FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NATIONAL UNIVERSITY OF IRELAND, GALWAY (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - DR JUDITH WURMEL (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Cryan Worker Member: Mr McCarthy |
1. Appeal against Rights Commissioner's Decision r-141161-ft-14/MH.
BACKGROUND:
2. The Union appealed the Rights Commissioner's Decision dated 21st August, 2014 to the Labour Court on the 22nd September, 2014. A Labour Court hearing took place on the 18th November, 2014. The following is the Labour Court's Decision:-
DETERMINATION:
This is an appeal by Dr Judith Wurmel against the Decision of a Rights Commissioner which found against her complaint which she submitted against her employer the National University of Ireland Galway. Dr Wurmel claimed that the University had breached Section 9(2) of the Protection of Employees (Fixed-Term Work) Act 2003, (the Act) in that having completed four years continuous fixed-term employment she became entitled to a contract of indefinite duration in the absence of objective grounds justifying the failure to offer her a contract of indefinite duration.
For ease of reference the parties are given the same designation as they had at first instance. Hence Dr Judith Wurmel will be referred to as “the Complainant” and National University of Ireland Galway will be referred to as “the Respondent”.
The complaint was referred to the Rights Commissioner pursuant to the Act on 13thJanuary 2014.
Background
The Complainant was initially employed with the Respondent from 2003 and worked on a regular basis until March 2006. There was a break in her employment with the Respondent from March 2006 to September 2009. For the purposes of the within claim it is accepted that the Complainant’s employment commenced from 1st September 2009. The details of the Complainant’s fixed term contracts are as follows:-
- •1st September 2009 – 31stAugust 2012.Part-time Post Doctoral Researcher. To undertake research and delivery of technical and physical operational managementof research programmes for which the University had received funding from Science Foundation Ireland.
- •15thSeptember 2011 - 25thMarch 2012, Part-time Teaching Assistant in the School of Chemistry, additional to above . To provide a temporary period of cover for another academic member of staff who was on a career break at that time.
- •1stAugust 2012 - 31stJuly 2015, Part-time University Teacher in the School of Chemistry. To cover the need for extra teaching as a result of increased student numbers in the School of Chemistry. To provide additional teaching in academic related resourcing relating to the substantial increase in the first and subsequent years Chemistry student numbers for which additional funding was available.
Summary of the Complainant’s Case
Mr Paul Hardy, SIPTU on behalf of the Complainant, disputed the objective grounds relied upon by the Respondent and contended that as the Complainant had been employed by the Respondent on continuous fixed-term contracts for an aggregate duration exceeding four years she was entitled to a contract of indefinite duration under Section 9(3) of the Act. He disputed that the grounds relied upon met the standard imposed by Section 7(1) of the Act, which provide that such an objective must be“for the purpose of achieving a legitimate purpose of the employer”and be'appropriate and necessary for that purpose”.
Mr Hardy stated that the grounds relied upon by the Respondent when it renewed her contract on a fixed-term basis on 1stAugust 2012 were:“ this is a fixed purpose contract to cover the need for extra teaching as a result of increased student numbers”and he referred to the accompanying correspondence from the HR Operations Manager, which stated that a contract of indefinite duration was not being issued“because this is a fixed purpose contract providing additional teaching and academic related resourcing related to the substantial increase in 1styear and subsequent, Chemistry student numbers for which additional funding is available for this period only”. Mr Hardy submitted that the Respondent had a fixed and permanent need for the teaching of Chemistry and in so far as the fixed-term contract issued to the Complainant on 1stAugust 2012, there was no particular significance to the expressed end date of the contract in July 2015 and no baseline number for students of chemistry had been given and furthermore it was not dependent on external funding.
Mr Hardy citedRussell v Mount Temple Comprehensive School[2009] IEHC 533 where the Court held that the existence of objective grounds justifying the renewal of a fixed-term contract must be ascertained by reference to the circumstances pertaining at the commencement of the contract in question, in this case 1stAugust 2012. Furthermore he relied uponWaterford City Council & Kennedy,FTD 1235 where the Court held:
- “It is clear to the Court that the Respondent is now seekingtoretrospectively justify the renewalofthe Claimant's fixed term employment ... on grounds that were never advertedtoatthe material time. This approach cannot be accepted. If suchanapproach were tobe accepted it would undermine the effectiveness of the Act and the Directive that it was enacted to transpose in our law. In particular itcould not meet the requirement for objective and transparent criteria which the CJEU identified in Del Cerro Alonso v. Osakidetza- Servicio Vasco de Saludas [2007] IRLR 911] inherent in the test for applying the notion ofobjective justification”.
