Complainant

Respondent

Anonymised Parties

A Doctor

A Government Agency.

Representatives

Aileen Fleming Daniel Spring & Co. Solicitors

Agency HR Manager

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-00023297-001

16/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00023297-002

16/11/2018

The Complainant is a Consultant Physician and has been employed by the Respondent on a succession of fixed-term contracts since 8th July 2013.

This complaint was received by the Workplace Relations Commission (WRC) 16TH November 2018.

The Complainant seeks the following:

a) A Determination that he is entitled to a Contract of Indefinite Duration

b) Compensation for the Respondent’s failure 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 breach of Section 8(2) of the Protection of Employees (Fixed Term Work) Act 2003.

BACKGROUND

The Complainant is currently employed by the Respondent at Hospital 1 as a Consultant Respiratory Physician.

Since 2014, he has been issued with the following fixed term contracts:

8th July 2013 to 13th July 2014: Specialist Registrar,

14th July 2014 to 12th July 2015: Specialist Registrar,

13th July 2015 to 13th July 2016: Consultant,

14th July 2016 to 13th July 2017: Consultant,

14th July 2017 to 13th January 2018: Consultant,

13th January 2018 to 13th January 2019: Consultant,

14th January 2019 to 13th April 2019: Consultant,

The names of the hospitals have been deleted, I note that contracts issued since 13th July 2015 have been in the same hospital.

Between 2004 and 2013 the Complainant was also employed on fixed term contracts in several other hospitals. Further detail and/or copies of his said contracts of employment were offered to the hearing.

The Complainant asserted a right to a Contract of Indefinite Duration from August 2018, but this was rejected by letter of 4th October 2018.

The Respondent has commenced a recruitment process to replace the Complainant on a permanent basis.   The Complainant has applied for the said role but without prejudice to his right to pursue the within claim to establish his statutory rights.

The Complainant is not aware of the grounds on which the Respondent disputes his claim and makes the following submission in support of his position and anticipation of issues that may arise.

RIGHT TO CONTRACT OF INDEFINITE DURATION

The Complainant claims that he is entitled to a Contract of Indefinite Duration pursuant to Section 9 (2) and 9 (3) of the 2003 Act, which state:

(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.

ASSOCIATED EMPLOYERS

At the outset, it is submitted that the Complainant has at all material times been employed by the Respondent herein.

In the alternative, it is submitted that it, at the very least, that the last two hospitals are “associated employers” within the meaning of Section 9 of the Act and that the Complainant’s employment has therefore been continuous at least since 8th July 2013. Accordingly, it is submitted that the contract issued to him on 13th July 2016, should be deemed as Contract of Indefinite Duration as his aggregate service exceeded the duration of four years prior to the expiry of the said purported fixed term and accordingly that term had no effect. The Complainant reserves the right to rely upon alternative dates that may be applicable subject to the response of the Respondent.

In accordance with Section 2(2) of the Act, Employers are deemed to be associated if –

a) one is a body corporate of which the other (whether directly or indirectly) has control, or

b) both the bodies corporate of which a third person (whether directly or indirectly) has control.

In the alternative, it is submitted that both the bodies corporate of which a third person (whether directly or indirectly) has control (being the State / Minister for Health) and therefore fall within the definition of Section 2 (2) (b) above.

The following matters are relevant to analysis of this matter:

A. Both Hospitals are accountable to the State and the and the Respondent Government Agency for expenditure of funding in relation to staffing.

B. The appointment of staff and their terms and conditions are required to be in accordance with directions of the Respondent Government Agency / Minister for Health.

C. The provisions of maintenance of hospital services are subject to the directions of the Respondent Government Agency / Minister for Health.

D. The Respondent Government Agency / Minister for Health has the power to regulate the provision of services.

E. Both hospitals are part of the same Hospital Group. The “mission statement” and goals of the said group, indicate the clear association between the hospitals in the said group.

