Complainant

Respondent

Anonymised Parties

A consultant doctor

A hospital

Representatives

Tony Kerr, SC instructed by Sherwin O'Riordan Solicitors

Tom Mallon, BL instructed by Arthur Cox Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00011898-001

14/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00011898-002

14/06/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00011898-003

14/06/2017

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

CA-00016519-001

22/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00016519-002

22/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016519-003

22/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00016519-004

22/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00016519-005

22/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016519-006

22/12/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00016519-007

22/12/2017

The complainant is a hospital consultant. This matter relates to his employment with the respondent between 1st January 2013 and 31st December 2016, although he has a subsisting contract with the respondent. The complainant asserts that there were contraventions of the Protection of Employees (Fixed-Term Work) Act, the Unfair Dismissals Act and the Payment of Wages Act. The respondent denies the claims. In respect of this employment, the complainant was paid €3,685.76 (gross) and the net figure used is €2,313.38 per month.

At the outset of the hearing, the complainant outlined that he had complaints pursuant to the Protection of Employees (Fixed-Term Work) Act, the Unfair Dismissals Act and the Payment of Wages Act. He submitted that he did not have to elect at this stage between the Unfair Dismissal and Fixed-Term claims.

The complainant outlined that he had two contracts of employment: one of the 1st June 2010, and the second set out in the letter of the 27th November 2012. The latter contract was renewed in 2014 and 2015 at the anniversary of the fixed-term. He outlined that the respondent terminated the second contract by letter on the 21st December 2016.

The complainant submitted that the letters sent by the respondent do not comply with section 8 of the Fixed-Term Work Act as they do not address why the complainant was not provided with a contract of indefinite duration. This was only addressed in later correspondence. The complainant said that he had served four years on the second contract by December 2016.

The complainant submitted that the letters served by the respondent do not comply with section 8(3) of the Act. He outlined that the reason for the non-renewal was to avoid the contract of indefinite duration. The complainant said that he considered that he now had a contract of indefinite duration for 10.5 hours.

The complainant outlined that the Payment of Wages claim related to his ongoing entitlement to pay pursuant to the second contract. He submitted that he continues to work the contract of indefinite duration and, therefore, should be paid for these hours.

On the question of whether he had locus standi to bring a fixed-term claim and addressing the decisions cited by the respondent (Athlone Institute of Technology v Hanniffy FTD1117, Raftery v Froebel College of Education [2014] E.L.R. 190 and UCC v Nieuwstraten FTD1122), the complainant stated that they all related to secondment. In these cases, there was only one contractual relationship and one set of duties, for example acting up. He submitted that the UCC v Nieuwstraten case was not applicable as the complainant has two separate staff numbers, so there were two clearly distinguishable contracts. Pay slips were issued in these two staff numbers. He submitted that the fact of having a permanent contract has no bearing on his fixed-term contract.

The complainant submitted that if it is found that he has locus standi to bring the fixed-term work claim, there is no issue with double recovery. He is entitled to recover for a breach of the Fixed-Term Work Act.

In respect of the Unfair Dismissal claim, the complainant cited Limerick City and County Council v Moran UDD182 where the Labour Court emphasised the word ‘only’ in section 2(2)(b); the respondent had not used the word ‘only’ in their letter. It was the complainant’s contention that he was not supplied with a contract of indefinite duration because of a personal animus with the Senior Doctor. He said that it was the Senior Doctor’s decision not to extend the contract.

The complainant outlined that he continued to receive referrals from consultants in the respondent; there has been no diminution in demand for his work. There is also no issue with funding for the role.

In reply to the respondent, the complainant outlined that the respondent had never previously raised any issue with the Organisation of Working Time Act, even though he always had the role in the other hospital.

Evidence of the Complainant

The complainant outlined that he has been a consultant for 23 years. He qualified in Ireland and worked for some time in the UK. He started in the other hospital in 1999 and developed a ‘loose’ relationship with the respondent in the 2000s. He was asked to see patients with complex disorders and to identify any underlying disease for future consideration.

The complainant outlined that the respondent asked for the relationship to be formalised, initially for two sessions per week and then to three sessions. This was agreed with the other hospital. The complainant outlined that in 2010, he acquired a contract of indefinite duration for three sessions. He outlined that it has not been envisaged that he would be based in the respondent, but he would see patients once a week or come in otherwise on request.

The complainant said that he brought technical developments in his speciality to the attention of the Senior Doctor. The complainant proposed to expand the service offered at the respondent. He said that he was asked to work with pathology to identify underlying disease and to develop a therapeutic test for the family. The complainant said that he attended the Tuesday clinician meetings as often as possible and also contributed personalised investigations into patients. The complainant said that he saw patients of the respondent at his offices at the other hospital. He attended the respondent to provide a service at the ante and neo stages as well as pathology.

Referring to the document ‘Developing a Clinical … Service at [the respondent]’, the complainant said that he created this in dialogue with the Senior Doctor. The respondent wished to develop ante and peri services. This represented new elements to his role, for example he would now attend post mortems. He had never attended post mortems before the second contract. The complainant outlined that the reference to ‘no formal terms’ in the document arose as the Senior Doctor had not set out the formal terms. The reference to ‘separate records’ relates to the sensitive information the service collected.

The complainant outlined that his only office was in the other hospital and he had no office facilities, clinic room or administrative support at the respondent. He did investigative work at the other hospital as he had specialist resources there.

The complainant said that prior to the second contract, he occasionally attended the Tuesday morning clinical meetings, but now attended more diligently. He hoped to attend 28 to 30 meetings a year. He said that after the meeting, he attended two departments to discuss patients and investigations. He would visit the Special Care unit and the pathology department.

The complainant said that he provided the respondent with records of his work on respondent patients. He said that he saw respondent patients at the respondent and at his rooms in the other hospital. He said that his records are kept at the other hospital.

The complainant outlined that respondent patients are referred to him by a consultant. The complainant runs a clinic for respondent patients, and he prioritises them. He said that he operates two waiting lists, but no respondent patient waited for more than six weeks.

Referring to the letter of the 29th May 2012, the complainant said that there was still no progress on consultant post based both in the respondent and the other hospital.

In respect of the email of the 19th July 2012, the complainant outlined that he worked 18 to 20 hours per week for the respondent. He received two or three phone calls per week from respondent consultants. When he attended his clinic at a hospital in a different city (also on a Tuesday), he would call to the respondent on Wednesday or Friday of that week. He said that this was important as there were sick patients.

The complainant said that the laboratory session referred to in the email of the 19th July 2012 takes place in his offices. It involves making enquiries and following up on tests with laboratories around the world. This work is related to respondent patients.

The complainant said that the envisaged Monday afternoon clinic was discontinued as it was rarely attended. He attended the respondent on Tuesdays and also saw patients when referred to him. The complainant said that he did a couple of lectures, but this discontinued as there was little consultant demand.

The complainant commenced the expanded role on the 1st January 2013 and only received the contract in May 2013. He did not know the reason for the delay and signed the contract when it was presented to him. There was an extension in 2014 and there was no discussion with the Senior Doctor about this. The respondent did not raise any issue.

The complainant referred to his conversation with the Senior Doctor in October 2015 where she asked for a summary of his patients. She made reference to his contract becoming ‘automatic’. The complainant emailed an outline of the patients he had seen. He said that he would not have a record of all consultations, especially the patients who remained in the care of their consultants. He now attended some 30% of autopsies in the respondent.

The complainant said that there was no discussion that his role was ‘unnecessary’. After the conversation with the Senior Doctor, he expected the contract to continue.

The complainant outlined that his and the Senior Doctor’s relationship deteriorated. He attended the meeting of the 21st June 2016 with the Senior Doctor and other senior respondent managers. He described the Senior Doctor as being dismissive of his work and she questioned the treatment of private patients. The Senior Doctor accused the complainant of harvesting private patients, i.e. that he was seeing private patients and charging them at the other hospital. The complainant said that this was a serious allegation to make. The Senior Doctor led the discussions at the meeting and there was little discussion of his contract.

The complainant said that after the respondent’s December 2016 letter, he approached consultants to find out whether the respondent had told them to reduce their interactions with him; they told him ‘no’. The complainant has a record of his work for the respondent since January 2017.

The complainant said that post-mortem or laboratory work were clearly part of the fixed-term, while neo work was nebulous and ante work likely to be fixed-term. He said he approached the work in a patient-centric way. He said that in 2017 the Senior Doctor would have known of his involvement, for example in post-mortems of her patients.

In respect of private patients, the complainant said that he had six private patients who he saw at the other hospital. They had been referred to him by respondent consultants, but not seen by him while they were patients there. He said that the nature of his work meant that he would see not only the patient but also family members.

The complainant referred to the schedule of 183 patient contacts over 89 appointments. There were 63 patients and it was sometimes necessary to call back patients. He said that it was never specified that he had to see respondent patients at the respondent. Prior to June 2016, no issue had been raised about seeing respondent patients at his offices in the other hospital. He saw every respondent patient within 7 weeks and some patients required 4 to 6 consultations. He commented that the respondent had not included him in the new IT system. He said that the Senior Doctor’s accusation of harvesting patients caused him considerable professional offence.

Cross-examination of the complainant

In cross-examination, the complainant outlined that he started in the respondent hospital in 2000. This began with an informal arrangement, pending a full-time appointment. This drifted for two or three years. The complainant said that he had a ‘Buckley type 1’ contract with other hospital. His hours at the respondent were in addition. Initially, he was paid for work he did for the respondent via the other hospital, so that his pay from the other hospital reflected his work at the respondent. The complainant said that he held an initial two sessions.

The complainant said that he was later paid directly from the respondent, as there was a demand from the respondent for him to provide additional work. This took place in 2005 following a conversation with the Senior Doctor’s predecessor. The complainant said that he was taken onto the staff for three sessions per week. This was extended on several occasions and in 2010, he was provided with a ‘category 2A’ contract by the respondent. The complainant said this is currently for 10.5 hours per week. He outlined that his work in the third hospital is in addition to the work for the respondent and the other hospital. The complainant outlined that he is rarely on call. He was last on call at the respondent two years before and five years ago at the other hospital.

Giving the example of his working pattern the previous week, the complainant said that he had worked 9 or 10 hours at the other hospital. The Tuesday was a public holiday. On Wednesday, he attended the other hospital at 7am and went to the respondent in the afternoon, where he spent 3 or 4 hours before returning to the other hospital. On Thursday morning, he saw patients at the other hospital and did work from his offices. On Friday, he worked at the other hospital.

It was put to the complainant that his case was that he worked 20 hours per week for the respondent, but this had not taken place in the last week; he replied that he does not have an office at the respondent so it was not fair to say that the only work he did for the respondent was when he was physically present at the respondent. He said that he worked on respondent patients while in his offices.

The complainant accepted that his hours were increased pursuant to the 2013 contract and that he was later advised that it would not be renewed and was terminated.

In respect of the meeting of the 21st June 2016, the complainant said that he was always clear that he had a ‘Buckley 1’ contract. He said that he met his sessional commitment for the respondent by seeing certain patients at his clinic at the other hospital. The complainant said that at the meeting, they discussed whether he was seeing patients under both the respondent and other hospital contracts. The Senior Doctor also raised whether he was seeing patients privately under his public-only respondent contract. The complainant said that he saw no patient privately who was under the respondent contract.

It was put to the complainant that the letter from the respondent to the representative body of the 28th July 2017 refers to an arrangement where the complainant could take respondent private patients under his other contract and charge them private fees; the complainant said that he had not said this. The complainant was asked why he did not instruct his representative to correct this assertion; he replied that at this point, the Senior Doctor indicated that her view was that he was engaging in improper conduct. He had corrected her claim at the meeting of the 21st June 2016.

It was put to the complainant that he did not seek to challenge the assertions made in the letter; he replied that the Senior Doctor could not substantiate her statement, so he did not challenge it. He did not provide the information she sought as this was an extraordinary accusation to make.

It was put to the complainant that his case is that he will work for 20 hours for the respondent every week; he replied that he will work for respondent public patients for 20 hours a week, either in the respondent or working on their cases from his offices. The complainant accepted that he had a full-time role at the other hospital as well as 20 hours with the respondent and 10 hours with the third hospital.

It was put to the complainant that since 2017, he has not worked the hours on foot of the second contract and that he is not required to work these hours; he replied that this was not clear to consultants at the respondent who continued to contact him, and his workload has increased. While he has been told that he will not be paid for the additional work, the consultant colleagues at the respondent have asked him to do more and more. The additional hours were in two named Departments and he continues this work even after the discontinuation of the contract.

The complainant was asked why he had not told these colleagues he can no longer do this work; he replied by asking why the respondent had not informed the colleagues about this change.

The complainant was referred to the letters of the 22nd December 2016 and 4th January 2017 from the representative body to the respondent; the respondent letters of the 9th and 20th January 2017 to the representative body and the Senior Doctor’s letter to the complainant of the 18th January 2017.

It was put to the complainant that it was clear there that he was to work for three sessions and not six; he replied that it was clear to him but not clear to colleagues at the respondent. He said that he did the work he was asked to, and the patient comes first.

