ADJUDICATION OFFICER DECISION

 Adjudication Reference: ADJ-00008662

Complaint(s):

ActComplaint/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-00011566-001 25/05/2017   Date of Adjudication Hearing: 28/11/2017 Workplace Relations Commission Adjudication Officer: Penelope McGrath BL

Procedure:

  In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered during the hearing. I have also considered any written submissions presented.   The Complainant herein has referred a complaint stating that the Respondent has contravened the Protection of Employees (Fixed Term Work) Act 2003 and the referral has been made within six months of the initial circumstances of the relevant contravention.  

Background:

The Complainant is fluent in Spanish and has worked teaching Spanish as a foreign language. In particular, the Complainant has been engaged by the Respondent educational facility off and on since 2007. For the academic year 2012 to 2013 the Complainant did not work with the Respondent, although he was re-engaged by them in September of 2013 for the academic year starting September 2013. This Contract was described as a fixed term Contract and was renewed in 2014, 2015 and 2016. The Contract was not renewed in 2017 and in fact the Complainant was let go earlier that year. The Complainant claims an entitlement to a Contract of indefinite duration. The Respondent states that the Complainant has no such entitlement and that the expiration of the last Contract was by reason of the expiration of the Fixed Term and was not re-newed by reason of objective justification on the part of the Respondent of which the Complainant had been alerted. A Fixed Term employee is a person having a Contract of Employment entered directly into with an employer where the end of the Contract of Employment is foreseeable and understood and 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 Protection of Employees (Fixed-Term Work) Act 2003 sets out to protect Employees (working under these Fixed Term Contracts) from being treated in a less favourable manner than a comparable permanent Employee. An Employer who sets out to treat a fixed term employee less favourably in relation to a particular condition of employment must demonstrate it is justified to do so on objective grounds. The Act particularly seeks to prevent an abuse arising from the successive use of Fixed Term employment Contracts. In situations where an Employer operates a series of Fixed Term Contracts in respect of an Employee then the Employee becomes entitled to a Contract of Indefinite Duration (CID) at the end of four years – unless there are clear objective grounds which allow for the repetition of another Fixed Term Contract or a termination by reason of the expiration of the Fixed Term. Section 7 of the Act recognises that less favourable treatment might include the renewal of a fixed term employee’s Contract of employment for a further fixed term (and not on a permanent basis) or the non-renewal of and such Fixed Term Employment altogether. This is provided for in Section 8(1) of the Act which states: “Where an Employee is employed on a fixed-term Contract the fixed-term employee shall be informed in writing as soon as may be 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 (c) the occurrence of a specific event” Any objective ground being used to justify less favourable treatment cannot stem from the Employee’s status as a fixed term Employee and any such less favourable treatment can only be for the purpose of achieving a legitimate objective of the Employer and the treatment is necessary and appropriate. The Employer is obliged when renewing a Fixed Term Employment Contract to set out (in writing) the reasons for the renewal of the Employment of the Fixed Term basis and these reasons must be provided to the Employee. Section 9 deals with the status of successive fixed-term Contracts (that have continuity) and can only operate up to a limit of four years at which time they are deemed to be a Contract of Indefinite duration (save where objective grounds justify a renewal on the same Fixed term terms) In the event that I find that the complaint of a contravention is well founded I can require the Employer to comply with the relevant provision and or require the Employer to reinstate and/or reengage the employee. Lastly, I can direct that the Employer pay compensation not exceeding two year’s remuneration where I consider it just and equitable.

Summary of Complainant’s Case:

The Complainant makes the case that the Respondent Third Level Education Institution failed to set out in writing the objective justification ground being used to justify the repeated use of fixed term contracts and the failure to offer the Complainant a Contract of indefinite duration.  

Summary of Respondent’s Case:

The Respondent rejects the assertion that it had not indicated in writing the Objective Justification required to justify the issuing of Fixed Term Cont4racts and additionally made the case that the Complainant had not achieved four years of Service such that he would be automatically entitled to a Contract of Indefinite Duration.  

Findings and Conclusions:

