FTD125

Background

The Complainant commenced employment with TCD as a Part Time Lecturer on a one year fixed- term contract of employment on October 1, 2003. TCD renewed her fixed-term contract for another year commencing 1 October, 2004, and it renewed her fixed-term contract again on each successive year until it expired on 30 September 2007.

In the course of 2008 TCD advertised a vacancy for a Research Fellow in the School of Social Sciences and Philosophy. The Complainant was successful in the subsequent competition for the post. That incorporated the duties of both her Part-Time Lecturing duties and the Research Fellow duties attached to the post for which she had been the successful candidate. This contract was reduced to writing on 15^thNovember 2007 and purported to be a fixed term contract for a period of threeyears and was due to expire on 30 September, 2010. On 1 October, 2010 the Complainant was given a further one year fixed term contract of employment as a Temporary Lecturer. This contract expired on 30 September 2011. On 16 June, 2011, the Complainant was issued with a Contract of Indefinite Duration based on the contract of employment she held on 30 September, 2007.

The Complainant made a complaint to the Rights Commissioner to the effect that Section 9(3) of the Act had the effect of converting the fixed-term contract of employment that commenced on 1 October, 2010, into a contract of indefinite duration.

The Complainant further submitted that contrary to the provisions of Section 8(2) of the Act she was not informed in writing by the Respondent of the objective grounds justifying the renewal of the fixed-term contract at the latest by the renewal date on any occasion between the commencement of her employment in 2003 to date.

The Rights Commissioner considered the complaints and made a Decision on them in the following terms: -

"Based on the evidence presented by both parties, I find that the complaint is well founded.

• 
  1.I order the employer to confirm to the claimant that she will continue to be employed on a Contract of Indefinite Duration, as a full-time lecturer in the School of Social Sciences and Philosophy, without any loss of pay or benefits

  2.I order the employer to pay the claimant compensation in the sum of €3,000 for the breaches of Section 8(2) of the Act."

Position of the Parties.

Complainant’s Case

The Complainant contends that she was employed on a on a one year fixed-term contract of employment as a Part-Time Lecturer commencing on 1 October, 2003. This contract was renewed annually until it expired on 30 September, 2007. On 1 October, 2007, having been successful in a competition for a vacancy as a Research Fellow, she was given a further fixed-term contract of employment that amalgamated the duties associated with both the Part Time Lecturing position with those of Research Fellow duties associated with that post. This contract expired on 30September, 2010. On October, 2010, she was given a further one year fixed term contract of employment as a Temporary Lecturer. At this point she sought to regularise her position and, following engagement with the Respondent, referred a complaint to the Rights Commissioner.

The Complainant contends that Section 9(2) of the Act provides

• 9 (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

She contends that the contract of employment that commenced on October 1, 2010, taken together with her earlier contracts of employment resulted in the aggregate duration of those contracts exceeding 4 years. She submitted that the provisions of Section 9(3) provides that

• (3) Where any term of a fixed-term contract purports to contravenesubsection (1)or(2)that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration

She further submits that as the provisions of Section 8(2) of the Act provides as follows;

• 2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal

Respondent’s position.

The Respondent submitted that the Complainant became entitled to a contract of indefinite duration on 1 October 2007. The Respondent submitted that, on that date, the Complainant was working under two separate and distinct contracts of employment. One was in effect a continuation of the Contract of Employment as a Part Time Lecturer in line with those issued successively commencing 1 October, 2003, and ending 30 September, 2007. The second contract related to the Research Fellowship position to which she had been appointed with effect from that date.

The Respondent submitted that the contract in effect on 1 October 2007 in respect of the Part Time Lecturer post came within the provisions of Section 9(3) of the Act and was deemed to be a contract of indefinite duration. The other contract of employment in respect of the separately funded post as a Research Fellow which she held on that day was a fixed term contract that came within the scope of Section 9(4) of the Act

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

The Respondent submitted that the Research Fellow post was created and funded by the university to accommodate the relevant faculty undertake a discrete piece of research over a three year period and that it ceased to exist when the project was completed at the end of that period.

