Complainant

Respondent

Parties

Andrew  McCarthy

Department of Enterprise Trade and Employment

Complainant

Respondent

Anonymised Parties

Representatives

Ray Ryan BL      Barry Walsh Solr.                  Fieldfisher Solicitors

Cathy Smith S.C.              Frances Meenan S.C.                     Joseph Dolan Solr.  Chief State Solicitor's Office

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-00035970-001

01/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00035970-002

01/05/2020

At the specific request of the parties, this hearing was conducted in person in the Workplace Relations Commission situate in Lansdowne Road. In line with the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021] IESC 24 (delivered on the 6th of April 2021)  the hearing was conducted in recognition of the fact that the proceedings constitute the administration of Justice. It was therefore open to members of the public to attend the hearing. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that where there is a serious and direct conflict in evidence between the parties to a complaint, then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant brought a number of Complaints across two separate Adjudication Files (ADJ 28096 and ADJ 30250). To ensure an appropriate use of time, the two Files were listed to be heard together.

The Complainant was represented by Solicitor and Barrister. I was provided with two sets of submissions from the Complainant team. These are dated the 30th of September 2020 (together with Appendices) and the 18th of November 2020. The parties very helpfully put together a sizeable book of core documents and agreed authorities. I have also taken into account the specific details as set out in the Workplace Relations Complaint Form dated the 1st of May 2020

The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant was engaged as a worker member of the Labour Court.

The Complainant alleges that he was discriminated against on the ground of his age.

The Complainant asserts he was entitled to a Contract of Indefinite duration by operation of Law.

In  the second file ADJ  30250 The Complainant also asserts that he got less favourable treatment by reason of his being an employee on a fixed term Contract.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case, the application of the law and in fulfilment of my duties as prescribed by Statute.

The Respondent herein is a Department of Government. It is noted that the Respondent has changed its name on a number of occasions so as to include and exclude specific functions. I am satisfied that the Department as named herein is correct as of the time of the drafting of this decision

The Respondent was fully represented at the hearing of this matter, and I was provided with a comprehensive submission dated the 28th of October 2020 together with 22 exhibits. A subsequent submission was received on the 1st of December 2020 which was prepared in response to the Complaint raised in ADJ 30250 but also has relevance to the File herein. The parties very helpfully put together a sizeable book of core documents and agreed authorities.

The Respondent’s interests were represented by a number of in-house witnesses who gave evidence. Evidence was tested under cross-examination.

The Respondent engaged the Complainant as a worker member of the Labour Court, and denies all of the complaints made against it herein.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case, the law to be applied and in the fulfilment of my duties as prescribed by Statute.

The Complainant gave evidence on his own behalf and on Affirmation. The Complainant described his employment with the Labour Court which commenced in 2014. Before that, the Complainant had been a full-time employee with SIPTU engaged in the food and drinks sector and working primarily in the Munster region. The Complainant stated that prior to his appointment he had had considerable experience in Industrial Relations and had often represented his members in the Employment Appeals Tribunal.

The Complainant states that he was aware that in 2013 there was talk of the need for an extra division of the Labour Court. The Complainant also became aware that a lay member of the Labour Court was due to retire in 2014. The Complainant, it is noted, said that he was approached by a couple of his own SIPTU members and colleagues to see if he was interested in the role of worker-member of the Court. The Complainant said it was a very serious decision for him at the time, as it meant a full-time position based in Dublin and not Cork. He stated he was 60 at the time. The Complainant was nominated by ICTU to be a full-time ordinary member of the Labour Court. The Nomination made by ICTU in the February of 2014 had been made by ICTU General Secretary and was the only name put forward at that time for the vacancy. The Complainant was subsequently appointed on foot of that nomination for a three-year term from 24th of March 2014 to 23rd of March 2017. This appointment was signed off (as a Warrant of Appointment) by the then Minister. There can be no doubt that the parties knew that this was a three-year Contract and therefore a Fixed Term Work Contract wherein the objective condition determining the contract was the arrival at a certain specified date (per Section 8(1)(a) of the 2003 Act).

