Complainant

Respondent

Parties

Fionnuala  Bonner

Donegal County Council

Complainant

Respondent

 Parties

Fionnuala Bonner

Donegal County Council

Representatives

Etain Boyce Kelly Solicitors

Keith Irvine Local Government Management Agency (LGMA)

Act

Complaint 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-00029541-001

08/07/2019

The Complainant was employed by the Council in the initial capacity of Health, Safety, Quality and Environment Supervisor (HSQE) on a number of successive Fixed Term Contracts.

There are 3 Complaints made against the Respondent on the same facts:

1.                   CA-00029541 -my 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 lodged on the 8th of July 2019 made under the under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 lodged on the 8th of July 2019 and concerns this Adudication.

2.                   CA-00032326-Discrimination under section 77 of the Employment Equality Act, 1998 lodged on the 19th of November 2019.

3.                   CA-00032328-Penlisation under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003, also dated 19th of November 2019.

Complaints CA-00032326 and CA-0032328 are determined under Adj-00025462; however, all matters have been determined on the same facts and a decision particularly relating to the CA-00029541 has significant consequence in terms of the factual matrix pertinent to the other claims.

The Complainant was employed by the Respondent from the 7th of April to 31st of May 2019. Her periods of employment and role are as follows:

1.       HSQE Supervisor from the 7th of April 2015 to 31st December 2015.

2.       HSQE Supervisor from the 8th of February 2016 to 7th December 2016.

3.       Water Pro Officer from the 30th of January 2017 to 29th of January 2019.

4.       Water Pro Officer from 31st January to 31st May 2019.

The time period between the ending of contract 1 and the commencement of contract 2 was approximately 5 weeks.

The time period between the ending of contract 2 and the commencement of contract 3 was approximately 7 weeks.

The time period between contract 3 and 4 there was no gap.

The Complainant stated that the roles and duties that she carried out from the commencement of her employment continue to this day. In fact, at the time of her employment ending she was engaged in a wide range of tasks and duties which were not related to external funding. The contract given to her on the 31st of January 2019 provided no objective reason for the temporary contract, other than it was temporary. The periods of lay-off do not amount to a cessation of employment and the contract has continued for 4 years.

The Complainant was recruited in 2015 in the temporary position of HSQE Supervisor to support the Water and Environment Directorate for the purpose of water safety and environmental monitoring during the summer bathing season 2015 and her contract was extended to the 31st of December 2015.

The Complainant was subsequently recruited to the same position from the 8th of February to the 7th of December 2016.

The objective reason in the contract was: “the post is required for the purpose of Water Safety during the summer bathing season 2016”.

It is alleged by the Council, an unrelated development to the previous fixed term contracts the Council advertised, through competition, the temporary post of Water Pro Project Officer. The Complainant applied for the role and was successful. This role was dependent on standalone funding under an EU transnational Interreg Funding programme.

This contract began on the 30th of January 2017 until 29th of January 2019. The objective justification was a temporary role arising from the fact that the funding was temporary:

“This is a Specific Purpose Contract of Employment. The Water Pro Project is an EU funded project under the Northern Periphery and Artic Programme. The project officer post if for a two-year fixed term to run concurrently with the funding.”

On the 15th of January 2019 the Respondent extended the contract by a further 4 months until the 31st of May 2019 to complete the project. This was on the same terms as the first Water Pro Project Contract of Employment and signed and accepted by the claimant as per the letter dated 15th of January 2019.

The Respondent is satisfied that there were precise and concrete circumstances for offering the claimant a fixed term contract. There was no fixed and permanent need for the work the claimant was undertaking. The fixed term was for a partnered project funded for a two-year period. The Respondent it satisfied that the need was temporary and transient. The Council in this regard was mindful of the requirement that the concept of objective ground must be understood to refer to a precise and concrete circumstance characterising a given activity, which are capable in this particular context of justifying the use of successive fixed term employment contracts ( CJEU case C-212/04 Adeneler and Ors v Ellinkos Organismos Galaktos IRLR 716).

The decision of the High Court in Russell v Mount Temple Comprehensive School IEHC 533 is authority for the proposition that the existence of objective grounds justifying the renewal of a fixed term contract is to be judged at the commencement of the impugned contract.

The Complainant’s employment ended by reason of the term specified in her contract that the role was temporary as it was contingent on funding that was temporary.

The employment has extended over a 4-year period and 4 successive contracts.

The Respondent argued that the period is not continuous and that each contract was separate and objectively justified.

The Complainant has stated that the contractual records being relied upon by the Respondent do not reflect the reality. She was part of a small team, and her work was varied and was not contingent on once off funding and in fact continues. Her employment was continuous, and she had an expectation that her role would be made permanent.

The Complainant stated that the monitoring of bathing water and attendant duties was one of her main responsibilities both as HSQE Supervisor and Water Pro Officer even though it was not in her Water Pro Officer role.