It was put to the complainant that any additional hours he worked was his choice; he did not accept this as he was being asked by consultants to contribute regarding patients. This was important work for an experienced consultant to do.

The complainant agreed that he was suggesting that the second contract is for different and identifiable work to the first contract. He said that the first contract arose from a named department for support for neo services. He was asked to attend the Tuesday morning meetings regarding patients with difficulties. He said that the second contract arose from new guidelines from an academic journal regarding his speciality and the work of the respondent. He and the Senior Doctor agreed to work on guidelines, including clinics and the pathology service. The complainant said that he created a network for colleagues.

It was put to the complainant that if the two contracts can be desegregated, he could say to consultants that he could no longer provide this work; he replied that that they were asking for his contribution and they had also referred this issue to the Senior Doctor.

It was put to the complainant that his work was not so compartmentalised that he could not do it all within three sessions; he referred to the letter of the 27th November 2012, setting out his commitment.

The complainant accepted that until he brought the claim to the WRC, he had not written to say that he was continuing to work 20 hours per week.

The complainant was referred to the respondent’s letter to him of the 10th July 2017 where the respondent stated that it was not aware of the complainant doing work outside of the 10.5 hours per week; he said that he did not reply as matters were then in dispute.

The complainant was referred to his solicitor’s letter of the 25th July 2017. It was put to the complainant that this letter does not provide the information sought by the respondent; he replied that the Senior Doctor’s letter of the 10th July 2017 refers to his ‘alleged work’ but he had already provided her with the reports regarding patients who had died and other patients.

The complainant accepted that he had not replied to two letters asking him to provide information regarding his additional work with patients. He accepted that he had not sought a P45 when the additional hours ceased and not sought payment of accrued annual leave.

The complainant confirmed that respondent pathology patients are not registered in the other hospital. He said that the respondent patients he sees are registered as being with the respondent. He would see them several times over 18 months. They might have a file with the other hospital if they require surgery and could also become in-patients in this hospital. He said that if they become a patient of the other hospital with a file from the other hospital, then he would see them under his contract with the other hospital. He said that it was unlikely that a patient would be counted twice.

The complainant that a patient discharged by the respondent and sent either home or to the other hospital becomes a patient of the other hospital. This accounted for 10% of the workload. Such patients would attend a special clinic at the other hospital on Monday mornings for discharged respondent patients. He might also see patients from different hospitals. He said that they are recorded on HSE files and he has no facility to hold an out-patient clinic at the respondent. The complainant said that a new patient discharged home and who needs to be seen the complainant is given a respondent number and there will be a family number in the department. He did not agree that where one patient attended the respondent, the whole family was ‘forever more’ with the respondent; he said that if a second patient from this family attended a different hospital, they would be registered with this hospital.

It was put to the complainant that he was seeking to put patients into boxes to discharge his obligation under the respondent sessions; he replied that he could only see respondent patients on the ward, and he was not provided out-patient facilities at the respondent. He said that he held a clinic in the other hospital on Mondays, he attended the respondent on three Tuesdays and the third hospital on the other Tuesday. He said that he generally saw respondent patients on a Monday but could see patients on other days. The complainant said that a respondent public patient would not become a private patient of the other hospital. He did see private patients of the other hospital. The complainant said that he was paid to see respondent public patients in the other hospital. He said that he had always discharged part of his respondent duties at his offices at the other hospital.

The complainant said that he only became involved in autopsy work after the commencement of the second contract. He is sent photographs and findings of the autopsy to consult regarding further tests for the future clinical assessment of the family. He did not attend the actual autopsy. The respondent had informed him that he was involved in 20 or 30% of autopsies. He met pathologist every Tuesday morning for one hour or 90 minutes. It was put to the complainant that there were up to 30 autopsies per year.

The complainant outlined that he logged his respondent hours on a computer system held on the server of the other hospital. He said that he had no computer access at the respondent. The complainant said that patients are identified as respondent patients, for example in laboratory work in the other hospital or overseas. In respect of the redacted spreadsheet provided in the correspondence of the 18th December 2017, the complainant said that the clinic entry refers to where the patient is seen.

The complainant was referred to the respondent letter of the 23rd February 2018 where the Senior Doctor repeats the question whether he charges respondent patients, but he did not reply to deny this; he replied that he had denied this at the meeting and at this hearing. He had answered the points raised in the letter at the meeting.

The complainant agreed that as well as the three contracts, he did private work including medico-legal work. He did this work at weekends and worked on about 30 cases per year. They were desk reports and he rarely attended court.

The complainant was asked whether he had attempted to find alternative work to mitigate the loss incurred from the ending of the second contract; he replied that he had continued to do the work and had not looked for alternative employment. He said that his reference in the letter of the 18th December 2017 to his ‘main employment’ referred to where he had an office.

In re-examination, the complainant said that he maintained diaries of his work for the respondent from January 2017 to May 2018 to record his work. Taking a random week, the complainant said that the 5th June was a public holiday. In respect of respondent work, on the 6th June, he replied to 12 letters from consultants and 3 emails. He dealt with 20 laboratory reports involving respondent patients. He attended the meeting at the respondent and attended to the intensive care unit and a named Department. He discussed various cases with consultants. He also attended the weekly Pathology meetings. On the 7th June, he dictated four letters to respondent consultants and made one phone call. The complainant spoke to Senior Doctor’s successor regarding two cases. On the 8th June, he consulted with laboratories, one in the other hospital and a specialist laboratory in Germany. He spoke by phone to respondent midwives. He also dictated letters.

The complainant that on the Tuesday of this week, much of this work related to the second contract as did some of the phone calls. Some of the letters may also have. Most of the work on the 7th June related to the second contract, including the work with consultant.

The complainant said that the letter of the 20th January 2017 referred to consultation with the relevant staff, but this should have included specialist consultants and pathologists. The complainant said that he could not just stop taking queries from consultants because of what would become of patients. He said that there are only four consultants in his speciality when there should be 14. This is why they are spread across the hospitals.

Commenting on the respondent’s letter of the 27th November 2012, the complainant said that this referred to a review, but the Senior Doctor never mentioned this to him. He said that this was working for the respondent but not for him as he had no facilities. The Senior Doctor told him that she would try to find an office for him. He said that the clinic petered out without a special facility. He never provided with such a clinic prior to the second contract and this was not required as part of the first contract. He also had not provided pathology or laboratory work as part of the first contract and did not do so for the first 12 years.

In respect of the letter of the 18th December 2017, the complainant said that there were other patients he saw that were not listed on the database as this was too onerous.

In further cross-examination, it was put to the complainant that the letter of the 15th October 2015 references pathology work going back four years, i.e. to 2011 and before the second contract; he replied that this was the end of the third year and should have said over the last three years. This followed a telephone call from the Senior Doctor regarding the renewal of the contract. This should have said three years and not four.

It was put to the complainant that the letter also refers to 20 or 30 referrals per year; he did not believe that this was the case as the two named specialist nurses were in contact with him after the second contract.

In further cross-examination, the complainant said that a named infertility clinic in a hospital referred patients to him at the other hospital. This amounted to four patients per year and he had never had a clinic at this clinic facility. They are private patients. He said that the UK clinic is where he examines patients for the medico-legal work.

Evidence of the colleague consultant

The witness outlined that he is a consultant at the respondent and until two years ago, was the director of a named department. He said that the complainant had been an SHO in the respondent and later became a consultant in the speciality. The colleague consultant described that the complainant has both a structured and an unstructured role, including the Tuesday review of scans attended by all disciplines. The meeting goes on for about an hour and they might deal with five cases. The respondent provided services to many thousands of patients and the most complex cases from around the country were referred to it. Many involve the complainant’s speciality as there may more than one issue. The complainant also called to wards as there may be one or two patients with concerns. This was also part of the complainant’s structured role.

The colleague consultant said that the unstructured role relates to the complainant being available to see a respondent patient. He described this as being for ad hoc, urgent issues. He said that the complainant was usually available. The colleague consultant described the complainant’s service as a crucial part of the service as the respondent was a tertiary centre, i.e. a point of referral from hospitals across the country. He said that this was a service the respondent needed to help care for its patients. The complainant provides counselling related to his speciality and this was part of the package of care the respondent offers. The complainant would visit wards on a different day to Tuesday if this was a week, he attended the third hospital.

The colleague consultant outlined that the complainant’s skills were required for the complex tasks engaged by the respondent. It required his speciality. The colleague consultant said that the complainant’s role had grown over time, leading to more referrals. He said that complex problems were more readily referred to the respondent, as the respondent collected patients from around the country on a 24-hour basis. He said that there were more referrals as there was more ante care provided to patients. He also said that the increase in the number of older patients and increased abnormalities. Better care meant that patients who previous died now survived.

The colleague consultant said that he did not recall the conversation referred to by the respondent about the complainant’s second contract ending. He said that he was not a party to contractual issues. He said that the complainant had mentioned the issues and he was dealing with the representative body.

The colleague consultant said that he would be concerned if the complainant was asked to curtail his role as they needed this service. He said that there will be an increase in anomalies and an increase in surviving patients. There are issues arising with care in the context of recent statutory changes. The colleague consultant said that the complainant is an outstanding clinician and has expertise in complex areas and provides a unique level of detail.

In cross-examination, the colleague consultant accepted that he had said that the complainant was doing as he had always done. He accepted that the service provided by the complainant had not changed in respect of his department. He said that this did not change in 2010 or 2011 as the complainant always attended when called on. The colleague consultant said that in the last 6 months or year, he had referred about one case a month to the complainant. They would discuss cases on a Tuesday. He said that the visits to neo patients would take about 30 minutes each and the complainant would have follow-up work to do. He said that this was part of the complainant’s structured role.

The colleague consultant said that patients tend be in the respondent for a few days, but some can stay for 14 or 15 days. Sick patients can return to the respondent as out-patients or if the complainant was involved, to his clinic. He said that a patient discharged by the respondent would not be re-admitted but might be admitted to a specialist hospital.

In re-examination, the colleague consultant said that the ward visits would take 30 minutes and the complainant wrote extensive notes and ordered tests. He might also contact the laboratory himself.

Evidence of the consultant histopathologist

The witness outlined that he was a consultant histopathologist at the respondent with a sessional requirement at another hospital. He examined tissues and conducted biopsies and autopsies, including of deceased patients of the respondent. He estimated that his department conducted 60 or 80 autopsies per year.

The consultant histopathologist outlined that they would refer a dysmorphic, deceased patient to the complainant, whose input would guide the autopsy report and in turn, the family. They would take tissue samples and liaise with the complainant on appropriate cases. They took clinical photographs of abnormalities to show the complainant when he attended the department.

The consultant histopathologist said that they referred about 20 to 30% of cases to the complainant, for example those with an abnormality. If the complainant could not attend, they would email him and wait his response. He outlined that autopsy takes 6 to 8 weeks so the complainant’s absence would not unduly delay things.

The consultant histopathologist said that he would meet the complainant every Tuesday morning at the conference where they asked his opinion of cases. He said that in or around January 2013, the engagement with the complainant increased, so that the complainant would see any patients referred to him. The complainant would now attend the laboratory more frequently. He said that the meetings with the complainant would take 30 minutes to an hour

The consultant histopathologist outlined that he was aware that the complainant’s commitment to the hospital increased in January 2013. The complainant’s speciality has become more complex as the means of investigation have improved. The complainant provides input regarding the appropriate tests to take, especially as the range of tests has increased.

Referring to the complainant’s letter of the 4th May 2017, the consultant histopathologist could not recall if he had attended the meeting of the 18th April 2017. He said that they were aware of specimens that would benefit from a specialist cancer service. The reference to ‘array’ refers to a new cancer-related service, which the respondent was evaluating.

The consultant histopathologist said that he did not recall receiving any letter from the respondent regarding a reduction in the complainant’s availability. He said that the complainant has continued to do his round and to visit the laboratory. He said that the complainant’s engagement and advice has not decreased. There was no alternative to the complainant, and he would be reluctant to lose his service. The consultant histopathologist said that the complainant’s input provides a seamless service, including so that family members have the autopsy report when later meeting the complainant.

In respect of his sessional commitment at a different hospital, the consultant histopathologist said that he attended according to a rota devised a month in advance. There was no clocking in. He said that he has a work station in the laboratory and did not have a separate office. He met the complainant at the work station when he attended the laboratory.

In cross-examination, the consultant histopathologist said that he worked 9/11ths of his time in the respondent and 2/11ths in the other hospital. He agreed that he worked to a single practice plan and all public work would be done at the location. He said that he has some off-site private work outside of this commitment. The consultant histopathologist said that the complainant first had an input into autopsies in the early 2000s. This was less formal prior to 2013.

The consultant histopathologist said that the complainant did have ‘real’ involvement prior to 2013, as in 2012 or 2013, a seminal journal article led to the complainant engaging more with the laboratory. He could not recall who had first raised the findings of the journal article. The consultant histopathologist could not say that the complainant never attended the laboratory prior to 2013, but this became more regular and more formal after 2013.

