Complainant

Respondent

Anonymised Parties

A Senior Project Manager

A Health and Social Services Organisation

Representatives

Paul Rochford, Mason Hayes & Curran Solicitors

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-00023045-001

05/11/2018

The complainant is an architect and from December 2014 until May 2015, he was employed through an agency as a Project Manager (“PM”) in the respondent’s property section.  On May 18^th 2015, he was appointed to a role as a Senior PM on a one-year, fixed-term contract.  On May 17^th 2016, his employment continued on foot of a fixed-term contract for two years, until May 18^th 2018.

On April 6^th 2018, the complainant attended a meeting with his line manager and another senior manager and he was informed that his employment would end when his contract expired.  This was confirmed in a letter on May 2^nd 2018.  In the letter, the complainant’s manager referred to their meeting on April 6^th and he explained that the reason his fixed-term contract was coming to an end was because the respondent did not have sanction for a permanent post at his level, grade VII.  The letter notes that provision has been made for a new, permanent grade VIII post of Project Coordinator (“PC”) which was to be “advertised as soon as the relevant approvals are in place.”  The complainant was invited to apply for this post, or any other suitable vacancies.

The complainant’s employment was terminated on May 18^th, but the new grade VIII role was not advertised until October 2018.

If he had been permitted to remain in employment, by December 14^th 2018, the complainant would have completed four years of service.  His case is that, by dismissing him, the respondent sought to avoid a change in his status from being employed on a fixed-term contract to having a contract of indefinite duration.  He claims that, by dismissing him, the respondent penalised him in contravention of section 13(1)(d) of the Protection of Employees (Fixed-term Work) Act 2003.

At the meeting on April 6^th 2018 with his manager and the other senior manager, the complainant said that he was informed that his contract would not be renewed because this would lead to him having “permanent employment rights.”  He understands that this means that he would be entitled to a contract of indefinite duration.  The manager explained that this would create complications for the delivery of a property strategy he was working on.  The complainant said that his line manager said that he wanted to broaden out the complainant’s role to include smaller capital projects and to support the property function.  The complainant said that the other senior manager at the meeting said that the new grade VIII role would be advertised in six to eight weeks.

At the hearing, the complainant said that he thought about what was said at the meeting concerning a broader role, and he said that he already had a broad role and that he was not confined to any one specific purpose.  To this end, he produced an undated reference from a retired director, who the complainant worked with when he joined the organisation in December 2015.  This former director said that in the complainant’s role as a Senior PM, he had “a wide range of duties” comprising “responsibility for Capital Planning and Programming, oversight of financial governance and compliance with public procurement policy, regulatory compliance on construction projects, estimates process, liaison with a range of bodies and professionals.”

On April 18^th 2018, the complainant sent an e-mail to his manager seeking further clarification about the grade VIII jobs that were to be advertised in six to eight weeks.  He asked for a job specification for any roles that were about to be advertised and he also asked for flexibility to take time off to attend interviews before the expiry of his contract on May 17^th.

The complainant’s manager replied the same day saying that they had “run into a bit of a delay with the approvals,” and that it would “push the recruitment process out a bit further.”   He said that the job specification wouldn’t be finalised until the approvals were in place. 

The complainant said that this is at variance with the statement in the letter he received on May 2^nd from the same manager in which he said that “provision has been made in (the respondent’s) Corporate Structure for a new permanent Grade VIII post…”

At the hearing, the complainant submitted a copy of a job advertisement for a vacancy for a “Project Coordinator Grade VIII.”  The advertisement was posted on the respondent’s job portal on October 11^th 2018.  The complainant said that this appears to be a slightly less technical job at a more senior level to the job he filled from December 2014.

In his submission, the complainant referred to the Labour Court case of the Teaching Council and Liane Kirwan, FTD 1225.  Ms Kirwan was dismissed three weeks short of the fourth anniversary of her first contract of employment and the Court found as follows:

“The timing of the dismissal, the continuing need for the work in which the Claimant was engaged, the facts that she was replaced by agency staff and the absence of any prior reference to an intention to take on redeployed staff, point inexorably to the conclusion that the operative reason for the dismissal was the avoidance of the Claimant’s fixed-term contract becoming one of indefinite duration by operation of law. In these circumstances the Court is satisfied, on the balance of probabilities, that the Claimant was dismissed in circumstances amounting to penalisation within the meaning of s.13(1)(d) of the Act.”

The complainant also referred to the case of the Dublin Institute of Technology and James Wogan, FTD 149.  Mr Wogan initially submitted a complaint under section 9 of the Protection of Employees (Fixed-term Work) Act 2003 (“the Act”) and his employer objected to the complaint being aired.  Finding in his favour, the Labour Court concluded as follows:

It seems to the Court that what was stated on the form was intended to convey that the Claimant believed that he should not have been dismissed on 31^st December 2012 in circumstances where the funding supporting his employment remained in place. That is capable of being construed as a complaint under s.13(d) of the Act.

