ADJUDICATION OFFICER DECISION and

RECOMMENDATION ON DISPUTE

Decision / Recommendation Reference:  ADJ-00032588

Parties:

Complaint / Dispute:

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Date of Hearing:             03/08/2021

Location of Hearing:      Remote Hearing via Webex Platform

Procedure:

This complaint pursuant to Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 and dispute pursuant to Section 13 of the Industrial Relations Act 1969 were referred to the Workplace Relations Commission (hereinafter ‘WRC’) on 26th March 2021.  There was no objection to an investigation of this dispute by an Adjudication Officer of the WRC by the Employer under Section 36(1) of the Industrial Relations Act 1990.  Following delegation to me by the Director General, I inquired into this complaint and dispute and gave the Parties an opportunity to be heard and to present any relevant evidence.  I held a remote hearing on 3rd August 2021 pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S. I. 359/2020, designating the WRC as a body empowered to hold remote hearings. This complaint and dispute arise from the same set of facts pertaining to a fixed-term contract of employment, with alternative remedies sought under the Protection of Employees (Fixed-Term Work) Act 2003 and the Industrial Relations Act 1969 respectively.  The Complainant / Worker is entitled to anonymity in relation to the dispute but not automatically in relation to the complaint herein following introduction of the Workplace Relations (Miscellaneous Provisions) Act 2021, requiring hearings to be held in public and the parties’ names to be published in the absence of special circumstances.  Owing to the specialist nature of her work, the Complainant / Worker would be identifiable should her name be published within the decision and consequently lose her anonymity in relation to the dispute.  I therefore determine that, due to the existence of these special circumstances, information that might identify the Parties in relation to the decision should not be published pursuant to Section 41(14)(b) of the Workplace Relations Act 2015, as amended by the Workplace Relations (Miscellaneous Provisions) Act 2021.  As the facts material to the complaint were not in dispute, sworn evidence was not necessary.  All evidence, submissions and documentation submitted has been considered herein.

Background:

The Complainant / Worker, Ms A is employed by the Respondent / Employer (hereinafter also ‘the University’) on a three year fixed-term contract from 1st September 2019 until 31st August 2022 as a Lecturer / Assistant Professor of a Specialist Academic Area in a Department.  She maintained that the basis provided for the fixed-term contract was not legitimate as it had materialised that there was an ongoing requirement for teaching her Specialist Academic Area within the Department.  She sought a direction to the effect that she was entitled to a contract of indefinite duration (CID) under both the Protection of Employees (Fixed-Term Work) Act 2003 and the Industrial Relations Act 1969 as affording alternative remedies.  The University maintained there was no basis for seeking a contract of indefinite duration (CID) under either Act as the fixed-term contract was legitimate.

Summary of Complainant’s / Employee’s Case:

The Complainant / Worker, Ms A, gave evidence supplementing a written submission and supporting documentation outlining the circumstances giving rise to her complaint / dispute.  Her extensive qualifications and expertise within her Specialist Academic Area including a Doctorate was outlined. 

Following an open competition, on 1st September 2019, Ms A was appointed by the University on a three-year fixed-term contract of employment as a Lecturer/Assistant Professor in a Specialist Academic Area within a Department.  Ms A had no prior or existing employment with the University and this is her first fixed-term contract.  She moved to Ireland from another jurisdiction to take up the post. It is common-case that Ms A has contributed greatly to the development and success of new undergraduate and postgraduate modules within her Specialist Academic Area.  This has led to an increase of students in the area and she has been nominated for teaching and learning awards. 

Ms A took issue with the objective condition clause contained in the contract which provided: “The objective grounds for issuing a fixed term contract rather than a permanent contract is (to) provide Lecturer/Assistant Professor in (a Specialist Academic Area) to support ongoing work of (a Department) while a departmental review is completed.  It is anticipated that this review will be completed by no later than 31st August 2022 (3 years).”  She maintained that this was not a legitimate basis for her fixed-term contract as there was a continuing need for teaching in her Specialist Academic area within the Department based upon information subsequently learned.