The consultant histopathologist said that the complainant attends the 8am Tuesday clinical meetings. It was his understanding that the complainant then goes on a ward round and attends the laboratory. They would also email the complainant during the week. He outlined that the conclusion of an autopsy report reflected the discussion with the complainant. He authored the report and would say that he had discussed this with the complainant and set out his input.

In re-examination, the consultant histopathologist said that he tended to email the complainant as he was efficient in replying. The complainant would let them know if he would not be attending on a Tuesday. They had not required the complainant to attend on another day even though he offered.

Evidence of the representative

In respect of the meeting of the 21st June 2016, the representative said that he had asked for the meeting to discuss the issue of the complainant’s pay. He hoped to meet the Senior Doctor to resolve the issue. The Senior Doctor was accompanied by her predecessor, the hospital manager and the HR manager. The representative was surprised that the respondent’s solicitor was also present.

The representative said that the hospital was aggressive at the meeting and there was a sharp difference of opinion regarding the issue of pay. The Senior Doctor raised the complainant’s attendance at the hospital and his seeing private patients. The Senior Doctor questioned whether the complainant was fulfilling his commitment to the respondent. The complainant replied by setting out his attendance at the hospital. The Senior Doctor said that the complainant was ‘harvesting private patients’ from the respondent; the complainant replied that he had not charged any respondent patient. He replied that he might have seen a patient following their discharge from the respondent, as there may have been a need for further consultation.

The representative said that he took the reference to ‘harvesting’ as deliberately seeking to take public patients so he can charge them in private practice. The representative was shocked at the accusation as this had never been made about any consultant before. He saw no reason for the complainant to do anything of the sort.

The representative said that he raised the issue of consultants contacting the complainant out-of-hours, so he would be entitled to a certain level of remuneration for this. He raised the issue but did not push it vigorously. This was part and parcel of the remuneration issue. The representative raised two issues (pay and call), while the respondent raised the complainant’s attendance and private practice. The meeting took about an hour. Commenting on the handwritten note, the representative said that it was the Senior Doctor who was noted as saying ‘if we refer private patients to you, you don’t bill them’.

The representative said that while the contract indicated location of work, many consultants do administrative work at home where the hospital does not provide a facility for the doctor. He said that the respondent had not provided out-patient or office facilities to the complainant; he had to see patients at his offices at the other hospital.

The representative said that once a patient is discharged from the respondent, if they see the complainant again, this is a new episode of care. If other family members saw the complainant, this is also a new episode of care.

The representative outlined that in the letter of the 27th June 2016, the representative stated that he was unclear of the Senior Doctor’s concern regarding private patients. He sought to get clarification about the nature of the Senior Doctor’s concern, for example was it related to charging patients.

The representative said that it was his recollection of the meeting that the complainant said he saw private patients at the other hospital. He said that a referral requires the passing of care from one doctor to another, so he was not clear what the Senior Doctor meant by referral in this context. The representative said that they did not provide the information sought by the respondent. The complainant had no private patients at the respondent and had a separate private practice at the other hospital.

The representative did not know if any of the three directors received communication regarding the ending of the complainant’s second contract in 2016.

Cross-examination of the representative

In cross-examination, the representative accepted that the respondent’s position was that the complainant was only required to do three sessions. He accepted that the complainant had a 40-hour contract with the other hospital as well as 10 hours with the respondent. He was not sure of the source of the respondent funding of the complainant’s post. He further accepted that the complainant had a further commitment with a third hospital. It was put to the representative that the complainant claims to work 20 hours per week at the respondent, bringing his weekly working hours to 70 hours per week, a breach of working time; the representative outlined that there were derogations under the Organisation of Working Time Act.

It was put to the representative that the complainant also had a clinic in the UK with an Irish phone number as well a commitment at the fourth hospital. The representative accepted that the respondent was entitled to check whether work was being done, but the respondent should be able to point to evidence. He said that the complainant was not provided with facilities to deliver his sessions in the respondent, but he did deliver the sessions. It was put to the representative that the respondent is entitled to know when the complainant is delivering his 20 hours and is entitled to ask the complainant to show this.

It was put to the representative that someone admitted as a private patient to the respondent remains private, but the complainant could not charge them as he has a public contract with the respondent. Once discharged from the respondent and if referred to the complainant at the other hospital, it was a matter between patient and the complainant whether they were public or private. The representative agreed that any patient seen privately by the complainant could not be a patient of the respondent. He also agreed that a public patient discharged from the respondent but who (or a family member) was later seen in the other hospital could not be counted as a respondent patient.

It was put to the representative that the complainant says that he discharges part of his commitment to the respondent via a clinic held in the other hospital; he replied that the complainant saw respondent patients at the other hospital, but most of the work was not face-to-face. It was put to the representative that the complainant gave up clinical facilities at the respondent as there were not enough patients.

It was put to the representative that the minutes suggest that a private patient of the respondent was being seen by the complainant as a private patient of the other hospital. In respect of the question asked by the representative in the letter of the 27th June 2016, it was put to the representative that the Senior Doctor’s concern was always related to charging respondent patients; he replied that this was raised as an operational issue and the Senior Doctor’s concern was not clear. It was put to the representative that the respondent was right to be concerned that the complainant was seeing respondent patients at the other hospital. It was put to the representative that the complainant did not provide the information sought in the June 2016 letter so the respondent could not ascertain the position.

It was put to the representative that the complainant says that he continues to provide the work pursuant to the second contract; he replied that the complainant had not changed his involvement in the respondent. It was put to the representative that the pathology work was for only four hours per week, from Tuesdays at 8am.

Closing comments

The complainant submitted that the authorities cited by the respondent in respect of ‘fixed-term worker’ are those acting up to more senior roles. They concern a ‘contract within a contract’, where the employee has a substantive role but undertakes a different role. They are not doing their substantive role while acting up. Here, the complainant has a permanent role and is given an additional contracted role. See Cork County Council v Sheehan FTD193 and the reference to a person not being able to be both ‘permanent’ and ‘fixed-term’ in the same role, but they can have two roles, one permanent and one fixed-term.

The complainant continues to provide his permanent role as well as the additional fixed-term role, i.e. the ‘conceivable’ scenario envisaged in Cork County Council v Sheehan. The additional role was not ‘within’ his permanent employment, so the Burns case law does not apply (Burns v Dun Laoghaire Rathdown County Council FTD 173). The complainant was not reverting to a substantive grade.

The complainant submitted that he was provided with different staff numbers in respect of the two contracts. He received separate pay slips for the roles, and this was indicative that they were separate. The complainant submitted that he was a fixed-term employee and there was jurisdiction under the Protection of Employees (Fixed-Term Work) Act.

The complainant submitted that section 8(2) requires that there be objective grounds to justify the renewal of the fixed-term and not giving the contract of indefinite duration. Here, the letters were issued in January, after the contract’s renewal. Section 9 deals with successive fixed-term contracts and section 13(1)(d) with a dismissal connected to the accrual of a contract of indefinite duration. The evidence showed that the complainant’s work has not ceased or diminished, per the evidence of the two consultants.

Referring to Dublin Institute of Technology v Wogan FTD 164, the complainant submitted that the non-renewal of the contract is a dismissal within section 13 (as an act of penalisation). It is sufficient that the issue of a contract of indefinite duration was an operative factor. In respect of Grehan, it was submitted that the question was whether the respondent had established that the complainant was not doing the 20 hours. There is the issue in the minutes of whether the complainant was ‘seeing’ or ‘billing’ private patients from the respondent contract and whether he was doing the work required for the respondent. The Senior Doctor stated that the complainant had charged respondent patients. It was submitted that the complainant’s contract of indefinite duration was clearly on the minds of the decision maker. There was a change of view within the respondent regarding the applicability of the contract of indefinite duration. Even if there were other issues (value for money, performance), avoiding a contract of indefinite duration was clearly an operative factor.

The complainant submitted that the final extension issued in December 2015 did not explain why the fixed-term was being re-issued. It refers to the availability of funding so holds out the possibility of a contract of indefinite duration if funding is available. Citing Dublin Institute of Technology v Wogan, the complainant submitted that here too, the evidence showed that there was sufficient work in hand for his role to continue. Here, there was no dissatisfaction with the complainant’s work. The complainant, therefore, fell within section 9(3) of the Act.

In respect of the Payment of Wages claim, the complainant submitted that he continued to provide three additional sessions per week. He continues to do the work but is not paid. The net amount properly payable is €2,313.38 per month.

In respect of the Unfair Dismissal claim, the complainant outlined that the letter from the Senior Doctor in 2012 mentions a review after a year, but the next letter in May 2013 encloses the backdated contract. Page 5 of the contract refers to the non-applicability of the Unfair Dismissal Act, but the clause and the other purported exclusions do not state ‘only’ and are, therefore, not effective. This contract was given to the complainant 5.5 months after he commenced the role. Referring to Conaty v Malahide Community School [2019] IEHC 486, the complainant submitted that paragraph 61 places emphasis on ‘commencement’ of employment. The date of termination was not certain and similar to the final fixed-term contract provided here, which was ‘subject to funding’ as the only restriction.

The complainant submitted that if it is not a fixed-term contract, relying on Conaty v Malahide Community School, section 2(2)(b) exclusion cannot apply. Per this judgment, section 2(2)(b) only applies at the commencement of the employment, citing the importance of ‘only’ in provision. It was submitted that a key condition in section 2(2)(b) was that the contract must be in writing and signed by both the employer and employee. Here, the third contract (16th January 2015) was not signed by the complainant.

In respect of Limerick City and County Council v Moran, the claimant here was dismissed at the expiry of the fixed-term, where a performance review had been instigated against the employee. The evidence from the respondent was that if the performance issues had not arisen in June 2016 then the complainant would have been retained beyond December 2016. It was submitted that the employer must show that the dismissal ‘only’ related to the expiry of the fixed-term.

It was clear from the respondent’s evidence that fair procedures and natural justice were not applied to the termination of the complainant’s employment. A finding was made against the complainant regarding ‘seeing’ or ‘billing’ patients on the double. No warning was issued to the complainant.

The complainant outlined that between the 1st January and the 15th May 2015, he worked the additional sessions before the contract containing the exclusion being signed. The section should be interpreted strictly and relied on informed consent. The question was whether the complainant became a permanent employee with six sessions. The letter from the respondent only stated that there would be a review with no mention of a fixed-term. As in Conaty v Malahide Community School, the respondent tried to alter the complainant’s employment status. The extension letter does not comply with section 8(2) of the Fixed-Term Work Act as it was not provided in advance.

The complainant submitted that the appropriate finding pursuant to the Fixed-Term Work Act was that he had a contract of indefinite duration and that he be paid the appropriate rate of pay for the performance of his services.

In respect of the Unfair Dismissals claim, there was a lack of procedures and the last renewal refers only to a contingency regarding funding.

In reply to the respondent, the complainant set out his work undertaken for a random week in June. He said that the respondent did not include the work undertaken by the complainant in his offices in the light of the lack of facilities provided to him by the respondent. He had to see respondent patients, including those of the Senior Doctor, at his offices. He said that the pathology arrangement had been ad hoc and informal but was now formal and involves some level of follow up.

In submissions, the respondent rejected the complaints pursuant to the Unfair Dismissals Act, the Protection of Employees (Fixed-Term) Work Act and the Payment of Wages Act. It outlined that from the 1st June 2010, the complainant was engaged on a contract of indefinite duration (Type A) for 10 hours per week (increasing to 10.5 hours per week following the Haddington Road Agreement). By letter of the 27th November 2012, the respondent agreed to increase the sessional commitment to six sessions per week. The complainant signed a contract which provided for its duration and the exclusion of the Unfair Dismissals Act. This exclusion was recited in the letters of the 14th January 2014 and the 16th January 2015.

The respondent submits that at the meeting of the 21st June 2016, it became apparent that the complainant routinely sees private patients of the respondent at his offices at the other hospital and charges them for services. It stated that the complainant was seeing these patients as part of his sessional commitment to the respondent and under his contract with the other hospital (which allows him to charge a professional fee).

The respondent submitted that it was clear that the additional 10.5 hours were temporary and subject to a temporal limit. It submitted that the complainant could have no expectation that they would continue indefinitely. It submitted that the complainant has one indefinite contract of 10.5 hours per week (since 1st June 2010). He had four contracts for an additional 10.5 hours per week between 2013 to 2016.

The respondent submitted that the complainant could not claim penalisation as dismissal per section 13 of the Protection of Employees (Fixed-Term Work) Act and an unfair dismissal claim. It further submitted that the complainant is not a fixed-term worker and has no locus standi under the Act. The complainant is a permanent employee of the respondent and that the additional sessions were temporary and inextricably linked to the permanent contract.

The respondent further submits that the complainant is time-barred from raising the issue of the letters of the 14th January 2014 and 16th January 2015 not complying with section 8(2) of the Act as these complaints were received by the Workplace Relations Commission on the 14th and 19th June 2017.

The respondent submitted that should the complainant elect to pursue the Unfair Dismissal claim the complainant does not have locus standi as he remains an employee. It also relies on the exclusion provided by section 2(2)(b) of the Unfair Dismissals Act.

