Complainant

Respondent

Anonymised Parties

Hospital Consultant

Public Health Provider

Representatives

Mark Finucane Daniel Spring & Co. Clare Bruton BL

Julie Galbraith Eversheds Sutherland

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-00029960-001

30/07/2019

This Decision is concerned with a claim for a Contract of Indefinite Duration(CID) under the Protection of Employees (Fixed-Term Work) Act, 2003 in the case of a Consultant employed at a HSE hospital. References are made to section 7, section 8 and section 9 of said legislation. The claim is rejected in its entirety by the Respondent.

The Complainant was employed as a consultant in two HSE hospitals between 2011 and the date of termination notified to him in 2019 as 31st December 2019. It is to be noted that a temporary extension of the fixed-term employment is agreed between the parties to allow for consideration of the claim by the Workplace Relations Commission and without prejudice to the Respondent’s position. The following are the details of the fixed-term contracts which form the basis of the complaint:

No.                     Start date         Finish date         Location           Detail

1                          13.03.2011       12.07.2011          Location 1       Employed as registrar

2                          01.08.2012       30.12.2012          Location 2        Locum appointment to cover a vacant post

3                          31.12.2012       29.12.2013          Location 2        Locum position

4                          30.12.2013       28.12.2014          Location 2        Locum position

5                          29.12.2014       Spec. purpose     Location 2        Until post is filled on permanent basis

6                          15.09.2015       31.12.2019          Location 1        “Covering X post who retired until it is filled permanently by PAS”

Note: Location 1 is the Respondent hospital in this case and Location 2 is another HSE hospital in which the Complainant was employed on fixed-term contracts in the period comprehended by the complaint.

 Details of all contracts were provided at the hearing. It was submitted and not contested that the Complainant operated at Location 1 within the entire range of duties of his speciality including ICU cover and providing teaching.

 The Complainant moved back from Location 2 to Location 1 in September 2015 at the invitation of the hospital in a communication dated 5th May 2015 which stated:

“Just wondering if you’re interested in our locum consultant (position) from August 4th until the post is filled in permanent capacity by the Public Appointments Service. The consultants within the department would really love for you to come back and work with them.”

At clause 2(a) :

“This contract is a contract of employment between X and Y. [The Complainant] is appointed to the post of locum consultant and accepts the appointment from 15th September 2015. The contract is: i) permanent, subject to the completion of probation (as set out in section 3); or ii) for a fixed term/purpose; (covering X’s post who retired) until it is filled permanently by the Public Appointments Service (PAS) or iii) a locum appointment. In the Consultants appointed on a fixed-term/locum basis in accordance with sections 2a)ii) or 2a)iii) above, section 3 of this Contract (entitled “Probation”), other than paragraph 3(f) thereof does not apply”.

Section 3 of the contract at probation states:

“a) Appointment to a consultant post under section 2a)i) above is dependent upon the satisfactory completion of a probationary period of 12 months...

b) At the end of the probationary period, the employer shall either: i) certify that the consultant’s service has been satisfactory and confirm the appointment on a permanent basis; or ii) certify, with stated specified reasons, that the consultant’s service has not been satisfactory, in which case the consultant will cease to hold his/her appointment;

c) If the employer should fail to certify in accordance with (b) above, the consultant shall be deemed to have been appointed on a permanent basis.”

The position named in the contract of September 2015 was advertised on a permanent basis by PAS in December 2015. The Complainant was not shortlisted for interview. The position was not filled through that competition.

In November 2017, the same post with the same post number was re-advertised. Interviews were held on 5th July 2018 and a panel was created. The Complainant did not apply for the second advertisement in November 2017. The person appointed to the retired consultant’s post from that competition is to take up a permanent post in January 2020.

A second post in the same speciality was submitted for approval in November 2018 and a third post in the same speciality was submitted for approval on 4th December 2018 . Both posts were approved on 15th January 2019 and were both filled from the panel created on 5th July 2018.

All three posts resulted from retirements with the person referred to in the Complainant’s contract of 2015 formally retiring on 24th February 2016 having been on historic rest days from August of 2015 and the two remaining relevant consultants retired on 1st May and 10th October 2017 respectively.

