Complainant

Respondent

Anonymised Parties

Research Scientist

University

Representatives

Shonagh Byrne SIPTU

Peter Flood Ibec

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-00027824-001

17/04/2019

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work), 2003 and had submitted that the Respondent had contravened the legal positions in relation to the number of successive fixed-term contracts that can be issued to the Complainant (CA-00027824-001)

The Complainant commenced employment as a research scientist on a designated project with the Respondent on the 1st May 2013 and the first fixed term contract of employment was issued to the Complainant for a duration of 38 months until the 31st July 2016. This project was funded by the European Research Council.

Upon the end of the first contract, the Respondent continued to be paid by the Respondent for the month of August 2016.

The Complainants second contract of employment commenced on the 1st September 2016 and continued for 21 months until the 31st May 2018. This project was funded by Enterprise Ireland and was initially for two years and the second stage depended on the outcome of the first stage. In that regard the Respondent extended the Complainants contract to continue to work on this project. The Complainant was issued with a third contract of employment on the 1st June 2018 until the 31st October 2018.

It is submitted that the aforementioned project continued after the expiry of the Complainant’s contract up until May 2019.

The Complainant wrote to the Respondent on the 30th November 2018 requesting that he would be issued with a contract of indefinite duration (CID) and ultimately the Respondent replied on the 6th December 2018 that they would not be providing him with a CID.

It is submitted that the Complainant had the required service under Section 9 (1) and (2) of the Protection of Employees (Fixed Term Work) Act 2003, to be entitled to a contract of indefinite duration from the Respondent as he was continuously employed for a period of five years and five months and had three consecutive contracts. Further, Section 9(3) of the aforementioned act provides that once the four year threshold has expired then the fixed term contract is transmuted into a contract of indefinite duration by operation of law.

It is submitted that the objective grounds relied upon by the Respondent for not issuing the Complainant with a contract of indefinite duration are not legitimate. In that respect , the Respondent has extensive research projects across multiple schools on an ongoing basis and that can be regarded as a core permanent function of the Respondent. The work is neither temporary or transient.

It is submitted that the Respondent should have been issued with a contract of indefinite duration after four years of continuous service with the Respondent. Further, the Respondent believes the project continued after the expiration of his third contract until at least May 2019 at no additional cost to the Respondent which contradicts the objective grounds in contracts 2 and 3. Accordingly, the Respondent cannot therefore rely on Section 9 of the aforementioned Act.

The Complainant continued in the University until January 2019 and is currently employed in an European academic institution until the 31st December 2020.

This Complaint was referred to the Workplace Relations Commission on the 17th April 2019.

The Respondent accepts the timeline in relation to the aforementioned factual matters of the Complainants employment.

The Respondent submits that the Complainant was employed as a research scientist for just over three years and was then employed as a research fellow on a specific project for just under two years and this contract was renewed for five months to complete the specific project.

A research fellow role is part of a structured research careers framework in the university. It is the final part of the research careers framework prior to the Researcher entering the formal academic structure or a highly specialized commercial research role in industry. Accordingly, such contracts are not intended to be permanent in order to allow for progression over many years of large number of researchers.

The Respondent submits that the termination of employment, in these particular circumstances, is standard with research contacts in all third level institutions in this jurisdiction. It affects approximately 100 fixed term workers per annum in the University. It is submitted that if such staff had an entitlement to permanent employment then it would restrict the University’s ability to remain a research intensive institution.

Each of the Complainant’s contract of employment contained an objective justification clause as to why he could not be offered a contract of indefinite duration and provided, inter alia, that “this fixed term contract of employment is solely and exclusively for the purpose of undertaking duties associated with the specific project as listed above. Furthermore, please note that your continued employment by the University is contingent on the ongoing availability of work in the type which you are currently engaged. Should the Universities requirements for this work decline or cease in full, for whatever reason, the University reserves the right to reassign you to alternative work in in line with your skills and experience and its organisational requirements. Should such reassignment opportunities not exist the University may have to terminate your employment in the future.”

It is submitted, the purpose of the aforementioned act is not directed at limiting the use of a fixed term contract per se rather it is intended to prevent the excessive use of fixed term contracts in a manner which constitutes abuse.

The Respondent concluded that the aforementioned contracts do not meet with the fixed and permanent needs of the University and were for a fixed term only. There were objective grounds for issuing the Complainant with fixed term contracts after three years service, as a fixed term worker, as the work of the Complainant was temporary in nature and the work ceased at the end of the Complainant’s final contract.