F. The two Hospitals are linked in respect of respiratory services, surgeries and multi-disciplinary teams.

G. The role to replace the Complainant will operate between both hospitals.

The Complainant relies upon the case of HSE v Abdel Haq in which the Labour Court held that the Western Health Board and the South Eastern Health Board were associated employers because both were under the control of the Minister for Health. It is submitted that the same applies in this case.

DIFFERENT POSITIONS / TRAINING CONTRACTS

In the event that the Respondent relies upon the fact that the Complainant was employed on contracts as a Specialist Registrar and/or on training contracts, prior to his first Consultant contract in July 2015, it is submitted that this is not relevant to the establishment of a Contract of Indefinite Duration.

In the case of the HSE North Eastern Area –v- Dr Mohammad J Khan the Labour Court held:

The Respondent’s case is largely predicated on the proposition that the Claimant was engaged on a training scheme. The Contract between the Claimant and the Respondent was set out in writing and was signed by the parties. It is plainly a contract whereby the Claimant undertook to provide his skill as a qualified Doctor in the treatment of patients.   While the work he performed under the contract may have enabled him to develop his clinical knowledge and skill as to attain further qualifications this did not, in the Courts view, mean that his contract was other than a normal contract of employment. Under that contract the predominant benefit which the Respondent derived was the professional clinical services of the Claimant in the treatment of patents under the Respondent’s care. It could not, therefore, be described as a Contract for Training as that term is normally understood.

In the aforementioned case of HSE v Abdel Haq, the Complainant relied on fixed term contracts both at Registrar that the non-renewal of the Complainant’s contract in Portiuncula Hospital on 1st July 2003 constituted a dismissal. He had gone through a competitive interview process to compete for a different job in the South Eastern Health Board. It was therefore argued that he did not work “under the same contract” during his employments in Portiuncula Hospital and South Tipperary Acute Hospital Services, nor was the nature of his employments in the two locations in any way similar.   The Labour Court held that

“Taking the statutory provisions into account the Court accepts that there was no break in service. The fact that the Complainant held two different posts in two different locations does not in the Court’s view break that continuity therefore it accepts that the Complainant was continuously employed by the HSE during the period in question”.

OBJECTIVE JUSTIFICATION

In the event that the Respondent seeks to submit that objective justification existed for its failure to offer the Complainant a Contract of Indefinite Duration, it is submitted that no objective justification existed or was ever cited for the failure to offer a Contract of Indefinite Duration to the Complainant.

Further and/or in the alternative inferences may be drawn from the Respondent’s failure to so advise and the Complainant reserves his right to respond to any submission on behalf of the Respondent in this matter.

BREACH OF SECTION 8 (2) OF THE ACT

The Complainant was not offered any objective justification or any reason whatsoever for the renewal of each fixed term contract. It is of note that his contracts are completely blank in this regard. Insofar as any objective justification is stated by letter on 4th October 2018, it is submitted that this is after the fact and does not prevent the Complainant in obtaining a Contract of Indefinite Duration at an earlier date.

Section 8 (2) of the Act states as follows:

(2) Where an employer proposes to renew a fixed term contract, the fixed term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration at the latest by the date of the renewal.

It is submitted that the use of the word shall indicates a mandatory requirement and that the Respondent in failing to offer any objective justification, as required or at all, for the renewal of each fixed term contract, is in breach of the said section.

In the case of Liebherr Container Cranes Ltd –v- Mark Roache, the Labour Court stated:

The application of section 8 of the Act is of central relevance in the instant appeal. That section places an obligation on an employer to specify in writing the objective grounds for the renewal of a contract of employment for a fixed term and for not offering the employee concerned a contract of indefinite duration.   A contravention of that provision may render the employer liable in compensation to the employee.

The Complainant again refers to the case of Health Service Executive North Eastern Area –v- Khan where the Labour Court held:

“…. However, there is no doubt that the Respondent contravened Section 8 (2) of the Act by not furnishing the Complainant with a statement in writing of the objective grounds justifying the renewal of his fixed term contract on 1st January 2006 and the failure to offer him a contract of indefinite duration, at the latest by the date of the renewal.

