Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00007304-001

02/10/2016

The complainant had been employed as a ‘Research Fellow’ on a number of fixed term contracts and was eventually given a contract of indefinite duration with effect from June 1^st 2016.

However, it was stated in her letter of appointment that the contract was subject to ‘termination…on completion of the contract’.

The complainant says that the contract cannot at the same time be one of ‘indefinite duration’ and also subject to termination in the manner stated in the letter of appointment.

Her union wrote to the respondent on August 3^rd 2016 saying that this was essentially keeping the fixed term contract in place in that the termination would now be activated by the occurrence of a specific event or a set time deadline.

She relied on section 2(1) of the Protection of Employees (Fixed Term Work) Act 2003 where it states;

   Fixed term means a person having a contract of employment entered into directly with an employer where the end of the contract of employment is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event

The union contended that, viewed objectively the contract given to the complainant fell into this category and sought the grant of a contract without any reference to a termination episode.

There was further correspondence from the respondent to the complainant which seemed to indicate that she remained on a fixed term contract, or in any event was not ‘permanent’.

The respondent says that it has met its obligations under the Act with the issue of the contract to the complainant, which she has by operation of law, whether or not she has signed it.

It had communicated to the union on August 24^th 2016 its policy in relation to Research Fellows in a revised wording to accompany the complainant’s contract as follows

‘As with all externally funded research positions in the University, your employment may be terminated upon the completion of the work in which you are engaged or in the event of the funding stream being terminated or withdrawn by the funding agency.

It describes the provision as a ‘matter of fact of the employment relationship’ and does not represent treatment as a fixed term employee. All researchers are treated the same way.

Insofar as the Public Service (Croke Park) Agreement guarantees to security of tenure for public servants apply the respondent relies on a decision of the Labour Court in the case of TCD v IFUT (LCR 20652).

The Croke Park agreement contained a provision to the effect that;

         The Government gives a commitment that compulsory redundancy will not apply within the      Public Service, save where existing exit provisions apply. (Clause 1.6)

The Labour Court found that positions which are exclusively engaged in externally funded research are not protected from compulsory redundancy and that employment may be terminated in accordance with that respondent’s exit provision in line with clause 1.6.

In this case the complainant is engaged on exclusively, externally funded research and therefore she has been advised that should that source of funding disappear then her employment may be terminated.

The respondent would consider the complainant for alternative roles should a redundancy situation arise and has engaged her in alternative roles in the past when the opportunity arose.

The respondent says that the complainant has ‘no jurisdiction’ to lodge a complaint as her statutory rights under the Act have been vindicated.

However, she falls outside the protection from compulsory redundancy contained in the Croke Park agreement but that her position in that regard does not alter her CID status.

The issue for decision in this case is relatively straightforward.

It is whether the conditionality attached by the respondent to the offer of a Contract of Indefinite Duration dilutes it to the point where, as asserted by the complainant, it is in reality a fixed term contract.

The following is the relevant extract from the Act.

   Fixed term means a person having a contract of employment entered into directly with an employer where the end of the contract of employment is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event

The respondent has identified the withdrawal of funding (an objective condition or a specific event) as something which ‘may’ trigger the complainant’s redundancy and that therefore the ‘indefiniteness’ of the contract is compromised.

However, in reality the term ‘indefinite’, like ‘permanent’ before it is not quite what it may mean in its simple meaning.

Private sector workers on a CID may find that they are vulnerable to market forces and the vagaries of business and commerce and that they have no guarantee of employment ‘for life’. The value of their CID will then lie not so much in enforcing some ‘indefinite’ element than in underpinning the employment rights that flow from having had it.

In its basic meaning ‘indefinite’ may simply be taken to mean without definition, in other words its duration has not been defined; it is not a synonym for infinite.

This is somewhat reinforced by looking at dictionary definitions of ‘indefinite’; e.g. ‘lasting for an unknown or unstated length of time’, (although some others are less helpful; viz ‘vague, imprecise, ambiguous, doubtful’ etc.).

The protection enjoyed by a person who has such a contract of indefinite duration in relation to security of employment or its termination is that provided by the Unfair Dismissals Act 1977 and the associated jurisprudence. It is not ‘at will’, or fixed term, or temporary. Ultimately, it is a guarantee of employment unless substantial grounds can be found to terminate it, and provided it is effected following a fair process.

In addition, and of greater significance is the legal authority of the Labour Court arising from the TCD v IFUT case referred to above, and which I am obliged to follow.

That decision places the complainant outside the protections of the Croke Park security of tenure provision. It does not place her outside the general requirements of redundancy law and practise were that unfortunate situation to arise and in that case the Labour Court referred to the need to seek alternative options as part of any fair selection procedures for redundancy, an obligation also acknowledged by the respondent in its submission.

The complainant’s union is understandably aggrieved that there should be a lesser type of CID that appears inferior to that enjoyed by its other members in employments secured by the Croke Park agreement.

While it is true that the complainant does not enjoy the enhanced security available to public service employees, she is in the same position legally as the generality of those who enjoy contracts of indefinite duration and for that reason the respondent has complied with the provisions of the Act.

For the reasons stated above I do not uphold complaint CA-00007304-001.

Fixed Term Work, contract of indefinite duration, Croke Park agreement,