The Terms and Conditions of the Employment were opened to me in the form of a letter dated the 14th of April 2014 from Personnel Officer (JH). To my mind, there can be no doubt that the appointment conferred the status of Employee onto the Complainant. I do not ascribe any particular value either way to the Respondent’s insistence (in this instance)  that the Complainant be described as an “Office Holder”. This is a full-time role, and the Complainant was paid as an Employee. He enjoyed Annual Leave and sick pay entitlement as an Employee. The role was pensionable. This Pension was described to me by a Respondent witness as a fast-accruing pension which was favourable in light of the fact that it was only intended to be of short duration.  As stated, it is also clear that this was intended to be a fixed term Contract where the objective condition for determining the Contract of Employment was to be the arrival of a specific date i.e. 23rd of March 2017.

In the course of evidence, a department created document dated the 20th of February 2014 was opened to me. This document was created internally for the purpose of putting a case (for financial sanction) to the Department of Public Expenditure and Public Reform (DPER) and in particular I note that the Respondent fully expected to confer Employee status on the Complainant albeit limited to the duration of a fixed term Contract and not for an indefinite duration. The document sets out the objective reasons for not offering the appointment on a permanent basis (on page 15 of the document) where it says :-

The objective reasons given to date for offering a fixed-term contract rather than a contract of indefinite duration, as stated in the notice are generally stated as follows;

“It is well established policy of the Government that statutory positions such as that held by you ought not to be the subject of permanent appointment. It is the view of the Government that the interests of good governance and administration in State bodies would not be served by having the same person in a senior position such as a member/Registrar of the Labour Court, for an indefinite period……….The Minister in appointing you under Section 10(4) of the Industrial Relations Act has in this instance continued this practise and specified that you will be appointed for a fixed term not exceeding three years.”

This last paragraph has been lifted, as I understand it, from the notice which informed the Complainant of the fact of it being a fixed term contract and what pre-notified condition would determine the contract (the arrival of a specified date). It also sets out why a Contract of Indefinite duration is not considered (in the view of the employer) to be in accordance with good governance in the circumstances. All this is in accordance with Section 8(1) of the 2003 Act.

Towards the end of that initial warrant of appointment the Complainant indicated that he would be seeking renewal of the appointment through the nominating body - ICTU. In evidence the Complainant stated that the Department wrote to ICTU to determine if ICTU was happy to re-appoint the Complainant, which ICTU was. A further Ministerial Warrant of Appointment was given to the Complainant which indicated that the appointment was for a further three years from 14th of March 2017 to the 7th of April 2020. This second one was for slightly longer period than the first as was requested by the Complainant who sought to dovetail the expiration of this Contract with his 66th Birthday. The Complainant explained that he had actively sought this re-nomination together with the extension (of a few weeks) from late 2016. I note that the communications between himself and department officials at this time which confirm the role of ICTU in this process.

For the avoidance of doubt, I accept that the Complainant had now been the recipient of two fixed term Contracts which operated back-to-back and for a combined period of in excess of six years.

I note that in 2015 certain changes had been made regarding the Establishment of the Labour Court. Section 10 of the Industrial Relations Act 1946 was amended by the Workplace Relations Act of 2015. This included the process of open competition for the role of Labour Court Chairperson through the Public Appointments Service. Regarding worker and Employer members (of which the Complainant was one) the Minister was to select an appointment from amongst three persons nominated by a designated organisation. However, at 10(4B)(a) it states that:

“The Minister may after consultation with the designated body concerned, reappoint a person whose term of office as a workers’ member expires by the efflux of time to be a workers’ member of the court.”

