ADJ-00032350

Complainant

Respondent

Anonymised Parties

Lecturer/Assistant Professor

University

Representatives

Frank Jones of Irish Federation of University Teachers

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00042843-001

04/03/2021

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

CA-00042843-002

04/03/2021

At the start of the hearing I explained the implications of a recent Supreme Court judgement in Zalewski v Adjudication Officer and WRC. This meant that in most cases WRC hearings are now held in public and decisions will not be anonomised. I also clarified that evidence should be taken on oath where there is a serious and direct conflict in that evidence. I told the parties I would be prepared to continue with the hearing without evidence being taken on oath but I would consider what to do if a serious and direct conflict arose.

I further explained, the judgement does not apply to disputes taken under the Industrial Relations Acts, which will continue to be held in private. Also, the requirement to take evidence on oath where there is a serious and direct conflict is not applicable. As this hearing dealt with overlapping complaints taken that are covered by the judgement and a dispute taken under the Industrial Relations Act I advised the parties that it was my intention to issue one decision/recommendation which would be published in an anonomised format.

Both parties confirmed they understood what I had said and that they were happy to continue with the hearing.

Protection of Employees (Fixed-term Work) Act 2003: the complainant submits he has been engaged without a break by the respondent since September 2013, under two contracts of employment. The first contract lasted 3.1 years and the complainant was titled Senior Power Systems Researcher. The second contract is for 5 years, from 1 September 2016 until 31 August 2021, and titled Lecturer/Assistant Professor in Intelligent Energy Systems. The two contracts bring the complainant beyond the four years required under section 9(2) of the 2003 Act and he is there entitled to a contract of indefinite duration, in accordance with section 9(3) of the 2003 Act and the current contract should be one of indefinite duration.

The respondent have given objective grounds why the current contract is for a fixed term but the complainant submits his role is required far beyond the five years. This is evidenced by a recent advertisement for a Lecturer/Assistant Professor in Electrical Power Systems which the complainant is well-suited to, and includes some of the same modules as his current role.

The complainant, therefore, submits the objective grounds cited are not genuine and he should be deemed to be under a contract of indefinite duration with effect from 1 September 2016, the starting date of the current contract. Or from 1 December 2017 the date he would have completed four years’ service with the respondent.  

Industrial Relations Act 1969: on 23 February 2021 the worker wrote to the respondent saying he considered he was entitled to a Contract of Indefinite Duration, in accordance with the Protection of Employees (Fixed-Term Work) Act and in line with the terms of the Report of the Expert Group on Fixed-Term and Part-Time Employment in Lecturing, aka the Cush Report. The Circular setting out the arrangements for the implementation of the report stated “The qualification period for the granting of a CID is reduced from a period of continuous employment in excess of three years with the same employer to a period of continuous employment in excess of two years with the same employer.”

The worker also states the employer failed to engage in the dispute resolution procedure in his case. They simply stated he had no entitlement to a CID as there had not been a renewal of a faculty contract. But this is not stated as a requirement in the Cush Report.

The worker says the employer is in breach of the recommendations in the Cush Report and in breach of the protocol agreed between the IUA and IFUT in relation to resolving disputes that arise.

Protection of Employees (Fixed-term Work) Act 2003: the respondent confirms the complainant was initially employed on a fixed term contract in the role of Senior Power Systems Researcher from 28 November 2013 until 31 December 2016. The objective grounds in the contract issued to the complainant outlined the requirements for a fixed term role to carry out tasks associated with a specific project that was finite, containing a stated end date for completion.

Following an open competition he was appointed to the post of Lecturer/Assistant Professor in Intelligent Energy Systems from 1 September 2016 until 31 August 2021. The objective grounds for this contract were underpinned by a temporary need of the School of Electrical and Electronic Engineering. The temporary basis for the post is illustrated by the confirmation by the school that since 2017 the expected growth in student demand in this discipline that would justify additional staff in the long term has not materialised. Currently the school has completed its strategic plan to 2026 and only two posts have been identified in the school. These will be advertised over the next two years and the worker is welcome to apply.

The respondent states the contracts issued to the worker do not constitute a violation of section 6 of the Protection of Employees (Fixed Term Work Act 2003. He has not been treated in a less favourable manner than a comparable permanent employee. The two contracts contain objective grounds that are legitimate and robust.