On 28th March 2019 the Respondent informed the Complainant that his:

“current contract of employment will expire on Tuesday 31st December 2019 as the permanent postholder will be commencing duty on 2nd January 2020. (The purpose on your current contract of employment is to fill the post until the permanent postholder for X commences)”.

Subsequent representations on behalf of the Complainant did not alter the position of the Respondent in respect of the substance of the matter.

The complaint under the Fixed-Term Work Act of 2003 is submitted without prejudice to the reserved right of the Complainant to submit a further claim under the Unfair Dismissals Act at a future date.

A reconvened hearing was scheduled for 19th March 2020 to consider documentation provided by the parties at the request of the Adjudicator post the hearing in the context of the submissions at the hearing on 22nd January 2020. The reconvened hearing was cancelled due to the Covid-19 restrictions which resulted in the suspension of WRC hearings with effect from 13th March 2020. Given the exceptional nature of the extended contract agreed between the parties due to expire on 30th April 2020 a decision was taken to proceed with a decision based on the submissions at the January hearing and all documentation provided by the parties. While this situation is not ideal the exigencies of the situation require that a decision be issued, and no objection was raised by the parties to this approach which was advised to them in writing. 

Reference was made to the email of May 2015 inviting the Complainant to work at Location 2. It is contended therefore that the Complainant was and remains a valued highly competent and trusted employee of the Respondent and within the relevant department of the hospital.

The Complainant was engaged on five fixed term/specified purpose contracts for a period of seven years and three months before 31st December 2019 when the fifth contract was purportedly terminated by the Respondent.

For the purposes of the claim it is the fifth and final fixed term contract which provides the basis for a contract of indefinite duration. That contract was prescribed as a “fixed term/purpose” contract as per clause 2(a)(ii) - see above. On this point it is submitted that the clause does not apply to a fixed purpose contract and there is no fixed term in this contract. Therefore, it is submitted that the Complainant enjoyed the benefit of clause 3 which provides for the arrangements to be made for probationary period reviews and specifically that unless otherwise certified in accordance with section (b) the consultant shall be deemed to have been appointed on a permanent basis. As the Respondent had not completed the probationary process despite the Complainants efforts to do so with the general manager of the hospital (a probationary meeting was arranged for him on 17th October 2017 some 13 months after any probationary review would have expired) he is entitled to rely on the relevant elements of the probationary clause. In this regard the section of the contract which states “covering X’s post who retired until it is filled permanently by the Public Appointments Service” is regarded as significant and essentially the argument appears to be that the permanency awarded by the operation of clause 3 of the contract means that the Complainant is the permanent employee. Confusing and different explanations were given in documentation from the Respondent in March and December 2019, that is to say, they differed from the original wording of the contract. Sections 7, 8, 9 and 12 were set out for consideration.

Based on the application of section 9(4) of the Act it is submitted that the fifth fixed term contract brought the Complainant in excess of a four-year period of successive fixed term contracts. The objective justification, i.e. covering X’s post who retired until it is filled permanently by PAS, does not actually apply. The post was filled in 2018 but the consultant appointed did not commence until January 2020. It is contended that the purpose for which the specific purpose contract was drawn up ceased in 2018 and the contract became a contract of indefinite duration at that time by operation of law as per s.9(3).

The expiry of the specific purpose by reason of the circumstances which transpired being the non-commencement of a consultant post, the filling of the post by PAS is effectively recognised by the Respondent in its email of 27th March 2019 purporting to terminate the specific contract referring to the permanent candidate commencing. In addition, there is no reason why the specific purpose could not have been more clearly drafted and included reference to the PAS completing the selection process and the candidate taking up the position. In failing to do so the specific purpose of the contract should be carefully and clearly drafted. The current fixed term contract provided to the Complainant seeks to rectify the error of excluding the specific purpose.

