FTD1423

In this Determination the parties are referred to as they were at first instance. Hence, Dr McConnon is referred to as the Claimant and University College Dublin is referred to as the Respondent.

The facts
The factual background giving rise to this dispute is not materially in dispute and can be summarised as follows: -

• The Claimant was employed by the Respondent on a succession of fixed terms contracts. Her employment related in the main to work associated with externally funded research projects.

  The Claimant was employed by the Respondent in its School of Public Health and Physiotherapy and Population Science on successive fixed term contracts, the first of which commenced on 17^thSeptember 2007. Her employment terminated on 30^thDecember 2013. The first period of fixed term employment ended on 28^thFebruary 2009. Her employment was then renewed on 1^stMarch 2009 for a further fixed term of four years. Her renewed employment was pursuant to a contract in writing signed by the Claimant on 4^thMarch 2009 and on behalf of the Respondent on 5^thMarch 2009. This contract will be referred to hereafter as the March 2009 contract.

  The March 2009 contract records that the Claimant was employed in the role of Data Coordinator on a project described as “HRB Centre of Health and Diet Research R10909”. This role will be referred to hereafter as the “HRB contract”.

  This contract contained the following statement: -

  • “The objective grounds for issuing this fixed term contract rather than a contract of indefinite duration is to facilitate the provision of high level research support and expertise to the above project, In the context of achieving key deliverables within a stated time frame, specifically, To provide data coordination expertise for the Obesity Cohort of HRB Centre of Health and Diet Research Project, which has a fixed end date ofFebruary 28^th2013.

    The fixed term nature of this contract underpins the fulfilment of a legitimate objective of the university to provide temporary, specialist expertise to / ensure transfer of knowledge on projects to enable their completion”

  On or about 10^thMarch 2010 the Claimant was reassigned to work as Project Manager on a project referred to as the FP7 project. That was unconnected with the HRB project and was a completely different role than that to which the contract entered into in March 2009 contract related. There was considerable divergence of recollection between the parties on the circumstances in which this change came about. The Respondent contends that it was at the request of the Claimant. The Claimant contends that it was at the instigation of the Respondent. For reasons that follow, the Court does not believe that this is a determinative consideration. It is clear that the Claimant ceased to perform the role to which the March 2009 contract specifically related and that she took on a new role on a different project.

  The Claimant was not issued with a contract in writing in respect to the FP7 project nor was she provided with any documentation in relation to her employment on that project. She accepts, however, that she was verbally informed that the contract would end on the same date as the March 2009 contract was intended to end, namely, 28^thFebruary 2013. The terms of the March 2009 contract in relation to remuneration and conditions of employment were also continued during her employment on the PF7 project.

  The FP7 project was not completed on time. Sufficient funds were available to the Respondent to extend the duration of the project and the Claimant’s employment as Project Manager was extended for a period commencing on 1^stMarch 2013 until the completion of the project.

  The Claimant was issued with a fixed purpose contract in respect of this extension of her employment. This contract recorded that the Claimant was employed as Project Manager on the Food Risk project (the FP7 project). The contract contained the following statement: -

  • “The objective grounds for issuing this specified purpose contract rather than a contract of indefinite duration is to continue to facilitate the provision of high level research support and expertise to the above project, in the following context.

    School of Public Health and Physiotherapy and Population Science have negotiated an extension with the EU Commission in relation to FoodRise C project as the research revealed additional findings which have resulted in additional work, the extension was sought because the additional work will delay the delivery of some deliverables originally cited. The specified purpose nature of this contract underpins the fulfilment of a legitimate objective of the university to provide temporary, specialist expertise to ensure transfer of knowledge on projects to enable their completion.

    [The key deliverables for completion were then recited]

    The specified purpose nature of this contract underpins the fulfilment of a legitimate objective of the university to provide temporary, specialist expertise to projects to enable their completion. At the ending of this project, your contract will end with one month’s notice.

The issue
The submissions advanced on behalf of the Claimant ranged over a wide spectrum. However, the net issue in contention is whether the Claimant’s fixed term employment was transmuted to employment of indefinite duration by operation of law by the combined effect of s.9(2) and s.9(3) of the Act. Central to that question is whether the Claimant’s assignment as Project Manager to the PF7 project in March 2010 was pursuant to a new contract or pursuant to the March 2009 contract. In that regard the question arises as to whether the March 2009 contract was discharged by agreement between the parties and a new verbal or implied contract came into being for the purpose of undertaking the work associated with managing the PF7 project. If that is the correct construction of what occurred a further question arises as to whether the Claimant’s fixed term employment was renewed within the meaning of the statute in March 2010 and if so whether that renewal attracted the application of s.9(3) of the Act.

