ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00049232

Parties:

	Complainant	Respondent
Parties	Rustam Rakhmatullin	The Provost, Fellows, Foundation Scholars And The Other Members Of Board, Of The College Of The Holy And Undivided Trinity Of Queen Elizabeth Near Dublin Trinity College Dublin

	Complainant	Respondent
Parties	Rustam Rakhmatullin	The Provost, Fellows, Foundation Scholars and the Other Members Of Board, Of The College Of The Holy And Undivided Trinity Of Queen Elizabeth Near Dublin Trinity College Dublin

Representatives

self

Niamh Daly IBEC and Mark Comerford IBEC

Complaint(s):

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-00060189-001	23/11/2023

Date of Adjudication Hearing: 16/04/2024 and reconvened on the 18th of November 2024

Workplace Relations Commission Adjudication Officer: Brian Dalton

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The following details the Complainant’s employment contract record with the College:

Contractual History:

The Complainant was initially employed as a Laboratory Attendant in the Bio Resources Unit (now

Comparative Medicine Unit) from 15 January 2007. The claimant was issued with three fixed

term contracts for this post during the period of 15 January 2007 – 10 March 2009.

Subsequently, the Complainant was promoted to Senior Laboratory Attendant in the Comparative

Medicine Unit (CMU) by letter dated 20 July 2010, on a contract of indefinite duration.

The Complainant was successful at competition for a Technical Officer role on a specified purpose

contract which commenced on 1 December 2016.

The objective grounds for this contract stated:

This employment arises as a result of the original post holder’s resignation. In accordance with College policy, a recruitment competition will be held to appoint a replacement to this post.

Therefore the specific purpose of this employment is to provide cover until a recruitment

competition is held and an appointment made. Employment is not offered on an indefinite

duration basis as a replacement appointment will be made during the above fixed term. For

record purposes, I note you hold a contract of indefinite duration at the Laboratory Attendant

grade.

Arising from the fact that this contract continued after the specific purpose had occurred for some time this contract was recognized as a contract of indefinite duration.

The Complainant then successfully competed for the position of Experimental Officer in the CMU,

on a fixed term contract commencing on 1 October 2018, for a period of five years,

terminating on 30 September 2023.

From 1 October 2023, the Complainant reverted to his substantive technical post, on the grade of

Senior Technical Officer.

The Complainant claims as he previously had been on fixed term contracts the provisions of section 9 of the Protection of Employees (Fixed-Term Work) Act 2003 apply to him. This means that the terms and conditions that apply to the Experimental Officer role do not cease at the end of the fixed term:

Successive 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.

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

The Respondent argues as the Complainant was unambiguously aware that the contract was fixed term in nature, and he signed the contract agreeing to this on 9 October 2018, declaring “I accept this appointment on the terms and conditions specified above”, meaning the fixed term contract ended on the 30th of September 2023. This is particularly so as this role is no longer required and does not exist.

On the 5th of October 2023 the College wrote to the Complainant and stated the following:

I am writing to confirm the following change in your terms of employment within the

Comparative Medicine Unit (CMU) at Trinity College Dublin, the University of Dublin.

Effective from 01 October 2023 you will revert to your substantive Technical Officer

role in the CMU. As you fulfil the criteria for progression from Technical Officer to

Senior Technical Officer, I can confirm that you are eligible to progress to the grade

of Senior Technical Officer on 01 October 2023. In addition, following the recent

recategorization of COID staff to permanent in the University you will be permanent

in this role, and this is also effective from 01 October 2023.

The salary scale for the role of Experimental Officer provides for higher value increments than the Senior Technical Officer role. In turn that has potential impact on defined pension benefits into the future.

The hearing was reconvened for a 2nd time so that the following issues could be further addressed, and the attached correspondence sent to both the Respondent and the Complainant.

Complaint by Mr Rustam Rakhmatullin / The Provost, Fellows, Foundation Scholars and The Other Members of Board, Of the College of The Holy and Undivided Trinity of Queen Elizabeth Near Dublin

*Specific Complaint Reference*	*Complaint Area*	*Redress Act*
CA-00060189-001	Fixed Term and Part Time Work	Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

DearMs. Daly,

The above referral relates to the application of the law as determined by the Supreme Court in Power v Health Service Executive [Record No. 2021/94].

The Contract history of the Complaint as set out in your submission is as follows:

Contractual History

The Complainant was initially employed as a Laboratory Attendant in the Bio Resources Unit (now Comparative Medicine Unit) from 15 January 2007. The claimant was issued with three fixed term contracts for this post during the period of 15 January 2007 – 10 March 2009.

