An “Expectation” of returning to work does not amount to a legal “entitlement”. ⚓︎

So found the High Court in Coyle v The Labour Court and Blackrock College 2020 IEHC 111 when the Court overturned a decision of the Labour Court in a matter relating to a fixed term employment contact in order that it rehear the case.

Background ⚓︎

Miss Coyle (the “Appellant”) worked for Blackrock College (the “College”) in Dublin since 1984 as an art teacher.  The Appellant was employed through the 34 years in question on a series of fixed term contracts which were renewed at the start of each academic year and continued for the duration of that year for a period of nine months.  For the remaining three months – June, July and August, the Appellant was not paid by the school and had to sign on for social welfare payments.  Following a consultation with her solicitor in 2016, the Appellant sought redress pursuant to the Protection of Employees (Fixed Term Work) Act, 2003 (the “2003 Act”) and asked for a contract of indefinite duration.

The College resisted the application by maintaining that she was a permanent employee notwithstanding the fact that she was not paid during the period of June, July and August (i.e. the school summer holidays).  The College stated that their position was that she was on a period of “lay-off” during these months.

Workplace Relations Commission Finding ⚓︎

The Appellant’s claim was initially heard by an adjudication officer of the Workplace Relations Commission who determined that she was a fixed term employee for the purposes of the 2003 Act.  They also found that she had been treated in a less favourable manner than other teachers employed by the College and made an Order placing her on an annual salary, to be paid monthly along with €5,000 compensation.  The award of €5,000 was because the College was found to be in breach of s.8 of the Act of 2003 in that it had failed to inform the Appellant in writing of objective reasons governing the renewal of her fixed term contract and the reasons why she was not being offered a contract of indefinite duration.

The Determination of the Labour Court  ⚓︎

The College appealed to the Labour Court who found that a preliminary hearing should take place to establish whether the Appellant was or was not a “fixed term employee” for the purposes of the 2003 Act.

For the purposes of the Act of 2003 a “fixed term employee” means “a person having a contract of employment entered into directly with an employer at the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date….”.  In its decision of 5 June 2018, the Labour Court made a finding that at all times the Appellant was a permanent employee of the College, did not come within the definition of a fixed term employee and so was not entitled to rely on the provisions of the Act of 2003.

In coming to that decision the Labour Court made findings as follows:

1. “The Complainant (the Appellant) was initially employed on a series of fixed term contracts of employment until she was employed on a permanent contract of employment in 2004/2005;
   
   
2. She was subsequently employed on a further fixed term contract of employment in 2005/2006.  Thereafter she received no further written contracts of employment of any type;
   
   
3. The Court attaches no significance to the arrangement that there was in place whereby the Complainant signed on for unemployment benefits each summer.  There are many permanent seasonal contracts of employment in place in the economy.  The fact that they are seasonal does not detract from the fact that they are permanent contracts of employment;
   
   
4. The Court finds that the Complainant (the Appellant) is employed on a permanent annual 39 week contract of employment.  She is laid off in June of each year and resumes work in September…”.

The Labour Court decided that the Appellant was not a fixed term worker within the meaning of the Act and thus could not maintain a complaint or receive redress under the Act.  The appeal was allowed, and the decision of the adjudication officer was set aside.

This was appealed on a point of law to the High Court.

In the course of the proceedings both before the Labour Court and before the High Court the College placed much reliance on the terms of a letter, dated 2 November 2017, written by the solicitors instructed by the College during the hearing before the adjudication officer.  This letter states, inter alia, the following:- “…our client acknowledges that your client is not employed by it during the summer months.  It regards her as a permanent employee, however, as she has always had an expectation of returning to the school year after the summer holidays and, in fact, has always returned to the school…”.

The Notice of Appeal listed some 14 grounds of appeal, but the judgment refers to what the Judge viewed the central grounds as follows:

1. The Respondent erred in law in determining that the Appellant herein was a permanent employee and was not a fixed term worker pursuant to the provisions of the Act of 2003;
   
   
2. The Respondent erred in law in failing to determine the Applicant’s employment status on the basis of the actual contractual documents and the agreement that existed between the parties, which determined the Applicant’s employment status;
   
   
3. The Respondent erred in law in incorrectly finding that the Appellant had been placed on lay-off during the months of June, July and August for the period of this claim, when it was the case that the Appellant was signing on for Jobseekers Allowance with no guarantee of being re-employed when the school holidays came to an end; and
   
   
4. The Respondent erred in law in refusing to allow the Appellant to give direct evidence in the course of the Labour Court hearing in relation to the nature of her employment relationship with the College and, specifically in relation to the College’s involvement in her application for social welfare and Jobseekers Allowance at the conclusion of each academic year during the period of the claim.

The High Court found that in reaching its decision, the Labour Court made a finding of fact that the Appellant’s contract of employment did not end at the end of each academic year.  On this, it would follow that there was a finding by the Labour Court that the Appellant had a legal entitlement to continue her employment with the College at the beginning of each school year.  In order to make such a finding the Labour Court would have to have been satisfied that during the summer months, June, July and August, each year that the Appellant continued to be employed under contract.  The High Court found that this necessitated a finding that there was “mutuality of obligation” between the Appellant and the College during the summer months.

In the course of the proceedings both before the Labour Court and before the High Court the College placed much reliance on the terms of a letter, dated 2 November 2017, written by the solicitors instructed by the College during the hearing before the adjudication officer.  This letter states, inter alia, the following:- “…our client acknowledges that your client is not employed by it during the summer months.  It regards her as a permanent employee, however, as she has always had an expectation of returning to the school year after the summer holidays and, in fact, has always returned to the school…”.

The Court found that in reaching its findings that the Appellant was employed on a permanent contract, the Labour Court had no regard to or did not appear to have any regard to this letter from the College’s solicitor and in particular that although acknowledging that the Appellant was a permanent employee, it referred to the Appellant having an “expectation of returning to the school each year after the summer holidays…”.

The Court found that an “expectation” of returning to work falls short of a legal entitlement, as would be the case for a permanent employee.  Judge McMenamin stated “I cannot see how the Respondent could have made the finding of fact it did in light of this clear admission in open correspondence from the solicitors to the College”.  From this, it followed that the finding of primary fact, that the Appellant was a permanent employee of the College, was one “which no reasonable decision-making body could make”. The Appeal was therefore allowed, and the Court remitted the matter back to the Labour Court for re-hearing.

It is interesting to note that there was also a dispute on the fact of whether or not the teacher was denied an opportunity to give evidence in the Labour Court. The Court noted that the conflict on the Affidavits on a fundamental point could only be resolved by either a transcript of the hearing before the Respondent, which was not available or by cross examination of the Deponents. The judgment clearly states that if the Appellant was refused an opportunity to give evidence, this would amount to a departure from fair procedures and legally undermine the determination of the Respondent.

This case serves as a sharp reminder to employers to be mindful of the legal basis upon which they are engaging employees and to properly categorise them depending on the facts in each case. The High Court was clear that the creation of an “expectation” within an employment relationship instead of a legal entitlement will fall short when determining the legal basis of employment. The court also went back to the basic principles of mutuality of obligation in assessing the relationship between the parties.

A Note of Caution for Practitioners ⚓︎

The judgment further serves to highlight to legal practitioners the potential consequences of using inaccurate wording in open correspondence and the importance of being aware of this at all times.