Specifically, the Head of the Department in question had written to Ms A on 7th July 2021 as follows: “The module…, which you coordinate and teach, has enrolled 83 and 100 students in 2019/20 and 2020/21 respectively.  For 2021/2 the Department plans a new module at MA level on (a Specialist Academic Area) to support the MA in (a Specialist Subject).  The Department intends to continue teaching (this Specialist Area) at undergraduate as well as postgraduate level beyond 2021/2.” 

Furthermore, according to a document entitled ‘Advertise a Role : Replacement – Other – Form ID X’ furnished, which was prepared to justify the creation of this role, the reason for the post coming on-stream was the “Retirement of (An Associate Professor)”.  If this was the case, it was submitted that a contract of indefinite duration (CID) should have been created and/or granted from the outset.

At the outset and before she signed the fixed-term contract, Ms A said she was led to believe that her fixed-term contract would lead to a permanent position but has since been given reason based upon various uncontested conversations with the Head of Department and appointment of another suitable candidate to believe that will not be the case.  Hence, there will not be a meaningful review of her position such that there is any reality to her current position being made permanent and by the time the position is confirmed, she apprehends that her current contract will have come to an end.  It was submitted that it would be unfair that someone else might benefit from her hard work.

Submissions under the Protection of Employees (Fixed-Term Work) Act 2003

On behalf of the Complainant, Ms A, it is submitted that the objective condition given for determining her fixed-term contract “…is a generalised and unsubstantiated ground which flies in the face of objectives of the Protection of Employees (Fixed Term Work) Act 2003 and EU Directives (1999/70/EC).”  It was further submitted that the University is pre-emptively using fixed-term contracts so as to safeguard against the future risk of having too many permanent employees.  In this respect, reliance was placed upon the decision in National Gallery of Ireland -v- Coyne FTD1228 (5th September 2012) where the Labour Court was highly critical of such a practice stating: “A desire to avoid a contingent liability to the complainant that might arise at some point in the future could not in itself be a legitimate objective of an employer for the purposes of the Act…  Avoiding a legal liability to a worker is not a legitimate objective of an employer.”  In the instant case, the stated objective ground given does not correspond to a legitimate objective of the employer and is not appropriate and necessary to achieve that end, being to provide Lecturer/Assistant Professor in (a Specialist Academic Area) to support ongoing work of (a Department) while a departmental review is completed.”  Reliance was also placed on HSE North Eastern Area -v- Khan (FTD064) 2006 E.L.R. 313 where the Labour Court noted that as the Protection of Employees (Fixed Term Work) Act 2003 allows a derogation from an important social right it “…must be construed and applied strictly”.  The Labour Court relied upon a three-tier test analysed in detail in Inoue -v- NBK Designs Ltd (2003) E.L.R. 98 providing as follows: “The test requires that the court be satisfied that the reasons relied upon: (a) correspond to a legitimate objective of the employer; (b) are appropriate with a view to achieving the objective pursued, and (c) are necessary to that end.”, with (b) and (c) being founded on the well-established principle of proportionality in EU Law.  It was submitted that the University has failed to demonstrate that there is no alternative means (having a less discriminatory effect) by which a ‘departmental review’ could be achieved.  As evident from the University’s letter of 7th July 2021 above, there is an established and continuing requirement for the Specialist Academic Area of work which Ms A performs in the Department.  Therefore, the University cannot contend that the work being carried out by Ms A is temporary in nature and not a permanent need.  On this basis, it was submitted that Ms A was entitled to a contract of indefinite duration (CID) from the outset.

Submissions under the Industrial Relations Act 1969

It was not in issue that all internal grievance procedures had been exhausted before referral of this dispute to the WRC.  In support of the Worker, Ms A’s position, reliance was placed on the ‘Report to the Minister and Skills of the Chairperson of the Expert Group on Fixed-Term and Part-Time Employment in Lecturing in Third Level Education in Ireland’ by Michael Cush SC in May 2016 (aka ‘the Cush Report’).  The Report set out the arrangements applicable to fixed-term and part-time employment in third-level lecturing to redress overreliance upon such contracts in this sector.  He made seven recommendations that were accepted by all of the relevant stakeholders named therein.  Recommendation 7.1(i) reads: “I recommend that the qualification period for the granting of a contract of indefinite duration be reduced from a period of continuous employment in excess of three years to a period in continuous employment in excess of two years.”  It was accepted that this is subject to the existence of objective grounds such as covering a period of leave or where a subject is required to be taught for a finite period.  It was contended that neither applied to the instant case.

