HSE employee entitled to pursue case under fixed term contracts law, judge rules

Maurice Power succeeds in High Court bid to overturn Labour Court decision

Maurice Power, chief financial officer of the Saolta group. Photograph: Saolta.ie

Maurice Power, chief financial officer of the Saolta group. Photograph: Saolta.ie

 

The High Court has overturned a Labour Court decision that a senior employee of the HSE cannot pursue a case under the law aimed at preventing the abuse of fixed-term contracts.

The issue in Maurice Power’s case was whether he, as an existing employee of the HSE who fulfils a more senior role within the organisation on a temporary basis, was excluded from the benefit of the Protection of Employees (Fixed-Term Work) Act 2003.

In an important judgment this week concerning the scope of the Act, Mr Justice Garrett Simons said the approach adopted by the Labour Court in Mr Power’s case, and endorsed by the HSE as his employer, is “too crude” and “precludes potential abuses being brought to light”.

The Labour Court must now reconsider Mr Power’s claim in line with the judge’s findings.

The 2003 Act provides that a person employed, without objective justification, on successive fixed-term contracts with an aggregate duration of more than four years, shall be deemed to be employed under a contract of indefinite duration.

Mr Justice Simons said his judgment concerned a narrow point of law concerning whether the Labour Court erred in deciding it could not consider Mr Power’s claim under the 2003 Act on the basis of his being a “permanent” employee of the HSE.

The Labour Court erred in ignoring the primacy of the definition of “fixed term employee” and the correct approach was to apply the definition of fixed term employee to Mr Power’s employment as interim chief executive of the Saolta University Healthcare group over some four years, he held.

Erroneous

While he had concluded the Labour Court’s approach was erroneous, his judgment did not address the broader question of whether the use of successive fixed-term contracts might have been objectively justified in Mr Power’s case, he stressed.

His judgment only requires the Labour Court to consider Mr Power’s claim and does not mean Mr Power is automatically entitled to be appointed to the more senior position he had occupied for some four years on a temporary basis, he stressed.

Mr Power’s case was an appeal on a point of law over the Labour Court’s decision he lacked standing to bring a claim under the 2003 Act on grounds including that an employee cannot be both a permanent employee and a fixed term employee.

An employee of the HSE since 1999, Mr Power was appointed in 2012 as chief financial officer of the Saolta group, a unit of the HSE. In 2014, at the invitation of the HSE, he took up the role of interim chief executive officer of the group on a temporary basis until March 2015 or until the role was filled on a permanent basis.

His employment in that role was extended on the same basis under fixed-term contracts over the next four years.

In September 2018, the post of group chief executive officer was advertised for a five-year period. Mr Power was an unsuccessful candidate in the competition and in September 2019 resumed his position as chief financial officer of the Saolta group.

He complained to the Labour Court he was entitled under the 2003 Act to remain in the more senior post under a contract of indefinite duration.

Misconstrued

In finding the Labour Court erred in not considering his claim, Mr Justice Simons said the Labour Court misconstrued the definition of “fixed-term employee” by interpreting a contract of employment as being synonymous with an enduring employment relationship.

The Labour Court mistakenly decided that, to qualify as a fixed-term employee, a complainant’s employment relationship must be coterminous with the expiry of a fixed term or fixed-purpose contract of employment.

The Labour Court mistakenly concluded the fact each of the successive contracts between Mr Power and the HSE from October 2014 envisaged he would revert to his role as chief financial officer was “fatal” to his claim for redress under the 2003 Act.

The Labour Court erred in apparently thinking, mistakenly, the contract of employment remained unchanged throughout, Mr Justice Simons said.

The employment relationship between the parties involved a consecutive series of contracts of employment and the terms and conditions upon which he was employed from October 2014 onwards were “very different”, including a higher rate of remuneration.

The reliance placed by the Labour Court on the term “permanent” employee was “entirely misplaced”, Mr Justice Simons held.

He ruled the scope of the 2003 Act is delimited by the definition of “fixed-term employee” and the term “permanent employee” is defined exclusively by reference to the definition of fixed term employee and not the same as its everyday meaning.