Alternatively, the failure to certify the Complainant within the probationary period deemed him to be a permanent employee and as such he is entitled to a contract of indefinite duration for the purposes of the Act. The submission objects to the denial of the fundamental entitlement of the Complainant to a contract of indefinite duration based on a clause the language of which is equivocal and references The Board of Management of Malahide Community School v Conaty [2019] IEHC 486. Furthermore, it was submitted that the Complainant provided no informed consent to the fifth contract and it’s taking away of his prima facie right to a contract of indefinite duration as per the High Court in Conaty.

Moving onto section 8, it is contended that there is a necessity for clear objective grounds to be specified and identifying the role of the Adjudicator in drawing and inference from the failure of the Respondent to adequately specify the objective ground within the specific purpose contract issued in 2015. The Board of Management of St Joseph’s School for Deaf Boys v Grehan [2015] IEHC 605 was cited in support of this contention which it was suggested should be read in light of the decision of Conaty. The terms of the fifth fixed term contract were not unequivocal both in terms of the purported fixed purpose provided and the drafting of the contract.

In respect of section 7(1) the decision of Adeneler v Ellinikos Organismos Galaktos [2006] E.C.R.I.-6057 concerning the objective reasons which could be only understood as referring to “precise and concrete circumstances characterising a given activity”.

In anticipation that the Respondent would seek to rely on the High Court judgment of HSE v Umar [2011] 22 ELR 229, and the Local Authorities (Officers and Employees) Act of 1926 the Complainant submitted that there were clear distinguishing factors between the case of Umar and the current case before the Adjudication Officer. First there was a stated need for the best available person in the contract in the context of the proportionality argument in Umar being whether the specific contract was suitable to the needs of the national employer in that case. It is submitted that this does not arise in the context of the specified purpose contract provided to the Complainant. The fixed purpose contract provided in Umar was expressed in terms “until filled by a permanent employee” which is clearer than the objective justification in the fifth contract provided to the Complainant.

The Complainant is not seeking to be appointed to a post for which the 1926 Act applies but rather he is seeking appointment under the 2003 Act. Reference made to an obiter comment in Ahmed v The HSE which was not considered in Umar v HSE. In the Ahmed decision the High Court Judge stated that the defendant as an employer was bound by the 2003 Act and could not rely on the 1926 Act to trammel rights under the 2003 Act arising in respect of a hospital consultant. The High Court Judge stated:

“I would add that Clause 8(1) of the Consultants Common Contract suggests that the defendant has power to make an appointment in circumstances where a consultant is being transferred without his or her consent “without competition”.”

The Labour Court in National University of Ireland v O’Keeffe FD1411 had observed the dicta cited in Ahmed that the provision of a national law which requires the filling of certain permanent posts by open competition cannot be relied upon to defeat an entitlement to a contract of indefinite duration under the Act”.

The complaint that the Complainant was entitled to a contract of indefinite duration at any stage during his tenure is rejected.

 The Complainant was employed on a specified purpose contract as a locum consultant in his speciality for a fixed term/purpose. In addition, the Complainant was also informed orally prior to the commencement of the 2015 contract, that this was a specified purpose contract and that he was engaged on a temporary basis until the position could be permanently filled via the PAS.

 Following the appointment of the Complainant on a fixed term position, applicants were invited to apply for the permanent post at Location 2 which was through two advertisements by PAS in December 2015 and November 2017 respectively. The Complainant applied for the permanent position on the first occasion but was “ultimately not shortlisted as he did not meet the shortlisting criteria.” He did not apply when the post was advertised for a second time in November 2017.

The Respondent submits that the very fact that the Complainant formally applied for the permanent position confirms his belief and understanding that (a) the position he occupied was temporary on the basis of a specified purpose; and (b) if he was interested in applying for the permanent position, which is a separate and distinct position, he was required to formally apply for this.”

In March 2019 the permanent post was filled by a different individual who satisfied the requirements of the role. In these circumstances this meant that the specified purpose of the Complainant’s contract would come to an end. He was then provided with ample notice that the post had been permanently filled and that as such his specified purpose contract would come to an end on 31st December 2019 with the appointee for the permanent position to commence in the permanent role on 2nd January 2020.