In his submission on behalf of the respondent, Mr Rochford said that the complainant was involved in two capital projects, both of which were substantially completed by the time of his departure.  He was involved in another two projects in the midlands and west, and these were also substantially completed with little input required from the organisation.  Mr Rochford said that the complainant also managed the annual capital allocation and that, following his departure, this responsibility was shared with a number of managers.

Mr Rochford referred to the meeting with the complainant on April 6^th 2018.  At this meeting, the managers informed the complainant that the parent department would no longer fund grade VII posts for PMs and that these positions would become redundant.  The effect of this was that his contract would not be renewed when it expired on May 17^th.  Two new grade VIII posts of PC were to be created he was encouraged to apply for one of these.  The other temporary contractor in the grade VII post applied for one of these roles and was successful.

On May 2^nd, the complainant received a letter confirming details of his redundancy payment and he was again invited to apply for the grade VIII post, or any other vacancy.  His employment was terminated on May 17^th and he received a statutory redundancy lump sum of €4,200.

When the complainant’s contract came to an end in May 2018, he had completed three years’ service with the respondent.  An entitlement to a contract of indefinite duration arises after four years of service and it is the respondent’s case that the complainant had no entitlement to a new fixed-term contract when his employment was terminated in May 2018.   

Mr Rochford referred to the case of the Teaching Council and Kirwan which was cited by the complainant and he argued that the circumstances of the case under consideration here are different.  In Kirwan, the Court found that the work that Ms Kirwan was employed to do was continuing and that she was replaced by agency staff.  In the case of the complainant in this case, Mr Rochford said that his work had diminished and his remaining responsibilities were distributed temporarily between two other managers.  It was envisaged that these responsibilities would be taken up by the new grade VIII post-holders when they were recruited.

The number and grades of posts in the respondent organisation is set down in legislation enacted in 2013 governing its operation.  Mr Rochford said that the reason that the complainant’s contract wasn’t renewed was because his grade VII post was no longer sanctioned by the parent department.  While the respondent organisation is the employer, it cannot operate outside the funding model prescribed by the department. 

The respondent’s submission refers to the “but for” test which has been used by the Labour Court when considering complaints of penalisation.  Set out in the first instance in the case of Toni & Guy (Blackrock) Limited v O’Neill, HSD 095, the principle was followed in the case of Aidan and Henrietta McGrath Partnership v Monaghan, PDD 162.  Here, the Court described the operation of the “but for” test as follows:

Thus the detriment giving rise to the complaint must have been incurred because of, or in retaliation for, the Complainant having committed a protected act. This suggests that where there is more than one causal factor in the chain of events leading to the detriment complained of the commission of a protected act must be an operative cause in the sense that “but for” the Complainant having committed the protected act he or she would not have suffered the detriment. This involves a consideration of the motive or reasons which influenced the decision maker in imposing the impugned detriment.

Referring also to a decision of the adjudication officer in A Former Employee v A German Company, ADJ-0000351, Mr Rochford, submitted that the “but for” test cannot be easily surmounted.  It is the respondent’s case that the complainant’s contract was not renewed because they no longer had sanction from their parent department to employ PMs at grade VII and he was encouraged to apply for the new grade VIII posts.

Arguing that the termination of a fixed-term contract is not a dismissal, Mr Rochford referred to the Labour Court case of Nerney v Thomas Crosbie Holdings Limited [2013] 24 ELR 238.  Here, the Court concluded that a fixed-term contract could be ended without the intervention of either party.  In the Health Services Executive and Merlin Park Regional Hospital v Chalikonda VR Prasad, FTD 062, Mr Rochford said that the Court held that a fixed-term employee does not have an automatic right to renewal of a fixed-term contract.  Reaching this conclusion, he said that he Court referred to the case at the English Court of Appeal, Department for Work and Pensions v Webley [2004] EWCA, which found that:

Once it is accepted, as it must be, that fixed-term contracts are not only lawful, but are recognised in the Preamble to the Directive as responding, 'in certain circumstances, to the needs of both employers and workers', it seems to me inexorably to follow that the termination of such a contract by the simple effluxion of time cannot, of itself, constitute less favourable treatment by comparison with a permanent employee.  It is of the essence of a fixed-term contract that it comes to an end at the expiry of the fixed-term.

On this basis, the respondent’s case is that the complainant was not penalised in the manner prohibited at section 13 of the Protection of Employees (Fixed-term Work) Act 2003.

The Relevant Law

The complainant alleges that he has been penalised in contravention of section 13(1)(d) of the Protection of Employees (Fixed-term Work) Act 2003.  Before considering his complaint, it is useful to set out section 13 of the Act in its entirely:

(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

The genesis of the Fixed-term Work Act is Council Directive 1999/70/EC concerning the framework agreement on fixed-term work.  Clause 1 of the framework agreement states that the purpose of the Directive is to:

(a)  improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination;

(b)  establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

Clause (b) above has been transposed into Irish law by section 9 of the Act which addresses the issue of successive fixed-term contracts:

(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.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.

The complainant’s case is that he was employed on successive fixed-term contracts from May 2015 until May 2018.  Before May 2015, he was employed through an employment agency from December 2014.  He argues that the termination of his contract in May 2018 was for the purpose of avoiding his entitlement to a contract of indefinite duration, as provided for at subsection (3) above.

