ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00040417

Parties:

	Complainant	Respondent
Parties	Robert Maher	Technological University Dublin

Representatives

Cathy McGrady B.L. instructed by Denis McSweeney Solicitors

Christina O’Byrne B.L. instructed by Holmes O'Malley Sexton LLP

Complaints:

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-00051706-001	15/07/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00051706-002	15/07/2022
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00053485-001	01/11/2022
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003	CA-00053485-002	01/11/2022

Date of Adjudication Hearing: 15/11/2023

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints. In addition to the final hearing on November 11th, 2023, there were hearings on September 27th and April 11th, 2023.

Background:

The complainant is employed under a Contract of Indefinite Duration as an Access Foundation Programme Co-Ordinator, a Grade V Staff Officer within the respondent.

He held a two and a half year fixed-term contract as a Programme Manager in the Access to Apprenticeship programme, at a Principal Officer Grade, from November 12th, 2018, to May 11th, 2021. The fixed-term contract was extended once on March 11th, 2021, and ceased on August 11th, 2022 and he was given a written statement for both the fixed-term contract and its extension which both stated, “At the end of the fixed-term, you will revert to your substantive post as Staff Officer”

The complainant commenced employment with the respondent in November 2010 as Project Officer on the Mature Student Access Programme and was appointed Access Foundation Programme Coordinator in October 2013. This was a Staff Officer Grade V position. In 2017 his contract became a contract of indefinite duration by operation of law and in November 2018, his salary was €48,941.00.

Summary of Complainant’s Case:

The complainant’s first complaint form was submitted in July 2022. He claims:

i. Penalisation under the Protection of Employees (Fixed Term Work) Act 2003 in relation to the Respondent’s avoidance of giving a Contract of Indefinite Duration (CID).

ii. A failure to provide objective justification for not providing a CID under the Protection of Employees (Fixed Term Work) Act 2003.

There was an additional complaint form in November 2022 with further claims:

iii. An unlawful deduction of wages under the Payment of Wages Act in that the salary paid to him during the reckonable period was not the payment that was properly payable to him.

iv. A further claim of penalisation for invoking his entitlements under the Fixed Term Work Act 2003

On November 12th, 2018, the complainant was appointed Manager of the Access to Apprenticeship Programme (ATA), at Principal Officer grade, initially on a fixed term contract for 2.5 years, with an end date in May 2021. This programme was developed by the respondent in 2017 to support young people from socio-economically disadvantaged backgrounds to secure craft apprenticeship positions in industry and was funded from philanthropic sources initially.

Since 2020,the Higher Education Authority (HEA) has provided funding in 2020, 2021, 2022 and again in 2023 “for the continued development and rollout of the Programme on a national basis.” The programme is supported by national policy and is included as a recognised intervention in the Apprenticeship Action Plan 2021 – 2025 launched in April 2021.

The complainant’s contract as manager of the programme was extended in March 2021 for a further fifteen months to August 2022. The combined duration of both contracts was three years and nine months. In August 2022, his salary was €99,295.00.

On March 19th, 2021, President of the respondent, David Fitzpatrick stated publicly that

“The Access to Apprenticeship Programme has been running for a number of years and is a core part of the future of TU Dublin”

In light of this, it is difficult to understand why the complainant was not then offered a permanent contract in the position and no statement of objective justification was provided to the complainant as to why the respondent did not offer him a CID when his contract was renewed in March 2021.

On December 2nd, 2021, the complainant met with James Curtin, Dean of the Faculty of Engineering and Built Environment, to discuss the renewal of the contracts of the ATA’s two staff members, he, and his colleague, and was referred to Alan Reid, HR Business Partner for the faculty.

They met on January 20th, 2022, and Mr. Reid advised that further contract extensions would result in contracts of indefinite duration for the programme team, and that the extensions must be made on the basis of a deliberate commitment of the University to the programme rather than by accident.

On February 7th, 2022, the complainant submitted a memo to James Curtin, highlighting that the contractual and staffing issues in relation to the ATA was urgent as the contracts for the two staff members were due to expire in August 2022. InMarch 2022, James Curtin submitted a business case to continue the complainant’s post as ATA Manager, as well as that of a colleague.

In or about April 12th, 2022, the application was reviewed by Staffing Posts Approval Group (SPAG), which deferred a decision and advised inter alia that:

“Access to Apprenticeship Programme Manager (PO) (PWT) Will increase ECF [Employment Control Framework] by 1 Engineering & Built Environment College Administration Deferred. The committee strongly supports the Access to Apprenticeship programme; however, given the context of OD [Organisational Design] and the plan to make these grades permanent, the committee cannot support this request and has requested that it be referred back to the broader OD Project Team via the Dean to come back with a related proposal to support this activity.”

(Organisational Design (OD) is a process of restructuring staffing following the merger of DIT, ITB and ITT. The OD Strategy and Implementation Project Steering Board is the decision-making body of the process).

The document listing the decisions of the OD Project Steering Board of April 13th, 2022, Project Steering Board Log Phase 2 Sept 22, states “Renewal of Senior Management posts pending transition to new OD: approved subject to no exposure re CID – if there is an exposure, request to renew must go through SPAG.”

On April 25th, 2022, feedback from the Organisation Design Strategy and Implementation Project Steering Board from April 2022 was shared with Faculty Design Boards and the following decision of the Steering Board was communicated:

“To allow us to achieve our objectives in relation to access and apprenticeship as set out in the Strategic Plan 2030, the Project Steering Board will establish a working group who will outline the intended University approach to both access and apprenticeship. This working group will be established by the end of July 2022 with a view to developing an implementation timeline in September 2022, running to September 2023.

The output from this working group will consider current roles and activities (at the University, Faculty and School level) as well as additional roles and activities and will inform the post-transition organisation designs for these activities.

Pending the output of this working group, no additional roles in the areas of access or apprenticeship will be approved and current roles and responsibilities will remain in effect.” (Emphasis Added)

In May 2022, based on the success of the programme, the respondent and Technological University of the Shannon entered into an Agreement to establish the National Access to Apprenticeship Programme. The respondent is the Coordinating Provider for the national programme with TU of the Shannon a collaborating provider. This results in the TU Dublin ATA having a range of additional coordination and expansion responsibilities in addition to managing and delivering its own Programme.

The feedback on emerging Faculty and School designs following the Steering Board on Monday May 9th, 2022, included inter alia the following:

“The Steering Board requested that the Access to Apprenticeship Programme Manager (PO) and the Access to Apprenticeship Programme Officer (VII) positions are considered within the School level organisation designs and not within the Faculty organisation design.”

The complainant was informed of SPAG’s deferral of the decision, referred above, on May 11th, 2022, by Alan Reid and he met with Mr. Curtin the following day, who confirmed this and undertook to make enquiries as to what the feedback meant.

