Employee

Employer

Anonymised Parties

A lecturer

A university

Representatives

Irish Federation of University Teachers

In-house representative

Act

Dispute Reference No.

Date of Receipt

Dispute seeking adjudication pursuant to section 13 of the Industrial Relations Act

10/11/2020

The employee asserts that he was entitled to a contract of indefinite duration on foot of the Cush report in the university sector. The employer does not accept that this is the case as there was only one fixed term contract.

In submissions, the employee outlined this related to the failure to provide him with a contract of indefinite duration. He commenced with the employer on the 1st January 2015, and this ended on the 31st December 2020. He was made redundant.

The employee cites the terms of the contract: ‘This is a fixed term appointment, subject to satisfactory service during the probationary period, and to this contract of employment… The objective grounds for issuing a fixed term contract rather than a permanent contract are to enable the development of programmes in [specialities]. The continuation of the role will be dependent on the success and growth of the programmes as evidenced by student demand. This contract will end on 31st December 2020 at the latest.’

The employee refers to the Report to the Minister for Education and Skills of the Chairperson of the Expert Group on Fixed-Term and Part-Time Employment in Lecturing in Third Level Education in Ireland, chaired by Michael Cush SC. This recommended 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.’

The employee outlined that the subject matter he taught is now taught by someone else, so there was a continued requirement for the post.

The employee outlined that he raised his entitlement to a CID with HR and was informed ‘you are not eligible for a CID based on either CUSH or the Protection of Employees (Fixed Term Work) Act, 2003) based on this contract of employment and the objective grounds contained within the contract. Your Head of School is aware of the analysis undertaken and that you are not eligible for CID based on your current contract of employment.’ [email of the 27th May 2020]

The employee outlined that there was never any consideration that the Cush report required successive contracts. He sought to avail of the dispute resolution process referred to in the Cush report but could not do so.

The Department Guidance note of the 4th August 2017 sets out the view that appointments should be made on a permanent basis where permanent staff leave or retire, or where new vacancies are being filled. The note requests that employers ‘regularise’ the position of employees on fixed term contracts of employment. It cited examples of where fixed-term contracts could be used, for example covering sick leave or maternity leave.

At the hearing, the worker outlined that Circular 41 of 2016 does not apply to the employer and only applies to Institutes of Technology. While this Circular mentions the ‘Cush’ report, it built on existing Circulars applicable to Institutes of Technology. The Department issued a Guidance Note for both the universities and institutes of technology, including the employer.

The employee outlined that he had been provided with a six-year contract and it was submitted that six-year contracts should not become the norm. The employee submitted that this was not a specialist role and he had not been filling in for someone on leave. He had secured the role through an open competition. The reference to student need in the contract was general and never specific. It was also quite vague. He outlined that student demand increased for the courses in 2021/22 and he also did other roles.

The employee outlined that the need for a successive contract was not mentioned at all in the Cush report.

In September 2020, the Head of Teaching and Learning emailed on the employee’s behalf to say that the cessation of the employee’s contract would mean that some research and work would cease. Following the ending of his employment, he took the specialist equipment belonging to him, meaning that this was not available to the department.

The employee outlined that he had received the statutory redundancy lump sum entitlement, but not the ex gratia payment.

The employee outlined that clause 15 of the contract was said to amount to the exclusion from the scope of the Unfair Dismissals Act, but the clause did not have legal standing. It was a general pro forma clause.

It was submitted that there were three limbs to the Cush adjudication: was the claimant a lecturer?; had the employee worked for over two years and 3. Was there an ongoing need for the role. The Circulars provided better terms than the Protection of Employees (Fixed Term Work) Act. The circular in the IT sector allowed for a CID to accrue on the granting of one contract. 

In reply to the employer, the employee said that he did not know that he had to apply for the ex gratia payment. He commented that it looked like there would be higher numbers in Stage 4 in the next academic year as there were 165 students doing the key feeder modules, up from 148.

The colleague appointed under the professional development scheme who did some of his tasks was a good appointment, but participants on the scheme required help to develop their research.

