Complainant

Respondent

Parties

Charles  Garavan

University College Dublin

Complainant

Respondent

Anonymised Parties

Representatives

Emily Maverley of IBEC

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-00057487-001

03/07/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00057487-002

03/07/2023

The complainant has made complaints under the Fixed Term Work legislation that he was entitled to a contract of indefinite duration and that he was treated differently than a comparable permanent employee. The respondent says there were objective grounds for each of the different fixed-term contracts under which the complainant was employed.

The complainant submits he was first employed by the respondent on a fixed-term contract from 1 February to 30 June 2016 and was involved in teaching case studies that accompanied the tax module for the Masters in Accounting (MAcc). Then he was employed from 1 June 2016 to 30 September 2016 to teach a further tax module as part of the MAcc summer school.

Next, he was employed on a fixed-term contract from 1 September 2016 to 31 August 2017, under which he taught two undergraduate tax modules, an undergraduate company law module, the tax module on the Master of Accounting summer school, tutorials for one of the undergraduate tax modules and case study workshops for the two Masters in Accounting tax modules.

He was then employed on a fixed-term contract from 1 September 2017 to 31 August 2020, where he initially taught the same modules as the previous year.

On 3 June 2020 he received a call from the Dean of the Michael Smurfit Graduate Business School informing him that his fixed-term contract would not be renewed. The reason given was that because of Covid-19 pandemic it was estimated that revenue for the School would be considerably reduced for the 2020-21 academic year.

The complainant was re-engaged on a fixer-term contract from 1 September 2021 to 30 June 2022 under which he taught the undergraduate company law module, the two tax modules on the MAcc, the aviation tax module and case study workshops for the MAcc tax modules.

In May 2021 the complainant submitted an article to the British Tax Review.

In October 2021 he applied for the role of Assistant Professor in Accountancy/Taxation. The contract was described as “Temporary 5 year”. The complainant submits he assumed he would be successful and be awarded a permanent contract.

Unfortunately, his article was not accepted. On 25 November 2021 the complainant was told that he had not been shortlisted for the Assistant Professor role because of a lack of publications. He had scored high on his teaching but it was felt he needed one strong publication and he should reapply  as there would be two more posts advertised in 2022.

The complainant’s next fixed-term contract ran from 1 September 2022 to 30 June 2023 and he taught the same modules as the previous year.

On 28 September 2022 he applied again for the role of Assistant Professor. By this time, he had two articles accepted for publication. Again, he was not shortlisted for interview. Again, he was told the reason was a lack of publications and it was denied he had been told “one strong publication” was needed but that a “a track record of publishing” was needed.

The complainant wrote to UCD’s HR department on 18 May 2023 outlining the facts given above and his belief that he was entitled to a contract of indefinite duration (CID) from 1 February 2020, or not later than 31 August 2020. The respondent replied on 20 June 2023 that because of “the significant break in service and reengagement to a different position” the complainant was not entitled to a CID.

The complainant was given a further fixed-term contract from 1 August 2023 to 30 June 2024 and involves the teaching of some of the same modules as the previous year and some different ones.

The complainant submits he was continuously employed by UCD from 1 February 2016 to 31 August 2020 on four fixed-term contracts. He further submits that the subsequent contracts are in contravention of the Fixed-Term Work legislation as he should have been issued with a CID prior to their issuance.

The complainant further submits that the objective grounds given for issuing the fixed-term contracts are not legitimate as he was not given the teaching modules related to the reasons given.

He submits that since the end of the contract which finished on 31 August 2020 he has continued to carry out the same duties but his salary decreased in the subsequent contracts. He has not been paid as a permanent member of staff who undertook similar duties.

The respondent submits the complainant’s claim is based upon an assertion that he is entitled to a CID as per the contract he held from 1 September 2017 to 31 August 2020. As such the claim is statute barred as the Fixed-Term Work legislation states a claim must be referred within 6 months of the contravention and this can be extended to 12 months if there is reasonable cause. This complaint was not referred until 3 July 2023 and is therefore out of time.

The respondent submits the following is the complainant’s contractual history:

1 February 2016 – 30 June 2016; temporary part-time lecturer (Accountancy Subject area). The objective grounds are “to enable the teaching duties of Dr Geraldine Doyle to be carried out while she has teaching remission”.

1 June 2016 – 30 September 2016; temporary part-time lecturer (Accountancy). The objective grounds being the same as the first contract.

1 September 2016 – 31 August 2017; temporary part-time lecturer (Accountancy subject area). The objective grounds were to enable essential teaching duties to be carried out pending the recruitment and appointment of a permanent post.

