Complainant

Respondent

Parties

Alessio Caratti  O Garatti

Dublin Institute For Advanced Studies (Dias)

Representatives

Frank Jones 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-00044260-001

21/05/2021

The Complainant was employed by the Respondent as a Postdoctoral Researcher on a number of Fixed-Term contracts in the years 2014 to 2021.

The Respondentis an institute for advanced studies. It is a statutory independent body (corporation) reporting to the Oireachtas through the office of the Minister for Further, Higher Education, Research, Innovation and Science. 

A complaint was received by the WRC on 21 May 2021. A hearing took place in Lansdowne House on 24 May 2022.

In deference to the Supreme Court ruling, Zalewski v Ireland and the WRC [2021] IESC 24 on the 6th of April 2021 the Parties were informed in advance that the Hearing would be in Public, Testimony under Oath or Affirmation would be required and full cross examination of all witnesses would be provided for.

The Complainant provided a detailed written submission.

The Complainant submits that by reason of his employment history and the combined effect of sections 9(1), 9(2) and 9(3) of the Protection of Employees (Fixed-Term Work) Act, 2003 (the Act), he is entitled to a Contract of Indefinite Duration (CID).

By way of background the Complainant submits that until 1 October 2021 he was a postdoctoral researcher working at the School of Cosmic Physics with the Dublin Institute for Advance Studies (DIAS), the Respondent.  The Complainant also worked in the DIAS from 2009-2011.  He is now a permanent staff researcher at the National Institute for Astrophysics, Italy.

The Complainant is the author and co-author of more than 130 publications in the field of star formations and he has published in prestigious journals such as Nature. He is Principal Investigator and collaborator in more than 100 international research projects.

The Complainant submits that in addition to two previous contracts of employment with the Respondent, January 2009 to June 2011, he has been working with the Respondent as a postdoctoral researcher since November 2014, under three different contracts.

These three contracts ran as follows:

November 2014 to October 2016 – duration 2 years

November 2016 to April 2017 – duration 6 months

October 2017 to October 2021 – duration 4 years.

Referring to the Council Directive 1999/70/EC concerning the Framework on Fixed-Term Work, the Complainant submits that Clause 5 of the Framework Agreement places emphasis on contracts or relationships; “To prevent abuse arising from the use of successive fixed-term employment contracts or relationships…..”

The Complainant submits that notice must be taken of sections 9(1), 9(2) and 9(3) of the Act.

Section 9(1) provides that where a fixed-term employee completes or has completed his or her third year of continuous employment then his or her fixed-term contract may be renewed by the employer on only one occasion and that any such renewal shall be a fixed-term of no longer than one year.

Section 9(2) provides that, where a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts, the aggregate of duration of such contracts shall not exceed four years.

Section 9(3) provides that where a term in the fixed-term contract purports to contravene s 9(1) or s ((2) that term shall have no effect and the contract concerned shall be deemed a Contract of Indefinite Duration. This, the Complainant submits, can only be avoided where the employer can meet the onerous test of establishing objective grounds justifying the renewal.  In this case the Respondent has not put forward legitimate or any objective grounds to justify the renewal of the Complainant’s contract.

The Complainant submits that s 9(3) of the Act provides that once the four years threshold has expired then the fixed-term contract is transmuted into a contract of indefinite duration by operation of the law.

The Complainant submits that he has been continuously employed on three successive contracts in the Respondent Institution; the period between 30 April 2017 and 2 October 2017, does not constitute a break in the Complainant’s employment such as would undermine his entitlement to a CID under the Act.

The Complainant relies on the Department of Foreign Affairs v Group of Workers [2007] ELR 332 and Beary v the Revenue Commissioners FTD 112 (28 January 2011).

The Complainant submits that in the instant case he did not look for other employment during the period 30 April 2017 to 2 October 2017 as he was informally made aware by the Respondent that he would be employed on a new contract.  The Complainant kept his desk in the Respondent Institution, he continued to use the email facility provided by the Respondent and a laptop provided by the Respondent during this period.  The Complainant submits that during this period he continued to work on two projects in the Respondent Institute, projects he had been working on since 2014.  He was explicitly asked by the Respondent to continue working on one of the projects as there was a deadline approaching.

