Complainant

Respondent

Parties

John  Morgan

Clare County Council

Representatives

Arek Muszynski, SIPTU

Keith Irvine, LGMA

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-00042721-001

26/02/2021

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

CA-00042721-002

26/02/2021

The Complainant commenced his employment with the Respondent on 1st October 2018 on a fixed-term contract for duration of 12 months.

The Complainant submitted his claim to the Director General of the WRC on 26th February 2021 contending that he was unfairly dismissed, was employed on successive fixed-term contracts without any objective grounds justifying the failure to offer a contract of indefinite duration and was not granted the contract of indefinite duration when he was entitled to same.

SIPTU on behalf of the Complainant submits as follows:

The Complainant commenced employment with the Respondent on 1st October 2018 as a General Operative on a fixed-term contract for duration of 12 months. His contract was extended by being informed by the foreman that he was going to be kept on, about two weeks before the expiry date of the first fixed-term contract, and another 12 months contract was supplied. The contract then was terminated on the date specified in the second contract. The Complainant had unblemished record of employment.

The Complainant contends that he was unfairly dismissed, was employed on successive fixed-term contracts without any objective grounds justifying the failure to offer a contract of indefinite duration (CID) and was not granted the CID when he was entitled to.

Legal arguments

“6.—(1) Subject to the provisions of this section, 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.”

In the Labour Court Decision FTD 112 Revenue Commissioner & Beary the Court stated: “In relation to the facts of the instant case Counsel for the Respondent correctly submitted that the expiry of a fixed term contract without its renewal is a dismissal “

Section 5 of 1993 Act states that in “a) determining if dismissal is unfair dismissal, regard may be had to the reasonableness or otherwise dismissal (whether by act or omission) of the employer in relation to the dismissal, b) the extent of the compliance of failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of the 1977 Act.”

SIPTU submits that this means that some sort of a hearing must occur at which the employee can plead his case and has right to appeal the decision. Upon dismissal of the Complainant the right to appeal was not offered.

SIPTU submits that no objective grounds for extending the contract were given to the Complainant other than “he would be kept on “. Section 8(2) of the 2003 Act provides that: “Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal”.

The Complainant’s fixed-term contract was renewed on one occasion without objective grounds given to justify the renewal and failure to offer contract of CID. In Labour Court Determination FTD 1235 Waterford City Council & Kennedy the Court stated that : “ It is clear from a plain reading of s.8(2) of the Act the requirement to inform a fixed term employee of the objective grounds justifying the renewal of his or her fixed-term contract carries a concomitant obligation to explain why a contract of indefinite duration is not being offered“ and citing in the same determination Dr Mohammed Khan vs HSE North Eastern Region [2007] “ On reading of the Section as a whole it is clear that it is intended to ensure that the employer definitively commits itself , at the point at which the contract is being renewed, to the grounds upon which it will rely if subsequently pleading defence under … Thus where an employer fails to provide a fixed-term employee with a statement in writing, in accordance with section 8(2), it is apt to infer, in accordance with Section 8 (4) of the Act … would be for the employer to prove the contrary “. 

