Complainant

Respondent

Anonymised Parties

A fixed term worker

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-00009692-001

14/02/2017

The complainant is a fixed term worker and has been engaged on a number of different contracts with the Respondent since 1^st August 2008 and remains on a fixed term contract to date.

The complainant contends that he became entitled to a Contract of Indefinite Duration (CID) on 1^st August, 2012. The complaint was submitted to the Workplace Relations Commission (WRC) on 14^th February, 2017.

The Respondent raised a preliminary point that the complaint is out of time and that the WRC does not have jurisdiction to adjudicate on the complaint.

The complainant contends that the case is within time as the Respondent’s failure to acknowledge that the complainant had obtained a right to a CID by operation of Section 9(3) of the Act constitutes a continuing contravention of the legislation.

The complainant cited Labour Court Determination No FTD109 (HSE Dublin North East V Umar) in support of its position in this regard:

“The complainant was not obliged to bring a complaint to a Rights Commissioner in order to obtain a contract of indefinite duration; he obtained such a contract by virtue of s.9(3). In so far as there was a contravention of the complainant’s legal rights, which would arise if the Respondent could not rely on s.9(4), it was the Respondent’s failure to acknowledge his status as a permanent employee by operation of law.”

The complainant also contends that employers who have previously claimed that Section 9 complaints were out of time had done so unsuccessfully. The complainant further contends that in one instance a University conceded a CID to a claimant who had referred a claim to the Rights Commissioner in excess of six years after the entitlement to a CID arose.

The Respondent’s position is that the complaint was made outside of the time limits provided for in Section 41(6) of the Workplace Relations Act, 2015. The Respondent stated that the legislation provides that a complaint must be brought to the WRC within six months of the date of the contravention to which the complaint relates.

The Respondent contends that Labour Court Determination FTD109 does not apply in this case as it is relevant only in circumstances where objective justification for the renewal of fixed term contracts does not exist. It contends that in the instant case the claimant accepted the objective grounds for the renewal of each fixed term contract.

In relation to the preliminary point I find as follows:

Section 41(6) of the Workplace Relations Act, 2015 provides as follows:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

I accept the point made by the complainant as cited from Labour Court Determination FTD109 that there was no requirement to bring a compliant in order to obtain a contract of indefinite duration. (CID). I find that an entitlement to a CID would occur by operation of law and the continued classification of the complainant as a fixed term worker in those circumstances is an ongoing contravention and the compliant as submitted is therefore within time.

The complainant is claiming that he became entitled to a contract of indefinite duration (CID) on 1^st August 2012. The complainant was employed on a series of fixed term contracts from 1^st August 2008. The details of the contracts are as follows:

Contract 1: 1^st August 2008 – 28^th February 2009 (Research based)

Contract 2: 1^st March 2009 – 31^st July 2011 (Research based)

Contract 3: 1^st August 2011- 4^th March 2012 (Research based)

Contract 4: 5^th March 2012- 4^th March 2013 (Career break cover)

Contract 5: 5^th March 2013 – 31^st July 2014 (Career break cover

Contract 6: 1^st August 2014 – 31^st July 2017 (Research based)

Contract 7: 1^st August 2017 – 31^st July 2018 (Research based)

The complainant contends that Contracts 1-3 involved post-doctoral research in an Urban Development Project which focused on the application of Geographical Information Systems (GIS) and geospatial models. Contracts 4-5 related to a period of cover for the extended career break of a colleague and was at the grade of Senior Technical Officer. Contract 6 related to a Marie Curie International fellowship award which resulted in a 3-year contract as a Research Fellow. The 7^th contract is entitled Marie Curie – EDGE Research fellow and is due to expire on 31^st July 2018.

The complaint contends that he became entitled to a CID on 1^st August 2012 in accordance with Section 9 (2) of the Protection of Employees (Fixed Term Work) Act, 2003. The complainant does not accept that there were objective reasons for the renewal of fixed term contracts and is seeking that his entitlement to a CID be acknowledged by the employer and that he also be awarded compensation.

The Respondent refutes that the complainant became entitled to a CID in relation to the 4^th contract (5^th March 2012 – 4^th March 2013) as this contract was for a specific purpose to replace a staff member who had taken a career break which was subsequently extended.

The Respondent contends that the complainant was aware and accepted the temporary and fixed term basis of the contract in question. The Respondent stated that the fixed term contract was objectively justified in accordance with Section 7 of the Act as follows:

“This is a fixed term appointment, subject to satisfactory service during this contract of employment. The objective grounds for issuing this temporary fixed term contract rather than a permanent contract is to cover the 12 month career break of ………………. while she is absent from this post in the School of ………………….”

The Respondent cited Labour Court Determination No: FTD092 (National University of Ireland Maynooth v Dr Ann Buckley) in support of its position which states as follows:

“The Court is of the view that the claimant, having signed a binding contract agreeing to the objective reasons for its renewal on a fixed term basis, cannot subsequently resile for this position and is therefore not entitled to a contract of indefinite duration.”

The Respondent also cited Labour Court Determination No: FTD1423 (UCD V Aine McConnon) in relation to the career break cover which states as follows:

“It may be that an employee is employed for a fixed term to perform work which corresponds to the fixed and permanent needs of the employer but they do so in order to provide cover for an employee who is temporarily absent.”

The Respondent also referred to the case of Bianca Kucuk v Land Nordrhein-Westfalen [2012] IRLR697 in relation to a temporary replacement of a permanent employee who is absent from work.

