FULL RECOMMENDATION
SECTION 15 (1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 PARTIES : NATIONAL UNIVERSITY OF IRELAND, MAYNOOTH UNIVERSITY (REPRESENTED BY MC CANN FITZGERALD, SOLICITORS) - AND - DR. CIARAN REILLY (REPRESENTED BY IRISH FEDERATION OF UNIVERSITY TEACHERS) DIVISION : Chairman: Ms Jenkinson Employer Member: Mr Marie Worker Member: Mr Shanahan |
1. Appeal of Adjudication Officer's Decision No: ADJ-00002990.
BACKGROUND:
2. The appellant appealed the Adjudication Officer's Decision to the Labour Court on 13 July 2017. A Labour Court hearing took place on 4 October 2017. The following is the Labour Court's Decision:
DETERMINATION:
This is an appeal by Dr Cíaran Reilly against the decision of an Adjudication Officer in a claim against National University Maynooth under the Protection of Employees (Fixed-Term Work) Act 2003 (the Act).
In this Determination Dr Reilly is referred to as the Complainant and the National University Maynooth is referred to as the Respondent.
The Complainant submitted his complaint to the Workplace Relations Commission on 27th April 2016. The hearing before the Adjudication Officer was held on 18th April 2017, his Decision was issued on 28th June 2017. The Complainant submitted his appeal to the Court on 13th July 2017 and the hearing of the appeal was held on 4th October 2017.
Background
Following collaboration between the Board of Strokestown Park House and the Respondent's Centre for the Study of Historic Irish Houses and Estates (hereafter referred to as “the Centre”), in 2008, the voluminous Strokestown Park Famine Archive was loaned to the OPW/ Maynooth University Archive & Research Centre.
The First Contract:1stOctober 2010 –30thSeptember 2012
The Complainant commenced his fixed term employment with the Respondent on 1st October 2010 pursuant to a fixed term contract as a Temporary Researcher in the Department of History. The first contract commenced on 1stOctober 2010 and expressed to run until 1stSeptember 2012. The contract stated that his'employment, under the terms of this contract, is related to funding being made available to the University through BU 185041 ref Terence Dooley in respect of the Research Project on Strokestown Park Famine Archive'.
The Second Contract: 1st October 2012 – 30th September 2013
Following the expiry of the first contract the Complainant entered into a further fixed-term contract on 1stOctober 2012 which was expressed to run until 30thSeptember 2013. This contract stated that he was employed as a Postdoctoral Research Fellow in the Department of History. The contract stated that his'employment, under the terms of this contract, is related to funding being made available to the University throughBU185041 ref Terence Dooley in respect of the Research Project on StrokestownPark Famine Archive'.
The Third Contract: 1st October 2013 – 26th September 2014
The Complainant’s third contract commenced on 1stOctober 2013 and ran until 26thSeptember 2014. This contract stated that he was employed as a Postdoctoral Research Fellow in the Department of History. The contract stated'Your employment under the terms of this contract, is for the specific purpose of continuing your research into the Strokestown Park Famine Archive leading to significant public outcomes including conferences, publications and exhibitions up to 26thSeptember 2014.
The Fourth Contract : 27thSeptember 2014 – 30thSeptember 2017
On expiry of the third contract the Complainant was given a fourth contract as a Post-Doctoral Research Fellow in the Department of History from 27thSeptember 2014 for a specified purpose to end no later than 30thSeptember 2017. This contract stated that asthe “research and its associated deliverables will not be successfully completed by the 26 September 2014, which is the determining factor in bringing your employment with the University to an end, 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."
Further it stated that“Your employment under the terms of this contract shall be for the specified purpose of completing an agreed and time-limited programme of research into the Strokestown Park Famine Archive and delivering significant public outcomes, including conferences, publications and exhibitions as required”.
The Strokestown Park Famine Archive was returned to Board of Strokestown Park House in early 2015, and research on extracts from the Archive was completed in October 2015. In circumstances where the Archive was no longer in the University's possession and where research into the Archive had completed, the Complainant was informed that the specified purpose for which he had been employed had expired, and that funding on the project (which had been provided by an external funding body, the OPW) ceased with effect from 27thOctober 2015.