On May 19th, 2022, Mr. Curtin informed the complainant that his application to make the posts permanent had been unsuccessful and that his contract would not be renewed, that the current posts would be discontinued and staff within whichever school it was ultimately relocated would absorb the programme and manage it alongside their other responsibilities. The complainant was informed that the primary issue was the Employment Control Framework (ECF), and that the Faculty was all but at a headcount capacity.

The complainant responded that the removal of the dedicated programme staff and the absorption of the work by others, was neither feasible nor compatible with delivering a successful programme and meeting the expanding commitments to funders, partners, students, and the Programme Advisory Board Mr. Curtin thereafter proposed that they seek a two-year extension to the contracts of the complainant and his colleague to allow an orderly engagement with the Organisational Design Process.

With the direct input of James Curtin and Anne Marie Corry (Manager of the TU Dublin Foundation and Advisory Board member) the complainant drafted a memo setting out the case for the extension of the two programme staff contracts. That was forwarded to the President of TU Dublin, David Fitzpatrick, on May 25th, 2022. The President is a key member of the Organisational Design Project Steering Board, and the complainant was advised that he was supportive of the contract extensions.

In another email on that day, James Curtin, Dean of Faculty of Built Environment, stated to Anne Marie Corry in relation to extending the complainant’s contract, that the priority was not funding but rather “not being tied to a structure that doesn’t fit when OD is complete.”

It is notable that the only way that the respondent would be “tied to a structure” would be if the positions operating the Access to Apprenticeship Programme became permanent posts.

On June 9th, 2022, the Faculty Report on Organisational Design for Engineering and Built Environment was launched and was presented by James Curtin to all staff on 9 and 16 of June. The complainant’s post was included in both the presentation and the Faculty Report on a fixed-term basis as a member of the faculty staff post August 2022.

However, despite this, on June 17th, 2022, the complainant was told by James Curtin that he would not be submitting a business case to renew the contracts because it did not have the support of the “right people”. The complainant was advised that the OD Steering Board had decided not to renew his contract.

There is no record of this decision in the documentation of the OD Steering Board and despite an earlier assertion to the contrary, Mr. Curtin advised that the complainant’s grade was an issue. The complainant was shocked and noted the inclusion of his post in the OD Report. On June 21st, 2022, he sought clarification and an explanation but got no response.

Therefore, and despite the ongoing commitment to the programme from the Minister for Education, the President of the University and others, despite funding being secured, despite the ongoing need for the complainant in his role, despite the inclusion of the role in HEA Access to Apprenticeship budgets and the planning and organisational design reports, and despite the university’s commitment that pending the determination of the OD process for access and apprenticeship existing roles and responsibilities would remain in effect, the complainant’s tenure in the position was terminated in August 2022.

The decision not to renew the complainant’s contract and that of his colleague, was met with total surprise by the programme Advisory Board, which had supported it since 2017.

Around July 2022, without any consultation whatsoever, the complainant was advised that he would have to take up the role of Orientation Lead in Student Services and Wellbeing on a temporary basis pending the transition to organisational design, to be reassigned to another role thereafter.

Without prejudice to his claim that he was entitled to a CID in the role of Programme Manager of the ATA, at Principal Officer grade, this was directly contrary to the entitlement to return to the role of Programme Co-Ordinator of the Access Foundation Programme.

The complainant lodged his complaint to the WRC in November 2022 with regard to his entitlement to return to this role. He also raised concerns internally with Mary Malone, Head of HR of the respondent regarding his entitlement. Following this, the complainant was ultimately advised that he could return to that role, which he did on 23 January 2023.

Around February 2023 the Respondent’s budget submission to the HEA included funding for two posts for the Access to Apprenticeship Programme including identical duties as had applied to the complainant’s post previously, but at a lower pay scale.

When the complainant shared his solicitor’s letter in relation to the decision not to renew his contract with the Programme Advisory Board on 5 July 2022, the respondent threatened disciplinary action against him on 26 July 2022 and 12 August 2022.

LEGAL SUBMISSION

Fixed Term Employee

Since Power v Health Service Executive there can be no doubt that the complainant was a fixed term employee within the meaning of and for the purposes of the Act.

Avoidance of Contract of Indefinite Duration

The relevant provisions of the Act are Sections 9 and 13. Section 9 provides:

9.— (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.

Section 13 provides:

13.— (1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

(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.

In accordance with Section 9(3), the next renewal of the complainant’s contract in the position of Manager, would have resulted in his acquiring a CID by operation of law.

In accordance with Section 13(1)(d), penalisation includes the circumstances where the non-renewal was wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration under section 9(3).

It is submitted that there can be no doubt that the failure to award the complainant a further contract of employment, was wholly or partly for or connected with the avoidance of CID.

In essence, he was told as much.

Further, the continuation of the programme was publicly announced and supported by the President of the University and even the Minister for Higher Education. The complainant’s role was required and formed an essential part of the Access to Apprenticeship Programme structure going forward.

The role is included in the Respondent’s budget submission to the Higher Education Authority (HEA) for 2023, which has been approved by the HEA. The complainant’s success in the role was well recognised. It is submitted that the only reason, or at least the operative cause, for not awarding the complainant a new contract in the role, was to avoid his acquiring a CID.

In Hugh O’Neill v Trinity College Dublin ADJ-00033533, the Adjudication Officer held that:

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.

The Adjudication Officer went on to find as follows:

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.

The complainant relies upon this decision in its entirety.

The complainant seeks reinstatement to the role of Programme Manager of the Access to Apprenticeship Programme, at Principal Officer grade, in accordance with Section 14 of the Act. Notwithstanding the stress that the complainant has experienced as a result of the actions of the Respondent, he remains passionately committed to the University and to the Access to Apprenticeship mission.

Failure by the respondent to provide a written statement

1. Section 8 of the Act provides:

8.— (1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

No written statement was provided to the complainant for the failure to issue a CID in March 2021 and the Adjudication Officer is asked to draw such inference as may arise therefrom.

Claim under the Payment of Wages Act 1991

2. Section 5(6) of the Payment of Wages Act states:

Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion

In accordance with Dunnes Stores (Cornelscourt) v Lacey and Nuala O’Brien [2005] IEHC 417 [i] and Health Service Executive v McDermott [2014] 6 JIC 1902 it is the remuneration that is ‘properly payable’ to the complainant that falls to be considered.

In this case, the remuneration that was properly payable to the complainant was that of a Principal Officer, being a salary of €99,295.00 However, from August 2022, the remuneration paid to him during the reckonable period was not the payment that was properly payable to him as he was paid at a salary of Staff Officer Grade V, being €53,454.00

Accordingly, there is a deficiency or non-payment to the complainant during the reckonable period of approximately €12,000.00which in accordance with Section 5(6) of the Act, constitutes an unlawful deduction within the meaning of the Act.

Further Penalisation under the Act.

The complainant sought to invoke his right to be treated, in respect of his conditions of employment, in the manner provided for by Part 2 of the Act and in good faith opposed by lawful means acts which were unlawful under this Act, both internally and externally by referring a claim to the WRC on 15 July 2022.

