Complainant

Respondent

Anonymised Parties

A Teacher of Languages

An Educational Institution

Representatives

ASTI

Act

Complaint 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-00023922-001

07/12/2018

The complainant had been engaged on a series of fixed term contracts over a period of ten years and now seeks appointment on the basis of a contract of indefinite duration (CID).

In relation to the preliminary point raised by the respondent that it is not properly named as the correct respondent the complainant relies on her contract of employment which contradicts this and clearly indicates the respondent as the other party to the contract of employment.

In the heading of the contract the employer party is described, and it is the current respondent.

Later on, in the ‘General Section’ it is clearly stated that ‘You will be employed by the [respondent]. Accordingly, the respondent is correctly named as the complainant’s employer.

The complainant relies on Section 9(2) of the Fixed Term Work Act, 2003 (which is considered in greater detail below).

The complainant notes that the contract is subject to continuing availability of funding, but while this is noted, this has been held by the Labour Court not represent ‘objective grounds’ for the withholding of a CID. per DIT v Gainza, FTD 1238 12 November 2012.

There is a specific initiative funded by the Department of Education and Skills (DES) to deliver a particular branch of learning. (For ease of reference and to protect anonymity, hereafter referred to as Project A).

Initially Project A was something of a pilot, but it is actually expanding.

Project A is located on the respondent’s campus and rents offices from the respondent. However, it is entirely reliant on DES funding. The respondent is also paid an administrative fee to carry out certain other functions, such as payment of bills, managing bank accounts and payroll etc.

However, the respondent has no role in the actual activities of Project A, nor does it make any input into them. It does not recruit, select, issue employment contracts, or deal with HR type matters.

Indeed, Project A will soon vacate its accommodation on the respondent premises.

There is another difficulty in that the respondent is not part of the public service superannuation scheme.

Certain parts of the public service, and the world of education in particular often throw up anomalies in relation to who exactly is a person’s employer. Indeed, a person may have a school as employer for certain purposes and the Department of Education & Skills for others.

While it is possible to feel some sympathy for a respondent caught in such a confused position, there is no more powerful instrument in determining the employment relationship than the contract of employment.

That is the only issue in this case, and it is very clear that the respondent is named on the contract of employment as the employer and therefore had been correctly named as the respondent.

It may have ended up in that position because it was convenient to do so when the contract was agreed, and there was no other vehicle to do so, but whatever the explanation, that is now the legal position.

All that remains therefore is whether that contract, the latest in a very long line of fixed term contracts should be converted to one of Indefinite Duration.

Section 9 of the Act, to which the complainant referred above, provides as follows:

(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 Labour Court has held inDonegal County Council v James Sheridan Determination FTD 185 that;

  Subsection (3) of Section 9 applies to a situation where an employee is given a renewed fixed-term contract in contravention of Subsections (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. The terms and conditions of a contract of indefinite duration which comes into being by operation of Section 9(3) must therefore be the same as those contained in the fixed-term contracts from which it is derived.

It is clear from a simple reading of the statutory provision and a significant line of authority of both the Labour Court and the Adjudication service that the complainant is entitled to a Contract of Indefinite Duration.

She has well exceeded the four-year threshold of service to do so.

I uphold complaint CA-00023922-001 and find that the complainant is entitled to a contract of indefinite duration. I hereby require the respondent to issue the complainant with a contract of indefinite duration.

Fixed Term contract, contract of indefinite duration.