FTD251

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00049650 (CA-00060990-001)

BACKGROUND:

The Employee appealed the Adjudication Officer’s Decision to the Labour Court.  A Labour Court hearing took place on 24th September 2025.

The following is the Court's Decision: -

DECISION:

This is an appeal by Mary Lynch of a decision of an Adjudication Officer in relation to a complaint against her former employer, Donore National School, under the Protection of Employees (Fixed-Term Work) Act, 2003, (“the Act”).

The Adjudication Officer found that the complaint was not well founded.

An appeal of that decision was lodged to the Court on 18 December 2024.  A hearing of the Court was held on 24 September 2025.

For ease, the parties are referred to in this rest of this determination as they were at first instance. Hence, Mary Lynch is referred to as “the Complainant” andDonore National School as “the Respondent”.

Background

The Complainant was employed by the Respondent as a part-time primary school resource teacher from 2003 until her retirement on 31 August 2023.

The Complainant submits that she was subject to penalisation for invoking her rights under the Act and, as a result, was subject to unfavourable changes to her conditions of employment.  The Respondent refutes that assertion. 

The Respondent raises several preliminary matters addressing the Court’s jurisdiction to hear the appeal.

Rule 54 of the Labour Court Rules 2024 provides that: -

“The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case”.

The Court proposed that it would decide on the preliminary matter regarding its jurisdiction to hear the appeal, in the first instance. Should it decide that the appeal was lodged within time, a further hearing would be scheduled, and the Court would proceed to consider the substantive appeal. Should the Court decide that the complaint was lodged outside the statutory time limits, the appeal be out of time and statute barred. Both parties agreed to the proposed approach.

Preliminary Matters - Summary of the Respondent’s Position

The Respondent contends that the Complainant is not a Fixed-Term Employee. On 1 November 2010, following a request from for her, the Complainant was provided with a Contract of Indefinite Duration. Thereafter, she remained a permanent, part-time employee of the Respondent school until her retirement on 31 August 2023. As the Complainant was not a fixed-term employee, she does not come within the terms of the 2003 Act.

Without prejudice to the foregoing, the complaint is out of time. The Complainant accepts that she received a Contract of Indefinite Duration in 2010. Having regard to the statutory time limits applicable, any alleged contravention of the Act (which is denied) would have occurred in the six-month period after she was provided with the Contract of Indefinite Duration in 2010.

The complaint, lodged some 14 years later, is outside of the statutory period allowed by the 2015 Act. Even with an application for an extension of time, the proceedings would be outside of the time limit provided by the 2015 Act.

The complainant’s assertion that she lacked certain information until after her retirement is entirely irrelevant to the question of time limits. It is well established in case law that ignorance of the law or of one’s rights does not provide a valid excuse for a delay in lodging a complaint.

Finally, and strictly without prejudice to the foregoing, the within complaint is res judicata. The doctrine of res judicata prevents the WRC from adjudicating on matters which have already been determined in earlier proceedings. The Complainant accepts that in 2011 she lodged a complaint under the Act when it became apparent that she would no longer get substitution work at the school. While no determination issued, the matter was settled and the Rights Commissioner signed that settlement agreement. This Complainant acknowledges the settlement agreement in her complaint form to the WRC in 2024 and points to the within complaint as a continuation of the same complaint submitted in 2011. As such, it is respectfully submitted that the matter is res judicata.

Summary of the Complainant’s Submission

On 13 October 2010 the Complainant sought a Contract of Indefinite Duration to protect her employment rights. She was granted a Contract of Indefinite Duration in November 2010. Thereafter, was subject to ongoing penalisation for invoking her statutory rights.

The Complainant’s continued employment with the school was subject to approval by the Department of Education on an annual basis. Each year a form was submitted by the school to the Department for approval. If the form was not approved, she did not get paid, as happened one year. As such it cannot be said that the Complainant was a permanent employee, as she continued to be employed on a fixed-term basis.

The complaint is not out of time. The Complainant retained her rights under the 2003 Acts. She was subject to ongoing penalisation which formed a continuum from 13 October 2010 until her retirement on 31 August 2023. In addition, an indirect act of penalisation is ongoing in the form of her reduced pension payments.

Information received in 2023 under a Freedom of Information (FOI) request demonstrates that the Complainant was subject to ongoing acts of penalisation. The most recent contravention of the Act occurred on 30 August 2023, which falls within the statutory six-month time limit. Should that not be accepted, the Complainant’s lack of knowledge of matters relating to her employment until receipt of FOI information explains the delay in lodging the complaint in January 2024, and constitutes ‘reasonable cause’ for an extension of the statutory time limit to 12 months.

The doctrine of res judicata does not prevent the Complainant from submitting a new complaint that arose after the matters referred to adjudication in 2011.  The acts of penalisation continued after 2011 and continued until 31 August 2023, so falling within the statutory time limits. The date of the most recent act of penalisation must be the one that is used to determine whether the complaint was made in a timely manner.

The Relevant Law.

The Act at Section 1 defines a fixed-term employee as follows:

““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;”

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.”

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.”

