Case Number: FTD185. Labour Court

• Judgment Date: 01 July 2018
• Year: 2018
• Docket Number: FTD185
• Court: Labour Court (Ireland)

FULL RECOMMENDATION FTC/17/9 DETERMINATIONNO.FTD185 ADJ-00001790 CA-00002488-001 ; SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 ; PARTIES : DONEGAL COUNTY COUNCIL; (REPRESENTED BY LOCAL GOVERNMENT MANAGEMENT AGENCY); - AND -; JAMES SHERIDAN; (REPRESENTED BY PATRICIA MC CALLUM, B.L., INSTRUCTED BY MCGINLEY & COMPANY, SOLICITORS) ; DIVISION : Chairman: Ms Jenkinson; Employer Member: Mr Murphy; Worker Member: Mr Hall

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no: ADJ-00001790.


BACKGROUND:

2. The Employer appealed the Adjudication Officer’s Decision to the Labour Court on the 6 October 2017. A Labour Court hearing took place on the 27 June 2017. The following is the Labour Court's Determination:-

DETERMINATION:

The appeal before the Court is on behalf of Donegal County Council against a Decision of an Adjudication Officer ADJ-00001790 in a claim by Mr James Sheridan under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Act was enacted to implement in domestic law Directive No 1999/70/EC of 28th June 1999 concerning the Framework Agreement on Fixed Term Work concluded by ETUC, UNIC and CEEP. (hereinafter referred to as “the Directive”).

For ease of reference the parties are given the same designations as they had at first instance. Hence Mr Sheridan will be referred to as “the Complainant” and Donegal County Council will be referred to as “the Respondent”.

The Complainant referred his claim under the Act to the Workplace Relations Commission on 4th February 2016. The hearing before the Adjudication Officer was held on 7th November 2016 and her Decision was issued on 30th August 2017. The Respondent’s appeal was received by the Court on 6th October 2017. The appeal came before the Court on 27th June 2018.

The substance of the Complainant’s claim is that he became entitled to a contract of indefinite duration under the provisions of Section 9 of the Act and the Respondent had failed to abide by the Act. The Complainant alleged that having completed more than four years’ continuous fixed-term employment on a number of fixed-term contracts, the Respondent had contravened Section 9(2) of the Act. Therefore, he claimed that by operation of Section 9(3) of the Act, his fixed-term contract was transmuted into one of indefinite duration by operation of law on 13th December 2015.

The Adjudication Officer found that his claim was well-founded and held,inter alia, that the Complainant“had continuous service and became entitled to a CID by operation of law from the 13th Dec. 2015, I find that the temporary contracts issued thereafter were in breach of the Act. I require the respondent to pay the Complainant €5,000 compensation for this breach and require the respondent to issue the Complainant with a CID with effect from 13th Dec. 2015.”

The Adjudication Officer proceeded to order the following: -

• 
  “I require that the CID issued be consistent with the pattern of hours worked for the respondent in the 12 months preceding the date upon which he became entitled to the said contract i.e. 13th December 2015."

Background

The Complainant was employed by the Respondent on a number of fixed-term contracts as a seasonal worker to augment the Respondent’s workforce. His first contract commenced on 23rd August 2004. Prior to referring his claim under the Act, the Complainant was employed on various fixed-term contracts in the years 2004, 2005, 2006, 2007, 2008, 2011, 2014 and 2015 (full details of the duration of each contract were furnished to the Court).

On 11th September 2017 (post the date of claim) the Complainant was successful in a competition for a permanent position with the Respondent as a General Operative on a wholetime basis and he commenced that position on 11th September 2017.


Summary of the Complainant’s Case

Ms Patricia McCallum, B.L., instructed by Mc Ginley & Co., Solicitors, on behalf of the Complainant submitted that the Complainant had in excess of four years of employment on fixed-term contracts with the Respondent and was consequently entitled to a contract of indefinite duration in accordance with Section 9(3) of the Act.

