FTD159

FTC/14/28                          DETERMINATION NO. FTD159

(R-139808-FT-13/RG)

SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

UCD
(REPRESENTED BY ARTHUR COX SOLICITORS)

- AND -

ALAN O ' DOHERTY
(REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS)

DIVISION :

Chairman : Ms Jenkinson

Employer Member : Ms Cryan

Worker Member : Mr Shanahan

SUBJECT:

1. Appeal of Rights Commissioner's Decision No: r-139808-Ft-13/RG

BACKGROUND:

2. This is an appeal by the worker of Rights Commissioner's Decision No: r-139808-Ft-13/RG. The appeal is made pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. A Labour Court hearing took place on 3rd September 2014 and 24th February 2015. The following is the Court's Determination:

DETERMINATION :

This is an appeal by Dr Alan O’Doherty against the decision of a Rights Commissioner in his claims against University College Dublin that he became entitled to a contract of employment of indefinite duration with the Respondent pursuant to Section 9(3) of the Protection of Employees (Fixed-Term Work) Act 2003 (the Act). The Rights Commissioner found that the claim was not well founded.

The parties are referred to in this Determination as they were at first instance. Hence, Dr Alan O’Doherty is referred to as “the Complainant” and University College Dublin is referred to as “the Respondent”.

The essence of the Complainant’s claim is that as the aggregate duration of successive fixed-term contracts furnished to him exceeded four years he became entitled to a contract of indefinite duration from 1st May 2013. He claims that a fixed term contract furnished to him on 1st December 2012 with an expiry date of 30th November 2013, transmuted to one of indefinite duration by operation of Section 9 of the Act.

The claim was referred under the Act to the Rights Commissioner Service on 12th November 2013.

Background

The Complainant holds a primary degree in Biomedical Sciences from the University of Ulster; in 2009 he obtained a PhD from that University in Biomedical Science and Epigenetics.

He was first employed by the Respondent on 1st May 2009 as a Post-Doctoral Researcher in the School of Agriculture Food &Veterinary Medicine pursuant to a fixed-term contract due to expire on 30th October 2010, assigned to the "Markers of stress and aging in bovine oocyte" project.

This was followed by a fixed term contract from 1st December 2010 until 30th November 2012 as a Post-Doctoral Fellow (Level 1), assigned to the "Reproductive Biology Research Cluster" project.

He was furnished with a further fixed term contract which commenced on 1st December 2012 until 30th November 2013 as a Post-Doctoral Fellow (Level 2) again assigned to the "Reproductive Biology Research Cluster" project.

When the latter contract expired it was not renewed. The Complainant was paid a redundancy payment and issued with a P45.

The Complainant was subsequently employed by the Respondent's School of Medicine & Medical Science. That contract has no bearing on this case.

Summary of the Complainant’s Case

Mr Mike Jennings, IFUT on behalf of the Complainant submitted that as the aggregate duration of the Complainant's contracts exceeded four years, he accrued an entitlement to a contract of indefinite duration on his third contract. i.e. 1st December 2012. He submitted that there were no objective grounds to justify the Complainant’s ongoing temporary employment, and he referred to the spurious character of the alleged objective grounds advanced by the Respondent for their renewal when there was (and is) a clear need for his ongoing employment.

Mr Jennings questioned the genuineness of the Respondent’s “Research Career Framework" (“RCF”) as the main argument for its treatment of the Complainant. He stated that this was never raised prior to the complaint being referred to the Rights Commissioner Service and that the records show that the Respondent did not have the RCF argument in mind at the time they made their decision. He contended that the

"training" schedule set out in the RCF is incomplete and in total contradiction with the terms of the Complainant’s various contracts, each of which stated that his training would be completed within the time period of the contract. He submitted that this was a direct contradiction of their indicative timeframes in the RCF.

Mr Jennings asserted that the RCF is not a career enhancing framework as suggested, but a device to denigrate the job of being a Researcher which is being retrofitted to cases such as the Complainant’s to justify denial of rights by the Respondent which they should otherwise enjoy by operation of law. He held that the Court should disregard it as a generalised scheme which does not meet the "precise and concrete characteristics of the given activity" as held by the CJEU in the case Adeneler v Ellinikos Organismos Glalaktos [2006] ECR 1-6057.