The respondent denied that it has penalised the complainant in breach of the 2003 Act. It submitted that section 9(3) did not apply to the complainant’s additional hours. The decision not to extend this contract was not connected with avoiding a contract of indefinite duration. It submitted that section 9(3) is only applicable where a contract is being renewed in contravention of either sections 9(1) or 9(2) but there is no such renewal in this case. It further submitted that the complainant has not shown that the failure to offer the complainant additional hours was motivated by the intention to avoid the contract of indefinite duration. It relied on the test of causation in Dublin Institute of Technology v Wogan:‘an operative consideration in the sense that it was an influential factor operating on the mind of the decision maker at the time that the impugned decision was made.’

The respondent submitted that the additional hours were temporary and lawfully came to an end on the 31st December 2016. The complainant received all wages properly payable to him. It submitted that the correspondence sent on the complainant’s behalf in January and February 2017 did not mention his working the additional hours and this was only cited in the complaint forms submitted later.

At the hearing, the respondent submitted that the complainant has a full-time contract with another hospital and a 10-hour contract with the respondent. His contracted hours are, therefore 47.5 hours per week. The respondent stated that the complainant has no authority to work at the respondent beyond three sessions per week (as set out in the letter of the 10th July 2017). The respondent had given the complainant the instruction not to work the additional hours. Allowing this would constitute a contravention of the Organisation of Working Time Act.

The respondent outlined that it did not know what the complainant did at the respondent hospital during the 10.5 hours or the additional hours he claimed he also worked.

In respect of locus standi and the Fixed-term Work claim, the respondent relied on the UCC v Nieuwstraten. It submitted that the complainant was paid for extra duties, but he is one person. The fact of two staff numbers was only an administrative matter. The respondent submitted that a permanent employee cannot rely on the Fixed-term Work Act when doing additional duties.

The respondent outlined that no one was appointed to carry out the duties previously assigned to the complainant in the second contract. It referred to Raftery v Froebel College of Education which related to a secondment where the employee had two employers: a school and the college. The claimant did not have locus standi as she had a permanent contract with the school. The respondent submitted that this was a binding decision on this adjudication. Similarly, Athlone Institute of Technology v Hanniffy also involved a permanent employee.

The respondent outlined that the complainant has not been dismissed and remains an employee. It would be in breach of the Organisation of Working Time Act for the complainant to work the hours stated in both contracts as well as his other roles. It submitted that the complainant had not shown how he mitigated loss arising from any dismissal.

Evidence of the Senior Doctor

The Senior Doctor outlined that between 2012 and 2018, she was effectively the respondent CEO but retained her clinical posts. She reported to the board of the respondent. She was aware of the complainant’s role and would have met him at the Tuesday clinical meetings. The complainant had three sessions for services in his speciality and three additional services for ‘case mix’ for complex cases and to identify funding. The respondent was not capturing the complexity of patients to ask for more funding and the complainant was helping with this. This was a two-year project. The complainant then fell back to the original three-sessions contract.

The Senior Doctor said that there was a dearth of services in the complainant’s speciality with only four consultants and little counselling provided. Given that the respondent is a national tertiary hospital, it was appropriate to develop services in the complainant’s speciality. The issue of the additional sessions arose naturally, and she spoke to the two consultants who gave evidence for the complainant. The Senior Doctor regarded this as an extension of existing circumstances.

The Senior Doctor said she brought the business case to the board and felt this was necessary because of the history with case mix. The business case was dated the 30th April 2012. They found space in the out-patient department to host the complainant’s clinic but there were only five or six patients per year in the first two years. This service allowed the assessment of care plans for patients. There was already a link to pathology. The respondent board approved the business case but were clear that the contract was to be reviewed and renewed. The respondent also applied for a post in the speciality split between it and the other hospital, but this was never approved.

The Senior Doctor outlined that the June 2016 meeting was requested by the representative organisation. The complainant raised the issue of being on a wrong pay scale for those transferring off Buckley contracts although the respondent’s position was that this was a fixed-term contract. The call issue was raised but fell away. The Senior Doctor said that she was puzzled about the discharge of the contracts in particular whether patients were seen under the contracts of the respondent or the other hospital but also regarding private patients. She outlined that this issue arose in conversation.

The Senior Doctor said that she did not understand how the complainant was discharging the 21 hours for respondent patients. This information was never forthcoming. She said that she had to account for 21 hours a week. The complainant attended the three Tuesday meetings per month, followed by a ward round and a visit to the pathology. Allowing for the emails and the occasional Friday afternoon visit, she was not given assurance that the additional 10.5 hours was being discharged so the contract was not renewed.

The Senior Doctor outlined that the question here was whether the complainant was providing care to the patients under the respondent contract or that of the other hospital. The Senior Doctor could not recall referring to ‘harvesting’ private patients. She was trying to ascertain what happened to private patients, i.e. did the complainant see them under his other contract (where he can charge) but this would reduce the number seen through the respondent contract.

The Senior Doctor said that she felt that the complainant’s role was being discharged within the contract of indefinite duration of 10.5 hours. She asked the complainant to provide services within this contract. She did not discuss this with the clinical leads as there would not be a change in the level of service provided.

The Senior Doctor outlined that the legitimate purpose to ending the contract was not being sure that the additional hours were being performed. This arose from the meeting and she had not reviewed the performance before.

The Senior Doctor said that the complainant had an input into autopsies prior to 2013, so this was not a de novo service. The reference to ‘operational problems’ arose in respect to the performance of the contract in particular seeing private patients. The complainant cannot charge under the respondent contract. She was concerned whether respondent patients were being discharged under the complainant’s contract with the other hospital, including private patients.

Cross-examination of the Senior Doctor

In cross-examination, the Senior Doctor outlined that while in this role, she had 30% clinical commitment and 70% was the administrative role. The most common way of raising issues with the complainant was at the Tuesday meetings but she also referred cases to him. Patients who require continued care are discharged to the other hospital. There are formal written referrals, or this takes place through discussions. She said that she had referred both public and private patients to the complainant. It was her expectation that this referral takes place under the respondent contract.

The Senior Doctor said that the practice plan was with the main employer. The complainant’s role is that set out in the business plan. The plan referred to one clinic and not two, i.e. for both ante and neo patients. A clinic was provided between 4 and 6pm on a Monday with nurse support. This was discontinued at the end of 2014. The respondent was not able to provide an office. The Senior Doctor said that there is a ward round of about one hour.

The Senior Doctor referred to the letter of the 29th May 2012, which referred to the need for a more detailed breakdown of the work done in the three sessions. The respondent also asked how the additional work will be carried out.

The Senior Doctor referred to tri-hospital meetings attended by other specialists in the complainant’s speciality. She said that the respondent was unique in having a formal arrangement with a specialist.

In respect of the complainant’s email of the 20th November 2012 and his reference to working 18 – 20 hours for the respondent, the Senior Doctor said that she took this statement on its face and expected the complainant to develop services in the speciality. In 2016, she could not get clarity on the hours worked. She had not interrogated the complainant’s statement of working 18 or 20 hours and she wanted to develop services in the speciality.

The Senior Doctor said that the letter of the 16th January 2015 refers to this being the last extension. She referred to emails of the 11th and 18th December 2015, setting out concerns at renewing the complainant’s contract again. In respect of the reference to ‘subject to funding’ in the letter of the 21st December 2015 (and the first such reference), the Senior Doctor said that there was always a funding shortfall and ongoing restrictions and moratorium.

In respect of the email of the 18th December 2015 and the query from the respondent manager about getting good value from the sessions, the Senior Doctor said that she did not enquire into this statement and her primary consideration was getting service. She did not mind if the complainant acquired a contract of indefinite duration.

In respect of bringing the clinical director and the respondent’s solicitor to the meeting of 21st June 2016, the Senior Doctor said that this was reasonable as the issue related to the complainant’s contract. It was appropriate that they attend the meeting and the respondent was entitled to bring whoever they thought appropriate. It was put to the Senior Doctor that the emails prior to the meeting only refer to the contract issue and no other issue; she replied that had not then considered the issue of seeing private patients. This arose during the meeting as there was no speciality service for private patients. The Senior Doctor said she was entitled to ask how the 21 hours were being discharged and how the respondent patients were dealt with.

The question noted from the respondent’s solicitor was put to the Senior Doctor: his question ‘for whom is the work being done?’. She replied that her difficulty was how the hours were discharged and how they interacted with the complainant’s full-time contract. She said that if a private patient in the respondent needed a consultation, they could be seen by the complainant and he could not charge this patient.

The Senior Doctor said that the respondent had provided facilities to the complainant in the past and would have done so again.

In respect of the complainant’s letter of the 15th October 2015, the Senior Doctor said that she could not recall the conversation mentioned in the letter. It was likely that she asked the complainant to account for his workload. It was hard to work out where the complainant worked 21 hours per week, including because he was also attending the third hospital. She had not interrogated exactly how the 21 hours were being counted but did so in 2016.

The Senior Doctor was asked whether she recalled telling the complainant on the phone after receiving this letter ‘that’s great it is now automatic’; she replied that whether there was a contract of indefinite duration was not a concern for her and her concern was whether the service was being delivered. She struggled to see 21 hours of work even with the details of the letter. She could not recall the phone call and it is unlikely that she was that concerned about the status of the complainant’s contract.

The Senior Doctor said that she could recall two meetings with the representative body. It was not required to tell the representative body who would be at any meeting although this would be a courtesy. She ensured that the correct people were at the meeting.

In respect of the letter of the 27th June 2016, the Senior Doctor said that her concern related to what happened to respondent patients, including those seen privately. She made no finding of misconduct. It was put to the Senior Doctor that the reference in the email of the 1st July 2016 to the complainant charging private patients amounts to the respondent making a decision; she replied that the complainant was entitled to charge private patients, but this must be done outside of the 21 hours he was working for the respondent.

The Senior Doctor was referred to her reference to the complainant’s private practice in the letter of 28th July 2016, but that while she had raised the fee charging issue, she had not raised the issue of discharging the respondent contract; she replied that she raised many issues in letters over 18 months looking to account for the complainant’s work.

The Senior Doctor was referred to her letter of the 26th January 2016 to the complainant about a patient as an example of a referral to the complainant in his private rooms; she replied that this was likely a private patient referred from her private offices.

The Senior Doctor was referred to the letter of the 1st November 2016 and the proposal to set up a national service on dysmorphology based at the respondent; she replied that this never progressed to a detailed proposal stage. This had no bearing on the complainant’s 10 hours coming to an end in December 2016. The Senior Doctor was referred to the internal email of 22nd December 2016 at 17.51 which states that the respondent does not get more than three sessions per week from the complainant and that it was ‘no harm’ that this has been brought to a head.

In respect of the letter from the representative body, the Senior Doctor said that she did not discuss individual consultants’ contracts with other consultants so did not discuss ending the complainant’s contract with the three Directors. There was no change in service so no need to contact the directors. She said that the consultant histopathologist told her what the complainant was doing with him.

In respect of the complainant’s letter of the 4th May 2017, the Senior Doctor said that this was a general discussion about the speciality: Ireland needs 14 consultant posts but has far fewer. Testing is outsourced and this causes concern, for example in respect of an important testing service that is available in most European countries but not here. The Senior Doctor said that her comments were not aimed at the complainant.

In respect of the email of the 10th October 2017, the Senior Doctor said that there was delay in progressing the restructure of the role and hence this email. The respondent did not have detailed proposals from the other hospital and did not know what the complainant wanted. She was happy to look at what is on the table.

In respect of the letter of the 18th December 2017, the Senior Doctor said that it was for the complainant to keep records of his role at the respondent. She expected a detailed work plan to set out his role. There was the clinic log. There was a note on the respondent patient file of care given, but the main speciality file stayed in the other hospital. This was appropriate for counselling purposes.

It was put to the Senior Doctor that the letter of the 22nd November 2017 does not ask the complainant to account for the 21 hours per week; she replied that this was the issue she was seeking to find out about since July 2016.

In respect of the letter of the 23rd February 2018, the Senior Doctor said that she had asked the management committee to review the records specified by the complainant in his spreadsheet. She said that consultant appointments are made by the management committee.

The Senior Doctor said that she did not dismiss the complainant. She was the primary decision maker in not continuing the additional sessions. She made the decision not to renew the fixed-term contract because she could not determine that the 21 hours was being provided to the respondent. She had requested this on the 28th July 2016 and her letter of this date was clear that they wanted to determine that the work was being delivered.

It was put to the Senior Doctor that the letter of the 28th July 2016 does not make clear that if the complainant does not provide the information sought, his contract would not be renewed; she replied that the letter from December had been clear that this was a one-year contract and there was no undertaking to renew the contract.

The Senior Doctor was asked if the complainant had provided information regarding his work, his contract would have been renewed; she agreed with this and the decision was made not to extend the contract because of her inability to determine that the work being done.

In re-examination, the Senior Doctor said that she could see the 10.5 hours per week being worked by the complainant and this has remained the same. She said that the respondent solicitors did not attend the meeting between the respondent and the representative body regarding another consultant.

