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Fixed Term Work & Penalisation – Labour Court varies Rights Commisioner decision and awards reinstatement

The recent case of The Teaching Council v Kirwan FTC/12/15 concerned an appeal by an employer and a subsequent cross appeal by the employee against a Rights Commissioners decision that the employer had breached Section 13 of the Protection of Employees (Fixed Term Work) Act 2003 (“the 2003 Act”) by dismissing the employee for the purpose of avoiding her fixed term contract becoming a contract of indefinite duration.One of the interesting aspects of this case was that the Teaching Council was not able to produce evidence to show that the reason for the non-renewal of the fixed term contract was the moratorium and/or the need to allow for redeployment of staff within the public service.  It is questionable that had the Respondent been able to show such evidence, then it may have been in the position to defeat the claim of penalisation under Section 13(1)(d).BackgroundThe Claimant brought a complaint before a Rights Commissioner alleging contraventions of Sections 8, 9 and 13 of the 2003 Act. The Rights Commissioner found that the Respondent had contravened Section 13 by dismissing the Claimant for the purposes of avoiding her fixed term contract becoming a contract of indefinite duration. The Claimant was awarded €10,000 in compensation. The Claimant appealed against the redress awarded and the Respondent appealed the Rights Commissioner decision that it had contravened Section 13.The Labour Court noted that the Claimant commenced employment with the Respondent on or about 26th November 2007 on a fixed term contract and her employment was renewed by way of a succession of fixed term contracts of short duration up to 31st October 2011 when her final fixed term contract expire without being renewed. In total the Claimant was employed on fourteen successive contracts.When her employment ended the Claimant had accrued service of three years, eleven months and five days as a fixed term employee. The Court noted that the initial contracts issued to the Claimant did not contain a statement of the objective grounds justifying the renewal and the grounds upon which she was not offered a contract of indefinite duration as required by Section 8 of the 2003 Act. The contract issued on 11th January 2010 did contain what purported to be such a statement.The Claimant was not provided with a redundancy lump sum and the Claimant was informed that the Government Departments had not approved her retention and it appeared that the refusal was based on the terms of the public sector moratorium.The Claimant contended that the decision not to continue her employment beyond 31st October 2011 was for the purpose of avoiding her contract becoming one of indefinite duration and this amounted to penalisation. The Claimant also stated that the Respondent’s motivation was evident from the fact that the duties she was employed to undertake form part of the continuing needs of the Respondent.The Respondent contended that the Claimant’s contract was not renewed as it had not been approved by the Ministers due to the public service moratorium and that this did not amount to penalisation under Section 13(1)(d).DeterminationThe Labour Court looked at Section 13(1)(d) of the Act and noted that it raised the question of motive or reason for the impugned dismissal. The Court noted that the avoidance of the fixed term contract becoming one of indefinite duration need not be the only reason for the impugned dismissal and it “is sufficient if it is an operative reason in the sense that “but for” that consideration the dismissal would not have occurred”. The Court noted that the Respondent accepted that the non renewal of the Claimant’s fixed term contract was a dismissal and noted that the real decision makers in dismissing the Claimant was not the Respondent but the relevant government departments. The Court questioned why no representative of either Department was tendered as a witness to explain the rationale for the decision to terminate the Claimant’s employment.The Labour Court noted two factors of significance which pointed to the underlying motive for the dismissal being the avoidance of Section 9(3) of the Act. Firstly, on the expiry of the Claimants penultimate contract it was renewed for a period of eight weeks which brought her to within three weeks of the fourth anniversary of her initial employment. Secondly the possibility of the Claimant’s role eventually being taken over by redeployed staff was never adverted to in the purported objective grounds relied upon for the renewals of her fixed term employment.The Labour Court noted that the timing of the dismissal, the continuing need for the work in which the Claimant was engaged, the facts that she was replaced by agency staff and the absence of any prior reference to an intention to take on redeployed staff “point inexorably to the conclusion that the operative reason for the dismissal was the avoidance of the Claimant’s fixed term contract becoming one of indefinite duration by operation of law”.The Court concluded on the balance of probabilities that the Claimant was dismissed in circumstances amounting to penalisation within the meaning of Section 13(1)(d). In considering redress the Court had regard to the circumstances of the Claimant from her disability and the attendant difficulties that would pose in the Claimant seeking alternative employment. The Court considered the appropriate redress to be an order directing the Respondent to reinstate the Claimant with effect from 1st November 2011 on the same terms and conditions of employment applicable to her prior to dismissal and to pay her arrears of wages accruing to her since the date of her dismissal up to the date of reinstatement with immediate effect. 

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