Asserts that he was led to believe in conversations with senior management that he would be taken back on.

In addition, the Complainant submits that he continued to supervise PhD students. 

The Complainant participated in three conferences as a member of the Respondent Institute, in Dublin (May 2017); Italy (June 2017) and at Maynooth University (September 2017).  The Respondent paid the Complainant’s expenses, travel and subsistence.  The Complainant submits that in or around July 2017, he was offered another position in another institution, which he turned down as he knew he would be re-employed by the Respondent.

The Complainant submits that he was not issued with a P45 in April 2017 and that it was only when he sought one on 20 June 2017 that one was issued to him.

The Complainant submits he was not paid redundancy money at the end of his contract in April 2017, this according to the Complainant is another indication that the Respondent had the intention of re-employing him.

The Complainant submits that a key principle emanating from the European and Irish case law is that successive contracts cannot be used to fill an ongoing permanent need of the employer.  The Complainant is not covering a permanent employee due for example, to sabbatical leave, sick leave or maternity leave.  The Complainant refers to (National University of Ireland Maynooth v Maynooth FTD 1411 (4 June 2014).

The Complainant asserts that the law is clear and it is a matter of fact that the Complainant has been continuously employed on three successive contracts in the Respondent Institution.  The nature of the employment, research, is core to the business of the Respondent.

Although employed elsewhere the Complainant is still looking for a CID from DIAS. He believes he is entitled to such a contract.

The Complainant provided a number of documents to support his claim.

In conclusion, the Complainant reiterates the assertion that the period 30 April 2017 to 2 October 2017 does not constitute a break in service such as would undermine an entitlement to a CID under the 2003 Act.  The Complainant reasonably believed he would be re-employed by the Respondent and this proved to be the case when he received a contract of four years duration on 2 October 2017.

The Complainant submits that by operation of the law, he has been working under a CID since October 2017 as the said contract extended his fixed term employment beyond the four years permitted by s9(2).  The contract commencing October 2017 transmuted to one of indefinite duration, by operation of s.9(3), with effect from that date. 

The Respondent provided a detailed written submission.

By way of background the Respondent explained that the DIAS was established in 1940, under the Institute for Advanced Studies Act, as the world’s second and Europe’s first institute for advanced studies. It is a statutory independent body (corporation) reporting to the Oireachtas through the office of the Minister for Further, Higher Education, Research, Innovation and Science.  Today it is a globally-embedded institution that attracts talent from all over the world to conduct fundamental research in three areas with a humanistic and scientific focus; Celtic Studies, Theoretical Physics and Cosmic Physics.

DIAS has two categories of staff. The first category is core (exchequer) funded permanent and temporary staff which constitute the Institute’s approved staffing complement and are subject to the Government Employment Control Framework.  The second category is externally funded Project Staff, employed on short fixed-term projects that are funded from research grants secured by DIAS from national and international funding agencies, following a competitive funding call process. Typically, these grants include provision for the salaries of a research team, which can include a mix of junior and researchers and PhD students. Staff employed on these projects are employed to work on the relevant funded project, under the terms of the funding call/grant terms and conditions, on a specific purpose/fixed-term contract. Members of the team may be employed for varying durations but their employment cannot extend beyond the date of the project.

Appointments of this nature are completely tied to the particular research award and the attaching employments terms are determined by the grant terms and conditions and approved budget.  DIAS is obliged to seek approval from its parent Department for these positions and must demonstrate to the Department that the full cost of the positions are met from the external grant and that the employment terms are in line with the terms and conditions of the award.  The numbers of this category of staff therefore fluctuates depending on the number of grants secured by DIAS. The above are the only scenarios where staff appointments can be made within DIAS.

The Respondent’s chronology of contracts tallies with that of the Complainant.