It appears however that the Minister in consultation with the designated body reappointed the Complainant without the need to go through the process of seeking the 3 nominations required under the 2015 amendments. This process is allowed for under section 10(4B) (a) above. This is further borne out by the letter to the Secretary General of ICTU dated the 8th of February 2017 and from the Minister of State seeking ICTU’s views on the Complainant’s re-appointment. ICTU response on the 15th of March is to confirm the re-appointment. It is clear to me that the renewal was dependent on ICTU being satisfied to proceed and there was no question of the Minister in some way over-riding that.

Once again DPER was applied for the relevant financing. The Complainant received his Terms and Conditions of appointment on the 21st of March 2017 and this document – which differs in this respect to the 2017 terms and conditions - specifically states that:

“You have already received from the Department a notice in conformity with the requirements of the section 8(2) of the Protection of Employees (Fixed Term Work) Act 2003”

This sentence therefore seems to be evidence of the fact that the Complainant was on notice that the employer was relying on an objective justification for renewing a fixed term Contract rather than offering a Contract of indefinite duration per section 8(2) which reads:

“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 renewal.”

The insertion of the sentence into the otherwise similar terms and conditions which were received in 2014, is a flag raised that there are objective grounds justifying the renewal of the fixed term Contract. Once again, I am satisfied that both sides knew and understood the nature and parameter of the employment relationship.

However, the Complainant’s case is that it does not matter what the parties knew or understood the relationship and that to a large extent much of the interaction, communications etc. between the parties is irrelevant. It is submitted by the Complainant that, at the level of principle, this is clearly established by CJEU authorities including e.g. the 2020 case of Sanchez-Ruiz (Judgment in Joined Cases C-103/18 Sánchez Ruiz and C-429/18 Fernández Álvarez and Others v Comunidad de Madrid)  This demonstrates that a worker consenting to being given a fixed-term contract does not oust the entitlement to a CID which arises by operation of law.

The Complainant says that it is by operation of the Law that the Complainant became automatically entitled to a Contract of indefinite duration in and around March of 2018. The operative Section his is stated to be Section 9(3) of the 2003 Act where any attempt to use Fixed term contracts beyond four year:

“shall have no effect and the contract concerned shall be deemed to be a Contract of indefinite duration”.

The conflict between the parties arises at this point in time. The Complainant makes the case that I must determine whether the Complainant by operation of law is entitled to a Contract of Indefinite duration or whether the Employer has justification for offering a second Fixed Term Contract?

As the date for expiration of the second Warrant of Appointment approached, the Complainant says that the Department did not repeat the previous process (operated in 2017) and instead wrote to ICTU requesting the names of the three persons that ICTU proposed putting froward to fill the role of the worker member. The Complainant noted no explanation was given as to why there was a change in procedure from the re-appointment process which he had been afforded in 2017. In his evidence, the Complainant said that he understood that other members of the Court on both the worker and employer side had been repeatedly re-appointed without the provision of three possible candidates. He named at least one Chair of the Labour Court who had been repeatedly re-appointed (though I do not think the Chair is a good comparator especially as their selection process is now being dealt with by the PAS). The Complainant claimed this was a misapplication of the 1946 Act (as amended) and that he as a sitting member did not have to compete with two other nominees. In cross-examination the Complainant conceded that the amendment seeking three nominations in Section 10 of the 1946 Industrial Relations Act is not (in the written text) limited to newly created vacancies and that it is therefore reasonable to assume that the roles held by existing worker /employer members might also be filled using the three nominations process. This is the process which the Respondent chose to adopt in 2020 and it was put to me that nothing in the legislation prevented this process being so adopted.

I understand that the Complainant as far back as 2018 had been looking into the possibility of extending his tenure in the role. This was primarily prompted by an understanding that he might, as a Public Servant, be eligible to continue in employment until the age of 70. This was precipitated by the enactment of the Public Service Superannuation (Age of Retirement) Act 2018. In fact, as I understand it, Public Servants such as the Complainant who were recruited on or after the 1st of January 2013 and who are members of the Single Pension Scheme are (and always were) eligible to work until the age of 70 at which point compulsory retirement still operates. I accept that there was not a huge amount of clarity at the time that the Complainant was making preliminary enquiries (i.e. in 2018).

