Complainant

Respondent

Anonymised Parties

A Senior Executive

A Health Service Provider

Representatives

MacSweeney & Company Solicitors

Byrne Wallace Solicitors

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-00026344-001

18/02/2019

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

CA-00026344-002

18/02/2019

This complainant in this case is claiming an entitlement to a Contract of Indefinite duration in respect of the post of Group Chief Executive Officer ("CEO") of ‘X’ University Health Care Group in relation to which he has been employed by the Respondent on successive fixed term contracts since 5th October 2014.     The complaints were submitted on 18th of February 2019 and I proceeded to a hearing of these matters on 25th of July 2019.   Final correspondence in relation to this matter was received on 19th of September 2019.

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

CA-00026344-001

18/02/2019

The complainant submits that

He has been employed as the Group Chief Executive Officer ("CEO") of ‘X’ University Health Care Group by the Respondent on successive fixed term contracts since 5th October 2014,

On 4th October 2018, he had accrued the four years of continuous service required to become entitled to a contract of indefinite duration in respect of the post of CEO, but this has not been formalised by the respondent.

his employer 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 respondent submits that

The complainant is a permanent employee of the respondent since January 2012,

In addition, he has been employed by the respondent since October, 2014 on a series of fixed-term contracts, as interim Chief Executive Officer of the X University Health Care Group.

The Protection of Employees (Fixed Term Work) Act, 2003 does not apply to the complainant   because he is not a fixed term employee,

The complainant was informed in writing when he was appointed to the position of Chief Executive Officer, ‘X’ Hospital Group on a fixed term basis, and upon subsequent renewals, that if his contract was not extended, he would revert to his substantive permanent position,

as the position has been clear at all times, the question of attaining a "contract of indefinite duration" by operation of law does not arise.

The complainant advised the hearing that he has been employed as the Group Chief Executive Officer ("CEO") of ‘X’ University Health Care Group by the Respondent on successive fixed term contracts since 5th October 2014. He submits that on 4th October 2018, he had accrued the four years of continuous service required to become entitled to a contract of indefinite duration in respect of the post of CEO, but this has not been formalised by the respondent.   The complainant in making this assertion refers to Section 9 of the Act which provides

(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.

The respondent at the advised the hearing that that the complainant is not a fixed term worker for the purpose of the act and thus does not have the locus standi to pursue a claim in this regard.   The respondent advised the hearing that the complainant is a permanent pensionable employee of the respondent.  

The respondent advised the hearing that the complainant is a senior executive in the employment of the respondent within the division known as the ‘X’ University Healthcare Group.   The Claimant has been employed by the respondent since July 1999 and in January 2012 the Claimant was promoted to the whole-time, permanent and pensionable position of Chief Financial Officer within a division of the respondent. The division was the organisational predecessor to ‘X’ , however, both are part of the respondent organisation. No issue arises in relation to the Claimant’s continuity of service. The Claimant’s permanent contract of employment was signed on 9 January 2012 (copy provided).

The Claimant was subsequently invited by the respondent to take up the role of Interim Hospital Group Chief Executive of X. He accepted that invitation and assumed the role of Interim CEO on 5 October 2014.   The Claimant took up this role while maintaining his substantive position as CFO, held pursuant to a permanent contract of employment.

Both parties agree that this assignment was extended a number of times until September 2018 when the respondent invited applications in respect of a competitive interview process undertaken by the Public Appointments Service (PAS) to fill the role of CEO of ‘X’. The Claimant applied via PAS for the position of CEO, but he was not successful.    

The respondent advised the hearing that the complainant was at all times aware that upon expiry of his temporary appointment as CEO he would revert to his substantive grade, this was reiterated by the respondent in writing with each extension.   The expiry of his assignment as CEO has not terminated his contract of employment with the respondent and the employment relationship between the Claimant and his employer continues to subsist.

For the Claimant to ground a case in the Act, she must establish that she is a fixed term worker within the meaning of the Act.

s.2(1) of the Act defines a fixed term worker as ’..a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…’.

That same section goes on to define a permanent employee as ‘..an employee who is not a fixed term employee’

The respondent advised the hearing that the complainant is a permanent employee and refers to the definition under the Act which states that a permanent employee is an employee who is not a fixed term employee.   The respondent submits that this has been reiterated by the Labour Court in a succession of decisions e.g. Louth County Council v Kelly FTD 1322, Raftery v Frobel College of Education [2014] 25 ELR 190, Railway Procurement Agency v Bell FTD097, Gallagher v Sligo County Council FTD 1425 and Cork County Council v Sheehan FTD193.  