In support of his contention Mr Jennings cited HSE North Eastern Area v Khan, FTD 064 where the Labour Court applied the three tier test (as devised by the CJEU in the Case C-170/84 Bilka-Kaulhaus GmbH v Karin Weber von Hartz [1986] ECR 1607) to the training argument. He contended that it could not be a legitimate objective of the employer to provide world-class research by means of temporary, insecure employment. He argued that the Respondent is increasingly arguing not for the right to bring in new people but rather for the right to keep existing, long service Researchers continually employed as fixed-term employees. That, he contended, is not a"legitimate" objective.

Mr Jennings questioned if it takes approximately 6-9 years of full-time post-secondary education to achieve a Doctorate and "in training" for a further period of 6-10 years as part of the RCF, then could a "training period" of 12-19 years be "legitimate", "appropriate" or "necessary".

Mr Jennings said it was not clear how post-doctoral training is deemed to come to an end, how such a decision is reached, or what goals are to be achieved. He submitted that the entire approach is totally arbitrary and out of line with the norm. He stated that that there is no formal induction process for such training in the Respondent University. The Complainant developed his knowledge and skills in his chosen field, Epigenetics, through undergraduate and PhD studies at another University. In 2009 he was hired by the Respondent not because they wanted to offer him training, but because they wanted him as "a key resource person" for the Reproductive Biology Research Cluster (RBRC). He did not get any formal training with the Respondent, in fact, he was required to establish his own programme of research and was involved in overseeing an undergraduate research project. He assisted with supervision of PhD students and was involved with assessing undergraduate presentations. He established a variety of different projects e.g. experimental design, sample collection, preparation of manuscripts to make them ready for publication etc. He established collaborations with a number of other Researchers within the School of Agriculture and Food Science. In this regard Mr Jennings cited Dublin Institute of Technology-v- Mr Mikel Gainza FTD 1238 in which the Labour Court said:-

 "The Institute failed to distinguish between the permanent status of the research group and the discrete nature of each of the research projects. As one project came to an end the group did not disappear, it sought replacement projects from other potential clients. The Complainant was a fixed and permanent member of the group and was paid out of the finances generated by each of the successive projects the group or Institute secured. In this regard it is no different to firms offering professional services to clients on a project basis."

In that case the Court went on to order the respondent to reinstate the Complainant on a Contract of Indefinite Duration with immediate effect.

In referring to the Respondent’s policy document on “Research Career Framework”, Mr Jennings stated that was only adopted in September 2013, whereas the Complainant became entitled to a contract of indefinite duration by operation of law almost a year earlier on 1st December 2012. He also stated that it was admitted by the Respondent that the policy was only put in place "following the outcome of recent legal cases". The document constantly refers to arrangements which "will" come into effect, therefore he contended that currently there is no coherent researcher training programme.

Summary of the Respondent’s Position

Mr Séamus Given, Arthur Cox, on behalf of the Respondent disputed the Complainant’s claim. He stated that a key function of the Respondent, in common with other Universities, is to engage in and encourage research and to provide research opportunities for successive cohorts of post-graduate and post-doctorate researchers. This is one of the objects and functions of a university under sections 12 and 13 of the Universities Act 1997. Most research is externally funded, mostly from the State or other public sources.

He told the Court that if a University is to make research opportunities available to successive cohorts of post-graduate students and post-doctorate researchers, it must be permitted to progress successive cohorts through the available research roles. It would become impossible for Universities to make research roles and projects available to successive cohorts if Universities were forced to employ those involved in research projects on contracts of indefinite duration on or following the completion or discontinuation of the research project on which the post-graduate student/post-doctorate researcher was engaged.

Mr Given said that the Respondent developed a Research Careers Framework (RCF) for the purpose of achieving the objective of employing persons for research projects to adequately train and develop the post-doctoral researchers to progress to a role in academia or often in the private commercial sector. He maintained that it is understood and recognised that the role of postdoctoral researcher is not a career but a training and development opportunity which facilitates the development and growth for those who participate.

Mr Given stated that the RCF is a research career structure with clear role definitions, as follows:-

The Post-Doctoral Fellow: an on-the-job training role that generally lasts between four and six years, and is divided into phases, Post Doc Level 1 (PDl) and Post Doc Level 2 (PD2) and Research Fellow which is a non-tenurable early stage academic role providing the opportunity to pursue a specific project typically funded by the Fellow.

The PDl and PD2 roles train and develop the researcher to progress to the position of Research Fellow which is generally the final stepping stone for the researcher before entering the formal academic structure or a highly specialised commercial research role in industry.