Section 8(2) is an indispensable provision having regard to the purpose of 2003 Act to implement EC Directive 1999/70/EC which exists “to establish a framework to prevent abuse from the use of successive fixed-term employment contracts or relationships”. Indeed section 8(2) derives from the European Directive’s Clause 5, which is headed “Measures to prevent abuse“. In Levez v T. H. Jennings (Harlow Pools) Ltd [1999] I.C.R. 521 the Court of Justice of the European Union (“the CJEU”) stated that it “has consistently held that in the absence of Community rules of harmonisation it is for the domestic legal system of each member state to determine the procedural conditions governing actions at law intended to ensure the protection of rights conferred on individuals by virtue of the direct effect of Community law.” The CJEU went on to state that such “independence in procedural matters is subject, however, to two conditions. First, the rules of procedure laid down by domestic law for the exercise of rights derived from Community law must not be less favourable than those governing similar domestic actions.” That is the Community principle of equivalence. “Secondly, the procedural requirements for domestic actions must not make it virtually impossible, or excessively difficult, to exercise rights conferred by Community law.” That is the Community principle of effectiveness. The CJEU identified procedural rules in Levez when it stated that the “exercise of a Community right before the national courts must not be subject to conditions which are more strict (for example, in terms of limitation periods, conditions for recovering undue payment, rules of evidence) than those governing the exercise of similar rights derived wholly from domestic law.” The Advocate General went on to state that “in principle, it is for the national courts to ascertain whether the procedural rules intended to ensure that the rights derived by individuals from Community law are safeguarded under national law … comply with the principle of equivalence”. In Dominguez v Centre informatique du Centre Ouest Atlantique [2012] 2 C.M.L.R. 14 the CJEU addressed both the obligation on a national court to interpret national law to comply with Community law and the obligation on a national court to disapply a national provision which is in conflict with EU law. At paragraph [27] in relation to interpretation it stated that “it should be noted that the principle that national law must be interpreted in conformity with EU law also requires national courts to do whatever lies within their jurisdiction, taking the whole body of domestic law into consideration and applying the interpretative methods recognised by domestic law, with a view to ensuring that the directive in question is fully effective and achieving an outcome consistent with the objective pursued by it.” In following the principles above in Her Majesty’s Court of Appeal in Northern Ireland Chief Constable of the Police Service of Northern Ireland and Northern Ireland Policing Board STE10946 the Court stated “In adopting this approach the court is concerned with interpreting and not with amending the offending provision. By spelling out the words that are to be implied, it may look as if the court or Tribunal is “amending” the legislation, but that is not the case. If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the convention rights.”  In the same decision, the court also stated that any potential deterrents have to be considered in assessing the case: “Furthermore that any practice or omission of an employer that may potentially deter a worker … We also consider that all that is required is the potential to deter rather than proof of actual deterrence, see Lock v British Gas Trading Ltd [2014] ICR 813 at paragraph [21] of the judgment of the CJEU. “

SIPTU submits that the Complainant was dismissed on 30th September 2020 having almost two calendar years of employment. The dismissal was a calculated and premeditated action in order for the Respondent to avoid committing itself to the contract, and to deliberately avoid paying potential redundancy as a result. In that scenario to avoid liability under the Act, the employer used fixed-term contracts, to not commit itself to a contract of indefinite duration by relying on the clause stipulated in those two contracts that the Unfair Dismissals Act would not apply on the expiry of the contract. Albeit such provision on its own is not unusual, however in this case it was used to further dissuade the Complainant from pursuing an unfair dismissal claim or raising any questions. The decision to let the Complainant go at the time of the expiry of the contract was a very calculated decision, to the very last day, to ensure that maximum benefits were reaped by the Respondent, at the same time giving the Complainant no option to appeal the decision and to portray the contract as sound, and without any other commitments arising for the Complainant. All of these deterrents directly contravene the Act and the principle of Community Law as set out in the Directive. In fact, a contract of indefinite duration does not confer any special protection against the possibility of redundancy or dismissal. The employer would only be required to apply fair and objective criteria, as it should have been done in this case. The 2003 Act and the Directive were to established “to prevent abuse form the use of successive fixed-term employment contracts or relationships”. Unfortunately, a public sector employer, in the most egregious way abused the fixed-term status, to use it as leverage, failed to provide objective grounds for extending the contract and terminated the contract one day before the employee would have had two years of service. As a result, the Complainant was unemployed from 1st October 2020 until his successful appointment from the panel on 16th March 2021 and continues to be employed by the Respondent.

Remedy Sought:

Unfair Dismissals Act – SIPTU requested that the unfair dismissal claim is upheld, and the Complainant is reinstated. The Complainant had unblemished employment record and was perfectly suitable to continue in his role.

Protection of Employees (Fixed-Term Work) Act - In assessing the appropriate remedy, third party bodies are required to follow the judgment of the European Court of Justice in Case C – 14/83 Von Colson v Land Nordhein-Westfalen (1984) by ensuring that the sanction for breaches of European Community rights must be effective, proportionate and dissuasive. SIPTU submitted that the disregard for the important social rights conferred by the European Union, in this case were egregious.