 When the post of a consultant in a hospital becomes vacant due to retirement or resignation of a consultant from a permanent position, that position can only be filled on a permanent basis via the PAS system through a competitive recruitment process. In order to ensure continuity of medical care the post must be temporarily filled by an individual on a specified purpose contract. The status of the Complainant was made aware to him on pages 5 and 32 of his contract of September 2015 and orally prior to the commencement of his employment. The Complainant was aware at all times of the requirement that if he wished to occupy the permanent position he must apply for a permanent post via PAS. Consequently, the Complainant’s assertion in his claim form that he was entitled to a contract of indefinite duration is disingenuous and inconsistent with the factual position leading up to the filling of the permanent post by another individual.

 In support of the objective justification aspect of section 9, the Respondent submits that the wording “X’s post who retired until it is filled permanently by PAS” as an objective justification is consistent with the decision of the Labour Court in the case of Mater Misericordiae University Hospital v Muhammad Jamil. It is submitted that the circumstances of the current case are similar to the Jamil case in multiple respects. The decision in that case was concerned with a person employed in the same speciality as the Complainant in this case and that person was engaged on a series of fixed term and specified contracts by the particular hospital. The Labour Court in that decision endorsed the decision of the High Court in Health Service Executive Dublin Northeast v Ali Umar [2011] IEHC 146:

“The role of consultants in the medical care services would by any measure be one of these work areas where fixed-term contracts are appropriate because while open competitions to fill permanent consultant posts are conducted, it would inevitably be necessary to have those posts filled on a temporary basis in order that adequate medical coverage is provided while the competition is held.”

 In their decision the Labour Court stated:

“When the consultants appointment unit of the HSE gave approval for the filling of the positions arising from the [resignations/retirements] on a permanent basis, the respondent was required to conduct a competitive process to fill these positions. The respondent could not do otherwise. It follows that the respondent had objective grounds for renewing the complainant’s employment... and accordingly there has been no contravention of section 9, as alleged, or at all”.

The Respondent submitted that the objective grounds in the 2015 contract meet the three-tiered test for objective justification set out by the ECJ in Bilka-Kaufhaus [Case 170-84].

 Reference was made to a decision of an Adjudication Officers ADJ-00007029 concerning a consultant psychiatrist versus a public health provider. Specifically, that the AO accepted the respondent’s assertion that the filling of these posts by way of continuous open competition and the appointment of the successful candidates on fixed term contracts was to attract, on a continuous basis, the best possible professionals who are cognisant of the latest developments and standards to ensure the respondent complies with its statutory functions as a specialist mental health agency under the Department of Health.

 Reference was made to decision HSE West v Ismael, Case FTD141, where the Labour Court accepted there were objective grounds justifying the complainant’s fixed term specified contract for which he was covering for a consultant who was working as a clinical director.

 In respect of the issue raised on behalf of the Complainant at the hearing concerning the application of the probation clauses at section 2 and section 3, the Respondent acknowledged that the failure to complete the probationary aspect of the contract was an oversight due to the fact that the general manager who was to have conducted the assessment was not in a position to complete the probationary aspect at the time. However, the Respondent rejected the application that this oversight was relevant; that the Complainant knew at all times that he was engaged on a fixed term contract and that the completion of the probation would not provide permanency under the Fixed-Term Work Act as claimed.

 Section 5.1 of the Respondent’s submission was as follows:

“When the position of a consultant in a hospital becomes vacant due to the retirement or resignation of a consultant from a permanent position, that position can only be filled on a permanent basis via the PAS system whereby a competitive recruitment process takes place to fill the permanent position. In the meantime, in order to ensure continuity of medical care, the post must be temporarily filled by an individual on a specified purpose contract (i.e. to provide temporary cover until the post can be permanently filled via PAS).”

On 23rd January 2020 a request for clarification of this clause was issued to the Respondent by the Adjudication Officer as follows:

“Please provide a copy of any letter or circular or similar instruction which supports the statement made in section 5.1 of your submission, whether generally or specifically in relation to the appointment of consultants at Location 2[1] in the period 2016-2018 inclusive.” 