In relation to the 4^th Research based contract (Contract No 6) the Respondent contends that the contract was an externally funded research based contract which arose out of the complainant being awarded the Marie Curie International Fellowship award. The Respondent contends that the University was the host of the project and the complainant spent two years of the three-year project in the United States and the final year in the host University. The Respondent contends that the complainant could have chosen another University to host the project if he so wished.

The Respondent contends that the contact was objectively justified as follows:

It is a legitimate objective of the university to provide research fellow opportunities which are of limited duration. This will allow for the progression over many years of large numbers of researchers through the [name of university] research fellow programme providing intergenerational research opportunities.

The objective grounds for the issue of this specified purpose contract rather than a permanent contract is in keeping with the foregoing objectives of the university. In addition, the objective ground for issuing this specified purpose contract rather than a permanent contract is to enable the provision of specialist expertise so that the Geo Spatial modelling Information Policy project can be completed in line with your Marie Curie award.

The specified purpose nature of this contract underpins a legitimate objective of the university to provide temporary, specialist expertise to research projects to enable their completion.

The Respondent contends that the Labour Court has accepted that research based contracts are a feature of the work of academic staff and the use of fixed term contracts in circumstances where properly structured schemes are in place. The Respondent cited Labour Court Determination No: FTD1116 (University College Cork v Tomas O’Riordan) in support of its position as follows:

The Court accepts that it is an entirely legitimate objective of the Respondent to use fixed-term contracts to provide graduates with access to research opportunities and that they are entirely appropriate and necessary for that purpose. However, while these may be legitimate objectives for the employer they cannot be employed in a general sense to justify the renewal of fixed-term contracts of employment divorced from the facts of the actual case before the Court.

It would seem that if in reality a university has a properly structured scheme in place whereby graduates are provided with post-doctoral training or development opportunities, and that certain research work is reserved for such a programme, the use of fixed term contracts for the duration of the scheme would be unobjectionable.

The Respondent also citied Labour Court Determination No: FTD1234 (UCD V Dr Michael Mahony) which states as follows:

It would also arise where the objective or purpose of the contact is to provide the worker with training or development opportunities over a defined timescale even where the work in which the employee is engaged meets the fixed and permanent needs of the employer.

It would seem that if in reality a university has a properly structured scheme in place whereby graduates are provided with post-doctoral training or development opportunities, and that certain research work is reserved for such a programme, the use of fixed term contracts for the duration of the scheme would be unobjectionable.

The Respondent contends that the Research Careers Framework Scheme, which is the same scheme that is relevant to this case was accepted in Labour Court Determination No: FTD159. The Respondent quoted the Court’s Determination as follows:

In all the circumstances the Court is satisfied that this case is in line with Adeneler, as the objective grounds specified in the complainant’s renewed contracts of employment and relied upon by the Respondent respond to a genuine need, to enhance the complainant’s (as a Post-Doctoral Researcher) research skills and career prospects, to issue a contract of indefinite duration in such circumstances would defeat the purpose of such a programme. Therefore the Court accepts the renewal of his fixed term contract on 1^st December 2012 for a period of one year was appropriate to achieve the objective pursued and was necessary for that purpose.”

The Respondent contends that as the renewal of the fixed term contract (Contract No 6) was objectively justified in line with the structured scheme that is in place, the complainant does not have an entitlement to a CID and is seeking that the complaint be rejected.

The essence of this complaint is that the complainant contends he became entitled to a Contract of Indefinite Duration (CID) with effect from August 2012 after a number of fixed term contracts and in line with Section 9 of the Protection of Employees (Fixed Term Work) Act, 2003.

The Law:

Sections 8 and 9 of the Act at relevant parts state as follows:

Objective reasons

8. (1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

( a) arriving at a specific date,

( b) completing a specific task, or

( c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

Successive fixed-term contracts.

9. —(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) 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.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

The two contracts that the parties consider relevant to this complaint are the 4^th Contract (5^th March 2012- 4^th March 2013) which covered a period of cover for a career break and the 6^th contract (1^st August 2014 – 31^st July 2017) which relate to academic research.

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 contends that it put forward objective grounds that meets these tests.

The complainant contends that it is the fourth contract that became a CID by operation of law on 1^st August 2012. The Respondent contends that this contract was a career break cover and was objectively justified on that basis.

I accept the Respondent’s position that the fourth contract was that of a Senior Technical Officer and was a temporary replacement of a permanent employee who was on a career break. I find that the contract was objectively justified on that basis and that this was accepted by the complainant at that time. Accordingly, I do not find that this contract became a CID by operation of law in August 2012.

The Respondent contended that the 6^th contract, which was a research based contract and was part of a Marie Curie International Fellowship Award resulted in a three-year project which was hosted by the university. The Respondent stated that the complainant could have chosen another university to host this externally funded project if he so wished.

I accept the Respondent’s position on the 6^th contract. I find that the specifics of that contract were objectively justified on the basis of the Research Careers Framework Scheme in place in the University and on the basis of the external funding that applied to the project. I also find that the complainant could have had this project hosted by another University if he so wished.

Accordingly, I do not find that this contract became a CID by operation of law from 1^st August 2014.

On the basis of the written and oral submissions of the parties, and all of the evidence adduced at the adjudication hearing, I do not accept that the complainant has an entitlement to a contract of indefinite duration in respect of either the fourth or the sixth fixed term contract. Accordingly, I decide that the complaint is not well founded.

Contract of indefinite duration, objective grounds, successive fixed term contracts.