The 2009 Contract
The contract of March 2009 was expressed to be for a term limited by time. However, from a reading of the contract as a whole it is clear that it was for a specific purpose, namely to provide data coordination expertise for the Obesity Cohort of HRB Centre of Health and Diet Research Project (the HRB project). Moreover the role assigned to the Claimant was that of Data Coordinator. The contract is expressed to be for four years but it is clear that the term was expected to coincide with the duration of the project. Irrespective of who initiated the change, the reality is that by March 2010 the parties agreed that the Claimant would cease working on the HRB project to which the March 2009 contracted related. Another person was recruited to undertake that role and presumably did so from March 2010 onwards. It is reasonable to infer from these facts that the contract of employment entered into between the parties in March 2009 was discharged by agreement in March 2010.

Coincidental with that occurrence, the parties entered into a new arrangement by which the Claimant would work on a completely different project and in a totally different role, namely as Project Manager on the PF7 project. That amounted to a renewal of the Claimant’s employment on a new contract for a different purpose and for a different role unrelated to that for which the March 2009 contract was concluded. That contract will be referred to hereafter as the PF7 contract.

The PF7 contract was not in writing but it was a contract of employment nonetheless. That term is defined by s.2 of the Act as: -

• “contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of theEmployment Agency Act 1971and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract);

The Law
The relevant statutory provisions are to be found in sections 7, 8, and 9 of the Act. Section 9(2) provides: -

• (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 four years.

• “(1)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.

Subsection (3) of s.9 is of particular significance in the instant case. It 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.

• “That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms as to pensionability and termination, which, as already observed, would have had to be aligned with those of a comparable permanent employee in accordance with section.

Section 8 of the Act provides: -

• “(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—
  
  • arriving at a specific date,

    completing a specific task, or

    the occurrence of a specific event.

  (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.

  (3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

• • It seems to the Court that the purpose of Section 8 is not just to ensure that a fixed-term employee is informed of the reason why his or her contract is being renewed. On a reading of the Section as a whole it is clear that it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading a defence under Section 9(4). Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with Section 8(2), it is apt to infer, in accordance with Section 8(4) of the Act, that the grounds subsequently relied upon were not the operative grounds for the impugned decision and it would be for the employer to prove the contrary.

A renewal of a fixed term contract which isprima faciein contravention of s.9(1) or s.9(2) can be saved by s.9(4) of the Act where there are objective grounds for the renewal in question. What constitutes objective grounds for this purpose is defined by s.7 of the Act. However, that statutory provision must be read in light of a number of decisions of the Court of Justice of the European Union (CJEU) which indicate that the grounds relied upon must relate to the nature of the work for which the impugned contract was concluded or to the circumstances in which the work is to be performed. In case C-212/04Adeneler and Ors. V Ellinikos Organismos GalaktosIRLR 716 the CJEU pointed out as follows: -

• “[T]he concept of 'objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.

  Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State.”

There is no closed category of circumstances in which that can arise. It may be that an employee is employed for a fixed term to perform work which corresponds to the fixed and permanent needs of the employer but they do so in order to provide cover for another employee who is temporally absent. It could also arise in circumstances where a regular workforce has to be augmented so as to meet some temporary exigency of the business. In that regard, while the Framework Agreement on Fixed Term Work annexed to Directive 99/70/EC (upon which the Act is based) recognises that while employment contracts of indefinite duration are to be regarded as the general form of employment relationships, fixed-term employment contracts are a feature of employment in certain sectors, occupations and activities which can suit both employers and workers (see recitals 6 and 8 in the preamble to the Framework Agreement.

It is also clear from the decision of this Court in inSt Catherine’s College for Home Economics v Maloney[2009] 20 E.L.R. 143 that the objective grounds relied upon must be present and operating on the mind of the relevant decision maker at the time that the impugned contract is concluded.

The application of s. 8 of the Act is also of central relevance in the instant case. That section places an obligation on an employer to specify in writing the objective grounds for the renewal of a contract of employment for a fixed term and for not offering the employee concerned a contract of indefinite duration. A contravention of that provision may render the employer liable in compensation to the employee. But unlike a contravention of either subsections (1) or (2) of .9 of the Act, a failure to comply with s.8(1) of the Act does not result in the contract concerned being transmuted to one of indefinite duration. What is provided by the section is that where the obligation that it imposes is not complied with the Court may draw such inferences from the employers failure as are fair and equitable in the circumstances.

Application to the present case
At the time the contract of March 2009 was concluded the Claimant had already accrued 17 months of continuous fixed term employment. The specified tenure of that contract purported to extend her fixed term employment for a further four years. Thatprima faciecontravened s.9(2) of the Act. However, that contract contained a statement of objective grounds for the continued employment of the Claimant for a fixed terms and the reason for not offering her a contract of indefinite duration. Those grounds, which have been reproduced earlier in this Determination, related to the temporal nature of the Respondent’s requirement for the work in which the Claimant was to be engaged.

The thrust of the submissions advanced on behalf of the Claimant on this point were directed at assailing the findings of the Rights Commissioner on what the objective grounds for that renewal were. The Rights Commissioner found that the objective grounds were encapsulated in the following contractual term: -

• “This fixed term contract of employment is solely and exclusively for the purpose of undertaking duties associated with the specific project as listed above. At the ending of the project in UCD, your employment with automatically cease.”