The Complainant stated that she also monitored landfill sites as a HSQE supervisor which were also part of the newly created role of Water Pro Officer.

There is a separation to be made between a funding source and the requirement to carry out ongoing and necessary tasks. The Complainant argued that the neat separation of duties relied upon by the Respondent was illusory. The duties that she carried out when she first commenced employment carried over into her new role and the Council continued to require those roles to be completed after her employment ended.

The Complainant’s manager stated that the roles were separate and distinct. While some overlap did exist because the Complainant worked in a small team and the Complainant also received training in a range of specialist areas; that did not dilute the fact that the funding was temporary and the HSQE role was not the same as the Water Pro Officer role.

The Complainant opened to the tribunal a detailed task analysis relating to her periods of employment that clearly detailed all her work duties and using a colour code index it clearly indicates where duties continued and overlapped during the relevant period. This in turn was stated to be a true and accurate record of her work duties. While it does show an evolution of tasks and a significant increase in work related to site visits it also indicates a continuation of a sizeable part of her role that she commenced as a HSQE Supervisor.

The question arises if there is sufficient linkage between the roles to justify the Complainant’s position that her role in fact was permanent except in name or on the other hand were the roles sufficiently separate and objectively justified so that the cessation of the contracts was lawful?

The Complainant stated that her employment was continuous from the 7th of April 2015 to the 6th of April 2019.

Section 9 of the Act states:

Successive fixed-term contracts.

9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

The first hurdle to determine is whether the employment can be characterised as having continuously  existed for a period of more than 4 years, which in this case is the 7th of April 2015 to the 31st of May 2019.

The time period between the ending of contract 1 and the commencement of contract 2 was approximately 5 weeks.

The time period between the ending of contract 2 and the commencement of contract 3 was approximately 7 weeks.

The time period between contract 3 and 4 there was no gap.

I note the decision in HSE v Sallam [2014] IEHC where Baker J. stated:

“In my view, the Labour Court did not fall into error in expressing the view that any conflict of meaning between the words “continuous” and “successive” could be resolved by “ascribing a liberal and expansive meaning to the term “layoff” “

It could be argued that this case can be distinguished from Sheridan v Donegal County Council FTC/17/9 as the Complainant competed for the role of Water Pro Officer, which it is argued is not the same role. In Sheridan the Labour Court held that continuity of service was not broken arising from seasonal lay off.

The Respondent relies on FTD130 Meath County Council and Christy Reilly. The computation of continuous service is calculated with reference to first schedule of the Minimum Notice and Terms of Employment Act 1973. This case can be distinguished from the complaint before this tribunal as it related to a resignation where the Claimant resigned as an employee of Kildare County Council. Therefore, relying on HSE v Sallam the question that must be answered allowing for the factual matrix of this case and the overlap in duties that continued throughout the period of employment; are the breaks in employment where the Respondent terminated the employment sufficient to negate continuity:

·       The time period between the ending of contract 1 and the commencement of contract 2 was approximately 5 weeks.

·       The time period between the ending of contract 2 and the commencement of contract 3 was approximately 7 weeks.

·       The time period between contract 3 and 4 there was no gap.

The detailed task analysis regarding contract 1 and 2 indicates an overlap and similarity where the gap of 5 weeks should be treated as a layoff and therefore, I conclude that contract 1 and 2 continued.

While contract 3 did contain additional new duties it also required the Complainant to continue with a substantial number of tasks carried out by the Complainant up to the 7th of December 2016 and that continued from the 30th of January 2017. Does the break period of 7 weeks and the fact that a competition was held negate or break continuity of the contract?

 Again, relying on HSE v Sallam that any conflict of meaning between the words “continuous” and “successive” could be resolved by “ascribing a liberal and expansive meaning to the term “layoff” ; the period of 7 weeks is relatively short and the overlap of duties so significant that it would be unjust not to classify this period as a layoff.  Therefore, I must determine that the break in employment of 7 weeks was a layoff and the employment continued and in fact contract 3 rolled over until 31st May 2019.

In this case the contract language, the break periods and the competition hide the reality that this Complainant’s job expanded during her period of employment, and it is not accurate to depict it as separate and new contracts. The time gap is relatively short having regard to the successive number of contracts and the common duties actually carried out by the Complainant during each period of employment. The overlap in duties between contracts is so significant it must be viewed as a role that increased in responsibility while maintaining a chain of continuity as it expanded. It did change; however, the job evolved, and it would be wrong to classify the roles as independent of one another. Arising from this conclusion I determine that the following contracts continued successively and the Complainant was engaged in continuous employment:

1.           HSQE Supervisor from the 7th of April 2015 to 31st December 2015.

2.           HSQE Supervisor from the 8th of February 2016 to 7th December 2016.

3.           Water Pro Officer from the 30th of January 2017 to 29th of January 2019.

4.           Water Pro Officer from 31st January to 31st May 2019.

Subsection 4 of the Act states:

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

While the Respondent cites Hanna J in Russell v Mount Temple Comprehensive School IEHC that existence of objective grounds justifying the renewal of a fixed term contract is to be judged at the commencement of the impugned contract. The following passage from that judgement clarifies what the observation related to:

It seems clear from the wording of s. 9 as a whole that it directed as regulating the circumstances in which fixed term contracts can be renewed. This appears to comport fully with the requirements of clause 5 of the Framework Agreement, just quoted, which is also focused on the successive renewal of fixed-term contracts.