He was thereafter penalised within the meaning of Section 13(1)(d) of the Act as set out above but also within the meaning of Section 13 (2) which provides:

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.

In particular, the complainant suffered unfavourable change in his conditions of employment and/or was treated unfairly.

In July 2022, the respondent utterly ignored his entitlement to the role of Programme Co-Ordinator of the Access Foundation Programme. Instead of returning him to that position, without any consultation or consideration of the impact upon him, the complainant was put into the position of Orientation Lead in Student Services and Wellbeing pending the transition to organisational design, to be reassigned to another role thereafter.

The uncertainty and lack of consideration for the complainant, who had only ever shown total commitment to the respondent and performed the role of Manager of the Access to Apprenticeship Programme with great capability and dedication, caused great distress and upset to him and caused him to become ill resulting in a period of stress related sick leave.

The complainant returned to the position of Programme Co-ordinator of the Access Foundation Programme on January 23rd, 2023. This was following his complaint to the WRC and after raising his concerns internally with the respondent.

The complainant seeks compensation.

Evidence of Witness, Robert Maher.

The complainant gave evidence on oath.

He confirmed information in the submission relating to his appointment on a CID in 2017. Subsequently he was appointed Manager of the Access to Apprenticeship Programme (ATA) both with the respondent and with other universities. He reported to the Dean of the Faculty.

The programme was run three times a year and was initially funded from philanthropic sources. In 2022 two further post were added.

He said he had discussed the contract extension with Alan Read, HR Business Partner as set out in the submission and the implication was that the ATA programme was to continue. This was reinforced by the statements of the President of the University that it would be an important part of its future.

On December 2, 2021, he had a meeting with the Dean, Mr Curtin to express concern that the programme could come to an end and his contract expired and he suggested that the complainant liaise with Alan Read. He said that the programme had been very successful as set out in the submission.

He drew attention to the material in the submission where there was a statement that the programme would be approved subject to there being no CID issue. There had been a proposal to appoint a working group at the end of July 2022, however that working group was never convened.

Nonetheless it was an important statement in the documentation that current roles should remain in effect and the complainant said he did not know why this was not implemented.

He had a discussion with the Dean on April 19th, when he was told that this contract has not been renewed Mr Curtin suggested that a two-year contract might be an option. A letter then went to SPAG jointly from the complainant and the Dean about the potential risks to the programme which might also include the requirement to return funding to one of the providers.

The witness stated that there was a clear reference in the documents to the structure foreseen arising from him getting a CID. However, he said that he had a meeting with the Dean and on June 17th, he was told that Organisation Design had not supported his extension. He said he could not believe this as funding being in place removed any obstacle to his appointment.

The witness said that he was told by HR that after August 2022 he would be given a new position at the grade he previously occupied before his appointment to the ATA. However, he was given no details in relation to the job description or duties.

The witness said that a new budget for the programme was approved for 2023 but with approval for two staff at a lower level than before.

In response to a question as to what he was told he would be doing after August 2020 the witness said that he was told he would be given a new job at his former grade but was not given any detail as to what it was.

After his return from a period of sick leave he had a meeting on November 8th, with a manager, Brian Gormley, who told him again to contact HR which he did the following day.

He was told to wait and then heard nothing further until his return to work date on January 20th. He stresses that contrary to the implication in the respondent’s material he had not taken any unauthorised leave.

He also described the impact of all of this on his health; he had several months‘ sick leave and returned to work on a significantly lower salary than he had previously enjoyed.

(The complainant continued his evidence at the second hearing)

The witness said that the immediate impact of his non-appointment was that the programme as scheduled to be run in September 20 22 were cancelled and he believes that some emergency measures were put in place to enable the programme to be run. This allowed two intakes in January and April the following year which ran without the full complement of students. In fact, it bore no resemblance to the previous programme and the Advisory Board has not been convened since.

Applicants to the programme were told that it was delayed as a result of staff issues, and he understands that the higher education authority has asked for an emergency meeting with the advisory board.

The witness said that the university was failing to honour commitments at national level to the programme. In response to questions about the Organisation Design process, he stated that many posts were filled without OD approval, and he referred again to the April 2022 document in which it was stated that current roles were to remain in place.

He also expressed the view that had he remained in post he would have become eligible for a CID.

The witness was cross-examined.

Asked if the ATA programme did, in fact run after he left it, he confirmed that it did but not to the same level.

Also, while agreeing that individual colleges had responsibility for the programme and not the National Committee, he said that the work required at that level was identical to the work he had been undertaking.

It was also put to the witness that he had been on a number of fixed term contracts previously, but he said, nonetheless he did not expect that this one would come to an end in the manner it did, especially given the public statements that were being made about the importance of the programme, specifically that by the President of TUD.

In relation to his having been included in organisation chart in the June 2022 report it was put to him that this was an interim situation and has his position defined as a fixed term contract. The complainant replied that this was a statement of what was projected for September.

Finally, the complainant confirmed that he had reverted to his substantive post.

That concluded his evidence.

Summary of Respondent’s Case:

It is clear from HSE v. Power [2021 IEHC 346] that the complainant can be defined as a fixed-term employee with the protections provided for in the Protection of Employees (Fixed-Term Work) Act 2003. In this case, the complainant had a specific date of termination.

However, unlike in Power, the complainant was not in the fixed-term employment in excess of four years. Importantly, unlike in Power there was and is no permanent position available for the complainant to obtain, apply for, or be reinstated to. The fixed-term position of Programme Manager does not exist within the respondent’s Organisational Design. The complainant’s claim to be reinstated to his fixed-term appointment on a contract of indefinite duration should be dismissed.

TU Dublin brought together three institutions, Dublin Institute of Technology, Institute of Technology Blanchardstown, and Institute of Technology Tallaght. The complainant had originally commenced his substantive employment in Dublin Institute of Technology.

In forming TU Dublin, an effective organisational structure was identified as an essential aspect of the Respondent’s development. In February 2020, the Organisation Design Strategy and Implementation Project commenced.

Up to December 2022, more than forty-five design boards/ teams, with over 700 members from across the student and staff community worked to develop a unitary organisation design (OD). Over five hundred engagement events were held with over 10,000 attendees in total.

Prior to the final report there were a number of documents prepared by the Project Steering Board for the purposes of providing feedback on the proposed designs developed by each Faculty Design Board (FDB). The feedback documents were presentations only and not final decisions. The Project Steering Board is the design authority for the organisation design and had the final approval on designs.

This new organisational design established out of the three former Institutes, five new Faculties, 25 new Schools, 4 new Vice President functions and 10 new professional services and created a unitary structure which will facilitate a single way of operating across the University.

The complainant’s fixed term appointment was in the Faculty of Engineering and Built Environment. The Organisational Design Report for this faculty was issued in September 2022 and titled Detailed Design Report Faculty of Engineering and Built Environment. The document sets out the detailed organisational design for the Faculty and outlines at page 3:

“The high-level faculty vision.

