Maurice Power v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Garrett Simons
• Judgment Date: 15 June 2021
• Neutral Citation: [2021] IEHC 346
• Docket Number: 2020 No. 195 MCA
• Year: 2021
• Court: High Court

In the Matter of an Appeal Pursuant to Section 46 of the Workplace Relations Act 2015

And in the Matter of the Protection of Employees (Fixed-Term Work) Act 2003

Between

Maurice Power

Appellant

and

Health Service Executive

Respondent

[2021] IEHC 346

2020 No. 195 MCA

THE HIGH COURT

Appearances

Oisín Quinn, SC and Ray Ryan for the appellant/employee instructed by MacSweeney & Company

Marguerite Bolger, SC and Padraic Lyons for the respondent/employer instructed by Byrne Wallace LLP

JUDGMENT of Mr. Justice Garrett Simons delivered on 15 June 2021

INTRODUCTION

1 This judgment concerns the scope of the Protection of Employees (Fixed-Term Work) Act 2003. One of the objectives of the Act is to prevent abuse arising from the use of successive fixed-term contracts of employment. The legislation provides that a person who has been employed, without objective justification, on successive fixed-term contracts with an aggregate duration of in excess of four years shall be deemed to be employed under a contract of indefinite duration. The issue for determination in this judgment is whether an existing employee of an organisation, who fulfils a more senior role within the organisation on a temporary basis, is excluded from the benefit of the legislation.

2 The issue arises in the following way. An existing employee of the Health Service Executive (“ the Employer”) had been appointed to a more senior post as an interim measure, pending the post being filled on a permanent basis following a formal recruitment process. In the event, this interim measure remained in place for more than four years. Were the legislation to be applicable, the Employee would, in principle, be entitled to assert a right to remain in the more senior post pursuant to a contract of indefinite duration. It would be open to the Employer to resist this asserted right by establishing that there were objective grounds justifying the use of fixed-term contracts for an aggregate duration in excess of four years.

3 The Employer submits that the legislation is never applicable in the case of an existing employee, who fulfils a more senior role on a temporary basis, precisely because such an employee already has the benefit of permanent employment within the organisation. Such an existing employee has a contractual entitlement, on the conclusion of the temporary appointment, to revert to their original permanent position on the terms and conditions of employment applicable to that position.

4 In response, the Employee submits that the objective of the legislation would be subverted were a public sector employer to be permitted to utilise successive fixed-term contracts merely because a worker had permanency in respect of a lesser role within the organisation.

5 The dispute between the parties ultimately came before the Labour Court. In its determination of 5 August 2020, the Labour Court dealt with the question of the applicability of the Protection of Employees (Fixed-Term Work) Act 2003 as a threshold issue. The Labour Court concluded that the Employee did not have standing ( locus standi) to pursue his claim in circumstances where he is a permanent employee, employed on a contract of employment of indefinite duration by the Employer.

6 It became unnecessary, therefore, for the Labour Court to consider the Employee's claim any further. In particular, the Labour Court's determination does not address the question of whether there were objective grounds justifying the use of fixed-term contracts for an aggregate duration in excess of four years.

7 The matter now comes before the High Court by way of a statutory appeal against the determination of the Labour Court. The appeal is an appeal on a point of law pursuant to section 46 of the Workplace Relations Act 2015. The procedure for such appeals is prescribed under Order 105 of the Rules of the Superior Courts.

LEGISLATIVE REGIME

Overview

8 The Protection of Employees (Fixed-Term Work) Act 2003 (“ the Act”) regulates the use of fixed-term contracts of employment. The Act gives effect to Council Directive 1999/70/EC on fixed-term work (“ the Fixed-Term Work Directive”). As discussed presently, there is an obligation on this court, as a national court of a Member State, to interpret the domestic legislation, to the fullest extent possible, in light of the wording and the purpose of the Fixed-Term Work Directive.

