Complainant

Respondent

Parties

Dearbhail  McKee Maloney

Children's Health Ireland

Representatives

Neil Rafter BL/ Burns Nowlan LLP

Adrian Norton IBEC

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00057084-001

12/06/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00057084-002

12/06/2023

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

CA-00057084-003

12/06/2023

The Complainant worked as a HR Officer at the hospital and commenced her employment on the 13th of September 2021 and she received her final pay on the 12th of January 2023. However, the Respondent contends that the contract ended on the 31st of December 2022 as per the terms of he fixed term contract.

The Complainant while initially on a fixed term contract that contract was subsequently extended for a further 6 months. However, no formal contract detailing the terms of that extension were given to her. She alleged that no explanation/objective justification was provided for this extension and so the contract became a normal contract of indefinite duration. The Complainant alleges that she was penalised for bringing a complaint under the Protection of Employees Act relating to the failure of her employer to allow her to compete for suitable vacancies and ending her contract without cause.

The Complainant was on a salary of €66,081 per annum.

The Complainant took up another HR Manager role on the 1st of February 2023 which is detailed in the Complainant’s form.

The Complainant had backfilled a permanent post and when that became vacant, she should have automatically been entitled to it. She alleges that when her contract was extended the Respondent failed to provide an objective justification and on that basis her contract became permanent. While she did compete for a permanent role; that recruitment process she alleges was flawed and not conducted properly. She also was denied an opportunity to apply for a fixed purpose contract. She raised grievances about these matters, and alleges that they were never properly concluded.

The Complainant was hired to backfill for maternity leave. The Complainant had worked previously for the hospital up to January 2021 and left for another opportunity. The period of employment in dispute began on the 13th of September 2021 and was a fixed term contract to end on the 12th of September 2022. On the 5th of September 2022 the Complainant’s contract was extended to 31st December 2022 and on the 28th of November 2022 she was provided with written notice that this contract would end on the 31st of December 2022.

During the fixed period 3 members of the permanent HR team resigned.  These roles were backfilled initially on fixed terms.

During the second half of 2022 other work colleagues continued to be on maternity leave and for this reason the Complainant’s contract was extended when funding became available to do so.

During October and November 2022, the Respondent ran an internal recruitment campaign to fill 4 HR roles. The Complainant as well as 4 other colleagues applied.  The process was fair and unfortunately the Complainant was not successful and was placed 5th out of 6 candidates. She was also given feedback on the results of her interview by the HR Director.

The Complainant’s Fixed Term Contract began on the 13th of September 2012 and originally was to end on the 12th of September 2022.

The purpose of the contract was to backfill openings in the HR department arising from maternity leave and to support the HR Strategy implementation.  The Complainant was recruited on a fixed term contract as a HR Business Partner to deliver on agreed HR plans and objectives. The purpose is defined at clause 3 of the contract. The contract began on the 13th of September 2021 and was fixed to end on 12th of September 2022.

 That contract specified a fixed end date. The Respondent stated that the contract was extended to the end of 2023 and on a date determined to end on the 31st of December 2022. The Respondent stated that the extension was confirmed by to the Complainant by email dated the 5th of September 2022.

On the 5th of September 2022 the Complainant was informed that funding was secured to extend her contract.

On the 28th of November 2022 the Respondent confirmed to the Complainant that her extended fixed term contract would end on the 31st of December 2022.

The Complainant takes issue with the extension of her fixed term contract and argues that there was no objective reason given to her for it to be extended. She also contends that the failure to provide her with a revised contract meant that no objective reason had been given to her and the contract continued. This meant that in fact she was a permanent employee.

 It is alleged that the requirement to provide information when a contract term is changed was not complied with as no new revised contract was issued to her.

It is alleged that the Respondent failed to provide her with the opportunity to be made permanent based on a flawed recruitment process.

 She takes issues with a competition where permanent posts were available and where she did compete; however, she alleges that her application was not successful. The Complainant contends that having regard to her very significant Human Resource management experience the competition was flawed.

