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