ADJ-00002990

Complainant

Respondent

Anonymised Parties

A Research Fellow

A University

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-00004108-001

27/04/2016

The Complainant was employed as a Research Fellow from 1^st October 2010 to 27^th April 2016. He was paid €44,976 per annum. He has sought a contract of indefinite duration and re-instatement.

The Complainant was issue with the following contracts of employment

1^st       1^st October 2010 to 30^th September 2012. The fixed term status of the contract is explicitly because of funding. This is not a fixed purpose contract.

2^nd       1^st October 2012 to 30^th September 2013. This refers to him being re-employed and to carry out duties as required. The contract was contingent on adequate funding being available.

3^rd       1^st October 2013 to 26^th September 2014. This was allegedly a fixed purpose contract continuing your research into the S Famine Archive up to 26^th September 2014.

4^th       27^th September 2014 to 30^th September 2017 (ended after 1 year) This is a 3 year specified purpose contract to finish this specific body of work, subject to funding.                  

5^th       27^th October 2015 to 27^th April 2016. This is a specified purpose contract to complete World War 1 project.

The Complainant was made redundant on 27^th April 2016 despite the fact that his work was incomplete. Continuing work was available to him with the X House project that they wished the University to undertake. This would have been a two year project. The University declined this offer and the Complainant undertook this project as an employee of X House. He undertook that project and he is doing the same work as he did for S project.

He was entitled to a contract of indefinite duration (CID). The university created a redundancy to deny him his CID. He is seeking a contract of indefinite duration and compensation.

Summary of Respondent’s Case

In 2010 the Complainant was employed as a researcher for the purpose of carrying out analysis of the Famine Park Archive which was loaned to the OPW/ University. Because this archive was on loan he was offered a fixed term contract which was renewed on a number of times until the research project was completed in October 2015. On its completion the Complainant was offered six month contract fixed term contract to work on a World War 1 database from October 2015 which terminated in April 2016. He was then made redundant and paid an enhanced redundancy payment. He was not entitled to a CID because he was employed on a series of fixed term/specified purpose contracts and there were objective grounds justifying each renewal.  

The first contract 1^st October 2010 to 30^th September 2012 was a fixed term contract subject to funding.

The second contract 1^st October 2012 to 30^th September 2013 was fixed term contract as the archive was expected to be loaned for a longer period than previously envisaged and subject to funding. He signed a form accepting the objective justification for the renewal of his fixed term contract. The third contract 1^st October 2013 to 30^th September 2014 as this specific project on the archive was continuing. He was informed that his employment would terminate on the successful completion of his research on the archive by 26^th September. He was reminded of the funding implication. He also signed acceptance of the objective justification for renewal of the fixed term contract.

The fourth contract 27^th September 2014 to 30^th September 2017 was issued because the research was not completed and this contract was for the purpose of allowing him to complete the body of work. He was informed that his employment would terminate at the end of this contract no later than 30^th September 2017. It was also subject to funding. He also signed acceptance of the objective justification for renewal of the fixed term contract.

The fifth contract 27^th October 2015 to 27^th April 2016. The archive was completed by October 2015 and it was returned to the House and it was no longer available to the university. He was informed that the specified purpose for which he was employed had expired and the funding had ceased on 27^th October 2015.

The Respondent had limited funding for a completely separate project and he was offered a six-month fixed term contract to work on a World War 1 database. He was informed that his employment would end on the expiry of this project. This was also subject to funding. He signed acceptance of the objective justification for renewal of the fixed term contract. He was made redundant on 27^th April 2016.

He was not entitled to a CID. The Respondent relied upon the CJEU Adeneler case C-212/04 which stated, “ In those circumstances, the concept of ‘objective reasons’ within the meaning of clause 5(10(a) of the Framework Agreement, must be understood as referring to precise and concrete circumstances characterising a given activity. They also cited Case C-307/05 of the CJEU, Labour Court case FTC/12/17 and FTC /0932 in support. They stated that the university was pursuing a legitimate objective. Most research is externally funded from the State. In the absence of external funding it would not be possible to carryout temporary research projects. The use of fixed term contracts was an appropriate and necessary means of achieving the Respondent’s legitimate objective. The archive remained longer with the university than had been anticipated. His fixed term contracts were extended for that reason. These were precise and concrete factors, which he was aware of. Each fixed term contract was in satisfaction of a temporary and transient need of the Respondent rather than a permanent need. The renewals of the contracts were objectively justified within the meaning of section 7(1) of this Act. And by operation of section (4) of this Act he is not entitled to a contract of indefinite duration.

The Complainant was not replaced following the termination of his employment in April 2016.