The Respondent denies that the Complainant was ever given assurances that he would be re-employed when his contract ended on 30 April 2017.  The Respondent accepts that the Complainant retained a desk, IT facilities, including his email address, went to conferences etc during the period on behalf of DIAS but only received expenses and was not remunerated for attending the conferences. Such arrangements are not unusual in this sphere. 

The Respondent denies the Complainant was supervising PhD student’s during the period in question.

Regarding the issuing of a P45 to the Complainant at the end of his contract in April 2017, the Respondent submits that a P45 had been prepared at the time with a cessation date of 30 April 2017 but had not been issued.

Regarding the non-payment of redundancy money to the Complainant, the Respondent submits that it was not aware at the time that there was an onus on it to pay redundancy in circumstances such as these.

The Respondent submits that it is normal for grant funded research fellows to work from grant to grant on foot of funding awards secured under national and international competitive funding programmes and the activity required on the grant.  The Respondent asserts that the Complainant is similar to the majority of fixed term contract post-doctoral researchers working throughout the third level and academic sector in Ireland. The Respondent submits that the Complainant was encouraged to make funding applications in his own name to seek to secure funds towards future research and employment for himself.  Such applications were made by the Complainant in February 2017 and a final one in March 2018 which were unsuccessful.  This, the Respondent contends, contradicts the suggestion by the Complainant that he was certain he was continuing his employment with DIAS on a CID from April 2017 if he sought funding for himself in March 2018 for this very purpose.

The Respondent submits that at no time when being presented with any of his fixed term contracts did the Complainant decline to sign them or raise any queries or objections to the contract being fixed term in nature; he only raised his objection while in the final year of his four-year term.

I have considered this matter very carefully.

This Act, which came into operation on 14 July 2003, gives effect to Directive 1999/70/EC of 1999, concerning the Framework Agreement on Fixed-Term Work concluded by ETUC, UNICE and CEEP.  The purpose of the Act is to ensure that the principle of non-discrimination applies to fixed-term workers, i.e., that fixed-term workers are not treated less favourably than comparable permanent workers.  It also seeks to prevent abuse resulting from the use of successive fixed-term contracts.

In this instant case I find that there are three significant areas of dispute between the parties, (i) the reason behind the lack of a redundancy payment, (ii) assertions that the Complainant was given informal reassurances that he would be re-employed and (iii) that he continued supervising PhD students during the period May to October 2017.  My findings in relation to these three points are as follows; (i) I accept the Respondent’s submission in relation to the non-payment of redundancy in 2017 (ii) there is insufficient evidence to support this assertion and (iii) although it seems there was contact between the Complainant and some PhD students there is not enough supporting material to indicate this was a formal arrangement carried out with the Institute’s imprimatur.    

Apart from the three areas of dispute listed above there is no significant material dispute concerning the factual background to the case.  However, there are differences between the parties in the interpretation of those facts.

The Complainant asserts that and puts forward documentary evidence to support his contention that he was involved in much the same work with the Respondent in the period April 2017 to Oct 2017 as he had been before that period and after that period.  He highlights the close relationship he maintained with the DIAS; email address, office, attending conferences etc. All these he contends indicate that although not in receipt of a salary he was so closely aligned to the Respondent that it is not rational to believe that DIAS had any other intention than to re-employ him when funding come through.

The Respondent asserts that although a relationship existed between the Institute and the Complainant during the period in question, the break between April 2017 and October 2017 was a definite break and cannot be used to justify the claim for a CID being made by the Complainant. The relationship between the parties during the period in question was one of mutual respect between the Institute and the Complainant, however he had a signed contract, and that contract included a specific date upon which the contract expired. The objective justification of ending the contract in April 2017, was simply that the required work had been completed, a lawful and valid reason for terminating the Respondent’s contract. 

The fact that the Complainant was only reappointed on foot of an open competition to a new post, based on a new grant, on 2 October 2017 is in the Respondent’s view is supportive of the Respondent’s argument that the break was a break sufficient to remove any doubt about the continuation of the contractual relationship.