9 The Fixed-Term Work Directive, in turn, gives effect to the Framework Agreement on Fixed-Term Contracts concluded on 18 March 1999 between the General Cross-Industry Organisations (“ the Framework Agreement”). The Framework Agreement has been annexed to the Directive.

10 The stated purpose of the Framework Agreement is:

• (a) to improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination; and

• (b) to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

11 These twin purposes are reflected under the Protection of Employees (Fixed-Term Work) Act 2003 as follows. First, the principle of non-discrimination is given effect to under section 6 of the Act. This section provides that a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a “comparable permanent employee” (as defined). Section 10 provides that an employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

12 Second, safeguards against the abuse of successive fixed-term contracts of employment have been introduced under section 9. This section provides, in relevant part, that where a fixed-term employee is employed on two or more continuous fixed-term contracts, then the aggregate duration of such contracts shall not exceed four years. This prohibition does not apply, however, where there are “objective grounds” justifying the renewal of a contract of employment for a fixed term.

13 The combined effect of sections 9(2) and 9(3) is that a person who has been employed on successive fixed-term contracts with an aggregate duration of in excess of four years, without objective justification, shall be deemed to be employed under a contract of indefinite duration. (The parties were agreed that section 9(1) is in the form of a transitional provision, regulating circumstances where a person had already been employed on a fixed-term contract as of the date of the commencement of the Act on 14 July 2003).

14 The nature of a “contract of indefinite duration” is not expressly described under the Act. Section 9(3) simply provides that any contractual term which purports to contravene the four-year threshold shall have no effect, and the contract concerned shall be deemed to be a contract of indefinite duration. This implies that the terms and conditions of the contract of indefinite duration will be the same as those of the fixed-term contract which it replaces, save for the obvious difference that the offending condition defining the fixed-term of the contract will have been invalidated.

15 This understanding of the nature of a contract of indefinite duration is consistent with the approach of the Court of Justice. The Fixed-Term Work Directive does not lay down a general obligation on the Member States to provide for the conversion of fixed-term contracts of employment into contracts of indefinite duration. Where, however, a Member State has chosen to do so, then the conversion of fixed-term employment contracts into an employment contract of indefinite duration must not be accompanied by material amendments to the clauses of the previous contract in a way that is, overall, unfavourable to the person concerned when the subject-matter of that person's tasks and the nature of his functions remain unchanged. (Case C-251/11, Huet at paragraph 46).

16 The concept of a contract of indefinite duration does not imply that the employee's contract of employment cannot ever be terminated. Rather, the same principles as applicable to any contract of employment apply. At common law, a contract of employment is subject to termination at will. An employer can dismiss an employee, even a permanent employee, for any or no reason, by giving reasonable notice. The common law position is ameliorated by legislation. An employee may seek to challenge the fairness of their dismissal by bringing a statutory claim pursuant to the Unfair Dismissals Act 1977 (as amended). However, the principles governing such a statutory claim would be the same irrespective of whether the employee had the benefit of a deemed contract of indefinite duration or not. ( Power v. Health Service Executive [2019] IEHC 462, at paragraph 76).

17 Put otherwise, an employee who has transitioned from a succession of fixed-term contracts to a contract of indefinite duration is in no stronger a position vis-à-vis dismissal or redundancy than an employee who had been employed from the outset on a conventional contract of employment with no end date. The significance of deeming a fixed-term contract to be a contract of indefinite duration is simply that an employer can no longer lawfully terminate the contract of employment by dint of the occurrence of the specified contingency. A claim for unfair dismissal is no longer excluded under section 2(2) of the Unfair Dismissals Act 1977 (as amended) once the objective condition specifying the fixed-term is invalidated.

Scope of the legislative protections

18 The dispute between the parties in the present case centres on the scope of the Protection of Employees (Fixed-Term Work) Act 2003. The scope of the Act is constrained by the statutory concept of a “fixed-term employee”. Unless a complainant can establish that they come within this...