The Complainant worked from 1st May 2009 until 30th November 2010 as a Post-Doctoral Researcher (pre-post-doctoral training programme mapped to PD level 1). He worked as a Post-Doctoral Research – Level 1 (PD1) from 1st December 2010 for a period of 24 months. On 1st December 2012, his employment was extended for a period of 12 months, when he worked as a Post-Doctoral Research - Level 2 (PD2). On 30th November 2013, the Complainant was deemed to have completed his PD2 training, his contract expired and it was not renewed.

Mr Given stated that the Complainant was furnished with written contracts of employment each of which specified the objective grounds underlying the fixed term nature of the contract.

Mr Given contended that the Complainant was not entitled to a contract of indefinite duration at that time as he was employed as a Post-doctoral Fellow level 2 (PD2) under the RCF which provided formalised training and development opportunities to post-doctoral students to adequately prepare them for enduring roles, both in the career of academia and in the commercial arena where highly qualified, skilled and adequately trained graduates having completed PhD studies and post-doctoral training are highly marketable. This he contended was the objective ground underpinning the renewal of Complainant's employment on a fixed-term basis, it constituted a legitimate objective ground and he submitted that there was no less onerous manner in which this objective can be achieved. It is accepted by the Respondent that the Complainant's fixed-term contracts exceeded four years, however this was to enable him to fully engage and complete PDl and PD2 of the RCF and he has since gone on to successfully obtain a promotional position.

The Complainant was employed at the School of Agriculture and Food Science which is home to the Reproductive Biology Research Cluster, a major nationally funded research programme. Many Post-Doctoral Researchers on the Post-Doctoral Training Programme are employed as Post-Doctoral Fellow Level 1 and Post-Doctoral Fellow Level 2 researchers. The research per se does not come to an end but individual researchers are deemed to have concluded their respective training periods.

Mr Given submitted that the objective grounds cited justify the renewal of the Complainant's fixed-term contract on each occasion on which it was renewed and this complied with the three tier test for objective justification formulated in Bilka-Kaufhaus as they meet a "real need' or legitimate objective of the employer, it was an “appropriate” and "necessary" measure takenin order to achieve that objective. He cited the leading judgment of the CJEU, in case C-212/04 Adeneler and Ors. v Ellinikos Organismos Galaktos[2006] IRLR 716 which is an authority on what constitutes objective grounds justifying the successive renewal of fixed-term contracts, when the Court at paragraphs 69-70 of its judgment addressed the issue:

"In those circumstances, the concept of 'objective reasons', within the meaning of clause 5(l)(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."

In support of his position Mr Given also cited two further Labour Court cases - University College Cork and Thomas O'Riordan, FTD1116 where the Labour Court held that:

"the Court accepts that it is an entirely legitimate objective of the [University] to use fixed-term contracts to provide graduates with access to research opportunities and that they are entirely appropriate and necessary for that purpose. "

In UCD and Dr Michael O'Mahony FTD1234 the Labour Court held that:

"It would seem that if, in reality, a university has a properly structured scheme in place whereby graduates are provided with post-doctoral training or development opportunities, and that certain research work is reserved to participants in such programmes, the use of fixed-term contracts for the duration of the scheme would be unobjectionable. "

Furthermore, Mr Given stated that in O'Mahony, the Court found that the Appellant was not engaged in a training and development programme when he accrued four years' service. He said that it was clear however that if he had been this would have been considered to be a legitimate objective ground justifying the renewal of the contract beyond four years. He submitted that the Court's view on post-doctoral training and development expressed in O'Riordan and O'Mahony should be adopted in the present case in upholding the Research Careers Framework as a legitimate objective ground.

Witness Testimony:

Witness testimony was given on behalf of the Respondent by Dr Trudee Fair,Senior Lecturer in the School of Agriculture & Food Science and by Professor Alexander Evans,

Witness testimony was given on behalf of the Complainant by the Complainant himself.

Dr Trudee Fair, Senior Lecturer in the School of Agriculture & Food Science

Dr. Fair was employed by the Respondent since 1998, she worked as a self-funded Researcher with an international profile until 2004 and then competed for a Lectureship position.

Dr Fair said that she was the Complainant’s Principal Investigator, he was a Junior Post-Doctoral Researcher and she was wholly involved in his training and development and in assisting him to advance his career. She said that initially when he was employed as a Post-Doctoral Researcher in May 2009, he was employed as a key resource person, due to his unique knowledge of In Bovine Molecular Reproduction.

