Complainant

Respondent

Parties

Dorota  Bruce

University College Dublin

Representatives

Ms. Shonagh Byrne, SIPTU

Mr. Gavan Stanley, UCD Employee Relations Manager

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-00041388-001

03/12/2020

The Complainant commenced employment with the Respondent on 22nd July 2016. The Complainant was engaged as an External Relations Officer within the Applied Language Centre of the Respondent. The Complainant’s employment was terminated on 1st October 2020. The Complainant was in receipt of a monthly salary of €4,553.00.

On 3rd December 2020, the present complaint was lodged with the Commission. Herein, the Complainant alleged that Respondent failed to provide her with a contract of indefinite duration at the relevant time. By subsequent submission, the Complainant submitted that the objective grounds the Respondent sought to rely on did not meet the requirements of Section 9(4) of the Act and consequently she should have been awarded a contract of indefinite duration. By respondent, the Respondent denied that allegation, stating that the objective grounds relied upon were legitimate and robust.

A hearing in relation to this matter was convened and finalised on 27th September 2021. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing. By request of the Adjudicator, further documentation and submissions in relation to the same were requested from, both parties post-hearing. All such documentation and submissions were exchanged between the parties. 

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

The Complainant commenced employment with the Respondent on 22nd July 2016. This initial engagement was by way of an 11-month, fixed term contract. Prior to the expiry of the same, the Complainant received a further three-month contract with a commencement date of 22nd June 2017. The Complainant continued in her role and received a third fixed term contract. This contract commenced on 2nd October 2017 and contained term setting out a fixed term of three years, to expire on 2nd October 2020. In the Complainant four years of uninterrupted service her role was that on manager of the examination’s unit and the external English unit.

On June 18th 2019, the Complainant requested information from the Respondent’s HR department regarding her eligibility for a contract of indefinite duration. As no timely response was received to this communication, the Complainant repeated this request on 16th September 2019. Three days later, the Complainant received a response stating that the Respondent would make the relevant enquiries. Following a further request for information, the Complainant received a response on 20th January 2020 to the effect that she would receive an update in or around March 2020, when the annual budgeting had been completed. When no response was received at this time, the Complainant again requested a response on 29th May 2020. No contemporaneous response was received to this request.

On 3rd July 2020 the Complainant received an email stating that her employment would terminate on the expiry of the fixed term contract. On 23rd July the Complainant again corresponded with the Respondent’s HR department stating that she believed that she was entitled to a contract of indefinite duration.

At this point, the Complainant had managed the resumption of examinations and had registered students for the forthcoming external English programme. In completing these duties the Complainant observed that the programme, and the wider subject matter of her employment, had increased in volume. On August 6th, the interim director of the department advised that the situation regarding the complainant’s contract did not look promising as the two units under her charge (examinations and external English) were facing financial difficulty. On August 6th, the Complainant met with the interim director, who informed her that he contract would not be extended and that her employment would terminate on the expiry of the fixed term. 

On August 6th 2020, the Complainant raised a grievance in relation to these matters in line with the Respondent’s internal policy. Herein, the Complainant stated that as she was entitled to a contract of indefinite duration as she had over four years of unbroken service with the Respondent, three contracts, her duties still existed and the two units she managed were still operating. She further submitted that the lack of clarity in relation to this matter and the long delays regarding an answer to the same had caused her a great deal of stress.

By correspondence dated August 21st, the Respondent stated quoted the relevant clause of the Complainant’s contract regarding objective justification. This clause states that,

“the objective grounds for issuing this fixed term contract rather than a permanent one is to provide an effective and efficient administrative and support service to a designated section within the UCD Applied Language Centre (ALC) and work as part of a team in an international environment with direct contact with a multi-cultural client base. This role will support the current three-year business plan for the ALC External unit following which ongoing staffing needs will be established.

This fixed term contract underpins the fulfilment of a legitimate objective of the University to provide temporary additional resources to support activities of a fixed duration. 

Furthermore, please note that your continued employment by the University is contingent on the ongoing availability of work of the type in which you are currently engaged. Should the University’s requirements for this work decline or cease in full, for whatever reason, the University reserves the right to reassign you to alternative work in line with your skills and experience and its organisational requirements. Should such reassignment opportunities not exist the University may have to terminate your employment in the future.”

The correspondence went on to state that “a review of local staffing needs has regrettably concluded that the requirements for this role will cease at it end date of 1st October 2020.” In light of the same, the author of the correspondence stated that “my analysis of the contract terms is that the objective grounds justifying the fixed term nature of the role are valid and I conclude that by operation of law, no entitlement to a Contract of Indefinite durations exists.”

A meeting in relation to these matters was convened for 20th October 2020. Here, the Complainant submitted that her activities were not of a fixed duration. It was submitted that the management of the examinations unit and English department are a permanent feature of the Respondent. It was further disputed that the requirements of the role would cease on 1st October 2020. The Complainant stated that she personally managed the intake of a cohort of students on 31st August 2020. These students were register for a six-month term and would engage with the Respondent well after the cessation date. The Complainant further submitted that her termination coincided with the restrictions arising from the Covid-19 pandemic and was, in fact, a cost saving exercise on the part of the Respondent.

