Complainant

Respondent

Anonymised Parties

An Employee

A Third level Institution.

Representatives

Frank Jones Irish Federation of Third level Institution Teachers

Peter Flood IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00035550-001

02/04/2020

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

CA-00035550-002

02/04/2020

The Complainant was employed by the Respondent under four separate contracts of employment.  In between the first two contracts and the last two contracts the Complainant took a break which ran from January 2013 to the end of April 2015. The two contracts prior to the break ran from December 2009 until the end of January 2013. The two contracts after the break ran from December April 2015 to until January 2020. 

The Complainant argues that there is an agreement across the public sector addressing redundancy which said agreement stems from a Labour Court recommendation. This agreement wasn't applied by the Complainant’s employer nor were any of the basic considerations when determining that a redundancy is to be effected. For example, the Complainant was never offered suitable alternative employment.

The Respondent’s submission states that the Complainant was made redundant after the first contract and received a redundancy payment.  Prior to this redundancy taking effect the complainant applied for a fix term role advertised by the Respondent. Following a competitive process, he was appointed to that role. In that regard the Complainant signed a contract on the 15th of June 2017 with a commencement date 1st of July 2017. The purpose of that contract was to oversee a project that had previously been awarded to the Respondent on the basis of an application that had been made by the Complainant sometime earlier. This particular project should have commenced immediately upon the Complainants first contract ending. However, there was a delay which was caused by the Respondent. That delay meant that the Complainant was technically out of work and off the payroll for a period of approximately one month between the two contracts. At the end of the first contract the Respondent did pay the complainant statutory redundancy.

The complainant argues that this break could not amount to a break in service as it would not be unusual for employees in the education sector to take unpaid breaks during the summer months.

His contract commencing on the 1st of July 2017 was for a period of 2.5 years and was subject to funding by a third party. There was no specific finishing date inserted into that contract. The Complainant notes that the Respondent has argued that the Complainant was working under a specific purpose contract and that had come to an end. The Complainant does not accept that the specific purpose contract under which he was working had in fact come to an end.

In relation to the Complainant’s Industrial Relations claim, he argues that his employment should not have come to an end and that there was ample opportunity to avoid the termination if the Respondent had engaged with the Complainant or his Union meaningfully. The Complainant rejected the offer of redundancy made at the end of his contract stating that he had earlier approached HR in relation to his contract of indefinite duration. The Complainant is of the view that he is entitled to one based on his employment history.

The Complainant received a response from HR in relation to his CID request which stated:

“From the analysis it has been determined that while you have sufficient service to be considered for a contract of indefinite duration under the protection of employees fixed-term work act 2003 the objective grounds provided to you and agreed upon by you are genuine”

Following receipt of that correspondence the Complainant’s union, on the 17th of February 2020, requested a meeting with the Respondent to discuss the matter of the Complainants CID. No Response was forthcoming. Two further reminders were sent to the respondent on the 9th of March and 30th of March. No response was received. The Complainant at that juncture had no option but to file a claim with the WRC in order to have his CID request dealt with. The Complainant notes that the respondent is now arguing that the complainant does not have sufficient service for a CID and points out that that argument is at odds with the previous correspondence received from HR.

The complainant is seeking reinstatement in line with Section 7 (1)(a) of the Unfair Dismissals Act and a recommendation that he is entitled to a contract of indefinite duration pursuant his industrial relations claim.

The Complainant is alleging that he was dismissed in breach of the Unfair Dismissals Act and furthermore that he is entitled to a contract of indefinite duration. The claim is rejected in its entirely.

These two complaints are in effect the same i.e. the Complainant was entitled to a CID by operation of the law and thus his employment could not be terminated as his role was a permanent one and remained in place after his dismissal.

The Complainant’s employment was terminated by reason of his fixed term contract expiring and the position was as a result then redundant.

He was employed in research roles under the Third level Institution Research Careers Framework on two separate fixed-term contracts.

He was made redundant after the first contract expired and received redundancy pay. Prior to this redundancy taking effect he applied for another fixed-term role advertised by the Third level Institution and following a competitive process was appointed to that role. 

Each of the Complainant’s 2 fixed-term contracts contained a clause exempting the termination of his employment from the provisions of the Unfair Dismissals where the termination was due to the expiry of the contract.  These contracts were signed by the Complainant and on behalf of the Third level Institution.

The Complainant had no entitlement to a CID by operation of the law as he had less than 4 years’ continuous service with the Third level Institution.

