current uncertainty over Departmental funding, that there is no guarantee that this contract will remain operative over its entire term.

Incremental increases in allocated hours followed for the complaint to the latest contract dated September 2018 which records a commitment for 16 hrs and 20 mins. Clause 2.1 was perennially renewed in September. The Complainant registered with the Teaching Council (post Primary) in September 2013

The Complainant receives Teacher conditions outside of superannuation. She prepares students for state exams along with her colleague Post Primary Teachers.

The Complainants Representative outlined a brief background to the Post Primary initiative which commenced in September 2000

“The initial languages targeted by the initiative were Spanish, Italian and Japanese and Russian was added a few years later. We see our role as widening to encourage, promote and support the learning of all languages at post primary level, and to develop policy and structures for the introduction of other new languages based on research of best practice and on the experience of the initiative in relation to the existing languages “

The Union contended that the complainant was entitled to a contract of Indefinite Duration in accordance with Section 9.3 of the Act and addressed the National Co Ordinator of Company B in October 2018 to that end. No response was received.

The Union further contended by reliance on Section 7 of the Act, that the Respondent was precluded from denying this CID on matters related to funding.

In quoting from Labour Court Decision FTD 138 Mc Namara v Teagasc, the Union demonstrated how the Court had addressed this argument in the past ……” If it were to be held that the use of successive fixed term contracts could be used indefinitely in such employments so as to protect the employer against the possibility of an insufficient supply of work at some point in the future ,the effectiveness of the Directive and the Cat would be seriously subverted .If , due to economic circumstances or fall off in demand ,there is no longer sufficient work in order to maintain a worker in employment , the employers remedy lies in making surplus staff redundant. It follows that while the requirement to balance staff levels with available funding is a legitimate objective the continuing use of fixed term contracts is not always a proportionate and necessary means of achieving that objective”

The Court found that the test for objective justification had not been met.

The Union went on to draw from ECJ Jurisprudence in C-212/04 Adeneler and Ors V Ellinikos Organismos Galaktos IRLR 716

“The concept of objective reasons within the meaning of clause 5(1) (a) of the Framework Agreement, 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 “

The Union argued that the Respondent had not demonstrated such circumstances necessary for the indefinite continuity of fixed term contracts in the complainant’s case. They contended that the Government Department had funded this project continuously from 2000 and the Union had not been notified of any impending threat to this on the horizon.

The Complainant should be awarded a contract of indefinite duration.

The Respondent presented in a somewhat hesitant fashion but accepted that the Post Primary Languages Initiative is a Government funded imitative in being since 2000. The Initiative is currently hosted by the Respondent by way of a capitation grant (administration and financial services) and rents offices on the Respondent campus.

The Initiative is completely dependent on the Government funding and should funding be withdrawn, it would cease to exist. The Respondent recognised that the Respondent provides an administration and payroll service for the initiative on behalf of the Government Body.

The Respondent submitted that it was not involved in recruitment or selection of staff, employment contracts, salary scales, disciplinary matters or setting strategic goals. The Respondent contended that they were not the employer in the case and would prefer if the Government Body would address the claim.

The Initiative is due to vacate the Respondent campus on 30 June 2019. The Service Level Agreement is expected to be terminated and any services between the Respondent and the Language Initiative are expected to cease.

The Respondent expressed a concern that a recent Adjudicator Decision had confirmed that the Respondent was correctly identified as an employer in a case taken by a different Union. The Respondent submitted this decision was currently under consideration by the Respondent.

The Respondent confirmed that they had submitted the details of the present case to the Government Body but had not received any instructions on how to proceed. The Respondent accepted that the complainant’s contract of employment pay slip issued from the Respondent and no immediate threat to her continued tenure had ever arisen.

The Initiative Spokes person confirmed that the Service had been expected to devolve to schools or be administered differently. She explained that there were approximately 30-33 Teachers in the same position as the complainant. She was aware of a practice where a two-year service prompted regularisation to permanency in the general teaching arena, but she had no authority to advance on this.

Both the Respondent and the Notice Party were keen to record a presence at hearing, but neither party felt empowered to resolve the situation outside of an input from the Government Department.

I have listened carefully to both parties’ oral presentations in this case. I have also considered both written statements. Most important, however are the contracts of employment presented at hearing.

Section 1.1     Confirms that the Respondent acts as the employer. Both parties are named in the Contracts agreed. All contracts record joint signatures of Respondent and the Complainant in this case.   The Director of the Respondent is named as the point of contact in case of issues arising. It is of note that the Notice Party is also named as having an administrative function. There can be no doubt that the Respondent is the Employer in statutory terms.

I think that it is important to reflect on the definition of a fixed term employee contained in section 2 of the Act

A Person having a contract of employment entered into directly with an employer where the end of that contract is determined by an objective condition, such as arrival at a specific date, completion of a specific task or the occurrence of a specific event.

The Labour Court has stated in Irish Museum of Modern Art V Stanley FTD 146 (2014)

The defining characteristic of fixed term contract or fixed term employment is that it is determined by an objective condition which is identifiable without reference to the view or perception or intervention of either party to the contract.

I have identified that the Respondent holds the statutory responsibility and accountability for employment matters in the case.

