FTD265

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00054428 (CA-00066605-001)

BACKGROUND:

The Worker appealed the Adjudication Officer’s Decision to the Labour Court.  A Labour Court hearing took place on 21st April 2026.

The following is the Court's Decision:

DECISION:

1. Background

This is an appeal by Martin Browne of a decision of an Adjudicator Officer made under the Protection of Employees (Fixed-Term Work) Act, 2003 (“the 2003 Act”).  The Adjudication Officer dismissed the complaint as legally frivolous.

Mr Browne appealed that decision to the Labour Court on 19 July 2025. A hearing of the appeal was conducted in Cork on 21 April 2026.

Neither party called any witnesses to give oral evidence to the Court. Both parties made comprehensive written and oral submissions at the hearing.

The parties are given the same designation as they had at first instance. Martin Browne is referred to as “the Complainant” and Teagasc is referred to as “the Respondent”.

2. Preliminary Matter

The Respondent submits that the Complainant was not an employee of the Respondent at the time of the alleged complaint.

3. Position of the Respondent

To make a claim under the Protection of Employees (Fixed-Term Work) Act, 2003, an individual must be an employee at the time of the alleged incident. As the Complainant was not an employee of the Respondent at the time of the alleged incident to which this claim refers, the claim cannot be progressed.

The Complainant was employed on a temporary contract of employment as a Technologist (Grade 1) from 22 March 2021 until 31 August 2024. When his employment ended, he was paid on the 5th point of the Technologist Grade 1 pay scale - €50,767 per annum.

 On 30 August 2024, the Complainant attended an interview for the role of a temporary Mastitis Specialist (Technologist, grade 1) and was panelled 2nd for this role. The candidate who was panelled first was offered the post but declined the offer of employment.

On 13 September 2024, the Complainant was offered the role, with his salary commencing at the first point of the scale. On 24 September 2024 the Complainant declined the offer and confirmed that he would not accept the offer of employment on the first point of the pay scale.

On 5 January 2026 the Complainant commenced another role as Technologist Grade 1 in Teagasc, following an open competition, and commenced at the first point of the pay scale.

The Respondent is bound by government rules on starting pay, as set out in Circular 08/2019. This clearly states that starting pay must be at the minimum point of the scale unless the person is already serving in the Public Service immediately prior to appointment. The Respondent adhered to this Circular, when making the offer of employment to the Complainant, as it does not have discretion to apply any other terms to an offer of employment.

The Respondent queried with its parent department, the Department of Agriculture, Food and Marine (DAFM) if there was discretion to appoint a previous serving staff member to a higher point on the pay scale. The responses made it very clear that no such discretion was allowed.

The Respondent treated the Complainant in the same was as any other applicant for a role who is not a current serving public servant, including a person who was employed on a permanent basis. No exceptions to this have been made since the commencement of Circular 08/2019. A total of 18 current serving staff in the organisation had to return to the first point of the pay scale on commencement of their current contracts of employment. The Respondent does not have discretion to deviate from this in any way, as confirmed in correspondence from DAFM.

The Respondent acknowledges the Complainant’s upset and frustration with the situation.  The Complainant’s employment ended on 31 August 2024. The Complainant was not a current serving public sector employee at the time of the offer of employment being made on 13 September 2024. He was not an employee of the Respondent at the time of the alleged contravention of the 2003 Act.

4. Summary Position of the Complainant

The Complainant commenced employment with the Respondent on 22 March 2021.  The employment of the Complainant was terminated on 31 August 2024. The Act defines a fixed-term employee as a person having a contract of employment entered into directly with an employer where the end of the contract is determined by an objective condition such as the arrival of a specific date, the completion of a specific task, or the occurrence of a specific event.  The termination of the Complainant’s employment occurred upon the completion of that specified purpose, bringing the Complainant within the definition of a fixed term employee within the meaning of the Act.

On 30 August 2024, the Complainant attended interview for a Technologist Grade 1 role. On 13 September 2024, the Complainant was formally offered the role. The gap between the expiry of the Complainant’s previous contract (31 August 2024) and the offer of new employment (13 September 2024) was approximately 13 days only.

