Minister for Finance v McArdle

• Jurisdiction: Ireland
• Judge: Ms. Justice Laffoy
• Judgment Date: 22 March 2007
• Neutral Citation: [2007] IEHC 98
• Court: High Court
• Date: 22 March 2007

[2007] IEHC 98

THE HIGH COURT

[No. 163 SP/2006]

Min for Finance v McArdle

IN RE THE PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT

2003

BETWEEN

THE MINISTER FOR FINANCE

PLAINTIFF

AND

UNA McARDLE

DEFENDANT

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S15(6)

BATES v MODEL BAKERY LTD 1993 1 IR 359

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S6

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S7

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S10

EEC DIR 99/70

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S6(1)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S6(2)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S6(5)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S2

CIVIL SERVICE REGULATION ACT 1956

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S5(1)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S5(2)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S7(1)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S5

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S8

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S11

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S12

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S13

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9(1)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S9(3)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S10(1)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S14

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S15

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S14(3)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S14(4)

DEELY v INFORMATION COMMISSIONER & DPP 2001 3 IR 439 2001/5/1298

SOUTH WESTERN AREA HEALTH BOARD v INFORMATION COMMISSIONER 2005 2 IR 547 2005/55/11626 2005 IEHC 177

WILTON v STEEL CO OF IRELAND LTD 1999 ELR 1 1998/34/13339

ANTI-DISCRIMINATION (PAY) ACT 1974

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S5(1)(a)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S5(2)(a)

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S2(3)

WALSH v DUBLIN HEALTH AUTHORITY 1964 98 ILTR 82

DOOLEY v GREAT SOUTHERN HOTELS LTD 2001 ELR 340 2001/6/1434

SHEEHY v RYAN & MORIARTY 2004 ELR 87 2004/46/10610

AINSWORTH v GLASS TUBES & COMPONENTS LTD 1977 ICR 347

MURGITROYD & CO LTD v PURDY 2005 3 IR 12 2005/40/8428 2005 IEHC 159

AER LINGUS v A GROUP OF WORKERS 2005 16 ELR 261

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S10(3)

PUBLIC SERVICE MANAGEMENT (RECRUITMENT & APPOINTMENTS) ACT 2004

PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT 2003 S14(2)(d)

EMPLOYMENT

Conditions of employment

Fixed term employee - Civil service - Tenure - Comparator - Whether appropriate comparator - Whether defendant entitled to rely on established civil servant as comparator - Whether defendant acquiring security of tenure enjoyed by her chosen comparator - Whether defendant entitled to same conditions of employment as comparator - Entitlement to participate in competition for vacancies - Whether defendant treated less favourably than comparator - Appeal on point of law from Labour Court - Protection of Employees (Fixed Term Work) Act 2003 (No 29), ss 5, 6, 7, 9 and 10 - Murgitroyd & Co Ltd v Purdy [2005] IEHC 159 distinguished - Order finding that labour court did not err in law (2006/163SP - Laffoy J - 22/3/2007) [2007] IEHC 98

Minister for Finance v McArdle

The plaintiff employer sought to set aside a determination of the Labour Court disallowing the appeal of the defendant. The plaintiff alleged that the Labour Court erred in law in concluding inter alia that the defendants was entitled to rely upon a particular comparator pursuant to the Protection of Employees (Fixed Term Work) Act 2003 and that she was entitled to the same conditions of employment as an established civil servant. The defendant was a laboratory technician hired on a fixed term one year contract that was renewed on an annual basis, who was not eligible to apply for a permanent position as she was not an established office.

Held by Laffoy J. that the Labour Court did not err in law in reaching its conclusions. The defendant had been employed on a contract of indefinite duration. The proceedings would be adjourned to allow the parties consider referring the question of a contract of indefinite duration to the European Court of Justice.

Reporter: E.F.

