Board of Management of St Josephs School for Deaf Boys v Grehan

• Jurisdiction: Ireland
• Judge: Mr. Justice Noonan
• Judgment Date: 06 October 2015
• Neutral Citation: [2015] IEHC 605
• Court: High Court
• Date: 06 October 2015

[2015] IEHC 605

THE HIGH COURT

[No. MCA 519/2014]

Board of Management of St Josephs School for Deaf Boys v Grehan

No Further Redaction Needed

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION (15)(6) OF THE PROTECTION OF EMPLOYEES (FIXED TERM WORK) ACT 2003

BETWEEN

BOARD OF MANAGEMENT OF ST. JOSEPH's SCHOOL FOR DEAF BOYS

APPELLANT

AND

PHILLIP GREHAN

RESPONDENT

Employment – S. 15 (6) of the Protection of Employees (Fixed Term Work) Act 2003 – Appeal against determination of Labour Court – Purposive interpretation

Facts: The appellant sought an order for setting aside the determination of the Labour Court that the appellant breached s. 9 of the Protection of Employees (Fixed Term Work) Act 2003 and that the respondent was entitled to a contract of indefinite duration.

Mr. Justice Noonan granted an order for setting aside the impugned determination of the Labour Court and remitted the matter for fresh consideration in the light of the principles discussed by the Court. The Court held that the purposive interpretation of an Act was permissible where there existed some obscurity and ambiguity that required resolution otherwise it would amount to an amendment of a statute which was impermissible. The Court held that s. 8 (4) of the Act of 2003 empowers a Rights Commissioner or the Labour Court on appeal to draw inference from the employer's failure to provide a written statement but it could not be viewed as purely subjective and unfettered discretion. The Court found that the Labour Court deviated in so far it observed that the appellant failed to furnish a written statement to the respondent of the objective condition determining the contract. The Court held that the Labour Court wrongly turned the said inference into an inevitable conclusion without inquiring whether the objective condition existed at the date of the renewal of the contract.

1 JUDGMENT of Mr. Justice Noonan delivered the 6th day of October, 2015.

Introduction

2 1. This matter comes before the court by way of appeal on a point of law from a determination of the Labour Court brought by the appellant ("The School") pursuant to s. 15(6) of the Protection of Employees (Fixed-Term Work) Act 2003 ("the Act") directing that the part of the Labour Court's determination of the 2 ^nd October, 2014 which held that the School breached s. 9 of the Act and that the respondent ("Mr. Grehan") was thereby entitled to a contract of indefinite duration be set aside.

Facts

3 2. Mr. Grehan is a primary school deaf teacher who attained a BA in 1998 and MA in deaf education in 2001. He was employed by the School as a teacher for a number of years. His employment commenced in 2006 when he was employed for a period of some 120 days during the academic year. In June, 2007 he was interviewed for a temporary position. He was successful and was offered a twelve month contract from the 29 ^th August, 2007. The contract was in written form and contained a clause which stated that the objective ground for Mr. Grehan's employment was the "absence of a permanent teacher on leave of absence". At the end of the school year in June, 2008, Mr. Grehan was offered a further year's employment covering for a teacher who was taking adoptive leave. On this occasion, he was giving no written contract. In June, 2009, Mr. Grehan was again offered a further year's employment this time covering for a teacher who was taking a one year career break. Again there no was no written contract.

4 3. In July, 2010, the School advertised for two temporary teaching positions. Mr. Grehan responded to this advertisement and was interviewed on the 6 ^th August, 2010. The evidence of Mr. Grehan and his wife before the Labour Court was that later the same afternoon, he received a text from the School offering him a temporary position for the coming year which he accepted. The School wrote to Mr. Grehan on the 11 ^th August, 2010 in the following terms:

"The Board of Management is happy to offer you the position of temporary teacher in St. Joseph's for the school year 2010-2011. In case you did not send the form Liz emailed you, please fill in the enclosed form and return it to the school as soon as possible; otherwise ignore the form."

