FTD164

In this Determination the parties are referred to as they were at first instance. Hence. Mr Wogan is referred to as the Complainant and Dublin Institute of Technology is referred to as the Respondent.

The claim relates to an alleged contravention by the Respondent of section 13(1)(d) of the Act which, in effect, classifies as unlawful penalisation the dismissal of a fixed terms worker where 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 s.9(3) of the Act.

History
At first instance the Rights Commissioner held that a complaint pursuant to s.13 of the Act was not properly before him. That decision arose in circumstances in which the originating form completed by the Complainant in initiating the claim did not indicate expressly that reliance was being placed on that section. The Complainant appealed against that decision.

A preliminary hearing was held on 1^stMay 2014 for the purpose of deciding whether the Rights Commissioner was correct in declining jurisdiction to hear that aspect of the claim. In Determination FTD149 the Court held that the originating form should be amended so as to expressly claim redress for a contravention of s.13(1)(d) of the Act. The Court also gave certain directions regarding the exchange of documents and details of the evidence to be relied upon by the Complainant so as to prevent any possible prejudice to the Respondent arising from this amendment. Issues subsequently arose concerning the extent of compliance with this direction which delayed the substantive hearing of the appeal.

The appeal subsequently came on for hearing on 15^thMarch 2016. Further hearings were held on 11^thand 12^thApril 2016.

Background
The Complainant was employed by the Respondent as a Business Development Manager in what is known as the Digital Media Centre (DMC) attached to the Respondent Institute. He worked on a series of fixed-term contracts commencing in or about April 2009. His employment terminated on 31^stDecember 2012, when his final fixed term contract expired without being renewed.

The Complainant worked for the Respondent continuously during this period pursuant to six fixed term contracts as follows: -

The aggregate duration of the Complainant’s employment with the Respondent was three years and nine months.

The Dispute
The Complainant contends that the non-renewal of his final contract after it expired on 31^stDecember 2012 constituted a dismissal. He further contends that the Respondent was actuated in dismissing him by the realisation that any further renewal of his contract would extend the aggregate duration of his continuous fixed term employment beyond four years, thus transmuting his contract to one of indefinite duration by operation of s.9(3) of the Act. In advancing that case the Complainant contended that at the time his employment was terminated the DMC had sufficient work in hand and the financial resources available to cover its continued operation up to early 2014. The Complainant further contended that in dismissing him the Respondent was acting in pursuance of a policy of not renewing fixed term employment where the renewal could attract the operation of s.9(3) of the Act.

The Respondent accepted that the non-renewal of the Complainant’s fixed term contract constituted a dismissal for the purpose of the statutory provision upon which he relies. However, it denies that the dismissal was in any way related to the avoidance of his employment becoming permanent. Rather, it was submitted, the decision not to renew the Complainant’s employment was based on a belief that the role that he performed was no longer viable or necessary.

Net Issue
What is in issue in this case is whether, as the Complainant contends, he was penalised by the Respondent in contravention of s.13 of the Act. That section provides: -

• 13.—(1) An employer shall not penalise an employee—
  • (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

    (b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

    (c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

    (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 undersection 9(3).

  (2) For the purposes of this section, an employee is penalised if he or she—
  • (a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

    (b) is the subject of any other action prejudicial to his or her employment.

Evidence
Over three days of hearings, the Court heard evidence on behalf of the Respondent from Mr John O’Connor, Director of the Respondent and Dean of the College of Arts and Tourism and Mr Brian O’Neill, Director of Research with the Respondent who, at the material time was Head of the School to which the DMC was attached. Evidence was also given by the Complainant, Mr Evin McCarthy who was the Complainant’s line manager at the material time and Mr Eoin Kilfeather, Coordinator and Principal Investigator on the project in which the Complainant was employed.

The parties also furnished the Court with extensive written submissions and documentation relating to the factual matrix of the case. All of this evidence and material has been fully considered by the Court in reaching its conclusions.

The facts
The facts as admitted or as found by the Court on the evidence are as follows: -

• • At all material times the Complainant was employed at the DMC as a Business Development Manager (BDM). The role of the BDM was to develop existing business and acquire new business.

    The DMC is described as a multidisciplinary research centre focused on research and commercial projects in the field of information and communication technologies. It specialises in research projects in the area of culture and heritage, language learning, multimedia interaction, spatially aware computing, digital heritage and machine learning.