By written response, the Respondent stated that the fixed term nature of the role was clearly established in the contract of employment. The Respondent stated that they had the right to design the required structures in delivery of the unit’s objectives, and that the fixed-term nature of the role reflected this. The Respondent further stated that activity in both areas had decreased significantly, to the extent that a manager was no longer required. The Respondent stated that once the pre-existing commitments of the unit are fulfilled, the activities of the unit would cease and it would be effectively wound up, removing the need for any permanent position. In light of the foregoing, the Respondent submitted that the objective justification set in the contract were valid and the Complainant was not entitled to a Contract of Indefinite duration.

By submission, the Complainant’s representative stated that the Complainant’s role fulfilled a permanent need of the Respondent. It was submitted that the Complainant’s duties existed prior to her assuming the role, and existed after the termination of the same. The Complainant was given no clear indication as to the status of her contract, despite numerous emails relating to the same. The Complainant’s representative submitted that the objective justification relied upon by the Respondent did not meet the requirements of Section 9(4) of the Act, and that consequently, the Complainant was entitled to a contract of indefinite duration. It was submitted that the actual reason that the Complainant’s employment was terminated was a cost-saving measure. Finally, it was disputed that the centre had no further requirement for the role as they had continued to enrol and advertise for students.

In summary, the Complainant’s representative submitted that the Complainant was entitled to a contract of indefinite duration. In failing to provide the same, the Respondent is a clear and unambiguous breach of the present legislation. By way of remedy, the Complainant requested that she be re-instated to her position, under a contract of indefinite duration. 

By response, the Respondent denied that the Complainant’s claim. They stated that the Complainant was not entitled to a contract of indefinite duration at any point of her tenure, and that the contract expired on its proposed date.

At the outset, the Respondent agreed with much of the factual matrix presented by the Complainant. In particular they agreed that the Complainant was engaged on three fixed-term contracts, with the final term being for a period of three years. It was submitted that the objective justification contained in the final contract aligned with the three-year business plan for the unit. At the end of this period, the staffing requirements would be assessed to ascertain the needs of the unit at that time.

During the final fixed term period, the unit’s activities had reduced considerably, and a review a conducted regarding the unit’s ongoing viability. As part of the review, it was determined that the provision of the service was not realising the market opportunity of English language teaching to international students. Following the review, it was decided that the unit where the Complainant was engaged would be disbanded and undergo an orderly wind-down. As a part of this wind-down, all students to which the service had a commitment would complete their courses, after which the service would close.

This orderly wind-down of the unit’s activities coincided with the end of the Complainant’s fixed-term contract. In light of the same, and the outcome of the prior review, it was decided that the contract would not be renewed. The Complainant received a redundancy payment on the cessation of her employment and her role was not filled following the same. It was submitted that all of the units outstanding commitments had been fulfilled and that it currently has no staff or students.

Regarding the “objective justification” contained in the Complainant’s contract of employment. It was submitted that the Respondent has a right to design the required staffing structures and assign related work in the delivery of the unit’s objectives. It was denied that the non-renewal of the Complainant’s contract was motivated by cost-saving concerns.  It was also denied that the role existed prior to 2016, the Respondent submitted that the role was a new position applied for by the Complainant through open competition. They further submitted that following the expiry of the Complainant’s contract, the role ceased to exist. Finally, it was denied that the Complainant was ignored or subject to inappropriate waiting times in seeking to have this matter addressed. In this regard it was submitted that the Complainant’s own sick leave contributed to some of the delay.

In the present case, the Complainant has alleged that she is entitled to a contract of indefinite duration and that the Respondent breached the Act in allowing her employment to terminate on 2nd October 2020.

Section 9(2) of the Act provides that,

“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.”

It is common case that the Complainant commenced employment on 22nd July 2016, and consequently completed four years’ service on 22nd July 2020. It is also common case that the Complainant was engaged under three separate fixed term contracts, with the final such contract commencing on 2nd October 2017. In these circumstances, it is agreed and uncontroversial that Section 9(2) applies to the Complainant.

Section 9(4) of the Act provides that,

“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.”

While the Respondent accepts that Section 9(2) applies to the Complainant, it is their case that the exemption set out in Section 9(4) applies and the Complainant was not entitled to a contract of indefinite duration.

Section 7(1) of the Act provides that,

“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.”

In the joined cases of Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis and Dimos Geropotamou [2009] ECR 1-3071, the CJEU held that,

“…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.”

The Court went on, at paragraph 103 of its judgment, to draw a distinction between successive contracts the purposes of which are to meet needs that are temporary in nature and those which, in reality, are intended to meet the fixed and permanent needs of the employer. In the case of the former the use of successive fixed-term contracts may be legitimate but in the case of the latter their use would be contrary to the objective pursued by the Directive.

The relevant clause of the Complainant’s contract of employment states that,

“the objective grounds for issuing this fixed term contract rather than a permanent one is to provide an effective and efficient administrative and support service to a designated section within the UCD Applied Language Centre (ALC) and work as part of a team in an international environment with direct contact with a multi-cultural client base. This role will support the current three-year business plan for the ALC External unit following which ongoing staffing needs will be established.

