Maeve Dupont v St. Patrick’s College Drumcondra UD 1627/2010, RP2159/2010OverviewIn this case the Claimant was made redundant after the Respondent was requested not to fill the Claimant’s role pending the outcome of the Rights Commissioner hearing in respect of the Protection of Employment (Fixed Term Work) Act 2003. The Claimant was deemed to be unfairly dismissed and en-gagement was ordered from the date of termination.The Claimant’s representative told the Tribunal that the claimant was made redundant in February 2010 but re-employed in April 2010 to cover maternity leave in another department. It was argued that the claimant was unfairly selected for redundancy and the position was later advertised and filled by the respondent. The claimant was employed on a fixed term contract since August 2010 (for a fixed period of three years) and it was argued on behalf of the respondent that the redundancy was decided in order to avoid a contract of indefinite duration which she was entitled to.The representative for the respondent told the Tribunal that due to the moratorium o recruitment in the Public Service in place the respondent could not give a contract of indefinite duration at this time.Background (summarised by Tribunal):1. The claimant is a lecturer in St Patrick’s College of Education. She was employed on a series of fixed-term contracts between 6th February 2005 and 31st August 2009. The aggregate duration of these contracts exceeded four years which she maintained entitled her to a contract of indefinite duration under the Protection of Employees (Fixed Term Work Act) 2003. The claimant referred a complaint under this act to the Rights Commissioners on the 2nd March 2009.2. Prior to this hearing, the college advertised two posts in the press on the 20th March 2009. The claimant was eligible to apply for one of these posts in Special Education but was not ranked high enough to be successful in her application. The second post was required to be filled on a seconded basis only. The claimant was not eligible to apply for this post as she was not a serving teacher.3. By letter dated 26th March 2009 the claimant’s solicitors requested, inter alia, that the respondent desist from advertising or seeking to fill the claimants post pending the determination of the Rights Commissioner.4. At a hearing on the 27th October 2009 the Rights Commissioner found that under the aforementioned Act the claimant was entitled to a contract of indefinite duration with effect from the 7th February 2009. This decision was in accordance with section 9(4) of the Act.5. The claimant was not provided then or since with a contract of indefinite duration. She was in fact made redundant with effect from 26th February 2010 and received the statutory redundancy entitlements.6. Subsequent to being made redundant the claimant was provided with a fixed term contract covering another employee’s maternity leave. This contract was to commence on the 19th April 2010 and finish when the permanent lecturer returned from maternity leave.7. While undertaking the maternity leave contract the claimant applied for and was successful in obtaining a fixed term contract commencing on the 1st September 2010 and terminating on the 31st August 2013.Claimant’s caseThe Claimant argued that she was entitled to a contract of indefinite duration, and that by being made redundant she was in effect unfairly dismissed. On 20th March 2009 two permanent posts became available, one filled by way of public advertisement and one to be filled by the secondment of an existing teacher. The claimant was unsuccessful in obtaining the advertised post and ineligible to apply for the second post. The claimant contended that by virtue of the Rights Commissioner decision, she was in effect permanent and therefore had an entitlement to the seconded post as de facto she could be seconded into the post without a change of status.Respondent’s caseThe Respondent outlined the efforts they made to keep the claimant in work while maintaining that she was fairly made redundant. The Respondent further stated that whilst accepting the Rights Commissioner finding, there were objective grounds in denying the claimant permanency. The objective ground is that no suitable vacancy existed at that time due to the denial of the funding from the Department of Education for the post, and the Department’s instructions on the filling of those posts which did exist.Determination of the Employment Appeals TribunalIt seems to the Tribunal that the Respondent’s position is somewhat disingenuous in this regard. In March the Respondents were asked to await the finding of the Rights Commissioner before appointing people to the relevant posts however they decided to proceed. If the Respondent was unaware of the Claimant’s rights under her fixed term contract, the prudent and fair course of action was to await the decision before appointing another person to the permanent position. The Respondent also had the option to appeal.It seems to the tribunal that the respondents, by their actions, were seeking to circumvent the application of the Act. It is insufficient for the Respondent to say that they were prevented from employing the claimant in a permanent capacity due to the failure of the Department of Education to provide funding. It is well established that the legal entitlements of a claimant are not subject to the dictates of a third-party i.e. economic reasons and lack of funding is not an objective justification in accordance with the 2003 Act. If the legislature intended cost and/or funding to be a relevant consideration same would have been inserted into the Act of 2003.Accordingly the Tribunal therefore finds thata. The Claimant was unfairly dismissed because she was unfairly selected for redundancy.b. Given the unfair dismissal, the Claimant retains her right to the contract of indefinite duration as per the Rights commissioner finding.c. That she be re-engaged on a contract of indefinite duration in her current position with effect from the date of this determination.Legal CommentaryThe Protection of Employees (Fixed Term Work) Act 2003 continues to trouble many employers. In particular employers still struggle with the meaning of “objective justification” under Section 7 of the 2003 Act.In essence Section 7(1) provides that 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.Section 7(2) then goes on to provide that where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment.Objective grounds for the purposes of Section 6(2) and (3), 8 and 9(4) must therefore be based on considerations other than the status of the employee as a fixed-term worker. The less favourable treatment must be for the purpose of achieving a legitimate objective of the employer and must be appropriate and necessary for that purpose.In Health Service Executive v Prasad FTD2/2006, the Labour Court said that the second limb of subs.(1), was a restatement of the “three tier test for objective justification in indirect discrimination cases” formulated by the Court of Justice in Case 170/84, Bilka Kaufhaus  E.C.R. 1607.For those interested, the various elements of the test were analysed by the Labour Court in detail in Inoue v NBK Designs Ltd  E.L.R 98. Other cases include St. Catherine’s College for Home Economics v Maloney  E.L.R. 143 and University College Cork v O’Riordan FTD 16/2011. See also the European Court of Justice commentary in Case C-212/04, Adeneler v Ellinikos Organismos Galaktos  E.C.R. I-6057 and Zappala, (2006) 35 I.L.J. 439. See also HSE South v Hamdy FTD14/2010, where the HSE failed to discharge the burden of showing that there were objective grounds for not granting the complainant (a consultant surgeon at Kerry General Hospital) a contract of indefinite duration.Separately I will be blogging shortly on other testing provisions of the 2003 Act and what is happening in practice before the courts.