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

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.

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