UDD1961

Preliminary Issue – Jurisdiction of the Court

The Respondent raised a preliminary issue that the Court had no jurisdiction to hear the complaint as the Complainant’s employment was under a fixed-term contract and the termination arose only as a result of the expiry of the fixed term under section 2(2) of the Acts. In the interest of efficiency of process, the Court proposed to consider this issue as a preliminary matter, as it had the potential to be determinative of the appeal in its entirety. The parties agreed to proceed accordingly.

Summary of the Respondent’s Position

Mr. Michael McGrath, Ibec, on behalf to of the Respondent denied that the Complainant was unfairly dismissed. He submitted that the Acts have no application in this case and the Court has no jurisdiction to hear the claim. He stated that by operation of Section 2(2)(b), the Acts do not apply to contracts where the termination of the contract occurs in accordance with the expiry date of the fixed-term as set out in that contract. Mr. McGrath stated that the Complainant had freely accepted and entered into the fixed-term contract in December 2015 to cover the period 1st January 2016 until 31st December 2016.

Mr. McGrath stated that as the continued employment of secretariat staff working on the project tenders was dependent on confirmation of funding from the EU on an annualised budget basis, therefore, it issued fixed-term contracts. He said that funding in each year was based on the successful completion of the work-plan for the previous year as well as approval of the work-plan for the coming year.

In July 2015 the EU Commission launched a second call for tender, Service Contract VC/2015/1043, to support the EQAVET Network for the period 1st January 2016 up to the end of 2017 with a possibility of renewal at the request of the Commission for one further two-year period up to the end of 2019. That contract tender was granted to the Respondent in September 2015.

Mr. McGrath said that at around the time the 2015 Service Contract was awarded, the Director of the Secretariat identified the roles required to fulfil the tender requirement. There was no provision for an administrative role within the specifications provided in the contract with the European Commission. This was the role that the Complainant had been carrying out under the previous contract. The Director identified that a role for a Communications and Information Officer was required, which was a grade higher than the Complainant’s grade. That position was advertised internally, and the Complainant had the opportunity to apply for that role. The Complainant did not apply, and the role was ultimately filled in March 2016.

However, the Complainant was issued with a fixed-term contract from 1st January 2016 to 31st December 2016, in order to allow for the transition to the new Service Contract and the transfer of her remaining tasks to administrative staff. Mr. McGrath said that this decision arose from a meeting between the Complainant and Mr. Eamonn Collins, HR Manager and Ms. Claire Byrne, Director of Corporate Affairs on 17th December 2015. At that meeting it was made clear to the Complainant that this further fixed-term contract would be to facilitate that change and that her employment would not continue beyond the end date of the contract. This was reiterated to the Complainant on 5th July 2016 when in a further meeting with Mr. Collins and Ms. Byrne she was advised that her employment would be ending on 31^stDecember 2016 due to the fact that all the work she was originally hired to do had been transferred to other staff within the organisation or subsumed into the duties of the Communications and Information Officer role.

He said that due to requirements outlined in the new tender, the role for which the Complainant had been hired under the 2016 contract was complete, the role she had been carrying out had ceased to exist and her contract came to an end on that basis. Mr. McGrath said that the Complainant was formally notified by letter dated 14th December 2016 that her employment would be ending on 31st December 2016 and she would be paid a statutory redundancy payment.


Summary of the Complainant’s Case

Mr. Paul Marren, Martin E. Marren Solicitors, on behalf of the Complainant submitted that this Court does have jurisdiction to hear this claim and that Section 2(2) of the Acts do not apply to the circumstances of this case because the dismissal did not consist only of the expiry of the fixed-term without its being renewed.

Mr. Marren claimed that there were other reasons which brought about the dismissal of the Complainant. He submitted that the Respondent had created a new role only to terminate it less than a year later, at the same time as the Complainant was dismissed. He submitted that the removal of the Complainant from the workplace was in the context of a difficult working relationship with senior management and her ongoing grievance into bullying and harassment by members of management.

Mr. Marren submitted that the 2009 and the 2015 tender requirements were broadly similar and required no change over the Complainant’s role. He surmised that the decision to terminate her employment was driven internally rather than by reason of the tender requirements having changed.Funding was provided for each year, 2016 and 2017 with the possibility of annual extensions thereafter until 2019 when the next tender was due.

