ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018080
Parties:
| Complainant | Respondent |
Anonymised Parties | Technical Research Consultant | University |
Representatives |
| Peter Flood Ibec |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00023273-001 | 16/11/2018 |
Date of Adjudication Hearing: 29/01/2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 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 Complainant was employed as a Research Technical Consultant from 1st July 2015 until the employment terminated on 21st September 2018. The Complainant was paid €8332.00 gross per month. The Complainant was provided with a written statement of his Terms and Conditions of employment, signed and dated by both Parties on 30th June 2015. The Complainant referred a complaint to the Workplace Relations Commission on16th November 2018 alleging he had been unfairly dismissed. SUMMARY OF RESPONDENTS POSITION. The Complainant was employed from 1st July 2015 on a Fixed Term Contract of Employment. This contract was a Fixed Term Contract of Employment to commence on 1st July 2015 and to end on 30th June 2020. The Contract also sets out the objective grounds for a fixed-term contract as follows – The objective grounds for issuing this fixed term contract rather than a permanent contract is to provide assistance to (named projects) in the context of achieving key deliverables within the stated time frame………..The fixed term nature of this contract underpins the fulfillment of a legitimate objective of the (respondent) to provide temporary, specialist expertise to projects to enable their completion. Should the above named project end prior to 30th June 2020, (respondent) reserves the right to terminate your employment with (respondent) by giving not less than one months’ notice in writing.- The Contract also provides as follows – This is a fixed term contract of employment and therefore the provisions of the Unfair Dismissals Acts, 1977 to 2001, will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term. This fixed term contract of employment is solely and exclusively for the purpose of undertaking duties associated with the specific project as listed above. Furthermore, please note that your continued employment by the (NAMED) is contingent on the ongoing availability of work of the type in which you are currently engaged. Should the (named) requirements for this work decline or cease in full, for whatever reason, the (named) reserves the right to reassign you to alternative work in line with your skills and experience and its organisational requirements. Should such reassignment opportunities not exist the (named) may have to terminate your employment in the future. This contract may be terminated by one month’s notice, in writing, by either party. Science Foundation Ireland awarded the named project to another named University with the Respondent being one of a number of c-lead investigators. The Respondent was awarded a stated sum out of the budget for the project which was also dependent on receipt of industry funding. The Respondent was informed by the Lead University of the project that the Respondent’s budget was being reduced arising from cuts in industry funding and withdrawal of other industries from the project. The Respondent provided details to the Hearing of the named industry funding to be provided and the shortfall in same. This lead to an immediate unfunded deficit (stated) and this led to an immediate suspension of the project and led to redundancy notice being issued to all project staff. The Complainant is one of six who were made redundant as a result of the withdrawal of funding. The Complainant was informed on 23rd July 2018 that his employment would terminate by reason of redundancy on 24th August 2018. The Complainant informed the Respondent on 30th July 2018 that he was referring a complaint to the WRC. The Respondent sent an email to the Complainant on 31st July 2018 stating in part – Are the current Lecturer vacancies of interest to you…..I’d be happy to discuss them with you if you are interested.- The Respondent issued a further email to the Complainant on 2nd August 2018 as follows in part – Given the contents of your communications and the concerns you raised theirin, the (named) is willing to extend your redundancy notice period for two months until 24th October 2018. The additional two month period will be used to explore alternative roles in the University which may be suitable for your skillset. From 25th August 2018 until 24th October 2018 you will be placed on alternative project(s). During this period you will be expected to actively engage with (named) management in the process of identifying suitable alternative roles in (named)…..In the meantime, I encourage you to apply for suitable roles currently advertised in (Named)….. The Complainant sent an email dated 1st September 2018 stating as follows – Let me be clear…..I cannot accept a change in who I report to as this would be a change in my contract. I made it clear at the time that I would not do this. Therefore, if the two months extension is contingent on me reporting to (Named) then I don’t want it. The Respondent sought to engage with the Complainant but on 11th September 2018 the Complainant in an email stated – I thought that I was quite clear in my previous emails, and you were clear about the what the implications were…So, no need to wait until Friday – you can begin the redundancy process now. The Complainant’s employment terminated by reason of redundancy on 21st September 2018. The Complainant was paid redundancy of 7860.00 The complaint submitted to the WRC and received by them on 6th August 2018 under ADJ 16180 was withdrawn at the Hearing on 29th January 2019 when the second complaint submitted on 16th November 2018 under ADJ 18080 was heard on 29th January 2019. SUMMARY OF COMPLAINANT’S POSITION. The Complainant stated that he had a written Contract of employment effective from 1st July 2015 for 5 years to end on 30th June 2018. He was working in a Research Centre known as (named) headquartered in another named University and funded primarily by SFI. The Contract states that if the specified contract ends prior to 30th June 2020 then his contract may be terminated. He received a termination notice on 23rd July 2018 alleging his contract would end on 