This fixed term contract underpins the fulfilment of a legitimate objective of the University to provide temporary additional resources to support activities of a fixed duration.”

The first point to note regarding this clause is that it sets out more than one objective ground. A natural reading of the term sets out that the fixed term contract was issued to provide “effective and efficient administrative and support service” and to “work as part of a team in an international environment…”. From the outset, it is difficult to see how these two objectives would necessitate the issuing of a fixed term contract. From a plain reading of the same, it is apparent that these are a brief description of the Complainant’s duties. The completion of these duties is in no way related to a fixed term, indeed there is nothing to suggest that these duties would not have to be completed following the purported expiry of the contract. As such I find the objective grounds relied upon related to a fixed and permanent need of the employer, so long as the employer is in existence. While it is noted that the clause does state that the role is intended to support the unit’s “three-year business plan”, it is not apparent what, in particular, within the business plan constituted an objective ground for these purposes.  The “Applied Language Centre Strategic Plan”, opened by the Respondent, envisions that a review of structures, an expansion of the provision of language services and a “major remodel” of the unit would take place in Spring 2019-2021. Notwithstanding the same, it is difficult to imagine how the unit would not require “effective and efficient administrative and support service” and for an employee to “work as part of a team in an international environment…” following such a review and remodel.

The Respondent has submitted that following an extensive review of the unit’s activities, it was determined that the unit was not achieving its maximum commercial potential and it was disbanded. On foot of the same, it was determined that the Complainant’s contract should not be renewed. While I note the Respondent issued a comprehensive document outlining this process and the rationale behind the same, it is apparent that this process commenced some time after the objective justification was included in the contract. In the matter of National University of Ireland -v- Dr. Theresa O’Keffe FTD1411, the Labour Court held that,

“…the reasons relied upon as constituting objective grounds for the purposes of the Act must have been the reasons operating on the mind of the relevant decision maker at the time the impugned decision was made.”

Having regard to the same, I find that the content of the report regarding the viability of the unit cannot constitute an objective ground for these purposes as no evidence was provided of the same operating at the time the decision was made. Indeed the report referred to in the relevant clause of the Complainant’s contracts refers to “an expansion of the provision of language services” in Spring 2019 to 2021.

In the response to the Complainant’s grievance, the Respondent stated that they had the right to design the required structures in delivery of the unit’s objectives, and that the fixed-term nature of the role reflected this. Following the review of the unit, it was determined that the same would be wound down and all employees would no longer be required. While an organisation naturally has a right to review its staff needs in light of overall objectives, it is not clear that the fixed-term nature of the role is necessary to achieve this aim.

In the matter of An Post v Monaghan & Ors [2013] IEHC 404, the High Court held that to meet the requirements of Section 7(1), the following three points must be considered,

         i.            “The impugned treatment must be for the purpose of achieving a legitimate objective;

       ii.            Such treatment must be appropriate and necessary for achieving that objective;

     iii.            The treatment cannot be based on considerations of the status of the employer e.g. as fixed-term employees.”

Later in the Judgement, Hedigan J. states that,

“…was the exclusion appropriate and necessary? This should be examined on a proportionality basis. Thus, the Court must address the second question. Was the exclusion the minimum unfavourable treatment necessary to enable the appellant obtain its objective?”

While the monitoring of staffing levels to meet unit’s objectives can be said to be a legitimate objective, it cannot be said that such treatment is either appropriate of necessary to achieve that objective. If the following a review of the unit’s activities it is determined that they have excess staff then a reduction can be effected by engaged with a redundancy process. In the matter of Teagasc v McNamara FTD138, the Labour Court held that,

“If, due to economic circumstances or fall-off in demand, there is no longer sufficient work in order to maintain a worker in employment the employer’s remedy lies in making surplus staff redundant.”

Having regard to the same, it cannot be said that the utilisation of a fixed term contract is the minimum unfavourable treatment necessary to achieve the objective.

Having regard to the accumulation of the foregoing points I find that the objective grounds relied upon by the Respondent cannot be said to satisfy the requirement of Section 9(4). As a consequence of the same, I find that the Respondent cannot rely on the exemption set out in Section 9(2). By operation of law, the Complainant’s contract of 2nd October 2017 is a contract of indefinite duration and the Respondent is in breach of the Act in applying a fixed term to the same.

Section 14 of the Act empowers me to,

(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 duraton), 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.”

Regarding redress, the Complainant requested that she be reinstated to her role with under a contract of indefinite duration. Certainly, such a course of action is permitted by subsection C quoted above. Nevertheless, I accept the Respondent’s evidence that the unit in which she was employed no longer has any staff or student and that her previous role has ceased to exist in any meaningful fashion.

In the circumstances, I find that compensation under subsection D to be the most appropriate remedy in the circumstance. Having regard to the totality of the evidence, I award the Complainant the sum of €15,000 in compensation.

Fixed-term contract, objective justification, permanent need, redundancy.