In relation to the allegation of a breach under section 9 the respondent says the two contracts did not represent a continuance of one contractual role. They were distinct roles containing separate objective grounds and there was no renewal.

The employer says Section 7 (1) applies, it states: “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.” As the two contracts were for different positions and were both for the purpose of achieving the legitimate objectives of the employer it is the respondent’s position that the conditions of an entitlement to a contract of indefinite duration did not accrue to the complainant.

Industrial Relations Act 1969: it is the employer’s position that the only change brought about by the circular referred to by the worker was the reduction in the period of continuous employment. It remains the clear intention that the recommendations arising from the Cush report apply where there is a renewal of a contract.

The employer says it did respond to the worker’s union representative when he put the issue to them on the worker’s behalf. The response affirmed what is in their submission in this case.

Protection of Employees (Fixed-term Work) Act 2003: The complainant has been employed without a break by the employer since November 2013, on two fixed-term contracts. The second of these is due to expire on 31 August 2021. The complainant says he has been employed on successive contracts for over four years and is therefore entitled to a contract of indefinite duration. The respondent says the contracts were not successive but were for two different positions, each of which were justified on different objective grounds.

The employer relies upon Section 7 of the Protection of Employees (Fixed-term Work) Act 2003 which states: “(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

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

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

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

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

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

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.”

I have considered all the evidence given to me and my conclusion is that in 2013 the complainant applied for a post and was given a three fixed-term contract. When this was coming towards its end, in 2016, he applied for another post and was successful and was given a five-year contract. He remained in the same school and there was an overlap in the contracts. However, it is quite clear to me that the posts were different; the first as a researcher and the second as a lecturer. In these circumstances I conclude that the first contact was not renewed. The second contract was for a different role and purpose. Therefore, the complainant does not qualify for a contract of indefinite duration.

Industrial Relations Act 1969: the intention of the Protection of Employees (Fixed-term Work) Act 2003 is to avoid workers being employed on a series of fixed-term contracts, thus remaining as a temporary employee and losing out on the conditions of employment of a permanent employee. The Cush Report and subsequent circulars established procedures to implement the legislation in the third-level sector. However, the procedures must come into effect after there has been a renewal of successive contracts, not simply based on duration.

As set out above I have concluded the worker does not have a right to a contract of indefinite duration and I cannot make a recommendation under the Industrial Relations Act that would contradict this.

In looking more broadly at this dispute I am aware the worker has been employed for seven and a half years in the same school and has nearly five year’s experience in the academic area. At the time of the hearing the employer had advertised a permanent post in the worker’s school, at the same level (Lecturer/Assistant Professor) he currently holds. There is some overlap between the courses in this post and the position currently undertaken by the worker. The employer says there are significant differences in the roles, which is why it has been advertised. Also, as it is a permanent role they have, in accordance with their usual practice, advertised the post in an open competition. The worker has applied for the role.

If the worker had been employed on a permanent basis in 2016 then he would now be in a position of being made redundant because of the changes in courses being offered by the employer or the employer would have considered how they could fit the changes in courses to the experience, qualifications and abilities of the worker. In the latter circumstances some level of assessment and recognition would, of course, be given to the worker’s experience, particularly in courses he has already lectured in that are continuing to be delivered and courses that have an overlap in their content.

I recommend that, as part of the competition for the new position, the worker is given appropriate formal recognition for his experience that is directly related to the position he has applied for.

I further recommend that the employer makes every effort to bring in a formal system to recognise experience of all workers on fixed-term contracts applying for permanent positions, where that experience directly relates to the new position.

CA-00042843-001: For the reasons given above I find the claim under the Protection of Employees (Fixed-term Work) Act 2003 is not well founded.

CA-00042843-002: Under the Industrial Relations Act 1969 I recommend that, as part of the competition for the new position, the worker is given appropriate formal recognition for his experience that is directly related to the position he has applied for.

I further recommend that the employer makes every effort to bring in a formal system to recognise experience of all workers on fixed-term contracts applying for permanent positions, where that experience directly relates to the new position.

Fixed term work – not successive contracts