The Law

 I refer to the Labour Court Determination No. FTD1318.  This case has similarities to the case in hand and I have considered it in my deliberations.  This Determination includes the following:

Labour Court Determination FTD1318

“The law The circumstances in which broken periods of employment can be regarded as continuous has been considered by this Court in a number of previous cases starting with the decision in Department of Foreign Affairs v Group of Workers [2007] ELR 332. The most recent decision in this line of authorities is that in William Beary v Revenue Commissioners [2011] 22 ELR 137.

In these cases the Court had to consider the apparent conflict between the language of Article 5 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC, (hereafter the Directive) and that of the Act, which was enacted to transpose the Directive in domestic law. While s. 9 of the Act is directed at preventing the unlimited use of continuous fixed-term contracts the objective of the Directive is to combat the abuse of successive fixed-term contracts. In that regard, at first blush, there appears to be a conflict between the language used in the Act and that of the Directive. As the Court pointed out in William Beary v Revenue Commissioners, while all periods of employment which are continuous are necessarily successive not all employment which is successive is necessarily continuous.

In William Beary v Revenue Commissioners the Court observed as follows: -

·       The relevant statutory provisions in that regard are to be found at s.9 of the Act of 2003 and in the First Schedule of the Minimum Notice and terms of employment Act 1973-2001. It is noteworthy that the marginal note to s.9 refers to “successive fixed-term contracts”. However under s.18 (g) of the Interpretation Act 2005 the marginal note is not to be regarded as part of a statute.

The section plainly refers to continuous employment and continuous contracts. However, s 9(5) makes it clear that what constitutes continuous employment is to be determined by reference to the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2001. It is well settled that where an Act provides its own definitions a Court should not look outside those definitions in ascribing meaning to word used in the statute (see Mason v Levy [1952] IR 40)

The First Schedule of the Minimum Notice and Terms of Employment Act 1973, provides as follows: - COMPUTATION OF CONTINUOUS SERVICE.Continuity of Service

1. 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 or

( b ) the employee voluntarily leaving his employment.

2. A lock-out shall not amount to a dismissal of the employee by his employer.

3. A lay-off shall not amount to the termination by an employer of his employee's service.

4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.

5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.

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

7. If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.

Computable Service

8. Any week in which an employee is not normally expected to work for at least twenty-one hours or more will not count in computing a period of service.

9. If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence shall count as a period of service.

10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—

( a ) a lay-off,

( b ) sickness or injury, or

( c ) by agreement with his employer,

such period shall count as a period of service.

11. If, in any week or part of a week, an employee is absent from his employment because he was taking part in a strike in relation to the trade or business in which he is employed, that week shall not count as a period of service.

12. If, in any week or part of a week, an employee was, for the whole or any part of the week, absent from work because of a lock-out by his employer, that week shall count as a period of service.

As the Court has previously pointed out, the fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless they are broken by dismissal or resignation. Thus successive periods of employment which are not continuous because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the word ‘continuous’ as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive.

Where employment comes to an end and there are reasons to believe that the cessation will not be permanent the break in employment can be regarded as a lay-off, which in accordance with the First Schedule does not break continuity of employment. In previous cases the Court was prepared to take a liberal view of what constitutes a lay-off in order to reconcile the apparent dichotomy between the wording of the Act and that of the Directive. There are, however, limits to which the language of the Act can be strained in order to achieve that objective.

In William Beary v Revenue Commissioners the Court held: -

The alternative and better approach is to construe the First Schedule of the 1973-2005 Act so as to produce the result envisaged by the Directive. In that regard it would seem that the concept of successive employment arises where a person is engaged to do the same job intermittently. Hence it could reasonably be said that where a person's employment is terminated because there is no longer work available for him or her to do, and it is envisaged at the time of the terminations that his or her service will be required again in the future, and they are in fact re-engaged, the employment could be regarded as continuous. This would be to adopt an extended and somewhat more liberal interpretation of the term “lay-off” such as was done in Department of Foreign Affairs v A Group of Workers [2007] E.L.R. 332. Whiles.11 of the Redundancy Payments Act 1967, which defines the notion of lay-off for the purposes of both that Act and the Act of 1973, requires that notice of the employers belief that the cessation of employment will not be permanent be given, the law has long accepted that notice can be actual, constructive or imputed.