8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is— (2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal. (3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act. (4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act— (a) that an employer omitted to provide a written statement, or (b) that a written statement is evasive or equivocal, the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

SIPTU asked that the Adjudicator declares that the Respondent, contrary to the provisions of section 8(2) of the Act, failed to inform the Complainant of the objective grounds justifying the renewal of the fixed-term contract and failed to offer a contract of indefinite duration. SIPTU asked, in line with the Act, that the Adjudicator requires the Respondent to pay compensation in the sum of €59,555.60 equivalent to 2 years’ salary.

In response to the Respondent’s submission, SIPTU confirmed that the Complainant was a fixed-term employee, it accepted that there was objective justification for using a fixed-term contract and confirmed that it did not dispute the justification of the second contract. However, SIPTU argued that due to the fact that the Respondent did not set out in writing the objective justification as required by Section 8 of the Act, the contract should be transmuted to CID.

Post-hearing the Complainant provided an undated letter confirming that he unsuccessfully applied for a position with a named company in October 2020.

SIPTU also furnished its calculations of the Complainant’s loss of earnings.

The LGMA on behalf of the Respondent submits as follows:

Preliminary matter:

The Respondent raised a preliminary issue in relation to the complaint CA-00042721-001 under section 8 of the Unfair Dismissals Act, 1977. The Respondent relies on Section 2 of the Acts:

“(2) This Act shall not apply in relation to – (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”

The Respondent submits that the Complainant’s second contract of employment (ending on 30th  September 2020) states at section 5 of that contract: “This is a fixed term contract of employment and therefore the provisions of the Unfair Dismissals Acts 1977-2015 will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term.”

The Respondent therefore contends that the Unfair Dismissals Act does not apply to the Complainant and as such the Adjudicator should not hear the complaint.

Substantive matter

Background

The Complainant interviewed for a temporary and permanent General Operative competition and was placed 34th on that panel in July 2017. He was appointed a Temporary General Operative on a 1-year fixed-term contract in the gardening section of the Respondent commencing 1st October 2018 and ending 30th September 2019.

The Complainant was subsequently appointed to a second fixed-term contract commencing 1st October 2019 with a finish date of 30th September 2020.

A subsequent competition for permanent and temporary General Operatives was held on the expiry of the 2017 panel with a new panel formed in November 2019. The Complainant applied for that competition but did not qualify for a place on the panel. There were 66 candidates on that panel.

The Respondent then received approval from the Department of Environment for the appointment of 12 General Operative Posts on 6th March 2020 and those posts were filled from the newly established panel. At that time there was 17 temporary General Operatives employed by the Respondent (including the Complainant) and 12 of those were appointed to permanent posts from their placing on the newly established panel and following the approval of those posts. The Complainant’s fixed-term contract ended on 30th September 2020, and he finished employment with the Respondent.

The Complainant is currently employed by the Respondent having applied for another competition, General Operative Driver 2. He was placed on that panel and was employed on a temporary 2-year contract starting 15th March 2021 until September 2023.

The Respondent’s position

The Respondent refers to the preliminary issues section above which conveys the Respondent’s position regarding the complaint CA-00042721-001 under the Unfair Dismissals Act.

The complaint, CA-00042721-002, under section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 states on the WRC Complaint Form “My employer failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration.”

The Protection of Employees (Fixed-Term Work) Act 2003 states:

8.—(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is— (a) arriving at a specific date, (b) completing a specific task, or (c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act— (a) that an employer omitted to provide a written statement, or (b) that a written statement is evasive or equivocal, the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

The relevant Contract of Employment in relation to this complaint issued on 1st October 2018.

In relation to 8(1) of the Act it is stated at section 5 of the contract that the contract end date is 30th September 2020.  In relation to 8(2) of the Act, the objective grounds justifying the renewal of the Contract were noted at Section 5 of the Employment Contract where it was stated “You are engaged on a Fixed Term Contract for the…delivery of the Gardening Works Programme 2019/2020.”

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

The decision of the High Court in Russell v Mount Temple Comprehensive School [2009] IHEC 533 is authority for the proposition that the existence of objective grounds is to be judged by reference to the circumstances pertaining at the time the contract is concluded.