The Cush Report also addressed the mechanism for dispute resolution and Recommendation 7.1(vi) provides: “I recommend that the existing system of dispute resolution which pertains for the second-level sector and for the Institutes of Technology, whereby one individual is responsible for dispute resolution, be extended to the Universities.”  This is a fast-track system of adjudication which may be utilised as an alternative to the WRC.  Notwithstanding acceptance of the Cush Report, there is a difference in view between the sector representative body and IFUT as to whether the Cush Report applies to a first fixed-term contract and currently the process is not being utilised in such cases.

Furthermore, on 4th August 2017, the Department of Education and Skills (DES) issued a Guidance Note to the Universities on the use of fixed-term contracts.  This does not apply to lecturers as they are covered by the Cush Report which extended its recommendations to other grades.  Under the heading of ‘Department’s Position’, the Note reads: “The Department’s view is that in accordance with normal public service recruitment and retention practices, when appointing staff to what are normally considered permanent positions e.g. when permanent staff leave or retire, or when new vacancies are being filled, then such appointments should be made on a permanent basis.”  The final paragraph stated: “If there are fixed term staff currently appointed in posts which would be considered as permanent positions taking cognisance of the guidance contained in this note, then employers are requested to take immediate steps to regularise the position and offer permanent contracts to those staff affected.”  In this respect, it was submitted that Ms A should have been appointed under a contract of indefinite duration (CID) based upon the justification given.

Based upon the aforesaid and in line with the Cush Report recommendation, Ms A sought a direction to the effect that she is entitled to a contract of indefinite duration (CID).  This is either (1) from the second anniversary of her fixed-term contract being 31st August 2021 if it is found that the contract originally had a legitimate basis but now there is a requirement for teaching her Specialist Academic Area into the future or (2) if it is found that there was no legitimate basis for the fixed term contract from the outset, then a recommendation that she is entitled to a CID from the outset is sought.

Summary of Respondent’s / Employer’s Case:

It is common-case that following an open competition, the Complainant / Worker, Ms A was appointed by the University on a three-year fixed-term contract of employment as a Lecturer/Assistant Professor in a Specialist Academic Area in one of its Departments.  However, the University rejected Ms A’s position that the objective condition clause as cited above did not provide a legitimate basis for same.  It maintained its position that a Lecturer/Assistant Professor in a Specialist Academic Area was required to support the ongoing work of the Department while a departmental review estimated to take a three year period until 31st August 2022 is completed. 

The Head of Department confirmed any factual issues arising in respect of Ms A’s employment with the University.  The reference to the retirement of an Associate Professor as the reason for Ms A’s post coming on-stream in the document entitled ‘Advertise a Role : Replacement – Other – Form ID X’, justifying the creation of this role was clarified.  It was explained that because an Associate Professor in a different area had retired three years early, this freed up funding for an entirely new post, being Ms A’s position as a Lecturer/Assistant Professor in a Specialist Academic Area in the Department.  It was not in issue that Ms A had been informed that her contract was unlikely to be extended upon the expiration of the three year period and/or lead to a permanent position.  It was confirmed that in addition to the three year review, there was an annual review, with the next one being early Spring 2022 when he University expected to be in a position to appraise Ms A as to the continuance of and/or guise for the teaching of the Specialist Academic Area into the future.

Submissions under the Protection of Employees (Fixed-Term Work) Act 2003

The Respondent maintained that there was no legal basis for the Complainant’s contention that she is entitled to a Contract of Indefinite Duration (CID) under the Protection of Employees (Fixed-Term Work) Act 2003.  Section 9 requires at least two or more fixed-term contracts with an aggregate continuous employment in excess of four years and the absence of objective grounds justifying further renewal before it can be deemed to be a contract of indefinite duration (CID).  As the Complainant has only been issued with one fixed-term contract for a three year period that has not been subject to a renewal, it was submitted that there is no basis for this complaint under the Act. 