    The Complainant was employed on fixed term contracts which were subject to periodic renewal. The standard arrangement within the Respondent Institute by which approval is obtained to employ staff, including the renewal of fixed term contracts, is that a form, referred to as a Staff Requisition Form (SRF), is completed and submitted to the appropriate manager for approval. It is then submitted to the Human Resources Approval Group which is a sub-committee of the Human Resources Committee of the Respondent. These SRFs must contain a narrative setting out the justification for the post to which it relates and it must also identify the funding available for the post and the source of that funding. It must be signed by the appropriate Director of the Respondent before it can be submitted for final approval by the Human Resources Approval Group.

    In his evidence, Mr O’Connor told the Court that the mere signing of a SRF by the relevant Director did not constitute an endorsement of the content of the SRF. Rather, that endorsement arises when the SRF is submitted to the Human Resources Approval Group. He said that the form has no status until it is approved by that Group. However, the formulation used in the section of these forms in which the Director’s signature is affixed does indicate that the Director must approve of what the document contains. It reads: -

    
    “Director Approval
    
    I approve the request for the above post and (for externally funded posts) the request is in line with the agency plan”

    The signature of the Director is then affixed (which can be electronic where the Director so approves)

    On each occasion on which the Complainant’s fixed term employment was renewed a SRF was prepared by the management of the DCM in respect of the proposed renewal and submitted in the normal way. The Court was told that the SRF was intended to provide justification for maintaining the role to which it relates rather than for the employment of a particular post holder.

    The Court was told that at the time that the Complainant’s fifth contract was due for renewal in 2011, the management of the DMC believed that sufficient funding and work was then available to justify the continuation of the BDM role for a further 27 months. Mr Evin McCarthy told the Court that this belief was based on the fact that the DMC was then engaged in a project, known as the Decipher Project, which was due for completion in December 2013 and was fully funded up to that time. The Complainant was centrally involved with this project.

    Accordingly, a SRF was prepared proposing an extension of the BDM post for 27 months following the expiry of the Complainant’s then current fixed term contract on 30^thSeptember 2011. This SRF was presented to the then Director of the Faculty of Arts and Tourism, Ms Grant, and was approved and signed by Ms Grant. Mr McCarthy told the Court that shortly after Ms Grant signed the proposal contained in that SRF she contacted him by telephone to say that a 27 month extension of the Complainant’s fixed term employment would not be granted. Rather, Mr McCarthy was told, the contract would be renewed for a period of 15 months from 1^stOctober 2011.

    At that time the Complainant had accrued continuous fixed term employment with the Respondent of 2 years and 6 months. An extension of the Complainant’s contract for 27 months would have extended the aggregate duration of his fixed term contract beyond four years, thus, potentially at least, bringing s.9(3) of the Act into play. However, such a potentiality would not arise from an extension of 15 months, which would result in the Complainant having aggregate service of 3 years and 9 months on the expiry of that contract.

• Mr John O’Connor who is a Director of the Respondent institute and is Dean of the Facility of Arts and Tourism became involved with the DMC in 2012. That Centre is a unit of a school within the Institute and the head of the school, who would normally have had responsibility for the unit, was on sabbatical leave. Also, the manager of the DMC had retired and had not been replaced. In these circumstances Mr O’Connor became responsible for the Centre. His involvement commenced in the summer of 2012.

  In anticipation of the expiry of the Complainant’s contract on 31^stDecember 2012 Mr McCarthy prepared three separate SRFs seeking approval for the continuation of the Complainant’s employment. In each of these forms Mr McCarthy set out the case for retaining the Complainant in employment and addressed the funding that was then available to support the role. Each of these forms were submitted to Mr O’Connor and were approved by him. However, the form was not subsequently referred to the Human Resources Approval Group. According to Mr O’Connor he decided against submitting this form because he had formed the view that the role of Business Development Manager was not viable. He told the Court that a major issue for the Respondent related to the commercialisation of projects such as those undertaken by the DMC. That term relates to the degree to which projects generate net income to the Institute. The witness was concerned that the DMC as it was then structured was not meeting that objective.

  The Court was told of meetings that Mr O’Connor had with the Complainant and Mr McCarthy in which he expressed dissatisfaction concerning the activity being undertaken by the DMC. He told the Court that he sought further information concerning the work being undertaken by the centre and that information was not provided.

  In their evidence both Mr McCarthy and the Complainant denied that Mr O’Connor had expressed any dissatisfaction concerning the work in which they were engaged. They also told the Court that any additional information sought was provided.