Then in February 2020 the Complainant was notified by the Respondent HR department that the Minister intended asking the designated body (ICTU) to nominate three persons from amongst whom the Minister would appoint a person to be a workers’ member of the Labour Court. This was to put into operation the previously described new procedures set out in Section (10)(4)(a) and (b) of the 1946 as amended by the Workplace Relations Act of 2015. The Complainant was understandably upset by this proposal which was to operate at the expiration of his warrant of appointment. In fact, the Complainant took the view, as I have said, that this was an incorrect application of the new procedures which should only be applicable to new appointments and not to pre-existing appointments.

I have some sympathy for the Complainant at this time who was clearly blindsided by the development. He was correct in assuming that he was in a class of employee eligible to continue to work until the age of 70, though he was waiting on details confirming this fact. He had also believed that with ICTU’s backing, which he had clearly had in 2017, he could be re-appointed for whatever number of terms would take him to 70 years of age. This plan was clearly unravelling. In those circumstances he wrote back to the HR department on the 19th of February 2020 asserting certain things. Firstly, his entitlement to be treated the same as other (unnamed) recent appointments. Secondly, his entitlement to a Contract of indefinite duration under the Protection of Employees (Fixed Term) Work Act 2003. Lastly, the Complainant threatens to “…take an injunction against the Minister and the Department to prevent the termination of the Employment.”

I note that the Department had already- as of the 18th of February 2020- applied to the Secretary General for the list of three nominations to the role to be vacated by the Complainant. I understand that the Complainant’s name was not included amongst the three nominations put forward by ICTU at that time.  I am not quite clear on when this fact became known to the Complainant.

The Complainant wrote again to the HR Department on the 24th of March 2020. He also wrote through his Solicitor on the 2nd of March 2020.  In his evidence he stated he was deeply upset by what was happening. It felt, to him, as if he had been dismissed. In his communication he asserts his entitlement, by operation of law, to a Contract of indefinite Duration. He asserts a mis-application of the 1946 Act when the Department sought three nominations from ICTU for a position that was already filled (by him). He asserts that action had been taken prematurely when he had no clarity around whether a Court member could continue to the age of 70. The Complainant makes allegations of “skulduggery and shenanigans” and “pernicious bullying and harassment”.

 The Complainant’s last day of employment was the 7th of April 2020. The country was in Covid lockdown at that time. In his concluding remarks the Complainant noted that he believed that the fact of his being 65 or 66 played a factor in the decision to terminate his employment and he was therefore discriminated also against on the grounds of his age. In his evidence he named a number of fellow Labour Court appointees who were all re-appointed and who were younger than him. He never, he says, understood the rationale behind why he was being terminated. No objective justification was made known to him.

In cross examination it was put to the complainant that he was incorrect in suggesting that there was a custom and practise that people after being given a first warrant would simply roll over again and again to the next one. It was put to him that he knew that the Court sought balance of representation and utilised fixed Term Contract of Employment to ensure such balance was achieved.

Giving evidence on behalf of the Respondent was the Principal Officer known as TC who has responsibility and oversight for relations between the Department and the WRC/Labour Court. TC outlined the provenance and function of the Labour Court and emphasised the independent nature of that body. She repeatedly described the members as Fixed Term “Office Holders”. Since 2015, the Chairs and Deputy Chairs must now apply under the PAS. The worker and employer members can only, she says, be appointed on foot of ICTU and IBEC nominations. One nomination was sought for any vacancy which arose before 2015. Three nominations were sought for vacancies after 2015 (albeit not in 2017 in relation to the Complainant). TC was firm that the only mechanism for filling these latter posts is by way of nominations put forward by the designated bodies. This she says has nothing to do with the Department who are limited to picking a person based on a description of experience and ability. She therefore rejected the proposition made by the Complainant that the Minister could somehow override or ignore the nominations presented. The role of the designated body is fundamental. Their imprimatur is essential and ongoing - by way of example in Section 10(8) of the 1946 Act it is noted that the removal of a nominated member can only happen with the consent of the nominating body.

