Complainant

Respondent

Parties

Niall  Kennedy

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, The University Of Dublin.

Complainant

Respondent

Anonymised Parties

Representatives

David Miskell,  Irish Federation of University Teachers

Mary Leahy, Trinity College Dublin, the University of Dublin

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-00063262-001

02/05/2024

Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003

CA-00063262-002

02/05/2024

The Complainant was employed as a Teaching Fellow in the Department of French by the Respondent from September 2018 until January 2024.  The Complainant was employed on a series of fixed term contracts which were renewed.  It is the Complainant’s position that his dismissal was 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 (CID).

It is the Respondent’s position that the Complainant was employed on a specific purpose contract and his employment ended due to the cesser of the specific purpose for which he was employed, namely, to provide cover during a period of secondment. 

The Complainant submitted his complaint to the WRC on 02/05/2025.  The Complainant was paid €22,609.20 which was a pro-rata 60% of the fulltime rate of €37,682 which is point 2 on the Teaching Fellow salary scale.

Preliminary Issue

At the hearing on 13 May 2025, the Respondent raised a preliminary objection in relation to the admissibility of three covert recordings made by the Complainant. The Respondent objected on the following grounds:

·       The recordings were not submitted as part of the internal appeal process.

·       The meetings recorded were not convened under any College policy.

·       None of the individuals involved were informed that the conversations would be recorded.

·       The processing of personal data without consent appeared to be non-compliant with data protection legislation.

On behalf of the Complainant, it was submitted that the recordings were both appropriate and admissible, in light of the statutory framework under the Workplace Relations Act 2015. In particular, the Complainant argued that the Act requires an Adjudication Officer to inquire into the complaint, allow the parties to be heard, and admit any evidence relevant to the matter. The Complainant further submitted that the recordings were necessary for the purposes of exercising and defending his legal rights, and that they were central to the issues in dispute.

The Adjudication Officer indicated that a decision could not be made regarding admissibility without reviewing a transcript of the recordings. The parties agreed to engage professional transcription services, and transcripts were furnished to the WRC in advance of the hearings scheduled for 24 and 25 September 2025.

Having reviewed the transcripts, the Adjudication Officer determined that the transcripts would be admitted in evidence. However, the Adjudication Officer expressly reserved his position as to the weigh, if any, t that might be attached to these transcripts in the course of reaching a final determination.

The Complainant had submitted two complaints:

·       Under Section 8 of the Unfair Dismissals Act, 1977.

·       Under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.

While both complaints arose from the same set of facts, the complaint under the Unfair Dismissals Act was formally withdrawn at the conclusion of the hearing on 25 September 2025. Accordingly, an adjudication decision will only be made relation to the complaint under the Fixed-Term Work Act, 2003.

The Complainant was employed as a Teaching Fellow in the Discipline of French, School of Language, Literature and Cultural Studies.  His contract of employment was signed and dated 01/10/2020 and was part time (60%).  The specific purpose of this contract was to provide cover for the substantive postholder who was seconded to a project within the University.  This contract ended on 13/06/2021 and he was reemployed form 06/09/2021 on a part-time basis (60%) and for the specific purpose of providing ongoing cover for the substantive postholder (Ms A) who was seconded to a project within the University.

The Complainant applied for a different Teaching Fellow position in June 2023 and was unsuccessful.  He applied for and was provided with feedback.  Another teaching fellow post was advertised in November 2023 but the Complainant did not apply.

In December 2023 the substantive post holder advised that their secondment would conclude and she would return on 20/12/2023.  The Complainant was met by the school manager on 15/12/2023 and informed of the cessation of the specific purpose for which he was employed.  He was given one month’s calendar notice.   His employment ended on 31/01/2024.

The Complainant appealed the decision and an appeal hearing was conducted by Mr Conor O’Gorman, Employee Relations Manager.  A decision was issued on 21/03/2024 and the appeal was not upheld.

The Respondent submits that they fully adhere to their legislative obligations where it is satisfied that an employee has accrued entitlement under the Fixed Term Workers Act, 2003.  The Respondent refutes the allegation that there is an alleged policy of not granting permanency to employees.

Evidence – Professor Michael Cronin:

Professor Cronin gave evidence on affirmation on behalf of the Respondent.  He outlined that he is the professor of French at the university.  He has occupied this role since 2017 and prior to that he worked in DCU.   Professor Cronin confirmed that he has no role in determining college policy.  He first met the Complainant when he took up his initial contract.  He confirmed that the Complainant was employed to teach on various courses in language and literature.  Professor Cronin stated that he would meet with the Complainant about twice per month and other times on an informal basis.  Professor Cronin outlined that he was acting Head of Department.