Response:

“The long established practice of the HSE is to appoint the Public Service Appointments Service (PAS) to recruit consultants into permanent roles. The roles are filled directly by the relevant hospitals on a fixed term/fixed purpose basis until such time as a suitable candidate has been placed into the permanent role.

This position is documented in the Professor Frank Keane Report “Towards Successful Consultant Recruitment, Appointment and Retention” (the “Report”) from December 2016 and we have enclosed the relevant section of this report for your review. Page 19 of the Report states the following:

“The NRS (the HSE National Recruitment Service) uses the Public Appointments Service (PAS) as the centralised provider of recruitment, assessment and selection services relating to permanent consultant posts. The PAS and its predecessor, the Local Appointments Commission, have been responsible for recruiting consultants on behalf of the public health service for over 60 years... Non-permanent staff are recruited directly by hospitals and mental health services”.

The authority for the HSE to appoint PAS to carry out recruitment on its behalf is outlined in section 46 of the Public Service Management (Recruitment and Appointments) Act 2004 (“the 2004 Act”). The HSE holds a recruitment licence under the 2004 Act and section 46(1) of the 2004 Act provides that:

“An officeholder to whom a licence has been granted may delegate the task of recruitment, or any part of it, which is to be carried out under the licence, to the public appointments service and may so delegate generally or in respect of a particular class or category of post or a particular competition for a post”.

Consultant recruitment is delegated to PAS under the 2004 Act and we confirm that the practice of recruiting consultants in this manner was in place for the period 2016-2018. As outlined in our submission, both the Circuit Court and the High Court have accepted that the HSE is required to follow this process and that it constitutes an objective justification under the Protection of Employees (Fixed-Term Work) Act 2003.”

For ease of reference the Complainant’s response of 25th February 2020 is included here:

“No specific evidence has been adduced by the Respondent of the delegation of the task of recruitment from the HSE to PAS and no document or legal basis, save the extract from the Keane Report has been provided by the Respondent to corroborate the assertion of there being “long established practice” of the HSE to appoint PAS to recruit consultants into permanent roles.

The letter from Eversheds Sutherland Solicitors quotes extracts from the Keane Report. It is the Claimant’s submission that quoting extracts from such a report is not sufficient in terms of primary evidence and that quoting from the said report does not discharge the burden of proof which rests upon the Respondent in respect of proving the matters contended by the Respondent.

While we reiterate what we say at the paragraph above, nevertheless the Respondent has introduced the Keane Report we wish to refer to the penultimate paragraph of page 16 thereof. We quote that paragraph in full as follows:

“In addition to the delivery of Consultant’s services by persons who may not be appropriately qualified or competent, a key issue associated with unregulated Consultant appointments is that they may block or delay the submission of applications for HSE posts and can contribute to the ad hoc development of services which may not be in line with local or national policy. The Protection of Employees (Fixed-Term Work) Act, 2003 has particular implications for health employers offering repeated fixed term (temporary and locum) appointments to individual candidates as repeated appointments can result in employees acquiring contracts of indefinite duration.”

With respect, this is precisely the claim made by the Claimant and we submit that the Respondent has not adduced sufficient evidence to the Adjudicating Officer to remove the “particular implications for health employers offering repeated fixed term (temporary and locum) appointments” as envisaged in the Keane Report. In other words, it is the Claimant’s contention that his entitlement to a contract of indefinite duration arises precisely because of what has been referred to in the Keane Report, namely, the offering of repeated fixed term (temporary and locum) appointments to the Claimant the consequence of which was the acquisition by the Claimant of an entitlement to a contract of indefinite duration. At the hearing of the within claim, the competency, qualifications and experience of the Claimant were not under question and indeed it was confirmed he is held in high regard at Location 2[1]. The extract from the Keane Report at p.16 makes it clear the Respondent is fully aware that repeated fixed term (including locum contracts) contracts can give rise to the entitlement to a contract of indefinite duration such that the continued reliance on Umar and the position that the provisions of fixed term contracts pending the filling of a consultant post on a permanent basis by the HSE as objective justification is misguided.”