Accordingly, the use of fixed term contracts for research fellow roles correspond with the needs of both the University and such employees. This position in relation to research fellow contracts has been recognised by the Labour Court, as referred to, as being objectively justified.

The Respondent confirmed by email to the Workplace Relations Commission, following the hearing of this matter, on the 15th July 2019, that in relation to this particular project no additional funding was received after January 2018 and the Complainant’s role in the project was completed by the 31st October 2018 and he was not replaced.

It is noted that, upon the termination of his employment, the Complainant was offered a redundancy payment to which there has been no response to date.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.

Section 9 of the Protection of Employees (Fixed Term Work) Act, 2003, provides:

(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 only exception to this statutory provision is where there are objective grounds justifying the renewal of a fixed term contract. In that regard, Section 7 of the   Protection of Employees (Fixed Term Work) Act, 2003, provides:

7 (1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee’s contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee’s contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee’s contract of employment.

I note in the Adeneler & Ors -v- Ellinikos Organismos Galaktos (2006) IRLR 716 I note it was stated, “the concept of objective reasons …must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed term employment contracts”.

Therefore when determining whether the renewal of the Complainant’s fixed term contract comes within the scope of section 9(4) of the Act, it is necessary to consider whether it had the purpose of “achieving a legitimate objective of the employer” and it must be appropriate and necessary for that purpose the circumstances in which it was issued.

It must also measure it against the test set out in Adeneler, i.e. determine whether its renewal arises out of and relates to the “precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed term contracts..”

Therefore, the question for this adjudication is to decide whether the grounds advanced by the Respondent for the renewal of the fixed term contract of employment for a further period amounts to objective reasons within the meaning of the Act.

The Court of Justice of the European Union addressed the concept of objective grounds in the joined cases C-378/07 to C-380/07 Kiriaki Angelidaki and Others -v- Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou (2009) ECR 1-3071, where it said:

In those circumstances, the concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (Adeneler and Others, paragraphs 69 and 70; Case C-307/05 Del Cerro Alonso [2007] ECR I-7109, paragraph 53; and order in Vassilakis and Others, paragraphs 88 and 89).

Further, the Court went on the draw a distinction between successive contracts the purpose of which are to meet needs that are temporary in nature and those which, in reality, are intended to meet the fixed and permanent needs of the employer. In the case of the former the use of successive fixed-term contracts may be legitimate but in the case of the latter their use would be contrary to the objective pursued by the Directive.

In this particular case, the Respondent put forward objective grounds that it submits meets these tests. I note the first two contracts stated “this fixed term contract of employment is solely and exclusively for the purpose of undertaking duties associated with the specific project as listed above. Furthermore, please note that your continued employment by the University is contingent on the ongoing availability of work in the type which you are currently engaged. Should the Universities requirements for this work decline or cease in full, for whatever reason, the University reserves the right to reassign you to alternative work in in line with your skills and experience and its organisational requirements. Should such reassignment opportunities not exist the University may have to terminate your employment in the future”.

Further, the third contract stated “it is a legitimate objective of the University to provide research fellow opportunities which are limited in duration. This allows for the progression over many years of large numbers of researchers through the University research fellow programme providing intergenerational research opportunities. The objective grounds for the issue of fixed term contract rather than a permanent contract is in keeping with the foregoing objectives of the University. In addition, an objective ground for issuing this fixed term contract rather than a permanent contract is to enable the provision of specialist expertise so that the designated project can be completed. Should that project end prior to 31st October 2018 , the University reserves the right to terminate your employment by giving not less than one months’ notice in writing”.

I find that the grounds stated in the above contracts constitute objective grounds as they related to a specific named project that is time limited and subject to specific funding rather than general funding of the University.

I find that the aforementioned contracts were precise in nature and were in respect of a named project and were for the purposes of achieving a legitimate objective of the Respondent University. Further, I find the use of the contracts were appropriate and necessary.

I find that each of the fixed term contracts were in satisfaction of a temporary and transient need of the Respondent rather than a permanent need. Further, I find that the fixed term contracts were saved by the objective grounds set out above.

Therefore, I find that the Complainant was not entitled to a contract of indefinite duration and the University was entitled to make such a decision. Further, I note that the Complainant was not replaced.

I find that the Complaint (CA-00027824-001) made pursuant to Section 14 of the of the Protection of Employees (Fixed Term Work) Act, 2003, fails.

Fixed Term Contract, Contract of Indefinite Duration