Submissions under the Industrial Relations Act 1969

The University also maintained that it would not be appropriate to recommend Ms A’s entitlement to a contract of indefinite duration (CID) under the Industrial Relations Act 1969 and/or as an alternative to the dispute mechanism provided under the Cush Report.  It is its prerogative to advertise and recruit posts on a fixed-term basis if the basis for same is legitimate and robust.  Departments regularly review the need for posts in particular academic areas based upon factors such as student uptake and the overall programme delivery.  If a need for a continuance for a post in a particular discipline is identified then the Department’s staff planning process will identify this. 

The Department in question also has a Strategic Plan for 2020-2024 which entails an annual review in the Spring of each year to take account of changing conditions e.g. student demand, staffing and research funding landscape.  The Plan references an intention to develop a new module in the Specialist Academic Area to support the Specialist Subject as confirmed in the letter to Ms A from the Head of Department dated 7th July 2021 as outlined above.  However, this intention does not equate to an obligation for the Department to convert Ms A’s fixed-term contract to a contract of indefinite duration.  The objective grounds relating to a departmental review is wholly consistent with the stated aims of the Department’s strategic plan.  If at the end of the three year review period, it arises that there is a need for further staffing resources either on a fixed-term or permanent basis then these posts will be filled through an open transparent competitive process and existing employees are welcome to apply for same.  Furthermore, it will not necessarily follow that any future requirements for the Specialist Academic Area will be one and the same as Ms A’s post.  In early Spring of 2022, the University will be in a position to confirm the future need for teaching the Specialist Academic Area to Ms A.  As a matter of good governance the University could not simply turn a fixed-term contract to one of indefinite duration without an open competition. 

Findings and Conclusions under the Protection of Employees (Fixed-Term) Work Act 2003:

The Protection of Employees (Fixed-Term) Work Act 2003 was introduced to give effect to Council Directive 1999/70/EC to ensure the application of the principle of non-discrimination and prevent abuse of successive fixed-term contracts.  It is common-case that the Complainant, Ms A is employed on her first fixed-term contract with the Respondent University.  It is also not in issue that the signed contract was for a three year period from 1st September 2019 until 31st August 2022 and contains the following clause: “The objective grounds for issuing a fixed term contract rather than a permanent contract is (to) provide Lecturer/Assistant Professor in (a Specialist Academic Area) to support ongoing work of (a Department) while a departmental review is completed.  It is anticipated that this review will be completed by no later than 31st August 2022 (3 years).”  Ms A contends that this was not a legitimate basis for a fixed-term contract as there is a continuing need for teaching in her Specialist Academic Area based upon the information subsequently coming to her attention as outlined above.  The University refutes this contention and maintains that the basis for the fixed-term contract is legitimate.  The University further submits that in any event, there is no statutory basis for Ms A’s complaint.  This is because two or more fixed-term contracts with an aggregate continuous employment in excess of four years and the absence of objective grounds are required to bring this complaint and seek a contract of indefinite duration (CID) under Section 9 of the Protection of Employees (Fixed-Term) Work Act 2003.  In this respect, it is necessary to set out the relevant provisions of the Act within which to assess the factual matrix adduced as follows:

Section 2 of the Protection of Employees (Fixed-Term) Work Act provides: “fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…”

Section 7 provides the definition of objective grounds for less favourable treatment as follows:

“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.

(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.”

Section 8 provides the requirements for written statements by employers for fixed-term contracts:

“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.”

Section 9 provides protection for employees subject to successive fixed-term contracts as follows:

“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.”

