Introduction
The recently commenced Workplace Relations Act 2015 has finally removed any remaining rights of full appeal into the civil courts under individual protective employment legislation.
For example, the right of an employee or an employer to appeal an unfair dismissal finding to the Circuit Court is now gone for new cases brought after October 1st 2015. Instead, an expanded Labour Court will act as the forum for a full appeal from all decisions of Workplace Adjudication Officers, as provided by Section 44 (1) – (3) of the Act. Appeals on a point of law only will lie to the High Court, with Section 46 of the Act allowing either party to appeal on a point of law and Section 44 (6) allowing the Labour Court itself to refer a question of law to the High Court for clarification.
This has already been the system that has operated under a number of the more recent pieces of employment legislation for some time. One of the Acts that is most frequently the subject of such appeals on a point of law is the Protection of Employees (Fixed Term Work) Act 2003, with the High Court having had to clarify a variety of legal issues in the past decade.
Today’s email reviews one of the latest decisions of the Court in this regard. As is frequently the case under this Act, it concerned the question of whether the relevant employee was entitled to a contract of indefinite duration (CID), having exceeded the notional limit of four years’ service under a series of two or more fixed term arrangements that an employer could offer an employee, or whether the employer had an ‘objective justification’ for offering a further fixed term arrangement beyond this threshold.
In particular, this decision focused squarely on the extent of the inference that the Labour Court is entitled to draw under s.8 (4) of the Act where an employer fails to state in writing the ‘objective grounds’ justifying the renewal of a fixed-term contract arrangement in accordance with s.8 (2). In this instance, the Labour Court had decided that because the employer in question had not stated the objective grounds, it automatically meant that the justification it subsequently relies upon are not the operative (or real) grounds, unless the contrary is shown.
In summary, the High Court determined that this was an incorrect interpretation of the Act and reiterated that a failure by an employer to comply with the requirements of s.8 does not of itself mean that no objective justification for a further fixed-term arrangement exists. Failure to state objective grounds is nonetheless an important factor that may be taken into account in coming to a determination as to whether such grounds did exist at the date of renewal. The High Court remitted the matter back to the Labour Court to decide afresh in light of the guidance it had provided.
Board of Management of St Joseph’s School for Deaf Boys v Grehan [2015] IEHC 605, 10/06/2015
Facts
The respondent employee in this case worked under a succession of fixed term arrangements with the applicant school. His employment began on what appeared to be a casual basis when he worked a total of 120 days in the 2006 academic year. In 2007, he was offered a 12 month contract in writing the purpose of which was stated to be ‘the absence of a permanent teacher on leave’.
In June 2008, at the end of the school year, he was offered a further 12 months covering a different teacher who was taking adoptive leave. This contract was not put in writing. In June 2009, he was offered a further year’s employment to cover for an employee who was taking a year’s career break but, again, this contract was not in writing.
In July 2010, the respondent applied for one of two posts advertised by the applicant as temporary teaching positions and was interviewed on 6 August. His evidence and that of his wife before the Labour Court was that he was offered a temporary position by text the same afternoon. The school wrote to him on 11 August in terms that it ‘was happy to offer you the position of temporary teacher for the academic year 2010/2011’. A form was enclosed for him to sign. He therefore believed and continued to believe that he had been successful in obtaining one of the temporary positions advertised.
The applicant’s position, however, was that Mr Grehan had placed third in ranking of interviewees and that he had, in fact, been offered a further contract to replace a named teacher temporarily absent from the school instead. In support of this position, the school referred to a letter from the Department of Education and Science of 19 July 2010 sanctioning temporary cover of that named teacher until her secondment came to an end.
However, once again, no written contract was provided to the respondent. He did, however, sign the form referred to above - a pro forma ‘Primary Teacher Appointment Form 2010/2011’ – on 17 August 2010 and this stated that the appointment would begin on 1 September. On this form under the heading ‘origin of the post’ the word secondment was written in, but the heading ‘name of teacher being replaced’ was left blank.
In summer 2011, the respondent’s evidence was that he was offered yet another year’s work but he was not informed that he was replacing anyone and the seconded teacher’s name was never mentioned. However, he did sign another ‘Primary Teacher Appointment Form’ on 4 July 2011 which again stated the origin of the post to be secondment. This time the ‘name of teacher being replaced’ heading did contain the seconded teacher’s name. However, the respondent’s evidence was that the name was not on the form when he signed it. The form was only signed by the chairperson of the Board of Management on 17 August, five weeks later.
On 20 August, 2012 following this further year’s employment, the respondent was informed by the School Principal that there was no more work for him. His trade union (the INTO) then wrote on his behalf to the school claiming that he was entitled to a contract of indefinite duration (CID), given his length of service under a series of fixed term arrangements. The school responded stating that he had not been successful at interview for a temporary post in August 2010 and had been specifically engaged for the last two years for the purpose of replacing the named teacher on secondment. The respondent’s position was this was the first time he had been made aware of this.