Mr Hardy submitted that as a contract of indefinite duration does not confer any special protection against the possibility of redundancy resulting from ceased or decreased activity therefore the use of a fixed-term contract could not be 'appropriate or necessary' within the meaning of Section 7(1) of the Act for achieving the legitimate objectives of the employer.
In this regard he also relied uponTeagasc & McNamara, FTD 138 where the Court stated that, in considering objective justification, the Court of Justice of the European Communities :–
- ... drewadistinction between work undertaken for the purposeofmeeting the fixed and permanent needs ofthe employer and work for the purposeofmeetingsometemporary or transient need. Work in the former category should normally be undertakenonpermanent contractsofemployment, temporary or fixed-term contracts would normally be suitable for work in the latter category.
The Court went on to say that:
- “If, due toeconomic circumstances or fall-off in demand, there is no longer sufficient work in ordertomaintainaworker in employment the employer's remedy lies in making surplus staff redundant”
Mr Hardy cited an extract from a letter dated 13thJanuary 2012 written by the Professor of Chemistry and Head of School to the Dean of Science concerning the appointment of a part time University Teacher on a temporary three year basis in the school of Chemistry in 2012. Mr Hardy stated that it was clear from that letter that this was not identified as a time-limited situation as a deficit in 1styear teaching was not a temporary phenomenon. The letter does refer to the inability of one half-time Professor to cover the teaching of a full time Professor. In this letter the Professor says“It is extremely difficult to recruit staff with adequate experience and skills for teaching of important 1styear courses on a part-time assistant year by year basis”.Mr Hardy submitted that nowhere in the letter does it state any reason why this should be for a three year duration. And it states that funding for the post will be funded internally from the Respondent's College of Science. In this regard Mr Hardy cited two casesUniversity College Cork & O'Riordan,FTD1116, where the Court held that the allocation of already existing internal funding, 'additional' or otherwise, on a temporary basis cannot form'objective grounds'. Secondly, he citedCatholic University School v Dooley[20 I0] IEHC 496) where the High Court held that the'the purpose of the Directive and the legislation transposing the Directive into Irish law would be defeated if cost alone was accepted as a defence'.
Summary of the Respondent’s Position
Mr John Brennan, Ibec, on behalf of the Respondent submitted that there were clear
objective grounds for not offering a permanent post to the Complainant on 1stAugust 2012 and those grounds were outlined to her. He said that it is the Respondent's clear position that it will make thispost redundant in 2015 as it will no longer have a requirementfor the work and therefore it was justified in offering a fixed-term contract for the 3 year period.
Mr Brennan stated that in 2012the University increased its number of students in first year in order to increase the number of science graduates from the School of Chemistry.This was done in order to achieve its stated goal of having an increased number of graduates in the field of science and was in accordance with Government Policy across the state.At the same time the University also implemented improved retention of students in order to reduce the number of students who leave the University,particularly the College of Science after completing first year.The University has now increased its retention rate significantly and as a result it will have achieved an increase in the number of graduates from the School.
Furthermore, Mr Brennan stated that it will not be necessary for the University to continue to increase the number of students in first year in orderto increase the number of graduates and therefore it expected to scale back on the number of first year students in 2014 and subsequentyears. Asa result of this business decision it was necessary to put additional resources in place,particularly for the teaching of first year science students for a defined period of time, in this instance a 3 year period, at the end of which period it is the University's intention to make the post redundant.
He explained that arrangements had to be put in place to adjust to issues that flow from increasing student numbers. This involved restructuring of courses, in some cases removal of courses as well as improving the physical infrastructure to cope with increased class sizes. Increases in year 1 have a knock on effect in other years. There were significant increases in student numbers in year 2 also as a result of increasing intake over the years. Therefore extra laboratory sessions had to be provided for year 2 students, involving extra workload for staff members.
The intake of students increased over a number of years to a maximum in 2012/3 and has reduced in 2013/4. This number will not increase again in 2014/5 and is expected to fall slightly.The number of first year students which was increased has already begun to taper off and will continue to do so up until 2015.