Dr Fair told the Court that in order to become a “fully fledged Researcher” a PhD graduate would need to attain a certain status whereby he/she is considered by their international peers as experts in a particular area, have completed scientific manuscripts, presented papers at international conferences, become an examiner of PhD theses and have a successful record winning funds for research purposes. She said that in order to attain that status, she would assist and direct the PhD graduate on the research to be carried out, advise him on how to improve the calibre of the research in order to target higher impact journals, i.e. those with the highest rankings. She advised the Complainant on how to build his profile, to apply for funding grants, to submit his work for conferences and to prepare Powerpoint presentations. She involved him in assisting and mentoring students. He was not interested in Lecturing, however he invigilated on mid-term assessment exams and when students were presenting Powerpoint presentations he adjudicated and scored these presentations. Dr Fair said that she identified research work to be carried out, corrected his abstract submissions, and recommended him to speak at or to chair conferences and in general to promote him in order to attain international recognition. She said that she encouraged him to attend/participate at conferences at Laval University, Quebec, Hanover and Turkey – the costs of which were funded by the Respondent.

In answer to questions from the Court Dr Fair said that it takes years to attain the stage of becoming a Research Fellow, that stage happens when the Post-Doctoral Researcher has built up extensive publications in his/her name, when they attain funding grants on the basis of the work/reputation they have achieved, when they have accomplished international recognition which becomes apparent by the number of invitations they receive to speak at conferences and when they are required as an examiner of PhD theses and have the approval of their peers in the scientific community.

Dr Fair was asked about the Research Careers Framework and how it applied to the Complainant. She said that she had had no documents/ briefings on the Research Careers Framework. She had no involvement in drawing up his contracts of employment, she was not formally aware of the programme, she had seen it on notice boards around the University, however, no reference was made to it when the Complainant’s training and development commenced or during its progression. She had no involvement in informing the Complainant about the programme and made no references to any of the various stages of such a programme. She said that the training and development exercise she underwent with the Complainant was autonomous, there were no designated targets set, no formal evaluation was carried out into his progress. She determined his progress based on the results of his grant applications. When asked about his progression from Post-Doctoral Level 1 to Level 11, she told the Court that she was notified that he had progressed but that she was not consulted or asked for an assessment of him beforehand.

Professor Alexander Evans, Dean of Agriculture & Food Science

Professor Alexander Evans outlined his career to date, B Ag from Nothingham University, PhD in Canada, Post-Doctoral Researcher in Cornel University, he joined the Respondent University in 1996 as an Assistant Lecturer, Research and Teaching. He is now Dean and Head of the Respondent’s Agriculture and Food Science School.

Professor Evans described the role of a Post-Doctoral Researcher in the Respondent University. He said that having acquired a PhD the Post-Doctoral Researcher engages in a period of training under the Post-Doctoral Training Programme where he/she would have a close association with their assigned Mentor/Supervisor, known as a “Principal Investigator”. This period, unlike the strict regime when completing a PhD, is more flexible and the Post-Doctoral Researcher has greater opportunity to gain knowledge in the interested subject. During this period, they produce scientific publications, disseminate their research at conferences, gain the recognition of their colleagues at international level. They may get the opportunity to develop intellectual property/patents which personally earn them commercial gain. The opportunity is given to the Post-Doctoral Researcher to learn both hard skills (e.g. laboratory techniques) and softer skills (e.g. communications, conflict resolution and team working skills).

Professor Evans stated that the relationship between the Post-Doctoral Researcher and his/her Principal Investigator is extremely important. A good Principal Investigator can create an environment where these skills can be acquired easily. He said there is no longer a proscribed career path for Post-Doctoral Researchers, unlike years ago, now the opportunities are far greater, where previously the only career was essentially in academia, now there were many opportunities in industry/commercially. He said that a number of Post-Doctoral Researchers will become entrepreneurs. He said that the Respondent provides Post-Doctoral Researchers the opportunity and the framework to engage in research, teaching opportunities and career development. The University provides many training opportunities for Post-Doctoral Researchers, some are short course and others could be up to a year in duration. He said that he would often discuss opportunities with Post-Doctoral Researchers. He mentioned that Science Foundation Ireland examined the Post-Doctoral Researcher Programme. Professor Evans gave details of a review of the Respondent’s Post-Doctoral Researcher Programme carried out by Teagasc and conducted by academics from abroad. He stated that the results were very positive and found that there was clear evidence of mentoring with strong leadership qualities from the Principal Investigators.