Professor Cronin gave evidence that meetings would take place in his office.  There was one formal meeting with the Complainant in October 2023.  This meeting was initiated by the Complainant and he wanted to discuss what his prospects were for future employment in the university.  Professor Cronin outlined that he spoke at that meeting about his understanding of how employment contracts operated. 

When the Complainant queried his eligibility to apply for a post Professor Cronin stated that he went to check some things.   Professor Cronin explained that anything to do with employment matters are dealt with at school level.  Professor Cronin raised a query with Ms Rima Fitzpatrick and she confirmed that the Complainant could apply for the vacant post which was covering a maternity leave.  He confirmed that the email dated 19/10/2023 from Ms Fitzpatrick which read “Anyone can apply for TF post as this is an open international competition.  We have no legal grounds to prevent him we just can’t nominate him without a competition” was the email he received. 

Professor Cronin confirmed that the meeting with the Complainant ended amicably.  He was not aware that his meeting was being recorded by the Complainant.  Professor Cronin confirmed that if he was asked to give his consent he would not have done so and he added that he considered the covert recording to be “an outrageous breach of trust”.

Cross Examination – Professor Cronin:

Professor Cronin was cross examined by David Miskell, IFUT, on behalf of the Complainant.  Professor Cronin confirmed that he interviewed people as part of his role.  He also confirmed that the meeting with the Complainant was to discuss his employment prospects.

A copy of the transcript of the meeting between Professor Cronin and the Complainant was opened at the hearing.  Professor Cronin confirmed that the Complainant said that he was told he would be made redundant in January and that there was a potential homelessness issue.  Professor Cronin also confirmed that he agreed with the transcript that he told the Complainant that if he was offered another contract he would be entitled to a contract of indefinite duration and that universities do not want to do that.  It was put to Professor Cronin that this view was based on his experience of working in universities since 1982.  Professor Cronin stated that he wanted to be clear that he was not an employment law expert and what he said was his understanding.  Professor Cronin clarified that his understanding was that if someone was on a succession of contracts the institutions did not want to give a contract of indefinite duration.  Professor Cronin stated that this was his honest perception.  It was put to Professor Cronin that this affected School policy and he agreed that it was his perception that it was.

It was put to Professor Cronin that the Complainant’s evidence will be that he read from a computer screen and the words in the transcript were “…  take care not to appoint someone who could indirectly fall into a CID…”   Professor Cronin confirmed that he read out an extract from an email he received from the Head of School.  It was put to Professor Cronin that this was an instruction from the Head of School.  Professor Cronin stated that while that was the content of the email, he did not see it as an actual instruction.  It was put to Professor Cronin that his perception was the same as the Head of School.  He stated that he can only speak about his own perception and the email did put a doubt on his perception.  It was put to Professor Cronin that two people have the same perception and the effect of this is that it is an avoidance of CID.  Professor Cronin stated that his perception was that two successive contracts could lead to a CID.  He clarified that he only knew this based on hearsay.

Professor Cronin was asked about his comment in the transcript that “… I was told that if… whatever contract was to be issued, that it couldn’t be issued to a candidate or applicant who had in the past already done their three or three and a half years with us”.   Professor Cronin said that that was just his understanding.

An email from Head of School to Ms Fitzpatrick on 02/10/2023 was read:  “Just one thing to note is that if we go down the appointment route, we should be careful not to appoint someone who could indirectly fall into a CID via the back door, e.g., someone who has already been with us over the last 3 years”.  Professor Cronin stated that he did not see this as an instruction but rather that it was something that he had to keep in mind.  He needed to check this as he had a doubt about his own understanding.  Professor Cronin clarified that his email to Ms Rima Fitzpatrick was to check that the Complainant could apply for the post.

It was put to Professor Cronin that the existence of two emails, one from the Head of School which could be characterised as “be careful” and the second from Ms Fitzpatrick which mentioned that there was no legal basis to prevent the Complainant from applying, clearly confirm the practice within the school.  Professor Cronin said that he would not agree and that his interpretation of these emails is that his own position was mistaken and incorrect.

It was put to Professor Cronin that later in the meeting he agreed with the Complainant that the use of fixed term contracts had a negative effect in the sector.  He agreed and confirmed that the turnover is evidence of the effect in the sector but this again is his perception.

Re-Direction:

Under redirection Professor Cronin confirmed that he had no role in determining university policy.   Professor Cronin clarified that when he mentioned during the meeting that there was a university policy in relation to contracts, he had never actually seen such a policy.  He agreed that he had stated that the employment control framework had a negative effect in the third-level sector.