In the circumstances of this particular case, the Court accepts that the contravention which occurred in this case, was technical and was due to inadvertence on the part of the Respondent. Nevertheless Section 8 (2) is a mandatory provision admitting of no exceptions. This omission can neither be overlooked nor excused by the Court.

The Court has decided that the appropriate award is one of compensation. In deciding the level of the award, the Court also takes cognisance of the fact that Dr Ghulam was himself aware of the circumstances surrounding the Respondent’s decision to renew his contract until 26th March 2006. However, in the case of Von Colson & Kamann v Land Nordrhein-Westfalen [1984] ECR1891 the European Court of Justice stated that the remedies proposed by National Law and implemented by a National Court when enforcing domestic legislation enacting the terms of a Directive should be “effective, proportionate and dissuasive”. Therefore, in all the circumstances of this case, the Court determines that the appropriate redress is compensation in the sum of €25,000. This award is wholly comprised of compensation for the breach of the Act found by the Court in respect to the Complainant and contains no element of loss of earnings. The Respondent is directed to pay the Complainant compensation in that amount”.

It is submitted that in this case, there has been a complete failure and in fact no attempt whatsoever to comply with Section 8 (2) of the Act and the Complainant is therefore entitled to compensation that is “effective, proportionate and dissuasive” pursuant to the decision of Von Colson & Kamann –v- Land Nordrhein-Westfalen referenced in the above mentioned decision of the Labour Court.

The Complainant reserves the right to make such additional submission as may prove necessary at or after the hearing of the matter.

The Complainant has submitted a claim to the Adjudication service seeking a determination that his employer, the Respondent Government Agency has breached section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) in failing to recognise his entitlement to a contract of indefinite duration.

The Respondent Government Agency do not accept any breach of the Act. The Complainant commenced employment as a temporary Consultant Physician on 13th July 2015. He has been on notice that the structure of the Consultant posts at that hospital will be changing in light of the Hospital Group structure. The configuration of his post was the subject of a change request to the Consultants Appointment Advisory Committee (CAAC) in early 2016. That prevented the filling of the post on a permanent basis. The Complainant does not and will not exceed the aggregate 4 years contract duration required under the Act for a contract of indefinite duration. CAAC approved the reconfiguration of the post and the recruitment and appointment process is currently underway with interviews scheduled for early February 2019.   The Complainant is a candidate for the new post and he may well be successful. The Complainant was advised of this formally at a meeting with him and subsequently by letter.

The Complainant is represented by the Irish Hospital Consultants Association whose Senior Executive submitted a complaint to the Workplace Relations Commission on 15th November 2018. The Senior Executive sought an early hearing date as the Respondent Government Agency have commenced a recruitment process to replace the Complainant on a permanent basis. The Respondent Government Agency would argue that the recruitment process is to fill the new reconfigured post of Consultant Respiratory and General Physician role and not simply to replace the Complainant on a permanent basis as claimed.

BACKGROUND

The Complainant commenced employment as a medical intern in 2004. Following his internship, he commenced as a Senior House Officer under the Respondent Government Agency .In the period 2007 to 2010 he worked and studied in the RCSI Education and Research Centre. In 2010 he began a series of contracts working as a specialist registrar in a number of different hospitals. His employment and training as a specialist registrar terminated on 12th July 2015. The Complainant in July 2015 was offered and accepted the post of Temporary Consultant Physician with effect from 13th July 2015. This contract was for a period of 12 months. On 14th July 2016 this contract was renewed for another year on the same terms.   On 14th July 2017 the contract was renewed for a second time for a period of 6 months. The contract was renewed again for a third time for a year from 14th January 2018 to 13th January 2019. On 4th October the Complainant was advised by letter from the Hospital’s Human Resource Manager that the post he occupied was not going to be filled in a permanent capacity and that the reason for not doing so was the need to re-configure the post to a joint appointment to both hospitals.   Sanction had been sought for this post beginning February 2018 from the CAAC. The table below sets out the history of the Complainant’s contracts as a temporary Consultant Physician at the Respondent hospital.

