Complainant

Respondent

Anonymised Parties

A researcher

A 3rd Level Institution

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-00030234-001

14/08/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00030234-002

14/08/2019

The respondent is a third level institution in the Eastern Region. The complainant was employed on four consecutive contracts, beginning in October 2008. His employment terminated on 30 June 2019.

The complainant submitted that he should have been given a contract of indefinite duration when his third contract brought him over the four-year threshold.

The complainant also submitted that he had been unfairly dismissed from his position having sought a contract of indefinite duration.

The complainant submitted that he was offered a redundancy payment some months after his employment terminated.

The complainant submitted that he is seeking reinstatement to his position as Research Fellow.

The respondent submitted that the complainant was employed on four fixed-term contracts, the first two covered Post-Doctorial posts, the latter two related to Research Fellow posts. It further submitted that contract three was a specific purpose contract to undertake a project, while contract four was given in order to complete the same project.

The respondent submitted that the Research Careers Framework system was examined by the Labour Court in the Case of UCD v Alan O’Doherty FTD159 wherein it was held that it met the requirement of ‘objective justification’ for the issuing of a fixed-term contract for such roles. In support of this contention it submitted that the ‘objective justification’ wording in each of the fixed-term contracts for the Claimant’s Research contracts was similar to that used in the O’Doherty case above.

CA-00030234-001 & CA-00030234-002

This complaint turns on the existence of four fixed-term contracts, each with an objective justification. The Protection of Employees (Fixed-Term work) Act, 2003 is instructive in the instant case. In relation to interpretation, Section 2 states, amongst other things, that

“fixed-term employee” means 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 but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

Section 9 paragraphs (1) to (4) is also instructive in this regard. This section deals with successive fixed-term contracts and states as follows:

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.

The respondent put forward the UCD v O’Doherty (FTD159) case cited above as of relevance to the instant case. However, I find that there is a fundamental difference in that in FTD159, the contracts were fixed-term in nature. In the instant case, contracts 1 and 2 were fixed-term contracts.

Contract 3 although not fixed-term by way of start and end dates, may be considered as a Fixed-Term contract in that it was given to complete a specific task. I note the contract states that “this is a specified purpose contract of employment and therefore the provisions of the Unfair Dismissals Acts, 1977 to 2001 will not apply to the termination of this contract where such termination is by reason only of the expiry of this specified purpose”.

The specified purpose of the contract was contained in the contract and no evidence was presented to show that this purpose had come to an end. On the contrary, the respondent proceeded to offer the complainant an additional contract in July 2018 which indicated that the project was continuing. Accordingly, the respondent cannot seek to rely on the provision contained in the contract which indicated that the provisions of the Unfair Dismissals Acts did not apply.

Having regard to the foregoing and the fact that this contract lasted more than six years, I am satisfied that, it constituted a contract of indefinite duration.

I find that by offering the fourth contract, the respondent tried to impose an end-date on a position where one did not exist. In effect, the respondent sought to deny the complainant the protections afforded by the Unfair Dismissals legislation. Accordingly, I find that the dismissal of the complainant was unfair.

CA-00030234-001

My decision in relation to this matter is that as I have found that the dismissal was unfair, reinstatement is the most appropriate remedy, backdated to the date of dismissal.

CA-00030234-002

My recommendation in relation to this matter is that the parties should agree on the most appropriate method to give effect to my decision above.

Unfair dismissal, Re-instatement