Evidence of the HR Manager

The HR Manager outlined that he joined the respondent in 2002 and was the HR Manager at the relevant time. He said that the letters of extension were based on the management committee decision and were not pro forma. He said that the letter of the 16th January 2015 included the reference to a ‘last extension’ as this followed the discussions at the management committee and the decision that the contract would be extended, and this would be the last extension. This was not based on a fear of a contract of indefinite duration arising,

The HR Manager said that the letter of the 21st December 2015 followed the decision to extend for a further year. There had been a discussion regarding the number of extensions and there was no concern that a contract of indefinite duration might arise. The reference to funding was made as funding is always an issue. The contract had been discussed by the finance subcommittee, so this was referenced in the letter. There was no question then whether the complainant was carrying out the hours.

The HR Manager outlined that consultants do not clock in or out. There is an expectation that they carry out their contracts and they will have commitments elsewhere.

The HR Manager said that the letter of the 16th December 2016 arose following the hours issue being raised at the June meeting, given the complainant’s other commitments. There were serious concerns and the Senior Doctor sought to have her concerns alleviated but this information was not forthcoming from the complainant. He said that the respondent had a duty to ensure that there was value for money and a decision was made not to renew the temporary contract.

In respect of the notes of the June 2016 meeting, the HR Manager said that these were his personal notes and not intended as a record. He would tend to keep notes of meetings where representatives attend. The representative body opened the meeting and on hearing from the complainant and the representative, the meeting quickly turned to other issues which needed to be answered. This evolved into discussing the complainant’s practices and under which contracts he was seeing patients.

The HR Manager said that the note at the end of first page of the handwritten minutes related to billing private patients under the contract of the other hospital and not the respondent contract. This led to the questioning of what respondent work the complainant was doing. The HR Manager said that the whole issue of the respondent getting value for money was at the forefront of their minds and hence they asked for more information and for reassurance. The respondent could not justify renewing the contract as the 11 hours was the most they were getting from the complainant. This decision was down to value for money and not to defeat the contract of indefinite duration. He outlined that it was good practice to monitor temporary contracts and he brought these issues to the management committee to advise them when they were approaching the four-year mark. It was good practice to set out that a fixed-term will arise. He said that the respondent had never terminated or not renewed somebody because a contract of indefinite duration might arise. They were not renewed because the reason for the creation of the post had passed. He said that where a service is required there is no issue with a contract of indefinite duration being created.

Cross-examination of the HR Manager

The HR Manager said December 2015 renewal letter referred to ‘subject to funding’ as the finance subcommittee had discussed this on approving the renewal, as set out in the email of the 18th December 2015. In respect of the minutes, the HR Manager could not say whether this refers to ‘seeing’ or ‘billing’, although he thought that the reference on the first page is ‘see’ and not ‘bill’. It was put to the HR Manager that the draft December 2016 email regarding the contract of indefinite duration showed a change in the legal stance of the respondent as it refers to advice that the complainant could not claim a contract of indefinite duration as he was a fixed-term employee.

The HR Manager was asked why the letter of the 16th January 2015 was sent after the previous contract ended; he replied that there had been a preceding discussion, but Christmas intervened and delayed the issue of the letter. He said that discussions had started prior to the expiry of the contract. This was not returned as signed by the complainant. The HR Manager did not know why the management committee decided that this would be the ‘last extension’. He said that funding is always an issue, although this is not cited in the letter. He said that the management committee said that this would be the ‘last extension’ and hence it was stated in the letter.

It was put to the HR Manager that the January 2014 letter does not explain why the complainant was not getting a contract of indefinite duration but getting an extension of the fixed-term. The HR Manager was asked whether there was a difference between the January 2014 and December 2015 extensions as only one refers to the availability of funding so the contract would have been extended had there be funding available. It was put to the HR Manager that in December 2015, the complainant is not being told that the contract will end but that it is subject to funding. The HR Manager replied that the reference to ‘other things’ included approval of the new consultant specialist post. Funding was an issue in every post and the fact that funding does not appear in an extension letter does not mean that it was not a factor.

The HR Manager accepted that his notes of the June 2016 meeting were not complete, and they are his note. He could not recall whether the Senior Doctor had mentioned ‘harvesting’ of private patients. It was put to the HR Manager that he made an ‘assumption’ that the complainant was seeing private respondent patients under his contract with the other hospital; he replied that he did not see the October 2015 letter from the complainant to the Senior Doctor where the complainant set out his work for the respondent.

The HR Manager was asked what steps he took to measure the complainant’s attendance; he replied that it was difficult to see how this could be done as there is no clocking on. He accepted what the complainant said he was doing but if this is a complete attendance, it does not add up to 20 hours. It was put to the HR Manager that the complainant was also seeing respondent patients at his offices, so it was not just about the hours in the respondent; he replied that this was why the Senior Doctor was seeking to establish what the complainant was doing. There had never been a need to ask another consultant for this information.

It was put to the HR Manager that following the letter of the 16th December 2016 to say the contract was not being renewed, the representative body wrote on the complainant’s behalf; he replied on the 9th January, but he did not know what matters the respondent disputed even though this is stated in his holding reply.

In respect of the letter of the 20th January 2017, the HR Manager said that he was informed that all relevant staff were consulted but not told who was consulted. It was put to the HR Manager that the representative body had asked whether specific directors were consulted; he replied that he was advised by the Senior Doctor that all relevant staff were consulted.

The HR Manager said that there were questions about the performance of the contract, and they were waiting for information. He said that this did not engage the disciplinary process. It was in June 2016 that they questioned whether they were getting value for money. This changed everything and they had to review the contract in the light of these issues and the underlying funding issue. The HR Manager accepted that there was no reference in the December 2016 letter to the complainant not providing information or to the funding issue.

In re-examination, the HR Manager commented on the email of the 18th December 2015 and the reference to ‘value for money’ in the light of the complainant’s unique position of being contracted to work 70 hours per week.

Closing comments

The respondent submitted that the following could not be disputed: the complainant had a full-time contract with the other hospital. He has a 10.5 hour per week contract with the respondent and a contract for 10.5 hour per week with the third hospital. He also does 30 medico-legal reports per year. The complainant performs duties under the three state-funded contracts during the working week and says that he rarely works weekends.

This claim is about an additional 10.5 hours in the respondent which he says he is still doing but has been told not to do. He says that of the 70 hours per week he works, he is doing 10 of these voluntarily. It was the Senior Doctor’s evidence is that the complainant does no more than 10 hours. He does three Tuesdays in a month and calls to the respondent some Fridays. In a month, the complainant attends the respondent for 20 hours on Tuesdays and 4 or 5 hours on Fridays. This was an issue of credibility.

The respondent outlined that the representative had said that once a patient is discharged from the respondent and seen in the other hospital, the patient is a patient of the other hospital. It submitted that the billing issue and private practice are red herrings. The issue was whether credit was taken for seeing respondent patients in the other hospital, so double counting them. While the complainant said that pathology was a new element, this was not the case, as set out in the evidence of the consultant histopathologist. This may have become more formal, but the complainant was always involved in this role.

The respondent submitted that the part of Cork County Council v Sheehan relied on by the complainant was obiter. While the decision refers to different contracts, this is in the context of clearly distinct roles. In UCC v Nieuwstraten, the decision was that the extra duties were inextricably linked to the employee’s status as a permanent employee, even though they are distinct jobs in different departments. It submitted that the complainant was not doing anything different; there was no add-on as there had been with the previous case mix role. It submitted that there were not two separate contracts and the additional contract is only additional in respect of additional time, as set out in the submissions.

The employee in Conaty v Malahide Community School acquired a contract of indefinite duration and then applied for a different job where would be paid for the summer holidays and admitted to the pension scheme. The employee obtained this role on a fixed-term basis but did not keep this role for a second year. It was held that the employee had a permanent role and a waiver was needed to waive those permanent rights. The respondent submitted that the instant case was very different from Conaty v Malahide Community School as the complainant was not giving up a permanent role and was still permanent.

In respect of the Limerick City and County Council v Moran, the respondent submitted that the big distinction to this case was that the respondent was not getting value for money and the work was not being performed. While the complainant was competent, capable and committed while in attendance, the respondent cannot account for his work.

The respondent submitted that the complainant is not a fixed-term worker within the scope of the Fixed-term Work Act and there can be no dismissal. The complainant remains a permanent employee and continues to be employed by the respondent. The fact of providing two contracts is not determinative, for example the complainant’s business case proposal refers to developing the role. If a finding is made that the Fixed-term Work Act applies, the respondent submitted that the contract was not intended to prevent the accrual of a contract of indefinite duration.

The respondent submitted that a finding should be made whether the complainant is doing the hours and doing the full 21 hours, despite being told not to. Is he giving four hours of every day to the respondent and two hours every day to third hospital and eight hours every day to the other hospital? If there is doubt about this, it is inequitable to require the respondent to pay 10.5 hours per week for the last number of years.

The respondent submitted that reinstatement is not possible as the work is not being done and if it was done, it would be a breach of the Organisation of Working Time Act. The complainant was asked for information and would not provide this. It has been impossible to get information about when he does 20 hours of work a week for the respondent.

The complainant began providing medical services for patients of the respondent in 2001. Initially, this was run through his role at the other hospital, but from 2005, he was directly employed by the respondent. This was for three sessions per week and converted to a ‘Type A’ consultants’ contract in 2008. On the 1st June 2010, the complainant was issued with a permanent contract for these three sessions per week (pursuant to Haddington Road, this amounts to 10.5 hours a week). The contract is the standard document provided by the HSE and includes pro forma work schedule and performance reports, which measure time and attendance.

There was some discussion during the hearing about the nature and extent of the complainant’s commitments. In this regard, I note that the complainant works in a specialised field. It was common case that there are too few consultants engaged for size of the country’s population. The evidence indicated that the respondent and the other hospitals with which the complainant has a relationship sought to include his expertise in the service available to patients. It is fair to say that the complainant’s expertise is required when there is a deleterious outcome, resulting in deformity or death (I do not mean through negligence of any kind). This input is required by the patient and their family, but also by other family members.

Case mix

To note that between 2009 and 2012, the complainant also worked a separate ‘case mix’ contract with the respondent. This stipulated that he could not work for two other named hospitals during this project. It is not disputed that the case mix role was distinct to the clinical work undertaken by the complainant.

Negotiations to expand the complainant’s role

In 2012, the complainant wrote to the respondent to ask for additional sessions. He stated that he was working 18-20 hours per week for the respondent, above his then contracted hours. In his proposal of the 30th April 2012, the complainant identifies four areas to develop services: a referral clinic, attendance at the Tuesday meetings, expanded follow-up of new patients and regular, formal dialogue with the pathology department.

By letter of the 29th May 2012, the Senior Doctor said she had submitted the complainant’s application to the Finance Committee. She outlined that the Finance Committee had sought a breakdown of what the complainant did and how this would change if the additional sessions were approved.

In the email reply of the 19th July 2012, the complainant set out that he currently supported the respondent to a level of 18 – 20 hours per week and this was not sustainable. He proposed three additional sessions: one administrative, one library and one laboratory. He stated that he had provided a one-to-one on-call service to the respondent for a decade, which was not remunerated.

By letter of the 27th November 2012, the respondent approved the complainant’s application for additional sessional commitment. This was for one laboratory session, one library session and three clinical sessions. The letter refers to a new clinic and teaching sessions (both later discontinued). The letter suggests a review after one year (although there does not appear to have been any such review).

It appears from this correspondence that the additional sessions were to be added to the complainant’s existing commitment. There is no mention of the new hours being subject to a separate contract or to a fixed-term contract. By this stage, neither party had raised how the additional hours were to be configured in terms of a contract of employment.

The first reference to there being a ‘fixed-term contract’ is the contract provided by the respondent to the complainant in May 2013. The respondent letter of the 15th May 2013 does not itself refer to the contract being for a fixed-term, but states that this is in addition to the ‘permanent contracted 10 hours per week’. The enclosed ‘Type A’ contract had effect from the 1st January 2013. At clause 2a, the contract is explicit that it is for a fixed term to the 31st December 2013. It further cites ‘The Unfair Dismissals Act, 1997 – 2007 shall not apply to the termination of this contract where such termination is by reason of the expiry of the fixed term.’ On the 17th May 2013, the complainant signed the contract without issue.

The fixed-term was subsequently renewed by letters of the 14th January 2014, 16th January 2015 and the 21st December 2015. As set out above, the respondent terminated the fixed-term contract on the 31st December 2016.

It is clear that the parties negotiated and agreed to increase the complainant’s sessional commitment with the respondent. The respondent agreed to the complainant’s proposal. This additional commitment was configured as a fixed-term contract and not configured as the complainant now having one contract of 21 hours. The fixed-term contract was to have effect from the 1st January 2013 and was signed on the 15th May 2013. There was no specific negotiation about the use of the fixed term contract and no objection either. Similarly, there was no discussion or objection to the renewal of the fixed-term contract in subsequent years.

Nature of the contractual relationship

While there was no dispute regarding the fact the parties agreed to a fixed-term contract, there was significant dispute where the complainant was entitled to the protection of the Fixed-Term Work Act.

