This week we look at a case that has very wide-ranging, significant and potentially troubling implications. In McCarthy v Department of Enterprise, Trade and Employment, ADJ-00028096, the Workplace Relations Commission (WRC) was required to consider a claim by a former member of the Labour Court that he was entitled to a contract of indefinite duration under the fixed-term workers legislation and that his employer had discriminated against him on age grounds in effectively forcing him to retire at the age of 66. Our Adrian Twomey highlights the key points to note in the decision.
The Complainant, Mr. Andrew McCarthy, had been a full-time official with the trade union SIPTU up to 2014. He was then nominated by the Irish Congress of Trade Unions to take up a position as a member of the Labour Court. He was so appointed by the Minister for Enterprise, Trade and Employment and was given a three-year fixed-term contract. On the expiry of his initial term in 2017 he was given a second fixed-term contract running from 14 March 2017 to his 66th birthday on 7 April 2020.
When the second contract expired in 2020, however, Mr. McCarthy was not nominated for a further term by ICTU and his employment as a member of the Labour Court was terminated. He referred claims to the WRC under the Protection of Employees (Fixed-Term Work) Act 2003 and the Employment Equality Act 1998.
The Complainant contended that he became automatically entitled to a contract of indefinite duration under the fixed-term work legislation once he had completed four years of service under two or more contracts. He also contended that his age was a factor in the decision to terminate his employment.
In response, a Principal Officer from the Department of Enterprise, Trade and Employment gave evidence to the effect that under the applicable legislation the only mechanism for filling a posts on the Labour Court (aside from that of Chairperson) was by means of nominations received from the ICTU and IBEC. In essence, her evidence appears to have been that the ICTU had the sole power to select three nominees and that the Minister was then effectively bound to select one of those three if they were appropriately qualified. Mr. McCarthy had not been nominated for a third term and so he could not be appointed.
The Department also appears to have argued that members of the Court needed to be changed on a relatively regular basis in order that they would not be perceived as being "out of touch, entrenched or stale". This was apparently put forward as an "objective ground" justifying the use of repeated fixed-term contracts and for changing the membership of the Court.
Having considered the matter, the Adjudication Officer concluded that:
"...the failure to renew the Contract or award a Contract of indefinite duration had nothing to do with the Complainant himself but had to do with the stated objective of constantly trying to present an array of contemporary innovation, talent and specialization so that the Labour Court continues to be relevant and perform its function."
However, she found that the Department had failed to comply with section 8(2) of the fixed-term work legislation in that it had failed to inform Mr. McCarthy in writing of the objective grounds justifying renewal of his contract on a fixed-term basis in 2017.
The Adjudication Officer found that there was no basis for the suggestion that the Complainant's age was a factor in the termination of the employment relationship. She awarded him €3,000 arising from the breach of the fixed-term work legislation. Given that the hearing itself took three days, one would imagine that the compensation in question is very unlikely to have covered the Complainant's legal costs.
The case is a fascinating one and, it should be noted, involved discussion of a number of issues not referred to above. However, it does prompt the following thoughts and questions:
The alleged objective ground justifying the repeated use of fixed-term contracts was a supposed need to have "contemporary innovation, talent and specialization" on the Labour Court. Is experience not seen as having an even greater value?
Why do Labour Court members need to change frequently when judges in the civil courts are appointed on a permanent basis? The rationale behind such appointments in the courts is that judges are then secure in their positions and beyond being improperly influenced. If ordinary members of the Labour Court are to be dependent on the support of ICTU and IBEC for renewal of their contracts, does that not leave them at risk of being accused of bias in favour of their nominating bodies?
How can the Complainant's age not have been a factor in his termination when he was effectively dismissed on his birthday? Was that really just an astonishing coincidence?
The Department of Enterprise, Trade and Employment have argued for decades that bodies such as the Labour Court and the WRC should not have the power to award legal costs because parties do not need to be legally represented before them. How odd it is then to note that the Department, presumably using taxpayers' money, chose to be represented at the WRC by not one, but two, senior counsel as well as the Chief State Solicitor's Office.
There are a series of other serious questions that might as easily be posed arising from the decision. Sometimes, however, discretion is the better part of valour!
Employers should note that great care needs to be taken when issuing repeated fixed-term contracts. Those who require advice in relation to such issues or who need representation before the WRC can contact our Adrian Twomey.