Subsequently, the Complainant was promoted to Senior Laboratory Attendant in the Comparative Medicine Unit (CMU) by letter dated 20 July 2010, on a contract of indefinite duration.

The Complainant was successful at competition for a Technical Officer role on a specified purpose contract which commenced on 1 December 2016.

The objective grounds for this contract stated:

This employment arises as a result of the original post holder’s resignation. In accordance with College policy, a recruitment competition will be held to appoint a replacement to this post.

Therefore the specific purpose of this employment is to provide cover until a recruitment competition is held and an appointment made. Employment is not offered on an indefinite duration basis as a replacement appointment will be made during the above fixed term. For record purposes, I note you hold a contract of indefinite duration at the Laboratory Attendant grade.

The Complainant then successfully competed for the position of Experimental Officer in the CMU, on a fixed term contract commencing on 1 October 2018, for a period of five years,

terminating on 30 September 2023.

From 1 October 2023, the Complainant reverted to his substantive technical post, on the grade of Senior Technical Officer.

Successive fixed-term contracts.

(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 argues that the Complainant was unambiguously aware that the contract was fixed term in nature, and he signed the contract agreeing to this on 9 October 2018, declaring “I accept this appointment on the terms and conditions specified above”, meaning the fixed term contract ended on the 30th of September 2023. This is particularly so as this role is no longer required and does not exist.

Clarifications:

1. Did the Complainant move from his fixed purpose contract (which was objectively justified to facilitate a recruitment competition) that commenced on 1st December 2016 to the Experimental Officer Role 5-year fixed term role commencing on the 1st of October 2018. Or had the fixed purpose contract ceased, and he subsequently moved from his permanent role as Technical Officer to the Experimental role from his permanent post?

2. What was the objective justification for the contract now in dispute, was it an express statement in the contract?

3. If a permanent role in the College becomes suppressed arising from a re-organisation what procedure is followed concerning the terms and conditions of that incumbent?

In the matter before this Tribunal the key consideration would appear to be section 9(4) as the Complainant stated that he was promised that the role would become permanent, and no objective justification was provided at the commencement of the 5-year contract from a previous fixed term contract.

I am reconvening as the issues now detailed were not adequately addressed at the first hearing and I wish to afford both parties and opportunity to do so.

Yours sincerely,

Prior to the reconvened hearing the Respondent made a supplementary submission addressing the questions put to them which was copied to the Complainant:

Clarifications Sought by the Adjudication Officer

1. Did the Complainant move from his fixed purpose contract (which was objectively

justified to facilitate a recruitment competition) that commenced on 1st December

2016 to the Experimental Officer Role 5-year fixed term role commencing on the 1st of

October 2018. Or had the fixed purpose contract ceased, and he subsequently moved

from his permanent role as Technical Officer to the Experimental role from his

permanent post?

As per the attached employment history, provided at Appendix 1, the Complainant was first

hired as a Laboratory Attendant in which he accrued CID, which was confirmed to him. There

was an extension of the FTC Technical Officer role, the purpose changed but a contract

extension was not issued. The initial FTC was for a 6-month period, but as the Complainant

remained in the post for a period of 1 year and 10 months, the Respondent deemed him to

have accrued permanency as a Technical Officer on foot of no renewal contract issuing, as

provided for in row no. 7 in the employment history table attached at Appendix 1.

2. What was the objective justification for the contract now in dispute, was it an express

statement in the contract?

The objective justification was not an express statement on the letter issued by the

Respondent amending his terms and conditions for the five-year duration of the Fixed Term

Experimental Office Role. However, it was in the staffing approval approving the creation of

the post and in the advertisement on our e-recruitment platform, which has been provided

at Appendix 2 and provides: -

In addition to the foregoing, the Respondent would like to respectfully draw the Adjudication

officer’s attention to the letter issued confirming the appointment to Experimental Officer

for a five-year duration, that was provided in the Respondents original submission at

Appendix 4. This letter explicitly stated the commencement and cessation date of the

appointment and outlined the changes on this appointment for the five-year period and also

provided that ‘’All other terms and conditions are as your previous letter of employment

and remain unchanged’’. It is the Respondent’s position that the Complainant agreed to the

changes as provided for in this letter and is only entitled to benefit from them for the duration

as provided in same.

As previously submitted by the Respondent, the role was initially approved for five years,

which was deemed a reasonable period to allow time for it to develop and generate funding

to become self-financing. The role never developed; it did not meet the projected needs.

Over the five years, the service generated total earnings no more than €2000 p.a. This was

not enough funding to continue the role. As a result, the fixed term contract was not renewed on its expiry on 30 September 2023 and as a result this role no longer exists.

