Complainant

Respondent

Anonymised Parties

IT Researcher

An Institute for Learning and Research

Representatives

Ed Thompson Unite The Union

Self 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00032797-001

09/12/2019

The Complainant was employed by the Respondent on two consecutive one year fixed- term contracts as a senior IT Researcher. The initial contract ran from 13th November 2017 up until 9th November 2018. The second contract ran from the 10th November 2018 to the 9th November 2019. The contract was not renewed. The salary of the Complainant was approximately €50,000 per annum gross with a net monthly payment of €3095.95 for a 37-hour week. The Complainant is claiming that the circumstances surrounding the non-renewal of contract constituted Unfair Dismissal. The Complainant is seeking redress of reengagement and/or compensation. The complaint of Unfair Dismissal is denied by the Respondent.

The Respondent submits that it did not offer the Complainant a further third fixed-term contract due to a lack of certainty in relation to future funding of the project in question. The Respondent asserts that there was no guarantee of additional external funding as stipulated in the objective ground linked to the contract.   Therefore, the expiry of the final contract was the natural and appropriate time to end the employment relationship. The Respondent asserts that further funding had been secured for the project in which the Complainant was involved, but that this was after the cessation of the contract in question and therefore of no relevance to the case. The decision not to renew the contract was taken by the complainant’s line manager, based on the information available at the time.

Without prejudice to the Respondent’s position, the Respondent submits that it recognised that a redundancy situation existed in the circumstances and offered to pay the Complainant any redundancy payments to which he may have been entitled to under the Redundancy Payment Act, 1967 and any additional payment he may wish to elect under the enhanced redundancy sectoral scheme. The Complainant refused this offer.

The Respondent submits that the dismissal consisted only of the cessation of the fixed term contract and that the Complainant has not put forward any other reason for the dismissal. The contract in question was in writing. The Respondent exhibited copies of both consecutive contracts which contained the following provision:

“The terms of the Unfair Dismissals Acts 1977-2007 shall not apply to a dismissal consisting only of the expiry of the fixed-term of this contract, without it being renewed, or the cessation of the purpose of the contract.”

The Respondent relies on Section 2(2)(b) of the Unfair Dismissals Acts 1977-2007 (The Act) where it provides:

“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 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 Respondent submits that the dismissal in this case consisted only of the expiry of the fixed term contract and that the complaint is therefore excluded under the Act.

The Complainant submits that he worked diligently and professionally since his employment commenced with the Respondent. He submits that following discussions with his supervisor and line manager he had been assured that his contract would be renewed for a further year. However, a month prior to the cessation of the contract he received a phone call from a senior head of department in the Respondent institute informing him that due to a lack of funding the contract would not be renewed. He submits that shortly after this phone call, the manager who had previously given him an assurance that the contract would be renewed, sent him an email to say that there was sufficient funding from one source but because another source held back on releasing sufficient funding, the full year contract could not be renewed.  He asserts that sufficient guaranteed funding was available to renew the contract and therefore he was unfairly dismissed. The Complainant asserts that his role was taken over by a supervisor. He further contends that had he not been unfairly dismissed in November 2019, and his contract renewed, he would have been in place when the Respondent was advised of additional funding in December 2019.

The Complainant submits that even if there was a shortfall in funding, which he does not accept, he should have been reengaged in December when extra funding had become available, due to his previous efforts in seeking funding.

The Complainant refused the increased redundancy offer because, he submits, it meant that he could not work in the public service again, which in would limit his future job prospects regarding similar projects in the sector in general.

The Complainant is seeking reengagement to his previous role and/or compensation as redress for Unfair Dismissal.

After hearing all the evidence in this case on the day, I find that the initial fundamental issue is to determine the meaning and effect of the fixed-term contract, particularly the exclusionary clause, and whether the case falls under the exclusion at section 2(2)(b) of the Act which provides:

“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 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,…”

This provision was fully considered by the Labour Court in Malahide Community School v Conaty UDD1837. The facts are fundamentally different from the instant case in that the Labour Court had ordered the School to re-engage the complainant, from the 2018/19 school year on the basis that she was already a permanent worker and the fixed term contract she signed had the effect of creating a fixed term position for a worker who already had permanent status. The resulting lack of clarity around the contract status informed an unfair dismissal conclusion. Whereas the Labour Court case can easily be distinguished on the facts from this case, the Court gave a very clear direction on how the exclusion under section 2(2)(b) of the Act can be interpreted and applied to a certain set of facts. For an action to be excluded under the aforementioned section the Court stated that for the provision to apply, that:

“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 or the cesser of the specified purpose.”

On how a fixed term contract may be defined, the Court provided the following:

“In order for s. 2(2)(b) of the Act to apply the contract must be a bona fide fixed 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 this instant case was in writing, was signed by both parties, had distinct commencement and expiry dates and contained the clause:

“The terms of the Unfair Dismissals Acts 1977-2007 shall not apply to a dismissal consisting only of the expiry of the fixed term of this contract, without it being renewed, or the cessation of the purpose of the contract.”

The Complainant in his submission accepts that he was employed under a legitimate fixed term contract and could not show any fundamental breach of that contract by the Respondent, when asked to do so at the hearing. Furthermore, the Complainant could give no reason for the dismissal other than the expiry of the term. I have sympathy for the Complainant in that no other evidence was submitted, other than he was a diligent and professional employee, but I believe the contract was plainly a fixed-term contract which legitimately expired.

The Complainant was also of the view that funding was available for some period but there was tacit acceptance by the Complainant, that full funding had become a problem in the latter months of 2019. A clause in the contract stated, “The objective ground for your employment of this fixed-term is that the position is wholly funded by external sources over which the Institute has no control.” The Complainant asserts that funding became available from an external source to allow full work on the project a short period after the termination of the contract. By this stage, the work previously carried out by the Complainant had been brought ‘in-house’. I find that that the circumstances of this occurrence do not confer a right to a renewal of contract or redress under the Unfair Dismissals Act.

I conclude that the dismissal in this case consisted only of the legitimate expiry of a fixed-term contract, that the exclusion under section 2(2)(b) of the Unfair dismissals Acts 1977-2015 applies and I therefore find the Complainant was not unfairly dismissed.

I conclude that the dismissal in this case consisted only of the legitimate expiry of a fixed-term contract, that the exclusion under section 2(2)(b) of the Unfair Dismissals Acts 1977-2015 applies and I therefore find the Complainant was not unfairly dismissed.

Unfair Dismissal, Fixed-Term Contract,