FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NUI GALWAY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DR DONNCHADH PHELAN (REPRESENTED BY MR M. DOWLING. B.L. INSTRUCTED BY JAMES E. CAHILL & CO SOLICITORS) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr Nash |
1. Appeal of Rights Commissioner’s Decision No: r-073335-ft-08-
BACKGROUND:
2. This is an appeal by the worker of Rights Commissioner’s Decision No: r-073335-ft-08-MH submitted in accordance with Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on 29th October, 2009. The following is the Court's Determination:
DETERMINATION:
This is an appeal by Dr. Donnchadh Phelan (the Complainant) against the Decision of a Rights Commissioner which found that he had nolocus standiand consequently the Rights Commissioner had no jurisdiction under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act) to hear the claim, and therefore held that the complaint was not well founded.
At the Rights Commissioner hearing the Complainant claimed that NUI Galway (the Respondent) failed to provide him with a contract of indefinite duration in circumstances where he became entitled to such a contract pursuant to Section 9 of the Act. Furthermore, he claimed that his dismissal on 30th June 2008 was contrary to Section 13(d) of the Act as it was for the purpose of avoiding a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Act.
Background
The Complainant commenced employment as a part-time Teaching Assistant on a fixed term contract from 1st October 2001 until 30th April 2002. From 1st October 2002 to 30th September 2003 he was employed on a fixed term contract as a Post-doctoral Researcher, this was extended from 1st October 2003 until 30th September 2004, and again extended up to 31st December 2004. This was further extended up to 28th February 2005. He was issued with a further fixed term contract for the period 1st March 2005 until 30th September 2006. The Complainant was offered a Research Fellow post on a fixed term contract from 1st February 2006 until 31st January 2007.
On 9th March 2007 he was issued with a contract of indefinite duration as a Senior Research Fellow in the Department of Physics, effective retrospectively to 1st February 2007.
On 25th October 2007 the Respondent issued the Complainant with a letter giving him notice of redundancy to take effect from 31st December 2007, due to a lack of sufficient funding to continue his research project. Subsequently, additional funding became available to allow the redundancy notice to be rescinded and his employment was extended up to 31st March 2008.
The letter extending his contract referred to the fact that his employment would be extended on the same terms and conditions as previously advised. It stated that his fixed term contract was being renewed and a permanent contract of employment was not being issued in this instance due to the nature of the funding.
Then on 26th February 2008 the Respondent wrote to the Complainant advising him that his contract would now expire by reason of redundancy on 31st March 2008. However, the Respondent secured additional funding to further extend his contract from 1st April 2008 until 31st May 2008. This correspondence also gave the reasons why a permanent contract of employment was not being issued.
On 10th April 2008 the Respondent sent an email to the Complainant apologising for the error contained in the letter dated 26th March 2008 and confirmed that he was employed on a contract of indefinite duration and not on a fixed term contract.
Funding for a further extension of his contract was obtained and his employment was extended on May 29th 2008 by one month up to 30th June 2008, at which point he was made redundant.
The Complainant’s Case
Mr. Marcus Dowling, B.L. on behalf of the Complainant submitted that the purported redundancy was in reality a desire by the Respondent to dismiss the Complainant in order to avoid him incurring rights under the Act.
At the hearing of the appeal Mr. Dowling told the Court that he was not pursuing a claim of discrimination under section 6 and the only issue for consideration in the appeal was a claim that by virtue of section 9 (i) the Complainant had been entitled to a contract of indefinite duration from 1st February 2007. In terms of redress he sought an order providing for the Respondent to issue the Complainant with a contract of indefinite duration effective from 1st July 2008.
In support of this claim Mr. Dowling contented that despite the issuing of a contract of indefinite duration to the Complainant in March 2007, the Respondent continued to regard him as if he were employed pursuant to a fixed term contract. This was evidenced by the content of letters dated 7th January, 26th February and 26th March 2008, which referred to his status as a fixed term worker and gave reasons why a permanent contract could not be issued.
In his submission to the Court Mr. Dowling maintained that the Complainant was entitled to be continuously employed on a contract of indefinite duration and not to have been made redundant. In support of this contention he relied upon theDublin Airport Authority v SIPTU,Labour Court Determination NO. FTD084 where the Court found that the employees involved were wrongfully deemed to be fixed term workers when they were actually entitled to contracts of indefinite duration and therefore not subject to the bar against compulsory redundancy:
- “It seems perfectly clear to the Court that the only reason why the Claimants were made compulsorily redundant was because the Respondent regarded them as employed on foot of a contract from month-to-month. They were thus regarded as fixed-term employees to whom the commitment against compulsory redundancy did not apply.