Had this service developed and generated substantial income, then the role would have

continued on a permanent and on-going basis with the Complainant’s contract for

Experimental Officer renewed on its expiry, which then would have resulted in a contract of

indefinite duration at this grade and resulting in the fixed term contract ending on a

legitimate basis, commensurate with the objective grounds of the issuing contract in the first

instance.

In C-380/07 Kiriaki Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis

and Dimos Geropotamou [2009] ECR 1-3071, the CJEU drew a distinction between work

undertaken for the purpose of meeting the fixed and permanent needs of the employer and work for the purpose of meeting some temporary or transient need. While work in the former category should normally be undertaken on permanent contracts of employment, temporary or fixed-term contracts would normally be suitable for work in the latter category. This case law was provided in the Respondents original submission at Appendix 12.

3. If a permanent role in the College becomes suppressed arising from a reorganisation

what procedure is followed concerning the terms and conditions of that incumbent?

When a permanent role is no longer required and suppressed, the Respondent generally

seeks alternative work for the employee, where feasible, at the same salary and grade.

However, it is the Respondent’s position that this was not a permanent role. The Respondent

submits that it was a new developmental role meant to fund its continuation after the 5

years. As it did not create such funding it was discontinued and no longer exists. The

potential contagion cannot be disregarded across the third level education sector, if a new

developmental role meant to fund its continuation after the specified time frame was

deemed to warrant a CID.

At the cessation of the specified time, the Complainant reverted back to his permanent

Technical Officer role in the same area. On his return to this role he then fulfilled the criteria

for progression to Senior Technical Officer, which he did from the first day he was back in the

role. The application of incremental credit for the five year FTC in the Experimental Officer

role resulted in the Complainant fulfilling the criteria for progression to Senior Technical

Officer.

Additional Comments by the Respondents pertaining to Power V HSE

The Respondent wishes to draw some distinctions between this case at that of Power v HSE.

At no stage during the five-year fixed term Experimental Officer role was the contract

renewed. In Power v HSE, Power’s tenure in the role, exceeded 4 years, pursuant to 5

separate contracts. In this complaint before the commission, all parties were aware from

the outset that it would last four a period of five years.

Additionally, in Power v HSE, the role continued to exist when the Complainant’s ongoing

extensions ceased, which is not the case in this complaint.

Conclusion

It is submitted that on the basis of the foregoing, the amendment letter was objectively justified as per s. 7 and 9(4) of the 2003 Act and as such there is no entitlement to a contract of indefinite duration under the Act.

For the reasons outlined above, the respondent requests that this claim be rejected

Summary of Complainant’s Case:

The Complainant stated before he accepted the 5-year fixed term role, he asked his line manager whether the position would become permanent or not. He was told it would in time become permanent. The fixed term contract is silent about specifying an objective ground and arising from that omission and the fact that this was the second fixed term contract that ran for 5 years, the law required that the contract for Experimental Officer to be deemed a contract of indefinite duration. The materiality of this related to pension rights as the scale for the Experimental role, approximately was about €5000 a year more that the Senior Technical Officer role that he was on. It also potentially gave rise to future promotional opportunities.

Summary of Respondent’s Case:

The contract cannot be interpreted in isolation as the advertisement for the role clearly detailed that it was conditional on funding. Arising from this fact the contract was fixed for 5 years. As the funding for this role ceased the contract in turn ended pursuant to fixed term specified in the contract.

Findings and Conclusions:

The Complainant relies on the fact that prior to being successful for the 5-year fixed term contract as Experimental Officer he was on a fixed purpose contract.

The status of that fixed purpose contract was subsequently reclassified to a contract of indefinite duration as the specified purpose has occurred and he continued in the role of Technical Officer. The Employer stated that strictly this meant that he was not on successive fixed term contracts when he took up the role of Experimental Officer.

The Employer accepts that the Experimental Officer role while detailing a fixed period did not expressly specify an objective ground; although, it clearly stated that both parties knew it was conditional on funding.

The Experimental Officer Advertisement stated the following:

· New Post

· 5-year contract from 1st October 2018 to 30th of September 2023

· The School of Engineering has received Science Foundation Ireland (SFI) funding.