Professor Cronin confirmed that he was not familiar with any other pieces of employment legislation. Professor Cronin also confirmed that after he received the email from Ms Fitzpatrick, he did not instruct the Complainant not to apply for the post.  Professor Cronin confirmed that the Complainant asked to meet with him as he knew that his contract was coming to an end.

Professor Cronin stated that he was Head of Discipline and this is an academic role.  Any employment matters are dealt with at executive level.  The Complainant was a member of the department and the role of Head of Discipline is the allocation of classes and dealing with student matters.  Professor Cronin concluded his evidence by saying that the department operates in a collegiate manner and there is a lot of informal interaction.

Evidence – Professor Sarah Alyn Stacey:

Professor Alyn Stacey gave evidence on oath on behalf of the Respondent.  She provided details of her career and confirmed that she has been employed by the university since 1996.  She is a Professor in French and has been head of Department from 2022 until June 2025.

Professor Alyn Stacey first met the Complainant when he commenced work in the university.  He was employed on a specific purpose contract covering Ms A who was seconded to another role in the university.  Professor Alyn Stacey stated that she would meet the Complainant at department meetings and on other occasions when she would have casual discussions about the course.  Department meetings were held to discuss department business and any issues that required discussions.  Professor Alyn Stacey gave evidence that she met with the Complainant in September 2023.  This was at the request of the Complainant who requested an informal discussion. Professor Alyn Stacey outlined that she was on research leave at that time.  She organised to meet the Complainant in a Common Room where formal business meetings are not allowed.  Professor Alyn Stacey gave evidence that the Complainant raised a lot of questions about a post he applied for.  They talked about research and the nature of contracts. 

Professor Alyn Stacey gave evidence that the competition had a lot of applicants as there was a strong interest in the position.  Professor Alyn Stacey confirmed that she asked that as many candidates as possible be included in the interview process and there were 9 or 10 people interviewed including the Complainant.   Professor Alyn Stacey stated that the Complainant was not successful and was not ranked in either 2nd or 3rd place.

Professor Alyn Stacey stated that her meeting with the Complainant ended amicably.  She was waiting to hear from the Complainant in relation to some research but she did not hear from him.  Professor Alyn Stacey gave evidence that she was away on research leave.

Professor Alyn Stacey also gave evidence that there was a maternity leave post that the Complainant could have applied for but he did not apply.  Professor Alyn Stacey confirmed that she was totally unaware that her conversation with the Complainant was being recorded.  She confirmed that she had an informal, collegial discussion with the Complainant and she took him to a Senior Common Room to have this conversation.  Professor Alyn Stacey stated that she believes that there are privacy issues arising from the Complainant making a covert recording in that room.

Cross examination - Professor Alyn Stacey:

Professor Alyn Stacey was cross examined by Mr David Miskell, IFUT, on behalf of the Complainant.  It was put to Professor Alyn Stacey that she was being very honest in her conversation with the Complainant on 19/09/2023.  She confirmed that she was and that she was expressing her personal opinion.  Professor Alyn Stacey was asked to clarify what the mistake was that she referred to in the transcript of her conversation with the Complainant.  She stated that she could not recall but it may have been something about an error in a contract.  Professor Alyn Stacey was then asked what she meant by the phrase “So, I can say to you informally, but I can’t write anything and I think …”   Professor Alyn Stacey clarified that she was referring to the fact that clarification would come from HR.  Professor Alyn Stacey was also asked to clarify the meaning of the phrase “Sorry, I don’t mean to stir anything up either, but I’m just thinking there are all these contradictions”.  She stated that she did not want to give the Complainant false hope.  Her perception was that when a specific purpose contract came to an end that was the end of the person’s contract and that person could apply for another role.  This was only a hypothetical scenario.

Professor Alyn Stacey was directed to the phrase “They don’t want to give anyone a permanent contract” and asked to clarify.  She stated that the college is bound by the financial difficulties and the context of that remark was that this was an informal discussion and that was an off the cuff remark.  She stated that if it was a formal meeting then she would not have said that.  Professor Alyn Stacey said that it was important to remember that during this private conversation she was trying to give a colleague, who was distressed, some guidance and support.  All of this conversation took place in an informal way.  Professor Alyn Stacey said that she wished to say that the college was doing its best to make opportunities available.  Their competitions are open and transparent in order to ensure quality.