Time Limits

Section 41(6) and 41 (8) of the Workplace Relations Act, 2015, provides as follows:

“(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.”

“(8) An adjudication officer may entertain a complaint or dispute to which this section applies presented or referred to the Director General after the expiration of the period referred to in subsection (6) or (7) (but not later than 6 months after such expiration), as the case may be, if he or she is satisfied that the failure to present the complaint or refer the dispute within that period was due to reasonable cause.”

Deliberations and Findings

The Respondent raises preliminary matters relating to the Court’s jurisdiction to hear the within appeal.

The Complainant’s employment status

The Respondent contends that as the Complainant was provided with a Contract of Indefinite Duration on 1 November 2010, she was not a fixed-term worker and does not fall within the ambit of the 2003 Act.

While the Complainant accepts that she was granted a Contract of Indefinite Duration in 2010, she contends that her continued employment with the Respondent school was subject to approval by the Department of Education on an annual basis. She submits that she was employed on several subsequent fixed-term contracts, she is entitled to avail of the protection of the Act.

The Court was provided with a copy of the document titled “Primary Teachers Appointment and Re-Appointment Form” which was relied upon by the Complainant to support her contention that she was employed on subsequent fixed-term contracts having secured a contract of indefinite duration in 2010.

The Respondent submits that the document is an administrative form for seeking Department approval for certain resources and in no way impacts upon the Complainant’s contractual rights to a contract of indefinite duration. For her part, the Complainant accepted that the document was not a contract of employment. The Court notes that the document expressly states that the Complainant is employed on a contract of indefinite duration.  An entry titled “End date of Fixed Term Appointment* (* in case of fixed-term appointment - please complete end date if known) remains blank.

Having regard to the submissions made and the documents opened to it, the Court finds that the Complainant was employed by the Respondent school on a contract of indefinite duration since 1 November 2010 and therefore is not a fixed-term employee for the purposes of the 2003 Act. 

Was the complaint submitted in time?

The Complainant contends that the fact that she was employed on a contract of indefinite duration since 2010 does not take away from her statutory rights accrued under the 2003 Act. In that regard, she submits she was penalised for invoking her rights and has been subject to a continuum of penalisation since 2010.

The Court’s jurisdiction is confined to assessing contravention of the Act that occurred within the six-month timeframe before the complaint was lodged with the Workplace Relations Commission. As the complaint in this case was lodged on 15 January 2024, the relevant period for initial consideration is 16 July 2023 to 15 January 2024. 

Section 41(6) of the Workplace Relations Act requires a complainant to set out a specific contravention or act of penalisation that occurred in the six-month period before lodging a claim, to ground a claim under the Act.

While the Complainant contends that she was subject to a continuum of penalisation, the wording in Section 41(6) differs from time limits under employment equality legislation where consideration of continuing or ongoing contraventions may be permitted. 

Section 77(5)(a) Employment Equality Acts, 1998–2015 allows for claims to be referred within six months from ‘the date of occurrence of the discrimination or victimisation to which the case relates or, as the case may be, the date of its most recent occurrence’. By contrast the time limit set out in Section 41(6) specifies that a complaint cannot be entertained unless it is presented after the expiration of the period of 6 monthsbeginning on the date of the contravention to which the complaint relates.

The 2003 Act does not provide for claims to be considered from the date of the most recent contravention. The claim must be submitted within six months of the contravention to which the complaint relates. In this case, the Complainant ceased to be a fixed term employee when awarded a contract of indefinite duration on 1 November 2010.  Her complaint was lodged to the WRC in January 2014, some 14 years later.

The Court is confined to assessing contraventions of the 2003 Act that occurred within the statutory timeframes set down at section 41(6) and 41(8) if the 2015 Act. The Complainant ceased to be a fixed-term worker on 1 November 2010. That being the case, the Court finds that the within complaint was submitted outside the six-month time limits for bringing complaints under the Act.

Section 41(8) if the 2015 Act allows the timeframe for submitting complaints to be extended by a further six months if the failure to present a complaint in time was due to reasonable cause.  This Court has regularly held that ignorance of the law or of one’s rights cannot excuse the lodging of complaints outside the statutory time limits that apply.  In any event, were the Court to grant an extension of the timeframe for considering a complaint under the 2003 Act, the within complaint remains manifestly out of time. 

The Labour Court is a creature of statute, and its powers and duties are derived solely from statute. In this case, the Court’s jurisdiction is confined to assessing breaches that occurred within the time limits specified under the 2015 Act. This appeal was not lodged within the time limits allowed. The Court cannot assume a jurisdiction which is not conferred to it by statute and does not have discretion to vary the time limits set down in relevant statutes.

A failure on the part of a Complainant to present a complaint in time deprives the Adjudication Officer, and this Court on appeal, of jurisdiction to hear the claim. 

As a result, the Court finds that it has no jurisdiction to hear the complaint.

Decision

The complaint is statute barred.

The appeal is not allowed.

The decision of the Adjudication Officer is affirmed.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
JNF	______________________
29 September 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Julie Nicholl Flood, Court Secretary.