In these circumstances the Court regards an order for the reinstatement of the Claimants on a contract of indefinite duration, in accordance with s14(2)(c) of the Act, as the most appropriate remedy in this case.”
Mr. Dowling also cited the case ofMinister for Finance v McArdle[2007] 18 ELR 165 in support of his contention that although the Complainant had been issued with a contract of indefinite duration he must be treated as though he was still on a fixed term contract, where Ms. Justice Laffoy in addressing an argument made by Counsel for the Plaintiff to the effect that the Rights Commissioner had no jurisdiction to entertain the claim because at the time of its presentation the defendant had obtained a contract of indefinite duration by operation of law, she had this to say: -
- “Secondly, a more fundamental submission made on behalf of the plaintiff was that the Rights Commissioner had no jurisdiction to entertain the complaint as at the date it was lodged because at that point in time the defendant was not employed on a fixed-term contract but had obtained the benefit of a contract of indefinite duration with effect from March 2004. It was submitted that, given that the defendant had ceased to be employed on a fixed-term contract since March 2004, no contravention of the Act could have been committed within the six months preceding the presentation of her complaint on January 10, 2005. Put another way, the plaintiff's argument was that the defendant had no locus standi to rely either on the Directive or the Act after March 22, 2004 because she had ceased to be a fixed-term worker.
As a matter of fact, the position when the defendant presented her claim to the Rights Commissioner was that she was in the employment of the State laboratory on foot of the document which was issued on May 31, 2004, which, as the Labour Court recorded, purported to be in respect of the period from March 22, 2004 until March 21, 2005, which she had executed. It is true that at the hearing before the Rights Commissioner the concession was made by the plaintiff that the defendant was employed under a contract of indefinite duration which had commenced in March 2004, although counsel for the defendant told the court that that concession was only made two days before the hearing. It is reasonable to infer that it was the complaint, which provoked the concession. Accordingly, there can be no question but that the Rights Commissioner had jurisdiction to entertain the complaint as of January 10, 2005”.
The Respondent’s Case
Mr. John Brennan, IBEC on behalf of the Respondent stated that in accordance with his statutory entitlements the Complainant was issued with a contract of indefinite duration effective from 1st February 2007. This change of employment status entailed an appointment as a Senior Research Fellow within the University and bestowed on him an entitlement to an increase in salary, inclusion in the University’s pension scheme and status as a permanent employee.
Mr. Brennan stated that the Complainant was employed
by the Respondent to work on a Research Project within the Department of Experimental Physics which at the time was funded from external funding secured by the University, mainly from the EU. As the funding progressed over the years, the Complainant’s employment continued. In accordance with the Act the Respondent issued a contract of indefinite duration. The funding ceased from December 2007 and accordingly the Respondent notified the Complainant that he was being made redundant, as it did not have sufficient funds to continue to carry out the Research Project. The Complainant himself was instrumental in seeking additional funding to continue the project. However, the funding expired at the end of May 2008 and thereafter the project ceased and the Complainant’s employment was terminated on the grounds of redundancy.
The Respondent stated that unlikeDublin Airport Authoritythe Complainant in this case was notdeemed to be a fixed term worker and was not immune from compulsory redundancy. It stated that only academic staff had statutory tenure under the Universities Act and therefore had immunity from redundancy.
Issues for Consideration
The first issue for determination in this case is whether the Complainant was a fixed-term employee at the time he made his complaint to the Rights Commissioner and so hadlocus standito maintain the complaints.
The Complainant had commenced employment with the Respondent before the commencement of the Act (it was accepted by both parties that continuity of employment arose from 1st October 2002); consequently he completed his third year of continuous fixed-term employment on 30th September 2005. As he was on a contract from 1st March 2005 until 30th September 2006 one further renewal was permissible under section 9(i), this latter contract expired on 31st January 2007. Thereafter, pursuant to section 9(3) of the Act he became entitled to a contract of indefinite duration with effect from 1st February 2007. On 9th March 2007 the HR Department sent a contract of indefinite duration with a covering letter to the Complainant, this letter stated:
- “I am pleased to inform you that we are issuing you with a Contract of Indefinite Duration in the Department of Physics.
You are being appointed as a Senior Research Fellow at the 2nd point of the Senior Research Fellow salary scale, which is €78,769 per annum effective from the 1st February 2007.
