FULL RECOMMENDATION
INDUSTRIAL RELATIONS ACTS, 1946 TO 1990 SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : TEAGASC AGRICULTURE & FOOD DEVELOPMENT AUTHORITY (REPRESENTED BY TEAGASC AGRICULTURE & FOOD DEVELOPMENT AUTHORITY) - AND - DOUGLAS SORENSON DIVISION : Chairman: Mr Haugh Employer Member: Mr Marie Worker Member: Ms Tanham |
1. Appeal Of Adjudication Officer Decision No r-150168-ft-14/MMG.
BACKGROUND:
2. This case is an appeal by the Worker of Adjudication Officer Decision No: r-150168-ft-14/MMG made pursuant to Section 15(1) of the Protection of Employees (Fixed Term) Act, 2003. A Labour Court Hearing took place of 28th of April 2016. The following is the Court's Determination.
DETERMINATION:
Background
This matter came before the Court by way of an appeal brought by Dr Sorenson (“the Complainant”) against a decision of the Rights Commissioner (r-150168-ft-14/MMG) now known as Adjudication Officer, dated 8 December 2015. The notice of appeal was received by the Court on 14 January 2016. The parties subsequently filed detailed and comprehensive written submissions with the Court. The Court held a case management conference with the parties on 17 February 2016 at which both the Complainant and Teagasc (“the Respondent”) each undertook to submit a further concise and focused submission dealing with the key issues that arise for consideration by the Court on this appeal. The Complainant delivered his revised submission and booklet of appendices on 18 March 2016; the Respondent’s revised submission was received on 15 April 2016. The hearing of this matter took place on 28 April 2016.
Relevant Employment History
The Complainant is a professional market researcher. His particular skill-set includes survey design and administration, development of detailed questionnaires and holding focus groups. He was employed by the Respondent further to two written contracts of employment as a Research Officer.
The first contract (“Contract 1”) was for a specified purpose linked to a specific project: “to support the Teagasc/FIRM funded project entitled ‘Developing novel convenient meat based products by application of high pressure’. Contract 1 commenced on 1 April 2008 and terminated on 31 March 2010. The Complaint was given approximately 5 weeks’ written notice of the termination of this contract.
The second contract issued to the Complainant (“Contract 2”) was also a specified purpose contract and was also associated with a named research project: “EU Framework – FP7 (EU Netgrow); Project Title: Enhancing the innovativeness of Food SME’s through the management of strategic network behaviour and network learning performance.” The contract commenced on 1 November 2010 and terminated on 30 April 2014. The Complainant was given approximately two weeks’ written notice of the termination of this contract.
It is clear to the Court, and accepted by the Complainant, that Contract 1 and Contract 2 were connected respectively to distinct and unrelated projects. The source of funding was different for each of the projects concerned: Contract 1 was funded by Teagasc/FIRM; Contract 2 was funded under the EU 7thFramework Programme. Although both projects could be characterised as being focused on ‘end users’, it is true to say that Contract 1 was targeted at non-business consumers of particular meat products and identifying their preferences; Contract 2 related to business-to-business issues. Undoubtedly, there was a degree of commonality between the methodologies deployed by the Complainant in fulfilling his duties in respect of both projects.
Claims
There are two aspects to the Complainant’s appeal. Firstly, he claims that he accrued an entitlement to a contract of indefinite duration pursuant to section 9(2) of the Protection of Employees (Fixed-Term) Work Act 2003 (“the Act”). Secondly, he complains that he was penalised contrary to section 13 of the Act when Contract 2 was terminated in April 2014.
The Parties’ Submissions
Contract of Indefinite Duration
Section 9(2) of the Act provides:
- “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.”
Although the Complainant’s formal submission, on the face of it, presents the aforementioned arguments as alternatives to be considered by the Court, it appears, nevertheless, to the Court– arising from the manner in which the Complainant articulated them– that they are inextricably interconnected: i.e. that that Complainant contends that the termination of Contract 1 on 31 March 2010 did not operate to break his continuity of employment with the Respondent such that his continuous employment continued up until 30 April 2014; and further, the period between the end of Contract 1 and start date of Contract 2 should be regarded as (to use the Complainant’s own words) a period of ‘lay-off from paid employment’.
