Our latest review of Labour Court decisions looks at three cases brought under The Protection of Employees (Fixed-Term Work) Act 2003.


Introduction

The Protection of Employees (Fixed-Term Work) Act 2003 has thrown up some interesting cases since it was passed into law almost nine years ago, with a variety of sometimes complex legal arguments put forward to advance or to defend claims. Amongst other measures, the legislation effectively places a cap of four years on the amount of time that an employee can serve under a series of two or more successive fixed term contracts, by entitling a fixed term worker to a contract of indefinite duration when that limit is exceeded. This is subject to the right of the employer concerned to argue that it has an objective justification for offering a further fixed term contract beyond this cap. Objective justification involves the employer showing that a further contract meets a real need of the employer and that it is an appropriate and necessary way to meet this need.

However, when an employee is granted a contract of indefinite duration under the terms of the legislation, what exactly does he or she become entitled to? Does that person become a permanent employee, incapable of being made redundant? The first case reviewed in today’s email considers this question, and also considers whether an employee who has been granted a contract of indefinite duration can now make a claim under the Act at all, given that he or she is no longer a fixed-term employee.

The second case in today’s review concerns a teacher employed for a total of six years under a series of fixed term contracts to replace a permanent employee on leave for a variety of legitimate reasons from 2005 to 2011. The core question it explores is whether assigning the replacement a minor amount of different teaching duties to the teacher she is replacing deprives the employer of the defence of objective justification.

The final case focuses on the question of establishing whether there is continuity of service under a series of successive fixed term contracts, for the purpose of attempting to argue that four years' service has accrued and a contract of indefinite duration should be awarded.

These cases are respectively:

* Trinity College and Moss
* Scoil Dara and McCarthy
* Carlow County Council and McSweeney


1. Trinity College and Moss (FTC/11/54, Determination No FTD129, 12th March, 2012)

This case concerned an appeal to the Labour Court from a decision of a Rights Commissioner that the complainant’s complaint failed because she was no longer a fixed-term employee within the meaning of the Act. It was agreed that she had worked for the respondent university from October 1996 to September 2006, under a series of successive fixed-term contracts. Accordingly, she was appointed to a contract of indefinite duration, as a lecturer in the History of Art, effective from October 1st, 2006. This contract however provided that ‘this employment is supported by income which accrues to the Irish Art Research Centre from external sources’ and that ‘the Lecturer’s appointment will be terminable by three months notice from either side’ to take effect on either March 31st, June 30th or December 31st. On 21st March, 2011, the complainant was informed that her employment would end on June 30th, 2011 due to the lack of funding for her position and her employment duly ended on that date.

In support of the appeal, it was submitted on behalf of the complainant that the contract of indefinite duration that she had been offered was invalid and inconsistent with the Act and that the issuing of a redundancy notice amounted to a unilateral repudiation of her permanent status. This notice effectively brought the complainant back within the definition of a fixed term employee from the date of the notice of termination of employment to the termination date itself.

In addition, it was submitted that where a contract of indefinite duration is granted, it has the effect of rendering void any term of the contract such as conditionality regarding funding. The complainant’s contract should not have contained such a term which denied the complainant her legal entitlements.

In turn, the respondent argued that a claim under the Act could only be brought by a fixed term employee and the complainant was not such at the time her employment terminated. It also submitted that the complainant was advised of the threats to her employment due to the funding situation and that the contract was legitimately terminated on grounds of redundancy.

In coming to its decision, the Court noted that the definition of fixed-term employee means a person having a contract of employment entered into directly with an employer where the end of the contract is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event. It concluded that the complainant’s contract did not have any such stipulation.

Equally, the complainant’s contention that her contract of indefinite duration was spurious since it was conditional on continued funding was also rejected. The Court noted that many posts in the respondent’s College were funded from external sources and concluded that the termination of the contract of indefinite duration offered to the complainant in September 2006 was not foreseeable at the time it was offered. It did not accept that the three months' notice of termination of employment provided to the complainant in March 2001 altered the contract to one of a fixed term nature. Rather, it viewed it as complying with the respondent’s contractual and legal obligations to notify the complainant of its intention to make her redundant.

Thus, the complainant’s appeal failed on the ground that she was not at the time of her claim a fixed-term employee within the meaning of the Act. However, lying unspoken with this claim perhaps is the suggestion that a contract of indefinite duration must involve a right to permanency that cannot be affected by funding considerations. The difficulty with such an argument may be that the unfair dismissals legislation specifically allows for the fair dismissal of permanent employees on grounds of redundancy, provided that a genuine redundancy situation exists and the employer concerned has followed the correct procedural steps.