In the alternative an order of re-instatement or re-engagement is not appropriate. Compensation would be more appropriate as the Labour Court FTC /09/322 provided. Should such action be contemplated they reminded the hearing that the Complainant already received an enhanced redundancy payment of €15,340 instead of statutory entitlement of €7,296.

Therefore when determining whether the renewal of the Complainant’s fixed term contracts comes within the scope of section 9(4) of the Act, it is necessary to consider whether it had the purpose of “achieving a legitimate objective of the employer” and it must be appropriate and necessary for that purpose the circumstances in which it was issued.

It must also measure it against the test set out in Adeneler, i.e. determine whether its renewal arises out of and relates to the “precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts. .

So the question for this adjudication is to decide whether the grounds advanced by the Respondent for the renewal of the fixed term contract of employment for a further period amounts to objective grounds within the meaning of the Act.

The Court of Justice of the European Union addressed the concept of objective grounds in the Joined Cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071, where it said at paragraph 96

In those circumstances, the concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (Adeneler and Others, paragraphs 69 and 70; Case C-307/05 Del Cerro Alonso [2007] ECR I-7109, paragraph 53; and order in Vassilakis and Others, paragraphs 88 and 89).

The Court went on, at paragraph 103 of its judgment, to draw a distinction between successive contracts the purposes of which are to meet needs that are temporary in nature and those which, in reality, are intended to meet the fixed and permanent needs of the employer. In the case of the former the use of successive fixed-term contracts may be legitimate but in the case of the latter their use would be contrary to the objective pursued by the Directive.

In this case the Respondent put forward objective grounds that it submits meets these tests.

Contracts

2^nd contract: 1^st October 2012 to 30^th September 2013

I note that this contract states, “your employment , under the terms of this contract, is related to funding being made available to the Department of History from XXX Ref: TD in respect of the Research Project on S Park Famine Archive” . Also “your employment under this contract is contingent on adequate funding being available in University Account XXX”.

I find that the grounds stated in the above contract constitute objective grounds as they related to a specific project that is time limited and subject to specific funding rather than general funding of the University.

3^rd contract:     1^st October 2013 to 26^th September 2014

The contract states, “ the specific purpose of continuing your research into the S Famine Archive up to 26^th September 2014”.“I am pleased to offer you a further contract of employment in order to enable this specific body of work to be finished, as required”. This contract as a three year specified purpose contract appointment as a temporary Post-Doctoral Research Fellow in the Department of History”.

“In the event that funding currently available to support this post as a temporary Postdoctoral Research Fellow ceases, prior to the termination date of this contract, your employment with the University will terminate on four weeks’ notice”.

I find that the grounds stated in the above contract constitute objective grounds as they related to a specific named project that is time limited and subject to specific funding rather than general funding of the University.

4^th   contract:  27^th September 2014 to 30^th September 2017 (ended after 1 year)

This contract states,” Specified Purpose Contract; your employment ….shall continue for the specified purpose of completing an agreed and time limited programme of research into the S Famine Archive , your employment will terminate upon the expiry of the said specified purpose”.   It has been confirmed that this research and its associated deliverables will not be successfully completed by 26^th September 2014, which is the determining factor in bringing your employment to an end, this specified purpose contract of employment is offered to you in order to enable this specific body of work to be finished, as required”.

I find that the grounds stated in the above contract constitute objective grounds as they related to a specific named project that is time limited and subject to specific funding rather than general funding of the University.

I find that the contracts 1 to 4 were precise and concrete in nature. They were in respect of a named project.

I find that they were for the purposes of achieving a legitimate objective of the Respondent. i.e the completion of the archival project.

I find the use of the contracts were appropriate and necessary.

I find that the project ended and the Archive left the University and went back to S House.

5^th contract:     27^th October 2015 to 27^th April 2016.

This contract stated “your new appointment is for the specific and exclusive purpose of completing agreed and time limited work on an entirely separate research project relating to Country House and World War 1 database Research Project XXX. Therefore the University offers a further specified purpose contract in this instance”.

I find that the grounds stated in the above contract constitute objective grounds as they related to a specific named project that was unrelated to the previous one that had reached its end. This project was specific and confined.

I find that each of the fixed term contracts was in satisfaction of a temporary and transient need of the Respondent rather than a permanent need.

Therefore I find that the fixed term contracts were saved by the objective grounds set out above.

I find that the Complainant was not entitled to a contract of indefinite duration.

I also note that the Complainant referred to a project ‘C House’ that was presented to the University but they declined getting involved.

I find that the University was entitled to make such a decision.

I note that the Complainant’s position was made redundant.

I note that the Complainant was not replaced.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Dated:   28 June 2017

Workplace Relations Commission Adjudication Officer:   Eugene Hanly

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