The complainant asserts that the second contract is a stand-alone fixed-term contract. He states that he has locus standi under the Act. The respondent categorises this second contract as ‘temporary’ and that it was inextricably linked to the first contract. It states that the complainant was not a fixed-term worker and did not have locus standi under the Act.

Whatever the differences between the parties regarding this second contract, it was not in dispute that the complainant acquired a contract of indefinite duration arising from the first contract. This was a contract for 10 hours per week (three sessions), later increasing to 10.5 hours per week following the HRA.

In 2012, the parties agreed that the complainant’s hours should increase to six sessions per week. The complainant presented a business proposal to this effect, and the respondent agreed to increase his weekly sessions, subject to review. As noted, there was no discussion or negotiation of how this increased hourly commitment would be configured. It took effect from the 1st January 2013. As noted, the contract issued in May 2013 and was configured as a separate, fixed-term contract in addition to the complainant’s existing commitment. This configuration was not disputed by the complainant and he signed the contract.

Of course, the increased hours could have been configured as an increase in the complainant’s hours to six sessions, with no separate, stand-alone fixed-term contract. The complainant’s contracted time commitment would then be six sessions.

Instead, it was the respondent who provided that the additional hours be subject to a separate fixed-term contract. The respondent does not say that the additional hours were subsumed into the complainant’s prevailing contract of employment (making him a part-time employee of the respondent on 21 hours per week). While not being subsumed into the first contract, the respondent outlines that the additional sessions are ‘temporary’ and ‘inextricably linked to the first contract’, meaning, it is submitted, that the complainant does not have locus standi under the Fixed-Term Work Act.

While the second contract is referred to as ‘temporary’, this is not set out in the contract and nor does any of the contemporaneous correspondence refer to it in this way. In any event, it was not temporary as it continued, and was renewed, over several years.

It is clear that the complainant had a fixed-term contract. This is what was stated in the contract and in the renewal correspondence. It was the understanding of the parties that the additional sessions were configured as a fixed-term contract and were not permanent.

The question is whether the fact of the complainant’s other permanent contract of employment with the respondent means that he is not entitled to avail of the Fixed-Term Work Act in respect of the second contract.

Locus standi under the Protection of Employees (Fixed-Term Work) Act

The respondent submits that the complainant does not have locus standi under the Fixed-Term Work Act as he is a permanent employee of the respondent, via a contract of duration acquired in the 2000’s. The complainant also has a permanent contract of employment with the other hospital, described in the evidence as ‘the main seat of his employment.’

The Act defines ‘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 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.’

The Act defines a ‘permanent employee’ as ‘an employee who is not a fixed-term employee’. The terms ‘fixed-term’ and ‘permanent’ are, therefore, binary.

Section 3 of the Act provides that the Minister may make Regulations, including to ‘make different provisions in relation to different classes of employees or employers.’ No such Regulations have been promulgated. Section 5 of the Act defines who is an appropriate comparator to the fixed-term employee. Sections 6 and 7 address conditions of employment and less favourable treatment of the fixed-term employee. Section 8 addresses the statements to be provided to the fixed-term employee. Section 9 limits the use of successive fixed-term contracts. Sections 10 and 11 address the information provided to, and consultation with, a fixed-term employee. Section 12 deems contracts which limit or exclude the Act as void. Given the broad definition of ‘penalisation’ in section 13, the section refers to ‘employee’, i.e. both the fixed-term employee in question and any comparator employee-colleague, who, for example, gives evidence on the fixed-term employee’s behalf.

The Fixed-Term Work Act, and the underlying Directive and Framework Agreement, do not prohibit the use of fixed-term contracts. Instead, the statute restricts less favourable treatment of fixed-term employees and ensures that this group of employees is given information and is consulted with. On top of this, the statute also prohibits the abuse of successive fixed-term contracts.

It is fair to say that the regulation of fixed-term work is a complex legal area (see de la Porte and Emmenegger ‘The Court of Justice of the European Union and fixed-term workers: still fixed, but at least equal’ European Trade Union Institute, 2016). The statute derives from a compact between employers and employees in the Framework Agreement. It is a delicate balance, where employers seek flexibility, while employees seek security.

This complexity is demonstrated by the delayed and varied transposition of the Directive. It is also demonstrated by the substantial litigation taken before the CJEU and at national level. The CJEU has taken a restrictive approach to clause 5, but a more expansive approach to clause 4. This complexity is also reflected in the Irish jurisprudence, one aspect of which is the locus standi question.

Margin of appreciation

The jurisprudence reflects that Member States have a margin of appreciation in implementing the Directive and Framework Agreement. This arises, for example, in the transposition of clause 5 (successive fixed-term contracts) and the scope of the statutory protection offered (see Sibilio v Comune di Afragola C-157/11 and Ville de Verviers v J C-483/19, both in respect of clause 2.2). I note that the Minister has the power to make Regulations regarding different classes of employees.

‘Conceivable scenarios’

In Cork County Council v Sheehan, the Labour Court held that an employee could not be both permanent and fixed-term in the same role, although accepted that it was ‘conceivable’ that an employee could have separate roles within the one employment, one permanent and one for a fixed-term. In the instant case, the complainant asserts that his situation falls within one of the ‘conceivable’ scenarios envisaged in Sheehan. I accept that this portion of Sheehan is obiter.

Fixed-term & permanent employment – acting up

There are several authorities where the claimant asserts they are a fixed-term employee while also have a permanent contract of employment with the same employer. In Burns v Dun Laoghaire Rathdown County Council, the employer supplied the employee with a document entitled ‘fixed-term contract’ for an acting-up position within the respondent local authority. When the employer sought that the employee return his former role, the employee understandably sought to rely on the fixed-term nature of the document provided by the employer and which he had duly signed. The Labour Court concluded that the employee did not have locus standi as ‘At no material time was his employment with the Respondent at risk or under threat’.

In essence, the Labour Court (and I, at first instance) held that this was not a fixed-term contract within the ambit of the Fixed-Term Work Act; the contract was properly related to the employee acting up to a more senior role and then returning to his permanent role. Reflecting the jurisdiction of the Labour Court set out in Kelly v Louth County Council FTD 1320, the employment relationship and the fixed-term contract were held not to be co-terminus as the employment relationship went beyond the fixed-term contract.

Kelly v Louth County Council also reflects that the Fixed-Term Work Act transposes the Directive, which in turn gives effect to the Framework Agreement. Applying the doctrine of proportionality, recital 16 provides ‘this Directive limits itself to the minimum required for the attainment of those objectives and does not go beyond what is necessary for that purpose.’ Recital 17 states ‘As regards terms used in the framework agreement but not specifically defined therein, this Directive allows Member States to define such terms in conformity with national law or practice as is the case for other Directives on social matters using similar terms, provided that the definitions in question respect the content of the framework agreement.’

The Labour Court recently held in HSE v Power FTD 201: ‘This Court draws from the Directive and recitals and the Framework Agreement, set as it is in the context of the Community Charter of the Fundamental Social Rights of Workers, that its protections are afforded to those employees whose relationship with their employer is co-terminus with the fixed term contract under which they are employed.’

Secondment

The above Irish cases are best described as acting up cases within the same employer. Raftery v Froebel College of Education is different as it concerned a primary school teacher seconded to an assistant principal role in the respondent teaching college. The Labour Court held that the claimant did not have locus standi as she had underlying permanent employment, albeit with another employer, and the secondment was supplementary to this.

The UK case of Denham v Midlands Employers’ Mutual AssuranceLtd [1955] 2 Q.B. 437 is a tort negligence case. The employee had been seconded from one employer to another and was electrocuted at work due to the negligence of his new colleagues. The question was which employer was liable for his estate’s claim. Halsbury’s Laws of England volume 39, page 1 states that, in respect of this precedent, there is a ‘note of caution’ to be sounded in applying tort precedents for the purposes of deciding who the employer is in employment law. The commentary states that while the terminology may be similar, the employer for the purposes of vicarious liability is not necessarily the same party in employment law. Denham v Midlands Employers’ Mutual AssuranceLtd is not cited in UK employment law as an authority for locus standi in fixed-term work claims.

In McComb v Belfast Education and Library Board [2011] NIIT 01251 10IT, the Industrial Tribunal concluded that the employee held a fixed-term contract and not a secondment. It was not satisfied that the employee still held a substantive post with another Library Board. It was also satisfied that her employment with this previous employer had terminated (this is the basis the Labour Court in Kelly v Louth County Council distinguished this judgment). According to the submissions appended to the judgment, the employer had, however, explicitly accepted that Ms McComb was a fixed-term employee and did not challenge locus standi. There was no controversy as to jurisdiction in McComb.

There was no such agreement in the related case of Pollock v Belfast Education and Library Board NIIT 01254 10I. Here, the employee submitted that he was not seconded as there was no secondment agreement or secondment policy, so that it followed he must be a fixed-term employee. Also, he had signed a new contract of employment and, therefore, this could not be a variation of his existing contract of employment. The employer argued that the employee retained his substantive post and was not a fixed-term employee.

In Pollock, the Industrial Tribunal held that the employee was a fixed-term employee, even though it finds ‘it will clearly be very difficult for the claimant to revert to his previous post’ and commented that the employer had not provided training to facilitate this return. It commented on the confusing terminology in the correspondence (for example, the employer’s repeated references to there being a fixed-term). It held that it did not accept that there was a consensual variation of the substantive contract. Not surprisingly, the employer applied for the judgment to be revoked, an application the Tribunal dismissed.

In truth, the McComb and Pollock authorities assist little either way. It is true that the Tribunal found that the employees were fixed-term employees, even though this remained contested in Pollock. There is little reasoning of the locus standi finding in Pollock and the emphasis was that it was unfair to require him to transfer back.

Atypical employment

UCC v Nieuwstraten concerned a lecturer who commenced as a permanent part-time lecturer in 2005 and then commenced a second lecturer role in a different department for a fixed-term between 2006 and 2009. When this second contract ended, the respondent paid the employee statutory redundancy but declined to pay her the enhanced terms that would be available to a permanent employee being made redundant. The employee sought to be paid the enhanced redundancy terms as not doing so would amount to less favourable treatment on grounds of being a fixed-term employee. The Labour Court held that Dr Nieuwstraten did not have locus standi as the extra duties she performed in the second contract were ‘inextricably linked’ to her permanent role.

UCC v Nieuwstraten differs from the other decisions quoted above as it relates to less favourable treatment while the others relate to an entitlement to a contract of indefinite duration. Direct effect applies to the former and not to the latter. Moreover, the latter group involve permanent, full-time employees seeking to avail of a fixed-term work claim to secure terms, salary etc of their acting up or seconded role – none were in danger of losing employment altogether. This differs from the situation in UCC v Nieuwstraten which is of a part-time employee (already an atypical form of employment) taking on a second lecturing role, but instead of being a permanent member of staff with two roles, she is permanent, part-time employee with an additional role configured as a fixed-term role. Also, the employment is UCC v Nieuwstraten related to a separate part-time role, in addition to her existing hours. Her employment was in danger as this role was terminated (for which she received statutory redundancy).

Intention of the parties

The contract of employment is at the centre of the employment relationship. The Labour Court has considered the intention of the parties in determining whether the contract of employment in question was subject to a fixed-term.

In Bell v Railway Procurement Agency FTD097, the Labour Court held ‘The search for intention should be conducted objectively by reference to what a reasonable person in the circumstances of the parties would understand to be their contractual rights and duties rather than subjectively by reference to what the parties thought they had agreed.’

In Hanniffy v Athlone Institute of Technology FTD 1117, the Labour Court held ‘The intentions of the parties to the contracts concluded in January 2008 must be ascertained from the language used in the contracts and from the circumstances prevailing at that time’, later citing the ‘ordinary and natural meaning’ of the language used.

Applying this jurisprudence and considering the evidence and the correspondence, there is no doubt that, in 2013, the parties intended to create a fixed-term contract for the additional 10.5 hours agreed. The respondent offered a document specifically stating that it was for a fixed-term, which the complainant signed. The parties engaged in correspondence at each renewal and the letter ending the engagement refers to the expiry in 2016 of the fixed-term.

Estoppel - ‘approbate and reprobate’

It is well-established that a party can be fixed with a legal position through their conduct. This arose in Hand v Football Association of Ireland FTD 143, where the claimant was held by the Labour Court to be an independent contractor and not an employee. The claimant had previously represented to Revenue that he was self-employed but then asserted to the Labour Court that he was an employee with an entitlement to a contract of indefinite duration. The Labour Court held that the claimant could not blow ‘hot and cold’ in respect of whether he was an employee.

This also arose in respect of whether a claimant was a permanent employee. In DIT v Cunning FTD 1326, the Labour Court held that the claimant could not deny the validity of the fixed-term contracts she had signed after 2009. It held that the claimant could not assert that she had acquired a permanent contract in 2009 when she had later signed fixed-term contracts in subsequent years.

Finding on whether work overlapped the contracts

There was significant conflict in evidence whether the work undertaken in the second contract could be distinguished from that undertaken under the first contract. The complainant asserted that they could be distinguished, while the respondent said that they could not.