  It is noteworthy that SRFs which proposed the continuation of the Complainant’s role and the renewal of his fixed term employment were signed by Mr O’Connor at times when, according to his testimony, he had serious misgivings in relation to the need for a BDM and the viability of the Complainant’s employment. These forms contains a passage setting out the consequence of not filling the post in the following terms: -

  • • “Self-sufficiency model for the centre will cease to function: During the past four years, a number of significant projects have been brought into the centre with the direct assistance of the BDM. This has resulted in income to the centre of about €1.4 million. Pipeline activities will cease: Overlapping projects and management of funding have been a key component of our pipeline, a tried and trusted commercial model. Currently pipeline fully covers six research posts (including increments) at the centre until Q1 of 2014. Misalignment of research thematic strategy: The centre activities are aligned with evolving research thematics and and [sic] removal of the role exposes the centre to the divergence from its strategic focused aims. Disruption to the development of programmes and new business: Without a BDM the DMC will loose [sic] its forward looking perspective and facility to win new business. It will also remove an ability to deliver on dissemination and exploitation activities essential to current research work. Loss of expertise: Programme Pls will loose [sic] a vital input in the preparation of funding proposals, a key factor in winning funding”

Policy of the Respondent in Relation to Fixed Term Employment

• In 2011 the management of the Respondent prepared a report for the Human Resources Committee entitled ‘Recommendations to Respond to CID Exposure and Support DIT Research’. The thrust of this report was that the Respondent could be exposed to having a significant number of temporary fixed term employees becoming permanent members of its staff by operation of the Act. Its authors made a number of recommendations, the most significant of which, for present purposes, is that contained at paragraph 1.5 (at page 10), as follows: -
  • 
    DRE recommends the implementation of Option 8 above. There are two aspects this recommendation:
    • 
      1.To maintain / enhance the research base a select number of Flosgraigh Research Fellows will be appointed based on stringent internationally-benchmarked criteria (section 2)

      2.No further contract extensions or renewals will be given to any contract positions, regardless of the case (section 4)

  In his evidence in relation to this document, Mr O’Connor told the Court that it stemmed from a concern on the part of the Respondent to ensure that its staff were employed appropriately. He said that the document was tabled at a meeting of the Human Resources Committee and it was neither accepted nor rejected.

  The Court was also referred to a document entitled ‘Research Staffing Model’.This document was produced by the Human Resources Committee of the Respondent in 2012 against the background of the application of an employment control framework within the public service. The purpose of the employment control framework was to place limitations on the numbers employed across the public service, including the education sector.

  While this is an extensive document its noteworthiness, in the context of the instant case, lies in the recommendations that it contains in relation to the control of fixed term contracts and, in particular, the need which its authors identified to prevent fixed term employees obtaining a contract of indefinite duration by operation of the Act.

  Of particular note is the recommendation contained at pars 2.3.1, 2.3.2 and 2.3.3 of the document as follows: -

  • “2.3.1 Recommendation

    All research posts must be publicly advertised. Research posts will be special purpose / fixed term contracts (i.e. a contract that limits the period of employment to the completion of a particular research task or tasks with a maximum time limit) and be associated with an identifiable, funded research programme. After the expiry of the time / task the post holder leaves the post and will not be reengaged by DIT in any post other than in a permanent capacity it should clearly be understood that these candidates will be excluded at shortlisting or equivalent stages for any non-permanent post in DIT”

• • “2.3.2 Recommendation

    Based on the above, research employment contracts cannot be extended beyond the end of the first employment contract period in DIT. In other words, no contract extension will be approved.

    It will be essential that contracts are properly managed and fixed term employees are not granted renewal or retained in employment (even in error or inadvertently) after the expiry of the term.”

    “2.3.3 Recommendation

    Individuals in their first contract of employment in DIT or who, after a contract renewal, do not have 4 years accumulated service will not have their contracts renewed or extended as their contracts expire”

  In evidence Mr O’Connor accepted that the content of this document seemed to represent the policy of the Respondent.

  There was some controversy as to whether the Complainant’s position was a research role and if his employment was encompassed by this policy. However, the Court is satisfied on the evidence that the function performed by the DMC came within the general designation of research. It that regard it is noteworthy that SRFs created in respect to the proposed renewal of the Complainant’s post contains a question in the following form: -

  • “Please confirm that this post is to be considered under the Research Staffing Model”

• • On the last SRF signed by Mr O’Connor and dated 17^thOctober 2012 the box indicating an affirmative answer was ticked. It is noted, however, that in an earlier SRF the opposite answer is given,

    In any event, the Court regards it as highly unlikely that the Respondent would pursue a policy in respect of fixed term employees employed in research and adopt a different position to fixed term employees engaged in other activity.