The complainant at the hearing and in his submissions did not dispute the fact that he is a permanent employee of the respondent. The complainant acknowledges that he is a permanent member of the respondent staff and has not submitted that his employment ceased or was under threat of termination at the end of his tenure as CEO of ‘X’.   The complainant also accepts that he was first appointed CEO of ‘X’ on an interim basis, for the period 5 October 2014 to 31 March 2015.     The Complainant’s agrees that his contract was subsequently extended on a number of occasions pending the PAS competition for recruitment of a suitable candidate which concluded in September 2019.   The complainant accepts that he is a permanent employee of the respondent but in submitting this claim submits that he can at the same time also be a fixed term employee.

In considering the Labour Court findings in Cork County Council v Sheehan FTD193 I note the following:

“it is not in dispute that the Claimant was engaged on a permanent contract, that her permanent status continued since she took up employment with the Respondent and that she reverted to her substantive grade as a permanent employee upon the cessation of her ‘acting’ assignment. The only issue for consideration, therefore, is whether she enjoyed a contract, (fixed term) within a contract, (permanent). It seems to the Court that if it was intended to provide for such within the Act, this would have, (and would need to have), been set out explicitly within the Act”.

The Court went on to state in that case

“These cases are not uncommon, but the position of the Court has been clear, consistent and entirely in keeping with the logic of the legislation. The purpose of the Act is to offer certain protections to fixed term workers who, by nature of their status, could, otherwise, be treated less favourably than permanent employees. It is not the purpose of the Act to offer additional protections to permanent employees in respect of temporary arrangements within their contracts of permanency”.

I am satisfied from the totality of the evidence adduced and taking in to account the body of case law which has emanated from the Labour Court in similar cases, that the Complainant as a permanent employee of the respondent has no standing to bring a claim pursuant to the Fixed Term Work Act and that his case cannot succeed.  

Having considered all the evidence presented by the parties, I find that I have no jurisdiction in the within complaint as the complainant does not have locus standi to bring a complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003. In that regard, he is not a fixed term worker pursuant to the definition laid down in the Protection of Employees (Fixed-Term Work) Act 2003 as he holds a permanent position with the respondent organisation.

The Complainant is not a fixed-term worker and therefore does not have locus standi to bring a complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.     Accordingly, I declare this claim to be not well founded.

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

CA-00026344-002

18/02/2019

The complainant submits that

He has been employed as the Group Chief Executive Officer ("CEO") of ‘X’ University Health Care Group by the Respondent on successive fixed term contracts since 5th October 2014.

On 4th October 2018, I had accrued the four years of continuous service required to become entitled to a contract of indefinite duration in respect of the post of CEO, but this has not been formalised by the respondent.

His employer has contravened the legal provisions in relation to the number of successive fixed-term contracts that can be issued to him.

The respondent submits that

The complainant is a permanent employee of the respondent since January 2012,

In addition, he has been employed by the respondent since October, 2014 on a series of fixed-term contracts, as interim Chief Executive Officer of the X University Health Care Group.

The Protection of Employees (Fixed Term Work) Act, 2003 does not apply to the complainant because he is not a fixed term employee,

The complainant was informed in writing when he was appointed to the position of Chief Executive Officer, ‘X’ Hospital Group on a fixed term basis, and upon subsequent renewals, that if his contract was not extended, he would revert to his substantive permanent position,

as the position has been clear at all times, the question of attaining a "contract of indefinite duration" by operation of law does not arise.

The complainant advised the hearing that he has been employed as the Group Chief Executive Officer ("CEO") of ‘X’ University Health Care Group by the Respondent on successive fixed term contracts since 5th October 2014. He submits that on 4th October 2018, he had accrued the four years of continuous service required to become entitled to a contract of indefinite duration in respect of the post of CEO, but this has not been formalised by the respondent.     The complainant in making this assertion refers to Section 9 of the Act which provides

(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.

The respondent at the advised the hearing that that the complainant is not a fixed term worker for the purpose of the act and thus does not have the locus standi to pursue a claim in this regard.   The respondent advised the hearing that the complainant is a permanent pensionable employee of the respondent.  

