Acting Up - Considerations under Employment Law

An interesting case was recently decided by the Labour Court which spoke to some of the criteria to be examined when assessing the legal characterisation of an employee ‘acting-up’ or occupying some temporary interim role.

This case came before the Labour Court on appeal of a decision of the Workplace Relations Commission (WRC) against Mr. Power, who had made a complaint against the HSE, which had failed. 

Mr. Power asserted that the HSE had breached the Protection of Employees (Fixed Term Work) Act 2003 by returning him to his role as Chief Financial Officer of the Saolta University Healthcare Group, having ‘acted-up’ for a not inconsiderable period, as Group Chief Executive Officer. 

Mr. Power had been employed by the HSE as a permanent pensionable employee since July 1999. He was appointed as the Chief Financial Officer of the Saolta University Healthcare Group, a unit of the HSE, in January 2012 and occupied that role at the date of the hearing of the Labour Court.

Mr. Power, at the invitation of the HSE, took up the role of Interim Group Chief Executive, Saolta University Healthcare Group in October 2014. The HSE noted that the appointment would be temporary, until March 2015, or until the role was filled on a permanent basis, whichever occurred sooner. Mr. Power was also advised that when his temporary role as Group Chief Executive ceased, he would revert to his ‘substantive terms and conditions as a permanent employee of the Health Service Executive’.

This ‘temporary role’ was extended on several occasions. 

In September 2018, the post of Group Chief Executive for a five-year term was advertised in a competition administered by the Public Appointments Service on behalf of the HSE. Mr. Power was an unsuccessful candidate in that competition.

Mr. Power resumed his position as Chief Financial Officer of the Saolta Group in September 2019.

The Protection of Employees (Fixed Term Work) Act 2003 transposes Council Directive No. 1999/70/EC into Irish law.

The term "fixed-term worker" means a person having an employment contract or relationship entered into directly between an employer and a worker where the end of the employment contract or relationship is determined by objective conditions such as reaching a specific date, completing a specific task, or the occurrence of a specific event.

The Act transposed the Directive and, at Section 1, defines as follows:

• “fixed-term employee” means 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 ….”

• “permanent employee” means an employee who is not a fixed-term employee.

Mr. Power has based his complaint on the definition of successive fixed-term contracts, at Section 9, which provides as follows:

9.(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

In Railway Procurement Agency and Allan Bell & others, [FTD097] the Labour Court stated:

“the protection of the Act is conferred solely on fixed-term employees and a complaint under the Act can only be entertained if it relates to a period of fixed-term employment."

In Kelly v Louth Council [FTD1320] the Labour Court stated:

The Labour Court concluded that at all material times Mr. Power was employed as a permanent employee, employed on a contract of employment of indefinite duration by the HSE. The Labour Court thereby concluded that Mr. Power did not have the standing to maintain his appeal. The Labour Court noted that Mr. Powers’ link with his employer is, self-evidently, the permanent employment relationship created and maintained by the contract of employment entered into by him and the HSE prior to his taking up an appointment on a fixed term basis as interim Group Chief Executive and under the terms of which contract he returned to the role of Chief Financial Officer in 2019. That conclusion is all the more inescapable having regard to the fact that Mr. Powers’ employment was at no time at risk arising from the termination of his fixed term appointment to the role of interim Group Chief Executive.