UD1006/2012

EMPLOYMENT APPEALS TRIBUNAL

CLAIM(S) OF:                                                                                                  CASE NO.

Employee        -           claimant

                                                    UD1006/2012

against

Employer         -           respondent

under

UNFAIR DISMISSALS ACTS, 1977 TO 2007

I certify that the Tribunal

(Division of Tribunal)

Chairman:   Ms N. O'Carroll-Kelly B.L.

Members:     Mr C. Lucey

                    Mr P. Trehy

heard this claim at Dublin on 10th October 2013 and 27th November 2013

Representation:

Claimant:         Mr. Frank Drumm B.L. instructed by Ms. Fiona Roche, Roche & Co Solicitors,                 34 Vevay Road, Bray, Co Wicklow

Respondent:    Ms. Róisín Bradley, IBEC, Confederation House, 84/86 Lower Baggot Street, Dublin 2

Background:

The respondent is a third level institute of education based in Dublin. The claimant was employed by the respondent as an assistant lecturer. The claimant contends that she was employed in a full-time capacity from December 2006 until 2011 when she was employed in a part-time capacity. She contends that the respondent used the resignation of a colleague as an excuse to dismiss her. The claimant worked on a contract that was connected to a colleague’s tenure. She contends that she was dismissed in mid semester on 1^st December 2011, when her colleague resigned. She maintains that half of the post still required teaching.

She contends that her dismissal was outside of the remit of her contract which;

1. did not specify that the resignation of the post holder was a reason to terminate her employment and contains a “continuity of employment” clause.
2. her employment caused a disruption to students some of whom were left without a lecturer and other MSc thesis students were reallocated a supervisor two weeks before their submission deadline.

The claimant believes that her dismissal was to punish her for seeking a contract of indefinite duration (CID) to break her service to deny her claim for a contract of indefinite duration and to impede her progression from assistant lecturer to lecturer.

The respondent disputed the claims.

Summary of evidence:

The Tribunal heard evidence from a witness for the respondent (Dr. M) who is a professor and head of the school for chemical and pharmaceutical sciences. Dr. M granted Dr. C’s request for a career break in 2006. Dr. C’s vacant position was advertised and the claimant was the successful candidate. However, when Dr. C returned on a part-time basis in July 2011 the claimant could not “slot into” the other part of the position that was vacant as the respondent had to undertake a formal process to fill the post. The position was advertised as a specified purpose contract. The claimant applied for it and was successful. However, on the basis of Higher Education Authority guidelines the claimant could not be retained when Dr. C later resigned as her role was tied to that of the substantive post holder.

The Employee Industrial Relations Manager (Ms. G) gave evidence on the contracts and letters issued to the claimant. As part of her role she works with the senior management human resources team. The respondent was impacted by a recruitment moratorium which the Higher Education Authority notified them of in March 2009. Fixed-term contracts could no longer be renewed due to the moratorium. The only autonomy existed in relation to frontline teaching positions.

The claimant commenced her employment with the respondent in December 2006 in a temporary wholetime assistant lecturer position. A letter dated 14^th November 2006 enclosed the contract of employment and confirmed to the claimant “…that this is a specified purpose contract insofar as you are replacing a permanent member of staff who is on career break for the academic session 2006/2007.” However, the contract itself stated it was a fixed-term renewable contract with an expiry date of 31^st August 2007. The claimant signed her acceptance of the position.

A letter dated 28^th June 2007 issued to the claimant reminding her that the current temporary contract would cease on 31^st August 2007. However, the letter also stated that the Director of the Faculty had recommended that the claimant be re-appointed to the position of temporary wholetime assistant lecturer. The letter included a specified purpose contract as the claimant was replacing Dr. C who had been granted a career break extension. The claimant signed her acceptance of the terms. It was the claimant’s evidence that she knew from contacts in industry that Dr. C was very busy working in industry and held many contracts with many companies. The claimant thought that perhaps he would not return to his role with the respondent.

A further letter issued from the respondent on 17^th July 2008 to the claimant. It stated that the claimant’s temporary contract was due to cease on 31^st August 2008. This letter again stated that the Director of the Faculty had recommended the re-appointment of the claimant to the position of temporary wholetime assistant lecturer to again replace Dr. C who had been granted a further extension of the career break. The claimant was asked to sign her acceptance. During cross-examination it was put to Ms. G that there had been no need to send this letter. Ms. G acknowledged that the letter was badly worded. In reply to questions from the Tribunal, she accepted that the letter should not have been sent to the claimant. No such correspondence issued in 2009. When the moratorium was introduced in 2009 the human resources department could not renew fixed-term contracts but could continue with specific purpose contracts.