His claim under the Act before a Rights Commissioner (RC) was unsuccessful with the RC holding that he was not entitled to a CID, as there were objective grounds justifying the use of further fixed term arrangements beyond the four year threshold in the relevant school years. He appealed this finding to the Labour Court who upheld the appeal.
In summary, it found that the school had failed to provide him with a statement in writing under S.8 (2) of the Act of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration in his 1st September 2010 contract.
It further held that this failure entitled it to draw an inference under the terms of s.8 (4) that the grounds that the school had subsequently relied upon – the replacement of the named seconded teacher – were not the operative grounds for its decision and therefore did not amount to an objective justification for refusing a CID.
It therefore found that as the 1st September 2010 contract purported to extend his total employment under a series of fixed term contracts beyond four years, it entitled him to a CID under the terms of s.9(4) of the Act. The school in turn appealed this decision to the High Court on a point of law.
High Court Findings
The High Court noted that the Labour Court’s finding in this case in terms of the inference it felt entitled to draw under s.8 (4) replicated precisely the wording it had applied in its previous decision in the case of Khan v HSE North Eastern Region [2006] ELR 313 – ‘that where an employer fails to provide a fixed term employee with a statement in writing, in accordance with s.8(2), it is apt to infer, in accordance with s.8(4) of the Act that the grounds subsequently relied upon were not the operative for the impugned decision and it would be for the employer to prove the contrary’.
Counsel for the applicant school, however, submitted that the ‘purposive approach’ adopted by the Labour Court in Khan had been disapproved in the subsequent High Court decisions of HSE v Umar [2011] ELR 229 and HSE v Sallam [2014] IEHC 294. In brief, a purposive approach involves interpreting the intention of a provision over and above what it literally allows for. He argued that the evidence in this case established the existence of objective grounds justifying the renewal of the Mr Grehan’s contract in both 2010 and 2011 and that the Labour Court has failed to engage with the facts. Instead it had simply relied on an inference under s.8 (4) which could not arise in the absence of a consideration of those facts.
Counsel for the respondent employee submitted that the High Court’s jurisdiction on appeal was confined to points of law only and that it could not overturn findings of fact made by the Labour Court. He argued that European Court of Justice (CJEU) case law emphasised that any derogation from the rights set out in the fixed term work directive (giving rise to the 2003 Act in Ireland) such as the right to a CID must be strictly construed. He further argued that the s.8 (4) inference was not the sole basis for the Labour Court’s decision and that there was a wealth of other evidence that supported it.
In arriving at the Court’s decision, Noonan.J reviewed the Act, the legal arguments and the case law. He decided that the High Court’s decision in the Umar case was not strictly relevant to this case as that decision had corrected the Labour Court’s purposive interpretation of s.9 rather than s.8 of the Act.
However, he felt that the decision in Sallam was directly relevant. In Sallam, a hospital consultant was originally engaged with the specific purpose of replacing a permanent consultant on leave. When that permanent consultant retired, Dr Sallam was offered a further contract to remain in the post until it was filled by open competition. The Labour Court found that the HSE’s failure to inform him in writing that he was being re-engaged pending the open competition enabled it to draw an inference under s.8 that this was not the reason the HSE had contemplated at the time the second contract was offered.
Baker.J stated that this was a finding of fact by the Labour Court with which she could not interfere, but as a matter of law, a failure by an employer to comply with the requirements of s.8 does not of itself mean that no objective justification for a further fixed-term arrangement exists. Critically, she held that ‘the inference may not be drawn as an inevitable conclusion form the failure to furnish notice under s.8, but a failure to provide notice is one factor that may be taken into account in coming to a determination as to whether the objective condition did, as a matter of fact, exist at the date of renewal’.
Noonan.J agreed with this view. He found to be ‘plainly wrong’ the Labour Court’s presumption that where an employer fails to furnish to the employee in writing with a statement of the objective condition determining the fixed-term contract, the grounds subsequently relied upon are not in fact the operative grounds for the creation of the contract.
However, he also found that ‘had the Labour Court applied s.8 (4) in the correct manner, it may well have come to the conclusion that it was appropriate to infer that the alleged objective condition underlying the renewal of Mr Grehan’s contract in 2010 was not in fact the true justification for such renewal’.
He concluded by adding that it seemed to him that there might be evidence justifying it in arriving at such a conclusion. His ultimate decision then was to set the determination aside but to remit the case back to the Labour Court to consider afresh in light of the clarification of the law that the High Court had provided.
Full case decision:
http://www.bailii.org/ie/cases/IEHC/2015/H605.html
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