The faculty capability map and maturity assessment.

The organisational structures;”

The Faculty’s organisational structure is set out at pages 18 to 20 of the Report. There is no Programme Manager for the Access to Apprenticeship programme. There is no Principal Officer grade position in the programme or for any school in the Faculty of Engineering and Built Environment.

The Access to Apprenticeship (ATA) programme is delivered by the Faculty of Engineering & Built Environment of TU Dublin. The Head of Mechanical Engineering is currently administering the programme. There are no administrative or coordination positions approved for the ATA programme.

On 15 July 2022, the complainant raised two complaints pursuant to Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 and by way of a further complaint form on 1 November 2022 submitted a complaint under section 6 of the Payment of Wages Act 1991 and raised a third complaint pursuant to section 14 of the Act of 2003. All four complaints are the subject of the within hearing.

CA-00051706-001

The complainant submits that the failure to provide a CID for the Complainant’s fixed- term appointment as Programme Manager constitutes penalisation under the Act of 2003 as an attempt to avoid the complainant receiving a contract of CID.

CA-00051706-002

The complainant further submits that neither his contract of employment nor his extension letter contain any objective justification for the renewal of the fixed-term contract.

CA-00053485-001

The complainant makes a final Complaint for penalisation (without prejudice to his first and second complaints). The complainant claimed that following the cessation of his fixed-term contract he should revert to his CID as Staff Officer titled Access Foundation Programme Co-Ordinator. The complainant submitted that on 25 July 2022 he was informed he would be reassigned to a different role as a Grade V Orientation Lead in Student Services and Wellbeing on a temporary basis as penalisation for having raised the complainants in July 2022.

CA-00053485-002

The complainant raised a complaint under Section 6 of the Payment of Wages Act 1991. The complainant claims that his return to his permanent position and CID as a Grade V Staff Officer, with a lower salary scale of €53,454.00, is an unlawful deduction of wages and claims that none of the requirements of section 5 of the Act of 1991 are in place to justify the non-payment of wages properly payable to the Complainant.

The complainant is seeking redress pursuant s.14 of the Act of 2003, and s.6 of the of the Act of 1991 as outlined in both Workplace Relations Complaint forms.

The complainant was employed with a Contract of Indefinite Duration with effect from 1 January 2017 on a Staff Officer Grade V salary scale to the Post of Access Foundation Programme Co-Ordinator. The complainant was reporting to Grainne Lynch, Line Manage, Access and Civil engagement.

On November 12th, 2018 the complainant entered a 2.5 year fixed-term appointment to the role of Programme Manager Access to Apprenticeship at a Principal Officer grade. The Contract stated at Clause 3, Nature of Position, that “This is a fixed term wholetime appointment from 12th, November 2018 until 11th, May 2021. At the end of the fixed term, you will revert to your substantive grade of Staff officer in the Institute”.

It further stated that “The Unfair Dismissals Act 1977 to 1993, will not apply to a dismissal consisting only of the expiry of the specified purpose of this contract.” At Clause 6 the position was to be remunerated on the Principal Officer salary scale for pay purposes only.

On 11 March 2021, the Complainant’s fixed-term contract was extended on a fixed- term wholetime basis until 11th August 2022. The extension stated,

“At the end of the fixed term, you will revert to your substantive post as Staff Officer within the University.

…All other terms and conditions of your employment remain the same.”

On 25 July 2022, the complainant was informed he was to be reassigned on August 12th, 2022, to the position of Orientation Lead (Grade V) post in Student Services and Wellbeing on a temporary basis pending the completion of the transition of professional services to the new organizational design. The complainant was remunerated at the max of the Staff Officer salary scale, €53,454 gross per annum.

The complainant took a period of certified sick leave from 8 August 2022 until 4 November 2022. The complainant was deemed fit to return to work and engage with HR/Management by Medmark on 3 November 2022 on the expiration of his sick cert on 7 November 2022.

The complainant was then on an unapproved absence (an absence that is not supported by a doctor’s medical certificate or where a staff member fails to clock in/out during the day) from 7 November 2022 - 23 December 2022, 3 January - 20 January, 7 February 2023 - 14 February 2023, and then periodically from 14 February to date of the within submissions.

The complainant contacted Ms Mary Malone, Head of HR, within the respondent on 9 November 2022 outlining that without prejudice to his claim of entitlement to his fixed-term position as Programme Manager his CID and substantive post was as Access Co-Ordinator not as Orientation Lead and that he had a contractual entitlement to return to this position.

In reply on 16 November 2022 Ms Malone confirmed the complainant would be returning to his substantive post.

“By way of update in relation to your email, I have reviewed the HR records and I am in agreement with you that your substantive post is Access Co- Ordinator (Staff Officer) as you were awarded a Contract of Indefinite duration in this role. I believe you should revert to this role and I have asked HR colleagues to advise the Head of School of Hospitality Management in this regard. I should also mention that the staff member who was appointed temporarily to cover the Access Co-Ordinator role, will also revert to her substantive post in accordance with standard practice in these types of staffing arrangements.

HR colleagues will work with the Head of School to clarify the date on which you should return to your substantive post and we will contact you immediately once these arrangements are in place.”

When the complainant was appointed on his fixed-term contract Ms Johanna King was employed on a fixed-term contract to cover the Complainant’s substantive CID, the Grade V Access Programme Co-Ordinator. Her appointment letter of 28 November 2018 states, “This post is offered on a specified purpose basis, covering for staff member Mr. Bobby Maher who has been reassigned to another post in the Institute. At the end of the specified purpose you will return to your substantive post as Assistant Staff Officer within the Institute.”

Ms King’s fixed-term Contract commenced on 10 December 2018 reporting to Dr Dominic Dillane, Head of School of Hospitality Management and Tourism.

The respondent tried to return the complainant to his CID at the earliest opportunity following his reversion from his fixed-term post and for his replacement Ms King to revert to her previous post. On 13 December 2023 Dr Dillane contacted the respondent and confirmed a start date at the commencement of Semester 2 of 23 January 2023 for the Complainant’s return to his CID.

The complainant returned to his CID on 23 January 2023 reporting to Dr Dillane.

Prior to the final Organisational Design report issuing in September 2022 there were a number of documents prepared by the Project Steering Board providing feedback on a University wide basis the proposed designs developed by each Faculty Design Board (FDB). Each FDB comprised a Faculty Dean (Chair), the Heads of School, and others who had been selected through an Expression of Interest process. The purpose of the feedback was for the FDBs to consider the observations of the Project Steering Board before submitting their final recommendations on the design for each school and faculty.

The Organisation Design Strategy and Implementation Project Steering Board Feedback of 25th May 2022 provides,

“The Deans presented the updated Faculty and School designs for September 2022 to the Project Steering Board on Wednesday 25 May. This was the final of three review meetings held by the Steering Board to review, provide feedback, request alterations and ultimately approve the detailed faculty and school designs. Additional feedback for each Faculty and School is provided below.”