A letter dated 22^nd July 2010 issued to the claimant regarding a “specified purpose contract update.” This letter advised the claimant that a further extension of one year had been approved to Dr. C. The letter stated, “consequently, your specified purpose contract ……will continue until at least 31^st August 2011.” A letter in July 2011 advised the claimant that in accordance with the terms of her contract of employment her employment would cease on 31^st August 2011 as the career break for which she was covering would cease on that date.

However, Dr. C had requested to avail of the job sharing scheme. The job-sharing policy for academic staff was opened to the Tribunal. This is applied for on an annual basis and applications are considered by the Head of School and approved by the Director. Dr. C’s request was approved. Consequently, the post of pro-rata part-time assistance lecturer (specified purpose) was advertised. The claimant applied and was successful. A letter dated 28^th September 2011 issued to her and stated that, “this post is offered on a specific purpose contract basis covering hours arising from a staff member’s job-share arrangement. The contract will cease on the staff member’s return to work on a wholetime basis.” It was the claimant’s evidence that she did not understand why she had to re-apply for the part-time role. During the process the claimant continued to carry out duties associated with the role. It was the claimant’s evidence that although she used his desk she never once saw Dr. C when he returned on a part-time basis. There were also rumours that students had complained of his absence. Dr. M was recalled on the second day of hearing in relation to this issue. He stated that he saw Dr. C in the college once in September 2011 in relation to the timetable. On another occasion it was to discuss his resignation and on a third occasion halfway through the semester when Dr. C stated that he would be abroad for a period of time. Dr. C was responsible for re-organising his hours for that time.  

The claimant wrote an email dated 3^rd October 2011 to human resources enquiring about her entitlement to a contract of indefinite duration. A letter dated 17^th October 2011 issued from the Human Resources Manager stating that a response had not yet been received indicating whether or not the claimant intended to accept the part-time post. A further letter dated 20^th October 2011 stated that the claimant could sign an acceptance form for the part-time post without prejudice to her claim for a contract of indefinite duration which was under consideration. Although the claimant did not sign the acceptance form, Ms. G witness for the respondent stated that she considered the claimant to have accepted the terms by her virtue of her acquiescence.

1. ^th November 2011 that the Director had considered her claim and recommended to the human resources committee that the claim be contested. The committee endorsed this recommendation. (The matter was referred to the Rights Commissioner and later appealed to the Labour Court by the claimant in November 2012. The respondent was found by both not to have breached S.9(4) of the Act.)

In the interim on 16^th November 2011, Dr. C stated his intention to resign from his post as lecturer. Dr. C had discussed his resignation with the School Head (Dr. M) and with the Assistant Head. The claimant was notified by letter dated 18^th November 2011 that in accordance with the terms of her contract, her employment would cease on 1^st December 2011. The claimant was instructed the following day that she should no longer correct exam papers she had set nor assist the dissertation students. The work which she had set the students was to be corrected by someone else. However, the claimant ultimately had to assist her colleagues by marking these papers by telephone. The claimant gave evidence of loss and efforts to mitigate that loss.

An hourly paid part-time lecturer is used by the respondent to supplement teaching hours and to support teaching programmes. However, now they are only hired if external funds exist to support them whereas historically they were paid from the yearly budget. A number of hours are allocated per school with the Head of School distributing the hours accordingly. Although the claimant applied for these teaching hours she could not be offered them at the time her employment terminated as there was no vacancy. Instead the hours of two existing hourly paid lecturers were extended to cover the hours on a fixed-term basis until June 2012.   It was the claimant’s evidence that she was contacted by them to provide assistance to them as they did not have pharmaceutical experience.

During cross-examination Ms. G confirmed that no further contracts were issued to the claimant between 2007 and 2011. The witness was unaware of an email sent by the claimant on 18^th October 2011 to the human resources Operations Manager stating that she could not sign the current contract as it was not offered on a contract of indefinite duration basis.