Contract 1 

The Complainant was successful in his application for Research Fellow post on Project 2015CCRP FS21 (i.e. Sourcing and assessing of agricultural activity data for modelling and national estimates of GHGs). The contract was funded by the European Protection Agency.  The contract was a specified purpose contract and finished on 30 May 2017.

The Complainant received, and accepted redundancy pay on the cessation of this employment contract.

Contract 2

The Complainant submitted an application on the 8th May 2017 for the post of XXX Research Fellow on the Project Irish Land Emissions and Sequestration Support Tool.  The role was for a period of 2.5 years. This project was funded by the Department of Agriculture, Food & Marine. 

He was interviewed for the post on June 7, 2017. He was successful in this application and issued with a specified purpose contract which commenced on July 1, 2017.

When this contract ceased the Complainant was offered redundancy pay but rejected this offer claiming that he had a CID with the Respondent.   

The Respondent has a Research Careers Framework in place. The 2 posts filled by the Complainant were Research Fellow posts.  This role is covered by the policy.

The Framework states:

“Research Fellow: A non-tenure early stage academic role providing the opportunity to pursue a specific project typically funded by the Fellow.”

Following post-Doctoral research, a person may apply for a Research Fellow post. 

The Third level Institution has an obligation to provide research opportunities for post-graduate and post-doctorate researchers.  It would become impossible to make these posts available to new applicants if it was required to give contracts of indefinite duration to those engaged in research projects.  Research Fellow posts are not career opportunities for any individual.  Such posts represent the final stage prior to someone entering a formal academic role or a highly specialised research role in industry.

The policy has been examined in detail by the Labour Court in a previous case under the Protection of Employees (Fixed-Term) Work Act. UCD v Alan O’Doherty FTD159.  The Court concluded that this policy objectively justified issuing fixed-term contracts rather than a CID in research roles for those covered by the Framework. 

Unfair Dismissals Act

The Complainant is alleging that his dismissal in February 2020 was a fabricated redundancy. This is rejected by the Respondent. The Complainant competed for and was appointed to his final contract with the Third level Institution.  The job advertisement clearly states that the contract was for a period of 2.5 years. The advertisement also stated:

“The role allows the Research Fellow the professional development opportunity to demonstrate the capacity for independent and self-directed research and scholarship and the management of a research team.  The role allows the Fellow to assemble a portfolio of independent achievement and render themselves competitive for tenured academic positions or senior scientific roles in industry”

The contract states that it is fixed-term and it also contains a clause expressly excluding the application of the Unfair Dismissals Act to the termination of the contract.  This contract is signed by both the Complainant and on behalf of the Third level Institution.  

The objective justification for issuing the Complainant with a fixed-term contract is set out as follows:

“It is a legitimate objective of the Third level Institution to provide Research Fellow opportunities with are limited in duration. This will allow for the progression over many years, of large numbers of research through the third level institution Research Fellow programme providing intergenerational research opportunities. The objective grounds for the issues of the specified purpose contract rather than a permanent contract is in keeping with the foregoing objective of the Third level Institution. In addition, an objective ground for issuing this specified purpose contract rather than a permanent contract is to enable the provision of specialist expertise so that Irish Land Use Emission and Sequestration support tool project can be completed. The specified purpose nature of this contract underpins a legitimate objective of the Third level Institution to provide temporary, specialist expertise to research projects to enable their completion”

The Complainant’s specified purpose contract came to an end and the role then ceased to exist.

Industrial Relations Act

The Complainant is alleging that he is entitled to a CID by the operation of the law.

As there is no such section in the Industrial Relations Act this appears to suggest that such an entitlement exists by operation of the Protection of Employees (Fixed-Term Work) Act, 2003.  This Act uses the Minimum Notice and Terms of Employment Act to determine continuity of service.

The Complainant does not have 4 years’ continuous service to qualify for a CID by operation of the fixed term workers legislation.

The Complainant only had continuous service of 2 years and 8 months.

After his first contract terminated on May 30, 2017, the role became redundant.

Continuity of service is determined by the First Schedule of the Minimum Notice and Terms of Employment Act, 1973.  This states that 

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by 

(a)         the dismissal of the employee by his employer 

The Act also states that 

“The continuous service of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by immediate re-employment of the employee.”

The Complainant was dismissed by reason of redundancy on May 30, 2017.  His second contract did not become effective until July 1, 2017. Thus, his continuity of service was broken in on May 30, 2017.