The Fifth Contract :28th October2015– 27thApril2016
The Complainant was furnished with a new fixed-term contract as a Post-Doctoral Research Fellow in the Department of History effective from 28th October 2015 for a period of six-months, until 27thApril 2016. This contract stated that his“new appointment is for the specific and exclusive purpose of completing agreed and time-limited work on an entirely separate research project relating to the Country House and World War 1 database”.
On the expiry of the fifth contract the Complainant’s employment was terminated on grounds of redundancy and he was paid an enhanced redundancy lump sum.
Post Redundancy: 1st May 2016 to 30th April 2018
The Complainant has been employed by Capard House on a Senior Research Fellowship to produce a book on the history of Capard House. This project is in collaboration with Respondent through the Centre.
The Relevant Contract for the Purpose of the Claim
By the combined effect of subsections (2) and (3) of section 9 of the Act, the Complainant’s fixed term employment transmuted to employment of an indefinite duration on the commencement of his fourth fixed-term contract on 27thSeptember 2014, unless that renewal was justified on objective grounds and thus saved by section 9(4) of the Act.
The Fourth Contract
The fourth contract stated :-
- "As per the fixed purpose contract issued to you on 13 December 2013,
your employment with the University is for 'the specific purpose of
continuing your research into the Strokestown Famine Archive leading
to significant public outcomes, including conferences, publications and
exhibitions up to 26 September 2014. However, since it has been confirmed that this research and its associated deliverables will not be successfully completed by the 26 September 2014, which is the determining factor in bringing your employment with the University to an end, 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."
As this contract was expressed to be for a three year period it purported to extend the aggregate duration of the Complainant’s fixed-term employment with the Respondent beyond four years. It follows that, in the absence of section 9(4) saving this renewal, any contravention that may have occurred crystalised with its conclusion.
Summary of the Respondent’s Position
Mr Terence McCrann, McCann Fitzgerald Solicitors, on behalf of the Respondent claimed that each of the Complainant’s fixed-term contracts was for the purpose of meeting a temporary need of the University. It was submitted that the instant case was a classic example of the Respondent utilising fixed term contract for its temporary and transient needs. The Respondent was precluded from creating additional permanent posts without the sanction of the Department of Education and Skills by the Employment Control Framework (ECF). That is a mechanism by which employment in the public sector is fixed at a prescribed level. It provides that appointments in the case of non-core funded research and related project posts funded from exchequer resources external to the institution must be on the basis of fixed-term or specified purpose contracts, whose term shall not exceed the scheme/award duration.
It was the Respondent’s case that the filling of a temporary vacancy on a fixed-term contract is inherently justifiable on objective grounds. It submitted that most research is externally funded whether from the State, or from other public sources, or by private donors. In the absence of external funding, it would not be possible for the Respondent to carry out temporary research projects if the Respondent was compelled to employ the researchers involved on contracts of indefinite duration following the completion or discontinuation of the temporary research project on which they were engaged.
As part of its commitment to fulfilling its statutory objects and functions, the Strokestown Park Famine Archive was loaned to the Respondent in 2008, and in 2010, the Complainant was employed to work on the Strokestown Park Famine Archive project. As the Strokestown Park Famine Archive was on temporary loan to the Respondent, the Complainant's employment was in fulfilment of a temporary and transient need of the Respondent, rather than a fixed and permanent need. In these circumstances it was not appropriate to issue him with a contract of indefinite duration, nor was this permissible under the terms of the ECF.
In circumstances where the Strokestown Park Famine Archive remained on loan to the Respondent for longer than anticipated, the Complainant's fixed-term contract was renewed in 2012, 2013, and 2014.The Strokestown Park Famine Archive project was returned and funding for his role ceased with effect from 27th October 2015.
Furthermore, it was submitted that the filling of the post corresponded to a legitimate objective of the Respondent, namely the completing of an agreed and time-limited programme of research into the Strokestown Park Famine Archive and delivering significant public outcomes. It further submitted that the means chosen to achieve this objective, namely, the completion of this work on a fixed-term contract was both appropriate and necessary.
The Respondent submitted that the Complainant fully understood the circumstances in which his fixed-term contract was being renewed and in addition to signing the fixed-term contract of employment that was issued to him, he also signed a form of acceptance of the objective justification for renewal of his fixed-term contract.