Where a fixed-term contract is renewed in contravention of ss. 9(1) or 9(2) subsection (3) of that section provides, in effect, that the offending term is severed and the contract becomes one of indefinite duration by operation of law. This Court so held in State Laboratory v. McArdle Labour Court Determination (April 4th, 2006), a decision upheld on appeal by Laffoy J. in Minister for Finance v. McArdle [2007] E.L.R. 165.

The claimant contends that s. 9 should be construed as also providing that where objective grounds existed at the time at which a fixed-term contract was renewed beyond what is normally permissible by ss. 9(1) or (2), but those grounds subsequently cease to exist, subs. (3) should, at that point, become operative. It was submitted that in such circumstances the contract should be deemed to be one of indefinite duration from the point at which the objective grounds no longer apply.

The court cannot accept that submission. Subsections (1) and (2) of s. 9 clearly operate at the time of the renewal of a fixed-term contract. Subsection (4) of s. 9 provides that subs. (3) shall not apply to the renewal of a fixed- term contract where there are objective grounds justifying such renewal. Hence where the renewal of a fixed-term contract beyond the time specified in s. 9(1) or s. 9(2) is saved by s. 9(4) that renewal is perfectly lawful and it cannot be retrospectively rendered unlawful by the occurrence of a future unforeseen event.

Had the Oireachtas intended to provide that a lawfully concluded fixed-term contract would become one of indefinite duration where the objective grounds originally relied upon for its renewal cease to exist during its currency, it could have easily made a provision to that effect. No such provision was made and in the court’s view the section cannot be read as importing such a provision.

Accordingly, the court cannot hold that Mr. Vaughan’s resignation, and the resultant vacancy which it created, entitle the claimant to a contract of indefinite duration by virtue of s. 9 of the Act.”

The comments relate to an interpretation of the Act where at the renewal of a fixed term contract there are objective grounds justifying renewal can be rendered unlawful by the occurrence of a future unforeseen event. That is not what is contended in this case. The Complainant has clearly stated that at renewal of the Fixed Term Contract is was unlawful as no objective ground was specified to justify the renewal, that the justification was not objectively transient or temporary and lacked the required specificity.

Contract 3 stated that the justification of the fixed term was:

“This is a Specific Purpose Contract of Employment. The Water Pro Project is an EU funded project under the Northern Periphery and Artic Programme. The project officer post if for a two-year fixed term to run concurrently with the funding.”

Contract 4  dated the 15th January 2019 stated:

Dear Ms. Bonner,

I refer to your Specific Purpose Contract of Employment as WaterPro Project Officer with the Council, dated 30th January 2017, which expires on the 29th of January 2019. It is proposed to extend your Contract to 31st May 2019, on the same terms and conditions of your existing conditions of your existing Contract.

There is no express objective ground and while it is argued that the objective ground was detailed in the previous contract, that term stated:

“This is a Specific Purpose Contract of employment. The Water Pro project is an EU funded project under the Northern Periphery and Artic Programme. The project officer post is for a two-year fixed term to run concurrently with the funding.”

There is a lack of specificity in the renewal contract and why the contract would run to the 31st of May 2019. It fails to link that duration with funding that was to end at that time, or that the project would be completed by that date. In fact the Complainant demonstrated that her duties continued after her contract ended.

I note in Employment Law 2nd Ed Bloomsbury Regan states:

[13.37]

As noted at the outset of this chapter, in addition to ensuring equal treatment for fixed-term workers, the Framework Agreement and thus the 2003 Act also seek to guard against the potential abuse of successive fixed-term contracts. Section 9(1) provides that where a fixed-term employee completes or has completed his or her third year of continuous employment then his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year. 79 Section 9(2) provides that where a fixed-term employee is employed on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which the 2003 Act was passed, the aggregate duration of such contracts shall not exceed four years.

