FTD187

This is an appeal brought under the Protection of Employees (Fixed-term Work) Act 2003 (’the Act’) by Ms Emer Connolly (‘the Complainant’) against a decision of a Rights Commissioner bearing reference number r-15445-ft-15 and dated 18 June 2015. The Complainant’s Notice of Appeal was received by the Court on 23 July 2015. The Court heard the appeal in Limerick on 31 October 2018.

The Complainant was employed by the University of Limerick (‘the Respondent’) from 1 September 2010 until 31 August 2015 as a lecturer (below the bar) in journalism. It is common case that the Complainant’s employment during that five-year period coincided with the absence of a named, tenured member of the academic faculty who was availing himself of an approved career break. The dispute between the Parties relates essentially to the nature and number of contracts issued to the Complainant during the five-year period of her service with the Respondent. The Complainant submits that she was engaged on a succession of fixed-term contracts the aggregate duration of which exceeded four years such that she is entitled to a contract of indefinite duration by operation of law. The Respondent, on the other hand, submits that the Complainant’s period of employment is comprehended by one single specified purpose contract issued to her on 30 August 2010 and signed by her on 7 September 2010.

The Complainant’s Position

The Complainant accepts she received and signed a written contract in August/September 2010 pursuant to which her employment as a lecturer (below the bar) in journalism with the Respondent commenced on 1 September 2010. Her solicitor – Mr Andrew Turner – in response to a question from the Court – acknowledged that that contract was a specified purpose contract that expressly provided that the Complainant’s employment was “for the purpose of replacing a staff member on career break.” Mr Turner also accepted that the written contract did not contain any reference to an end date i.e. it was open-ended, albeit in the context of the expressly stated specific purpose. The Complainant submits, however, that the status of her contractual arrangement as provided for in that 2010 contract was subsequently fundamentally changed by three matters.

Firstly, she points to the evolving nature of her workload over the period of her employment and the increased responsibility she was asked to bear. Her evidence was that she was a course director for the MA in Journalism programme for the first two years of her employment. This entailed assuming responsibility for approximately thirteen postgraduate students, in addition to her other teaching, administrative and research responsibilities. In the third year of her employment (beginning September 2012) she had no course director responsibilities. However, prior to the commencement of the 2013 academic year, she and her colleagues were informed that she was to be the course director for the BA in Journalism programme for 2013 to 2016. This, she stated in evidence, meant assuming a significant level of responsibility for a much larger cohort of undergraduate students and required her to oversee Erasmus placements, for example, and to liaise with employers in relation to work-placements for students, in addition to her other academic duties.

Secondly, the Complainant told the Court that she believed that her employment from year to year was based on a series of successive fixed-term contracts. She arrived at this understanding, it appears, from a conversation that she had with her current line manager each Spring in the course of which she was informed that the permanent staff member who was on career break from the University intended to extend that career break for a further year and that, therefore, she would continue to be employed for the duration of the following academic year. At all times, the Complainant says she was anxious to take all necessary steps to position herself for a long-term career with the Respondent. With that in mind, she approached her then line manager, Professor Harper, in Spring 2014. The Complainant’s evidence is that Professor Harper informed her on that occasion that she would become entitled to a contract of indefinite duration the following September. The Complainant told the Court that she acted on the advice given by Professor Harper and approached the Human Resources Department in October that year. Her solicitor exhibited an email exchange that took place between the Complainant and Ms Ellen Keegan of the Respondent’s Human Resources Department commencing with an enquiry as follows from the Complainant dated 20 October 2014: “Dear Ellen, I am in my fifth year here (Lecturer Below the Bar). I understand I am entitled to a CID. I would appreciate if this could be issued to me …”. Ms Keegan replied as follows: “Dear Emer, The rationale for a CID is where an employee has been employed on 2 or more fixed term contracts over a four year period. You are currently employed on a specific purpose contract which was effective from 1 September 2010 and still remains valid. Having reviewed the purpose of your contract I am satisfied that you are employed on the correct contract”.