With reference to the fourth contract, Mr McCann said this was offered to the Complainant for a period of three years, for the specified purpose of completing an agreed and time-limited programme of research into the Strokestown Park Famine Archive and delivering significant public outcomes. The Complainant was informed that his employment would terminate on the expiry of this specified purpose; this was anticipated to occur no later than 30 September 2017.
Mr McCrann stated that at the time the contract was offered to the Complainant, he was informed of the following:-
•There would be an annual review of the research project in order to assess progress and to determine its completion.
•The post was funded through a grant of funds to the University by an external agency, and that if such funding ceased, prior to the expiry of the specified purpose or 30th September 2017, whichever came earlier, his employment would terminate on four weeks' notice.
•His appointment was subject to the Employment Control Framework which stipulates that such posts must be filled on a fixed-term contract basis, and was conditional on the Respondent operating strictly within a balanced budget.
The Complainant’s employment was terminated at the expiry of the specified purpose as anticipated on 27th April 2016. He had been informed that this six month contract was linked to the availability of funding from the Centre, which was a non-exchequer source of funding, and that if this funding ceased, the Respondent would terminate his employment on four weeks' notice. The Respondent stated that this was in line with the ECF rules applicable to'other research and/or specialist project-based posts funded from non-Exchequer sources',which requires posts to be filled on a fixed-term basis.
Summary of the Complainant’s Case
Mr Frank Jones, IFUT on behalf of the Complainant, took issue with the proposition that the filling of temporary vacancies by the use of fixed-term contracts is objectively justified. He maintained that the Complainant’s duties were 100% in keeping with "the fixed and permanent needs" of the University. It was submitted that the Complainant’s range of duties, the nature of these duties, the temporary nature of individual components of the sum of his duties, the physical and institutional environment and the ethics and procedures which govern the activities, are all identical in the Complainant’s case with those of all of his permanent academic colleagues.
Mr Jones took issue with the proposition that the Respondent was justified in seeking to offset the Complainant’s statutory rights because of funding issues and the Employment Control Framework.
According to Mr Jones, the fixed-term nature of the employment contract is explicitly stated to be because of funding. The Union referred the Court to the numerous precedents and case law that costs or the availability of funding can never be regarded as a valid justification to deny "an important social right deriving from the law of the European Community".In that regard Mr Jones relied upon the CJEU cases of C-212/04Adeneler and Others v Ellinikos Organismos GalaktosECLI:EU:C:2006:443 and Case C-307/05Yolanda Del Cerro Alonso V Osakidetza - Servicio Vasco de SaludECLI:EU:C:2007:509. In any event, Mr Jones stated that all employment within the University, as elsewhere, is subject to funding. He pointed out that in a recent letter to all Universities, the Department of Education instructed the institutions to quote funding as an objective ground. He disputed the Respondent’s assertion that the Complainant's employment was funded by external monies provided by the Office of Public Works (OPW). Mr Jones maintained that the monies for the Complainant’s employment came from a number of sources, including in the initial stages a fund established by the interim President of the University.
Mr Jones submitted that the reliance by the Respondent on adherence to the ECF as the reason for the continued employment of the Complainant on fixed-term contracts, rather than on a contract of indefinite duration, was irrelevant and only offset in an impermissible way the rights of fixed-term employees under the Act and the European Directive that it was enacted to transpose in domestic law.
The Union contended that the change from 1stOctober dates to 26thSeptember dates in the latter contracts was an attempt by the Respondent to frustrate the Complainant’s attainment of his rights to a contract of indefinite duration by operation of law.
Furthermore, Mr Jones submitted that the Complainant’s redundancy was completely unnecessary and was brought about in order to frustrate his legal entitlement to a contract of indefinite duration.
Mr Jones referred to the letter of 12th November 2015 (attached to the fifth contract) in which the Complainant was contracted to work on the "Country House and World War I" with an anticipated completion date of 27th April 2016. He submitted that the contract stated that this was an indicative date and therefore subject to review and change by the University, yet, despite the fact that this work was incomplete at that stage, the Respondent insisted on making the Complainant compulsorily redundant on 27th April 2016. The Complainant has accepted the redundancy payment, without prejudice to the outcome of this case.