The offer of employment required that the Complainant recommence employment at the minimum point of the Technologist Grade 1 scale (€40,080), representing a significant reduction from his previous salary. The Complainant informed the Respondent on 24 September 2024 that he was not willing to accept the offer of employment on the terms proposed. 

The Respondent’s actions constituted less favourable treatment within the meaning of the Act. The offer made required the Complainant to recommence employment at the first point of the salary scale, notwithstanding that the Complainant had already completed over three years of service with the Respondent in the same grade and had progressed to Point 5 of the scale. 

The Respondent’s reliance on Circular 08/2019 constitutes the application of a general administrative rule and does not amount to objective justification for the imposition of less favourable treatment in this case.  The position offered to the Complainant was substantially similar in grade, level of responsibility and functional role to the position he previously held. The role offered by the Respondent was effectively a continuation of employment in the same organisation at the same grade and within a similar research environment.

The Respondent’s actions failed to recognise the continuity of the Complainant’s prior service and placed him at a significant financial disadvantage relative to a comparable permanent employee who had performed similar work within the organisation. The Respondent’s policy was applied without consideration of individual circumstances. Such a rigid application of policy fails to consider whether continuity of service should apply and fails to assess whether less favourable treatment is objectively justified in accordance with the Act.

The interview process and assessment of suitability occurred while the Complainant remained in employment with the Respondent. The Complainant was deemed suitable for the role while still employed by the Respondent. The gap between the conclusion of his previous contract and the offer of the new position was minimal (approximately 13 days). The employment relationship should properly be regarded as continuous for the purposes of the Act. 

Notwithstanding the expiry of his specified purpose contract on 31 August 2024 and his subsequent offer of employment to a similar role on 13 September 2024, he ought to be regarded as having continuity of service and, accordingly, should have been permitted to retain his previous conditions of employment, including his incremental position on the relevant salary scale.

Employees who complete their contracts are disadvantaged relative to those who move roles before completing their original contract and are penalised for completing their contractual obligations. The requirement to accept inferior terms as a condition of re-employment effectively deprived the Complainant of the ability to vindicate his statutory rights, as acceptance of the contract would have been necessary to pursue the claim while in employment.

The Complainant relies on Labour Court Determination No. 2012/02, where the Court recognised that short gaps between engagements will not necessarily interrupt continuity where the underlying employment relationship remains effectively ongoing, and DEC-E2013-105, in which the Labour Court held that an employer cannot rely on a blanket or inflexible administrative rule as constituting objective justification where such a rule is applied without regard to the individual circumstances of the employee.

The Complainant further relies on Adeneler v Ellinikos Organismos Galaktos (Case C-212/04) where the Court of Justice of the European Union distinguished between genuine temporary needs of an employer and situations in which fixed-term contracts are used to meet permanent or ongoing needs.  In Angelidaki and Others v Organismos Nomarkhiaki Aftodiikisi Rethimnis (Joined Cases C-378/07 to C-380/07) the Court of Justice held that objective justification must be based on specific circumstances relating to the nature of the work performed and cannot simply be based on administrative convenience. In Del Cerro Alonso v Osakidetza Servivicio Vasco de Salud (Case C-307/05), the Court of Justice held that any difference in treatment must be based on objective and transparent criteria responding to a genuine need.

In Donegal County Council v James Sheridan (FTD 185) the Labour Court held that where the statutory rules governing successive fixed-term contracts are contravened the contractual term specifying the expiry of the contract may be rendered void and the contract may be deemed to be one of indefinite duration. The Labour Court further held in Health Service Executive v Khan (FTD 4/2006) that where a contract of indefinite duration arises under the Act it must retain the same terms and conditions as the fixed-term contract from which it derives. In Trinity College Dublin v Moriarty (FTD 5/2012) the Labour Court emphasised that an employer cannot remove or alter key terms of employment when converting or replacing a fixed term contract in a manner that is detrimental to the employee.

Applying these principles to the present case, the Respondent’s requirement that the Complainant recommence employment on the minimum point of the salary scale constituted less favourable treatment within the meaning of the Act. The Respondent has not demonstrated objective grounds capable of justifying such treatment. 