Table

13th July 2015       12th July 2016   Consultant Physician    

14th July 2016       13th July 2017   Consultant Physician    

14th July 2017       13th Jan 2018     Consultant Physician    

14th Jan 2018         13th Jan 2019     Consultant Physician    

14th Jan 2019         13th April 2019   Consultant Physician    

THE CLAIM

The claim is based on the Complainant having been employed by the Respondent hospital and/or an “Associated Employer” on a series of fixed term contracts as set out above to include two further contracts as Specialist Registrar employed from 8th July 2013 to 12th July 2015.

SPECIALIST REGISTRAR CONTRACTS

8th July 2013       13th April 2014     Specialist Registrar    

14th July 2014     12th July 2015       Specialist Registrar    

The Complainant asserts that in each instance, the Respondent 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 is also relying on correspondence dated 4th October issued by the Human Resources Manager wherein the Complainant challenges the position adopted by the Hospital in terms of its refusal to acknowledge the Complainant’s entitlement to a contract of indefinite duration and its intention to cease the employment relationship following the renewal of his contract for a further three months.

The employer rejects the claim on a number of points. The Respondent does not accept the Complainant has an entitlement to a contract of indefinite duration pursuant to the Act on the following grounds:

·         The contract issued as a Temporary Consultant Physician in July 2015 is not a contract renewal. It is in fact a new contract of employment at Consultant level rather than that of a specialist registrar. Therefore, there is no continuity of successive fixed term contracts.

• The employment contracts as a specialist registrar were for one-year duration at Hospital 1 and at Hospital 2. The specialist registrar contract at the Hospital 2 came to an end on 12th July 2015.
• The Complainant has not satisfied section 9 (2) of the Act to be entitled to a contract of indefinite duration. His employment as a Consultant Physician (he was employed after the commencement of the Act) does not exceed 4 years aggregate duration.
• The Respondent Government Agency, Hospital 1 and Hospital 2 are not associated employers as defined under Section 2 (2) of the Act.
• The Respondent Government Agency relies on objective grounds for the continuation of the successive contracts of Consultant Physician. The process by which permanent posts are filled is through open competition arising from the obligations on the public health service to comply with the Public Service Management (Recruitment and Appointments) Act 2004. It should be noted that reliance of this statute does not undermine the supremacy of EU law. The second renewal of the Temporary Consultant Physician contract sets out clearly that the Complainant was not being offered a permanent contract.

PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003

This legislation was the transposition into Irish Law Council Directive 1999/70/EC concerning the Framework Agreement on Fixed Term Work concluded by the general cross -industry organisations at European Level. The Framework Agreement sets out its purpose at clause 1

The purpose of this framework agreement is to:

a)      Improve the quality of fixed term work by ensuring the application of the principle of non-discrimination.

b)      Establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

At clause 5 reference is made to the measures to prevent abuse where member states were required to introduce measures on:

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.

With reference to the   defence of the claim, the Respondent Government Agency challenges the reliance on the employment contracts as detailed by the Complainant.   The Respondent Government Agency has above set out that the contract of temporary Consultant Physician is not a successive fixed term contract from that of the fixed term contract of Specialist Registrar. The contracts issued to the Complainant as a Specialist Registrar terminated in July 2015. The contract of temporary Consultant Physician is a different employment contract and the terms and conditions applicable to the Consultant contract are significantly different to that of the conditions attaching to the contract as Specialist Registrar. There is a reference in the last Specialist Registrar contract that the employment is terminating in July 2015 and the contract also sets out the objective ground for the non-issue of a contract of indefinite duration. It is clear the Irish legislation focuses upon the renewal of a fixed term contract of employment. In the present case no renewal took place in 2015 as there was no renewal of the Complainant’s fixed term contract as a Specialist Registrar. Instead the Complainant successfully applied for an entirely different position. The Respondent Government Agency relies on the case of Waterford City Council v Kennedy where the issue arose as to whether the Complainant’s fixed term contract was renewed or merely continued.   The Labour Court held that there was “nothing magical” in the word “renew”. It was “a plain and ordinary English word which can properly be used to describe the continuation of something that would otherwise come to an end”. The contract of temporary Consultant Physician cannot be interpreted as a continuation of a Specialist Registrar contract which in any case was explicitly brought to an end by the purpose for which it was offered.

