The Board of Management of Malahide Community School v Conaty

• Jurisdiction: Ireland
• Judge: Mr Justice Garrett Simons
• Judgment Date: 05 July 2019
• Neutral Citation: [2019] IEHC 486
• Docket Number: 2018 No. 301 MCA,[2018 No. 301 MCA]
• Court: High Court
• Date: 05 July 2019

IN THE MATTER OF AN APPEAL PURSUANT TO SECTION 46 OF THE WORKPLACE RELATIONS COMMISSION ACT 2015

IN THE MATTER OF THE UNFAIR DISMISSALS ACT 1977 (AS AMENDED)

BETWEEN

THE BOARD OF MANAGEMENT OF MALAHIDE COMMUNITY SCHOOL

APPELLANT

AND

DAWN MARIE CONATY

RESPONDENT

[2019] IEHC 486

Simons J.

2018 No. 301 MCA

THE HIGH COURT

Statutory appeal – Contract – Unfair Dismissals Act 1977 s. 2(2)(b) – Appellant seeking to appeal against the Labour Court’s determination – Whether an employer and employee are entitled to contract out of the statutory protections otherwise provided for under the Unfair Dismissals Act 1977

Facts: The respondent teacher, Ms Conaty, had acquired rights under the Unfair Dismissals Act 1977 by dint of her having had more than one year’s continuous service as a teacher at the respondent school, Malahide Community School. In October 2015, the school required the teacher to sign a written contract for the balance of the academic year 2015/2016. The written contract presented to the teacher purported to take the form of a “fixed term” contract for a period of approximately eleven months. The school contended that, by signing this contract, the teacher relinquished the statutory rights she had previously acquired under the Act. On the expiration of the term of the contract on 31 August 2016, the school purported to dismiss the teacher. The teacher successfully challenged her dismissal before the Labour Court and had been reinstated. The school had since appealed the Labour Court’s determination to the High Court. It was said that “fixed term” contracts are expressly excluded from the application of the Unfair Dismissals Act by s. 2(2)(b) thereof. This is subject only to the procedural requirements under that section having been satisfied. The procedural requirements are as follows: the contract must be in writing; must be signed by or on behalf of the employer and by the employee; and must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed term. These requirements were said to have been met. It was further submitted that there is no question of the parties having contracted out of the Act in circumstances where the legislation simply does not apply to “fixed term” contracts.

Held by Simons J that the reliance which the school sought to place on the exception for fixed term contracts under s. 2(2)(b) was misplaced; this exception requires a consideration of an employee’s employment in the round, and the exception cannot apply where the employment had been on a permanent basis. Simons J held that the other requirements of s. 2(2)(b) were not, in any event, satisfied by the contract of October 2015.

Simons J held that the school’s appeal would be dismissed.

Appeal dismissed.

JUDGMENT of Mr Justice Garrett Simons delivered on 5 July 2019.

SUMMARY

1 This matter comes before the High Court by way of a statutory appeal from the Labour Court. The appeal presents a short point of law as to the entitlement, if any, of an employer and employee to contract out of the statutory protections otherwise provided for under the Unfair Dismissals Act 1977 (as amended) (‘ the Unfair Dismissals Act’).

2 The point arises in the following circumstances. The employee (‘ the teacher’) had acquired rights under the Act by dint of her having had more than one year's continuous service as a teacher at Malahide Community School (‘ the school’). In October 2015, the school required the teacher to sign a written contract for the balance of the academic year 2015/2016. The written contract presented to the teacher purported to take the form of a ‘fixed term’ contract for a period of approximately eleven months. The school contends that, by signing this contract, the teacher relinquished the statutory rights she had previously acquired under the Act. On the expiration of the term of the contract on 31 August 2016, the school purported to dismiss the teacher.

3 The teacher successfully challenged her dismissal before the Labour Court and has been reinstated. The school has since appealed the Labour Court's determination to the High Court.

4 The school's grounds of appeal are beguiling in their simplicity. It is said that ‘fixed term’ contracts are expressly excluded from the application of the Unfair Dismissals Act by section 2(2)(b) thereof. This is subject only to the procedural requirements under that section having been satisfied. The procedural requirements are as follows:– the contract must be in writing; must be signed by or on behalf of the employer and by the employee; and must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed term. These requirements are said to have been met. It is further submitted that there is no question of the parties having contracted out of the Act in circumstances where the legislation simply does not apply to ‘fixed term’ contracts.

