The recent case of HSE and Abdel Raouf Sallam FTC/12/19 delivered on 17th January 2013 concerned an appeal by the Claimant Dr Abdel Raouf Sallam against a decision of a Rights Commissioner in his claims against the Health Service Executive (“HSE”) concerning infringements of sections 6, 8, 9, 10 and 13 of the Protection of Employees (Fixed Term Work) Act 2003 (“the Act”). The Rights Commissioner found against the Claimant on all complaints.
Before the Labour Court, the Claimant claimed a contravention of section 9 only for the purpose of seeking redress and a claimed contravention of section 8 in advancing the claim under Section 9. The essence of the claim before the Labour Court was whether the Claimant’s fixed-term employment became employment of indefinite duration by operation of section 9 of the Act.
The Claimant was a Consultant Obstetrician and Gynaecologist and was employed on a series of fixed-term contracts in his capacity as a Consultant Obstetrician and Gynaecologist between 3rd June 2003 and 16th August 2011. The Claimant’s employment history was as follows –
- 3rd June 2003 2nd June 2004 Wexford General Hospital Temporary Consultant
- 3rd June 2004 30th June 2004 Wexford General Hospital Temporary Consultant
- 1st July 2004 30th April 2007 Wexford General Hospital Pending permanent filling of post
- 17th May 2007 18th May 2007 Portlaoise Hospital Locum for named Doctor
- 11th June 2007 29th June 2007 Cavan General Hospital Locum for a number of named Doctors
- 1st July 2007 Sligo General Hospital Locum for Named Doctor
- 1st June 2008 (Revised Contract) Sligo General Hospital Locum for Named Doctor
- June 2010 Sligo General Hospital Retirement of Named Doctor
- 16th August 2011 Sligo General Hospital Employment Terminated on Another Appointment being made
The Claimant contended that he was continuously employed by the Respondent from June 2003 until August 2011, a period of some eight years and claimed entitlement to a contract of indefinite duration by operation of law pursuant to section 9(1).
The Claimant also contended that if his employment was found not to have been continuous, he claimed an entitlement to such a contract by virtue of his period of employment at Sligo General Hospital between July 2007 and 16th August 2011 (“the Sligo contract”).
The Respondent denied that the Claimant was continuously employed within the statutory meaning of that term and contended that his service was broken between the expiry of his contract in respect of Wexford General Hospital on 30th April 2007 and the commencement of his next contract at Portlaoise General Hospital on 17th May 2007. According to the Respondent there was a further break in service between the expiry of that latter contract on 18th May 2007 and the commencement of next contract in Cavan General Hospital on 11th June 2007.
Issues to be decided
The Labour Court determined that there were essentially three questions that fell to be decided:
- Firstly there is an issue as to the duration of the Claimant’s continuous / successive fixed-term employment.
- Whether the Claimant’s employment at Sligo General Hospital was pursuant to a single fixed-purpose contract, as the Respondent contends, or to two or more contracts, as the Claimant contends.
- In the event of the Labour Court deciding that the reckonable period of employment was pursuant to two or more continuous / successive fixed-term contracts extending beyond four years, a question arises as to whether there were objective grounds justifying the renewals
The Labour Court referred to Section 9(1) and (2) of the 2003 Act and to the decision FTD063- State Laboratory and McArdle which was upheld on appeal by Laffoy J in Minister for Finance v McArdle 18 ELR 165. The Court further noted that the existence of objective grounds justifying the renewal of a fixed-term contract (and by extension the operation of s.9(3)) was to be ascertained by reference to the circumstances pertaining at the commencement of the contract in question. which was outlined by Hanna J in Russell v Mount Temple Comprehensive School IEHC 533.
In looking at the test of Objective Justification, the Court noted that it was for the Respondent to establish on cogent evidence every element of that defence and to make out the defence it is for the Respondent to identify a real need and to show that the less favourable treatment is effective in meeting that need. The Respondent must then go on to prove that the effect of the less favourable treatment on the employee is proportionate to the need of the employer which it is intended to achieve. This required the Court to balance the detriment suffered by the worker against the benefit accruing to the employer. The Respondent must then establish that there are no alternative means by which the objective in view could be achieved which have a less deleterious effect (Inoue v NBK Designs  14 E.L.R.. 98)
The Court referred extensively to Determination FTD1234 UCD and Dr Michael O’Mahony, which synopsised the principles including noting that “the justification relied upon must be based on objective transparent criteria which in fact respond to a genuine need, are appropriate for achieving the objective pursued and are necessary for that purpose (C-307/05, Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud  IRLR 911, at par 58)”.