The Respondent Government Agency relies on the fact that the fixed term contract as a Specialist Registrar was terminated in July 2015. The Contract is for a fixed term / purpose as follows:

“The purpose of your employment with Hospital 2 is to inter alia allow you to participate on the Higher Specialist Training Scheme under the education auspices of the Royal College of Physicians which is recognised for such purposes by the Medical Council”.

“For the purposes of Higher Specialist Training, the Royal College of Physicians has deemed this post suitable for a maximum of 12 months training. The termination date of your employment contract is therefore 12th July 2015”.

“The objective ground for issuing a fixed term contract is that this post is only recognised by the Royal College of Physicians for a maximum period of 12 months for the purposes of Higher Specialist Training Scheme and therefore cannot be of an indefinite duration”.

That is a clear statement that the contract terminated on 12th July 2015 and sets out the objective ground for not issuing a contract of indefinite duration.

The sets out that the Complainant has not satisfied the requirements at Section 9 (2) to be entitled to a contract of indefinite duration. The Complainant commenced employment with the HSE after the commencement of the Act. In that regard Section 9 (2) is the applicable section of the Act to ground a claim for a contract of indefinite duration. The Complainant commenced employment as a temporary Consultant Physician at Hospital 1 on 13th July 2015. That contract was for one year to July 2016. His contract was renewed for the first time in July 2016 for another year. The contract was further renewed for a second time in July 2017 for a period of six months to January 2018. A further renewal took place from January 2018 to January 2019 with a final renewal for a further three months to April 2019. The full employment duration as a temporary Consultant Physician is for a duration of less than 4 years.

Section 9 (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.

The Complainant fails to satisfy this section of the Act and in that regard is not entitled to a contract of indefinite duration.

The HSE rejects the argument that the Hospital 1 and Hospital 2 are associated employers.   The issue of whether two employers could be taken to be associated was fully considered by the Labour Court in HSE v Abdel-Haq. An associated employer is defined in the Act as:

Section 2

(2) Employers are deemed to be associated if-

a) one is a body corporate of which the other (whether directly or indirectly) has control, or

b) both are bodies corporate of which a third person (whether directly or indirectly) has control.

The Labour Court was referred to the case of Brides v Minister for Agriculture, Food andForestry in the course of argument on this point. The conclusion reached in that case was that Teagasc and the Department of Agriculture were not associated employers. The claim was that Teagasc was under the control of the Department which was rejected. The argument was based on Section 2 (2)(a). In this case it is clear that Hospital 1 is not under the control of the Hospital 2 or vice versa. In Haq it was argued successfully that former Health Boards were associated employers where they were under the control of a third person the Department of Health i.e. section 2 (2)(b).   any argument based on “associated employer” argument does not apply in the case of the Hospital 2, which although it derives funding from the HSE is not, as a matter of fact under the control of either the HSE or the Department of Health. Hospital 2 is itself a statutory corporation for the purposes of the Companies Act 2014 (and a registered charity) with its own objects and its own board of directors. The HSE provides funding to Hospital 2 pursuant to a service level agreement, and in accordance with Section 38 of the Health Act 2004 which provides that

The Executive may, subject to any directions given by the Minister under Section 10, enter, on such terms and conditions as it considers appropriate, into an arrangement with a person for the provision of a health or personal social service by that person on behalf of the Executive.

Clearly Hospital 2 is not under the control of the HSE and the HSE is not under the control of the Department of Health. The HSE is a body corporate set up under statute to act autonomously not unlike the argument presented in Brides in terms of Teagasc. Therefore based on the above the argument that both employers are associated fails.