The filling of any such role is always predicated by an application to DPER for the necessary funding. The application specifically states that it is a fixed term position. That funding only ever lasts the length of the Warrant of appointment and therefore the application for funding must be renewed every three years too. TC noted that whilst the legislation allows for up to five years of appointment it is ICTU who has consistently requested such appointments apply for three years at a time.

TC explained the rationale for using fixed term contracts. In her evidence TC confirmed that these appointments were always intended to be of short duration. Even back in 1946 when there was no protection for employees on fixed term Contracts the posts were meant to be of at most five years. When asked why, she stated that a person whose nomination is approved becomes an “Office Holder” and is expected to hold the position for a short duration. These are not and never were intended to be lifetime posts.

It is clear that this is a bespoke arrangement. The Respondent has no knowledge of how persons come to be nominated or of the inner workings of the designated bodies when putting forth nominations. The role of the Minister is to select a name form amongst the three provided. It is a system that has worked well.

TC said that whilst they are given employee status, they are Office Holders (As previously stated in my view nothing in particular turns on this need to distinguish the status).

The Labour Court, she says, must be flexible and mobile and must be relevant. It must be seen to have its ear to the ground and have the ability to tap into different areas of specialisation. Representation must be balanced and fair to all areas of employment. The Labour Court evolves to keep up with the ever-changing employment landscape and these different Office Holders bring different skills and experience to the Court at different times.  This model of Office Holders is very important and she emphasized in her evidence the need “..to renew and replenish”.

I accept that this is the Objective Justification relied on by the Department to operate successive fixed Term Contracts. Although not as fulsomely articulated I accept that this is what was meant by:

“the interests of good governance and administration in State bodies would not be served by having the same person in a senior position .. for an indefinite position”

which was stated in the notice to the Complainant at the commencement of both his fixed term contracts.

TC sought to distinguish between members or Office Holders (as she called them) of the Labour Court and other Department Employees. Whilst they share certain over arching functions such as payroll and HR there is a need to keep Labour Court members independent from the Department which ensures that the Labour Court’s independence can be recognised. She pointed out that members of the Labour Court couldn’t be pulled into the Department to perform functions therein. Labour Court members aren’t managed by a department hierarchy, nor are they subject to performance reviews. She noted that Labour Court members go in at the highest point of the salary scale and are on a comparatively good salary within the Department structure. She noted that both Office Holders and employees could make contributions to the pension.  However, the Labour Court members are on an accelerated scheme which recognises their short terms in the office. The facts demonstrate she said that, if anything, employee members of the Labour Court have enhanced conditions of employment over their Department colleagues.

Heretofore, she conceded, that there had been an inclination to give two terms to a nominated Office Holder but this can only happen where the nomination by the designated body has been made.

TC stated that the (then) Minister took the view in 2020 that it was incumbent on him to request that ICTU provide him with three nominations for the soon to be vacated post being then occupied by the Complainant. This obligation was imposed by the 2015 amendments to the 1946 Industrial Relations Act. TC gave evidence that nothing precluded ICTU from including the Complainant as one of the three nominations being sent forward. As it happens, his name was not included. Neither the Minister nor the Department could be at fault, she said, for not appointing the complainant who had fallen at the first hurdle of nomination. It is noted that the DPER funding lapsed at the appointed date and the onus was on the Respondent to apply for new funding for the newly appointed individual.