In support of his claim that the period 1 April 2010 to 31 October should be deemed to have been a lay-off period, the Complainant submitted that as of 31 March 2010, there was a reasonable expectation on his part and on the part of his line-manager that the break in his employment would not be permanent and that he would be rehired by the Respondent. In this regard, the Complainant seeks to rely on the following extract from the Court’s determination inCarlow County Council v McSweeney[2012] FTD127 where the Court stated:
- “ … it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently. Hence it could reasonably be said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the termination that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous. This would be to adopt an extended and somewhat more liberal interpretation of the term lay-off such as was done inDepartment of Foreign Affairs v A Group of Workers[2007] ELR 332.”
- “Thisimplies a previous expression of interest, which in turn impliesintenton the part of his Line manager (sic)to recruitfor said position. This is consistent with the Claimant’s inferential evidence that the funding and intention to recruit a Research Officer position was in place prior to 31stMarch 2010.” [Emphasis added by Complainant.]
In support of his submission to the Court that Contract 1 and Contract 2 should be deemed to be continuous - and the period between them regarded as a period of ‘lay off from paid employment’- the Complainant gave detailed evidence in relation to a number of tasks that he undertook or completed after 31 March 2010 in relation to the research project to which Contract 1 related. These included providing inputs to the end of project report and to the Final Progress Report; contributing to a journal publication (‘A1 Paper’; and preparation of a ‘poster presentation’). The Complainant told the Court that he liaised with his line manager and colleagues for a period of between 4 and 6 weeks after 31 March 2010 in relation to the aforementioned tasks. He didn’t seek work elsewhere during this period nor did he seek Job Seeker’s Benefit. When questioned by the Court in relation to this, the Complainant informed the Court that he had travelled to China for 3 months after the conclusion of Contract 1. On cross-examination, the Complainant accepted that he was under no obligation to undertake any work or complete any tasks on the Respondent’s behalf after 1 April 2010. Anything he did do, he did voluntarily and without being subject to the same or any deadlines as would have applied during the subsistence of his contract of employment. He further accepted that, from a professional perspective, a benefit accrued to him arising from the aforementioned publication in a peer reviewed journal and that he never complained that he wasn’t being paid for anything he undertook to do after 31 March 2010. He also accepted, in response to Counsel’s questioning, that he didn’t attend at the Respondent’s offices during the 7-month period between Contract 1 and Contract 2 and nor did he claim or receive any expenses from the Respondent during that period.
Counsel for the Respondent opened the decision of this Court inBeary v Revenue Commissioners[2011] 22 ELR 137 wherein the Court held – in reference to the meaning of continuous employment for the purpose of applying section 9 of the Act –
- “… it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently. Hence it could reasonably be said that where a person’s employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous. This would be to adopt an extended and somewhat more liberal interpretation of the term ‘lay-off’ such as was donein Department of Foreign Affairs v A Group of Workers[2007] ELR 332. While s.11 of the Redundancy Payments Act 1967, which defines the notion of law-off for the purposes of both that Act and the Act of 1973, requires that notice of the employers belief that the cessation of employment will not be permanent be given, the law has long accepted that notice can be actual, constructive or imputed.
For all of the reasons set out above the Court is satisfied that for the purpose of ensuring that the Act is applied in harmony with the Directive a purposive or [teleological] construction should be to applied to the notion of lay-off in the circumstances of the instant case. On that construction where it can be shown that at the time the Claimant’s assignments ceased it was probable that the cessation in employment would not be permanent, a lay-off came into being. On this construction it could be held that constructive notice to that effect was given by virtue of the facts known to both parties at the relevant time.”