The Respondent Government Agency relies on objection grounds for the renewal of fixed term contracts and the failure to offer a contract of indefinite duration. The reliance on objective grounds as set out at Section 7 must be based on considerations other than the status of the employee as a fixed term worker. The less favourable treatment must be both for the purpose of achieving a legitimate objective of the employer and must be appropriate and necessary for that purpose. In Health Service Executive v Prasad the Labour Court said that the second limb of Section 7 subs. (1) was a restatement of the “three tier test for objective justification in indirect discrimination cases” formulated by the Court of Justice in Bilka Kaufhaus v von Hartz. The Respondent Government Agency Hospital 1 as far back as 2016 had applied to re-configure the temporary Consultant Physician post occupied by the Complainant to a different post on a joint sessional basis with Hospital 1 and Hospital 2. The sessional breakdown to be 19.5 hours in both hospitals. Approval was eventually received from CAAC and the post was advertised for filling on a permanent basis. It is incumbent on the HSE to fill such vacancies by open competition and in Health ServiceExecutive v Umar Hedigan J. ruled that holding an open competition for a permanent consultant post was a legitimate aim corresponding to a real need of the HSE justifying the use of a fixed term contract to fill the post pending the outcome of the competition.

The Complainant submits that the Respondent failed to offer a written statement setting out the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration. That claim is not entirely correct. Hospital 2 made it explicit that the specialist registrar post for not offering a contract of indefinite duration. When the Complainant took up the temporary position of Consultant Physician at Hospital 1 he was told on the second renewal that he was not being offered a permanent contract. In her letter of 4th October 2018, the Human Resources Manager was explicit in terms of what the employer’s intention was. Indeed, the Complainant would have had clear knowledge that the post would have to be filled by open competition as he was involved in preparing the documentation to seek CAAC approval for the filling of the post originally in 2016 and was aware of the employer’s intention to create a new joint sessional post by suppressing the role he held. In Health Service Executive v Sallam Baker J held that as a matter of law, a failure by an employer to comply with the requirements of Section 8, did not of itself mean that no objective justification exists. A failure to provide a written statement was merely a factor that may be taken into account in coming to a determination as to whether the objective condition did, as a matter of fact, exist at the date of renewal. She added that the terms of subs. (4) required the Labour Court to “engage, in the exercise of considering the circumstances and the equity and justice between the individual parties before it comes to a conclusion or draws an inference from the failure under Section 8). The Labour Court has, subsequently ruled that a breach of s.8, although giving rise to an adverse inference did not automatically result in a fixed term contract being deemed to be one of indefinite duration refer University College v McConnan and Liebherr Container Cranes Ltd v Roache.

CONCLUSION

The Complainant is seeking an acknowledgement that he is entitled to a contract of indefinite duration pursuant to the provisions of the Act of 2003. His claim is based on the basis of Hospital 1 and Hospital 2 as associated employers in accordance with Section 2(2) of the Act. He is also submitting the different contracts provided to be deemed as successive contracts to ground his claim under Section 9(2).

The submission from the Respondent Government Agency rejects any such claim and sets out in unequivocal terms the grounds on which the employer relies on to defend the instant claim. The claim of associated employers is rejected; the successive contracts detailed do not meet the test of ongoing renewal of fixed term contracts: the renewal of fixed term contracts as a temporary Consultant Physician is based on objective justification and meets the CJEU test and finally the failure to issue written statements pursuant to Section 8 is not necessarily indicative of the absence of objective justification not to grant a contract of indefinite duration. Based on the arguments submitted together with the legislative provisions referenced and case law relied upon the Respondent Government Agency would respectfully request the claim as presented by the Complainant be denied.

The Complainant asserted a right to a Contract of Indefinite Duration from August 2018.

In reaching a conclusion and making any findings in this complaint the law must be considered:

The Act (Protection of Employees (Fixed – Term Work) Act, 2003 was enacted to give effect to the Directive 99/70/EC to give effect to the Framework Agreement on Fixed – Term Work concluded between the ETUC, UNICE and CEEP. Its objects are twofold; to provide for equal treatment in pay and employment conditions as between fixed – term and permanent employee and to prevent the abuse of fixed term contracts.