TC was adamant that the Department had no view on the Complainant’s age or pension entitlements one way or another. There is nothing to suggest that a person aged 65, 68 or of whatever age nominated by the designated body could not be appointed by the Minister she said.  The only relevance to the age of 70 related to being part of the pension scheme. TC stated that it is a misapprehension on the part of the Complainant to think that the Minister could in some way force the re-appointment. The Minister can only appoint a person who has been nominated by the designated body. That is quite simply the way that the Labour Court has been set up. TC when challenged, remained adamant that these posts can only be filled by a person nominated by the designated body and the Complainant was wrong to suggest the Minister had any power to overrule that function.

TC gave further context to the Objective Justification already put forward. She said that in 2020 at the time that the Complainant’s tenure was drawing to an end, it was known that there were difficulties anticipated across the Health Sector. Someone with that particular background was ultimately appointed to replace the Complainant. She explained that the posts are specifically designed to allow for ongoing involvement with the designated bodies. It is essential these bodies (as the stakeholders) feel involved and have buy-in to the Labour Court.

TC was asked if she believed that an employee appointed under the 1946 Act was not to be afforded the protections set out in the 2003 Act? She rejected this. TC did give the example that there can be no suggestion that the Complainant was treated less favourably than permanent counterparts as his role was not subject to Line Management scrutiny, he was placed on the top of the applicable scale and his Pension was accelerated to maximise his outcome. The Complainant was afforded this protection as a fixed term employee and in line with the 2003 Act.

TC was challenged in cross examination on her seeming to shy away from describing the Complainant as an employee. This was despite the fact that no such issue was raised by the Respondent when the Complainant had previously brought a Payment of Wages claim against the Respondent. TC said that even an Office Holder is entitled to be paid wages and he was therefore entitled to his Statutory protection.

DK gave further evidence on behalf of the Department. DK is the head of Human Resources. She had come from DEPR and was giving advice to the Labour Court on the pension entitlements where an issue had arisen in February 2020. It was suggested that it was she who had given the Complainant reason to believe that he should stay on until he was 70. DK denied ever giving such advice. She did state that pension entitlements only represent a small part of the terms and conditions of any role. But the fact of having a pension should not be used as the hook to allow someone stay in the role. That would be the tail wagging the dog as it were.

At the end of the oral evidence both parties addressed me on the law. I have given a huge amount of thought to the evidence I have heard and to the comprehensive and thoughtful legal argument presented by both sides. 

Claim under Protection of Employees (Fixed-Term Work) Act 2003

I understand that Protection of Employees (Fixed Term) Work Act 2003 transposes into Irish law the aspirations set out in the Framework Agreement on fixed term work (published in March 1999) and the subsequent Council Directive 1999/70/EC (dated 28th of June 1999). The stated aims of the fixed-term work directive are to improve the quality of fixed term work by ensuring the application of the principle of non-discrimination and establish a framework to prevent abuse arising from the use of successive fixed term employment contracts. The Framework agreement on fixed term work purports to balance labour market flexibility and employment security. There can be no doubt that the overall objective is to prevent discrimination and to prevent “abuse”. In recognising the overall objectives and intent I have also to accept that the use of fixed-term contracts has not eradicated or outlawed and that they can continue to be a feature of employment which can suit both employers and workers (para 8 of the General considerations of the Framework Agreement). This was put to me by Counsel for the Respondent as the potential to have, what she described as, non-abusive Fixed Term Contracts.

The case of Impact -v-  Minister for Agriculture and Food (62006CJ0268 (2008)  establishes that a claim brought before the WRC under a national law must also be seen as a claim under the directive which the said national law transposes. In fact, the case of PG -v- Ministero della Giustizia CSA 2020/C271/36 found that Civil Judges involved in the administration of Justice are encompassed under the Framework Agreement. The Complainant has urged me to find that it is therefore not acceptable that the Respondent should somehow try and shirk its responsibility to abide by the Directive and Framework by suggesting that its hands are tied by the obligations set out in the 1946 Act.