Accepting that the local hospital, in this case location 1, is following   national guidelines when filling permanent vacancies for hospital consultants, this case gives rise to a concern that the national employer is interpreting the decision in “Umar” to mean that in all circumstances, irrespective of the contracts issued, the terms of the Directive and section 9(3) of the Act of 2003, hospital contract consultants cannot obtain a contract of indefinite duration other than through a recruitment process. This was not the decision made in the “Umar” case, nor respectfully, could it have been. The reasoning in the determinations by Justice Laffoy in “Ahmed” and “McArdle” make it very clear that the circumstances of the case including the contracts issued must be interpreted in light of the national legislation and ultimately where required by the Directive. Any conclusion that fixed term hospital consultants have no right to a contract of indefinite duration by operation of this legislation would in effect provide a derogation to a national, publicly funded, State body from the provisions of the legislation for a particular class of employee. Such a derogation was neither sought by or provided to the State or any employer under the State in respect of this class of employee. Proportionality is a central feature of any determination of whether objective grounds exist for the issuing and repeated use of fixed term contracts. It is of concern that a national policy guided by the report of an individual professor as cited by the employer is in place which effectively appears to remove any consideration of proportionality or the rights of an employee under the Fixed Term Work Act, 2003 in respect of hospital consultants as a class of employee. Indeed, the advice given in that guideline seems to have as its objective, ensuring that hospital consultants are not appointed in any way other than through the PAS process so as to avoid the accrual of rights under the European based legislation.

In concluding on the general observations and consistent with those observations, it is found that neither the Act of 1926 or the provisions of the Health Act 2004 have any standing within the Fixed-Term Work Act,2003 as a basis on which contracts of indefinite duration cannot be issued to fixed term hospital consultants. Leaving aside the 1926 Act which predated the Fixed Term Work Act,2003, the 2004 Act should be read as an administrative arrangement or pathway for organising the recruitment of permanent employees through a process now overseen on behalf of a state employer by PAS. Requiring each individual hospital to follow that arrangement for the filling of permanent vacancies as an exclusive means of filling such vacancies cannot of   itself universally supersede the rights and entitlements of a class of employees under the European Directive and is specifically not provided for in the Irish legislation giving effect to that European Directive. Any such universal interpretation would indeed be misguided, a term used on behalf of the Complainant.

 These forgoing concerns and observations notwithstanding, each case falls to be decided on its own merits and the issue arises as to whether there is anything of significant difference in this case which would justify a departure from the decisions in the previous precedents cited by the employer and /or the application of precedents as cited on behalf of the Complainant.

Moving on to address the specifics raised by and on behalf of the Complainant:

Regarding his qualification for the permanent vacancy, it is accepted that the Complainant was qualified for the post as advertised. It would appear that the interview panel added a criterion of research not mandatory in the competency or qualifications required for the filling of the post to which he was appointed on a fixed term basis in 2015. Added to this, is the undoubted fact that he was sought out by the hospital in Location 2 based on his previous work performance in that employment and the basis of the decision to exclude him from consideration for the post when it was first advertised, is unclear. Nonetheless, this point is not a matter which relates to the application of the provisions of the Fixed-Term Work Act per se. It may (and this term will be used elsewhere in this decision, but without any conclusions being drawn, either way) have been an issue for the Complainant to dispute at the time, i.e. his eligibility for the position, but he failed to do so and it does not justify transforming a fixed term contract into one of indefinite duration by application of the Fixed Term Work Act,2003.

The implication of the probationary period. The argument regarding the probation and related tenure of the Complainant was not disputed in terms of the facts as presented by the Complainant. If this argument is accepted, that is to say, that due to a potentially flawed wording in the fixed term contract of 2015 he became a permanent employee by exercise of that contract in or around 2016, two considerations follow. Firstly, if the contention is accepted, the Complainant was no longer a fixed term employee at that point and therefore has no locus standi under the Act of 2003 to bring this complaint. The second consideration is that the issue may give rise to a matter of contract law or an employment dispute, but it is not an issue comprehended by the terms of the Fixed-Term Work Act of 2003. Either way, the contentions related to the probationary clauses of the contract of 2015,do not give rise to a valid claim for a contract of indefinite duration under the Act.

