Complainant

Respondent

Parties

Dr Andrew Irving

University College Dublin

Representatives

Irish Federation of University Teachers

In-house HR representative

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-00042849-001

04/03/2021

The complainant’s employed ended in line with a 6-year fixed term contract of employment. The complainant asserts that this was an unfair dismissal, and the respondent asserts that this was excluded by section 2(2)(b) of the Act.

In submissions, the complainant outlined this related to the failure to provide him with a contract of indefinite duration. He commenced with the respondent on the 1st January 2015, and this ended on the 31st December 2020. He was made redundant.

The complainant cites the terms of the contract: ‘This is a fixed term appointment, subject to satisfactory service during the probationary period, and to this contract of employment… The objective grounds for issuing a fixed term contract rather than a permanent contract are to enable the development of programmes in [specialities]. The continuation of the role will be dependent on the success and growth of the programmes as evidenced by student demand. This contract will end on 31st December 2020 at the latest.’

The complainant refers to the Report to the Minister for Education and Skills of the Chairperson of the Expert Group on Fixed-Term and Part-Time Employment in Lecturing in Third Level Education in Ireland, chaired by Michael Cush SC. This recommended that the qualification period for the granting of a contract of indefinite duration be reduced ‘from a period of continuous employment in excess of three years to a period in continuous employment in excess of two years.’

The complainant outlined that the subject matter he taught is now taught by someone else, so there was a continued requirement for the post.

The complainant outlined that he raised his entitlement to a CID with HR and was informed ‘you are not eligible for a CID based on either CUSH or the Protection of Employees (Fixed Term Work) Act, 2003) based on this contract of employment and the objective grounds contained within the contract. Your Head of School is aware of the analysis undertaken and that you are not eligible for CID based on your current contract of employment.’ [email of the 27th May 2020]

The employee outlined that there was never any consideration that the Cush report required successive contracts. He sought to avail of the dispute resolution process referred to in the Cush report but could not do so.

The Department Guidance note of the 4th August 2017 sets out the view that appointments should be made on a permanent basis where permanent staff leave or retire, or where new vacancies are being filled. The note requests that employers ‘regularise’ the position of employees on fixed term contracts of employment. It cited examples of where fixed-term contracts could be used, for example covering sick leave or maternity leave.

The Unfair Dismissal claim was referred to the Workplace Relations Commission on the 31st December 2020. While the complainant was paid the statutory redundancy lump sum payment, he did not receive the ex gratia provided for in LCR 20730. He found it difficult to find alternative employment because of the pandemic and obtained an 11-month role in March 2021. His loss of income was €18,140.

At the hearing, the worker outlined that Circular 41 of 2016 does not apply to the respondent and only applies to Institutes of Technology. While this Circular mentions the ‘Cush’ report, it built on existing Circulars applicable to Institutes of Technology. The Department issued a Guidance Note for both the universities and institutes of technology, including the respondent.

The employee outlined that he had been provided with a six-year contract and it was submitted that six-year contracts should not become the norm. The employee submitted that this was not a specialist role and he had not been filling in for someone on leave. He had secured the role through an open competition. The reference to student need in the contract was general and never specific. It was also quite vague. He outlined that student demand increased for the courses in 2021/22 and he also did other roles.

The employee outlined that the need for a successive contract was not mentioned at all in the Cush report.

In September 2020, the Head of Teaching and Learning emailed on the complainant’s behalf to say that the cessation of the complainant’s contract would mean that some research and work would cease. Following the ending of his employment, he took the specialist equipment belonging to him, meaning that this was not available to the department.

The complainant outlined that he had received the statutory redundancy lump sum entitlement, but not the ex gratia payment.

The complainant outlined that clause 15 of the contract was said to amount to the exclusion from the scope of the Unfair Dismissals Act, but the clause did not have legal standing. It was a general pro forma clause.

It was submitted that there were three limbs to the Cush adjudication: was the claimant a lecturer?; had the employee worked for over two years and 3. Was there an ongoing need for the role. The Circulars provided better terms than the Protection of Employees (Fixed Term Work) Act. The circular in the IT sector allowed for a CID to accrue on the granting of one contract.  

In reply to the respondent, the complainant said that he did not know that he had to apply for the ex gratia payment. He commented that it looked like there would be higher numbers in Stage 4 in the next academic year as there were 165 students doing the key feeder modules, up from 148.