The project was scheduled to go 'live' on the Centre website in 2017 as a major outcome of the Centre's 'Decade of Centenaries' output. There were two major outcomes for this project and thus the work was not finished by the end of April 2016. Mr Jones stated that the Director of the Centre would argue that a number of projects remain unfinished and that the overall work of the Centre remains in limbo as a result of the termination of the Complainant’s contract. The completed exhibition was not launched until 9th May 2016 even though the contract had terminated on 27th April 2016, which necessitated two weeks 'uncontracted work' to ensure its completion when launched by the Minister for Arts, Heather Humphreys.
Mr Jones referred to the arrangement between Capard House and the Respondent, whereby the Complainant was awarded a Capard House Senior Research Fellowship to produce a book on the history of Capard House. This project was in collaboration with the Centre at the University. The Union submitted that that the work which the Complainant is now doing on Capard House is essentially the same work he did on Strokestown House as an employee of the University. The Complainant was given a fixed term specified purpose contract from 1st May 2016 to 30th April 2018 in order to complete this work.
Mr Jones submitted that Capard House wished to commission the Respondent to research the House and this would provide work for two years for which the Complainant was the preferred candidate. The Respondent declined this offer and, as a result, it was agreed that the Complainant became an employee of Capard House.
Mr Jones submitted that all of the above proves that the Respondent went to extraordinary lengths to deliberately deny the Complainant his right to a contract of indefinite duration and to make him unnecessarily redundant to avoid its obligations under the Act.
Furthermore, Mr Jones submitted that during his tenure with the Respondent the Complainant carried out dutieswithin the History Department generallyover and above the Strokestown Park Archiveproject work. Mr Jones stressed that this was a very significant factor in this case.These duties included:
- •Teaching.
•Postgraduate Supervision.
•Public Engagement: Lectures, conferences, seminars.
•International Collaboration which was actively encouraged by the Department’s the Centre.
•Work on other projects including the Joly Famine Research Project, 2011- 2012; Meath Local History Project Oct 2010 – September 2011; Ireland/Sicily Project 2011.
In response to the Respondent’s assertions that the Complainant signed his fixed term contracts, Mr Jones made reference to section 12 of the Act which rules out reliance on such an inference where it is explicitly stated that any "agreement" which "purports to exclude or limit the application of, or is inconsistent with, any provision of the Act" "shall be void."
The Law
In this case the relevant statutory provisions are to be found in Sections 7, 8 and 9 of the Act. The Act was enacted so as to transpose into domestic law the Framework Agreement on fixed-term work concluded by ETUC, UNICE and CEEP annexed to Directive No. 1999/70/EC of 28 June 1999 of the Council of the then European Communities. Consequently the provisions of the Act must be interpreted and applied so as to achieve the objective pursued by the Framework Agreement.
The purpose of Clause 1 of the Framework Agreement is twofold. Firstly, to improve the quality of fixed-term work by applying the principle of equal treatment to fixed-term workers. Secondly, it is intended to provide a framework for the prevention of abuse arising from the successive use of fixed-term employment contracts.
Section 9(2) of the Act, which is relevant for present purposes, provides:-
- (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 four years.
Section 9(4) provides that subsection (2) and (3) does not apply were there are objective grounds justifying the renewal.
Section 7 (1) of the Act deals with what constitutes objective grounds for this purpose and provides:
- (1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
Subsection (3) of Section 9 of the Act is of particular significance in the instant case. It provides:
- (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.
InMinister for Finance v Una McArdle[2007] 18 ELR 165 Laffoy J quoted with approval the following passage from this Court’s Determination in the case in which the effect s.9(3) was considered:
- That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms as to pensionability and termination, which, as already observed, would have had to be aligned with those of a comparable permanent employee in accordance with section.
Section 9(4) of the Act allows an employer to renew a fixed-term contract in circumstances which would otherwise contravene subsections (1) or (2)where there are objective grounds for so doing. This provision allows for a derogation from what is an important social right derived from the law of the European Union. It must, therefore, be construed and applied strictly against the person seeking to rely on the subsection (see the dictum of the CJEU to that effect in Case 476/99Lommers v Minister van Landbouw, Natuurbeheer en Visseri[2002] IRLR 430. As in any case in which a party relies on a statutory defence it is for that person to prove the facts necessary to make out the defence.
