Complainant

Respondent

Anonymised Parties

A Part-time Teaching Assistant

A University

Representatives

Paul Hardy SIPTU

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-00023791-001

05/12/2018

The Complainant has been employed by the respondent since 2004 on a number of part time teaching contracts.   The complainant had been engaged on a series of fixed term contracts over a period of fourteen years and now seeks appointment on the basis of a contract of indefinite duration (CID).

Her employer has not issued her with a contract of indefinite duration and has cited an objective reason which is both demonstrably untrue and contrary to its own policies as justification.   Her most recent contract dates from 24th of September 2018.

The complainant submits that she

has been employed as a Part-Time Teaching Assistant since 2004, under the following fixed term contracts;

Part time tutor (Oct 2004-Apri 2005), as a part-time teaching assistant (2005-2006), part-time teacher (2007-2008 & 2008-2009) part-time teaching assistant (2009-2010, 2012-2013) Tutor (2011-2012 and 2014-2015) Post-Doctoral Fellow (2012-2013, 2013-2014 & 2014-2015) and Part-time teaching assistant (2015-2016, 2016-2017 & 2017-2018 & 2018-2019)

The complainant was issued with a further teaching assistant contract on 24th of September 2018 to 5th of April 2019,

Her employer has not issued a contract of indefinite duration and has cited an objective reason which is both demonstrably untrue and contrary to its own policies as justification,

The complainant’s contracts for 2017 -2018 and for 2018 -2019 (commencing on 24th of September 2018) provide for 6 hours of teaching per week (120 per year).

Her most recent contract starting on 24th of September 2018 should have issued as a Contract of Indefinite Duration (CID).

The respondent submits that

this case relates to a claim by the complainant for a Contract of Indefinite duration with the respondent,

The complainant commenced work with the respondent in 2004 as a part-time teaching assistant, undertaking duties in both the History and English department.   She was subsequently given further contracts for part-time teaching for the academic year 2005/2006.

In March 2007 the complainant applied for a research post which was a part-time, two-year position she was successful in her application for the Postdoctoral Research position and was issued her contract which ended in June 2009, when the project was completed, and funding ceased.

In 2012 the complainant was successful in obtaining an award to host her postdoctoral fellowship and an appropriate contract was issued. This contract ran until February 2015, at which time this project ended, and the complainant received redundancy. This was a full- time role.

In 2014 the complainant undertook tutoring work which was for 3 hours per week a total of 60 hours.   This contract commenced in December 2014.

In September 2015 the complainant received a contract for part-time teaching which was 4 hours per week a total of 80 hours for the academic year. She also had a separate Research Assistant contract from the 14th March 2016 to the 30th April 2016 and was subsequently given a research assistant contract for a specific piece of work from the 20th June 2016 to the 8th August 2016.

The complainant received a part-time teaching contract for 4 hours per week a total of 80 hours for the academic year from 19th September 2016 to the 31st March 2017.

The complainant received a part-time teaching contract for 6 hours per week a total of 80 hours for the academic year from the 18th September 2017 to the 20th April 2018.   The complainant applied for Post-Doctoral Research post which was a 0.5 FTE from the 3rd of September 2018 to the 16th February 2019.   The complainant was issued with a further teaching assistant contract on 24th of September 2018 to March 2019.

In an effort to resolve the complaint raised by the complainant in regard to the issuing of her Contract of Indefinite Duration the respondent engaged an external HR Practitioner to examine a number of cases.  The complainant’s complaint was reviewed as part of this process and a recommendation of 108 teaching hours (4 hours per week), and 22 hours related academic related duties was proposed as the CID to be issued for the complainant. This offer was rejected by the complainant.  

It was only in the last year that the complainant was offered 6 hours teaching per week as prior to this the contracts clearly show 4 hours teaching per week.

Successive fixed-term contracts

9.—(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 has submitted that her most recent fixed term contract dating from 24th of September 2018 should be a CID by virtue of Section 9.

It is clear from the evidence adduced that the complainant’s contracts for the periods 2017-2018 and 2018-2019 provide for 6 teaching hours per week a total of 120 teaching hours per year.   The respondent in this case has offered the complainant a CID with 108 teaching hours (4 per week) and 22 hours related academic related duties.       The Complainant claims that the terms and conditions of the CID should be the same as the terms and conditions she held previously including the allocation of 6 teaching hours per week.

The Labour Court has held in Donegal 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.

I have considered the matter and note that a “contract of indefinite duration” is not defined in the Act but it has been well established in case law as meaning as identical in terms to the one the contract that existed before.    I note in Health Service Executive v Khan [2006] FTD 4/2006 (reported at [2006] E.L.R. 313), the Labour Court ruled that the contract of indefinite duration to which a fixed term employee might become entitled “is identical in its terms, including any express or implied terms as to training and qualifications, as the fixed term contract from which it resulted from”.

I also take note in Trinity College Dublin v Moriarty [2012] FTD 5/2012, where the Labour Court ruled that the Respondent cannot “carve out part of a contract of employment and create an entirely new contract for the purposes of the Act”.

Having considered the totality of the evidence adduced her I am satisfied that the complainant in this case has exceeded the four-year threshold of service to attain an entitlement to a Contract of Indefinite Duration. I am also satisfied that the that the contract of indefinite duration to which she has become entitled must be identical to the contract from which it resulted, in this case the contract from which it resulted is the contract dated 24th of September 2018.  

Accordingly, I declare that the complaint is well founded, and that the complainant is entitled to a Contract of Indefinite Duration in respect of the contract dating from 24th of September 2018.

I declare that the complaint is well founded, and that the complainant is entitled to a Contract of Indefinite Duration in respect of the contract dating from 24th of September 2018.