I am not particularly drawn to the argument that the Complainant was an “Office Holder” which somehow precludes him from having protections afforded workers at EU level and in particular the fixed term Directive. The Complainant opened up the case law in this area and I have given that some consideration.  In Del Cerro Alonso, the Court of Justice went as far as including within the equal treatment provisions of Directive 1999/70/EC a temporary member of staff on the grounds that:

‘Directive 1999/70 and the framework agreement are applicable to all workers providing remunerated services in the context of a fixed-term employment relationship linking them to their employer’.

It seems to me on any reading of the facts that the Complainant is just such a candidate. I confirm that I accept that the Complainant was employed by the Department albeit to perform a very specific function within the Labour Court. I note that the Respondent in evidence maintained the idea that the Complainant was an Office Holder though in reality did not push his status beyond that title. It was specifically accepted that he was also afforded the protection of the EU Directive and the 2003 Act.

I am also of the view that the obligations imposed in the 1946 Act including the amendments made in 2015 do not circumvent the obligations set out in the 2003 Act. The 2003 Act must prevail as Counsel for the Complainant put it to me. This is, after all, an enactment of an EU directive.

The Respondent’s Counsel, however, urged me to recognize that there is nothing inherently wrong with giving a number of warrants which operate as fixed Term Contracts. Recital 14 of the fixed term Directive clearly envisages the continued use of non-abusive usage of successive fixed term employment Contracts.

The Respondent has emphasised the fact that it is the singularity of the Labour Court that allows the Respondent to rely on the objective justification which was outlined in the evidence of TC. The Labour Court is a unique body created in 1946 to perform specific functions to create harmony between workers and their employers. The ordinary members are appointed to bring their expertise on industrial relations and employment relation matters to the function of the Labour Court. The manner of their appointment is unusual given there is no competition and there is little to no visibility on how designated bodies select their nominations.  On balance I can understand the rationale behind periodically replacing the worker and employer members. It makes sense to me that litigants and representatives appearing before the Labour Court would be able to relate in real time with sitting members. That the persons before whom they present should be known or at least readily knowable to litigants and their representatives. Also, I accept that it does not make sense that such a body might have a perception of being out of touch, entrenched or stale. “Replenish and Renew” was the phrase used and I accept that this is the best way of ensuring the agility and dexterity demanded of this unique body. This is in keeping with the document that went to DPER which put it more pithily

“that the interests of good governance and administration in State bodies would not be served..by having the same person in a senior position..such as member of the Labour Court…for an indefinite period”

So, on balance I am finding that the Respondent has asserted an appropriate objective justification for not appointing labour Court members on a full-time basis. I have given some consideration to the law in this area and I am satisfied that the objective justification which the Respondent does now contend for, has been closely scrutinised by me. The unequal treatment as between the Complainant and another Respondent employee is in response to a genuine need. It is firmly established in CJEU jurisprudence that the unequal treatment must be justified by the existence of precise, concrete factors, characterising the employment condition concerned in its specific context and on the basis of objective and transparent criteria for examining the question whether that unequal treatment responds to a genuine need and whether it is appropriate and necessary for achieving the objective pursued. The Respondent directed me to the Del Cerro Alonso  case at para 58.

One of the important features of section 8 (4) of the 2003 Act is that it places an important emphasis on the established European jurisprudence in relation to the Framework Agreement that having regard to the general right of an employee to a contract of indefinite duration, the burden of proving objective justification for a derogation from such right lies upon the employer and any such purported derogation must be carefully scrutinised by the relevant decision maker. The need for close examination of the alleged objective justification was discussed in cases such as Case C- 586/10 Kucuk v Land Nordrhein-West Fallenand Case C-190/13Samohano v Universitat Pompeu Fabra.

I concur with the CJEU that has made it clear that the concept of objective reasons 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. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social policy objective of a Member State. [This emerges from a very large number of CJEU decisions, but e.g. two of the best known examples would be Adeneler (C-212/04) at paragraphs [69]-[70], and Angelidaki (C-378/07) at paragraph 96].