While the Complainant had worked for the Respondent on fixed-term contracts since 2004, Ms McCallum relied upon the premise that since 12th December 2011 the Complainant had been employed on five continuous fixed-term contracts. The dates of those contracts are as follows:-

• �12th December 2011 to 19th March 2012;
  �3rd March 2014 to 1st September 2014;
  �1st September 2014 to 10th October 2014;
  �24th November 2014 to 29th May 2015;
  �27th July 2015 to 29th January 2016;

Ms McCallum said that at all times during the Complainant's employment with the Respondent he was placed on various panels in respect of different areas in the past five years and he was invariably placed high on these panels due to his length of service, experience and relevant qualifications.

The Complainant was on a panel established in 2007 when he was employed in December 2011. In May 2013, the Complainant attended an interview for a county-wide panel and was ranked No. 5. In April 2014 the Complainant was interviewed again for a different county-wide panel and was ranked No.1. Ms McCallum said that during the “Moratorium on Recruitment and Promotions in the Public SerPublic Service(hereinafter referred to as “the moratorium”) the Complainant retained his ranking on the various panels.

Ms McCallum addressed the issue of whether or not there was a break in the Complainant’s continuity of employment in 2013. She also disputed the Respondent’s contention that his reckonable service only commenced on 3rd March 2014 thereby meaning that he did not have an aggregate of four years’ employment with the Respondent.

Ms McCallum disputed the Respondent’s reliance on Labour Court RecommendationNorth Tipperary County Council v SIPTU LCR19685 where the Court in a Recommendation under the Industrial Relations Act recommended that: -

• "Workers who have accrued an aggregate of48months casual/seasonal employment, where any two periods were not broken by a period in excess of 26weeks, should be entitled to placement on the panel for an indefinite duration up to normal retirement age.”

The Respondent relied on the above quote to argue that the Complainant did not meet the"test"as set out above, that there was a break in his employment in excess of 26 weeks and that he thereby did not have"continuous employment".Ms McCallum contended that this reliance was misconceived as theNorth Tipperary County Councilcase related to the issue of panels and in any event, it was not under the 2003 Act. Furthermore, she said that the case was not a precedent for the proposition that a break in excess of 26 weeks is a break for the purpose of interrupting continuous employment.
She stated that the Act itself sets out the test in relation to deciding whether or not there has been continuous employment. In particular Section 9(5) states: -

• "The First Schedule to the Minimum Notice and Terms of Employment Acts1973to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous."

Ms McCallum said that the ambit of the above statutory provision and its meaning were discussed at length in the Court decision ofBeary v Revenue Commissioners FTD112.In particular, having set out fully the provisions of the First Schedule of the Minimum Notice and Terms of Employment Acts 1973 to 2015, the Court analysed the meaning of"continuous"and stated:-

• "The fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless broken by dismissal or resignation. Hence successive periods of employment, which are not continuous in the literal sense, because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the words "continuous" as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning. As sodefined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive."
  
  “………... Hence, the net question arising is whether the breaks in service are to be regard as lay-off or as dismissal followed by re-employment under a new contract. This is essentially a question of fact and degree. It turns on whether, at the time each assignment came to an end, it was reasonable in the circumstances then prevailing to believe that the cessation would probably not be permanent. Obviously, the standard of reasonableness does not require the parties to know with any degree of certainty that the employment will resume; it merely requires that they have reason to believe that it will probably resume."

Ms McCallum also submitted that the Court in theBearycaseheld that a break in excess of 26 weeks did not break continuity of employment in circumstances: -

• "It is clear that while such service is not computable, an absence on lay-off in excess of 26 weeks does not break continuity of service. This was made clear by O'Sullivan J in An Post vMcNeill [1998] ELR 19."

She made the point that the correctness of the rationale and decision of the Court inBearyhad since been endorsed by the High Court in the case ofHSE v Sallam [2014] IEHC298 wherein Baker J. stated:-

• " In my view, the Labour Court did not fall into error in expressing the view that any conflict of meaning between the words "continuous" and "successive" could be resolved by "ascribing a liberal and expansive meaning to the term "layoff"" and it followed the decisions referred to in its judgment in Department of Foreign Affairs v. AGroup of Workers [2007] 18 E.L.R. 332and William Beary v. Revenue Commissioners [2011]22E.L.R. 137,that a "liberal and expansive meaning" had to be given to the term layoff in order to interpret that concept in the context of the Framework Agreement and the Act of 2003.In An Post v. McNeill [1998]9E.L.R. 19,the High...