In June 2022 there was a presentation and document titled Engagement Event with Faculty of Engineering and the Built Environment Organisation Design Strategy and Implementation Project June 2022, at page 113, the Complainant’s fixed-term role is listed under the Faculty Design. The position is highlighted in green to indicate a fixed term role.

The complainant refers to this document in his letter of 5 July 2022 to the respondent that ‘the Detailed Design Report for the Faculty of Engineering and Built Environment, which was presented to faculty staff in June 2022 by the Dean, James Curtain, includes in the Faculty Organisational Design Chart for September 2022 my post as Access to Apprenticeship Programme Manager, as well as that of Programme Officer.’

However, the green coding indicated a fixed term position. The steering board did not approve the position as part of the overall final faculty design as set out in the final report.

The role was in the June design to give the existing "as is" and forecast state (i.e., in May and June). Moreover, the FDB has mapped the role as expiring the role in August 2022.

The ATA programme is delivered by the Faculty of Engineering & Built Environment of TU Dublin. The Programme supports the transition of young people (16-24 years old) from disadvantaged backgrounds into an apprenticeship scheme. It is a 12-week full-time programme and provides the participants with the opportunity to sample a range of apprenticeships in; Construction, Engineering, Electrical, Motor and Aviation industries and prepare CV and interview Skills, undertake work experience, and obtain Health & Safety and Safe Pass Certificates.

A Business case for the appointment of the complainant to the role of Programme Manager beyond the fixed-term appointment was made by the Dean James Curtain of the Faculty of Engineering and the Built Environment, however, it was ultimately not approved.

The Staffing Posts Approval Group [SPAG] is an interim arrangement created to assist the university's governance structures during its organizational design transition by facilitating staffing decisions, preventing role duplication, responding to growth areas, and overseeing employee cost forecasting. The minutes of 12 April 2022 meeting set out the SPAG decision of the Complainant’s position at page 2.

“Deferred. The committee strongly supports the Access to Apprenticeship programme; however, given the context of OD and the plan to make these grades permanent, the committee cannot support this request and has requested that it be referred back to the broader OD Project Team via the Dean to come back with a related proposal to support this activity”

The business case for the complainant (dated approximately April 2022) was refused on a University wide centralised assessment of several positions across all faculties. The position was deferred until it could be confirmed if the role of Programme Manager would be part of the Organisational Design for the Faculty (report dated September 2022) which it ultimately was not.

The funding letter of 14 March 2023 from the HEA for the ATA programme outlined that the HEA would continue to support the initiative on a national basis. The ATA at the respondent was aligned with TU Shannon/Midwest and within their forecasted budgets of January 2023 identified and made a submission for two administrative /co- ordination roles at Grade VI and VII.

The respondent has not approved or submitted any management or co-ordination roles for the ATA to date. The Head of Mechanical Engineering Mr. Ray English is currently administering the programme

On July 5th, 2022 the complainant representatives outlined his allegations and wrote to the respondent requesting that his contract of employment be renewed, and the complainant be provided with a contract of indefinite duration as Programme Manager.

The letter was circulated beyond the respondent to several third parties.

On July 8th, the respondent wrote to the Complainant’s representatives stating that the matter will be addressed in line with the University Procedures and that it was inappropriate to circulate such correspondence to several parties outside of university.

By letter of July 26th, 2022, the respondent outlined,

“The University remains fully committed to the future of the Access to Apprenticeship programme. For clarity, the position of Programme Manager as outlined in the Faculty Design report was not approved by the Steering Board of the University and it is not included in the Faculty Design beyond its expiry in August 2022.

Please note, there has never been ambiguity regarding the nature of Mr. Maher's temporary position with the Programme.”

Further the respondent outlined that the circulation of the Complainant’s allegations and grievances to third parties outside of the University had, “caused serious reputational damage to TU Dublin and the Access to Apprenticeship Programme which, for the avoidance of doubt, could be deemed actionable under the TU Dublin Disciplinary Procedures.”

The complainant and respondent engaged in further correspondence where both outlined their respective positions on 29 July 2022, and 12 August 2022. The respondent confirmed,

“In drawing Mr. Maher’s attention to the Disciplinary Policy was not in response to him raising concerns, we would encourage all staff to bring any matters which are of concern to our attention, and we will support such colleagues in so far as thee University can. Instead, it was a clear breach of confidentiality caused by your letter of 5th July 2022 wherein your firm copied multiple stakeholders outside this process which causes the matter to be considered in light of disciplinary action.”

It is and was made very clear that there was and is no threat for disciplinary action to the complainant for having raised the within complaints. To clarify and confirm there has been no disciplinary action taken or is intended to be taken against the Complainant.

Legal Submission

Section 2 of the Act of 2003 defines a fixed-term employee as,

“fixed-term employee” means a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event …

The respondent accepts that the complainant was a fixed-term employee during his employment as programme manager at the Respondent. The complainant is by also definition a permanent employee with the respondent due to his Grade V Staff Officer CID.

In HSE v. Power [2021 IEHC 346], Simons J. held in its ordinary and natural meaning, the definition of “fixed-term employee” merely requires that the end of the contract of employment concerned is determined by an objective condition, the arrival of a specified end date and/or the occurrence of a specific event, namely within this case an appointment of a group chief executive on a permanent basis.

In Power the employee was in the post of group chief executive, under successive fixed- term contracts and would terminate and revert to his substantive permanent position. The fixed-term contracts had an aggregate duration of in excess of four years.

At paragraph 100, it was held,

“This judgment does not stand as authority for any wider proposition. It does not, for example, find that an existing employee who has been acting up in a more senior role for in excess of four years is automatically entitled to remain in that post. It is perfectly possible, within the confines of the Protection of Employees (Fixed-Term Work) Act 2003, for an employer, such as the Health Service Executive, to fill a vacant post on an interim basis pending the carrying out of a formal recruitment process.

This judgment goes no further than holding that where a vacant post has been filled by an individual pursuant to successive fixed-term contracts with an aggregate duration of in excess of four years, an employer cannot avoid the Act merely by dint of the fact that that individual is an existing employee with a right to revert to their original post. Rather, once the four-year threshold has expired, objective grounds of justification are required.”

It is clear from Power that the complainant is defined as a fixed-term employee with theprotectionsprovidedforintheActof2003.

The decision provides that an objective condition is necessary for the fixed-term contract to terminate. In the within case, the complainant had a specific condition and date of termination. Unlike in Power, he was not in the fixed-term employment in excess of four years. Importantly, unlike in Power there was and is no permanent position available for the complainant to obtain or apply for. The position does not exist, and the complainant should not be reinstated to his fixed-term contract on a contract of indefinite duration.

Section 9 of the Act of 2003 provides a prohibition on excessive fixed-term contracts

“9.—(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.”

The respondent did not breach section 9 of the Act of 2003, the complainant was employed on a fixed-term contract and a written contract of 12 November 2018 was provided outlining in clear terms the duration of the fixed-term contract and the reversion to the Complainant’s CID on the specific date of 11 May 2021.