• A document entitled “Employment Contract Analysis” was prepared, in or about November 2012, for the purpose of assisting Mr O’Conner in deciding if he should recommend the continued employment of the Complainant to the Human Resources Committee. This documents recited the Complainant’s employment history. It also contains comments on a claim that the Complainant had made for a contract of indefinite duration and possible defences that may be available to the Respondent in proceedings that the Complainant had either brought or might bring under the Act.

• “Mr Wogan does not complete 4 years’ service until 01/04/13. The Institute could argue that Mr Wogan is not protected by the Protection of Employees (Fixed Term Work) Act until such time as he completes 4 years continuous service and it purports to re-engage him on a fixed term contract. His current contract ceases on 31/12/12.

  Section 9(2) of the Protection of Employees (Fixed Term Work) Act 2003 does not prevent an employer from renewing a Fixed Term contract if there are genuine objective grounds for so doing (Section 9(4) refers). The Director needs to consider the objective grounds if it is intended to renew Mr Wogan’s contract from 01/01/13. The objective ground must satisfy the three-tier test i.e. “real need” or legitimate objective of the employer, it must be “appropriate” to meet the objective which it pursues and the measures must be “necessary” in order to meet that objective.”

• • “There is limited exposure under the Act. However, if the College intends renewing Mr Wogan’s contract on 01/01/13 the exposure for a CID will significantly increase”
  There followed a section headed “Director’s Comments and Proposal to HRC”. This section was completed as follows: -
  • “Ongoing requirement for the post:The College, in conjunction with DRE is currently reviewing the DMC. Any future role for a Business Development Manager will be part of that review which is expected to have a completion date in January 2012.

    Funding Source:The post was previously funded from externally funded research projects in DMC

    I propose to HRC that, in these circumstances, we do not intend seeking a renewal of Mr Wogan’s contract.”

• • No documentary evidence was tendered to show that any review of the type referred to in this document was, in fact undertaken,

    Finally the Complainant told the Court that following the termination of his employment the funding and the functions in respect to the project on which he worked for the Respondent were transferred to the Royal Irish Academy. He was employed by the RIA on a one year fixed term contract in conjunction with that project. While his job title was not that of Business Development Manager he told the Court, and the Court accepts, that the particulars of his duties in that post were the same in every material respect as those that he performed in respect of the project when employed by the Respondent.

The language used in the statute imports a test of causation. The purpose of avoiding a fixed term contract being transmuted to one of indefinite duration need not be the only reason for the dismissal. It is sufficient if it was an operative consideration in the sense that it was an influential factor operating on the mind of the decision maker at the time that the impugned decision was made. What did, or more importantly in the context of the question arising in this case, what did not influence a decision maker is a question of fact which must be established by drawing inferences from the evidence adduced. As was pointed out by Noonan J inBoard of Management of St. Joseph’s School for Deaf Boys v Philip Grehan[2015] 605, at par 29, such inferences must of course be drawn having regard to the factual matrix as a whole and not in the teeth of established facts.

The evidence in this case disclosed that at the end of 2012 the DMC was fully funded and the continued employment of the Complainant was financially viable up to at least 2014. It also had sufficient work in hand to occupy all its staff, including the Complainant.

At the time that the decision was taken not to renew the Complainant’s employment the Respondent Institute was actively concerned to ensure that its permanent staffing levels was not unintentionally expanded by temporary fixed term employees attaining permanency of tenure by operation of the Act. This imperative was significantly influenced by the introduction of the employment control framework which reflected the funding constraints on all public sector employers arising from the economic recession at that time. It also appears clear to the Court that another influencing factor was the provision in the then Public Service Agreement between the Government as an employer and the Trade Unions representing public servants which curtailed the capacity of the Public Sector employers, including the Respondent, to make surplus permanent staff redundant.