Following an open competition the complainant was appointed from 1 September 2017 – 31 August 2020 in the position of Lecturer/Assistant Professor in Accountancy. The objective grounds were to assess the viability of increased teaching capacity for taxation …. due to anticipated student demand. This was done as there had been a reduction in numbers since 2017.

Following this contract the complainant had a break in service from UCD of one year. The respondent submits this break in service severed the complainant’s potential entitlement to a CID as he is out of time based upon a contract which ran from 1 September 2017 to 31 August 2020 and that following his re engagement with UCD on 1 September 2021 he has not met the criteria as laid down in the legislation.

The complainant was re-engaged on a fixed-term contract from 1 September 2021 – 30 June 2022 as a University Teaching Specialist (Accountancy Subject Area). The objective grounds were the employment of specialist expertise to teach specific modules not readily available in the University at the time and enable the teaching of Professor Geraldine Doyle to be carried out whilst she is seconded.

The complainant was issued with a further fixed-term contract from 1 August 2022 – 30 June 2023 as a University Teaching Specialist (Accountancy Subject Area). The objective grounds being the same as previous contract.

A further fixed-term contract was issued from 1 August 2023 – 30 June 2024 as a University Teaching Specialist (Accountancy Subject Area). The objective grounds were the same as the two previous contracts.

The respondent submits the last three contracts were modular only and the complainants duties were teaching only, with no expectation of research and service duties which existed with the previous contracts. This is why the module only contracts were on a lower salary.

Firstly, I must consider if the complainant was entitled to a CID. Section 9 of the  Protection of Employees (Fixed-Term Work) Act states: “(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.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.”

Though a series of fixed-term contracts the complainant was employed by UCD from 1 February 2016 to 31 August 2020. The complaints says this entitled him to a CID. The respondent says any claim in relation to this period of employment should have been made within 6 months of the contravention and this claim was not referred until 3 July 2023. Due to the Covid-19 pandemic the complainant was not employed again by UCD until 1 September 2021. After which he worked on three more fixed-term contracts covering each academic year. The complainant has submitted that section 9,3 of the Act, which state: “ 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.” should be interpreted to mean that the three fixed-term contracts issued after 1 September 2021 should not have been issued as fixed-term contracts as he had gained an entitlement to a CID before 31 August 2020.

In Department of Social Protection v Fiona McLoughlin (Determination FTD1610) The Labour Court considered the issue of continuous service where someone is employed on a number of fixed-term contracts.

“The circumstances in which broken periods of employment can be regarded as continuous has been considered by this Court in a number of previous cases starting with the decision inDepartment of Foreign Affairs v Group of Workers[2007] ELR 332 and more recently inWilliam Beary v Revenue Commissioners[2011] 22 ELR 137.

In these cases the Court had to consider the apparent conflict between the language of Article 5 of the Framework Agreement on Fixed-Term Work concluded between ETUC, UNICE and CEEP, annexed to Directive 1999/70/EC (hereafter the Directive), and that of the Act, which was enacted to transpose the Directive into domestic law. While Section 9 of the Act is directed at preventing the unlimited use of continuous fixed-term contracts the objective of the Directive is to combat the abuse of successive fixed-term contracts. In that regard, there appears to be a conflict between the language used in the Act and that of the Directive. As the Court pointed out in William Beary v Revenue Commissioners, while all periods of employment which are continuous are necessarily successive not all employment which is successive is necessarily continuous.

In William Beary v Revenue Commissioners the Court observed as follows: -

The relevant statutory provisions in that regard are to be found at s.9 of the Act of 2003 and in the First Schedule of the Minimum Notice and terms of employment Act 1973-2001. It is noteworthy that the marginal note to s.9 refers to “successive fixed-term contracts”. However under s.18 (g) of the Interpretation Act 2005 the marginal note is not to be regarded as part of a statute.

The section plainly refers to continuous employment and continuous contracts. However, s 9(5) makes it clear that what constitutes continuous employment is to be determined by reference to the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2001. It is well settled that where an Act provides its own definitions a Court should not look outside those definitions in ascribing meaning to word used in the statute (see Mason v Levy [1952] IR 40)

The First Schedule of the Minimum Notice and Terms of Employment Act 1973 provides as follows: -

COMPUTATION OF CONTINUOUS SERVICE.

Continuity of Service

1. The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by—

(a) The dismissal of the employee by his employer or

(b) The employee voluntarily leaving his employment.

2. A lock-out shall not amount to a dismissal of the employee by his employer.

3. A lay-off shall not amount to the termination by an employer of his employee's service.

4. A strike by an employee shall not amount to that employee's voluntarily leaving his employment.

5. An employee who gives notice of intention to claim redundancy payment in respect of lay-off or short-time shall be deemed to have voluntarily left his employment.

