Mr Power commenced his employment with the HSE in July 1999. In January 2012, he was appointed as Chief Financial Officer for the Saolta University Healthcare Group. On 5 October 2014 he took up the position of Interim Group Chief Executive Officer. This appointment was on a temporary basis until 31 March 2015, or until the role was filled permanently, which ever was sooner. In the letter of appointment, it stated that when this temporary role ceased he would revert to his
‘substantive terms and conditions as a permanent employee of the Health Service Executive.’
Mr Power continued to act in this role until 7 May 2015 when he received a letter from the HSE extending his appointment until the 31 December 2016. In December 2016, he was informed his appointment was extended until the 31 January 2017, terms and conditions were signed for this renewal. In late 2017, Mr Power was informed the appointment was extend until the end of 2018. In October 2018, Mr Power had four years continuous service in the position of interim CEO.
In September 2018, the post of Group CEO was advertised. Mr Power applied and was ultimately unsuccessful in the recruitment competition.
On 14 November 2018, the HSE wrote to Mr Power headed:
‘Renewal of Fixed-Term Contract CEO Saolta University Health Care Group.’
This letter extended Mr Power’s employment on a fixed-term basis until the new CEO take up the position.
On the 14 January 2019, Mr Power wrote to the HSE asserting an entitlement to a contract of indefinite duration. On the 21 January, the HSE responded that the 2003 Act did not apply to him as he was not a fixed-term employee. In February 2019, Mr Power lodged a complaint to the WRC under the 2003 Act.
In September 2019, Mr Power revert to the position of CFO.
The Adjudicator found Mr Power’s complaint could not succeed as he was not a fixed-term employee. This was appealed to the Labour Court. On 5 August 2021, it determined Mr Power did not have locus standi as he was a permanent employee, on a contract of employment of indefinite duration.
Mr Power took an appeal on a point of law to the High Court from the Labour Court pursuant to s 46 of the Workplace Relations Act 2015.
In the High Court, Mr Justice Simons held the Labour Court had errored in law in their interpretation of ‘fixed-term employee’ and ‘contract of employment’. The court found Mr Power was a ‘fixed-term employee’ within the meaning of the 2003 Act. Simons J remitted the matter back to the Labour Court for reconsideration.
The HSE brought a leap-frog appeal to the Supreme Court.
Section 2 of the Protection of Employees (Fixed-Term Work) Act 2003 defines a ‘fixed-term employee’ as:
‘a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include—
Section 9 states:
Mr Justice Woulfe considered whether Mr Power came within the definition of a ‘fixed-term employee’ as set out in s 2 of the 2003 Act
‘a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event’
The court agreed with Simons J determination that Mr Power was employed as Interim CEO on a series of consecutive contracts. Each of these contracts concluded either on a specific date or a specific event, the appointment of the permanent CEO.
In reaching this conclusion, Woulfe J referred to the references in s 2 and s 9 to the ‘contract of employment concerned’ and ‘contract concerned’. This suggests that an individual could be employed by the same organisation, in a series of different posts, by consecutive contracts of employment.
In particular, the court focused on s 9(3), ‘contract concerned’. This was interpreted as relating to the fixed-term contract in the series that was in operation when the duration exceeds four years.
While the HSE had argued that the contract of employment was the 2012 one, merely varied when he was acting as Interim CEO, this was rejected by the court. Mr Power had a different role, on a different salary. This amounted to a change in job, not merely new duties.
The court also rejected the HSE’s argument that as Mr Power was a permanent employee, the 2003 Act did not apply to him. Woulfe J noted that he was not employed as Interim CEO on a permanent basis. As the court had already determined Mr Power was a ‘fixed-term employee’ he could not also by s 2, be a ‘permanent employee' for the purpose of this Act. His 2012 contract was either terminated or suspended during the contracts of employment for Interim CEO.
Finally, Woulfe J observed that if the court was to follow the HSE’s arguments then it would remove the protections of the Act from an entire cohort of employees, those ‘acting up’. He noted neither the ‘Framework Agreement’ nor the 2003 Act expressly excluded them.
The court dismissed the appeal and the matter will now be returned to the Labour Court to consider whether there was objective justifications for the renewals.
This judgment brings ‘acting up’ employees under the protection of the 2003 Act. The fact the employee may have a permanent contract to return to, is no longer a factor to consider in determining if they are covered by the Act.
It remains to be seen whether the decision will, in reality, result in the death of ‘acting up’ roles. Now employers will be advised to avoid a potential claim such as this, by appointing persons to the role, rather than a series of rolling ‘interim’ contracts of employment. Alternatively, employers will have to show objective grounds, justifying the renewals of such contracts.
At the very least, this judgment will encourage employers to fill permanent contracts, rather than using a successive fixed term contracts.