It is clear that a central strategy adopted by the Respondent in pursuance of that objective was to avoid situations in which fixed term employees would come within the ambit of s.9 of the Act by accruing more than four years continuous fixed term employment. That is clear from the document entitledRecommendations to Respond to CID Exposure and Support DIT Researchand that entitled ‘Research Staffing Modelboth of which were considered earlier in this Determination. While evidence was led on behalf of the Respondent that these documents did not relate to the Complainant’s employment, the Court cannot accept that evidence. In the SRF approved by Mr O’Connor on 17^thOctober 2012 it is stated that the Complainant’s position did come within the Research Staffing Model. Moreover, having regard to the background against which these documents were created the Court cannot accept that the strategy which they disclosed was limited only to a particular category of fixed term employees.

The Court has carefully considered the evidence adduced to the effect that in the lead up to the expiry of the Complainant’s final fixed term contract, in December 2012, there was a concern at the continuing viability of the role performed by the Complainant. The Court has reviewed a considerable volume of emails and other documents put in evidence concerning the interaction between Mr O’Connor and the management of the DMC at the material time. It could find nothing to corroborate Mr O’ Connors claims that he had expressed dissatisfaction with the work being undertaken by the Centre. The Court is also satisfied on the evidence that any information sought by Mr O’Connor in relation to the Centre was provided promptly.

The evidence tendered on this point is also wholly inconsistent with the narrative contained in the three SRFs signed by Mr O’Connor at the time when he claimed to have experienced serious misgivings concerning the need for a BDM in the DMC. The clear import of these documents was that the role of BDM was necessary and that the Complainant’s employment should be continued. On that point, the Court is satisfied that unless Mr O’Connor adopted and approved of what these SRFs contained he would not have signed them.

The Court also considers it significant that in 2011, the then Director of the Respondent approved a proposal to extend the duration of the Complainant’s contract for a duration of 27 months in circumstances where both the funding and the work available to the DMC supported such a renewal. That proposal was not accepted and an extension of 15 months was provided instead. It is reasonable to infer that this decision was influenced by the realisation that a 27 month extension would bring the Complainant’s aggregate service over four years and thus bring section 9 of the Act into play.

The document entitledEmployment Contract Analysiswhich contained the recommendation that the Complainant’s employment be terminated made it expressly clear that any renewal of his employment into 2013 would place the Respondent on hazard of having to afford him permanency of tenure. The reason given on that form for the recommendation that it contained was that a review of the DMC and the role of the BDM was being undertaken and would be completed in January 2013. The Court is satisfied on the evidence that no such review was in fact undertaken.

Conclusion
Having regard to all of the evidence the Court has come to the conclusion, as a matter of probability, that the decision not to renew the Complainant’s final fixed term contract on its expiry was influenced by the probability that he would come within the protection of s.9(3) of the Act if his employment was further extended. It follows that the decision was connected with the avoidance of his fixed term contract being deemed to be a contract of indefinite duration under s.9(3) of the Act and therefore constituted penalisation within the meaning of s.13 of the Act.

Accordingly, the Complainant is entitled to succeed in his appeal.

Redress
The Court is satisfied that the appropriate mode of redress in this case is an award of compensation. Section 27 of the Act provides that a Rights Commissioner (and this Court on appeal) can award such compensation as it fair and equitable having regard to all the circumstances up to a maximum amount equal to two years remuneration.

At the time of the Complainant’s dismissal he was paid a salary of €73,669. In addition, he was provided with a pension contribution of €11,000 per annum. His total remuneration was therefore €84,699 per annum. Following his dismissal the Complainant was employed for one year on a fixed term contract on a somewhat reduced salary. He then emigrated to the USA where he currently resides and works.

The Court believes that, had he not been dismissed in circumstances of penalisation, he would have had a good prospect of attaining a permanent post in the Respondent which is a prestigious academic institute. He would also have had the advantage of security of tenure and the other benefits attached to a permanent post in the Public Service. The Court is also satisfied that the Complainant suffered non-pecuniary loss, inconvenience, expense (other than in respect of professional and legal expense which cannot be taken into account) and distress in consequence of the penalisation that he suffered. These are also factors to be taken into account.

Having regard to all the circumstances of the case the Court has come to the conclusion that the quantum of compensation that is fair and equitable should be measured at 133% of the Complainant’s final annual remuneration. The Court therefore awards the Complainant compensation in the amount of €112, 932. The Respondent is directed to pay the Complainant compensation in that amount.

Disposal
The appeal is allowed and the decision of the Rights Commissioner is set aside and substituted with this Determination.

Signed on behalf of the Labour Court



Kevin Duffy
9th May 2016______________________
JKChairman



NOTE

Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.