Since the decision of the CJEU in case C-212/04 Adeneler and Ors. V Ellinikos Organismos Galaktos IRLR 716 it is settled that the concept of objective grounds must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts. In applying that test the CJEU, in Adeneler and again in C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis 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. “In those circumstances, the concept of ‘objective reasons’ for the purposes of clause 5(1)(a) of the Framework Agreement must, as the Court has already held, be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable, in that particular context, of justifying the use of successive fixed-term employment contracts. Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State (Adeneler and Others, paragraphs 69 and 70; Case C-307/05 Del Cerro Alonso [2007] ECR I-7109, paragraph 53; and order in Vassilakis and Others, paragraphs 88 and 89).”

The Respondent is satisfied that there were precise and concrete circumstances for offering the Complainant a fixed-term contract. The circumstances pertaining at the time were that the Respondent was required to carry out the Gardening Works Programme for the 2019/2020. The Respondent already employs a core workforce to deliver its Gardening Works Programme and each year, depending on funding, projects and resources, the Respondent supplements this core permanent workforce with a varying number of additional temporary workers in order to complete the programme planned for the year ahead. There was a clear need for a short-term arrangement. There was no fixed and permanent need for the work the Complainant was undertaking, and the Respondent is satisfied that it meets the requirement of a temporary and transient need.

The volume and substance of the role in which the Complainant was engaged did not constitute an on-going permanent role within the Respondent’s structure where these needs were already met with permanent employees and the employment of the Complainant was to supplement the transient and varying needs for the annual Gardening Programme.

The decision of the High Court (per Hanna J.) in Russell v Mount Temple Comprehensive School provides clear authority for the proposition that the existence of objective grounds justifying the renewal of a fixed-term contract is to be judged at the commencement of the impugned contract. The contract that commenced on 1st October 2019 is the alleged impugned contract.

The ECJ has developed a test of ‘objective justification’ in Bilka-Kaufhaus GmbH v. Karin Weber von Hartz, Case 170/84, (1984) ECR 1607. The test states that the measure must firstly answer a “real need” of the employer; secondly the measures must be “appropriate” to meet the objectives which the employer pursues and finally the measure must be “necessary” to achieve that objective.

Legitimate objective

In the instant case the Respondent had a real need to fill a fixed-term position to supplement its permanent staffing for the 2019/ 2020 Gardening Works Programme. The Respondent is satisfied that on the facts of this particular case, the fixed-term status is justified by a legitimate objective and the means chosen for achieving that objective correspond to a real need on the part of the Respondent.

Are the means chosen appropriate?

The CJEU in Lommers v. Minister Van Landbouw, Natuurbeheer en Visserij [2002] IRLR 430 stated that when seeking to derogate from individual rights, due regard must be had to proportionality which requires such derogation to be appropriate and necessary. The High Court in the case of H.S.E. v. Umar [2011] IEHC 146 found that the 2003 Act seeks to do exactly that by providing for an exception where there are objective grounds justifying the renewal of a fixed-term contract. The Respondent offered the fixed-term contract to support the completion of its 2019/2020 Gardening Works Programme.

Are the means chosen appropriate and necessary?

In the instant case the specific role for which the Complainant was employed was never going to exist beyond the life span 2019/ 2020 Gardening Works Programme which was finite. The Complainant was aware when applying for the post that it was directly linked to the specific activity associated with the specific programme set out. It is submitted that there is no other or less onerous basis available in practice by which the Respondent could achieve its objective other than by the use of fixed-term contracts.

Objective Grounds Justifying the Renewal of a Fixed Term Contract

The Protection of Employees (Fixed-Term Work) Act 2003 states:

8.—(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act— (a) that an employer omitted to provide a written statement, the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

The Respondent asserts that the legitimate reasoning for its objective grounds is that the Respondent employs a permanent core workforce to complete its Gardening Works Programme each season. However, depending on funding, resources and the level of work in the varying programme it supplements this permanent workforce with additional temporary workers to support the varying and transient requirement of that year’s Programme.