· This post will be associated to a SFI access charge plan that will recover her/his salary in full

I note in McDermott Chapter 10 Contract Law (Bloomsbury 2017) to what is referred to as the Factual Matrix pertaining to a contract agreement is important when deciding what the parties intended:

The factual matrix approach is firmly established in this jurisdiction. The leading case is now the decision of the Supreme Court in The Law Society of Ireland v The Motor Insurers’ Bureau of Ireland. 143 That case involved the question as to whether the MIBI agreement covered an insurer which had become insolvent. Both the High Court and the Court of Appeal held that it did. The Supreme Court disagreed and held that the courts below had erred in placing too much weight on the words used in one particular clause and not enough emphasis on the context of the agreement as a whole. Giving the majority judgment, O’Donnell J offered what must now be regarded as the principal explanation of the factual matrix approach in this jurisdiction:

‘Legal agreements are not poetry intended to have nuances and layers of meaning which reveal themselves only on repeated and perhaps contestable readings. Agreements are intended to express in a clear and functional manner what the parties have agreed upon in respect of their relationship, and the agreements often do so in a manner which gives rise to no dispute. But language, and the business of communication is complex, particularly when addressed to the future, which may throw up issues not anticipated or precisely considered at the time when an agreement was made. It is not merely therefore a question of analysing the words used, but rather it is the function of the court to try and understand from all the available information, including the words used, what it is that the parties agreed, or what it is a reasonable person would consider they had agreed. In that regard, the Court must consider not just the words used, but also the specific context, the broader context, the background law, any prior agreements, the other terms of this Agreement, other provisions drafted at the same time and forming part of the same transaction, and what might be described as the logic, commercial or otherwise, of the agreement.’ 144

The five-year fixed term contract must be viewed in the context of the advertisement for the position. It was clearly linked to SFI funding and was directly funded from that grant. When that grant the funding for the role ceased. The Factual Matrix shows that the contract had an objective ground to justify a fixed 5-year period and that was SFI funding. As I have determined that having regard to the factual matrix and when reading the contract in conjunction with the advertisement for the Experimental Officer role, I have concluded that section 9(4) applies:

(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 Complainant stated that he moved from one fixed contract as a technical offer to another as an experimental officer. Until October 2023 both parties viewed these contracts as fixed and then retrospectively the technical officer contract was classed as a contract of continuous and indefinite duration.

There are two scenarios that could apply:

· At the date of being assigned to a new 5-year contract as experimental officer the technical officer position was fixed; however, it was renewed having regard to an objective ground which was funding.

· If the technical officer contract is classed as a contract of continuous and indefinite duration, there was no successive fixed term contracts, and the five-year contract was fixed for that period based on the objective ground of SFI funding for 5 years which was clearly detailed in the vacancy notice.

In either scenario the Complainant has not made out his case where he can rely on section 9(1)-(3):

Successive fixed-term contracts.

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.

(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.

Both parties have agreed on or about October 2023 that the fixed term contract (specific purpose) technical officer role changed from being a specific purpose contract to a contract of indefinite duration after 6 months. The reclassifying of that specific purpose contract as a permanent role would mean that there was no successive fixed term contract and no renewal of a fixed term contract. That means no objective ground justifying the commencement of the contract was required.

If as the Complainant has argued that at the time of his appointment, he moved from one fixed term contract to another an objective ground was provided in the vacancy notice. Section 8(4)(b) provides for the following:

(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 contract detailed the fixed term of the contract and not the reason for that term. However, I have also determined that the contract must be read in conjunction with the vacancy for the role that was abundantly clear that the role would be charged to the SFI funding.

The factual matrix of this case supports the Respondent’s position that the reason for the five-year contract was SFI funding an analysis consistent with The Law Society of Ireland v The Motor Insurers’ Bureau of Ireland [2017, IESC 31]:

“It is not merely therefore a question of analysing the words used, but rather it is the function of the court to try and understand from all the available information, including the words used, what it is that the parties agreed, or what it is a reasonable person would consider they had agreed. In that regard, the Court must consider not just the words used, but also the specific context, the broader context, the background law, any prior agreements, the other terms of this Agreement, other provisions drafted at the same time and forming part of the same transaction, and what might be described as the logic, commercial or otherwise, of the agreement.”

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.

The five-year fixed term contract must be viewed in the context of the advertisement for the position. It was clearly linked to SFI funding and was directly funded from that grant. When that grant funding for the role ceased, that was the objective ground to end the contract. The Factual Matrix shows that the contract had an objective ground to justify a fixed 5-year period and that was SFI funding. As I have determined that having regard to the factual matrix and when reading the contract in conjunction with the advertisement for the Experimental Officer role, I have concluded that an objective ground justifying the 5-year contract existed and that section 9(4) would apply:

(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.

There are two scenarios that could apply:

In either scenario the Complainant has not made out his case where he can rely on section 9(1)-(3):

Successive fixed-term contracts.

As the Complainant has not made out his case, I determine that the complaint is not well founded.

Dated: 29/11/24

Workplace Relations Commission Adjudication Officer: Brian Dalton

Key Words:

Permanent Employee-Successive Fixed Term Contracts-Power v HSE