He disputed the Respondent’s contention that a new role was created, and part of the Complainant’s role was subsumed into the new role thereby making her role redundant. He argued that this could only have been the case if the Respondent had examined whether or not her role ought to have been made redundant and whether or not alternative roles were available. He said no such process occurred.

Moreover, he submitted that the Complainant also worked in other areas of the organisation, including Finance and on two other European projects, IQAVET and EQF-NCP. Mr. Marren stated that the Respondent had recruited people into some of these positions, in breach of its own procurement rules and without notifying its staff or the Complainant. Moreover, the Respondent continued to recruit people after the Complainant was dismissed.

Mr. Marren disputed the Respondent’s assertion that in July 2016 it was agreed with the Complainant that her role would end at expiry of the fixed-term and by that time the duties of her role would have been “redeployed” to others. However, he said that what in fact occurred was that the Complainant was replaced in the EQAVET Project by another employee under the pretext of her role not being one of the roles included in the 2015 tender response. He said that prior to the renewal of the Complainant’s contract for 2016 the Respondent had sought legal advice and was informed that the roles were not discernibly different.

The Complainant would have been dismissed at the expiry of the fixed-term contract, under which she was then employed, on the 3lst December 2015 however, based on legal advice received from the Respondent’s HR Department, this did not happen.

The Law Applicable

As a preliminary matter, the Court must examine the Respondent’s contention that it has no jurisdiction to hear the unfair dismissals complaint.

Section 2(2)(b) of the Acts provides as follows;

• Subject to subsection (2A), this Act shall not apply in relation to

  (1)( b) dismissal where the employment was under a contract of employment for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.

The contract also stated that it was“a fixed term contract of employment and therefore the provisions of the Unfair Dismissals Acts, 1997-2001, will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term”.The Respondent also stated that the contract was signed by both parties. The Respondent submitted that the employment of the Complainant ceased upon the termination of her contract.

The Complainant accepted the content of her contract as submitted by the Respondent but also submitted that the contract should have been renewed.

The Court must examine whether or not the exclusion contained in Section 2(2)(b) of the Act which permits the non-application of the protection of the Act to fixed-term contracts that have been executed strictly in accordance with four clear criteria set out in Section 2(2)(b), namely: -

• a)The contract must be in writing;
  b)The contract must be signed by or on behalf of the employer;
  c)The contract must be signed by the employee;
  d)The contract must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed-term.

In order for Section 2(2)(b) of the Act to apply the contract must be abona fidefixed-term contract.“A contract is for a fixed term when at the time it is entered into the date of the commencement and of termination respectively are capable of being ascertained”Redmond on Dismissal Law p. 533.

The contract in question, clearly stated that it was directly related to the funding received from the European Commission in respect of the Service Contract at the time. The contract also stated that is was a fully funded contract, and the Respondent had no control over its duration. The Court notes that the funding from the European Commission in respect of the Service Contract was paid on an annual basis. The Respondent told the Court that the Complainant’s role was to cover a transition period which diminished and no longer existed on the expiry of her fixed-term contract on 31^stDecember 2016, as was envisaged at the commencement of that contract and in line with the requirements of the Service Contract.

In all the circumstances, the Court is satisfied that the contract signed by the Respondent and the Complainant was clearly for a defined fixed-term which included reasons why it was for a fixed duration at the time it was entered into. The Court is satisfied that the contract was properly worded and validly executed by both parties and provided the dismissal consists only of the expiry of the term would not be protected by the Acts. The Complainant’s employment terminated when her fixed-term contract expired by effluxion of time. It is clear from an examination of the contract in question that all of the necessary criteria have been met in this case, therefore the protection of the Acts does not apply as the termination of the contract occurred due to the expiry of the fixed-term as set out in the contract.

Determination

For all of the reasons set out above, the Court determines that the exclusion set out in the Acts at Section 2(2)(b) does apply. Therefore, the Court upholds the Adjudication Officer’s Decision and rejects the Complainant’s appeal.

The Court Determines.

Signed on behalf of the Labour Court



Caroline Jenkinson
MK______________________
21 October 2019Deputy Chairman



NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.