The respondent advised the hearing that the complainant is a senior executive in the employment of the respondent within the division known as the ‘X’ University Healthcare Group.   The Claimant has been employed by the respondent since July 1999 and in January 2012 the Claimant was promoted to the whole-time, permanent and pensionable position of Chief Financial Officer within a division of the respondent. The division was the organisational predecessor to ‘X’, however, both are part of the respondent organisation. No issue arises in relation to the Claimant’s continuity of service. The Claimant’s permanent contract of employment was signed on 9 January 2012 (copy provided).

The Claimant was subsequently invited by the respondent to take up the role of Interim Hospital Group Chief Executive of X. He accepted that invitation and assumed the role of Interim CEO on 5 October 2014.   The Claimant took up this role while maintaining his substantive position as CFO, held pursuant to a permanent contract of employment.

Both parties agree that this assignment was extended a number of times until September 2018 when the respondent invited applications in respect of a competitive interview process undertaken by the Public Appointments Service (PAS) to fill the role of CEO of ‘X’. The Claimant applied via PAS for the position of CEO, but he was not successful.    

The respondent advised the hearing that the complainant was at all times aware that upon expiry of his temporary appointment as CEO he would revert to his substantive grade, this was reiterated by the respondent in writing with each extension.   The expiry of his assignment as CEO has not terminated his contract of employment with the respondent and the employment relationship between the Claimant and his employer continues to subsist.

For the Claimant to ground a case in the Act, she must establish that she is a fixed term worker within the meaning of the Act.

s.2(1) of the Act defines a fixed term worker as ’..a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…’.

That same section goes on to define a permanent employee as ‘..an employee who is not a fixed term employee’

The respondent advised the hearing that the complainant is a permanent employee and refers to the definition under the Act which states that a permanent employee is an employee who is not a fixed term employee.   The respondent submits that this has been reiterated by the Labour Court in a succession of decisions e.g. Louth County Council v Kelly FTD 1322, Raftery v Frobel College of Education [2014] 25 ELR 190, Railway Procurement Agency v Bell FTD097, Gallagher v Sligo County Council FTD 1425 and Cork County Council v Sheehan FTD193.  

The complainant at the hearing and in his submissions did not dispute the fact that he is a permanent employee of the respondent. The complainant acknowledges that he is a permanent member of the respondent staff and has not submitted that his employment ceased or was under threat of termination at the end of his tenure as CEO of ‘X’.   The complainant also accepts that he was first appointed CEO of ‘X’ on an interim basis, for the period 5 October 2014 to 31 March 2015.     The Complainant’s agrees that his contract was subsequently extended on a number of occasions pending the PAS competition for recruitment of a suitable candidate which concluded in September 2019.   The complainant accepts that he is a permanent employee of the respondent but in submitting this claim submits that he can at the same time also be a fixed term employee.

In considering the Labour Court findings in Cork County Council v Sheehan FTD193 I note the following:

“it is not in dispute that the Claimant was engaged on a permanent contract, that her permanent status continued since she took up employment with the Respondent and that she reverted to her substantive grade as a permanent employee upon the cessation of her ‘acting’ assignment. The only issue for consideration, therefore, is whether she enjoyed a contract, (fixed term) within a contract, (permanent). It seems to the Court that if it was intended to provide for such within the Act, this would have, (and would need to have), been set out explicitly within the Act”.

The Court went on to state in that case

“These cases are not uncommon, but the position of the Court has been clear, consistent and entirely in keeping with the logic of the legislation. The purpose of the Act is to offer certain protections to fixed term workers who, by nature of their status, could, otherwise, be treated less favourably than permanent employees. It is not the purpose of the Act to offer additional protections to permanent employees in respect of temporary arrangements within their contracts of permanency”.

I am satisfied from the totality of the evidence adduced and taking in to account the body of case law which has emanated from the Labour Court in similar cases that the Complainant as a permanent employee of the respondent has no standing to bring a claim pursuant to the Fixed Term Work Act and that his case cannot succeed.  

Having considered all the evidence presented by the parties, I find that I have no jurisdiction in the within complaint as the complainant does not have locus standi to bring a complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003. In that regard, he is not a fixed term worker pursuant to the definition laid down in the Protection of Employees (Fixed-Term Work) Act 2003 as he holds a permanent position with the respondent organisation.

The Complainant is not a fixed-term worker and therefore does not have locus standi to bring a complaint under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.       Accordingly, I declare this claim to be not well founded.