The complainant was provided with one renewal of the fixed-term contract on 11 March 2021.

Section 8 of the Act of 2003 provides,

8. —(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is—

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

(3) A written statement under subsection (1) or (2) is admissible as evidence in any proceedings under this Act.

(4) If it appears to a rights commissioner or the Labour Court in any proceedings under this Act—

(a) that an employer omitted to provide a written statement, or

(b) that a written statement is evasive or equivocal,

the rights commissioner or the Labour Court may draw any inference he or she or it consider just and equitable in the circumstances.

The complainant was provided with a written statement in clear and unequivocal terms it stated the fixed-term contract had a specific end date of 11 May 2021, and the complainant would return to his substantive CID post upon conclusion of the fixed- term role. The complainant was provided with one extension of this fixed-term contract on 11 March 2021, which again gave a specific end date of 11th August 2022. The extension stated,

“At the end of the fixed term, you will revert to your substantive post as Staff Officer within the University. …All other terms and conditions of your employment remain the same.”

It is clear that the respondent complied with the provisions of section 8 of the Act of 2003 and at no time was the complainant not aware of the specific objective condition of a specific end date to the fixed-term contract, and his reversion to his substantive post upon said end date.

The complainant was not penalised as set out in s.13 of the Act of 2003 which provides.

“13.—(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph

(a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed- term contract being deemed to be a contract of indefinite duration under section 9(3).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.”

The complainant has listed two complaints of penalisation. Firstly, he claims that his contract was not renewed for the avoidance of a fixed-term contract being deemed a contract of indefinite duration. The respondent did not terminate the fixed-term contract for the avoidance of providing the complainant with a CID.

The role of Programme Manager for the ATA programme at the time of the fixed-term extension in March 2021 and at its conclusion in August 2022 was not part of the permanent needs of the respondent. The position was not part of the Organisational Design final report. The position does not exist within the respondent.

Secondly, the complainant was not penalised s.13(2)(a) unfavourable change to his conditions or unfair treatment. The complainant was reverted to his Grade V staff officer position and renumerated the same terms and conditions.

The respondent made considerable efforts to revert the complainant to his position in Access Programme Officer. Which the complainant returned to, reporting to Dr Dillane, on 23 January 2023. This complaint should be dismissed. Further, the complainant in its submission to the Commission regarding this second allegation of penalisation, at paragraph 48, concludes the respondent threatened disciplinary action for having shared the decision not to renew his contract with the Programme Advisory Board. This is a misrepresentation of the correspondence between the respondent and the Complainant’s representatives, as set out above.

It is and was made very clear that there was and is no threat for disciplinary action to the complainant for having raised the within complaints. The respondent has at all times engaged fairly, openly, and lawfully with the complainant.

The complainant is seeking reinstatement to his fixed-term position as Programme Manager. The complainant is seeking redress which would require the specific performance of a CID at a renumeration of approximately €100,000 per annum until the Complainant’s retirement, approximately in the year 2045-2047. The position of Programme Manager does not exist within the Respondent. An award of reinstatement would result in the creation of a role contrary to the Respondent’s Organisational Design. An award of reinstatement is not appropriate or reasonable in these circumstances.

The respondent submits in the strongest terms there has been no breach of the Act of 2003. However, should the commission find for the complainant on any complaint as alleged the appropriate remedy is compensation.

Payment of wages

The complainant raises a final complaint that the remuneration properly payable to the complainant is the remuneration he received on his fixed-term contract, that of a Principal Officer at a rate of €99,295.00. The respondent has at all times complied with its contractual obligations with the Complainant. The terms of the fixed-term contract state, “At the end of the fixed-term, you will revert to your substantive post as Staff Officer.”

In August 2022, the complainant reverted back to his CID, a Grade V staff officer, and the renumeration of €53,454.00. The respondent has paid all renumeration due to the complainant as per the terms of his fixed-term employment contract, for its duration, and upon reversion to his CID. The respondent has not made any unlawful deduction from the complainant at any time, within the meaning of the Act of 1991. This claim should be dismissed.

Furthermore, the complainant is seeking the redress of reinstatement to his fixed-term role. The complainant cannot seek reinstatement and concurrently seek to pursue a claim under the Act of 1991, to do so would unjustly enrich the complainant where he to be successful in both complaints.

The respondent submits that there has been no breach of the Protection of Employees (Fixed-Term Work) Act 2003 or the Payment of Wages Act 1991.

The respondent submits that the Complainant’s claims should be dismissed.

Evidence of Alan Reid

The witness gave evidence on affirmation, and he confirmed that he was in the respondent’s HR function specifically assigned to the faculty in which the complainant works. By way of background he outlined the merger that had taken place between the constituents of what is now the TUD; TTB, and ITT.

He said that this resulted in a university wide exercise to integrate the campuses and in the current context this included engineering, HR etc.

He noted that the complainant had initially been successful in an open competition and was given his first fixed term contract. Then on November 3rd, 2021, his contract was extended. The witness was very clear that this was a fixed term contract and that there was no ambiguity about this.

On June 23rd, 2022, he was told orally that the contract would not be further extended.

The witness said he was approached early in 2022 about the possibility of extending the contract. He advised in general terms as to what would be required in such an application and the issues to be addressed such as funding.

The witness said he was aware of the decision-making rule of SPAG and the requirements of the Organisation Design process. The Dean made an approach to SPAG and other senior managers, but he stressed that SPAG was the sole decision maker. In the event, a decision on the complainant was deferred and as the OD process was running concurrently the matter was referred there.

Regarding the meeting in June, it was an engagement event which was part of the OD process with its purpose to indicate the direction of thinking and it was not a final document. At that stage it was purely to gain feedback and the final document was produced in September.

In that final report there is no reference to the complainant’s position.

After the complainant left the programme a new structure within the school was set up and it was expected that there would be three separate intakes of sixteen students which he accepted was relatively small. It would now be managed by a head of discipline as this was the standard model throughout the university.

He accepted that there were staffing problems in the programme; one senior manager was lost to secondment and has not been replaced.

Regarding the assignment of the complainant to student services in July 2022 after his sick leave and the purported threat of disciplinary action, the letter oof July 26th, 2022, a number of absences by the complainant were mis-recorded as unauthorised but no disciplinary action or pay deduction followed his absence.

(This concluded the witness’s direct evidence, and the second hearing was adjourned at this stage with a view to his being cross examined at a resumed hearing)

The hearing resumed on November 11th, 2023, with cross examination of the witness.

In response to a question the witness clarified that the complainant had not been involved in the setup of the programme but had been recruited to manage it. It was also put to him that when his contract was extended on November 3rd, 2021, no justification for the extension as required by the Act was put to him and he confirmed this.

He was asked why the extension was for two years and nine months and he said the duration of the contract in terms of time was less significant than the date to which it ran of August 2022.

It was also put to him, and he accepted that funding was in place until February 2023. He accepted that during the complainant’s tenure the program expanded under his leadership.

