The High Court has set aside a Labour Court determination that Maurice Power could not pursue a claim under fixed-term work legislation because he remained a permanent Health Service Executive employee.
In a judgment delivered on 15 June 2021, Mr Justice Garrett Simons ruled that the Labour Court had wrongly treated an employment contract as synonymous with the overall employment relationship. A worker may have successive contracts with the same employer while maintaining continuous service, he said.
The ruling concerns the threshold question of whether Mr Power could bring his complaint under the Protection of Employees (Fixed-Term Work) Act 2003. It does not decide whether the HSE had objective grounds to justify employing him on successive fixed-term contracts for more than four years, or whether he is entitled to remain in the senior role.
Mr Power had been a permanent, pensionable HSE employee since July 1999. He became chief financial officer of the Saolta University Healthcare Group in 2012 and took up the interim group chief executive role in October 2014. His appointment was extended several times while a permanent recruitment process was pending. He was unsuccessful in the competition for the five-year post, advertised in 2018, and returned to his chief financial officer role in September 2019.
He argued that his successive contracts in the interim role exceeded the Act’s four-year threshold, after which an employee may be deemed to have a contract of indefinite duration unless objective grounds justify the extended fixed-term employment. The HSE argued that the Act did not apply because Mr Power’s permanent employment continued and he had a right to return to his substantive post.
The Labour Court accepted the HSE’s position and dismissed the complaint at the threshold, without considering whether the contracts were objectively justified. On appeal, the High Court found that the definition of a fixed-term employee turns on whether the end of the particular contract is determined by an objective condition. It does not require the worker’s entire employment relationship with the organisation to end at the same time.
The judge said the right to revert to a permanent post could be considered when assessing whether successive contracts were objectively justified, but did not bar Mr Power from pursuing his complaint. He set aside the Labour Court’s determination and said his provisional view was that the matter should be sent back to the Labour Court for reconsideration. That further order was subject to hearing from the parties; the proceedings were listed for final orders on 2 July 2021.
The judgment expressly leaves unresolved whether the HSE’s use of successive contracts was justified. It also does not establish an automatic right for employees acting in senior roles for more than four years to remain in those posts.