Professor Alyn Stacey confirmed that she was satisfied with the Complainant’s work performance.  She also confirmed that she said that she would be asking questions about the next term.  She clarified that this was because it became apparent that they did not need another post and the person, Ms A, who was seconded was coming back and she had handed things over to Professor Cronin who was now the acting head.  Professor Alyn Stacey could not recall if she spoke with Professor Cronin.   Professor Alyn Stacey said that she did not discuss this with the Complainant as she was on research leave and all staffing matters should have been dealt with by Professor Cronin.

It was put to Professor Alyn Stacey that the Complainant’s position is that he was expecting her to try and find something for him as he was losing his job.  However, she never got back to him.  Professor Alyn Stacey stated that she was expecting the Complainant to contact her in relation to research matters but he did not.  At that point it was up to Professor Cronin to make the case if a post was needed as she was away on research leave and was no longer the formal head of the department.  Professor Alyn Stacey stated that the Complainant was on a specific purpose contract and she was expressing sympathy and a wish for him but the head of department does not make any decisions in relation to creating posts.

It was put to Professor Alyn Stacey that the Complainant did email her but she did not reply.  She stated that she had an automated reply saying that she was on research leave and that Professor Cronin was the Acting Head.  The Complainant should have sent the email to Professor Cronin.

It was put to Professor Alyn Stacey that at the meeting with the Complainant she knew his contract was ending in January 2024 and he took it that she would make enquiries and he followed this up with an email on 28/09/2023 but she did not respond.  Professor Alyn Stacey confirmed that she was on research leave at that time and those issues should have been addressed to Professor Cronin.  Professor Alyn Stacey said that it is well accepted and understood that when a person is on research leave that they are out of circulation.  Professor Alyn Stacey confirmed that her research leave was from September 2023 until January 2024.

Professor Alyn Stacey was asked about other emails and she confirmed her position that these should have been directed to the then head of department during her period of research leave. A further comment by Professor Alyn Stacey was read “I mean my hands are tied with everything else.  And not least with the types of contracts that have been defined, with all the contradictions”.    She confirmed that she could not recall precisely what contradictions she was referring to.  She denied that she was making a reference to CID and said that she was most likely referring to budgetary issues.  This is an issue for the Government and not the university.

It was put to Professor Alyn Stacey that later in the conversation she indicated that she would look again at the feedback to the Complainant in relation to his interview and in that context, he was expecting detailed feedback.  Professor Alyn Stacey stated that he did receive feedback on 23/09/2023.  She also added that she was not available and he had sufficient feedback.  Professor Alyn Stacey said that she again wished to make it clear that at all times she was responding in an informal context in which she was trying to support a colleague. Professor Alyn Stacey said that she also wished to put on record that if the Complainant had approached her before she went on research leave, he could have used the formal procedure but he did not do so. She was Head of Department at that time.  Her conversation with the Complainant was purely informal.  Professor Alyn Stacey was asked if she accepted that she offered feedback but did not do so.  She stated that this was an informal conversation.

It was put to Professor Alyn Stacey that her evidence was that she would say something different in a formal setting but during this meeting she was being honest even if the meeting was not formal.  Professor Alyn Stacey said that there is a distinction between being honest and accurate.  Any issues in relation to contracts were not and cannot be treated as her having an accurate understanding of contract related matters. 

It was put to Professor Alyn Stacey that the mistake she made was what she actually said and that shows that it was on her mind.  She stated that no inference can be drawn from her conversation.

Redirection:

Under redirection Professor Alyn Stacey confirmed that the feedback which was given to the Complainant was that which was included in the Complainant’s submission.  She also confirmed that she was not the chair of the interview panel and this was the Head of School. 

Professor Alyn Stacey confirmed that she had no role in relation to any decision about permanent contracts.  She also confirmed that she does not maintain any of her roles when she is on research leave.  She stated that there is an out of office which confirms that she was on research leave.

Professor Alyn Stacey confirmed that the Complainant’s contract came to an end when Ms A returned from her secondment and that was the only reason that the specific purpose came to an end.

Evidence – Ms Rima Fitzpatrick:

Ms Rima Fitzpatrick gave evidence on oath behalf of the Respondent.  She gave evidence that she is currently Head of Academic Affairs and was formerly School Manager up to September 2024.  In that role she was responsible for planning, budgeting, academic administration in the school and staff matters.  Ms Fitzpatrick said that she may have met the Complainant when he first started and she have very little interaction with him up to December 2023.

Ms Fitzpatrick gave evidence that she had a telephone call with the Complainant in November 2023.  The purpose of this call was to inform him of the ending of his specific purpose contract.  She confirmed that the call ended amicably and she had a few follow up actions such as annual leave entitlement.