5 4. Mr. Grehan's position throughout has been that he believed he had been successful in the application for the post for which he had interviewed and was never given to understand otherwise by the School. The School however claimed that Mr. Grehan had not in fact been successful at interview being ranked only third of the interviewees for the two posts and the two interviewees who ranked higher were offered and accepted the jobs.

6 5. In that regard, the School relied on a letter from the Department of Education and Science to the school dated the 19 ^th July, 2010 which said:

"Dear Principal/Chairperson, I refer to the decision by your board to approve the secondment of Ms. Bernie Kiely to the PDST with effect from 1 ^st September, 2010 in accordance with the terms of primary Circular 11/02."

7 The Department has agreed to fund the temporary appointed of a fully qualified teacher to replace the seconded teacher. This funding of the replacement teachers contract will cease on termination of the secondment of Ms. Kiely.

8 The Board of Management must include in the contract of the replacement teacher a statement to the effect that he/she is being appointed to replace a teacher on secondment. The Department will not be liable for any costs arising from errors or omissions by the Board in this regard.

9 With regards to posts of responsibility, your attention is drawn to Circular 0022/2009.

10 Yours sincerely etc."

11 6. It was the School's case that Mr. Grehan was in fact appointed to cover the temporary absence from the school of Ms. Kiely referred to in the Department's letter. Here again, no written contract was furnished to Mr. Grehan. However, he signed a document entitled "Primary Teacher appointment form 2010/2011 School Year" on the 17 ^th August, 2010. This is a pro forma document with printed headings and tick boxes. Under the heading "origin of the post" the word "secondment" is written in. However, under the heading "name of the teacher(s) being replaced" the blank space is left empty.

12 7. At the end of the school year in Summer, 2011, Mr. Grehan's evidence was that he was informed by the School principal that she could offer him another years' work. He said that he was not told that he would be replacing anyone and in particular Ms. Kiely's name was not mentioned. Again no written contract was forthcoming but Mr. Grehan signed a document entitled "Notification of Primary Teacher Appointment Form (PTAF 1)". As in the previous year's form, under the heading "origin of the post" the word "secondment" is written in. This time however, after the heading "name of teacher being replaced (if applicable)" the words "Bernadette Kiely" are written in. This form appears to have been signed by Mr. Grehan on the 4 ^th July, 2011 and by the chairperson of the Board of Management of the school on the 17 ^th August, 2011. Mr. Grehan's evidence to the Labour Court was that when he signed the form, Ms. Kiely's name was not on it.

13 8. On the 20 ^th August, 2012, Mr. Grehan met with the School principal who told him that there would be no job for him in the next school year. Accordingly, his employment terminated on the 31 ^st August, 2012. Mr. Grehan's union, the INTO, took up his case and wrote to the School in essence claiming that Mr. Grehan was entitled under the terms of the Act to a contract of indefinite duration. This was responded to by the School by letter of the 4 ^th October, 2012. In this letter, the School stated that Mr. Grehan had not been successful at interview in August, 2010 for the temporary post that had been advertised. The school claimed that Mr. Grehan had been engaged for the two school years from September, 2010 specifically for the purpose of covering Ms. Kiely's absence on secondment. In fact, Ms. Kiely retired in February, 2012 to take advantage of certain pension arrangements. Mr. Grehan's case throughout has been that this letter was the first indication he received from the school that he had not in fact been successful in the competition over two years earlier.

Relevant Provisions of The Act

14 9. The following sections of the Act are relevant to the issues that arise in this case:

15 2 "7-(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose...

16 3 8-(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is-

17 (a) arriving at a specific date,

18 (b) completing a specific task, or

19 (c) the occurrence of a specific event.

20 (2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

21 (3) A written statement under subsection ( 2) or (2) is admissible as evidence in any proceedings under this Act.

22 (4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act-

23 (a) that an...