1. Introduction

The Protection of Employees (Fixed-Term Work) Act 2003 was enacted to transpose the framework agreement on fixed-term work concluded by the EU social partners and adopted as a directive by the Council of the (then) European Communities in 1999.

The basic objectives of the agreement/directive are twofold. First, to improve the quality of fixed-term work by enabling a fixed-term employee to make a complaint that he or she is being treated less favourably in relation to his or her terms and conditions of employment than a permanent colleague performing like work. Second, to provide a framework for the prevention of abuse arising from the successive use of fixed-term employment contracts.

Many ostensibly non-commercial organisations in Ireland – schools, colleges, hospitals and others – are dependent on on-going state funding to finance posts, and it may be difficult to get authority to make a number of these positions permanent. As a result, many such employers have resorted to the use of repeated fixed-term or specific purpose working arrangements instead. However, well over a decade now since this legislation was put in place, it is clear that some employers in this country have still not got to grips with the second of the objectives set out above - the prevention of abuse arising from the successive use of fixed-term employment contracts – and the mechanisms put in place to achieve it.

Today's mail reviews two recent decisions of the Labour Court on appeal that may serve to illustrate this point. In the first of these cases, the respondent college issued the complainant with a specified purpose contract in order to temporarily replace a permanent employee on secondment. When this contract came to an end, the complainant was allowed to continue working without a written contract for six months, prior to being offered a further specified purpose to temporarily replace a different seconded employee. When this contract came to an end, he was dismissed.

In summary, the Court determined that the complainant had acquired permanent status and was no longer a fixed-term employee by the time the second specified purpose contract was issued. It is abundantly clear from this decision that employers must ensure that all fixed-term employees are covered by a written contract at all times which clearly sets out the objective condition – arriving at a specific date, completing a specific task or the occurrence of a specific event – that will terminate the contract.

In the second appeal, the respondent school neglected to adhere to specific written instructions governing the provision of fixed-term contracts issued to it by the Department of Education, when engaging the complainant on a series of one year contracts. It failed to put a number of contracts in writing and to properly notify the complainant in writing of the specific reasons for the renewal of contracts at the time they were being renewed.

The complainant’s claim that he was entitled to a contract of indefinite duration when the service under this series of contracts exceeded four years was successful and he was reinstated. In summary, the Court held that the respondent’s failure to provide the necessary documentation compromised any subsequent defence that its actions were objectively justified. Again, this decision emphasises the absolute necessity for employers to provide timely and comprehensive documentation.

These two cases are:

* Dublin Institute of Technology and Scott
* Board of Management St Joseph’s School for Deaf boys and Grehan


2. Dublin Institute of Technology and Scott (FTC/14/16, Determination No.FTD 1417, 6th October, 2014)

In this case the respondent employer appealed to the Court a decision of a Rights Commissioner (RC) that upheld the claim of the complainant employee and ordered that he be entitled to a contract of indefinite duration (i.e. permanency) and that he be reinstated and compensated for his loss of earnings since his dismissal took place.

The complainant began work with the respondent as a temporary clerical officer employed on a specified purpose contract to cover a staff member’s secondment in February 2007. This contract stated that when this acting post finishes, your contract will cease. Nonetheless, when the acting post ended around July 2008, he continued to be employed and to perform the duties assigned to him but no further contract was issued to him at that time.

In January 2009, a further specified purpose contract was offered to the complainant to cover a further secondment of a different staff member. Again this contract stated that when this staff member returns to their post, your contract will cease. The complainant worked under this contract until 5 June 2013 when he was informed that his employment with the Institute would cease on 7 July and it duly did.

The Court noted that it was accepted by both parties that the first contract ended around July 2008 and it concluded that the specific event terminating the contract had occurred at that point and the contract was fulfilled. It noted that it was also agreed that the complainant nonetheless continued to work for the respondent but that no further fixed term arrangement was put in place at this time. Thus, he was not at that point a fixed term employee – someone whose contract would be determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event – at all. Accordingly, it concluded that the complainant must have been employed on something other than a fixed term contract after July 2008.

The Court then observed that the definition of permanent employee in the 2003 Act means an employee who is not a fixed term employee and that it must therefore conclude that after July 2008, the complainant was a permanent employee of the respondent. It noted that, nonetheless, the complainant was offered a further specified purpose contract in January 2009 but it concluded that ‘nowhere does that contract purport to change or reduce the complainant’s status as a permanent employee within the meaning of the Act’. This, the Court suggested, was because the respondent was (mistakenly) operating on the assumption that the complainant continued to be a fixed employee between the two specified purpose contracts.

Finally, the Court felt that it had to consider a further question and that was the complainant’s standing to bring a complaint under the Act. If he was, as it had concluded, a permanent and not a fixed-term employee after July 2008, he might not have ‘locus standi’, i.e. the right to claim under the Act at all.

However, it decided that as the respondent had treated him as a fixed term employee at all times and had dismissed him in that context, it could not deprive him of permanency by treating him as a fixed term employee while simultaneously benefiting from a perceived loss of standing under the Act.

The Court therefore upheld the decision of the RC that the complainant be reinstated to the post he held before his employment was terminated and that he should not suffer any financial loss as a result of his loss of income in the intervening period. In addition, the Court took the view that the complainant ‘should receive a measure of compensation for the infringement of his rights under the Act’. Curiously, it did not put a figure on how much this compensation should entail.