The fact that the Complainant applied for another role advertised prior to the ending to his first contract and to which he was appointed some weeks after his first contract terminated does not maintain continuity of his service.

The contracts were for different roles funded by different agencies.  He had to apply for the second role and attend an interview.  There was no commitment given by the Third level Institution that the Complainant would be appointed to the second role at the time of application.

In his application for the second role the Complainant stated: 

“With reference to your recent advertisement … I would like to be considered for the post of XXX Research Fellow.  I strongly believe my academic degrees, research experience and related skills will make me a proficient candidate for the said post.”

In his application he also stated

“Therefore, I hope that my candidature for the above post will be considered with a view to providing me a chance to work together in achieving the project research goals and contribute to academic and scientific excellence of the Third level Institution.”

This demonstrates that the Complainant saw the second role as different to the first role he had filled with the Third level Institution.  Nowhere is it suggested that he was already performing the role for which he was applying.

Under fixed-term worker legislation the Labour Court has examined the practice in universities, including the Respondent of employing academic research staff on fixed-term contracts and has concluded that it is objectively justified to ensure large cohorts of individuals with a Post-Doctorate have the opportunity to engage in research to progress their careers.

Furthermore, in the O’Doherty case the Court stated: 

“In considering the types of activities for which the conclusion of fixed-term contracts may be appropriate, the CJEU in Adeneler and again in C-380/Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Retheminis and Dimos Geropotamou (2009 ECR 1-3071, drew a distinction between work undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need.  While work in the former category would normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category.  This would include, for example, once-off project work which is temporary and non-recurring by its’ nature.” 

The project undertaken by the Complainant was of a temporary nature.

Without prejudice to this argument it is not the practice of the Respondent to move such research staff on to contracts of indefinite duration. This is to ensure research opportunities for others going forward.  To employ individuals in a similar situation to the Complainant in a permanent capacity would block opportunities for others.  If the Respondent was forced to employ such staff on contracts of indefinite duration, then it would not be possible to provide sufficient numbers with research opportunities for Post-Doctoral and Research Fellows into the future.  The Complainant benefitted from this policy just as others will in the future.

The Complainant’s case that by operation of the law he is entitled to a contract of indefinite duration is not supported by case law concerning the practice of employing Research Fellows on fixed-term contracts.

CA-00035550-001

The complainant is alleging that he is entitled to a contract of indefinite duration based on his service with the Respondent.  There are two relevant contracts the complainant is relying on. They are dated:

1st May 2015 to 30th May 2017 and 1st of July 2017 to 29th February 2020.

In relation to both contracts the role was advertised, the term and purpose of the contract was set out and the Complainant had to apply for the role in an open competition. Both roles were funded by different third parties.

Protection of Employees (Fixed- Term Work) Act 2003

9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

 In order to calculate the combined service over two or more contracts, it is a requirement of the Act that the original contract be “renewed”. That was not the case in relation to the Complainant.  There is no nexus between the Complainant’s first and second contracts. Both contracts were for specific but different purposes, both were funded by different third parties, both had different objectives and neither of them were guaranteed to the Complainant as the Complainant had to apply for the positions in an open competition. I also note that the Complainant accept a redundancy payment when his first of the two contracts came to an end. The gap between the first and second contract in those circumstances is not relevant and there can be no continuity of service in those circumstances.  It is on that basis that I find that the Complainant is not entitled to a contract of indefinite duration. As the Complainant has specifically sought a recommendation that he is entitled to a contract of indefinite duration I am declining to make such a recommendation.

CA 00035550 -002

This part of the decision should be read in conjunction with CA 35550-01.

The Complainant is alleging that he was unfairly dismissed from his employment with the Respondent. The Complainant’s contract of employment commenced on the 01.07.2017 and had a duration of 2.5 years. The complainant’s contract came to a natural end on the expiration of that contract. Furthermore, the contract itself specially addresses the issue of dismissal on the expiry of the contract.

S2 (2)  [ Subject to subsection (2A), this Act ] shall not apply in relation to—

(a) dismissal where the employment was under a contract of employment for a fixed term made before the 16th day of September, 1976, and the dismissal consisted only of the expiry of the term without its being renewed under the same contract, or

(b) 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.

I am satisfied that the sole reason for the dismissal was due to the natural expiration of his contact of employment. In those circumstances, I find that the complaint is not well founded and accordingly fails.

CA 00035550-01 The complaint is not well founded. For the reasons set out above I am not making a    recommendation.

CA 00035550 -02 The complaint is not well founded and accordingly fails.