In answer to questions from the Court, Professor Evans said that while he was not the Complainant’s Principal Investigator and was not working from a training manual, the Complainant had progressed very well in the Post-Doctoral Researcher Programme. He said that the training element was not carried out in a prescribed manner but was part of the overall Programme. He referred to the documentation furnished to the Court covering details of the Post-Doctoral Researcher Programme and the Research Skills & Career Development Framework. He told the Court that it had received funding to increase the number of Post-Doctoral Researchers and that the Programme was a means to achieve that. He explained that at the time it was introduced, the plan was to employ a Post-Doctoral Researcher at Level 1, if on review they showed promise they would progress to Level 2, and then to Research Fellow stage, if not their contract was not renewed. He said that this review of performance was a process which took place over a period of approximately six months. He said that there were different skills required to progress at each stage, different levels of autonomy would have to be reached, including assessing ability to supervise others, designing/running experiments, acquiring own funds, international recognition. He said that the speed at which one progresses depends on the individual.

Professor Evans said that if it were not possible to employ Post-Doctoral Researchers on fixed term contracts it would meant that the Respondent would become a pure research facility, conducting research on a whole time basis without a throughput of people being given the training and development opportunities which are currently available.

Dr. Alan O’ Doherty, the Complainant

Dr O’ Doherty in evidence to the Court said he was hired for his expertise in Biomedical Science and Epigenetics by UCD in 2009. In the course of his first contract he used techniques that he had acquired from his experience in the University of Ulster to prepare publications and drive research projects. He stated that he received guidance and mentoring at that time but he did not receive training. In reply to a question regarding his lack of interest in lecturing he stated that he declined to lecture in large animal biology because it was of no interest to him, his area of interest being molecular biology. The Complainant stated that in his view he was not a Trainee rather he was hired to do research.

Dr O’Doherty said he was not advised of any transition from Post-Doctoral Research Fellow – Level 1 to Post Doctoral Research Fellow – Level 2 (his second and third contracts respectively) and there were no training courses directly associated with Level 1 and Level 2. With regard to the structured Training Programmes provided by UCD he said communications regarding them were sent to all staff, and as attendance was not mandatory and he had attended some of the courses listed while he was at the University of Ulster, he did not attend any.

With reference to the Complainant’s application for the position he currently holds which outlined in detail the experience he had acquired as a Post-Doctoral Researcher, he was asked how his Principal Investigator, Dr Fair had contributed to the experience he gained. In reply the Complainant said that Dr Fair was an excellent Mentor. She assisted him with the design and carrying out of his research projects. She allowed him to attend at and present at Conferences and he chaired a Conference at Dr Fair’s invitation. He stated that Dr Fair assisted him in making grant applications. His contribution to Journals he said was carried out without assistance from Dr. Fair while his involvement in guiding and training undergraduates and graduates resulted from referrals to him by Dr Fair. The Complainant agreed that the purpose of his application for his current position was to progress his aim of being a Research Fellow.

The Law

In this case the relevant statutory provisions are to be found in Sections 7, 8 and 9 of the Act. The Act was enacted so as to transpose into domestic law the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the then European Communities. Consequently the provisions of the Act must be interpreted and applied so as to achieve the objective pursued by the Framework Agreement.

The purpose of Clause 1 of the Framework Agreement is twofold. Firstly, to improve the quality of fixed-term work by applying the principle of equal treatment to fixed-term workers. Secondly, it is intended to provide a framework for the prevention of abuse arising from the successive use of fixed-term employment contracts.

Section 9(2) of the Act, which is relevant for present purposes, 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.

Section 9(4) provides that subsection (2) and (3) does not apply were there are objective grounds justifying the renewal.

Section 7 (1) of the Act deals with what constitutes objective grounds for this purpose and provides:

(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.

Clause 5 of the Framework Agreement is not directed at limiting the use of fixed-term contracts per se. Rather, it is intended to prevent the abuse of successive fixed-term contracts. What constitutes abuse was left to the Member States. Sections 8 and 9 of the Act are intended to give effect to Clause 5 of the Framework Agreement. Consequently these provisions of the Act must be interpreted and applied so as to achieve the objective pursued by the Framework Agreement. In this case the relevant section is subsection (2) of Section 9 of the Act which defines the circumstances in which the successive use of fixed-term contracts is normally to be regarded as an abuse.

Subsection (3) of Section 9 of the Act 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.

In Minister for Finance v Una McArdle [2007] 18 ELR 165 Laffoy J quoted with approval the following passage from this Court’s Determination in the case in which the effect s.9(3) was considered:

“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."