I find that, in reality, it is artificial to segregate the work undertaken between the two contracts. As noted, the complainant asked for additional sessions as he was working more than the hours initially agreed. The April 2012 proposal sets out ways the complainant intended to develop the service. Some continue, for example the more formal relationship with pathology and the complainant’s contribution to autopsies. Others ceased. I accept that the complainant’s role became more involved and more formal following the agreement for additional sessions. I accept that he became more involved with the laboratory work and autopsies. However, as described in the evidence, it was more of the same, in terms of a specialist providing support to consultant colleagues and to the health services provided by a tertiary hospital.

The respondent asked that a finding should be made whether the complainant was actually doing the work he said he was doing, in the light of his commitments elsewhere. As I outline below, there was complete conflict between the parties on this question. The complainant and the two witnesses gave direct evidence of this work, including how this role will grow. The respondent gave evidence to the opposite, or at least, that it was not getting value for the additional hours.

It is not possible for me to come to a finding on this conflict. I note that the contract provides how time and attendance can be recorded. This documentation was not used by the parties. Also, I note that there was discussion over the years regarding the extent of the complainant’s work at the respondent. It is striking that the issues raised in the meeting of the 21st June 2016 where similar to those addressed by the complainant in his earlier letter of the 15th October 2015 and his subsequent correspondence of the 18th December 2017. I conclude that the parties have a different take as to the complainant’s productivity and that is all I should say of the conflict.

I find that separate pay roll numbers and pay slips arose because the respondent had configured the additional sessions as a separate fixed-term contract and not as an addition to the existing contract. I find that there is nothing more to be inferred into this as it is the administrative consequence of how the additional hours were configured as a separate fixed-term contract.

The question is whether these findings of fact mean that the complainant falls outside of the Fixed-Term Work Act in respect of the second contract.

Findings on jurisdiction

I find that the complainant has locus standi to bring a complaint under the Protection of Employees (Fixed-Term Work) Act. I make this finding for the following reasons.

First, the Act applies to fixed-term employees and in more limited circumstances, to employees generally (in some penalisation claims). Second, a fixed-term employee is defined as someone whose contract of employment is definite and not indefinite. The fixed-term worker is juxtaposed to the permanent employee whose contract of employment is indefinite. Third, neither the Act nor the underlying Directive address what happens when the employee has a fixed-term contract but also another permanent contract with the same or another employer. The jurisprudence has excluded from the ambit of the Act acting-up as well as those whose roles are inextricably linked.

I find that this is not an acting up along the lines of Kelly v Louth County Council, Burns v Dun Laoghaire Rathdown County Council or Power v HSE. Those cases involve a permanent employee taking on a more senior role for a limited time, although renewed on several occasions. Even if the parties signed a fixed-term contract, this was as much an acknowledgement that this was not a permanent change (I note that Power v HSE is under appeal to the High Court). As held, the fixed-term element was not co-terminus with the employment relationship.

The instant case is very different. It involves a part-time employee with a permanent contract. The parties agree to extend the hours. As noted, it appears that it was initially envisaged as an addition to the complainant’s existing sessions. It was configured, however, as a separate fixed-term contract and this was agreed to by the parties. This is not an employee acting up in a related role in the same employment, but an employee agreeing to work additional hours, and this was made subject to a separate contract. The additional hours are co-terminus with the fixed-term contract.

The presumption in the Framework Agreement and the Directive is that indefinite employment is the ‘general form of employment’. In this case, the parties could easily have agreed to add the hours to the complainant’s existing commitment. Instead, a fixed-term was used. This is flexibility sought by the employer in not initially agreeing to a permanent commitment to 21 hours per week. This accords with the balance at the heart of the compact between employer and employee in the Framework Agreement, but if it does accord, then the fixed-term employee must have locus standi to maintain a claim.

Not only is this situation different from the acting up situations in the jurisprudence, it differs from the decisions where roles were said to be inextricably linked. I make this finding notwithstanding the above finding of fact that the actual work was ‘more of the same’. I reach this finding because of the intention of the parties and a finding that the respondent should be fixed with the legal consequence of its actions. As noted above, it is clear that the parties intended that the additional hours be subject to the fixed-term. Applying the estoppel decisions, I find that the respondent should not be able to deny the existence of a fixed-term contract having proffered the document and renewed it so many times.

Of course, the ratio of Raftery v Froebel College of Education and the other Labour Court authorities are binding on this adjudication. I distinguish Raftery from the instant case as this case does not relate to secondment. Here, the additional hours were not covered by the permanent contract, unlike Raftery, which was a full-time teacher seconded to a full-time role elsewhere. I distinguish UCC v Nieuwstraten as the intention and conduct of the parties means that the contracts in the instant case are not inextricably linked. It was the intention of the parties in this case that the additional hours should not be configured as part of the permanent role and an estoppel is raised through the parties’ conduct to prevent this now being denied. As submitted by the complainant, I find that the instant case is one of the ‘conceivable scenarios’ envisaged in Sheehan.

I find that the complainant has locus standi arising from the binary juxtaposition of ‘fixed-term employee’ and ‘permanent employee’. When the parties agreed to increase his hours, this could have been configured in two ways: as an addition to his existing contract or as a separate, definite contract. If it is the latter, he must have locus standi. There cannot be a third category of employee, whose employment is neither definite, nor indefinite as this employee would fall between the stools of either form of employment. They would not be permanent, but also lack the protection afforded to employees who do not have indefinite employment.

Having made these preliminary findings of law and fact, I address each complaint in turn.

CA00011898-001 Unfair Dismissals Act

This is a complaint pursuant to the Unfair Dismissals Act. The complainant asserts that he was unfairly dismissed when his employment subject to the fixed-term was terminated by the respondent.

Section 2(2)(b) exclusion

In the first instance, the respondent seeks to rely on the exclusion to the Unfair Dismissals Act provided in section 2(2)(b) of the Act.

Section 2(2)(b) provides that a ‘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 of 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.’

Applying Conaty, section 2(2)(b) is a provision that should be strictly construed. It is a waiver of the Act and requires the employee’s informed consent to the waiver. Simons J. held that this informed consent was required at the commencement of employment. In the instant case, the employment commenced on the 1st January 2013 and the complainant only signed the contract in May 2013, i.e. did not indicate his consent to waive protection of the Act at the commencement of the employment. Second, I note that the complainant did not sign or give his informed consent to the subsequent renewals. They were renewal letters which referred to the wording of section 2(2)(b), but the complainant was not asked to sign the renewals.

It follows that the exclusion provided in section 2(2)(b) was not invoked in this case and the Unfair Dismissals Act applies to the ending of the complainant’s employment.

Locus standi

The respondent also raised whether the complainant had locus standi to bring a complaint of unfair dismissal, given that he had the permanent contract of employment. Of course, the complainant retained the other contract of employment and continued to be paid in accordance to it.

I find that the complainant has locus standi to bring the claim of unfair dismissal in respect of the termination of the second contract. As set out in these decisions, the parties agreed to increase the complainant’s hours, and this was configured as a separate, fixed-term contract. Had the parties elected to simply increase the complainant’s hours and add them to his prevailing 10.5 hours, he would not have an unfair dismissal claim because those hours were subsequently halved. (He might have a redundancy claim or perhaps a claim of constructive dismissal.) However, the parties agreed to configure these hours as a separate ‘contract of employment’.

The Unfair Dismissals Act sets out that a ‘dismissal’ is the termination of the ‘contract of employment’ of an ‘employee’ by their ‘employer’. All the required elements occur in this case. It is clear that the complainant had a fixed-term contract of employment commencing on the 1st January 2013, which was signed by the parties in May 2013. This continued until its termination on the 31st December 2016. It is clear that a separate contract of employment was created and subsequently terminated. I, therefore, find that the complainant has locus standi in respect of the termination of the second contract of employment.

Substantive finding

Section 6(1) of the Unfair Dismissal Act provides ‘the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.’ The onus is on the employer to show that there were substantial grounds to justify the dismissal.

I find that the complainant was unfairly dismissed by the respondent on the 31st December 2016. As outlined in detail in the section 13 finding, it is true that the respondent formed the firm view that the complainant was not discharging the duties performed under the second contract. It asked the complainant to justify his work. There was no investigation and no finding made against the complainant. The respondent did not avail of the provisions set out in the contract of employment, i.e. regarding time and attendance. It did not explore the complainant’s work, for example, with colleagues in the pathology department.

It is true that some of the initiatives proposed by the complainant at the outset of the second contract were discontinued (the on-site clinic and the lectures). One could therefore see the basis for a view that there was not sufficient work to justify the full second contract. This view could only be a basis for action once fair procedures were complied with. The complainant should have been informed of what was at stake and had the opportunity to present a right to reply and to have his reply heard.

The meeting of the 21st June 2016 played an important role in the evidence. The complainant and his representative attended to raise the type of contract he was placed on as well as payment for call. It quickly became apparent that the respondent wished to challenge whether the complainant was providing the duties required of him over the 21 contracted hours. The turning point of the meeting is the minuted statement by the Senior Doctor “I did not know that” in respect of how patients of the respondent were counted when seeing the complainant at his offices in the other hospital. It is fair to say that the meeting was somewhat confrontational. The complainant took umbrage at the suggestion he ‘harvested’ patients from the respondent to see them privately. There is absolutely nothing to show that the complainant charged privately for episodes of care provided to respondent patients.

I note the contents of the respondent’s letter of the 28th July 2016. This is a follow-on to the meeting of the 21st June 2016. The respondent first re-states its position regarding the contract issue raised by the complainant. Second, the respondent raises the complainant’s ‘private practice at [the respondent]’ and states ‘before I make any decision on this matter, I wish to understand the nature and extent of [the complainant’s] [respondent]-connected private practice.’ The respondent asks for information relating to respondent patients seen over the last 24 months. The respondent also asks for particulars of the complainant’s attendance at the respondent over the past 12 months. It is not clear what ‘decision’ is being referred to here.

As submitted by the respondent, the complainant did not reply to this letter, nor provide the information sought. As submitted by the complainant, however, the letter did not say that he was required to provide this information in the context of the possible termination of his contract. This may be the ‘decision’ referred to in the letter of the 28th July 2016, but this is not clarified in any subsequent correspondence or the letter of dismissal. In fact, the respondent letter of the 16th December 2016 simply stated ‘I wish to inform you that, as stated in my letter [the renewal letter of the 21st December 2015], these additional 10.5 hours per week will not continue and thus will cease on the 31st December 2016.’

There was correspondence regarding the complainant between the 28th July and the 16th December 2016. This did not, however, relate to any performance concerns regarding the complainant, but was correspondence between the respondent and the other hospital regarding formalising his working arrangement between the two hospitals. The complainant was not a party to this correspondence, and this is before the adjudication following the complainant’s data access request.

It is striking that there was no follow-up within the respondent or additional correspondence to the complainant after the letter of the 28th July 2016 and the meeting the previous month. One would expect correspondence to state what was at stake and for internal discussion of what work the complainant was doing, for example with pathology.

I accept that the complainant worked in many roles and there are only 24 hours in the day. I note that the multiple commitments arise because of the shortage of consultants in this specialised area and service providers wish to have this speciality available in-house as the service is required when there are deleterious outcomes or death (I do not mean through negligence of any kind). The complainant consulted with respondent doctors and clearly enhanced the role in pathology. I noted that he devised his own record keeping system to record the care given to respondent patients; the respondent did not provide its own records infrastructure even though it would own such records.

While the respondent formed a view on the complainant’s level of contribution, there was no process engaged to formally decide whether this view was supported by the facts. The consultants who gave evidence at the adjudication on the complainant’s behalf were not spoken to by the respondent to ascertain how much work they did with the complainant. It seems that the only exploration about the additional work in pathology took place at this adjudication. The complainant’s letter of the 17th October 2015 set out how he discharged his functions and any process in 2016 of whether or not this was sufficient should have addressed all the functions and roles identified in that letter.

The respondent has not set out substantial reasons to justify the complainant’s dismissal and I, therefore, find that he was unfairly dismissed.

Redress

I accept the respondent’s submission that the complainant did not mitigate his loss by seeking alternative employment to replace the 10.5 hours per week lost following the termination (although I note the complainant’s submission that he continued to work the additional 10.5 hours).

While I have made a finding of unfair dismissal, I do not award redress pursuant to this complaint. This is because I have made an award in respect of the penalisation complaint per section 13 of the Protection of Employees (Fixed-Term Work) Act. Section 18(1) of the Fixed-Term Work Act prevents an award of redress for penalisation and one for unfair dismissal. The section states: ‘If penalisation of an employee, in contravention of section 13(1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts 1977 to 2001, relief may not be granted to the employee in respect of that penalisation both under Part 3 and under those Acts.’ I have granted redress in one of the penalisation complaints and therefore cannot make an award of redress in this complaint.

