Complainant

Respondent

Parties

Hugh O'Neill

Trinity College Dublin

Representatives

Self-represented

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-00044405-001

31/05/2021

The complainant worked for the respondent between the 3rd October 2017 and the 31st December 2020. He was employed pursuant to several fixed-term contracts and asserted that this was not renewed in order to prevent him acquiring a contract of indefinite duration. The respondent denies the claim.

The complainant gave evidence of his role as business development manager at the respondent. There were expectations in 2020 that the business would grow. After the ending of his employment, the respondent had advertised a business analyst role with a similar salary level as his role. He said that the decision to dismiss him was made before the strategic plan so this was a retrospective measure to justify the dismissal.

The respondent denied that the complainant was dismissed in order to prevent the complainant from acquiring a contract of indefinite duration. Recruitment was suspended in 2020 and renewals decided by a named committee. The respondent outlined that there was a change in direction in the strategic plan and the Business Analyst role was created. This was to better achieve targets and has been successful. The complainant’s role ended by reason of redundancy, and he could have been made redundant because of the changed strategic direction.

This is a complaint pursuant to the Protection of Employees (Fixed Term Work) Act. The complainant states that he was dismissed in order to prevent him from acquiring a contract of indefinite duration. Section 13(1)(d) is clear that dismissing an employee ‘wholly or partly or connected to’ avoiding that employee acquiring a contract of indefinite duration. The employee does not have to show that the arising contract of indefinite duration was the only or main reason for the dismissal, just that the pending contract of indefinite duration was an operative cause. This is similar to the ‘but for’ test applied across penalisation generally.

I have considered the evidence of the parties, the complainant’s original contract of employment, the 2020 business case, the job specification of the Business Analyst role and the Expansion Strategy. The complainant reported to the Senior Business Development Manager and the key component of the role was writing applications for funding. The 2019 business case cites ‘[the complainant] delivers immediate business funding and is focussed on future growth, working external and internally on campus, specifically targeting investment into our ICT college research portfolio. The role operates across the schools/institutes (with no business function) and anchors investment in [the respondent] from established SFI research centres.’ The Business Analyst job specification states that the role is to ‘enable and support through business intelligence, developing industry market analytics, processes, interfaces and data structures connecting together academic research excellence, innovation and infrastructure access with industry partners.’ The Expansion Strategy sets out a ‘vision’ for expanded research and funding, with an increase in head count. It identifies as a risk the difficulty of multiple hiring in a relatively short period of time. It refers to the new roles as being fixed terms. Appendix 5 discusses the resources required to drive the research expansion strategy and highlights the importance of data analysis.

The complainant had several fixed-term contracts and his employment ended on the 31st December 2020. He completed a two-year fixed term, and this was first extended by a year and then by three months. I find that the respondent committee that considered the business case for his further renewal would have known that he could acquire a contract of indefinite duration should there be a further renewal (section 9(1)) or if the renewal brought him over four years (section 9(2)).

Fixed-term work is a feature of the university sector; the Expansion Strategy is explicit that the new hires would have fixed term contracts. The Cush report applies to academic staff, although the complainant is not encompassed by Cush.

An employee is entitled to a redundancy lump sum payment at the end of their fixed-term contract where they have two years of service (section 9(1)(b) of the Redundancy Payments Act). While such an employee has the right to a redundancy lump sum entitlement, what they do not have is the same right to fair procedures and consultation that is associated with redundancy generally. The employer can rely on the expiry of the fixed term without the same requirement to consultation as required by JVC Europe v Panisi etc. In this case, for example, even if the complainant had a contract of indefinite duration, he could have faced redundancy because of the reorientation towards analytics. There would have been a process with matrixes, pools, alternatives etc considered. The result might have been the complainant’s redundancy, but he would have had the process. What is striking in this case is that very little of the business case is about the complainant, it mainly focuses on the department.

The question in this case is whether the possibility of the complainant acquiring a contract of indefinite duration was an operative cause in the decision not to renew his contract. I accept the respondent’s position that it had paused recruitment because of the pandemic. It was preparing the Expansion Strategy, which sets out an ambitious and structured development path. I do not accept the complainant’s argument that the strategy was a retrospective measure to justify the ending of his employment. I also accept that the Business Analytics role was different to the complainant’s role and was encompassed by the Expansion Strategy.

It is significant in this case that any extension of the complainant’s contract would have resulted in a contract of indefinite duration per section 9(1). It is significant that all the new roles in the Expansion Strategy were to be fixed terms. Any further fixed term would have led the complainant to have a contract of indefinite duration, so outside of what was envisaged by the Expansion Strategy. For this reason, I find that the complaint is well-founded and the fact of the complainant acquiring a contract of indefinite duration was, at least, in part why his contract was not renewed.

Given that the Expansion Strategy changed the focus of the respondent’s work, it is possible that the complainant would have been made redundant at a later point in time. This, however, was not an inevitable outcome and would have followed a concluded process. In these circumstances, I find that the complainant is entitled to compensation of €15,000 for the contravention of the Protection of Employees (Fixed Term Work) Act.

CA-00044405-001

I decide that the complaint pursuant to section 13 of the Protection of Employees (Fixed Term Work) Act is well-founded and the respondent shall pay to the complainant redress of €15,000.

Protection of Employees (Fixed Term Work) Act / section 9(1) and (2) / operative cause