The Respondent has failed to recognise the substantive continuity of the employment relationship, has relied on a rigid and non-individualised administrative rule, and has caused the loss of accrued employment benefits arising from successive fixed-term employment, all in circumstances where no objective and proportionate justification has been established.

5. Relevant Law

The Protection of Employees (Fixed-term Work) Act 2003 transposes into Irish law Directive NO. 1999/70/EC OF 28 JUNE 1999 concerning the framework agreement on fixed-term work concluded by social partners at European level.

Section 2 of the Act addresses matters of Interpretation and states as follows: -

“contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of the Employment Agency Act 1971 and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract);

“employee” means a person of any age, who has entered into or works under (or, where the employment has ceased, entered into or worked under) a contract of employment and references, in relation to an employer, to an employee shall be construed as references to an employee employed by that employer and, for the purposes of this Act, a person holding office under, or in the service of, the State (including a civil servant within the meaning of the Civil Service Regulation Act 1956) shall be deemed to be an employee employed by the State or Government, as the case may be, and an officer or servant of a local authority, a harbour authority, the Eastern Regional Health Authority, the Northern Area Health Board, the East Coast Area Health Board or the South-Western Area Health Board or health board or a member of staff of an education and training board,shall be deemed to be an employee employed by the authority or board, as the case may be;

“employer” means, in relation to an employee, the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment;

“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;

Section 42 of The Workplace Relations Act 2015 provides as follows:

Dismissal of claim by adjudication officer

42. (1) An adjudication officer may, at any time, dismiss a complaint or dispute referred to him or her under section 41 if he or she is of the opinion that it is frivolous or vexatious.

(2) (a) A person whose complaint or dispute is dismissed in accordance with this section may, not later than 42 days from its dismissal, appeal the dismissal to the Labour Court.

(b) A person shall, when bringing an appeal under this subsection, give notice to the Commission in writing of the bringing of the appeal.

(c) A notice referred to in paragraph (b) shall specify the grounds upon which the appeal is brought.

(3) Upon the hearing of an appeal under this section, the Labour Court may—

(a) affirm the decision of the adjudication officer dismissing the complaint or dispute concerned, or

(b) annul that decision and refer the complaint or dispute to the Director General.

6. Deliberations

The Court’s jurisdiction in the within appeal is confined to considering if the Adjudication Officer was correct to find that the complaint under the Act was legally “frivolous” or not. Should the Court quash that finding, then the entire matter must me remitted back to the WRC for further investigation.

In deciding that the claim was legally “frivolous” and misconceived, the Adjudication Officer found that the Complainant was not a fixed term employee at the relevant time.

For the purposes of the 2003 Act, a complainant must be or have been a ‘fixed term employee’ who entered into or worked under a ‘contract of employment’ with the Respondent. Therefore, to ground his complaint the Complainant must first establish that he was in a ‘contract of employment’ with the Respondent on the date of the alleged contravention of the Act.

At the hearing, Counsel for the Complainant confirmed that the date of contravention for the within complaint was 13 September 2024, which is the date that the Respondent formally offered the Complainant a second contract of employment in the role of Technologist (Grade 1).

It is accepted that the Complainant’s employment ended when his fixed term contract of employment expired on 31 August 2024. Notwithstanding that fact, Counsel contends that the period between the expiry of the initial contract on 31 August 2015 and the subsequent offer of employment to a similar role on 13 September 2024 ought to be regarded as a period of continuous service.

Counsel’s position is that the Complainant should be regarded as on layoff and the fact that his contract of employment expired on 31 August 2024 is not incongruent with him being on a period of lay-off from the employment thereafter. He submits that the law is clear that there is no end date for a lay-off period and that the Respondent was in contemplation of re-engaging the Complainant at the relevant time, as the interview process and assessment of suitability occurred while he was still employed.