The third element of the case being advanced by the Complainant comprises a number of documents provided to her by her line manager which the Complainant submits establish that she was employed on a succession of fixed-term contracts and not on one continuous specified purpose contract. Mr Turner opened four such documents to the Court. Each is entitled ‘Contract Review’ and includes the Complainant’s name and staff number. The first is dated 12 July 2011. Under the heading ‘Is contract to be renewed:’, the ‘Yes’ box is ticked. On the second page, beside the ‘Contract to Issue’ heading, the box ticked is ‘Specific Purpose’. However, the following is entered in handwriting alongside this: “Renewal – SP continues – no need to issue new contract.” The second document exhibited issued on 14 June 2012 and the same options are indicated as on the previous document. The following appears on the form in handwriting: “No requirement for new contract – SP continues”. Likewise, the third document – which is stamped as received by Human Resources on 20 June 2013 – indicates that the Complainant’s contract is to be renewed. Beside the heading, ‘If Specific Purpose will current contract remain:’ the ‘Yes’ box is ticked. The final document indicates it was issued by Human Resources on 7 February 2014 and returned to that department on 6 April 2014. It is identical to the previous document in all material respects. The words “Special Purpose” are, in addition, handwritten on the first page of the document.

The Complainant seeks the following remedies from the Court:

• 
  1. A declaration that the Complainant is entitled to a contract of indefinite duration;

  2. Reinstatement;

  3. Compensation for breach of Section 8 and Section 9 of the Act.

The Respondent submits that the Complainant was employed at all material times pursuant to the specific purpose contract which issued to her in August 2010 which unequivocally stated that the purpose of her employment related to the absence of a member of faculty on career break.

Secondly, the Respondent referred to Clause 7 of the 2010 written contract which is headed ‘Duties’. In particular, Clause 7.3 provides: “During the course of your employment it may be necessary to expand your duties and responsibilities, within the general scope of your position, or change your function. The University of Limerick reserves the right to change your function and/or assign other duties to you at any time, it being understood that you will not be assigned duties which you cannot reasonably perform.” Under cross-examination by Ms Sinead Mullins of IBEC, the Complainant accepted that she had signed the October 2010 contract, she acknowledged the existence of Clause 7 therein and accepted that over the course of her employment with the Respondent the different duties, as varied from time to time, she was asked to undertake were all within her competence as a lecturer under the bar and thus consistent with the provisions of Clause 7.

The Respondent states that the information/advice allegedly given by Professor Harper to the Complainant in Spring 2014 was inaccurate and, in any event, could not have been given on behalf of the Respondent as Professor Harper occupied an academic role only and her expertise does not lie in the area of human resources.

The Respondent finally submits that the four documents dated 2011 to 2014 the Complainant is seeking to rely on as evidence of a succession of fixed-term contracts were in fact (a) documents that were never issued by the Respondent to the Complainant; (b) internal Human Resources documents; (c) not contractual in nature; and (d) expressly confirm the continuous employment of the Complainant pursuant to a single specified purpose contract. Under cross-examination, the Complainant expressly accepted that she had not been issued by the Respondent with any document entitled ‘Contract of Employment’ other than the document she signed in September 2010 at the commencement of her employment.

Discussion and Decision

The issue to be determined by Court, therefore, is a mixed question of law and fact: was the entire duration of the Complainant’s employment with the Respondent encompassed by the contract of employment issued to her in August 2010 or was the Complainant issued with successive contracts in subsequent years that ultimately altered the nature of the relationship between the Parties?

Having carefully considered the Parties’ submissions and the Complainant’s evidence, the Court is satisfied that the Complainant was employed at all material times pursuant to the 2010 contract of employment issued by the Respondent for the purposes of covering the absence of a permanent academic member of staff who was on a career break. At no time was the Complainant issued any further or additional contract of employment.Although, the Complainant’s duties were varied over the course of her employment, any such variation was entirely consistent with Clause 7 of the 2010 written contract, and cannot be construed as having the effect of bringing a new fixed-term contract into being between the Parties. The Complainant’s employment endured for the duration of that permanent staff member’s absence. Her specified purpose contract was terminated at the end of the academic year during which the absent staff member officially informed the Respondent that he would not be returning from his career break. The Complainant was eligible to apply for the subsequent vacant permanent position that was advertised. She did so but was not successful.

In all the circumstances, therefore, the Court finds that section 9 of the Act is not engaged as the Complainant has not established that she was employed on two or more successive contracts: she was employed on one specified purpose contract only. The additional documents she seeks to rely on are not evidence of any additional contracts, fixed-term or otherwise, issuing to her. In fact, each of the documents evidences the ongoing specified contract pursuant to which she continued to be employed. It follows also that section 8 of the Act is not engaged in the manner alleged by the Complainant as there were no contract renewals in her case.

On the basis of the foregoing, the Court determines that none of the claims under the Act are well-founded. The appeal is dismissed and the decision of the Rights Commissioner is affirmed.

The Court so determines.

Signed on behalf of the Labour Court



Alan Haugh
JD______________________
5 NovemberDeputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to John Deegan, Court Secretary.