Determination:

The claimant commenced her employment by way of a fixed-term contract signed and dated the 11^th November 2006. The duration of the contact was from the 4^th November2006 until the 31^st August 2007. The contract stated “this is a fixed term renewable contract between the Institute and the Lecturer. The duration of the contract will be from the 4^th November until 31^st August 2007.” Her second contract commenced on the 1^st September and was a specified purpose contract to cover Dr. C’s career break. The contract stated “This is a specific purpose contract, insofar as you are replacing Dr. C who has been granted a career break extension”. There is no termination date specified in this contract. The contract is signed by both parties.

By letter dated the 17^th July 2008 the claimant was notified in very clear terms that her contract would cease on the 31^st August 2008. “As you are aware, your current temporary employment contract ceases on 31 August 2008. I am pleased to inform you that the Director and Dean of Faculty of Science has recommended that you be re-appointed to the Position of Temporary Wholetime Assistant Lecturer. This is a specified purpose contract, insofar as you are replacing Dr. C who has been granted a career break extension. The other terms and conditions of the position are the same as those indicated to you in your previous temporary whole time assignment viz-a- viz holidays, sick leave etc.”

The letter of 22^nd July 2010 is what one would have expected to see in July 2008, in circumstances where the specific purpose continued. What is noteworthy is that the terms and conditions in relation to her remuneration changed. The next contract issued had a commencement date of 3^rd October 2011. This contract was never signed due to the claimant’s contract of indefinite duration application. There is no written contract of employment between 31^st August 2008 and 3^rd October 2011.

The letter of the 17^th July 2008 is clear and unambiguous. It terminates her specific purpose contract dated the 1^st September 2007 and offers her another contract conditional upon her signing and returning the acceptance form. She was not issued with a new contract following her acceptance of the position. The respondent stated that the letter of 17^th July 2008 was sent in error. It was alleged that she was on a specific purpose contract to cover for Dr. C’s career break. If that is the case, it is hard to understand why the letter of the 17^th July was issued at all and why a new contract was issued on the 3^rd October 2011 in circumstances where the specific purpose remained consistent throughout that period. The Tribunal do not accept the letter of the 17^th July 2008 was sent in error. It is a very specific letter terminating the claimant’s contract and it requested that certain action be taken by her should she wish to enter into another contract. She accepted the offer of a new contract. The respondent failed to issue one so the claimant worked on until October 2011 without a contract. Based on the above mentioned the Tribunal are satisfied that Section 2(2) of the Unfair Dismissals Act 1977 is satisfied and the Tribunal do have jurisdiction to hear the matter. Section 2(2) states:

On the documents submitted the Tribunal finds that the relevant dates are as follows:

-          1^st fixed term contract 4^th November 2006 – 31^st August 2007

-          2^nd specific purpose contract 1^st September 2007 – 31^st August 2008

-          3^rd implied contract 1^st September 2008 – 31^st August 2010

-          4^th implied contract 1^st September 2010 – 31^st August 2011.

-          5^th specific purpose contract 3^rd October 2011 – 31^st August 2012 ( expected)

In that time the Claimant received two specific letters of termination one on the 17^th July 2008 and one on the 21^st July 2011. The claimant, despite these two letters of termination never actually ceased working and she worked on with the full knowledge and consent of the respondent. Furthermore the claimant was never issued a renewal contract in September 2008. In that regard the respondent failed in its duties under the Protection of Employees (Fixed Term Workers) Act, 2003

Furthermore, subject to the provision S.9 (1) of the 2003 Act,

“where on or after the passing of this Act a fixed- term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed term contract may be renewed by the employer on only one occasion and such renewal shall be for a fixed term of no longer that one year.

(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.”

The respondent stated that the claimant was only ever employed on a specific purpose contract. Specific purpose contracts normally end when the specific purpose ceases and not before. This was not the case for the claimant. She was given a series of contracts, some fixed, some deemed specific purpose and some implied, some fixed-term implied. In reality she was issued with a series of five fixed-term contracts totalling just short of five years and one month (4^th November 2006 to 1^st December 2011).

The Tribunal find in all of the circumstances that the respondent generally failed to satisfy its legal duties under the Protection of Employees (Fixed Terms Workers) Act, 2003 and more specifically Section 9 thereof. The Tribunal find that the claimant was entitled to a contract of indefinite duration as no new contract was issued in 2008 and the claimant remained on in her role and therefore her contract became one of indefinite duration. Accordingly, the Tribunal finds that the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and awards the claimant the sum of € 14,978.00.

Sealed with the Seal of the

Employment Appeals Tribunal

This   ________________________

(Sgd.) ________________________

     (CHAIRMAN)