6. The continuous of an employee in his employment shall not be broken by the dismissal of the employee by his employer followed by the immediate re-employment of the employee.

7. If a trade or business is transferred from one person to another (whether or not such transfer took place before or after the commencement of this Act) the continuous service of an employee in that trade or business at the time of the transfer shall be reckoned as continuous service with the transferee and the transfer shall not operate to break the continuity of the service of the employee.

Computable Service

8. Any week in which an employee is not normally expected to work for at least twenty-one hours or more will not count in computing a period of service.

9. If an employee is absent from his employment by reason of service in the Reserve Defence Force, such period of absence shall count as a period of service.

10. If an employee is absent from his employment for not more than twenty-six weeks between consecutive periods of employment because of—

(a) a lay-off,

(b) sickness or injury, or

(c) by agreement with his employer,

such period shall count as a period of service.

11. If, in any week or part of a week, an employee is absent from his employment because he was taking part in a strike in relation to the trade or business in which he is employed, that week shall not count as a period of service.

12. If, in any week or part of a week, an employee was, for the whole or any part of the week, absent from work because of a lock-out by his employer, that week shall count as a period of service.

As the Court has previously pointed out, the fundamental effect of this provision is that all periods of employment are to be regarded as continuous unless they are broken by dismissal or resignation. Thus successive periods of employment which are not continuous because they are broken by, for example, lay-off or authorised absence, are deemed to be continuous. It is accordingly clear that the word ‘continuous’ as used in the Act, has a special meaning which is different to its ordinary or dictionary meaning. As so defined the word can, in certain circumstances, have a meaning more akin to the ordinary meaning of the word successive.

Where employment comes to an end and there are reasons to believe that the cessation will not be permanent the break in employment can be regarded as a lay-off which in accordance with the First Schedule does not break continuity of employment. In previous cases the Court was prepared to take a liberal view of what constitutes a lay-off in order to reconcile the apparent dichotomy between the wording of the Act and that of the Directive. There are, however, limits to which the language of the Act can be strained in order to achieve that objective.”

In this particular case the complainant had a break in contracts from 31 August 2020 until 1 September 2021. This was caused by the Covid-19 pandemic. He was told that he was one of a number people employed on fixed-term contracts which would not be renewed and there was no guarantee of further contracts being issued. The bleak prospects caused by the Covid-19 pandemic led to much uncertainty about the future. In Mr Garavan’s case he did not receive a further fixed-term contract and had no reasonable expectation of future employment with UCD at that point in time. In these circumstances I consider that his previously continuous employment was terminated within the meaning set out above.

Therefore, any complaint in relation to Mr Garavan’s fixed-term contracts from 1 February 2016 to 31 August 2020 would have had to be made within a maximum of 12 months from 31 August 2020. The complaint was made on 3 July 2023 and is therefore out of time.

The complainant was issued with a further fixed-term contract on 1 September 2021 and he employed on successive contracts each covering the academic year, which at the time of my investigation were due to expire on 30 June 2024. This period of employment does not fall within the time lines set out in section 9 of the Fixed-Term Work Act. I conclude the complainant has not accrued an entitlement to a CID.

The second part of Mr Garavan’s complaint is made under section 6 of the Protection of Employees (Fixed-Term Work) Act 2003 which states at subsection (1) 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.”

The respondent has submitted that from his contract starting in September 2021 Mr Garavan was employed on a fixed-term contract as a University Teaching Specialist, which they describe as ‘modular only contracts’. His duties were to teach those modules. This, they say, is distinct from permanent and fixed-term faculty appointments, where post holders are expected to undertake research, teaching and service duties (typically split 40:40:20). In contrast University Teaching Specialists are only required to undertake duties related to teaching.

The complainant says his duties were unchanged from the fixed-term contract that ran from 1 September 2017 to 1 September 2020 to the fixed-term contracts issued to him from 1 September 2021 onwards.

On the basis of the evidence provided I accept that whilst there have been changes to the Modules taught by Mr Garavan his main teaching duties have remained the same. However, I do accept that since 1 September 2021 he has not been required to undertake research and service duties.

I conclude that the complainant has not been treated in a less favourable manner than a permanent employee in relations to his conditions of employment.

CA-00057487-001: for the reasons given above I find that this complaint is not well founded and the complainant is not entitled to a CID.

CA-00057487-002: for the reasons given above I find the complaint is not well founded and the complainant was not treated less favourably than a permanent employee.

Fixed-term – break in continuous service – out of time