He also confirmed that he met with the complainant in January 2022 and discussed the CID application. Part of this conversation related to funding and to the nature of the contract and of a CID and the possibility of reviewing the CID was discussed.

This had been requested by the Dean and in due course the application to SPAG was made and reference was made to the minutes of SPAG of April the 12th. There was no reference to a two-year extension and the submission was considered and deferred and referred to Organisation Design.

The witness was asked about the reference to approval being subject to there being no exposure to CID and he replied that this was standard practice in relation to all management positions. However, he could not comment on whether the university had decided not to renew any position where there was an exposure to a CID.

He also confirmed that the working group has not been convened.

In relation to the reference in the minutes to current rules and responsibilities remaining in place, and the question as to why this did not happen in the case of the complainant, the witness stated that in fact his contract did remain in place and reached its natural conclusion. He noted that the ATA Programme was to be assigned to a specific school in line with the university’s normal arrangements but that this was to be decided by the OD working group.

In summary, the respondent submitted that the complaint cannot be made out as the reference in Section 13(d) of the Act to Section 9(3) means there is no contravention. The respondent says that there was no intention to avoid a CID and there is now no position in the faculty at the grade previously held by the complainant (Principal Officer).

The complainant was fully aware that his contract would come to a natural end, but it accepted that no objective justification for the first renewal was provided.

In relation to the second alleged act of penalisation, in fact this was not penalisation for the making of a complaint but for a possible breach of the employee code of conduct. In the event no action followed.

In conclusion the remedy of reinstatement would be excessive and impose an unacceptable financial burden on the complainant.

Findings and Conclusions:

There are four complaints, as set out above in the complainant‘s submission.

1) The first is that the failure to provide a CID for the Complainant’s fixed-term appointment as Programme Manager constitutes penalisation under the Act of 2003 as an attempt to avoid the complainant receiving a CID. CA-00051706-001

2) The second is that neither his contract of employment nor his extension letter contain any objective justification for the renewal of the fixed-term contract. CA-00051706-002

3) The complainant makes a second complaint of penalisation related to various actions he took following the termination of his contract as Programme Director. CA-00053485-001

4) The complainant raised a complaint under Section 6 of the Payment of Wages Act 1991, saying his return to his permanent position and CID as a Grade V Staff Officer, with a lower salary scale of €53,454.00, is an unlawful deduction of wages. CA-00053485-002

The narrative is set out above and its key elements are not in dispute.

The complainant was appointed in 2018 to the Access to Apprenticeship programme, (ATA) which had begun in 2017. He was appointed on a two and half year contract which would bring him to May 2021. In 2020 the ATA, previously funded from philanthropic sources, was funded by the Higher Education Authority, thereby giving it degree of security.

In March 2021, the complainant had his contract extended for a further fifteen months which would take it to August 2022. It was made clear that at the end of this period he would revert to his previous position as a Staff Officer. In his evidence Mr. Reid, for the respondent, said that there was no ambiguity about this.

In the meantime, the programme prospered and was the subject not only of praise by the management of the University but also by a Government Minister and there were plans to expand the model into other Institutes of Technology as late in the complainant‘s tenure as May 2022.

In this, the TUD project would play a lead and coordinating role.

In the early months of 2022 the complainant, whose contract was due to terminate in August of that year, began to take steps to have it extended, and in March the case for doing so was submitted by his line manager to the relevant committee; the Staffing Posts Approval Group (SPAG).

SPAG deferred a decision. At this point it is relevant to recall that the respondent in its new manifestation as the Technological University of Dublin was the product of the merger of a number of institutes in the Dublin area and the internal review process referred to as ‘Organisational Design’ (OD) was part of its strategy for implementing that merger.

As cited above in the complainant’s submission we see here for the first time an expression of concern, or at least of awareness about the possibility of the complainant acquiring a ‘permanent’ position.

Of course, it is entirely valid for Organisation Design (OD) to seek to rationalise the university’s resources in the most efficient way possible after the merger. However, the question to be decided here is as follows.

Did the respondent use the opportunity of doing so to deny the complainant a CID as a convenient device to avoid creating a future staffing difficulty for itself, even though that type of difficulty could arise in the normal run of events involving employees who were already on CIDs simply as a consequence of duplication of those resources following the merger process?

The second reference to the possibility of a CID appears in the decisions of the OD Project Steering Board of April 13th, 2022, where it states,

“Renewal of Senior Management posts pending transition to new OD: approved subject to no exposure re CID – if there is an exposure, request to renew must go through SPAG.”

Again, the issue that arises here is not simply that a decision touching on whether a CID was a likely outcome of any renewal of posts should be referred to another body, the OD group, but rather it is the obligation that would fall on that body to act lawfully. The necessity to rationalise university resources does not provide a justification to ignore the requirements of the law.

On April 25th, 2022, the feedback from the OD group from April 2022 was that a Working Group should be established (in fact it never was) and a fuller version of this appears in the complainant’s submission but the element on which significant argument turned at the hearing was the following:

On May 19th, 2022, the complainant was told by his line manager; the Dean, Mr. Curtin that his contract would not be renewed, that the current posts would be discontinued, and there were references to it not attracting sufficient support.

About a week later, Mr. Curtin confirmed that the problem was not one of funding but of ‘being tied to a structure that doesn’t fit when OD is complete.’ As can be seen, there is some conflation here of the complainant’s then position and the future needs of the structure.

That resulted not only in the termination of the complainant’s role in the programme but also resulted in a very significant setback to the programme itself and the evidence at the hearing was that it has not functioned since at anything near the level it had when the complainant was running it.

it is quite extraordinary that the respondent allowed, indeed may have been indifferent to such an outcome given the success of the programme, the praise it attracted, its extension to other colleges, the fact that finding was not an issue and, more importantly the objective need for its continuation.

Add to this the (initial) support of the Dean, Mr. Curtin for the continued engagement of the complainant and the fact that the programme had a secure stream of funding, and it becomes even more inexplicable.

Whatever the intentions of the university authorities, their inaction has had very negative outcomes, and not just for the complainant, although those are the only ones that are relevant here.

Those tasked with a decision on the complainant’s contract (the SPAG and/or the OD process) could hardly have been unaware of the implications for the ATA of a failure to act, or of a delay in doing so. And yet they did nothing to prevent it; so focused were they, it seems, on avoiding the possibility of the complainant acquiring a contract of indefinite duration

The complainant also highlighted the commitment of the OD group in April 2022 that ‘current roles and responsibilities will remain in effect’ as evidence that there was an intention that he should remain in his post.

Mr. Reid stated in his evidence that this is ambiguous, and this statement could be taken to refer to the fixed term contract reaching its natural end and being satisfied by that. The respondent relied on this fact in distinguishing the current case from HSE v Power [2021] IEHC 346, and in saying that the natural end of the contract represented the ‘objective condition’ required to justify the ending of the contract.