She also alleges that she was denied an opportunity to compete for a fixed purpose contract on or about September 2022.

The Complainant alleges that she raised grievances about these matters and the Respondent failed to properly conclude the grievance process.

The Complainant believes that her employment ended not by reason of the fixed term but arising from her grievances about not being appointed to a permanent role.

Section 2 of Protection of Employees (Fixed-Term Work) Act, 2003 (the Act) as amended states:

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 but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;

On the face of the records opened it does appear that an objective condition was provided which was a specific date to end the contact when the contract was renewed on the 5th of September 2022. While the contract was extended it did set a new date for the contract to end:

Dear Dearbhail

Following our conversation last week, I wanted to confirm that I have secured funding to extend your contract beyond September until 31st December 2022. You will be issued with a new contract in due course but I want to give you assurance in writing.

I note that section 8 of the Act states:

Written statements of employer.

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.

In their submission and at the hearing the Respondent stated that pursuant to section 8 they informed the Complainant on the 5th of September 2022 as opened to the tribunal that the objective grounds justifying the renewal as well as the reason why a contract of indefinite duration could not be offered was that additional funding had been secured, but only up to year end. This written statement included those objective grounds: “I have secured funding to extend your contract beyond September until 31st December 2022”.

The Complainant takes issue with the extension of her fixed term contract and believes that no objective reason existed to extend it. The Complainant was already backfilling an ongoing and permanent post and no funding was required for that role; no objective justification was provided to her when the contract was extended, meaning it then became a permanent ongoing role.

I find that an objective reason was provided to the Complainant relating to the renewal of the fixed term contract and a reason why it was not offering a contract of indefinite duration which was funding was secured until the end of year.

It is argued that the reason why the Complainant was dismissed related to the fact that she raised grievances about what she perceived to be breaches of her rights under the Act to be made permanent and to be provided with the same opportunities as other colleagues:

And section 6 of the Act states:

Conditions of employment for fixed-term employees.

6.—(1) Subject to subsections (2) and (5), 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.

(2) If treating a fixed-term employee, in respect of a particular condition of employment, in a less favourable manner than a comparable permanent employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

(3) A period of service qualification relating to a particular condition of employment shall be the same for a fixed-term employee as for a comparable permanent employee except where a different length of service qualification is justified on objective grounds.

The Complainant was afforded an opportunity to compete for permanent posts. While the Complainant takes issue with how she was denied the opportunity to be placed in a fixed purpose contract; section 10 of the Act states:

10.—(1) An employer shall inform a fixed-term employee in relation to vacancies which become available to ensure that he or she shall have the same opportunity to secure a permanent position as other employees.

(2) The information referred to in subsection (1) may be provided by means of a general announcement at a suitable place in the undertaking or establishment.

(3) As far as practicable, an employer shall facilitate access by a fixed-term employee to appropriate training opportunities to enhance his or her skills, career development and occupational mobility.

In this case the vacancy was not for a permanent contract rather it was for a fixed purpose meaning it too would cease.

 On the facts no case has been made out to show that the Complainant was treated less favourably to a comparable permanent member of the Respondent.

Section 13 of the Act states that:

Prohibition of penalisation of employee by employer.

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.

On the facts the Complainant was recruited to backfill vacant posts in the HR Team for a fixed term. The contract was specified to end on a set date. The Act specifically provides that a set date is an objective condition such as arriving at a specific date. A further extension took place until the end of 2022 and again a specific date was set to end the contract. In turn that new specific date is an objective condition. The reason for the extension until the end of year was that funding was secured until then.

The Complainant did raise grievances about the status of her contract and about recruitment processes. Those grievances were not closed out. There is also a separate issue and grievance about an allegation that the Complainant instructed payroll to make outstanding payments to her not properly authorised by her manager. This allegation is stated to be unfounded and another example of penalisation by her employer.