Full Case Decision:
http://www.workplacerelations.ie/en/Cases/2014/October/FTD1417.html


3. Board of Management St Joseph’s School for Deaf Boys and Grehan (FTC/14/25, Determination No.FTD 1416, 2nd October, 2014)

In this case, it was the complainant employee who appealed to the Court a Rights Commissioner (RC) decision that he was not entitled to a contract of indefinite duration (or permanency) under the Act. The complainant also claimed that the respondent employer had failed to provide him with a written statement of the objective grounds justifying the renewal of each of his series of fixed-term contracts. The RC ruled that that this aspect of his claim was out of time and this decision was also appealed.

It was accepted by both parties that the complainant worked a total of five years under a series of one year fixed term contracts as follows:

1. 29/8/07 to 28/8/08
2. 1/9/08 to 31/8/09
3. 1/9/09 to 31/8/10
4. 1/9/10 to 31/8/11
5. 1/9/11 to 31/8/12


4. Failure to provide written statements

The respondent accepted that the complainant only received one written contract and that this was the first contract in the series of five. Thus, it was clear that he received no specific written statement of the objective grounds justifying the renewal of his fixed-term employment from 1/9/11 to 31/8/12 and the respondent’s failure to offer a contract of indefinite duration at that time, as required by Section 8 of the Act.

As this contract ended on the last day of August 2012 and his complaint was brought in January 2013, the Court was satisfied that the complaint was made within time. Complaints under this heading in respect of the remainder of the contracts were deemed to be statute-barred.

In its defence, the respondent contended that it discharged its obligations under Section 8 by virtue of the complainant’s signature of a ‘Primary Teacher Appointment’ form when the contract was renewed. The Court rejected this argument on the basis that it was satisfied that this form was used for payroll purposes and did not contain the necessary information to comply with Section 8.

It reiterated its own finding in the case of Galway City Council v Mackey (FT5/2006) that the requirements of the section were mandatory and did not allow any exceptions. The complainant was awarded €5,000 in compensation under this heading.


5. Right to a contract of indefinite duration

The complainant’s case under this heading was that as the fourth in his series of contracts was to end on 31/8/11, the aggregate duration of his fixed term employment, having begun on 29/8/07, would then exceed four years. Thus, this contract should have become a contract of indefinite duration under the terms of Section 9 (2) and (3) of the Act, which together provide that if the aggregate duration of a series of two or more contracts exceeds four years, the relevant contract shall be deemed to be one of indefinite duration, i.e. permanency.

Section 9 (4) does, however, allow an employer to argue that there are objective grounds justifying the renewal of the contract beyond the four year threshold so that a right to a contract of indefinite duration does not apply. The complainant, however, submitted that as he had not received a contract of employment setting out any such objective grounds, the Court was obliged to find that no such grounds existed.

The respondent submitted in evidence to the Court a letter sent to it by the Department of Education in 19 July 2010, some six weeks before the renewal of the complainant’s fourth contract. This letter approved the appointment of a fully qualified teacher to replace a named teacher on secondment. It stated that the replacement’s contract would cease upon the seconded teacher’s return and instructed the Board of Management to explain this in the contract.

It was accepted that neither a copy this letter nor a written contract were ever provide to the complainant. It was also clear that the Department issued a Circular (Circular 0055/2008) to school authorities outlining the requirements of the fixed-term legislation, including a clause which states that ‘a teacher engaged on a fixed term contract shall receive written terms of employment’ and ‘each statement of terms of employment shall contain the objective conditions determining the fixed term contract’.

The complainant’s evidence was that he was interviewed on 6 August 2010 and advised by letter of 11 August 2010 that he was being offered a further fixed-term position for the 2010/2011 academic year but no objective grounds were ever provided.

On the last day of the school year in June 2011, he was offered a further year’s employment for the 2011/2012 academic year. Again, no written contract or objective grounds were provided but he was informed verbally at a later stage that this contract was to cover for a permanent teacher on secondment. That teacher retired in February 2012 and although the complainant continued to work until the end of the school year, his employment was then terminated as the retired teacher’s post was ‘suppressed’ (i.e. not being replaced).

The respondent stated that the complainant was a very talented and valued teacher who had worked on a series of temporary contracts to replace staff on special leave, adoptive leave, career break and secondment. It maintained that both the 2010/2011 and 2011/2012 contracts were for the purpose of replacing a named teacher on secondment and were thus objectively justified in that they met a legitimate objective of the respondent. It relied upon the Primary Teacher Appointment Forms as evidence.

The complainant’s representative, however, suggested that the 2010/2011 form referred to secondment but never specified the teacher being replaced. Neither did the 2011/2012 form when the complainant signed it and it was argued that this name was inserted later on.

It was submitted that the respondent retrospectively sought to justify the failure to offer a contract of indefinite duration on the basis that the post was being suppressed by the Department. It was argued that European case law suggested that any derogation from the right to a contract of indefinite duration should be strictly applied and that the complainant’s disability as a deaf person, together with the lack of transparency concerning the renewal of contracts, meant that the test for objective justification had not been met.

The Court noted that, in effect, it was being asked by the respondent not only to accept that the Primary Teacher Appointment Forms constituted a written contract but also to insert into that (non-existent) contract a clause which had not been identified to the complainant at the time. It emphasised that one of the purposes of Section 8 of the Act is for the employer to definitively commit itself at the time the contract is renewed to stating the specific grounds that it will rely upon as an objective justification where the four year threshold is exceeded. Where this is not done, the Court may draw any inference it considers just.

The Court therefore found that the complainant was entitled to a contract of indefinite duration in that there were no objective grounds justifying the renewal of the contract on 1st September 2010 on a fixed-term basis. He was order to be reinstated from that date and paid any arrears of remuneration that may have accrued from the date of his dismissal to the date that his reinstatement was to take effect, taking into account periods subsequent to his dismissal when he filled in for absent colleagues.

Full case decision:
http://www.workplacerelations.ie/en/Cases/2014/October/FTD1416.html