The Teaching Council v Kirwan FTC/12/15
This was an appeal by an employer and a cross appeal by an employee against a Rights Commissioner’s decision that the employer had breached Section 13 of the Fixed Term Work Act (the Act) by dismissing the employee for the purpose of avoiding her fixed term contract becoming a contract of indefinite duration.
The employee appealed against the compensation award of €10,000 and the employer appealed against the decision that it had contravened Section 13(1) (d) of the Act.
Section 13(1) (d) of the Act provides that an employer shall not penalise an employee by dismissing the employee, if the dismissal is wholly or partly for, or connected with the purpose of avoiding a fixed term contract being deemed to be a contract of indefinite duration under Section 9(3).
Section 9(3) provides that where an employee’s fixed term employment extends beyond four years, the relevant fixed term contract is transmuted into one of indefinite duration by operation of law unless the renewal is justified on objective grounds.
The Teaching Council is the regulatory body for the teaching profession in Ireland. Ms Kirwan commenced employment with the Teaching Council in November 2007 on a fixed term contract. Her employment was renewed by way of a succession of fixed term contracts up to 31 October 2011 when her final fixed term contract expired without being renewed. When her employment ended, the claimant had accrued 3 years, 11 months and 5 days service as a fixed term employee.
The Labour Court said that the avoidance of the fixed term contract becoming one of indefinite duration does not have to be the only reason for the impugned dismissal to amount to penalisation within the meaning of Section 13. It is sufficient if it was the operative reason in the sense that “but for” that consideration, the dismissal would not have occurred. Since the presumed fact in issue in this and similar cases is the motive or reason for the dismissal, it is a matter peculiarly within the range of the employer’s capacity of proof. In those circumstances where there is prima facie evidence to indicate that Section 13 has been contravened, it is for the employer to prove that the operative reason for the dismissal was not the avoidance of the Act. The timing of the dismissal, the continuing need for the work in which the claimant was engaged, and the fact that she was replaced by agency staff pointed inexorably to the conclusion that the operative reason for the dismissal was the avoidance of the employee’s fixed term contract becoming one of indefinite duration by operation of law.
The Court then went on to consider the question of redress. It said it was influenced by the acknowledged suitability of the claimant for the role, her exemplary record, the fact that trust and confidence between the parties had not been compromised and the fact that the claimant was profoundly deaf and would find it difficult to find alternative employment. In those circumstances, the Court ordered that the employee be re-instated on the same terms and conditions of employment applicable to her immediately before her dismissal and to pay her arrears of wages accruing to her since the date of her dismissal up to the date on which the re-instatement took effect.
Comment: In this case the Teaching Council was not able to produce sufficient evidence to show that the reason for the non-renewal was the moratorium and/or the need to allow for redeployment of staff within the public service. Had it furnished sufficient evidence to establish this it could have defeated the breach of Section 13(1) (d) claim. Section 13(1) (d) only applies where the dismissal follows a renewal which is something employers should factor in when deciding on any renewal.