·The contract of 2015. Counsel has sought to distinguish the case at hand from previous decisions based on references to a specified purpose contract. The term specified purpose is not one which exists under the Fixed-Term Work Act but rather is one which is used in the Unfair Dismissals Act and where there can be an interchangeability in the use of the term between the legislation, it remains a matter of fact that such language does not form part of the definition of a fixed term contract under the definition Act of 2003.

Section 2(1) defines a fixed term employee as “a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event...”.

The event for the purposes of this case is set out in the contract freely entered into by the Complainant in September 2015 the terms of which bear repeating: ‘ covering Dr X’s post who retired until it is filled permanently by the Public Appointments Service.’

All of the relevant legal precedents cited by the Respondent make it clear that the issuing of a fixed term contract to allow for a recruitment process in the case of a hospital consultant can be justified on objective grounds. The contract of September 2015 is found to be lawful for the purposes of section 9(4) of the Act of 2003. Once the contentions regarding probation and qualifications for the recruitment process are excluded from consideration as in this decision, there was only one contract issued to allow for the complainant to provide cover for the recruitment of a permanent appointment as a replacement of the first consultant who retired i.e. that contract issued in 2015. This is the one contract which potentially gave rise to an entitlement to a contract of indefinite duration. The terms of that contract were not renewed or altered by any further documents and effectively stayed in place for over four years. The argument that the description of the event provided for in the contract and therefore the event it was designed to cater for i.e. the recruitment of a permanent consultant by PAS, was either equivocal or not clearly made known to and understood by the Complainant when he agreed to return to Location 1,does not stand up to scrutiny given the correspondence from the Respondent in reaching out to him in May 2015 allied with the fact that he later applied for the post in the first competition. The contention that the contract issued in September 2015 contravened the provisions of section 12 of the Act is not accepted.

It may have been open to the Complainant to make the case at the time that once the initial recruitment process was not successful in finding a more qualified candidate than himself he should have been made permanent taking into account the probationary aspect, his qualifications and the circumstances of his appointment. Once again, this is a matter which, if it had been pursued, could not have been based on his entitlement to a contract of indefinite duration under the Fixed-Term Work Act. In any event that case was not made by the Complainant in support of his complaint. Once a second and a third vacancy arose in the same speciality he may have had cause to raise issues, but he did not do so. It remains the case that he received one contract which was open ended in its provision to allow for the recruitment of a permanent consultant through PAS. In terms of the Fixed-Term Work Act, the failure to appoint a person through that first process did not alter the terms of the contract entered into in September 2015. There may be issues of reasonableness and fairness in terms of the treatment of the individual Complainant, but these are not matters to be determined under the provisions of sections 9(2) or 9(3) of the Act of 2003 as claimed. The decision to fill the vacancy of the retiring consultant on a temporary basis represents objective grounds in this case based on the precedents set by previous and superior authorities and the circumstances of this case.

In summary on this point, the Respondents position that contract of 2015 was agreed and understood and contained acceptable objective grounds for the purposes of section 9(4) of the Act of 2003 is accepted; the terms of that contract did not vary and there is no provision under the Fixed-Term Work Act of 2003 which allows for that contract of September 2015 to be converted into one of indefinite duration at any stage during its course. 

The complaints under sections 7 and 8 are not accepted as justifying the claim for a Contract of Indefinite Duration in the context of the relevant subsections terms of Section 9 of the Act.

The overall conclusion is that the Complainant has not established a basis for converting his fixed term contract of September 2015 into one of indefinite duration based on the arguments advanced on his behalf by reference to the provisions of the Fixed Term Work Act,2003.

Section 14 of the Fixed Term Work Act,2003 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions of that Act.

The Complaint brought by the Complainant for a Contract of Indefinite Duration by application of the terms of the Fixed Term Work 2003, is not well founded.

Fixed Term Work Act 2003, Contract of Indefinite Duration