Section 14 provides for a decision of an Adjudication Officer and the available remedies as follows:

“14.  A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of this Act shall do one or more of the following, namely-

(a) declare whether the complaint was or was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

As set out aforesaid, Section 8 of the Act provides the requirements for a fixed-term contract.  Section 8(1) provides that a fixed-term employee is entitled to a statement in writing containing the ‘objective condition’ for determining the contract comprising of (a) arriving at a specific date, (b) completing a specific task, or (c) the occurrence of a specific event.  The meaning of ‘objective condition’ is also contained in Section 2 which provides that a “”fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event…”  Upon the first renewal of the contract, the fixed-term employee shall be informed in writing by the employer of the ‘objective ground/s’ justifying the renewal and the failure to offer a contract of indefinite duration (CID).  Section 9 provides protection for fixed-term employees with two or more contracts with an aggregate of four years or more continuous employment and provides that same shall be deemed to be a contract of indefinite duration (CID) unless there is objective ground/s for the renewal beyond that period.  Section 7 of the Act defines what is meant by ‘objective ground/s’ and essentially provides that the failure to grant a CID must be justified by achievement of a legitimate objective of the employer and such treatment must be appropriate and necessary for that purpose.

In the instant complaint, it appears that the ‘objective condition’ required to be in writing for any fixed-term contract under Section 8(1) of the Act is being conflated with ‘objective ground/s’ under Section 8(2) required to be in writing for second and subsequent fixed-term contracts.  As defined by Sections 2 and 8(1) of the Act, an ‘objective condition’ includes the arrival at a specific date.  It is not in dispute that Ms A is on her first contract with the University and that it is for a three year period from 1st September 2019 until 31st August 2022.  I am therefore satisfied that an ‘objective condition’ has been provided for determining Ms A’s contract, being the arrival of a specific date.  At this juncture, there is no statutory basis for assessing the legitimacy of the objective ground/s.  I therefore find there to be no basis for this complaint.  Although informative, the caselaw relied upon pertains to employees with successive fixed-term contracts and does not assist at this juncture.

However, it should be noted that reinstatement or re-engagement on a contract of indefinite duration (CID) is an available remedy under Section 14(2)(c) of the Act in respect of all complaints under the Act where found to be well-founded and is not confined to complaints under Section 9.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to this complaint and if found to be well-founded in accordance with the relevant redress provisions.  Based upon the aforementioned reasoning, I find this complaint not to be well-founded at this juncture.

Conclusions under the Industrial Relations Act 1969:

There is no doubt that Ms A is a highly qualified and experienced professional who has made an invaluable contribution to the development of her Specialist Academic Area within the University.  Unfortunately, it appears that she entered into the fixed-term contract herein in the expectation that it would become a permanent role and it has since materialised that may not be guaranteed.  However, she is still within her first fixed-term contract and based upon the objective ground/s provided for same i.e. that the role is to provide teaching support whilst the Department undertakes a three year review, it is not possible to assess whether this is borne out until the expiration of same.

I have also considered the Cush Report and do not intend to trespass upon same or the alternative dispute mechanism provided thereunder.  I have considered all of the evidence and submissions from both Parties and at this juncture, do not consider that matters have crystallised such that it would be appropriate to recommend that Ms A be granted a contract of indefinite duration (CID).  That does not rule out such intervention at a future point depending upon whether the objective ground/s provided for determining Ms A’s fixed-term contract stands up to scrutiny in due course.

Recommendation:

Section 13 of the Industrial Relations Act 1969 requires that I make a recommendation in relation to this dispute.  In keeping with its obligations under Section 10 of the of the Protection of Employees (Fixed Term Work) Act 2003, I recommend that the University keeps Ms A fully appraised of the need for teaching in her Specialist Subject Area and of any future opportunities arising so that she is afforded some certainty and security regarding her future career.  It is noted that the University will be undertaking a review by early Spring which will determine the continuance of and/or the guise for the teaching of the Specialist Academic Area within the Department.  I therefore recommend that the University writes to Ms A by 30th April 2022, confirming whether her fixed-term contract will be renewed and/or is likely to be advertised as a permanent position in whatever guise.  It goes without saying that Ms A should be treated with the utmost of fairness and transparency in any future competitions with the University that one would expect from an institution of its high calibre.

Dated:   7th February 2022

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Section 14 of the Protection of Employees (Fixed-Term) Work Act 2003 – Section 13 of the Industrial Relations Act 1969 – Distinction between ‘objective condition’ and ‘objective ground/s’