The colleague appointed under the professional development scheme who did some of his tasks was a good appointment, but participants on the scheme required help to develop their research.

The complainant submitted that it was clear from the evidence that a decision was made that the contract would end, so clause 2(2)(b) of the Unfair Dismissals Act did not apply. The complainant outlined that using student numbers as a criteria would generate a new level of precarity. He had asked to meet the professor on two occasions to discuss his contract. It would have been better to have these decisions explained in advance. There was a discussion four years earlier about clarifying the end date of his contract and then nothing then until six months before the end. He had to apply for jobs during the pandemic and was left in the lurch. It was unfair to only first raise this six months before the end.

The employer outlined that the Cush report was prepared in a particular context and from the university side, this was based on the Protection of Employees (Fixed Term Work) Act. The respondent referred to Circular 93/2007 which referred to the need for a succession of fixed-term contracts.

The complainant had applied through an open competition for a fixed-term post. It outlined that the only person authorised to discuss a lecturer’s contract was the relevant Head of School, so the Head of Teaching and Learning had no authority to send the email referred to by the complainant.

The respondent referred to the student numbers set out in a table. A degree has 4 stages, and these are generally years. This department did not teach in stage 1 bar one course and did 12 courses in stage 2. Students could specialize in stage 3 and 4. The complainant was involved in one stage 2 course, and they were introductory courses.

The respondent outlined that an ex gratia is paid by the Department at its discretion. It had not sought a payment for the complainant as he had not applied for it.

The respondent outlined that there was a downward trend in student numbers and a decrease year on year. The complainant had contributed little to administration. They did not do laboratory work with fourth years because of the pandemic and not because the complainant was no longer employed. This laboratory work had resumed this year.

The professional development programme was to attract new researchers, who are offered a temporary contract with a view of getting a permanent contract if they show an upward trend in research, teaching and administration and they get promoted to associate professor. They have reduced teaching obligations in order to build up their research output.

The respondent submitted that section 2(2)(b) of the Unfair Dismissals Act applied and that it could rely on objective grounds. It submitted that the criteria was student numbers. The procedure was that HR informed the head of school three or four months before the fixed term ends. There was an expectation of local discussions before that.

The Head of School outlined that he had discussed the contractual position with the complainant on a number of occasions and six months was not unreasonable to discuss the ending of the contract.

CA-00042849-001

This is a complaint pursuant to the Unfair Dismissals Act. In submissions, the respondent argued that there were substantive grounds meriting the employee’s dismissal, i.e. the expiry of the fixed term contract. At the hearing, the respondent specifically relied on the exclusion set out in section 2(2)(b) of the Unfair Dismissals Act.

Section 2(2)(b) excludes the following dismissals from the ambit of the Unfair Dismissals Act:

‘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 aforesaid.’

As discussed in Conaty v Malahide Community School [2019] IEHC 486, section 2(2)(b) represents the employee’s waiver of the protections available to them under the Unfair Dismissals Act. The contract of employment must clearly set out the fixed nature of the employment relationship. In Conaty, the High Court noted that the contract contemplated renewal ‘…in the event that the allocated hours as specified above continue to be available and the demand for these subjects continues’. [paragraph 66] The High Court determined that this reference to the contract being renewed was not merely aspirational and had legal effect. It was held that the language of the waiver must be unequivocal and such a clause was not unequivocal.

In Conaty, the claimant had signed the fixed-term contract after the commencement of the fixed term and not at the commencement of the employment as required by section 2(2)(b). A feature in Conaty that is not present in this case is that the claimant worked for the school as a permanent employee prior to signing the fixed term contract. The High Court held that the basis of the waiver was the employee’s informed consent, so the contractual wording had to clearly refer to the waiving of statutory rights under the Unfair Dismissals Act.

Here, the relevant parts of the contract of employment state:

Clause 1 ‘This is a fixed term appointment, subject to satisfactory service during the probationary period, and to this contract of employment.

The objective grounds for issuing a fixed term contract rather than a permanent contract are to enable the development of programmes in [specialities]. The continuation of the role will be dependent on the success and growth of the programmes as evidenced by student demand. This contract will end on 31st December 2020 at the latest. It may terminate sooner than this with due notice given, if the development of the programmes is not progressing as anticipated.