It is also clear that Section 9(4), and by extension Section 9(3), takes effect at the commencement of the impugned contract. This was made clear by Hanna J. in Russell v Mount Temple Comprehensive School [2009] IEHC 533. This can have the practical effect of transmuting a fixed-term contract to one of indefinite duration before the expiry of the duration referred to in either subs (1) or (2) of Section 9 of the Act. Where, as in the instant case, a fixed-term contract is entered into before the expiry of the four year period referred to in Section 9(2), and its duration extends beyond that period, Section 9(3) operates so as to sever the term in that contract providing for its expiry by effluxion of time. The contract is thus converted to one of indefinite duration from the date of its commencement. This construction of Section 9(3) of the Act is supported by the plain and ordinary meaning of the language used in the subsection, which provides that the“contract concerned” shall be deemed to be a contract of indefinite duration.

Section 9(4) of the Act allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene subsections (1) or (2) where there are objective grounds for so doing. This provision allows for a derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the subsection (see the dictum of the CJEU to that effect in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri [2002] IRLR 430. As in any case in which a party relies on a statutory defence it is for that person to prove the facts necessary to make out the defence.

Objective Justification

There is a wealth of authority in the jurisprudence of the Court of Justice of the European Union on how the concept of objective justification should be applied. In Adeneler the CJEU made it clear that the grounds relied upon must be objectively justified by reference to the work actually performed and the circumstances under which it is performed.

Again in Adeneler and in C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071, the CJEU drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category.

In this case the Respondent’s reliance on Section 9(4) is grounded upon the premise that the Complainant’s third contract was for the purpose of completion of a Post-Doctoral Researcher Level 11 role as provided for within its Research Career Framework, a structured research skills and career development programme for Post-Doctoral Researchers. The Complainant does not accept that he was employed on foot of such a programme but as one of the University’s fixed and permanent research needs. Whether or not the Complainant was in fact on such a structured programme is a question of fact which can only be established on reliable evidence.

The Respondent submitted in evidence extensive documentation outlining details of the Research Careers Framework. In January 2008, the Respondent initiated the Research Careers project in UCD to begin the process of implementing a clear career path to enable the development of research capability and transferable skills for the Post-Doctoral community within the University. The first phase of the UCD Research Skills & Career Development Framework was launched in March 2010 and focussed on providing employment policy and guidelines for the management of Post-Doctoral Fellows by Principal Investigators. The second phase formally launched the UCD Research Skills & Career Development (RS&CD) Framework for the Post-Doctoral population at the University, and was designed to support Post-Doctoral Researchers in the development of skills and the management of their early careers. The website for UCD Research Skills & Career Development went live on 29th November 2010.

The aim of the project was to implement an early stage research career path, entered directly from doctoral education and leading to a tenured academic career, or employment in enterprise or industry. It took the view that the majority of those entering this structure will exit to careers outside academia, and that mobility is critical and accordingly held that training in multiple research environments is therefore an essential element of a complete training in research, and a period of international experience is a normal part of training as a researcher.

The implementation documentation states :-

“Post-doctoral fellow is an employee in an on-the-job training role. Training is a legitimate objective of the University, is of finite duration, and requires that these individuals be employed on fixed-term contracts which terminate on the completion of their training, so that a new cohort of trainees can enter the system. The objective grounds for the fixed-term nature of the Post-doctoral fellowship is intergenerational training and in this context, training and professional development of the individual is a key part of the Post-doctoral role.

In line with the above, it is agreed that the career step after PhD is that of Post-Doctoral Fellow where the individual moves from being supervised and supported by a Principal Investigator (PI) to becoming an independent researcher. This step may consist of two levels to reflect the development process. The typical time taken to develop the necessary skills will be four years for Science, Engineering and Technology (SET) and three years in Humanities and Social Sciences (HSS).

The next step in the research career path is that of Research Fellow. These will be prestigious and highly-competitive roles, which represent an opportunity to pursue a specific research project, to demonstrate independence and to prepare for definitive roles. They will be non-tenurable early-stage academic roles. A period of international experience may be expected for appointment in some areas to the post of Research Fellow.”

A description of the programme states as follows:-

“The UCD Research Careers Framework establishes a structured and supportive skills and early career development model for Post-Doctoral Fellows at the UCD, as recommended in the sectoral Advisory Science Council (ASC) policy document ‘Towards a Framework for Research Careers’. The UCD Framework represents a joint initiative between UCD Research and UCD HR. This initiative will directly support UCD in achieving its research goals.”