Additionally parts of the work which the Complainant had responsibility for will no longer be provided, e.g. the Environmental Course which she had in 2012/3 will cease, plus the Course in Industrial Chemistry which was an elective for 3rd year students will not be offered in 2015/6. Also teaching of technical writing as a component will no longer be offered in a formal manner within the modules where it is currently being offered. Therefore, Mr Brennan submitted that it was clear from inception that the post was planned and implemented as a fixed-term post for a maximum period of three years in order to deal with a temporary situation which occurred and it will not be renewed as the need will have ceased in 2015.
The Law
Section 9(2) of the Act, applies in this case, it provides: -
- 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.
Section 9(3) provides: -
- (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.
Section 9(4) provides:-
- (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.
It is settled law that where a term in a contract contravenes Section 9(2), such as a term which provides that the contract will extend over a fixed-term beyond that permitted by the Subsection, the offending term is rendered void,ab initioand the contract is transmuted to one of indefinite duration by operation of law (seeMinister for Finance v McArdle[2007] ELR 165). Such a contract can, however, be saved by Section 9(4) of the Act where there are objective grounds justifying its extension beyond the time normally permitted by Section 9(2) of the Act. The Decision of the High Court inRussell v Mount Temple Comprehensive School[2009] IEHC 533 is authority for the proposition that the existence of objective grounds for the purpose of Section 9(4) of the Act is to be judged by reference to the circumstances pertaining at the commencement of the contract.
Section 7(1) deals with the circumstances in which objective grounds can be held to exist for the purposes of the Act. It provides: -
- “A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose”
Conclusions and Findings of the Court
The Complainant was employed as a fixed-term Worker from1st September 2009 and continues to be employed on a fixed-term contract which is due to expire on31stJuly 2015, this is in excess of four years and gives rise to aprima facieentitlement on the part of the Complainant to a contract of indefinite duration. Having been employed on fixed-term contracts for over two years the Complainant applied for a post of University Teacher and was appointed to the post on 1stAugust 2012 for a period of three years. The term in that contract providing for the continuance of the Complainant’s employment for a fixed-term beyond a four year period contravened Section 9(2) of the Act. Consequently Section 9(3) came into effect so as to render that term voidab initioand to transmute the contract into one of indefinite duration unless it was saved by Section 9(4).
The contract of 1stAugust 2012 contained a statement of objective grounds for its conclusion. The contract which was accepted and signed by the Complainant stated:-
- “In accordance with the Protection of Employees (Fixed-Term Work) Act a permanent contract of employment is not being issued in this instance because this is a fixed purpose contract to cover the need for extra teaching as a result of increased student numbers.”
A covering letter dated 26thJuly 2012 from the Respondent confirming the offer of employment to the Complainant stated:-
“I am informing you that this fixed term contract is being issued and a permanent contract of employment is not being issued in this instance because this is a fixed purpose contract providing additional teaching and academic related resourcing related to the substantial increase in the 1st year and subsequent, Chemistry student numbers for which additional funding is available for this period only.”
The Complainant contended that the grounds referred to by the University for not issuing a permanent contract of employment were "a mere generalisation" and did not identify a real need. The Court cannot accept this contention.
The letter to the Complainant dated 26thJuly 2012, the relevant extract of which is recited above, made it clear that the additional funding was available to cover the teaching of increased numbers of Chemistry students for a limited period only which would last for the duration of the contract being offered. It was not denied that around this time there was a Government decision which applied across the state to increase the number of Science graduates. This emerged from the Hunt report entitled “National Strategy for Higher Education 2013” which showed that that the first year experience at Universities needed attention. The Respondent set out to achieve this by increasing the number of first year undergraduates in order to improve retention rates thereby increasing the number of graduates. It was envisaged from the outset that the increase in student numbers would be of a temporary measure for a limited period of three years for which specific resources were put in place. This was clearly set out in the contract and its covering letter which was accepted by the Complainant at the time.
The contract set out the objective justification for the renewal in question which the Court regards as being in accord with the requirements of Section 7 of the Act. In these circumstances the Court is satisfied that the renewal of the Claimant’s employment (albeit on different terms that the previous contract) on 1stAugust 2012 was saved by Section 9(4) of the Act.
Determination
For all of the reasons set out above the Court is satisfied that Respondent did not contravene the provisions of Section 9 of the Act.
The Decision of the Rights Commissioner is affirmed and the Complainant’s appeal is disallowed.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
9th December, 2014______________________
JFDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to John Foley, Court Secretary.