1 JUDGMENT of Ms. Justice Laffoy delivered on 22nd March, 2007 .

The proceedings

2 In these proceedings the plaintiff employer seeks an order setting aside the determination of the Labour Court dated 4th April, 2006, disallowing the appeal of the State Laboratory and affirming the decision of the Rights Commissioner, on a complaint by the defendant employee under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). Although this is not stated on the special endorsement of claim on the special summons, these proceedings are brought under s. 15(6) of the Act, which provides that a party to proceedings before the Labour Court under that section may appeal to the High Court from a determination of the Labour Court on a point of law and the determination of the High Court shall be final and conclusive. At the hearing before this court there was a dispute as to what matters were properly before the court. Counsel for the defendant referred the court to the judgment of Finlay C.J. in Bates v. Model Bakery Limited [1993] 1 I.R. 359. In his judgment, the former Chief Justice was addressing the issue of the proper procedure to be adopted on an appeal to the High Court on a question of law under s. 39 of the Redundancy Payments Act 1967. What prompted his observations was that evidence had been adduced before the High Court on the appeal which had not been before the first instance and primary decision maker, the Employment Appeals Tribunal. In the passage referred to by counsel for the defendant the Chief Justice stated that the appropriate procedure is that the summons provided for by the Rules of the Superior Courts 1986 should state the decision being appealed against, the question of law which it is suggested was in error and the grounds of appeal and it should be supported only by an affidavit or affidavits exhibiting the determination of the Employment Appeals Tribunal, including any findings of fact or recital of evidence made by it, and, in effect, identifying the parties and the grounds on which the aggrieved party seeks a determination of the question of law.

3 The format of the special endorsement of claim in this case is that it contains a prayer for relief only. As I have stated, an order is sought setting aside the determination of the Labour Court. That is followed by paragraphs 2 - 9 inclusive in which declarations are sought that the Labour Court erred in law in making or failing to make certain conclusions that is to say:

4 · Concluding that the defendant was entitled to rely on an established civil servant with whom she was engaged on like work as a comparator for the purpose of s. 6 of the Act;

5 · Concluding that the defendant was entitled to the same conditions of employment, including pension entitlements and access to a career break, as an established civil servant;

6 · Concluding that the defendant was entitled to rules and procedures for termination of her fixed-term contract during the currency of its tenure not less favourable than those applicable to the termination of the contract of employment of an established civil servant;

7 · Concluding that on attaining a contract of indefinite duration the defendant was entitled to the same terms and conditions of employment, including tenure and matters ancillary and related thereto, as an established civil servant;

8 · Concluding that the defendant was subject to less favourable treatment in being denied the opportunity to participate in a competition for a permanent vacancy;

9 · Failing to conclude that the less favourable treatment of which the defendant complained, and which the plaintiff denied, was justified on objective grounds within the meaning of s. 7 of the Act;

10 · Failing to allow the appeal of the State Laboratory against the decision of the Rights Commissioner; and

11 · Determining the sum of €10,000 constituted just and equitable compensation for the breach, which was denied, of s. 10 of the Act.

12 Having regard to the manner in which the special endorsement of claim was formatted, it is necessary for the court to extrapolate the questions of law at issue and the grounds on which it is suggested they were incorrectly decided by the Labour Court from paragraphs 2 - 9.

13 The only evidence before the court is an affidavit of Pat McBride, a civil servant in the plaintiff's department, who proved that the State Laboratory is under the aegis of the Department of Finance and exhibited the decision of the Rights Commissioner referred to in the special summons, the notice of appeal against that decision to the Labour Court, the determination of the Labour Court and the written submissions on behalf of the plaintiff put before the Labour Court, including supplemental submissions submitted after the hearing in the Labour Court. In reply there was a short affidavit from the defendant's solicitor, Darach Connolly, which merely asserted that the Labour Court did not err in law.

The Act

14 The Act, which came into force on 14th July, 2003, gives effect in this jurisdiction to Council Directive 99/70/EC of 28th June, 1999 on the Framework Agreement on Fixed-Term Work (the Directive).

15 Section 6(1) of the Act provides that, subject to subs. (2) and subs. (5), which is not relevant, a fixed-term employee shall not, in respect of his or her conditions of employment, be treated in a less favourable...