Conclusions of the Court Adopting the rationale of the Court’s previous decisions on the point arising in this case the net question arising is whether, on 31stJuly 2011, the Respondent had reason to believe that the cessation of the Claimant’s employment would be permanent or whether it believed, as a matter of probability, that it would be resumed within a reasonable period. That is a question of fact and degree to be ascertained on all the available evidence.

It seems to the Court that in July 2011 the Respondent believed that the requirement for the Claimant’s services had come to a permanent end. Based on that belief the Respondent decided that her contract would not be renewed and that she be paid a redundancy lump sum. Based on what occurred at that time the Court is satisfied that the non-renewal of the Claimant’s contract in July 2011 constituted a dismissal and it could not be construed as a lay-off. The fact that the Claimant resumed employment with the Respondent some four months later, following an open competition, does not alter the Court’s understanding of the situation that pertained in July 2011.

Selecting from the Court’s Conclusions I focus on the question deemed to be at the core of the issue, “the net question arising is whether, on 31st July 2011, the Respondent had reason to believe that the cessation of the Claimant’s employment would be permanent or whether it believed a, as a matter of probability, that it would be resumed within a reasonable period. This is a question of fact to be ascertained on all the available evidence.”

So, the question to be asked in this instant case is whether on 30 April 2017, the Respondent believed, as a matter of probability, that the Complainant’s employment would be resumed within a reasonable period.

I believe they did and I believe this for a number of reasons.

 Firstly, and most tellingly, the relationship between the Complainant and the Respondent during the period 1 May 2017 to 1 October 2017 (and all the elements involved in the relationship), was extremely close, closer than would be expected of a relationship which was completely ended. The Respondent had a desk in the Institution’s offices, retained his work email facility and a laptop provided by the Institute.  He attended three conferences on behalf of the Respondent Institute in the period between the end of April and beginning of October 2017, with all expenses being met by the Respondent; the question arises, why pay the expenses of the Complainant for three conferences, one abroad, if it was not expected that DIAS would reap some reward at a future date.

Secondly, the Complainant had to look for his P45 on 20 June 2017.  Normally when an employee is leaving a P45 is (or was as the process is now changed) prepared in advance of the cessation date and issued on the cessation date or soon thereafter.  The fact that no P45 was issued until requested, some seven weeks post the cessation of the contract, undermines the Respondent’s position that the Complainant was finished with little probability of coming back.

Thirdly, here I refer to an email from the Complainant’s manager to an administrator in the organisation which states, “Alessio’s contract technically ends this week but the intention is to give him approximately 3 more months additional time working on MIRI between and the end of September. These 3 months however will have to be approved by the Department.  There may well be a break in his contract (e.g. for May and June depending on the timing of the Departmental approval.  It would therefore seem sensible to leave him with his account for the moment!” From my reading of this email, it would seem to me that there was no intention of absolutely ending the relationship; that the break was a technicality; that once funding was available, he would be coming back. 

Fourthly, the fact that the Complainant came through an open competition to win the employment contract available from 2 October 2017 indicates that he was the best person for the role all along and that the was surely in the minds of the Respondent’s principals in the period April to October 2017.

With regards to seeking funding I cannot see how the Respondent’s application for funding in March 2018 indicates that he did not believe in April 2017 that he was not going to be re-employed in October 2017.

For the reasons outlined above I find that the Respondent did believe on 30 April 2017, as a matter of probability, that the Complainant’s employment would be resumed within a reasonable period.

I find the Complainant is entitled to a Contract of Indefinite Duration with the Respondent.

The complaint is well founded.

Fixed-term contract, re-employment, Directive