The employee outlined that using student numbers as a criteria would generate a new level of precarity. He had asked to meet the professor on two occasions to discuss his contract. It would have been better to have these decisions explained in advance. There was a discussion four years earlier about clarifying the end date of his contract and then nothing then until six months before the end. He had to apply for jobs during the pandemic and was left in the lurch. It was unfair to only first raise this six months before the end.

The employer outlined that the Cush report was prepared in a particular context and from the university side, this was based on the Protection of Employees (Fixed Term Work) Act. The employer referred to Circular 93/2007 which referred to the need for a succession of fixed-term contracts.

The employee had applied through an open competition for a fixed-term post. It outlined that the only person authorised to discuss a lecturer’s contract was the relevant Head of School, so the Head of Teaching and Learning had no authority to send the email referred to by the employee.

The employer referred to the student numbers set out in a table. A degree has 4 stages, and these are generally years. This department did not teach in stage 1 bar one course and did 12 courses in stage 2. Students could specialize in stage 3 and 4. The employee was involved in one stage 2 course, and they were introductory courses.

The employer outlined that an ex gratia is paid by the Department at its discretion. It had not sought a payment for the complainant as he had not applied for it.

The employer outlined that there was a downward trend in student numbers and a decrease year on year. The complainant had contributed little to administration. They did not do laboratory work with fourth years because of the pandemic and not because the complainant was no longer employed. This laboratory work had resumed this year.

The professional development programme was to attract new researchers, who are offered a temporary contract with a view of getting a permanent contract if they show an upward trend in research, teaching and administration and they get promoted to associate professor. They have reduced teaching obligations in order to build up their research output.

The Head of School outlined that he had discussed the contractual position with the employee on a number of occasions and six months was not unreasonable to discuss the ending of the contract.

CA-00040900-001

This is a dispute pursuant to section 13 of the Industrial Relations Act. It was referred on the 10th November 2020 in advance of the termination of the employee’s employment. This dispute refers to the employee’s entitlement to a contract of indefinite duration arising out of the Report to the Minister for Education and Skills of the Chairperson of the Expert Group on Fixed-Term and Part-Time Employment in Lecturing in Third Level Education in Ireland. The review group was chaired by Michael Cush SC and so the report is referred here as it is referred to generally: the Cush report.

Cush report

The Cush Report stemmed from the commitments made in the Haddington Road Agreement. It addressed the issues faced by third level lecturers, in particular the precarity of their employment in institutes of technology and universities. It made seven recommendations, all of which were accepted by the parties in higher education.

The question at the centre of this case is whether successive fixed-term contracts is a necessary ingredient to fall within the scope of the agreement arising from the Cush report.

Recommendation 1 of the Cush Report states: ‘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 of continuous employment in excess of two years.’ Recommendation 2 envisages a review of the implementation of the reduced qualification period after five years.

In this dispute, the employee seeks a recommendation that the terms of the Cush Report be applied to him and that he be given a contract of indefinite duration. It is not a complaint pursuant to the Protection of Employees (Fixed Term Work) Act.

It is important to recall that the Fixed Term Work Act and the underpinning Directive provide a minimum level of protection in respect of the use of fixed term contracts. Neither the Act, nor the Directive set a maximum level. The Act and the Directive allow collective agreements to provide employees with more favourable terms and conditions than provided for in either the Act or the Directive.

A collective agreement could, for example, provide that successive fixed-term contracts are not a requirement for a contract of indefinite duration and that having sufficient continuous service is all that is required for a contract of indefinite duration to arise.

The employee argues that the Cush report does not require successive fixed-term contracts and all that is required is continuous service of more than two years. On the other hand, the employer argues that it was always their interpretation and understanding that successive fixed-term contracts was a requirement for a contract of indefinite duration under the Cush report. The employer maintained that one fixed-term contract of more than two years was not sufficient.  

In this case, the employee completed a single six-year fixed term contract and his entitlement to a contract of indefinite duration is disputed by the employer. The employee would not be entitled to a contract of indefinite duration under the Fixed-Term Work Act, but this is not the basis of this claim. Rather, it is that the Cush report provides that an employee has an entitlement to a contract of indefinite duration once they complete a term over two years.