This fixed term contract underpins the fulfilment of a legitimate objective of the university to develop programmes and test their viability and specifically to develop programmes in the areas of [specialties].’

Clause 15 ‘This contract of employment will terminate on 31st December 2020 and this clause shall be deemed to be notice that fact. The Unfair Dismissals Acts 1977 – 2001 shall not apply to the ending of this contract by reason of the expiry of the fixed term period. A notice of 1 month applies to both parties to this contract.’

The contract was signed by the complainant on the 15th September 2014, i.e. before its commencement on the 1st January 2015.

The purpose of fixed term contracts

The regulation of fixed term contracts is a balance between the flexibility sought by employers against the security and protection against precarity sought by employees (see the discussion of the Supreme Court in Power v HSE 31st March 2022). An employee is entitled to a redundancy lump sum payment at the end of their fixed-term contract where they have two years of service (section 9(1)(b) of the Redundancy Payments Act). As discussed at the adjudication, public service employees are entitled to an enhanced redundancy package per LCR20730.

While an employee whose fixed term contract has expired and their employment terminated is ‘redundant’ in that they are entitled to a redundancy lump sum payment (where they have two years of service), what they do not receive is the process that usually precedes a redundancy dismissal.

Here, for example, the email of the 27th May 2020 refers to ‘analysis’ carried out by the respondent regarding the employee’s employment. It is well established that the reasonableness of a redundancy dismissal generally requires the participation of the employee in the process leading to a decision to dismiss that employee. An employer relying on the expiry of a fixed term does not have to engage in this level of process. A ‘permanent’ employee can always be made redundant, but their redundancy is subject to the requirement for substantive and procedural fairness.

Here, the fixed term was set out in the following terms: ‘This is a fixed term appointment, subject to satisfactory service during the probationary period, and to this contract of employment… The objective grounds for issuing a fixed term contract rather than a permanent contract are to enable the development of programmes in [specialities]. The continuation of the role will be dependent on the success and growth of the programmes as evidenced by student demand. This contract will end on 31st December 2020 at the latest.’

The student numbers cited by the respondent were:

The employee’s lecturing commitment was covered by two colleagues. The employee’s evidence was that they expected increased numbers moving from the earlier stages to stage 3 and 4 in this year. While the numbers in 20/21 were not as good as 17/18, there was certainly student demand for the course.

Without a process, the employee is unable to provide the same level of input to challenge the decision to dismiss that employee, for example to propose alternatives or input into a matrix. The employee is unable to contribute to how his continued employment is to be assessed, such as, in this case, to gauge this on student numbers.

Application of section 2(2)(b)

I appreciate that the complainant’s dismissal very much left him in the lurch, especially as this occurred during a pandemic. I appreciate that it was harder for the complainant to secure alternative employment. I have made comments above on the precarity of fixed term employment and how reliance on the expiry of a fixed term prevents employees from fully contributing to the decision making process around the ending of their employment.

In deciding this case, I must, however, apply section 2(2)(b), while giving it the broad and expansive interpretation set out by the High Court in Conaty. The contract in this case was clear that it was for a fixed term and that the Unfair Dismissals Act would not apply to dismissal on the expiry of the contract. It was clear as to the nature of the fixed term, i.e. up to the 31st December 2020. While there is a reference to ‘continuation’ in clause 1, this refers to continuation during the currency of the fixed term and is not an ambiguous reference to renewal as arose in the Malahide Community School contract in Conaty. The wording ‘the continuation of the role will be dependent on the success and growth of the programmes as evidenced by student demand’ must be seen in the light of the definitive statements that the contract would end at the expiry of the fixed term.

I, therefore, find that the complainant’s employment was excluded from the protections provided by the Unfair Dismissals Act because of section 2(2)(b) of the Act. Following on from this, I find that the complainant was not unfairly dismissed and I, therefore, dismiss the complaint of unfair dismissal.

CA-00042849-001

For the reasons stated, I dismiss the complaint pursuant to the Unfair Dismissals Act.

Fixed term employment / collective agreement / Cush Report / Ward Report / LCR20730 / section 2(2)(b) Unfair Dismissals Act / Conaty v Malahide Community School