[13.38]

Once again, this section comprises a vigorous pursuit of the aims of the Framework Agreement. Here, to guard against the abusive deployment of successive fixed-term contracts by employers. The strength of the provision is seen in s 9(3), which provides that where any term of a fixed-term contract purports to contravene s 9(1) or s 9(2), that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration. This can only be avoided where the employer can meet the onerous test of establishing that there are objective grounds justifying the renewal. This can be seen, therefore, as a robust statutory protection for employees. As the Labour Court has confirmed 80 of s 9(3) and s 9(4):

It is… clear that Section 9(4), and by extension Section 9(3), takes effect at the commencement of the impugned contract. …. 81 This can have the practical effect of transmuting a fixed-term contract to one of indefinite duration before the expiry of the duration referred to in either subs (1) or (2) of Section 9 of the Act. Where, as in the instant case, a fixed-term contract is entered into before the expiry of the four-year period referred to in Section 9(2), and its duration extends beyond that period, Section 9(3) operates so as to sever the term in that contract providing for its expiry by effluxion of time. The contract is thus converted to one of indefinite duration from the date of its commencement. This construction of Section 9(3) of the Act is supported by the plain and ordinary meaning of the language used in the subsection, which provides that the ‘contract concerned’ shall be deemed to be a contract of indefinite duration.

 The Complainant has made out a strong case that a significant part of her role continued and while funding from the EU was received for a designated project, her role encompassed more than that. I have determined that the Complainant was 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 exceeded 4 years.  

As the renewal of the contract dated the 15th of January 2019 extended the Fixed Term; where the aggregate duration of such contracts as referenced exceed 4 years, and did not provide objective grounds to do so, I find that the fixed term of the contract has no effect and deem the contract to be a contract of indefinite duration.

The Complaint is well founded.

I determine that the following contracts continued successively, and the Complainant was engaged in continuous employment:

1.           HSQE Supervisor from the 7th of April 2015 to 31st December 2015.

2.           HSQE Supervisor from the 8th of February 2016 to 7th December 2016.

3.           Water Pro Officer from the 30th of January 2017 to 29th of January 2019.

4.           Water Pro Officer from 31st January to 31st May 2019.

There are 3 Complaints made against the Respondent on the same facts:

1.           CA-00029541 -my 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 lodged on the 8th of July 2019 made under the under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

2.           CA-00032326-Discrimination under section 77 of the Employment Equality Act, 1998

3.           CA-00032328-Penlisation under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.

The Complainant has made out a strong case that a significant part of her role continued and while funding from the EU was received for a designated project her role encompassed more than that. I have determined that the Complainant was 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 exceeded 4 years. 

As the renewal of the contract dated the 15th of January 2019 extended the Fixed Term; where the aggregate duration of such contracts as referenced exceed 4 years, and did not provide objective grounds to do so, I find that the fixed term of the contract has no effect and deem the contract to be a contract of indefinite duration.

The Act provides for the following redress:

4. A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of this Act shall do one or more of the following, namely—

(a) declare whether the complaint was or was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment

It is alleged that the Complainant was not offered a contract of indefinite duration or renewal of her contract either wholly or partly because the Respondent wished to avoid awarding her a contract of indefinite duration; however, I have concluded based on the evidence and burden of proof as set out in the Employment Equality Act 1998 that arose based on a pregnancy related dismissal.

As stated by the Respondent the Complainant based on the same facts should not be awarded double compensation; this is similar to the approach adopted by the Labour Court in the decision of A School v A Worker EDA 122 where the Labour Court held that an employee cannot “rely on the same facts to obtain redress under more than one head of liability.”

I note in Regan Employment Law 2nd ed the following:

[28.80]

Section 101(4A) of the Employment Equality Act 1998 133 requires a person, who has referred a complaint relating to dismissal under both the Unfair Dismissals Act 1977 and the 1998 Act, to elect between the two within 42 days of so being notified by the Commission. 134 If he or she fails to elect by this date, the discriminatory dismissal complaint will be deemed to have been withdrawn.

Section 101A of the Employment Equality Act 1998 135 provides that, where the conduct of the employer constitutes both a contravention of Part III or IV of the 1998 Act and a contravention of either the Protection of Employees (Part-Time Work) Act 2001 or the Protection of Employees (Fixed-Term Work) Act 2003, relief may not be granted to the employee concerned in respect of the conduct both under the 1998 Act and either of the 2001 or 2003 Acts. Similarly, s 18(2) of the 2003 Act provides that an individual, who is both a fixed-term and a part-time employee, may obtain relief arising from the same circumstances under either, but not both, the 2001 and 2003 Acts. The Labour Court, however, has ruled that, where a claim under the 1977 or 1998 Act has been dismissed, a claimant is not estopped by s 18 from pursuing a claim under the 2003 Act. 136

While I have requested the Complainant to provide evidence of mitigation of loss; my decision made under the related complaint brought under the Employment Equality Act 1997 relates to the effects of the discrimination and a breach of a statutory right under that Act.

Therefore, I decline to make an award under the 2003 Act as it would amount to double compensation based on the facts of this case.

Contract of Indefinite Duration.