The Respondent acknowledged that the Rights Commissioner was mistaken in his understanding of the objective grounds relied upon in the course of the hearing before him. It is obvious to the Court that the Respondent at all times relied upon the objective grounds actually specified in the contract and that the Rights Commissioner was mistaken in his understanding of the case advanced in that regard. In ade novohearing before this Court that error on the part of the Rights Commissioner is not a basis upon which it could be held that the Claimant is entitled to succeed in her appeal.

The grounds specified in the contract for its renewal for a fixed term, which are recited earlier in this Determination, related to the temporary nature of the Respondent’s requirement for the work that the Claimant was employed to perform. The Court is satisfied that they met the requirements of s.7 of the Act in that they sought to achieve a legitimate objective of the Respondent and that the use of a fixed term contract was a proportionate and appropriated means of achieving that objective.

That, however, does not dispose of the matter. As earlier found by the Court the contract of March 2009 came to an end in March 2010 by agreement between the parties. It matters not at whose instigation that occurred. The Claimant’s employment was then renewed pursuant to a verbal contract. The Claimant accepts that the renewal was for a fixed term. That renewal was unsupported by a statement in writing of the type required by s.8 of the Act. That may have given the Claimant a cause of action against the Respondent but no such claim was brought. By the time the within proceedings were initiated any such claim was extinguished by the statutory time limit.

While the time limit may bar the Claimant from obtaining redress for the Respondent’s failure to comply with s.8 of the Act it does not affect the right of the Court to draw such inferences from that failure as are just and equitable in the circumstances. The determination of this Court inDr Mohammad Khan v HSE North Eastern Region[2006] ELR 313 is authority for the proposition that in these circumstances it is apt to infer that at the material time there were no objective grounds for the renewal in question. That, however, is a rebuttable inference.

Evidence was given by Ms Kelleher of the Respondent to the effect that at all material times the Respondent knew that the PF7 project, which the Claimant was to manage, had a fixed and temporal lifespan at the end of which the Respondent would have no further requirement for the work that the Claimant was contracted to perform. The Claimant did not contest the veracity of this evidence although it was pointed out that she undertook other work, the requirement for which is continuing. Ms Kelleher told the Court, and the Court accepts, that this other work was ancillary to the main work of managing the project and did not have any free standing viability.

The evidence tendered by Ms Kelleher is corroborated by the statement of objective grounds contained in the fixed purpose contract of 1^stMarch 2013 for the completion of the PF7 contract, the text of which is recited earlier in this Determination. It is clear from this statement that the purpose of the extension was to provide the Respondent with temporary, specialist expertise in relation to the PF7 project. If that was the purpose of the extension to the Claimant’s employment, logic dictates that it was also the purpose of her employment on the project from its commencement.

The Court accepts that the failure of the Respondent to provide a statement of objective grounds, not later than the date of commencement of the March 2010 verbal contract, can give rise to an inference adverse to the Respondent. That does not mean that the Respondent’s breach of its statutory duty in that regard must result in the fixed term contract in question being deemed to be one of indefinite duration. Had the Oireachtas intended that a failure to comply with s.8 would produce such a result it could easily have said so in express terms. It would be an impermissible trespass on the legislative domain for the Court to import such a provision by way of imposing what would amount to an irrebuttable presumption that a failure to state the objective grounds meant that none existed.

Conclusion

For the reasons set out herein the Court has come to the conclusion that the renewal of the Claimant’s fixed term employment in relation to the HRB project and the PF7 project was supported by objective grounds, within the statutory meaning, justifying the renewal. On each occasion the Respondent had a real need to obtain the specialist expertise and knowledge that the Claimant possessed for the purpose of undertaking the particular projects. That requirement was clearly temporary in nature and ceased on the completion of the PF7 project in December 2013. The Court is also satisfied that the use of a fixed term contract was a proportionate and appropriate means of achieving that objective.

By way of observation, it should be noted that at the cessation of the Respondent’s requirement for the service provided by the Claimant her employment came to an end in circumstances amounting to redundancy within the meaning of the Redundancy Payments Acts 1967 to 2003. She became entitled to a redundancy lump sum and remains so entitled. Had her employment been transmuted to employment of indefinite duration that situation would not have altered in law. On that point the Court is mindful of the dictum of Hogan J inHolland v Athlone Institute of Technology[2012] E.L.R. 1 to the effect that a person who obtains a contract of indefinite duration by operation of law cannot be in a superior position to a person whose status as a permanent employee was never in doubt.

Outcome
For reasons that are substantially different to those found by the Rights Commissioner the Court has come to the conclusion that the within complaints are not well founded. In these circumstances the Court must disallow the Claimant’s appeal.

Signed on behalf of the Labour Court



Kevin Duffy
CR______________________
9th December, 2014.Chairman



NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.