Analysis of the Facts

The complainant was an agency worker from December 2014 until May 2015, when he was employed directly on a fixed-term contract for one year.  In May 2016, his contract was renewed for a fixed-term of two years and on May 17^th 2018, his employment was terminated on the expiry of his fixed-term contract.

On April 6^th 2018, at a meeting with his managers, the complainant was informed that the respondent no longer had approval to employ PMs at grade VII.  The managers said that they intended to apply for sanction to recruit for a new role of PC at grade VIII.  They said that it was their intention to advertise the new roles in six to eight weeks.  The complainant was informed that his employment would end on the termination of his fixed-term contract around five weeks later, on May 17^th 2018. 

On April 18^th, the complainant sent his manager an e-mail and asked for details of the proposed new jobs that he understood were to be advertised in six weeks.  He also asked for time off to attend interviews and he discussed the need for a handover.  His manager responded to say that they had run into a delay with the sanction for the new posts and that the job description couldn’t be finalised.  The complainant said that this is in contrast to the letter he received on May 2^nd, confirming the termination of his employment which states that, “provision has been made …for a new permanent Grade VIII post, as PC…You are invited to apply for this post and indeed any other suitable vacancies that arise and are advertised by Agency.”

One other person was employed as a PM at grade VII, who I will refer to as “PM2.”  PM2 was employed on a fixed-term contract for two years in January 2016.  His contract was renewed for one year in January 2018, meaning that, in January 2019, he would have had three years’ continuous service.  

At the hearing of this complaint, I was informed that in the end, approval was granted for the recruitment of four grade VIII PC roles.  The jobs were advertised in October 2018; however, by this stage, the complainant had moved on to a new job and he did not apply.  PM2, who was on a fixed-term contract ending in January 2019 applied and was successful.

The complainant didn’t raise a grievance on this matter before he finished working for the respondent and the submission of this complaint was the first time that he raised an allegation of penalisation.

It is clear from the correspondence between the complainant and his manager following the meeting on April 6^th, that he had work to do which had to be taken up by others after his departure.  In his response to the complainant on April 18^th, his manager said, “my intention is that I myself will manage your workload for the interim period and I’ll be asking (PM2 and another named manager) to help out in this regard as far as they can.”

Findings

For reasons that were not explained, the sanction to employ PMs at grade VII was rescinded by the respondent’s parent department and sanction was provided to recruit grade VIII PCs.  The logical follow-on from this is that the complainant’s job became redundant.  When he was made redundant on May 17^th 2018, he had three years of service on two successive fixed-term contracts and six months of service from a previous assignment through an employment agency.

The operative reason given by the respondent for not renewing the complainant’s contract was because his job ceased to exist.  While this appears to be a straightforward explanation, it has a murky quality, for the following reasons:

The job that the complainant was employed to do was absorbed into the PC grade VIII job.  This was affirmed by the evidence of his line manager at the hearing and by the fact that, when he finished up, his responsibilities were shared with his line manager, another manager and PM2.

The reason given for terminating the complainant’s contract was because sanction for grade VII posts was removed and sanction was being sought for grade VIII posts.  However, it is apparent that, in May 2018, another employee, PM2, continued in a grade VII post for at least six months, until the grade VIII posts were filled.  It seems to me that there would have been no impediment from the parent department to renewing the complainant’s contract in May 2018, pending the filling of the grade VIII posts.

If the complainant’s contract had been renewed for six months, he would have been an employee in October 2018, when the four grade VIII jobs were advertised.  It is likely that he would have applied for one of these vacancies.  As someone with almost four years of continuous service in the role of PM, and, as the responsibilities of that role were incorporated into the grade VIII role, he must have stood a good chance of success.  This is evidenced by the fact that his less experienced colleague, PM2, applied and was successful.

If the complainant’s contract had been renewed in May 2018, and if he had continued in employment for six months until November, there would have been no impediment to the respondent making him redundant at that point, when recruitment for the grade VIII jobs was imminent.  The complainant would have had no case to argue for a contract of indefinite duration, because his job no longer existed.  The effect of terminating his contract in May 2018 however, is that the complainant had no alternative but to look for another job, and by October, he was already settled with a new employer.

Having considered the evidence submitted in writing and at the hearing, I have reached the conclusion that the respondent did not penalise the complainant in the manner prohibited by section 13(1)d) of the Act.  If his contract had been renewed in May 2018, and, if he had accrued four years of service, he would not have become entitled to a contract of indefinite duration.  I have reached this conclusion because the complainant’s job as a PM grade VII had come to an end and he could not have assumed an entitlement to a contract of indefinite duration for that job.

In conclusion therefore, while it is my view that the respondent’s decision to terminate the complainant’s contract in May 2018 was related to the possibility that he would apply for and be successful in his application for the grade VIII role, I find that legally, there was no breach of section 13(1)(d) of the Act.

Having reached the conclusion set out in the previous section, I decide that this complaint is not upheld.

Fixed-term work, penalisation, contract of indefinite duration