Conclusion
The Court, on the balance of probabilities, having considered all of the foregoing, takes the view that the Respondent terminated the Complainant’s employment on 31 March 2010 without any commitment on its part regarding the re-employment of the Complainant thereafter. Whilst the Complainant may have entertained a hope that he would be recalled to work he had been given no commitment to that effect – and neither could he have been, having regard to the Respondent’s obligation to open job vacancies to public competition. Accordingly the Court cannot conclude, on the evidence before it, that the Respondent had given him any assurances, understandings or commitments of future employment. Accordingly the Court decides that the Complainant’s employment was not continuous within the meaning of the Act . Neither was the Complainant laid-off (either in the conventional sense as that term is generally understood or in the ‘more liberal’ sense as comprehended inCarlow County Council v McSweeney[2012] FTD127) for the period between Contract 1 and Contract 2.
Penalisation
The Complainant further contended that he had been penalised contrary to the provisions of Section 13 of the Act. Section 13 provides:
- “13.(1) An employer shall not penalise an employee
…..
(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).
…..”.
The Court has already determined that the Complainant in the instant case has not established that his two separate periods of employment with the Respondent, each pursuant to a separate fixed-term contract, are continuous for the purposes of the Act. The corollary of this finding is that Contract 2 must be considered as stand-alone fixed-term contract for the purposes of considering the Complainant’s claim that the termination of that contract was “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).”
The Complainant submits that the termination of his second fixed-term contract on 30 April 2014 was a dismissal within the meaning of section 13(1)(d) of the Act. He relies on previous determinations of this Court in support of his submission in this regard:NUI Galway v KellyFTD1510 andClare County Council v PowerFTD0812. He further submits that the Respondent failed to offer him a further contract of employment in circumstances where “work of the same/interchangeable nature was available, and for which [he] was more than qualified and experienced”. The Complainant takes particular issue, in this context, with the Respondent’s decision to hire a number of post-doctoral fellows on training contracts, in or around the time at which his second fixed-term contract was terminated.
The Respondent submits that, as the Complainant was not entitled to a contract of indefinite duration in April 2014, no breach of section 13(1)(d) of the Act can be said to arise from the mere termination of his fixed-term contract of employment on that date when he had accrued approximately 3.5 years continuous employment pursuant to a single fixed-term contract. The Respondent further submits that if the Complainant’s issue under this heading is that he was entitled to have his (second) fixed-term contract renewed in order to allow him accrue an entitlement to a contract of indefinite duration his claim is misconceived having regard to the well-established jurisprudence of the Court to the effect that neither the Act nor the European Directive upon which it is based provides a fixed-term worker with a general or free standing right to have his or her fixed-term contract renewed. (See for examplePrasad v Health Service ExecutiveFTD062 andOur Lady’s Children’s Hospital Crumlin[2008] ELR 314)
With regard to the Respondent’s decision to create a number of postdoctoral fellowships, counsel submits that the Respondent was entitled to review and alter the manner in which it organised its research activities and to do so in a way that provided certain opportunities specifically for recent graduates. The postdoctoral research model introduced by the Respondent in 2014 was sanctioned by the Department of Agriculture and based largely on a model that had been developed at UCD. The Complainant chose not to apply for any of the fellowships advertised in 2014.
Discussion
There was no evidence put before the Court which established a link between the Respondent’s decision to reorganise its research strategy through the establishment and use of postdoctoral research fellows and either the termination of the Complainant’s existing fixed-term contract on 30 April 2014 or the subsequent non-renewal of that contract. It follows that there is no principle in law or in logic on which the Court could hold that the Respondent’s engagement of postdoctoral fellows to conduct research was “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).”
In these circumstances, the Court holds that the subject matter of the within complaint does not constitute penalisation contrary to section 13(1)(d) of the Act.
Conclusion
For all the reasons set out herein, the Court holds that neither of the Complainant’s complaints is well-founded. The Court, therefore, upholds the decision of the Rights Commissioner and disallows the appeal.
Signed on behalf of the Labour Court
Alan Haugh
20th May 2016______________________
JKDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Jason Kennedy, Court Secretary.