FTD168

FULL RECOMMENDATION

FTC/16/4

DETERMINATIONNO.FTD168

r-159458-ft-15/MH

INDUSTRIAL RELATIONS ACTS, 1946 TO 1990
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003

PARTIES :

NUIG
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

CONNIE FARRELL
(REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION)

DIVISION :

Chairman: Mr Hayes
Employer Member: Mr Marie
Worker Member: Mr Shanahan

SUBJECT:
1. Appeal of an Adjudication Officer's Decision No r-159458-ft-15.

BACKGROUND:

2. This case is an appeal by the Worker of an Adjudication Officer's decision No: r-159458-ft-15 made pursuant to Section 15(1) of the Protection of Employees (Fixed Term Work) Act, 2003. a Labour Court hearing took place on 22 June 2016. The following is the Court's Determination:

DETERMINATION:

Appeal

1. This is an appeal under section 15(1) of the Protection of Employees (Fixed Term Work) Act 2003 (the Act) by Ms Connie Farrell (the complainant) against a decision of an adjudication officer ref number r-159458-ft-15/MH issued on 25/02/2016 in which it was held that University College Galway (the respondent) had not infringed section 13(1) (d) of the Act when it decided not to renew the Complainant’s fixed term contract of employment after 31 July 2015. The Complainant appealed against that decision to this Court. The appeal came on for hearing on 22 June 2016.

Background

2. The respondent employed the complainant as Co-ordinator of Production and Direction MA Programme in the Huston School of Film & Digital Media commencing on 1 September 2012. She was employed on a one year fixed term contract of employment that expired on 31 August 2013. The fixed term contract of employment was renewed for a period of one year on two further occasions. It was not renewed on the expiry of the third fixed term contract of employment on 31 August 2015. The complainant’s case is that the decision not to renew the fixed term contract of employment at that time was taken “for the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3) of the Act. The complainant gave evidence and presented a number of pieces of correspondence with the respondent in support of her claim.
3. The respondent’s case is that the decision not to renew the complainant’s fixed term contract of employment was taken after it had decided to merge the post she vacated with another part time post and to fill the merged position at a higher level through open public competition. It submits that the complainant competed for that post but was not successful. Finally it submits that had it awarded the complainant to a further 12 month fixed term contract of employment she would not have come within the scope of section 9(3) of the Act and accordingly would not have come within the protection of section 13(1) (d) of the Act as contended for in this case. Professor Rod Stoneman, the Head of the Department and her manager gave evidence to the Court in which he stated that the decision to merge the two posts was taken in the best interest of the students and of the department and was not related to the complainant’s entitlement or non-entitlement to a contract of indefinite duration.
The Law
4. Section 9(2) protects workers against the abuse of successive fixed term contracts of employment. It states.
- i.(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.
  ii.Section 13 (1) (d) of the Act protects workers against measures designed to prevent a worker acquiring rights under section 9(2) of the Act. It states
  iii.13.—(1) An employer shall not penalise an employee—
  iv.(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9 (3).
  v.Section 8(2) of the Act states
  vi.(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.
5. It is clear from a plain reading of section 8(2) of the Act that an employer may renew or not renew a fixed term contract of employment. Where an employer decided to do so, it must comply with section 8 of the Act and set out the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration. However it does not place an obligation on an employer to renew a fixed term contract of employment nor does it confer an entitlement on an employee to the renewal of a fixed term contract of employment.
6. Section 9 (2) of the Act confers an entitlement on an employee who has been employed under two or more successive fixed term contracts of employment the duration of which, in aggregate, exceed four years to a contract of indefinite duration where objective grounds for renewing a fixed term contract of employment do not exist. However it does not confer an entitlement on an employee to the renewal of a fixed term contract of employment where an employer decides not to renew it.
7. Section 13(1)(d) of the Act affords special protection to an employee and prevents an employer from dismissing an employee where the reason for the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration under section 9(3) of the Act.
8. On the balance of probabilities the Court finds that the complainant did not meet the four year threshold set out in section 9(2) of the Act and accordingly did not become entitled to a contract of indefinite duration under the Act.
9. The Court further finds that the complainant’s contract of employment ended by the effluxion of time and was not renewed. In order to be afforded the protection of section 13(1)(d) of the Act the reason it was not renewed must as a matter of fact be wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration under section 9(3) of the Act. In this case the Court finds that the contract contended for by the complainant could not have been deemed to be a contract of indefinite duration under section 9(3) of the Act. Furthermore the Court finds, on the balance of probabilities, that the reason the complainant’s fixed term contract of employment was not renewed was for the purpose of creating a new post at a higher level and not wholly or partly for or connected with the purpose of the avoidance of a fixed term contract being deemed to be a contract of indefinite duration.
10. For those reasons the Court affirms the decision of the adjudication officer and dismisses the appeal.

Determination

11. The Court affirms the decision of the adjudication officer and dismisses the appeal.
12. The Court so determines.

Signed on behalf of the Labour Court

Brendan Hayes
28 June 2016______________________
MNDeputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.