The Respondent further submitted that should the Court find that the Contracts for the two positions had been merged into one it should separate them and find that the contract of indefinite duration applies to that portion that relates to the Assistant Lecturer duties and that does not apply to the Research Fellow post.

The Respondent submitted that the provisions of Section 14(3) of the Act provides

• (3) A rights commissioner shall not entertain a complaint under this section if it is presented to the commissioner after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates or the date of termination of the contract of employment concerned, whichever is the earlier.

Conclusions of the Court

The Court finds that the provisions of Section 9(2) of the Act were met by the fixed-term work contract or contracts of employment that were issued to the Complainant by the Respondent on 1 October 2007. On that date the aggregate duration of the successive fixed term contracts of employment under which she worked for the Respondent exceeded four years' duration.

The Court considered the Respondent’s submission that the Complainant worked under two contracts of employment on that day. However no evidence was adduced before the court in support of that proposition. The only written contract of employment produced to the Court was dated November 15^th2007 and agreed by both parties to have come into effect on 1 October 2007. It was common case that this contract is for full time employment and that the salary set out there in amounts to that paid for full time work. The Complainant produced copies of an email exchange between herself and the Respondent to the effect that the lecturing duties she had undertaken in previous years would be incorporated into the new contract. The Complainant also advised the Court that the Respondent did not at any time suggest that she would be working under two separate contracts of employment but instead led her to believe the lecturing duties and the research fellow duties would be incorporated into one post and contract and the hours accorded to each adjusted accordingly. The Respondent did not contest this point.

On the basis of the information before it and the submissions made by the parties, the Court finds that the Respondent merged both posts into a form of hybrid that incorporated the duties of both. One contract was issued in respect of this hybrid post. That contract took effect on October 1 2007; the day on which the aggregate duration of the successive fixed term contracts of employment between the Complainant and the Respondent exceeded four years. Accordingly the Court finds that, in accordance with the provisions of Section 9(3) of the Act, the contract is deemed a contract of indefinite duration unless it is saved by virtue of Section 9(4) of the Act.

The Respondent submitted that there was objective justification for the renewal of a fixed-term contract of employment in respect of the post of Research Fellow to which the Complainant had been appointed.

Whilst this may or may not be the case the Court has found that the contract of employment was not just for that purpose but also related to the Part-Time Lecturer post to which the Complainant had also been appointed. The Respondent submitted that the Court should therefore separate the two contracts from each other and hold that the Part Time Lecturer contract became one of indefinite duration but that the Research Fellow post did not.

The Court has considered the provisions of Section 9(3) of the Act which are repeated below for ease of reference

• 3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

In this case the respondent accepts that the Part Time Lecturing duties contained in the contract were required both before and after the research project was completed. The Respondent decided to link the two posts into one hybrid post and issue a contract of employment on that basis. Accordingly the objective justification put forward by the Respondent must be considered in the context of the contract as a whole.

Having considered the submissions and the information before it the Court finds that the renewal of this fixed-term contract is not objectively justified and is not saved by the provisions of Section 9(4) of the Act.

Section 8

The Court finds that the complaints under section 8 of the Act were submitted to the Rights Commissioner on June 10 2011. The most recent contract renewal took place on 1 October 2010 more than six months before the matter was referred to the Rights Commissioner. Accordingly the Court finds that the Rights Commissioner is statute barred from entertaining these complaints.

Determination of the Court

The Complainant’s Contract of Employment that came into effect on 1 October 2007 is deemed to be a contract of indefinite duration. The Court instructs the Respondent to treat it accordingly with effect from that date. As the Complainant has been employed by the Respondent on a comparable rate of pay since that time the Court makes no further determination with regard to compensation in respect of this Complaint.

The Complaints pursuant to Section 8 of the Act were presented outside the statutory time limit and accordingly were not properly before the Rights Commissioner and are not properly before the Court. The Rights Commissioner’s decision is set aside.

Signed on behalf of the Labour Court



Brendan Hayes
14th February, 2012______________________
CONDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran O'Neill, Court Secretary.