The Overview provides for communication on its implementation by means of briefings to key impacted groups:- 

• “Phase One briefings will focus on the employment policy changes for Principal Investigators.
• Phase Two briefings introduce the UCD Research Skills and Career Development (RS&CD) Framework to Post-Doctoral Fellows and their Principal Investigators.

Impacted groups are strongly encouraged to attend these briefings to ensure that they are familiar with the new Research Careers Framework at UCD. These will be advised through the College.”

Conclusions of the Court

Having considered the submissions made by both sides along with the witness testimony, the Court notes that the Complainant’s fixed-term contract from 1st December 2012 stated that it was a training and development role which will be completed within the period of the contract. He was assigned to a specific programme of research under the supervision of a Principal Investigator which was limited in duration to 30th November 2013. The contract stated that the objective justification relied upon was to provided Post-Doctoral Research training opportunities which are of limited duration. It stated that :-

“This will allow for progression over many years, of large numbers of Post-doctoral trainees though the Post-doctoral training programme providing intergenerational training in the methods and practice of research and scholarship. The objective grounds for the issue of this fixed term contract rather than a permanent contract is in keeping with the foregoing objectives of the university.

The contract aligns to UCD Post-doctoral Research Fellow – Level 2 within the Post-doctoral training programme. It is intended that you will be assigned to Reproductive Biology Research Cluster project and it is intended that the project will end on 30th November 2013. Should that project end prior to that date, UCD reserves the right to terminate your employment with UCD, by giving not less than one months’ notice in writing,”

The contract stated that it was a condition of his contract that he should actively and fully engage in the Career and Skills Development process which supports the training and development nature of the role.

The Respondent submitted documentation to the Court outlining the “The UCD Research Skills & Career Development” programme which comes under the auspices of the UCD Research Framework. It established a structured and supportive skills and early career development model for Post-Doctoral Research Fellows Level 1 and 11 at UCD and gives access to development opportunities targeted towards developing their skills and career requirements. This involves the provision of a range of seminars, courses and programmes facilitated by internal and external experts to support their development while in the University. Furthermore, through the UCD Research Staff Association it facilitates opportunities for networking and interdisciplinary exchange of ideas and knowledge.

The Respondent also submitted documentation to the Court listing an extensive list of professional development courses/workshops geared towards Post-Doctoral Teachers which were run in the University between November 2010 and 24th January 2014. By the date of claim, 12th November 2013, the Respondent had organised over 120 of these courses/workshops. The programmes covered four development areas:-

• Research & Research Management
• Personal & Professional Excellence
• Teaching, Learning & Mentoring
• Innovation & Transferable Skills

In a case such as this the Court must be careful to satisfy itself that the Complainant was not in fact used to meet fixed and permanent needs in terms of employment of research staff. At paragraph 60 of the decision of the CJEU in C-190/13 Samohano v University Pompeu Fabra (Unreported, 13th March 2014) the national referring Court was enjoined to ensure that the teachers associated with the main proceedings were not in fact used to meet the fixed and permanent needs of the University. The Court said: -

“However, it is also for that court to ascertain that, in the main proceedings, the renewal of the successive fixed-term employment contracts at issue was actually intended to cover temporary needs and that rules such as those at issue in the main proceedings were not, in fact, used to meet fixed and permanent needs in terms of employment of teaching staff”

That case concerned a rule of Spanish law that allowed for the employment of part-time associate lecturers on fixed-term contracts without limitation. Part-time associated lecturers are employed in Spanish Universities to provide tuition in their specialist field. They are recruited from the private sector and are expected to resume employment in the private sector after completing a fixed term in the University. Their work is ancillary to the work of the University’s regular academic activity.

In considering the type of activities for which the conclusion of fixed-terms contracts may be appropriate, the CJEU in Adeneler and again in C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071, drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category. This would include, for example, once-off project work which is temporary and non-recurring by its nature.

Where the purpose of the Respondent’s development programme is to enhance the research skills and careers development of Post-Doctoral Researchers and is a genuine requirement of the University the conclusion of fixed term contract in these circumstances can be justified on objective grounds notwithstanding that the work to which the contract relates forms part of the employer’s fixed and permanent needs.