In assessing if the Complainant was penalised, the factual matrix of the case must be considered. The HR Director hearing the grievance was absent for a period. The payroll matter while important to the Complainant does not show that it was an act of penalisation as the line manager who took issue with the Complainant’s conduct had grounds to do so.

 The Complainant did compete for a permanent role and was unsuccessful. The position where she stated she was denied an opportunity to compete was a temporary role and a fixed purpose contract.

 The Complainant was informed in writing of the extension of her contract and the reason why it could be extended until the end of the year. The employer has the right to fill roles on a fixed term and subject to giving a fixed term employee the opportunity to compete for a permanent role it cannot be forced to make the fixed term employee permanent unless the Act affords that right to the fixed term employee. That is not the case here.

The Complainant takes issue with how the permanent competition was conducted; however, no facts have been presented to this tribunal to show how this is the case.

It is also alleged that the Respondent failed to comply with the Terms of Employment (Information) Act, 1994 by not amending her contract when it was extended. However, by email dated the 5th of September 2022 she was informed in writing of the change.

The factual matrix of this case show that the Complainant was recruited on a fixed term contract what was extended until the end of 2022. The objective conditions in the contract were the set dates and the extension related to funding being available until the end of the year. The contract term was correctly changed once it was provided to her in writing and was unambivalent.

 The Complainant believed that she should have been made permanent and took issue with a recruitment process where she was unsuccessful and with how someone else was provided with a fixed purpose contract and she was not.

However, these facts do not show that the Respondent did not meet the requirement to provide an objective condition, which in this case was a set date. In writing the Respondent did communicate a new extension date and there is no requirement for a new contract to issue. The written email issued on the 5th of September 2022 met both the requirements under the Protection of Employees (Fixed-Term Work) Act, 2003 as amended and the Terms of Employment (Information) Act, 1994. The Terms of Employment (Information Act), 1994 requires that:

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect

The Respondent met this requirement.

In her complaint form the Complainant alleges:

1.       CA-00057084-001 Unfair Dismissal-“I was unfairly dismissed, I have at least 12 months service”.

On the 5th of September 2022 her manager writes to the Complainant and writes:

Dear Dearbhail

Following our conversation last week, I wanted to confirm that I have secured funding to extend your contract beyond September until 31st December, 2022. You will be issued with a new contract in due course but I want to give you assurance in writing.

I find that in effect this email did amend the contract and was in writing. The omission to administratively attach to the original contract and reissue did not negate the change to the fixed term contract. The Complainant was provided with an objective justification for extending her contract and not being made permanent. The reason related to funding secured until the end of the year and a new objective condition to end the contract based on that reason was set as  the 31st December 2022.

I find that a new objective condition to end the contract was provided which was the specified date of the contract ending on the 31st of December 2022 based on securing funding up to that date.

The Complainant has not made out a case that the Respondent penalised her for raising a grievance about her employment status. The facts show that her employment ended by reason of an objective condition which was a specified date in her contract when the contract would end.

Unfair Dismissal CA-00057084-001:

The Complainant’s contract ended by reason of an objective condition as provided for in her fixed term employment contract which stated that it would end on the 31st of December 2022. I find that an objective reason was provided to the Complainant relating to the renewal of the fixed term contract and a reason why it was not offering a contract of indefinite duration. That reason related to funding which was secured until the end of year.

I find that the Complainant was not unfairly dismissed.

Terms and Conditions of Employment CA-00057084-002:

I determine that this complaint is not well founded as the Respondent employer did inform the Complainant in writing and on time of a change in her contract terms prior to the first contract expiring and  that change was in writing and clearly specified.

Penalisation CA-00057084-003:

I have determined that this contract ended based on an objective condition as provided for in her fixed term employment contract. The Complainant has not made out a case that tends to show that she was penalised for invoking her entitlements under the Protection of Employees (Fixed-Term Work) Act 2003 or for refusing to cooperate with a breach of that Act or to avoid giving a contract of indefinite duration. I determine that the complaint is not well founded.

Fixed Term Contract-Objective Condition-Penalisation