2. Scoil Dara and McCarthy (FTC/11/64, Determination No.FTD1211, 23rd March 2012).

The complainant in this case was employed for a total of six years under a series of fixed term contracts to replace an absent teacher who was on leave for a variety of legitimate reasons between 2005 and 2011. The absent teacher taught music in the respondent’s school and the complainant was employed to take up those teaching duties. However, although she taught all the music classes that the absent teacher had done, she was also assigned other classes beyond these. This included ten class periods of Religious Education in 2005/2006, four class periods of Health Education in 2008/2009, two periods of SPHE in 2008/2009 and finally three periods of Geography in 2009/2010. The absent teacher returned to her job at the start of the 2011 school year and the complainant’s contract was not renewed.

In terms of her claim, the complainant submitted that by September 2009, the respondent had employed her on a series of two or more fixed-term contracts for a period exceeding four years and that she should thus have been entitled to a contract of indefinite duration, had her employer not had an objective grounds for offering further fixed-term contracts beyond this limit. She submitted that the defence of objective justification was lost to the respondent school when she was assigned the three Geography classes in 2009/2010, as the absent teacher had never taught nor was qualified to teach Geography. This broke the connection between herself and the absent teacher she was employed to replace, with these classes being assigned to anther fixed term contract after the complainant’s employment terminated.

The respondent gave evidence that a full complement of teaching hours involved 34 class periods per week. Thus, although all of the absent teacher’s music classes were assigned to the complainant, these hours varied and it was necessary to assign her class periods in other subjects to make up the difference. The three Geography periods allocated in 2009/2010 arose from a reallocation of duties amongst the existing cohort of teachers and were not additional or extra classes that could be assigned when her contract to replace the absent teacher came to an end. The school submitted that the complainant was aware at all times of the fixed term nature of her contract and received a letter from the school each academic year setting out the details of her contract and the person she was replacing.

In rejecting the complainant’s claim, the Court found that the allocation of classes to the complainant closely followed that of the absent teacher and that the minor variations from year to year did not materially affect the primary purpose for which the complainant was employed. It concluded therefore that the allocation of three class periods of Geography in 2009/2010 did not materially change the purpose of her employment to replace the absent teacher and that the respondent was therefore entitled to maintain its defence of objective justification. Thus, the Rights Commissioner decision was upheld and the appeal failed.


3. Carlow County Council and McSweeney (FTC/10/41, Determination No.FTD127, 24th February 24th, 2012)

The complainant in this case worked under a series of fixed-term contracts from 11th July 2005 to 18th February 2010 when her employment terminated. Initially, the complainant was employed as a temporary clerical worker to replace staff on sick leave and to provide administrative assistance, and her contracts were short in duration, culminating in a six month contract from 3rd July 2006 to 31st December 2006. There was then a gap of some seven weeks until 19th February 2007 when she was offered a three year contract to replace an employee on secondment which she duly served. The outcome of this case hinged on the interpretation placed on this alleged break of service. The respondent argued that as a result of it, the complainant did not have four years continuous service so as to entitle her to a contract of indefinite duration. The complainant argued that the seven week period should be treated as a period of lay-off and that continuity of employment was thus preserved.

The Court noted (not for the first time) the difference in wording between the European Framework Agreement on Fixed Term Work (i.e. the directive) and the implementing legislation in Ireland. Thus, Section 9 of the 2003 Act refers to protection against the abuse of ‘continuous’ fixed-term contracts, whereas Clause 5.2 of the directive refers to ‘successive’ contracts. It observed that the wording of the Act in this regard might be regarded as unduly restrictive and given the superiority of the directive over domestic legislation, it concluded that the result to be pursued is to prevent abuse arising from successive rather than continuous fixed-term contracts.

The Court then noted that Ireland had not introduced in its legislation any maximum time limit between contracts beyond which such contracts would not be regarded as successive, leaving the Court to determine the issue in accordance with the rules on continuity of service in the first schedule to the Minimum Notice and Terms of Employment Act 1973. According to this schedule, continuity of service is only broken by either dismissal or resignation.

On the balance of probabilities, it accepted the respondent’s submission that the complainant’s employment was terminated on 31st December 2006 without any commitment regarding re-employment in the future, despite the complainant’s assertion that the respondent had an ongoing requirement for Clerical Officers. Thus, it concluded that the complainant’s employment was not continuous or successive within the meaning of the Act or the directive.

The complainant’s additional argument that the respondent did not have an objective justification for offering a three year fixed-term contract to the complainant on 19 February was also rejected. The Court observed that this vacancy arose because of a secondment arrangement being availed of by a staff member whose position in turn was filled by another staff member. The complainant was then offered a three year contract to fill that vacancy and the Court decided that the respondent’s actions in this respect amounted to a proportionate response to a real need and met the test for objective justification. Again, therefore, the Rights Commissioner decision was upheld and the appeal failed.

Labour Court Online:
http://bit.ly/ygOVJ5

Additional viewpoint:

Readers will be aware that there is an ongoing review of employment fora by the Department of Jobs, Enterprise and Innovation, which has published a 'Blueprint' document on possible reforms. Readers may be interested in a recent critical article we spotted in the Irish Times by Tom Mallon, barrister and chairman of the Employment Bar Association of Ireland:
http://bit.ly/IC0yCi