Complainant

Respondent

Parties

Ravindranath Reddy  Manumachu

University College Dublin UCD

Complainant

Respondent

Parties

 Ravindranath Reddy  Manumachu

University College Dublin

Representatives

Barry Crushell  & Co. Solicitor

Peter Flood IBEC

Act

Complaint 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-00041082-001

17/11/2020

The complainant was employed as a research fellow on two or more successive fixed term contracts in continuous employment for a period of four years or more and contends that he is entitled to a contract of indefinite duration. This claim in turn is rejected by the University as there is objective justification for renewing his contract.

The complainant worked under the following fixed term contracts:

1.       Post Doctoral Research Fellow from 21st of September 2015 to the 20th of September 2017.

2.       Research Fellow from 21st of September 2017 to 20th of September 2019.

3.       Research Fellow from 21st September 2019 to 31st August 2020

4.       Research Fellow  from 1st September 2020 to run until 28th February 2021.

The complainant states that the respondent has failed to provide objective justification that is transparent and as required by section 9(4) of the Protection of Employees (Fixed-Term Work) Act 2003 as amended to justify their reliance on successive fixed term contracts. The respondent has fulfilled a number of duties and responsibilities such as teaching and administration and the essential nature of his work is no different to other permanent staff. There is an ongoing need for this work and the right to terminate the contract will not be  compromised. However, the complainant would be protected under Unfair Dismissal legislation and Redundancy legislation. By relying on the successive use of fixed term contracts the College is misusing the research fellow scheme in order to limit their liability under what in fact does exist: a contract of indefinite duration. The Respondent has been employed on two or more successive fixed term contracts  and has been in continuous employment for a period of 4 years  and more and was entitled to a contract of indefinite duration as the work is of a permanent nature and continues.

The College rejects the claim based on the fact that there are objective grounds and justification for renewing and finally ending the contract. The complainant was initially placed on a post doctoral research fellow contract which expired on the 20th September 2017. On the 21st of September 2017 a different fixed contract commenced when he was employed as a research fellow and ended on the 20th September 2019. He was issued with another research fellow fixed term  contract which commenced on 21st September 2019 and ended on 31st August 2020. On the 1st September 2020 another contract commenced to run until 28th February 2021. The renewal of these contracts were made within the UCD research fellow programme. The objective ground for issuing fixed term contracts is to provide intergenerational opportunities and to provide temporary, specialist research expertise to research projects to enable their completion.

The Labour Court has previously examined the UCD research careers framework in a case referred to it  under the Protection of Employees (Fixed-Term) Workers Act in UCD v Alan O’Doherty FTD 159. The Court determined that:

“Where the purpose of the Respondent’s development programme is to enhance the research skills and careers development of Post-Doctoral Researchers and is a genuine requirement of the University the conclusion of fixed-term contract in these circumstances can be justified on objective grounds notwithstanding that the work to which the contract relates forms part of the employer’s fixed and permanent needs.”

The Respondent maintains that his work expanded beyond research and also included teaching and administration. The College maintain that the experience provided is essentially related to research and some administration and teaching is required; as part of the development opportunity that a research fellow fixed term contract provides. However, at the heart of the programme is to provide fixed term opportunities to many academics overtime; that would seriously be undermined if the terms of such contracts were limited to under 4 years.

The Respondent relies on Adeneler v Ellinkos Organismos Galaktos (2006) IRLR 716 where it was stated that

“the concept of objective reasons…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.”

He maintains that precise and clear circumstances characterising a given activity doe not justify the use of successive contracts in this case, having regard to how his role expanded to include other tasks similar to permanent staff.

The Respondent also relies on the joined cases of C-378/07 to C-380/07 Kiriaki Angelidaki and Others v Organismos Normarkhiaki Rethimnis and Dimos Geros Geropotamou (2009) ECR 1-ECR where the respondent states the court drew a distinction between needs that are temporary and those that in reality are permanent. In the case of the latter the use of successive fixed term contracts are contrary to the objective of the Directive. The respondent argues that the work he was engaged in continues and as it is not temporary in nature; his contract in fact is a contract of indefinite duration.