The employee sought to avail of the Cush dispute resolution procedure. The Cush adjudicator declined to determine the question as it was a matter of disputed jurisdiction. It, therefore, falls to be considered as part of the merits of this dispute under the Industrial Relations Act.

Cush and Ward reports compared

The Cush Report addressed fixed-term and part-time employment in lecturing in third level education. It followed on from the Report to the Minister for Education and Skills of the Chairperson of the Expert Group on Fixed-Term and Part-Time Employment in Primary and Second Level Education in Ireland. This expert group was chaired by Peter Ward SC and their report is, therefore, called the ‘Ward Report’.

The first recommendation of both the Ward and Cush Reports recommend that a contract of indefinite duration arise after the completion of two years’ continuous employment, and not the three years provided in the Fixed Term Work Act.

While the recommendations of neither report spell out specifically that recommendation 1 comes into effect when there is a successive fixed-term contract, this is certainly what recommendation 2 of the Ward Report means: ‘I recommend that the basis of qualification for a CID as set out in the series of Circulars giving effect to the agreement on the implementation of the Protection of Employees (Fixed-Term Work) Act 2003 be retained and amended accordingly’. The ‘basis of qualification’ is the fact of successive fixed term contracts. This is also a consequence of recommendation 4 of the Ward report, that a teacher who has completed their first fixed term should be able to participate in a recruitment process for the continuation of the post. If the teacher is successful in the recruitment process, they can complete their second year and thereby acquire a contract of indefinite duration at the end of the second year.

The Cush report does not have an equivalent recommendation regarding the ‘basis of qualification’. It does not address what should happen at the end of the first fixed-term contract. The Cush report addresses the qualification period for a contract of indefinite duration, but not the qualification act, i.e. there being successive fixed term contracts or say that there is no qualification act.

Circulars and Guidance Note

The Department of Education has issued Circulars to Institutes of Technology regarding the use of fixed-term contracts, but these Circulars are not addressed to the universities. Universities and institutes of technology have a different statutory footing, and this may explain why no Circular has issued in respect of the universities. Given that this is the case, the IT Circulars cannot be used to re-interpret the applicable provisions for universities, including the Cush report.

The Department of Education issued the Guidance Note to universities and institutes of technology on the use of fixed term contracts. This sets out the Department’s view that appointments should be made on a ‘permanent’ basis unless there are legitimate and sustainable objective grounds for offering a fixed term contract. The Guidance Note cites examples where a fixed term contract could be used, for example covering leave and for a specific purpose.

While the Department of Education was not the employee’s employer and nor is this document a Circular, the Guidance Note is clearly relevant in assessing the merits of this dispute.

Application to the facts of this case

I have set out the relevant issues arising in this case. Taking those issues in turn, the first is the interpretation of the Cush report. Did the Cush report remove the need for a qualification act for a contract of indefinite duration, as opposed to only reducing the qualification period?

As I have said, the Ward report is clear that successive fixed-term contracts are a necessary ingredient for a teacher to gain a contract of indefinite duration in the reduced qualification period. The Cush report does not specifically address the point.

I find that the Cush report should be interpreted as not altering the requirement for successive fixed term contracts, the position relied on by the employer. A collective agreement could certainly remove the need for successive fixed term contract, but one would expect this to be clearly discussed and reasoned in the expert report. It would greatly alter the position set out in the Fixed Term Work Act and one would expect this alteration to be specifically addressed in the expert report. Given that there is no discussion of altering or removing the requirement for successive fixed term contracts, it was not contemplated in the Cush report that this would occur.

I approach this case, therefore, on the basis that the entitlement under the Cush report for a contract of indefinite duration requires the employee to have worked on more than one fixed term contract.

The second issue to address is the employee’s entitlement to enhanced redundancy terms per LCR20730. The employee is clearly encompassed by the terms of this recommendation of the Labour Court, and I recommend that he be paid these enhanced terms. This is three weeks’ pay per year of service plus the statutory redundancy (which was paid). I, therefore, recommend that the employee be paid 18 weeks of pay.

I recommend that the employer pay to the employee 18 weeks of pay and that the employee did not acquire a contract of indefinite duration.

Industrial Relations Act / university / Cush contract of indefinite duration