5 In truth, the protection afforded to employees under the Unfair Dismissals Act is more robust than the school's submission appears to suggest. Freedom of contract is severely restricted by section 13 of the Act. Any provision in an agreement which purports to exclude or limit the application of, or is inconsistent with, any provision of the Act is void. The contract of October 2015 falls foul of this section. A contractual provision which purports to deprive an employee of rights which they have already acquired under the Act can only be characterised as an agreement which purports to ‘exclude’ or ‘limit’ the application of the Act. But for the offending provision of the contract of October 2015, the teacher would have retained her status as a permanent employee entitled to the full protections of the Act. Therefore, the relevant provisions of the contract of October 2015 are void.

6 On its literal meaning, section 13 precludes an employee from ever contracting out of their rights. However, there is case law which suggests that—at least in the context of settlement agreements—an employee may be entitled to waive their rights on the basis of informed consent. The school cannot avail of this in its appeal. This is because it is common case that the teacher had not been informed that the contract of October 2015 would entail the loss of her acquired rights. Indeed, it appears that both the school and the teacher were labouring under the mistaken belief that the teacher did not have any acquired rights.

7 (The school principal had explained to the Labour Court that she had mistakenly thought that the teacher's employment for the school years 2013/2014 and 2014/2015 had been on the basis of ‘fixed term’ contracts. In fact, there was no written contract in place for either year).

8 The reliance which the school seeks to place on the exception for fixed term contracts under section 2(2)(b) is misplaced. This exception requires a consideration of an employee's employment in the round, and the exception cannot apply where the employment had been on a permanent basis. Moreover, for the reasons explained at paragraph 60 et seq. below, the other requirements of section 2(2)(b) were not, in any event, satisfied by the contract of October 2015.

9 The school's appeal will, therefore, be dismissed.

PROCEDURAL HISTORY

10 Before turning to consider the substance of the statutory appeal, it is necessary first to say something about the procedural history whereby this appeal came on for hearing before the High Court. In particular, it is necessary to explain that this is, in fact, the second appeal to come before the High Court.

11 The contract of October 2015, the subject-matter of these proceedings, had a purported end date of 31 August 2016. The school did not renew the contract, and the teacher's employment terminated on 31 August 2016.

12 The teacher then submitted a complaint to the Workplace Relations Commission (‘ WRC’). The WRC Adjudication Officer rejected the complaint on the basis that the dismissal was excluded from the Unfair Dismissals Act under section 2(2)(b). The teacher appealed this decision to the Labour Court. The Labour Court made a determination in favour of the teacher, and made an order directing the school to re engage her in a teaching role from the commencement of the 2018/2019 school year. This determination is dated 22 November 2017. I will refer to this as ‘ the first determination’.

13 The school brought an appeal against the Labour Court's first determination to the High Court. The matter was duly heard by the High Court (O'Regan J.), and, by reserved judgment dated 21 March 2018, the appeal was allowed. See Board of Management of Malahide Community School v. Conaty (No. 1) [2018] IEHC 144.

14 It seems from the judgment that the High Court took the view that the Labour Court's rationale was not evident from its determination. In particular, the High Court appears to have been concerned that there had been no express reference to section 13 of the Unfair Dismissals Act in the operative part of the first determination, and that the rationale for extending the case law in respect of ‘informed consent’ from the context of settlement agreements to fixed term contracts had not been explained.

15 Rather than determine the points of law itself, the High Court instead remitted the matter to the Labour Court for reconsideration.

‘30. For the reasons above I cannot be satisfied that the correct principles of law were applied in the absence of:-

1. an engagement with or consideration of the impact of s.2 (2)(b) on the circumstances before the labour court;

2. some weighing in the balance of the provisions of s.2 (2)(b);

3. an explanation of the perceived difference between exclusion and waiver identified by the labour court in its decision (see para. 19 and 20 (3) hereof) and why notwithstanding such difference the jurisprudence in respect of waiver was sufficient to address the...