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Latest in Employment Law>Case Law>Carlow County Council v McSweeney [2012]
Carlow County Council v McSweeney [2012]
Published on: 09/05/2012
Issues Covered: Dismissal Contracts of Employment
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Background

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.

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Disclaimer The information in this article is provided as part of Legal Island's Employment Law Hub. We regret we are not able to respond to requests for specific legal or HR queries and recommend that professional advice is obtained before relying on information supplied anywhere within this article. This article is correct at 09/05/2012
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