EMPLOYMENT APPEALS TRIBUNAL
CLAIM OF: CASE NO.
Annabel Egan - Claimant UD894/2014
Against
NUI Galway -Respondent
under
UNFAIR DISMISSALS ACTS 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Ms C. Egan B L
Members: Mr. D. Morrison
Ms. R. Kerrigan
heard this claim at Galway on 9th March 2017
Representation:
Claimant: Ms. C. McGrady BL instructed by McEvoy solicitors
Respondent: Mr. John Brennan, IBEC, Ross House, Victoria Place, Galway
Preliminary Issue:
By way of preliminary submission on behalf of the respondent, it was contended that the claimant, who was a part-time Research Associate on a fixed-term EU funded contract, was not an employee as she was excluded under Section 2 (2) (b) of the Unfair Dismissals Acts 1977-2007. It was submitted that in accordance with the claimant’s terms and particulars of employment she was on a specific purpose contract (SPC). The SPC was in writing, was signed by both parties and provided that the Unfair Dismissals Act 1977-2007 “shall not apply to your dismissal, consisting only of the cessation of the said purpose”. There were a number of SPCs, the first commencing in October 2009 and expiring in February 2012. A second SPC commenced in March 2012 and expired in September 2012. A third SPC commenced in July 2013. The final SPC expired on the 30th November 2013. The claimant had been paid statutory redundancy.
It was submitted on behalf of the claimant that neither the purpose of the contract nor the term ceased on the 30th November 2013. It was claimed that there was ambiguity as to the duration of the contract. It was contended that contra proferentum rule should apply, that is, where there is doubt about the meaning of a contract, the words will be construed against the party who provided the wording.
The Tribunal adjourned to consider the preliminary submissions. Having considered the submissions and having reviewed the contract, it was satisfied that there was no ambiguity or uncertainty in the wording of the Specified Purpose Contract.
Respondent’s case:
The HR Manager, SB, gave evidence that she manages research in the Irish Centre for Human Rights and is eleven years in the position. She stated that there are in excess of 530 persons in Contract Research Posts (CRPs). The CRPs are externally funded i.e. monies do not come from core government grants. If funding was available for a post she would advertise the post or follow the internal processes for selection purposes.
The standard contract offer letter sent to the claimant dated the 24th April 2009, was opened to the Tribunal confirming the “offer of the position of Research Associate in the Irish Centre for Human Rights (ICHR).
The SPC stating the main terms and particulars of employment was opened to the Tribunal.
The SPC was signed by both parties and excluded the provisions of the Unfair Dismissal Acts, 1977-2007.
The witness gave evidence of the renewal of the claimant’s SPCs, the final SPC expiring on the 30th November, 2013. The claimant was written to on the 31st October, 2013 advising her of the expiration of the SPC on the 30th November, 2013 and of her entitlement to redundancy. The claimant was invited to forward an up-to-date C.V., “so we can establish if there are any other suitable alternative employment positions available for you in the University”.
An email on the 4th November 2014 from the witness to the claimant further advised the claimant that HR had “received notification from ICHR that the funding for the EU project from which your position is funded will end on the 30th November, 2013”. The message confirmed that there was “no other post available at this time”. The witness gave evidence of having searched for alternative positions for the claimant through the standard internal channels.
There were no other positions available in this instance and the claimant was paid a redundancy lump sum of €5,600-00.
The Tribunal heard evidence from RM, Professor of Law and Director of the Centre for Human Rights at the University. The claimant was known to him while she was studying for her PhD. He stated that he had taken over the management of the EU-funded “EU-China Human Rights Network” project. He advertised for the position of Project Manager as the previous project manager NP had moved to the UK. NP was replaced by EB. He confirmed that the claimant’s position was a part-time Research Associate.
The witness gave evidence of the role of the project manager, EB, whose responsibility was inter-alia, to carry out the financial management of the €1 million project, which had to be strictly audited within the EU rules and University rules.
The claimant reported to EB, but the witness stressed that the arrangement in the centre was non-hierarchical. He stated that the claimant had a lot of experience in the human rights area and China. It was her role as a researcher to collate information, liaise with other various experts in the field, and prepare and compile reports.
The witness confirmed that the claimant’s contract had been renewed on three occasions. He explained that he had a role in extending the project because all of the funding allocated to the project had not been used up. He stated that he had no say in the final ending of the project, as the end date of the 30th November, 2013 was a pre-determined date by the EU.
The witness gave evidence of the complexities of dealing with the final audit of the project by the EU. EB had to liaise with the previous project manager, NP, who returned to assist in the winding up of the project in order to ensure compliance with the EU and University rules.
EB remained in her role after the 30th November, 2013 to finalise the financial aspect of the project. She resigned in February 2014 for personal reasons, but knew that her position was going to be terminated.
When questioned, the witness stated that he was not aware that the claimant was on a higher “paymaster scale” than EB, and nor was he aware of the “paymaster scale”. He stated that EB’s position was not funded by the China project. He stated that he told the claimant that he would try to put in place a contract-extension for 2 to 3 months for her. It was the original intention to retain the claimant and EB, but that it was always contingent on the proposal and approval of the University. The witness stated that he could not hire or fire, that it was up to the University ultimately. He stated that all the project team would have known that the project was ending and was never intended to last.
Claimant’s case:
The Tribunal heard evidence from the claimant that she commenced in 2009 in a SPC role with the EU-China Human Rights Network Project. She stated that she, together with a colleague, wrote the proposal for the grant of €1.5 million for the China project. NP had left and EB was appointed in her place.
The claimant stated the she contributed to the audit in 2013 and that NP and herself had been involved in the audit previously. She explained that she was completely qualified to do the wind-up of the project, even though she acknowledged that NP and EB signed off on the financial transactions and had different roles to her. The claimant disagreed with RM’s evidence that the project ended on the 30th November, 2013.
The claimant contended that she and EB were employed on the same project and that they were to finish up on the same date. She stated that EB told her that she wished to remain on the project for 2.5 months because she was a US citizen and she could reclaim taxes. The claimant believed that she was being asked to accept redundancy or lay-off in order to facilitate EB. She acknowledged that RM was endeavouring to find an alternative role for her and that the University would have to approve it. She did not accept that her role would be gone. The claimant contended that she was unfairly dismissed.
Determination:
The Tribunal, having heard the submissions and the evidence adduced in this case, determines that the claimant’s employment with the Respondent was terminated in accordance with the conclusion of a Specific Purpose Contract as set out in S.2 (2) (b) of the Unfair Dismissals Acts, 1977 to 2007:
(2) This Act shall not apply in relation to:-
“(b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”
In the circumstances the Tribunal declined jurisdiction to hear the claim under the Unfair Dismissals Acts, 1977 to 2007.
Sealed with the Seal of the
Employment Appeals Tribunal
This __________________
(Sgd.) ________________________
(CHAIRMAN)