CA00016519-001 Unfair Dismissals Act

This complaint was referred to the Workplace Relations Commission on the 22nd December 2017, citing a date of dismissal of the 31st December 2016. In accordance with section 8(1)(c) of the Unfair Dismissals Act, I dismiss this claim of unfair dismissal. First, it is a duplication of the complaint in CA-00011898-001. Redress can only be awarded per the Unfair Dismissals Act for a dismissal and as this is addressed in CA-00011898-001, there can be no other complaint. Second, it was submitted later than six months from the date of dismissal and the complainant has not shown reasonable cause that prevented the submission of the complaint within six months.

CA-00011898-002 Fixed-Term Work / penalisation

This is a complaint of penalisation pursuant to the section 13 of the Protection of Employees (Fixed-Term Work) Act. The complainant asserts that he was dismissed on the eve of gaining the entitlement, by operation of the law, to a contract of indefinite duration. As well as the locus standi point, the respondent asserts that it ended the contract because the work was not being discharged per the contract.

Section 13(1)(d) provides that penalisation occurs when the dismissal of the employee ‘is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).’

I accept that the respondent had concerns about whether it was getting value-for-money for the 21 hours contracted with the complainant. As outlined, the respondent raised its concerns with the complainant at the meeting of the 21st June 2016 and in subsequent correspondence. The complainant responded at the meeting and while he did not reply to the letter of the 28th July 2016, this was not explicit that the ‘decision’ might relate to the accrual of a contract of indefinite duration. There was no definitive conclusion to the issues raised by the respondent.

I make a finding of fact that the Senior Doctor said at the meeting that the complainant was harvesting private patients. I make this finding as this was the direct evidence of both the complainant and his representative. I note that the Senior Doctor and HR Manager could not recall whether the term was used. The issue of private patients is referred to in the minutes and discussed in the subsequent letter of the 28th July 2016. In these circumstances, it is reasonable to conclude that the term ‘harvesting’ was used in the meeting. I note that no evidence has been adduced of ‘harvesting’ and I find as fact that this did not occur.

The parties set out conflicting accounts of the work undertaken by the complainant. This divergence was replicated at the hearing with two witnesses giving evidence for the respondent and four for the complainant. It is not possible or appropriate for me to resolve this difference. Evidently, the complainant worked with respondent patients and grew the role in pathology. Other initiatives ceased. While the respondent formed the view that it was not getting value for the 21 hours, this was not substantiated with any investigation or process, for example by speaking with colleagues in pathology.

It is clear from the correspondence before and after the meeting of the 21st June 2016 that the respondent was conscious of the complainant acquiring a contract of indefinite duration by operation of the law. It was aware of what would happen if the complainant’s employment continued into 2017. It acted to stop this occurring. I accept that the respondent was concerned about the discharge of the complainant’s duties, given his other commitments. I do not accept that it has shown that it ended the contract wholly because of these concerns. I note the proximity in time between the termination of the contract and the accrual of a contract of indefinite duration. I note the absence of an investigation or process to confirm its concerns as fact. Instead, it acted to stop the contract of indefinite duration arising. It must be said that the complainant’s dismissal was, at least, partly connected with avoiding the complainant acquiring a contract of indefinite duration.

It follows that the complaint of penalisation is well-founded. In assessing redress, I note that the respondent initially segregated out the additional hours into the fixed-term contract, thereby, I surmise, making it clear the complainant’s permanent hours were not increased. In reaching this conclusion, I draw an inference from the contraventions of section 8 (set out in CA-00011983-002). No objective grounds were set out in the initial contract, nor any of the renewal letters. Funding was only mentioned in respect of a possible renewal into 2017.

The respondent had the benefit of the flexibility provided by a fixed-term contract and what the Framework Agreement means is that the employee should then have the limited protections afforded by the Directive and transposing legislation. In this case, I find that the complainant has locus standi arising from the intention and conduct of the parties, leading to an estoppel. I note that the additional hours were coterminous with the fixed-term.

As outlined above, I accept that the respondent had concerns whether it was getting value for all the contracted hours. I also accept that the complainant disputed the view taken by the respondent against him. Acting to prevent the accrual of a contract of indefinite duration is not a substitute for fair procedure in assessing performance. The respondent raised issues and asked for information, for example in the letter of the 28th July 2106. While the complainant did not reply, he was not aware that this reply would determine the future of the additional hours. Instead of embarking on a process to reach reasoned findings on these conflicted issues, the respondent acted to prevent the contract of indefinite duration arising. Those issues have not been addressed, but this contract has been ended and the other contract subsists.

In assessing redress, I note that the complainant has commitments in several healthcare settings, including the ongoing commitment to the respondent. I note that whatever questions there were over the complainant’s contribution, these questions should have been answered by a process and by findings. This clarity would have given the respondent the basis for action. Instead, the respondent raised its concerns but terminated the contract on the eve the contract of indefinite duration was to come into effect, obviating the need for the process to complete.

In setting out the terms of redress, I do not order the reengagement or reinstatement of the complainant pursuant to section 14(2)(c). The respondent has taken the view that the complainant’s contribution can be done within the confines of the subsisting permanent contract; this view is disputed by the complainant and by the two consultant colleagues who gave evidence on his behalf. I do not take issue with any of their evidence, but, ultimately, it is a matter for the respondent to decide how and to what extent to integrate specialist services, such as those provided by the complainant.

I make an order for compensation pursuant to section 14(2)(d) of the Act. In assessing redress, I note the approach of the Labour Court in Dublin Institute of Technology v Wogan FTD 164, where the Court had regard to loss of security of tenure as well as ‘non-pecuniary loss, inconvenience, expense (other than in respect of professional and legal expense which cannot be taken into account) and distress in consequence of the penalisation’. The Labour Court measured compensation at 133% of the claimant’s final annual remuneration.

In assessing loss that is just and equitable in the instant case, I note that the complainant would have acquired a permanent contracted entitlement to 21 hours per week. There is obvious pecuniary loss. There is also non-pecuniary loss, including loss and inconvenience. This arises because the respondent had taken the view initially that the complainant was harvesting patients and then that he was not performing his duties in full. If the contract of indefinite duration had come into effect, then the issue of whether the complainant was discharging 21 hours of work for the respondent could have been decided upon. Instead of fair procedures being applied and following their course, the respondent ended the contract. Included in the non-pecuniary loss is the lack of respect that this entailed. Serious issues were raised against a senior medical professional but never decided upon because the complainant was dismissed before the contract of indefinite duration came into effect. Taking these factors into account, I find that redress should be paid of €40,000 (measured as redress equating to 90% of his final annual yearly salary). This is compensation for a breach of a statutory right and does not constitute remuneration or arrears of remuneration.

CA-00016519-002 Fixed-term Work / penalisation

This is a complaint of penalisation pursuant to section 13 of the Protection of Employees (Fixed-Term Work) Act. The complaint was lodged on the 22nd December 2017 and relates to the complainant’s dismissal on the 31st December 2016. The complaint was submitted outside of the six-month period provided by section 41(6) of the Workplace Relations Act and the complainant has not shown reasonable cause for the late submission of the complainant. This is also a duplication of the complaint in CA-00011898-002, where an award of redress was made.

CA-00016519-004 Fixed-term Work / less favourable treatment

This is a complaint of less favourable treatment pursuant to the Protection of Employees (Fixed-Term Work) Act. The complaint was lodged on the 22nd December 2017. The complaint was submitted outside of the six-month period provided by section 41(6) of the Workplace Relations Act and the complainant has not shown reasonable cause for the late submission of the complainant. This is also a duplication of the complaint in CA-00011983-001.

CA-00016519-005 Fixed-term work / written statement

This complaint relates to compliance with section 8 of the Protection of Employees (Fixed-Term Work) Act in respect of both the initial contract and whether the complainant was informed of objective grounds at each renewal.

I have addressed this fully in CA-00011983-002. I found as fact that there was non-compliance with section 8. I also found that the dates of contravention were the date of commencement and the date of each renewal. The limitation period in section 41 of the Workplace Relations Act requires a complaint to be referred within six or at the latest 12 months of the date of contravention. The relevant dates of contravention are the 1st day of 2013, 2014, 2015 and 2016.

This complaint was referred to the Workplace Relations Commission on the 22nd December 2017, well outside the maximum 12-month period allowed by section 41 (even with reasonable cause being established). I formally find that the complaint is not well-founded.

CA-00016519-006 Fixed-term Work / successive fixed-term contracts

This is a complaint pursuant to the Protection of Employees (Fixed-Term Work) Act regarding the number of successive fixed-term contracts issued to him. The complaint was lodged on the 22nd December 2017. The complaint was submitted outside of the six-month period provided by section 41(6) of the Workplace Relations Act and the complainant has not shown reasonable cause for the late submission of the complainant. This is also a duplication of the complaint in CA-00011983-003.

CA-00011898-003, CA-00016519-003 and CA-00016519-007Payment of Wages Act

Eight complaints across the two adjudication files were made pursuant to the Payment of Wages Act. They cover different cognisable periods. The complaint references in this adjudication file are CA-00011898-003, CA-00016519-003 and CA-00016519-007.

The basis of the complaints is the complainant’s assertion that he continues to perform the duties covered by the fixed-term contract of employment and therefore should be paid for this work.

The respondent disputes the claims. It asserts that the complainant is not doing these duties, or not to the same extent. It asserts that it clearly informed the complainant not to work more than three sessions. This is highlighted in the correspondence in the early part of 2017 where the respondent, while acknowledging consequent ‘service constraint’, was clear that the complainant now held three and not six sessions per week.

As noted above, there was complete conflict between the parties as to what work the complainant was doing in the respondent hospital or with their patients. The complainant’s evidence, supplemented by the evidence of respondent consultants, was that he was doing more work than ever, and this would only continue. The respondent presented a different perspective, that the complainant was, at most, only doing the work covered by the permanent contract (for which the complainant is still paid).

The Payment of Wages Acts prevents an employer making unlawful deductions from the pay ‘properly payable’ to an employee. I note the conflict in evidence between the parties, but the question here is whether the pay was properly payable per the contract of employment. I find that the respondent terminated the contract of employment on the 31st December 2016. I note the respondent’s correspondence of the 18th and 20th January 2017 regarding the reconfiguration of the complainant’s sessions to three per week. They are clear that what is expected of the complainant is reduced. I note the letter of the 10th July 2017 which is clear that the complainant should not work the additional three sessions.

It follows that the complainant’s entitlement to pay per the fixed-term contract ceased following the termination of the contract on the 31st December 2016. The wages per this contract of employment are, therefore, no longer properly payable to the complainant. Their non-payment is not an unlawful deduction pursuant to the Payment of Wages Act. The complaints are, therefore, not well-founded.

For clarity, this finding has no impact on the wages due to the complainant per the permanent contract of employment. The complainant continues to work these sessions, for which the respondent continues to pay him for.

CA-00011898-001

I decide that the complainant was unfairly dismissed by the respondent and make no order for redress as I have made an order for relief in the penalisation claim in CA-00011898-002.

CA-00011898-002

I decide that the complaint of penalisation pursuant to section 13 of the Protection of Employees (Fixed-term Work) Act is well-founded and the respondent shall pay to the complainant redress of €40,000. This is compensation for a breach of a statutory right and does not constitute remuneration or arrears of remuneration.

CA-00011898-003

I decide that the complaint pursuant to the Payment of Wages Act is not well-founded as the wages were not properly payable to the complainant.

CA-00016519-001

I dismiss the complaint pursuant to the Unfair Dismissals Act as it was not submitted within six months of the date of dismissal and the complainant has not shown reasonable cause that prevented its submission within time. The complaint is also a duplication.

CA-00016519-002

I decide that the complaint of penalisation pursuant to the Protection of Employees (Fixed-term Work) Act is not well-founded as it was not referred within six months of the act of penalisation and the complainant has not shown reasonable cause for the late submission of the complaint.

CA-00016519-003

I decide that the complaint pursuant to the Payment of Wages Act is not well-founded as the wages were not properly payable to the complainant.

CA-00016519-004

I decide that the complaint of a contravention of the Protection of Employees (Fixed-term Work) Act in respect of less favourable treatment is not well-founded as it was not referred within six months of the date of contravention and the complainant has not shown reasonable cause for the late submission of the complaint.

CA-00016519-005

I decide that the complaint of a contravention of the Protection of Employees (Fixed-term Work) Act in respect of written notification is not well-founded as it was not referred within six months of the date of contravention and the complainant has not shown reasonable cause for the late submission of the complaint.

CA-00016519-006

I decide that the complaint of a contravention of the Protection of Employees (Fixed-term Work) Act in respect of successive fixed-term contracts is not well-founded as it was not referred within six months of the date of contravention and the complainant has not shown reasonable cause for the late submission of the complaint.

CA-00016519-007

I decide that the complaint pursuant to the Payment of Wages Act is not well-founded as the wages were not properly payable to the complainant.

Protection of Employees (Fixed-term Work) Act / locus standi

Section 8 / written notification

Section 9 / successive fixed-term contracts

Section 13 / penalisation

Section 14 / time limits

Section 18 / no double relief

Unfair Dismissal / section 2(2)(b)

Finding of unfair dismissal but no award of redress

Payment of Wages / properly payable