In Maurice Power v HSE [2021] IEHC 346 Simons J stated:

10. The stated purpose of the Framework Agreement is:

(a) to improve the quality of fixed-term work by ensuring the application of the

principle of non-discrimination; and

(b) to establish a framework to prevent abuse arising from the use of successive fixed term employment contracts or relationships.

11. These twin purposes are reflected under the Protection of Employees (Fixed-Term Work)

Act 2003 as follows. First, the principle of non-discrimination is given effect to under

section 6 of the Act. This section provides that a fixed-term employee shall not, in

respect of his or her conditions of employment, be treated in a less favourable manner

than a “comparable permanent employee” (as defined). Section 10 provides that an

employer shall inform a fixed-term employee in relation to vacancies which become

available to ensure that he or she shall have the same opportunity to secure a permanent

position as other employees.

12. Second, safeguards against the abuse of successive fixed-term contracts of employment

have been introduced under section 9. This section provides, in relevant part, that where

a fixed-term employee is employed on two or more continuous fixed-term contracts, then

the aggregate duration of such contracts shall not exceed four years. This prohibition

does not apply, however, where there are “objective grounds” justifying the renewal of a

contract of employment for a fixed term.

13. The combined effect of sections 9(2) and 9(3) is that a person who has been employed

on successive fixed-term contracts with an aggregate duration of in excess of four years,

without objective justification, shall be deemed to be employed under a contract of

indefinite duration. (The parties were agreed that section 9(1) is in the form of a

transitional provision, regulating circumstances where a person had already been

employed on a fixed-term contract as of the date of the commencement of the Act on

14 July 2003).

This case turns on whether or not objective justification exists for successive fixed terms contracts.

The Labour Court in UCD v Alan O’Doherty stated:

“In all of the circumstances the Court is satisfied that this case is in line with Adeneler, as the objective grounds specified in the Complainant’s renewed contracts of employment and relied upon by the Respondent correspond to a genuine need, to enhance the Complainant’s (as a Post-Doctoral Researcher) research skills and career prospects, to issue a contract of indefinite duration in such circumstances would defeat the purpose of such a programme”

The Respondent in their submission and at the hearing state that the  contractual clause providing a transparent objective justification states that purpose of the research fellow programme is to :

·       Provide  research training opportunities to graduates

·       The scheme is structured to provide access to training and research opportunities

·       All the successive contracts referred to the  research fellow scheme

·       The complainant benefited like others through ensuring that others before him were not made permanent

·       The training period can stretch over 4-6 years in Science and Technology; the complainant had just under 6 years training at the time his employment terminated with the College.

·       There is no abuse in the use of fixed-term contracts in this case.

As stated in Adeneler [2006] ECR 1-para 69:

 In those circumstances, the concept of Objective reasons', within the meaning of clause 5(1)(a) of the Framework Agreement, 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

I determine that on the facts of this case the Objective reasons are precise and concrete circumstances that characterise a given activity and in the specific context of a University justify the use of successive fixed term employment contracts having due regard to the purpose and objectives of the University Research Careers Framework policy. The complainant was made aware of the nature of the scheme that he participated on. It’s primary purpose is to provide training and experience for a specific duration. The overriding purpose is to benefit the participants by providing such opportunities. The programme has clear, precise and objective goals which is to develop the participants research skills and enhance their future academic career by providing such experience and training. The nature of the activity can extend for a period greater than 4 years and there are grounds in this case for the use of successive fixed term contracts that exceeded 4 years based on the nature of the technological research undertaken by the complainant.  I determine that there are objective grounds justifying successive contracts in this case, aligned with the clear objectives as set out in the research fellow programme.

I determine that on the facts of this case the Objective reasons are precise and concrete circumstances that characterise a given activity and in the specific context of a University justify the use of successive fixed term employment contracts having due regard to the purpose and objectives of the University Research Careers Framework policy. I determine that there are objective grounds justifying successive fixed term contracts in this case.  As the College has provided an Objective Justification for providing the complainant with successive fixed term contracts, I determine that the complaint is not well founded.

Research -Successive Contracts-Objective Justification