The Respondent rejects that assertion and contends that the Complainant was not placed on lay-off, nor was there ever any understanding of a layoff situation between the parties. The Respondent followed normal termination procedure and issued standard leaver correspondence to the Complainant about the return of equipment and related matters before his contract expired on 31 August 2024, and a letter of termination of employment. The Respondent further submits that it was not “in contemplation” of re-engaging the Complainant, who had participated in an open competition and after the interviews concluded was placed second on the interview panel. Contemplation of employing the Complainant only arose after the individual who placed first on the panel declined the offer.

No evidence was presented to the Court to support the assertion that the Complainant was laid off from his employment by Respondent on the expiry of his fixed term contract on 31 August 2024. Counsel for the Complainant acknowledged that he could not cite any authorities to support the supposition that an employee can declare themselves to be on lay-off from an employment.

Having regard to the submissions made, the Court finds that the Complainant was not on lay-off during the period in question. Accordingly, the Complainant cannot rely on the contention that he was on lay-off to assert that he remained in continuous employment with the Respondent after the expiry of his fixed term contract on 31 August 2024.

The Complainant further relies on the case of Adeneler v Ellinikos Organismos Galaktos (Case C-212/04) where the Court of Justice of the European Union, addressing the question of short breaks between fixed term contracts, distinguished between genuine temporary needs of an employer and situations in which fixed-term contracts are used to meet permanent ongoing needs.

The Court did not find that the various authorities cited were helpful to it deliberations in the within appeal in circumstances where it is accepted that the Complainant’s employment terminated on 31 August 2024 and that he declined the offer of employment made to him on 13 September 2024. While the gap between the conclusion of his previous contract and the offer of the second contract was short a period, by declining that offer the Complainant chose not to enter into a second contract of employment with the Respondent.

Had the Complainant accepted the offer and commenced a second contract of employment with the Respondent at that time, the question of whether the Complainant accrued continuous service in the period between those two contracts could be considered by the Adjudication Officer (and the Labour Court on appeal). However, there is no basis upon which an Adjudication Officer or the Labour Court can consider a hypothetical scenario to determine a matter of fact in relation to employment status on a particular date.

The Court finds that the Complainant did not enter into a second contract of employment with the Respondent, following the offer made on 13 September 2024, and as a result any question about continuity of service between two contracts of employment simply does not arise. The Court further finds that the Complainant was not employed by the Respondent under a contract of employment at the time of the alleged contravention of the Act.

Finally, Counsel for the Complainant submits that a perverse consequence of the Complainant’s actions is that because he refused to accept less favourable treatment he has been denied a remedy in relation to his complaint of unfavourable treatment. While the Court accepts that the Complainant was faced with a difficult decision on 13 September 2024 when offered a second contract of employment which he viewed as containing less favourable terms, it does not agree with the assertion that the Complainant was denied of the ability to vindicate his statutory rights in this case.  It was open to him to accept the contract of employment and then challenge the matter by lodging a complaint under the Act.  He did not do so.  As a result, he has failed to establish locus standi to progress his complaint.

To ground a complaint under the Act, a Complainant must first establish that he or she was in a ‘contract of employment’ with the Respondent on the date of the alleged contravention of the Act. 

For the reasons set out above, the Court finds that the Complainant has failed to make out a case that was employed under a ‘contract of employment’ with the Respondent at the time of the alleged contravention under the Act.

Adjudication Officers of the WRC, and the Labour Court on appeal, are creatures of statute and can only consider complaints where they have jurisdiction to do so as set out by relevant legislation. While the Complainant in this case may have genuine held views about the merits of his complaint, the Court finds that the Adjudication Officer correctly concluded that he had no jurisdiction to hear the complaint as the Complainant was not employed under a contract of employment with the Respondent at the relevant time.

The Adjudication Officer held that the complaint was misconceived and dismissed it as legally “frivolous”, as provided for at s.42(1) of the Workplace Relations Act, 2015.

7. Decision

For the reasons set out above, the Court finds that the claim is legally “frivolous”.

The Decision of the Adjudication Officer is affirmed.

The Court so decides

	Signed on behalf of the Labour Court
	Katie Connolly
AM	______________________
05/05/2026	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Áine Maunsell, Court Secretary.