On balance, therefore, I accept that the failure to renew the Contract or award a Contract of indefinite duration had nothing to do with the Complainant himself but had to do with the stated objective of constantly trying to present an array of contemporary innovation, talent and specialization so that the Labour Court continues to be relevant and perform its function.

This is, therefore, an instance of having objective justification for using successive Fixed Term Contracts which does not operate, as a matter of law, to create a Contract of indefinite duration.

There was some conflict between the parties as to whether or not the Complainant did in fact get the written confirmation of the reason why he was not getting a contract of indefinite duration which should under the Act happen on or before the date of the renewal.  The Respondent believes it did inform the Complainant in writing. This is evidenced by the fact that the Terms and Conditions of employment dated the 21st of March 2017 state:

“You have already received from the Department a notice of conformity with the requirements of the section 8(2) of the Protection of Employees (Fixed Term) Work Act, 2003”

I have no evidence to suggest that any such notice was wilfully withheld by the Respondent and am satisfied that the Complainant knew (from these said terms and conditions) that the Respondent was relying on an objective justification pursuant to Section 8(2). However, it is not absolutely clear to me that there was strict compliance with Section 8(2) which reads

“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 renewal.”

In the circumstances, there has been a breach of the obligation set out in Section 8(2) of the Act of 2003.

Claim pursuant to section 77 of the Employment Equality Act 1998 (as amended)

It has also been submitted that the Respondent has unlawfully discriminated against the Complainant on the ground of age. It is suggested that when the Respondent terminated the complainant’s employment, it did so on grounds of his age and thus treated him differently to a person in a comparable position, who had not attained the age of 66, would have been treated.

It is submitted that the Complainant was retired compulsorily on the ground of his having reached the age of 66. He claims that this is discriminatory and unlawful, in that it is contrary to section 6 of the Acts.

I have considered the argument put forward by the Complainant’s representative under this legislation. I note that at no point did the Respondent fix the Complainant’s retirement age at 66 (or at any age).

I have considered the relevant judgment of the High Court in Donnellan v Minister for Justice, Equality and Law Reform [2008] IEHC 467. ThisHigh Court decisionconcerned a challenge to the mandatory retirement age attaching to the role of Assistant Commissioner of the Garda Síochána.

It is submitted that arising from Donnellan, it is clear that terminating employment at, say, age 66 is direct discrimination: the question then is whether the discrimination could be justified under one of the derogations provided for in the Directive.  The Court in Donnellan found that the retirement age in question could be justified under Article 6(1) on the basis that the measure was for the purpose of achieving the legitimate aim of “employment policy” based on, in particular, the identified justifications of ensuring motivation and dynamism through the increased prospect of promotion and the creation of the most useful pool of candidates possible for appointment to the position of Commissioner (at para 121). McKechnie J. held that the measure in question was both appropriate and necessary to achieve this aim.

It has been submitted that the compulsory retirement of the Complainant from the Labour Court at age 66 is unlawful, discriminatory on the ground of age, and cannot be justified.

However, on balance and having listened carefully to the evidence adduced in the course of this hearing, I can find no basis for the suggestion that the Complainant’s age was a factor in the termination of this employment relationship. The Contract simply terminated because it expired on the occurrence of a specified date and the end of the approved funding. The only reason it dovetailed with any age was because the Complainant specifically requested that that would be so. I accept the Respondent’s evidence that the Complainant’s age was neither here nor there. The Respondent was not in a position to renew a further fixed term Contract because the Complainant had not been nominated.

The Complainant has failed to demonstrate that he suffered Prima Facie discriminatory treatment.

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

CA-00035970-001 – There is no entitlement to a Contract of indefinite duration.  There has been a contravention of Section 8 (2) of the Act. The Complaint herein is well founded, and I require that the Respondent pay to the Complainant an amount of €3,000.00 which I consider to be just and equitable in all the circumstances.

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00035970-002 - The Complainant was not discriminated against and has not established a prima facie case in this regard.