Findings of the Court
The grounds relied upon must also relate to the nature of the work for which the impugned contract was concluded or to the circumstances in which the work is to be performed. InAdenelerthe CJEU pointed out as follows: -
- “[T]he concept of 'objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, must 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.”
- The source from which funding is derived for a post does not, in and of itself, relate to the specific nature of the post or to the inherent characteristics of the tasks to be performed. Consequently it cannot constitute objective reasons justifying the use of a fixed term contract as that concept was explained inAdeneler.Moreover, if uncertainty of funding were to be accepted as an objective ground justifying the use of fixed term contract it could apply to almost any post. That is particularly so in organisations, such as the Respondent, which are dependent on the allocation of funding from public sources and in respect of which there can be no certainty from one year to the next.
There is a wealth of authority in the jurisprudence of the Court of Justice of the European Union on how the concept of objective justification should be applied. InAdenelerthe CJEU made it clear that the grounds relied upon must be objectively justified by reference to the work actually performed and the circumstances under which it is performed.
Again inAdenelerand in C-380/07Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou[2009] ECR 1-3071, the CJEU drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category.
In this case the Respondent’s reliance on Section 9(4) is grounded upon the premise that the Complainant’s fourth contract was exclusively based on the need to complete the Centre’s Strokestown research project. It maintained that the Complainant was fully aware of this position and had accepted the objective justification as contained in the fixed term contract in 26th September 2014.
Section 9(4) amounts to a defence under the Act and it is for the Respondent to make out that defence. The essence of the Respondent’s position is that the Complainant was employed to complete a discrete finite project on Strokestown and that the Complainant was the leading authority in that area. Therefore, Mr McCrann stated that it was a classic case of fulfilling a temporary and transient need of the Respondent,due to the temporary nature of the project; the temporary nature of the associated funding from OPW and having regard to the restrictions laid down by the Employment Control Framework.While Mr McCrann accepted that the Complainant was involved in other ancillary department work, such as teaching etc., he said that these duties were only a minor part of his main work.
However, when questioned why the Complainant was not furnished with a specified purpose contract in the first instance to work on the Strokestown project, Mr McCrann told the Court that the project took longer than envisaged, therefore his contract was renewed on a number of occasions. He said that the contract envisaged to run from 26th September 2014 for up to three years was terminated prematurely in October 2015 when The Irish Heritage Trust took over the day-to-day management of Strokestown House and sought the return of documents given on loan to the Respondent. The funding from OPW ceased at this time also. Mr Jones made the point that despite these actions the Complainant’s work on the project continued. The Complainant continued to work on the Strokestown project with the approval of the Respondent while he was contracted to work on the Country House project, while carrying out some teaching and ancillary duties also.
The Complainant submitted details to the Court of the ancillary work (in addition to the project on Strokestown) that he was involved in during the period from 2011 until 2016. This included teaching undergraduates; postgraduate theses supervision, project work (Joly, Meath and Sicily projects); numerous publications; numerous chapters in books ; presentations at conferences, public lectures and other miscellaneous work on behalf of the Respondent.
Mr Jones told the Court that the Respondent engaged in discussions with Capard House who were interested in commissioning the Centre to carry out a research project and produce a book on the history of the House. He said that thiswould have provided work for two years for the Complainant who was the preferred candidate. However, the Respondent declined the offer and, as a result, the Complainant was employed directly by Capard House to work in collaboration with the Respondent.
Mr McCrann told the Court that although the Respondent engaged in discussions with Capard House it was decided not to pursue the matter as it did not sit well with the Respondent.
