Fixed term Contracts-HSE v Rauf

Mr Rauf worked as a non-consultant hospital doctor between January 1997 and June 2006 when his employment ended.

In July 2006, he claimed he was entitled to a contract of indefinite duration which was refused.

He brought a claim to a Rights Commissioner in April 2007. The Rights Commissioner found that the claim was submitted outside the six month time limit and that reasonable cause had not been shown to extend the claim period to 12 months as permitted by the legislation.

Mr Rauf appealed this finding to the Court. Amongst the arguments put forward on extending the time limit by Mr Rauf included the failure of the Rights Commissioner to exercise her discretion in a reasonable way, the fact that the HSE knew at an early stage that a claim would be brought, that it took time to obtain legal advice and that Mr Rauf was afraid of victimisation which he claimed had occurred to colleagues who had brought claims.

The Court noted the legal position that an arguable substantive case should generally be heard, provided the complainant can satisfy what the Court described as the modest requirement of showing reasonable cause as to why the claim was not brought within six months.

Examining its previous rulings, the Court confirmed that the onus is on a complainant to show that there are reasons which both explain the delay and provide an excuse for it. In addition, a complainant must satisfy the Court that had such circumstances not been present, s/he would have initiated the claim in time.

In this case, the Court noted that the complainant’s legal advisors first contacted the HSE seeking a contract of indefinite duration in July 2006 and this demand was quickly rejected in writing.

A further letter in January 2007 (when the claim was already over three weeks out of time) also received a negative response in writing.

Yet the claim was not filed for a further two months and this remained unexplained.

Therefore, although the Court again described the requirement of reasonable cause as not an unduly onerous one, the complainant in this case had failed to cross even that low barrier. The decision of the Rights Commissioner was therefore upheld.

More information: FTC/08/5, Determination No. FTD0817, 2008

Call us on +353 1 8666426 or email us.