Even giving the respondent the benefit of the doubt on this narrow point is not sufficient to explain how it trumped all the other positives referred to above.

I find that the complainant was a fixed term employee; this is, in any event, accepted by both parties.

His case turns on Section 13 (1) of the Act where it states that ‘an employer shall not penalise an employee’ and at section 13(1) (d) ‘by dismissing the employee from his or her employment if the dismissal is wholly or partly for or connected with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration’.

The complainant relies on the decision in Hugh O’Neill v Trinity College Dublin, ADJ-00033533 wherethe Adjudication Officer held that:

The Adjudication Officer continued:

On the basis of those dicta, there is abundant evidence in this case of the operative cause.

The evidence shows that the university decision makers were fully aware of the probability of a CID as an imminent consequence and indeed, looking at the documents referred to above it was an important factor in their thinking.

While the merger and integration process (the OD process) provides a degree of cover for some of these comments, this same OD process also provided the respondent with the machinery it needed to resolve any future organisational or structural issues that might emerge subsequently, just as they might between other employees who already had a CID, and who were in a reporting relationship or structure that needed to be rationalised.

That is what the OD process was designed for and the suggestion that it could freeze development in the university for fear of giving rise to a problem that it was set up to address and had the resources to resolve is a contradiction in terms and has no merit.

The failure of the university processes to act in this case could be seen as further evidence of discrimination against the complainant as a fixed term worker.

Not only do these comments provide operative cause, but even without them, there is no rational, alternative explanation for the respondent’s actions in allowing a successful and badly needed programme to grind to a halt, rather than allow it to continue for fear that its director might acquire a legal status that would be inconvenient for the university.

In O’Neill v TCD the respondent at least made the case that the reason for not renewing the complainant’s contract was because there ‘was a change in direction in the strategic plan and the Business Analyst role was created’ (this latter role being an alternative to that of the complainant in that case.)

While that argument did not find favour in O’Neill for other reasons, nothing resembling it has been made in this case by way of a justification for the respondent’s actions (or failure to act). As we have seen there was no ‘change in direction,’ only a decision to do nothing.

The respondent’s simple assertion that it did not terminate the fixed-term contract for the avoidance of the complainant acquiring a CID is not only unsupported by any evidence, but it is contradicted by the weight of the evidence and the balance of all probability in the case set out by the complainant and supported by the written records.

Indeed, I find that the weight of the evidence tilts that balance of probability to a point where there can be no doubt that it is the only sensible conclusion that can be reached on the balance of that evidence.

Likewise, the respondent has placed emphasis on the fact that the position formerly occupied by the complainant does not exist within the university, but of course this is only true since the complainant’s role was terminated and gives rise to a circular argument; the position would exist if the complainant had been left in it (subject of course to any future decision of Organisation Design as would apply to any member of the university’s workforce).

Accordingly.

1) Regarding complaint CA-00051706-001, I find that the complainant has locus standi under the Act and that the failure to renew the complainant’s fixed-term appointment as Programme Manager constitutes penalisation under Section 13 (1) (d) of the Act of 2003 as an attempt to avoid the complainant receiving a contract of CID and this complaint is well-founded.

2) Regarding complaint CA-00051706-002, I find as a matter of fact that neither his contract of employment nor his extension letter contain any objective justification for the renewal of the fixed-term contract and this complaint is well founded.

3) The complainant makes a second complaint of penalisation, CA-00053485-001 and this relates to various steps he took to advocate against the termination of his role. While there were threats of action against the complainant nothing was actually done.

The respondent’s argument that this had nothing to do with the change in the complainant’s contract but related to a breach of the university code of conduct is not entirely convincing, but as no detriment occurred then the complaint is not well founded.

4) Regarding the complaint under Section 6 of the Payment of Wages Act 1991 CA-00053485-002 the complainant says his return to his permanent position and CID as a Grade V Staff Officer, with a lower salary scale of €53,454.00, is an unlawful deduction of wages and claims that none of the requirements of section 5 of the Act of 1991 are in place to justify the non-payment of wages properly payable to the Complainant. I find this complaint not to be well founded under this particular Act for reasons I explain below in the discussion on the remedy on the main complaint.

The complainant is seeking re-instatement. The respondent says that in the event his complaint succeeds the remedy should be compensation.

Counsel for the complainant made the case for re-instatement on the basis that the usual obstacles to that remedy are absent; funding is available, no-one will be displaced, and there is no question over the complainant’s suitability for the role.

These are valid considerations. Not only is it rare to see an award of re-instatement, but it is also rare enough for a complainant to seek that remedy. It was also argued that re-engagement would not be as financially advantageous to him as reinstatement.

I have given the matter of the remedy deep consideration. The word ‘remedy’ itself has several layers of meaning, from the simple neutral meaning applied in the medical world to ‘remedies’ for various conditions which may or may not actually fully remedy (in the literal sense) the condition for which they are taken. They may alleviate or ease it, or provide some relief, but not fully remedy or cure it.

The dictionary offers a selection of synonyms for ‘remedy’ under the separate (non-medical) category of ‘resolve’, which include correct, improve, fix, etc.

In this case I have found that the non-renewal of the complainant’s contract was a breach of the Act. In the circumstances of this case, I do not consider that financial compensation alone is sufficient to meaningfully remedy the injustice to the complainant, or to compensate him for the manner in which he was treated.

As against this I must balance the fact that the complainant has not been undertaking the role since August 2022, not only to his detriment but to that of the community at large.

Accordingly, I consider that re-engagement is the correct remedy.

This is also the reason why I do not uphold the complaint under the Payment of Wages Act, as the correct remedy for compensation is under the Protection of Employees (Fixed Term) Act. So, while the respondent’s actions in terminating the complainant’s role breached the requirements of that Act, its actions in paying him on the basis of his original contract do not constitute a breach of the Payment of Wages Act as they represented the wages properly payable to him at that time.

In that regard, I fully take account of Section 14 (2)(d) where an award of compensation, such as I make in this case must meet the criterion set out in the Act of being ‘compensation of such amount (if any) as is just and equitable having regard to all the circumstances, but not exceeding 2 years remuneration in respect of the employee's employment’.

In summary, complaints CA-00051706-001 and 002 are well founded. I direct that the complainant be re-engaged in his position as Programme Director on a contract of indefinite duration on the same terms and conditions as he previously enjoyed updated to their current level with effect from January 1st, 2024.

I also award him €20,000 compensation.

Complaints CA-00053485-001 and 002 are not well-founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Complaints CA-00051706-001 and 002 are well founded.

I direct that the complainant should be re-engaged in his position as Programme Director with effect from January 1st, 2024, on a contract of indefinite duration on the same terms and conditions as he previously enjoyed updated to take account of any adjustments to the salary of that grade in the meantime.

I also award him €20,000 compensation.

Complaints CA-00053485-001 and 002 are not well-founded.

Dated: 15th December 2023

Workplace Relations Commission Adjudication Officer: Pat Brady

Key Words:

Fixed term contract, CID.