Conclusions of the Court
The Court notes that the Centre was set up by Professor Terence Dooley in 2003. As described on its website, the Centre“aims to secure and enhance public appreciation of historic properties by supporting education, research and scholarly publication”.Having considered the submissions made the Court is satisfied that the Centre is an integral part of the Department of History in the University and the work the Complainant was doing was an integral part of that Centre. While no representative from the Centre was present at the hearing to account for the current work of the Centre, it seems clear that such work continues. On that basis the Court is satisfied that no evidence was presented to suggest that the Centre and its work was anything other than a fixed and permanent part of the work of the University for aslong as it is capable of attracting funding.From the evidence submitted by the Complainant the Court is satisfied that his whole body of work was associated with the Centre and/or the Department of History in the University. He was considered as a resource within the Centre/Department of History that could be assigned to other projects and consequently in line withAdenelerandAngelidakithe Court finds that thework undertaken by the Complainantwas part of the fixed and permanent needs of the Respondent.
The Court is of the view that when the archive was returned to Strokestown in October 2015, if the Respondent’s argument that he was wholly and exclusively employed to work on that project, it would be expected that his employment would have terminated at that point. However, that did not happen and he was simply assigned to another project of the Centre while he continued to carry out other work in the Department of History that he had been involved in throughout.
As previously stated, in considering if the renewal of a fixed-term contract gives rise to a contract of indefinite duration the Court should look no further than the objective grounds relied upon for the contract thatprima faciecontravenes Sections 9(1) or 9(2) of the Act. That appears to be the import of the decision of the High Court inHSE v Umar[2011] 22 ELR 229.
In line withRussellthe Court must examine the objective grounds relied upon at thecommencement of the impugned contract. In this case it is clear that while the impugned contract stated that it was for the specific purpose of completing the programme of work on the Strokestown project it is clear to the Court that he was involved in and integrated into many other aspects of the University’s work.
Therefore the Court finds that the objective grounds relied upon were not the real grounds relied upon for the renewal of the Complainant’s appointment on a temporary basis and was not a true reflection of the reality of the situation at the time, thereby rendering the renewal unlawful.
The decision of Hogan J inHolland v Athlone Institute of Technology[2012] 23 E.L.R 1 makes it clear that even if the Complainant had obtained a contract of indefinite duration by operation of law he could not be placed in a superior position to that of a worker whose status as a permanent employee was never in doubt. Subject to constraints imposed on the Respondent by government policy and subject to there being no unfair selection, an employment relationship can be brought to an end by reason of redundancy.
As the Court held inTeagascv McNamara FTD138the use of successive fixed-term contracts indefinitely in situations to protect the employer against the possibility of an insufficient supply of work at some point in the future would seriously undermine the effectiveness of the Directive and the Act. If, due to economic circumstances or fall-off in demand, there is no longer sufficient work in order to maintain a worker in employment the employer’s remedy lies in making surplus staff redundant. It follows that while the requirement to balance staff levels with available funding is a legitimate objective the continuing use of fixed-term contracts is not always a proportionate and necessary means of achieving that objective.
For all of the above reasons the Court must hold that the renewal of the Complainant’s appointment for a fixed-term on 26th September 2014 was unlawful by operation of Section 9(4) of the Act and that contract by operation of law became a contract of indefinite duration. On that basis the Court finds that the Complainant’s claim was well-founded.
Redress
The Court notes that the redundancy payment paid to the Complainant was accepted without prejudice to the outcome of this case.
The Court was informed that since he was made redundant by the Respondent the Complainant has been employed by Capard House on a significantly higher salary than that applicable to his post in the Respondent. Given the fact that there was no gap in employment between his service with the Respondent and his fixed term contract with Capard House which is due to expire on 30thApril 2018, the Court accepts that an order for reinstatement without loss of pay is not the most appropriate redress as he has been paid during this period and has been on a significantly higher salary.
The Court believes that the appropriate form of redress in this case is an order directing that the Complainant be re-engaged in the post which he held in the Respondent University (on return of the redundancy payment) without loss of his prior service.
Determination
It is the Determination of the Court that the Complainant became employed by the Respondent, by operation of Section 9(3) of the Act, on a contract of indefinite duration on 27thSeptember 2014. In all the circumstances of this case as outlined above, the Court hereby orders the Respondent to re-engage the Complainant in the post which he previously held with the University, with effect from 1stMay 2018.
Accordingly, the appeal is allowed. The decision of the Adjudication Officer is overturned.
The Court so Determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
3 November 2017______________________
MNDeputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Michael Neville, Court Secretary.