The Respondent assert that this is the objective grounds justifying the renewal of the Complainant fixed-term contract within the meaning of s.7 of the Act and that Section 8 of the Act is therefore complied with.

The Respondent refers to Health Service Executive V Sallam [2014] IEHC 298, where Baker J. said that, as a matter of law, a failure by an employer to comply with the requirements of sub-section 9(4) did not of itself mean that no objective justification exists. A failure to provide a written statement was merely a factor that may be taken into account in coming to a determination as to whether the objective condition did, as a matter of fact, exist at the date of renewal. She added that the terms of subsection 8(4) required an Adjudication Officer or the Labour Court to “engage in the exercise of considering the circumstances and the equity and justice between the individual parties before it comes to a conclusion or draws an inference from a failure under s. 8”.

In University College Dublin V McConnon FTD 23/2014 the Labour Court has ruled that a breach of section 8 although giving rise to an adverse inference, did not automatically result in a fixed-term contract being deemed to be one of indefinite duration. In that case, it held that had the legislature intended that a failure to comply with s.8 would produce such a result, it could easily have said so in express terms by creating an irrebuttable presumption that a failure to state the objective grounds meant that none existed.

In Board of Management of St. Josephs School for Deaf Boys V Grehan [2015] IEHC 605 Noonan J. noted that s. 8(4) empowers an Adjudication Officer or the Labour Court to draw inferences from an employer’s failure to provide a written statement or the provision of one that is considered to be evasive or equivocal. He continued “An inference cannot however be drawn in a vacuum and must have regard to the evidence and the facts which such evidence establishes in a given case…”.

The Respondent asserts that there was objective justification to the provision of the fixed-term contract. The reasons as stated meet the requirements of both section 8 and section 7 of the Act in that they sought to achieve a legitimate objective of the Respondent i.e. supplementing the Respondent’s permanent workforce in relation to its changing, variable and transient temporary needs for the Gardening Works Programme for the period 2019/ 2020. The Respondent also asserts that in this case the use of successive fixed-term contracts was a proportionate means of achieving that objective and that those objective grounds were present and operating in the mind of the Respondent at the time that the Contract was put in place.

The Respondent understands that the Complainant is seeking to be appointed on a Contract of Indefinite Duration in relation to his contract beginning on 1st October 2019. This contract is the Complainant’s second successive contract, and the total aggregate duration of those contracts are two years.

The Protection of Employees (Fixed-Term Work) Act 2003 states:

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

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

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

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

The only section of the Act that can transmute a fixed-term contract into a Contract of Indefinite Duration is section 9 and in the current complaint section 9 does not apply where the aggregate duration of the contract is less that that required under section 9(2).

In the current complaint the Complainant is seeking that his contract is transmuted retrospectively into a Contract of Indefinite Duration. The Respondent is of the view that there is no basis for this in circumstances where the Complainant was employed on a fixed-term contract for the objective grounds specified previously.

Conclusion

The Respondent requested the Adjudicator to consider its preliminary submission in the first instance and dismiss the complaints accordingly. The Respondent also asserted that it has fully complied with sections 7 and 8 of the Protection of Employees (Fixed-Term Work) Act 2003 and there is no ability under section 9 to transmute the contract into one of indefinite duration where the aggregate duration of the contracts are less than 4 years and asked that the Adjudicator dismiss that complaint also.

I have carefully considered the submissions of the parties and all evidence presented to me.

The factual background to this case is not materially in dispute and can be summarised as follows: -

The Complainant commenced employment with the Respondent on 1st October 2018 as a General Operative pursuant to a fixed-term contract. The contract was subsequently renewed and on 23rd September 2019 the Complainant signed a new fixed-term contract for the period from 1st October 2019 to 30th September 2020. Thereafter the Complainant’s employment was terminated.

I find that the initial fundamental issue is to determine the meaning and effect of the fixed-term contract, particularly the exclusionary clause, and whether the case falls under the exclusion at Section 2(2)(b) of the Unfair Dismissals Act which provides:

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

(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 its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid, …”

This subsection permits an employer to avail of a fixed-term or specified purpose contract and ensure that the Acts do not apply when the term expires or the purpose ceases.