Based on the evidence of Dr Fair, Professor Evans and the Complainant, coupled with the extensive documentation furnished to the Court on the Respondent’s Research Career Framework, the Court is satisfied that the Complainant was engaged on a structured Post-doctoral Development Programme, designed to enhance his research skills and career prospects. The Court bases this conclusion on the following facts:-

• The renewal of the Complainant’s contract of employment on 1st December 2012 stated that is was a training and development role and that the training would be completed within the period of the contract.
• The Respondent has a formal scheme in place whereby Post-Doctoral Research Fellows Level 1 and 11are provided with post-doctoral training and development opportunities, and certain research work is assigned to participants in such a programme.
• The contract stated that it was a condition of his employment that he should actively and fully engage in the Career and Skills Development process supporting the training and development nature of his role.
• It outlined that the purpose of the contract was, in line with the Respondent’s objective, to provide him with a Post-Doctoral Research training opportunity and thereby supplied him with details of his Principal Investigator.
• It is clear from the contents of his application letter for the Research Fellow position which he applied for in September 2013 that the skills which Dr Fair as his Principal Investigator, referred to in her evidence were indeed acquired by the Complainant during his employment as a Post-Doctoral Researcher.
• It is not disputed that the Complainant attained the opportunities, skills and recognition outlined by Professor Evans as part of the Post-Doctoral Development Programme.
• As part of the Career and Skills Development process the Respondent organised numerous courses/workshops designed to enhance the Complainant’s research skills and career prospects, which the Complainant chose not to attend.
• The Complainant’s contract on renewal in December 2012 was in accordance with the Respondent’s Research Career Framework’s objective of ensuring that the time taken to develop the necessary skills after completion of his PhD was in line with the typical length of time of four years for those in the Sciences.
• The termination of the Complainant’s employment in November 2013 expired in line the terms of his fixed term contract and he was accordingly made redundant.
• The Code of Conduct for the Recruitment of Researchers, compiled by the European Commission in 2005 and adopted by the Respondent states that institutions appointing postdoctoral researchers must provide clear rules and explicit guidelines for the recruitment of postdoctoral researchers and states “….. postdoctoral status should be transitional, with the primary purpose of providing additional professional development opportunities for a research career in the context of long term career prospects”.

The Court is of the view that the statement of objective grounds in the Complainant’s renewed contract of employment referring to the provision of intergenerational training for Post-Doctoral trainees discloses justification based on objective and transparent criteria, as envisaged by the CJEU in Alonso, in that it identifies a legitimate aim which the Respondent was seeking to pursue and offers an explanation why he was not being offered a contract of indefinite duration. These grounds relied upon by the Respondent were communicated to the Complainant at the time, accordingly it is apt to infer, that they were in the contemplation of the Respondent at the material time. The Court believes that such an inference is just and equitable in the circumstances of this case.

This Court held in UCD v Dr O’Mahony FTD1234:

“There is no evidence before the Court from which it could be concluded that the nature of the work involved in research, per se, inherently justifies the use of fixed-term contract….

However, if this work is undertaken as part of a genuine training or development programme, such as that envisaged by the Forfas report which was opened to the Court, the position may be different. In Determination FTD1116, University College Cork and Thomás O’Riordan this Court held as follows: -

“The Court accepts that it is an entirely legitimate objective of the Respondent to use fixed-term contracts to provide graduates with access to research opportunities and that they are entirely appropriate and necessary for that purpose. However, while these may be legitimate objectives for the employer they cannot be deployed in a general sense to justify the renewal of fixed-term contracts of employment divorced from the facts of the actual case before the Court”

It would seem that if, in reality, a university has a properly structured scheme in place whereby graduates are provided with post-doctoral training or development opportunities, and that certain research work is reserved to participants in such a programme, the use of fixed-term contracts for the duration of the scheme would be unobjectionable”.

In this case, the Court is satisfied that the Respondent had in place such a structured scheme.

In all the circumstances the Court is satisfied that this case is in line with Adeneler, as the objective grounds specified in the Complainant’s renewed contracts of employment and relied upon by the Respondentrespond to a genuine need, to enhance the Complainant’s (as a Post-Doctoral Researcher) research skills and career prospects, to issue a contract of indefinite duration in such circumstances would defeat the purpose of such a programme. Therefore the Court accepts that the renewal of his fixed term contract on 1st December 2012 for a period of one year was appropriate to achieve the objective pursued and was necessary for that purpose.

Accordingly Section 9(3) of the Act did not apply to this renewal.

Determination

For all the reasons set out above the Court determines that the Complainant’s complaint is not well-founded, the Decision of the Rights Commissioner is affirmed and his appeal is therefore disallowed.

The Court so Determines.

Signed on behalf of the Labour Court

Caroline Jenkinson

27th April 2015 ______________________

AH Deputy Chairman

NOTE

Enquiries concerning this Determination should be in writing and addressed to Andrew Heavey, Court Secretary.