Please contact [Mr. H] to discuss your pension entitlements.
In order to confirm acceptance of this position, please sign the enclosed contract and return it to me as soon as possible. A copy of this contract when signed on behalf of the University will then be forwarded to you.
Congratulations on your appointment.”
Mr. Dowling accepted that a contract of indefinite duration had been issued in March 2007, he said that it appeared that at some point the Respondent realised that it was in flagrant breach of the Act and accordingly issued the Complainant with a contract of indefinite duration in March 2007. He accepted that this contract was on far better terms than had applied to the Complainant’s previous employment, however, he maintained that contrary to the position outlined in the contract the Respondent continued to regard him as employed pursuant to a fixed term contract. By letters dated 7th January, 26th February, 26th March and 24th April 2008, the HR Department wrote to the Complainant referring to his temporary contract with the Department of Experimental Physics. The letter dated 7th January 2008 stated the following:
“I wish to confirm the extension of your current contract, in the Department of Astronomy, from 1st January 2008 to 31 March 2008, under the same terms and conditions as previously.
In accordance with the Protection of Employees (Fixed Term Work) Act, I am informing you that this fixed term contract is being renewed and a permanent contract of employment is not being issued in this instance because the purpose of this renewal is to carry out research on an EU funded project for which funding has been put in place to 31st March 2008.”
The Complainant told the Court that he did not sign the contract of indefinite duration, as he did not believe it was a genuine contract of indefinite duration. The reasons he gave were as follows:
(i) The Respondent has completed a “Post Proposal Form” in respect of the Complainant’s post on 19th December 2007 which asked the question “why is this a temporary contract post rather than a contract of long-term duration or permanent post”and the response stated“budget extension only, end of funds available”.(ii) Four letters sent to him after he had been issued with a contract of indefinite duration referred to his temporary status and his status was as a fixed term employee.
(iii) The redundancy RP50 form stated the reason for redundancy as “contract expiry”.
The Court’s Conclusion
The Court notes that the Complainant was issued with a contract of indefinite duration, he accepted all the terms, which came with such a contract, including a substantial increase in his salary. Furthermore, he accepted a redundancy payment based on that increased salary.
However, the Court also notes that the Respondent issued four letters to the Complainant in 2008 which purported to extend his contract of employment as though he was on a fixed term contract and even proceeded to give reasons why he was not entitled to a permanent contract, this despite the fact that he was issued a contract of indefinite duration on 9th March 2007. The Respondent submitted that these letters were a mistake and occurred due to the large volume of contracts requiring attention by the HR Department, particularly where continuation of employment was dependent on funding being acquired. In the Complainant’s case, these letters were issued each time as additional funding became available for his project, thereby extending notice of redundancy initially given to him on 26th February 2008.
The Respondent submitted that once the error was realised it immediately set about clarifying the situation with him and sent an email on 10th April 2008 to confirm that his contract was one of indefinite duration. Again errors were made when further letters were subsequently issued to the Complainant, one of which referred to his temporary status.
The Court is of the view that there can be no doubt that these errors gave rise to considerable confusion and distress for the Complainant.
However, the Court accepts that they were administration errors and that the Complainant had a right to rely on his status as one of a contract of indefinite duration since 1st February 2007, which would not expire by effluxion of time.
The Respondent told the Court that the PPL forms were purely a mechanism for attracting funding for University projects identified with a role within the University not the person in the post. The forms are used for the purposes of renewing a particular post and not for the incumbent in the post. The Respondent told the Court that there were a number of employees on contracts of indefinite duration where the posts were entirely dependent on funding being provided.
The Court is satisfied that this case can clearly be distinguished fromMcArdleas the contract of indefinite duration was not issued to him in 2007 as aconcessiondue to the submission of his claim under the Act but was issued in line with his statutory entitlement at the appropriate time, and without any initiative been taken by or on behalf of the Complainant.
When the Complainant referred his complaint to the Rights Commissioner on 22nd December 2008 his employment had terminated since 30th June 2008.
In all the circumstances of this case, the Court is of the view that the contractual terms under which he was employed at the material time his complaint refers to, were on a contract of indefinite duration and such terms cannot be revoked without the consent of the Complainant.
DETERMINATION
For all of the foregoing reasons the Court is satisfied that the conclusionsand Decision of the Rights Commissioner are correct. The appeal is disallowed and the Decision of the Rights Commissioner is affirmed.
Signed on behalf of the Labour Court
Caroline Jenkinson
2nd December 2010______________________
AHDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.