Section 8 of the Act obliges employers who propose to renew a fixed – term contract to inform the employee, in writing, of the objective grounds justifying the renewal.

In this instant case the Complainant submits that the Respondent failed to offer a written statement setting out the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration. In reply the Respondent states that this claim is not entirely correct. The Respondent also quotes the case of Health Services Executive v Sallam [2014] IEHC 298 in which Baker J held that as a matter of law, a failure by an employer to comply with the requirements of Section 8, did not of itself mean that no objective justification exists. A failure to provide a written statement was merely a factor that may be taken into account in coming to a determination as to whether the objective condition did, as a matter of fact, exist at the date of renewal. The Labour Court has, subsequently ruled that a breach of s.8, although giving rise to an adverse inference did not automatically result in a fixed term contract being deemed to be one of indefinite duration refer University College v McConnan and Liebherr Container Cranes Ltd v Roache.

The Respondent rejects the Complainant’s argument that he is seeking an acknowledgement that he is entitled to a contract of indefinite duration pursuant to the provisions of the Act of 2003. His claim is based on the two hospitals as associated employers in accordance with Section 2(2) of the Act. He is also submitting the different contracts provided to be deemed as successive contracts to ground his claim under Section 9(2).

The Respondent has presented a strong argument in relation to Section 2 (2) of the Act regarding associated employers however it is not one that I can accept. In accordance with Section 2 (2) of the Act employers are deemed to be associated if:

a)      One is a body corporate of which the other (whether directly or indirectly) has control, or

b)      Both are bodies corporate of which a third person (whether directly or indirectly) has control.

The Representative for the Complainant made the following points:

Both Hospitals are accountable to the State and the Respondent Government Agencyfor expenditure of funding in relation to staffing.

A.      The appointment of staff and their terms and conditions are required to be in accordance with directions of the Respondent Government Agency / Minister for Health.

B.      The provisions of maintenance of hospital services are subject to the directions of the Respondent Government Agency/ Minister for Health.

C.       The Respondent Government Agency/ Minister for Health has the power to regulate the provision of services.

D.      Both hospitals are part of the same Hospital Group. The “mission statement” and goals of the said group, indicate the clear association between the hospitals in the said group.

E.       The two Hospitals are linked in respect of respiratory services, surgeries and multi-disciplinary teams.

F.       The role to replace the Complainant will operate between both hospitals.

If one was to study the Respondent Government Agency website under the heading of hospital groups, the following is stated:

“The Group Chief Executive of each Hospital Group reports to the National Director for Acute Services and is accountable for their Hospital Groups planning and performance under theRespondentGovernment Agency Accountability Framework”.

Whilst Hospital 2 may not be directly under the control of the Respondent it is under indirect control of the Respondent. It was submitted that taking the criteria considered by the Labour Court in the Abdel Haq case i.e. funding, staffing, provision and maintenance of hospital services and Ministerial Power, the only possible conclusion is that the Respondent and Hospital 2 are associated employers within the meaning of the Act.

Section 8(2) of the Act reads:

(2) Where an employer proposes to renew a fixed-term contract, the fixed -term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

There was no written justification issued to the Complainant until October 2018. This is a breach of section 8 (2) of the Act.

Section 9 of the Act at section (2) reads:

(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 fixed-term contracts and the date of the first such contract is subsequent to the date on which the Act was passed, the aggregate duration of such contracts shall not exceed 4 years.

The Complainant has asserted a right to a Contract of Indefinite Duration from August 2018.

CA-00023297-001 – Breach of Section 8 (2) of the Act.

I order the Respondent to pay the Complainant the sum of €5,000 as compensation for a breach of this section of the Act.

CA – 00023297 – 002 – Breach of Section 9 of the Act.

In accordance with the redress provisions contained within the Act the Complainant should now be issued with a Contract of Indefinite Duration with an effective date of 01st August 2018. All appropriate terms & conditions should be applied from that date.

Both actions should be completed within 42 days from the date of this decision.

As outlined above.

Protection of Employees (Fixed-Term Work) Act.