I have listened carefully to the perceived opaqueness in the employment relationship as put forward by the Respondent. I appreciate that the Respondent interfaces with the Government Department as a Statutory Funder through Service Level Agreement. I also understand that the Initiative, presenting in this case as a Notice party has a large role in day to day management of the complainant’s role.

I have found some overtures of the previous Court of Appeal Ruling in Minister for Education and Skills and Anne Boyle [2017] IECA 39, where the employment relationship of a Pre School Teacher, the Minister and a School was referred to as a Tri partite relationship. I appreciate that this has the potential to cloud issues on who is really charged with managing and evaluating an employment relationship in a competitive tendering and funding agreement.

It is therefore vital to focus on the foundation documents which established the working relationship in the first instance, the contracts of employment. Otherwise, there is the potential for legal exposure for both the State and the Respondent, both parties arguably emanations of the state.

In my review of the facts of this case, I was struck by a lack of a framework on employment contracts in the Respondent business. It was clear to me that several parallel agreements existed on securing contracts of indefinite duration through local Industrial Relations Agreements. I found it inequitable that the complainant was not addressed by these agreements.

It is of note that the Protection of Employees (Fixed Term) Act 2003

was enacted to provide for the implementation of Directive No 1999/70/EC of June 1999, of the Council of the European Communities concerning the Framework Agreement on Fixed Term Work…….

In the instant case, the parties should consider entering discussions to pursue and agree a localised Framework agreement to take account of all fixed term workers irrespective of the Funder.

The Complainant is seeking a Contract of Indefinite duration. Her arguments arise from continuity of tenure, expansion of service and hours. She has also stressed her commitment to the growing success of the Foreign Language initiative and no immediate threat of cessation. She is troubled that nobody appears to be available to hear her on these points and she has no desire to languish as indefinite temporary worker.

The Respondent understands the points of principle made but is reluctant to take any course of action outside Government Body approval.

For my part, I have considered the facts of this case carefully. I have established that the complainant is directly employed by the Respondent and not the Notice Party. I then went on to consider the parameters of Section 9 of the Act. Successive fixed-term contracts.

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 isemployed 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.

I am mindful that while the Foreign Language Initiative was a fledgling Programme in 2000, both parties at hearing have confirmed that it has been a success with strategic plans for future growth.

I am mindful that an Employer may not renew Fixed Term Contracts indefinitely unless they can prove that objective grounds underpin these renewals. Section 9 (3) prohibits this practice and Section 9(4) has the power to save it.

The Complainants most immediate contract is one of 1-year duration to 31 August 2019. While I have listened carefully to the Respondent submissions which followed those of the complainants, I have not been able to identify any objective grounds to save the contract from the unambiguous terms of Section 9(3) of the Act.

I have also considered the Chapter 13 on Fixed Term Workers written By Des Ryan in Employment Law, where he pointed to the Labour Court Determination in National Gallery Of Ireland V Cleary FTD 1236,

“The purpose of the Act is to prevent the use of successive fixed term contract of employment. It is not to guarantee employment for life. Fixed Term contracts of employment may be necessary and appropriate where a project has an expected life and runs over. However, where permission is sought to undertake a project and no time scale for approval can be realistically anticipated successive fixed term contracts of employment are unlikely to be an appropriate means of achieving the objective of employing staff pending the commencement of works associated with the project where there is a fixed term and permanent demand for that work should approval for the project not be forthcoming . That is what applied in this case.”

I have also had regard for C-307/05 in Del Cerro Alonso V Osakidetza Servivicio Vasco de Salud [2007]IRLR 911 ,

The justification relied upon must be based on objective transparent criteria which in fact respond to a genuine need,are appropriate for achieving, the objective pursued and are necessary for that purpose.

I accept the application of the facts in Adeneler and Mc Namara to this case also

I have established that the Respondent is the employer in this case. I have also established that the complainant is managed by the Notice Party in the case. The clear line of funding comes from the Government Department. The Complainants employment has been continuous since 2010. She has registered with the Teaching Council and crucially her working time has increased year on year as the Programme bedded down and became more attractive to students. I am concerned that this advancement has not been captured by evaluation.

The Complainant has fallen into an Administrative and Legislative lag, where the Financial Service Level Agreement did not appear to incorporate an opportunity for such an evaluation. The EU Framework Agreement never intended this to happen. I cannot accept that a proposed relocation of offices has any merit in this case , given that the complainant is not based in these said offices .

I have found that Section 2.2 of the Complainants contract 1 September 2018 to 31 August 2019 is in contravention of Section 9(1) of the Act and has no effect. The Contract must be now deemed to be a contract of Indefinite Duration from 1 September 2018. The Respondent has not demon stared any objective grounds to save this.

The claim is well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 14 of the Protection of Employees (Fixed Terms) Act, 2003 requires me to make a decision in this case in accordance with the terms of the Act.

I have found the complaint to be well founded.

I have applied the terms of Section 9(3) of the Act to the facts of the case and I have determined that the complainant must be issued with a contract of indefinite duration from September1, 2018.

In addition, I have decided that the complainant should receive compensation in respect of the contravention of Section 9 of the Act. I order the Respondent to pay the complainant €5,000 in compensation as being just and equitable in all the circumstances.

Contract of Indefinite Duration