Section 2(2)(b) of the Unfair Dismissals Act was considered by the Labour Court in the case of Malahide Community School v Dawn-Marie Conaty UDD1837. The Court set out the criteria for the application of Section 2(2)(b):

“In this case the Respondent sought to rely on the exclusion contained in s.2(2)(b) of the Act which permits the non-application of the protection of the Act to fixed-term contracts which have been executed strictly in accordance with four clear criteria set out in s.2(2)(b), namely: -

a) The contract must be in writing; b) The contract must be signed by or on behalf of the employer; c) The contract must be signed by the employee; d) The contract must provide that the Act shall not apply to a dismissal consisting only of the expiry of the fixed-term or the cesser of the specified purpose.

Section 2(2)(b) essentially allows an employee who wishes to accept a temporary employment arrangement from an employer to waive his or her rights to protection under the Act. In a situation where an employee is giving up what would otherwise be very valuable employment protection rights it is essential that the agreement clearly stipulates in writing what is being waived and that the parties indicate, through their signature, express agreement to it. These conditions must therefore be fully and completely satisfied.”

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

“In order for s. 2(2)(b) of the Act to apply the contract must be a bone fide fixed term contract. ‘A contract is for a fixed term when at the time it is entered into the date of commencement and of termination respectively are capable of being ascertain (Redmond on Dismissal Law p.533.)”

I have carefully reviewed the Contract issued to the Complainant. I find that the Contract was in writing and therefore in compliance with (a) above. The document was signed on behalf of the Respondent and by the Complainant in compliance with (b) and (c) above. The document had distinct commencement and expiry dates and contained the clause:

“This is a fixed term contract of employment and therefore the provisions of the Unfair Dismissal Act 1977-2015 will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term.”

Consequently, it is clear that the conditions necessary to render s.2(2)(b) of the Act effective were satisfied. On that basis the exclusion which permits the non-application of the Act did apply to the termination of the Complainant’s employment.

For the avoidance of doubt, SIPTU accepted at the hearing that the Complainant was employed by the Respondent under a fixed-term contract. SIPTU confirmed further that it did not dispute the justification of the second contract of 1st October 2019 and accepted that there was objective justification for using a fixed-term contract. Furthermore, there was no reasons for the dismissal put forward other than the expiry of the term.

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

In respect of the claim under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003, the Complainant asserted that he was employed on successive fixed-term contracts without any objective grounds justifying the failure to offer a contract of indefinite duration (CID) and was not granted a CID when he was entitled to same. SIPTU argued that by failure to comply with Section 8(2) of the Act, the Respondent “opted out” from the protections of the Act.

Section 8. Written statements of employer stipulates as follows:

“(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.”

There was no dispute that the relevant contract was renewed as of 1st October 2019. The Complainant referred his claim alleging breach of Section 8 to the Director General of the WRC on 26th February 2021.

Section 41 of the Workplace Relations Act provides:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

As the instant complaint was referred to the Director General of the WRC on 26th February 2021 which is clearly outside of the period of 6 months as per Section 41(6) and the extended period of twelve months as provided in Section 41(8) of the Act, I find that I do not have jurisdiction to inquire into the complaint in respect of Section 8 of the Act.   

While the Complainant’s representative did not rely upon Section 9 of the Act, he argued that the Complainant was entitled to contract of indefinite duration by operation of the Act, and I will address the matter for the sake of completeness.

The circumstances in which a fixed-term contract can be transmuted to one of indefinite duration can be found at Section 9 of the Act which provides:

“(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employeecompletes 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.”

It is noted that the Complainant’s continuous period of employment on fixed-term contracts was from 1st October 2018 until 30th September 2020. This employment history did not contravene Section 9 of the Act. Consequently, Section 9(3) cannot be relied on for the purpose of asserting an entitlement to a contract of indefinite duration.

I declare this complaint to be not well founded.

I find that the complaint under Section 14 of the Protection of Employees (Fixed-Term) Work Act 2003 has not been referred to the Director General of the WRC within the time limits provided for in Section 41 of the Workplace Relations Act. Accordingly, I have no jurisdiction to inquire into the complaint.

Fixed-term contract- renewal- objective justification