Question 1 – Continuous / successive employment
In respect of the first question of whether the Claimant’s employment could be regarded as continuous / successive, the Court noted that there was a break of 15 days between the end of his final contract at Wexford General Hospital and the contract in respect to Portlaoise General Hospital (30th April 2007 to 17th May 2007, exclusive). There was a further break of 21 days between the ending of the Portlaoise contract and the commencement of the next contract in respect to Cavan Hospital (18th May 2007 and 11th June, exclusive). In essence the Court noted that the effective period in which the Claimant was not contractually engaged with the Respondent was one of 15 days and referred to the case of C-212/04 Adeneler and Ors. V Ellinikos Organismos Galaktos IRLR 716 where it was held that contracts separated by a period of 20 days must be regarded as successive. On that authority the Labour Court in UCD and Dr Michael O’Mahony rejected the Respondent’s contention that the Claimant’s service was broken by a gap of 16 days between contracts. In the instant case the Labour Court did not accept that the period separating any of the Claimant’s contracts could provide a sufficient basis upon which it could be held that the full period of his employment, from 2003, was not successive / continuous.
Question 2 – The Sligo Contract
The Court noted that the construction of the provision in the contract entered into between the parties in respect of Sligo General Hospital, in so far as it related to the purpose of the contract, was a matter of considerable contention between the parties. The contract was executed by the parties headed “Amended Specified Purpose Contract of Employment (Temporary)” and under the heading “Purpose and Termination” it was noted: –
“Your employment with the Health Service Executive shall be for the purpose of Locum Consultant Obstetrician Gynaecologist in the absence of [a Named Doctor].
The Claimant was unhappy with the content and sought advice. The Respondent replied that the Claimant was
“……being offered a Specific Purpose Contract as Locum Consultant to fill the post as [named Doctor’s] Locum. You are not being offered a post of indefinite duration as this post is vacant on a temporary basis and the duration of such a post will cease on the return of [named Doctor] or until alternative arrangements are put in place.”
Ms Bolger S.C., on behalf of the Claimant, submitted that both the relevant term of the contract and the e-mail made it clear that the post to which the Claimant was appointed was that of locum to the named Doctor.When the named Doctor retired from his post the Claimant ceased to be his Locum and at that point the purpose of the contract was fulfilled and it was discharged by performance. It was submitted that a new contractual relationship then came into being which had a different purpose from that which preceded it, and in respect of which no objective grounds had been provided justifying its conclusion for a fixed-term.
Ms Fay BL, on behalf of the Respondent, submitted that the contract entered into between the parties must be read in conjunction with the statement contained in the e-mail of 27th June 2007 which made it clear to the Claimant that the post offered was a temporary one for the duration of the named Doctor’s absence or, if he did not return, until it was filled on a permanent basis. It was the Respondent’s submission that the clear purpose of the contract entered into between the parties was to provide cover for the vacant post and that the vacancy endured until it was filled, either by the return of the named Doctor or by a permanent appointee.
The Court noted that it was clear from wording of both the contract and from the e-mail of 27th June 2007 that the Claimant was appointed to the post of Locum for the named Doctor who was then on sick leave. The Court referred to the decision of Laffoy J in Ahmed v Health Service Executive  19 ELR 117, for the ordinary meaning of the word “locum” which was an abbreviation of the expression “locum tenens” — a person who stands in temporarily for someone else of the same profession, especially a cleric or a doctor. (cf. The New Oxford Dictionary of English (O.U.P., 1998)).
It follows that when the named Doctor retired the Claimant was no longer his Locum and the basis for his continued employment changed to that of a temporary Consultant. The question then arose as to whether the terms of the contract of 1st July 2007 were sufficiently broad so as to encompass that change.
Contra Proferentum Rule
In the Court’s view any absence of clarity in the terms of the e-mail of 27th June 2007, even if that document can be read in conjunction with the signed contract, must be resolved against the Respondent. The court noted that it followed that the purpose of the contract into which the parties entered in July 2007 was for the Claimant to act as the named Doctor’s Locum unless and until another Doctor was appointed for that specific purpose. That purpose expired on the retirement of the named Doctor.What appears to be the objective justification relied upon in the letter of 6th July 2011 for the Claimant’s position of temporary Consultant, after the retirement of the named Doctor, was never stated at the time that the change occurred. The Court distinguished the present case from the decision of the High Court in HSE v Umar [IEHC] 146 in which it was held that the recruitment of a Consultant pending the filling of a post by open competition was inherently objectively justified. In that case the contract in issue made it clear that it was for that purpose.
This Court has previously held that the objective grounds relied upon for the purpose of section 9(4) of the Act must be operating on the mind of the Respondent at the time that a fixed term contract is concluded (St Catherine’s College for Home Economics v Maloney and Moran  20 E.L.R. 143). In this case there was no evidence before the Court to indicate that the Respondent had reached any firm conclusion on how the vacancy created by the resignation of the named Doctor would be filled and nothing was communicated to the Claimant in that regard.
The Labour Court concluded that the Claimant became employed by the Respondent pursuant to a contract of indefinite duration by operation of section 9(3) of the Act following the retirement of the named Doctor for whom he had acted as Locum.
The Court was satisfied that had the Claimants true status been recognised by the Respondent he would not have been dismissed in August 2011 and that the appropriate form of redress was an order for re-engagement.
The Labour Court made an Order for the re-engagement of the Claimant on a contract of indefinite duration in accordance with section 14(2)(c) and allowed the parties to determine the date from which that Order was to take effect and the quantum of compensation due to the Claimant.