I have carefully considered the evidence adduced during the hearing. Both the Complainant and the Respondent’s Representatives provided me with submissions which were opened to me. I additionally heard evidence from the Complainant himself and two witnesses from the Respondent. It is clear to me that the Complainant is an excellent communicator and his ability to teach Spanish is not in doubt. The Complainant worked hard within the Respondent body and had received much positive feedback on his work ethos, his planning and his interfacing with the student body. The Complainant had been working as a Tutor with the Respondent on Fixed Term contracts since 2007 but was absent from this workplace for the academic year 2012 to 2013 when he took up the position of Assistant Lecturer elsewhere. The Complainant returned to the workplace in 2013 having successfully applied for the position of language assistant which had been advertised in July of 2013. The Complainant’s Contract was to run form the 4th of September 2013 to the 31st of May 2014. I note that the covering letter, with which the Complainant received his contract of employment, provided that “information regarding your appointment is as stated in writing from Human Resources and you should not rely on any undertaking given orally, or in writing by any other party.” – the inclusion of this direction is noteworthy as it tends to suggest that there was a potential problem in the workplace - wherein persons who had no authority to make promotional or other workplace promises were giving false hope which could not be fulfilled by HR. The Complainant worked through the academic year starting 2013 and was renewed in 2014 for another academic year and again in 2015 and in 2016 which last Contract was due to expire in May of 2017 – which was a cumulative period of three years and 8 months (albeit some of that time included summer months – and the parties did not clarify with me whether this was to be included or not). In any event, the Complainant‘s strongest case is one of 3 years and 8 months of unbroken and successive Fixed Term Contracts. The Complainant, it is noted, was advised on the 26th of April 2017 that his employment was being terminated at the end of May 2017. This was the first letter of this sort (i.e. referencing a P45 and Redundancy payments) which the Complainant received in the three and a half years he had been with the Respondent . The Respondent in its evidence - provided by the Head of the School of Languages, Culture and Linguistics (BM) referenced the Covering Letters as well as the annually provided Fixed Term Employment Contracts for the purpose of making the case that the Complainant was aware that the he was being provided with Fixed Term Employment Contracts and not with a Permanent Employment Contract and that he understood why this was being done. That is to say, that the Employer purported to justify its decision to provide the Complainant with Fixed Term Employment on the Objective Grounds as set out in the Contract of Employment. I came back to the issue of the Objective Grounds being relied upon to issue Fixed Term Contracts and not Permanent Contracts on a number of occasions. I still remained unconvinced that a clear and concise objectively justified Ground has been articulated in the sentence: - “”The objective grounds for issuing this Fixed Term Contract rather than a permanent Contract is based on the continued need for specialist expertise in the UCD school of Languages, Cultures and Linguistics and in particular to support the School’s Spanish Language programme.”” Similar such sentences appear in each of the Contracts of Fixed Term Employment and are, to my mind, vague in terms of pinpointing an Objective Justification for treating the Complainant less favourably. However, the Complainant did not push this point. The Complainant instead made the case that there was some sort of moral duty on the Respondent to provide him with a Contract of Indefinite duration in circumstances where at least two members of the senior staff (GG and MC) had assured him that it was virtually guaranteed.   The Complainant gave evidence that as far back as March 2016 he was told by the Language Subject Head that he should be in line for a full time Contract and I accept that there was even some communication in this regard (emails shown to me verified some communication with HR). However, it was pointed out to me that the Subject Head oversaw a further Fixed Term Employment Contract being entered into in September of 2016 and that the same Subject Head went out on long term sick leave. The Complainant approached the acting Subject Head who was also head of school (BM) in February 2017 to ask what his status was. BM contacted HR and was aware of no plan to retain the Complainant on a Permanent Full Time Contract of Employment. It seems that this decision was never in the power of the Subject Head and he had overstepped his authority in making such promises. Similarly the good intentions articulated by MC in wanting the Complainant to be made permanent was not something she could guarantee. In this regard the warning in the letter I referred to above needs to be recalled -“information regarding your appointment is as stated in writing from Human Resources and you should not rely on any undertaking given orally, or in writing by any other party.” At the same time as this, it was put to me that the Spanish Department was in a bit of a state of flux, and BM who had just taken over (in unexpected circumstance) in September of 2016 was obliged to accelerate a programme of re-structure which had been in the pipeline for some time. Modules and programmes needed to be brought in line with competitors and there needed to be an overhaul of the staff providing Academic teaching of the language culture and literature. It was put to me that there was a requirement that there be more emphasis on having persons with skills in the area of Culture and Literature and not just language and also that there was a requirement that teaching staff have achieved higher academic attainment (i.e. PhD holders). In 2017 the School took on two permanent members of staff as well as two Fixed Term Employees to cover a sabbatical and a period of sick leave. All of these appointments were persons holding higher levels of qualification than those held by the Complainant. The emphasis has to be on academia, lecturing and research rather than just teaching is what I was told. It was noted that the Complainant had known about the advertisement of two of these positions (the Fixed Term ones) but had opted not to apply – for fear, he said, of jeopardising his entitlement to a Contract of Indefinite Duration. In the end, the Department re-structuring did not include the Complainant as a Teaching assistant and the decision was made to terminate his employment. In the circumstances, I am bound to find that the Complainant cannot maintain this claim as he does not have the service required under Section 9.

Decision:

  I find that the claim made under the Protection of Employment(Fixed-Term Work) Act 2003 is not well founded and fails.  

Dated:   14/02/2018

Workplace Relations Commission Adjudication Officer: Penelope McGrath