24th August 2018 due to cessation of the named project. This he stated was incorrect as the named project is one of a family of projects some of which were cancelled and some are not. He stated that the projects he was working on were not being cancelled and are expected to continue to 2020. He also stated that other research groups are working on this named project, therefore the named project is not cancelled. The Complainant responded to HR on 24th July 2018 pointing out these facts and that therefore his termination was invalid. In response the Respondent extended his termination by a further two months. They also outlined changes to his work during those two months. These would have constituted a change to his contract and therefore he would continue to work to his then contract. There were ongoing discussions with the Respondent in relation to the named project which he contested was not finished and also in relation to applying for other positions within the University. The Complainant also asserted that some weeks prior to his termination letter he had initiated the process to move to a Contract of Indefinite Duration. The Complainant asserted that the grounds for his termination are flawed as the research project has not finished, there is money to pay him, there is work within the university to which he could be transferred and there is a possibility that the University is deliberately trying to deny him his right to a Contract of Indefinite Duration. Following questions by the Adjudication Officer at the Hearing the Complainant stated the named project still exists and that two employees are employed there. In relation to the question as to why he did not apply for any of the advertised Lecturer/Research Posts he stated that he still had a Contract and he shouldn’t have to apply for these positions but should have been moved/transferred to these vacancies and he stated that he did not accept that the Respondent can only make academic appointments through open competitions. The Complainant stated that he had commenced employment as a Lecturer and has a contract from 15/10/2018 to 16/1/2019 and he is paid 150 sterling per hour. He stated that he commenced another position on 17th January 2019 until 31/8/2019 and he is paid 42,035 Sterling per annum. He is seeking reinstatement. |
Findings and Conclusions:
I have examined in detail the Project Funding letter dated 25th November 2014 from the Science Foundation Ireland in relation to the named Project sent to the Lead named Investigator and the Co-lead Investigators one being a named Professor from the Respondent University. This clearly sets out the Project Funding from SFI and the obligation on all Investigators to secure industry funding. The Contract from SFI sets out the requirements of this Industry funding at Section 8 of the letter of 25th November 2014. I note the Contract of Employment issued to the Complainant and signed by both Parties on 30th June 2015. This clearly states that the Complainant was working on the named project and others under the Principal Investigator named which is the same Professor named in the Contract dated 25th November 2014 as one of the Co-Lead Investigators for the named Project. I note the correspondence dated 9th May 2018 in relation to updated Budgets for the named Project which clearly showed the budget being reduced by the Lead University following the withdrawal od one industry partner of the Respondent and the withdrawal from named project of two other Industry partners. This resulted in funding from SFI being reduced. The funding deficit was set out to the Hearing and six employees of the Project, including the Complainant were made redundant. Evidence was provided to the Hearing Section 2(2)(b) of the Unfair Dismissals Acts, 1977 – 2001 provides as follows – This Act shall not apply in relation to – (b) dismissal where the employment was under a contract of employment for a fixed-term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time of its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser … The Contract of Employment issued to the Complainant was signed and dated by both Parties on 30th June 2015. The Contract sets out - objective grounds for issuing this fixed term contract rather than a permanent contract is to provide assistance to (named projects) in the context of achieving key deliverables within the stated time frame………..The fixed term nature of this contract underpins the fulfillment of a legitimate objective of the (respondent) to provide temporary, specialist expertise “o projects to enable their completion. Should the above named project end prior to 30th June 2020, (respondent) reserves the right to terminate your employment with (respondent) by giving not less than one months’ notice in writing.- The Contract also provides as follows – This is a fixed term contract of employment and therefore the provisions of the Unfair Dismissals Acts, 1977 to 2001, will not apply to the termination of this contract where such termination is by reason only of the expiry of this fixed term. This fixed term contract of employment is solely and exclusively for the purpose of undertaking duties associated with the specific project as listed above. Furthermore, please note that your continued employment by the (NAMED) is contingent on the ongoing availability of work of the type in which you are currently engaged. Should the (named) requirements for this work decline or cease in full, for whatever reason, the (named) reserves the right to reassign you to alternative work in line with your skills and experience and its organisational requirements. Should such reassignment opportunities not exist the (named) may have to terminate your employment in the future. This contract may be terminated by one month’s notice, in writing, by either party. I find the complaint of unfair dismissal is not well founded. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
On the basis of the evidence, my findings above and in accordance with Section 8(1))c) of the Act I declare this complaint is not well founded. |
Dated: 2nd April 2019
Workplace Relations Commission Adjudication Officer: Rosaleen Glackin
Key Words:
Unfair Dismissal – Fixed-Term Contract of Employment – Project subject to funding – Funding withdrawn – Projects ends – employee made redundant. Complaint fails, |