Ms Fitzpatrick confirmed that she was not aware that the call was covertly recorded by the Complainant.  She also confirmed that she got an email from Professor Cronin on 19/10/2023 which was a query in relation to the Complainant’s eligibility to apply for a post.  She confirmed that she used the work “legally” in her response.  She confirmed that she felt that it would be illegal to prevent the Complainant from applying.  Ms Fitzpatrick confirmed that the Complainant did not apply for the post.

Ms Fitzpatrick outlined that the practice in relation to CID when she was School Manager was that employees would approach her to say that they felt they had accrued an entitlement to a CID.  She would then link with the faculty HR and they could confirm the relevant dates and check it out.  The Head of School would ensure that they were not in the red financially and they looked pro-actively to see if there were any entitlements to a CID.  Ms Fitpatrick confirmed that the numbers involved were in single figures.

Ms Fitzpatrick gave evidence in relation to the staffing approval process.  The head of the area or discipline would raise a need for the post.  A business case would then be submitted and clarify if it was a replacement or a new post.   The request would then be considered by the school executive and approval then sought from the Faculty Dean and then the Faculty Finance team.

Ms Fitzpatrick also gave evidence in relation to the purpose of the Complainant’s role.  A colleague, Ms A, was seconded for a college project and her teaching needed to be covered.  The Head of School requested a back fill for this person and the Complainant was appointed. Ms Fitzpatrick confirmed that it was not known how long it would last.  She also confirmed that Ms A provided final confirmation that she would be returning to her substantive role in December 2003.

Cross examination - Ms Fitzpatrick:

Ms Fitzpatrick was cross examined by Mr David Miskell, IFUT, on behalf of the Complainant.  She was asked about fixed term contracts and she confirmed that these are in place and the school may use these.  It was put to Ms Fitzpatrick that the Complainant will say that during his time there was no permanent post approved in the department.  Ms Fitzpatrick agreed.  It was put to Ms Fitzpatrick that the Complainant had a casual contract in 2008 and then other contracts and it was odd that no permanent positions were advertised.  She stated that this was the need of the department at that time and she did not accept that it was odd that no permanent posts were advertised.

Ms Fitzpatrick was asked about her HR or IR experience in relation to the termination of contracts.  She stated that her experience is purely working experience.  Her qualifications are in the business area and she has a working experience in relation to contracts.  Ms Fitzpatrick confirmed that she was aware that there was a difference between a fixed term contract and a specific purpose contract in that a fixed term will have fixed dates and a specific purpose may have a notional date.  She confirmed that she was not aware of the difference as set out in the Act.

Ms Fitzpatrick confirmed that she met the Complainant on 15/12/2025 and that it was highly likely she had other meetings that day.  She was asked why she arranged a 5-minute meeting with the Complainant.  She explained that what she had to say was very short and she had held many similar meetings but she appreciates that it may sound insufficient.

Ms Fitzpatrick was asked what the additional work which was allocated to another person was.  She confirmed that these were casual hours which arose due to a fixed term contract.  It was put to Ms Fitzpatrick that the Complainant asked why he was not given these additional hours.  Ms Fitzpatrick stated that she was not the head of the French Department and that the hours are allocated based on a person’s skills.  It was put to Ms Fitzpatrick that the transcript shows that the Complainant told her that it was a legal question in relation to why he was not allocated the hours. She stated that she did not know why it was a legal question.  Ms Fitzpatrick confirmed that she asked Professor Alyn Stacey in an email about those hours.

Ms Fitzpatrick was asked to explain her email of 19/10/2023 in which she said that there was no legal basis to prevent the Complainant applying for a post.  She confirmed that this email was sent based on previous experience and it confirmed that there was no legal basis why the Complainant could not apply.  It was put to Ms Fitzpatrick that there was a difference between welcoming someone to apply and stating that there were no legal grounds to prevent him from applying.  Ms Fitzpatrick said that it was the case that there was no legal basis preventing the Complainant from applying.  Ms Fitzpatrick was asked about the email which was sent to her on 02/10/2023 from the Head of School.  She confirmed that this was her line manager.  It was put to Ms Fitzpatrick that this email confirms that it gives guidance that no one should fall indirectly into a CID.  Ms Fitzpatrick stated that she would refute that proposition.  There was nothing done in her practice while in the school to avoid an employee falling into a CID.

Redirection:

Under redirection Ms Fitzpatrick confirmed that the initial query from Professor Cronin to her was to check the Complainant’s eligibility to apply and she felt that this was a reasonable question to ask.  Ms Fitzpatrick also confirmed that when recruitment competitions are held it is the practice to select the best candidate.  Ms Fitzpatrick confirmed that there was no email or policy from HR in relation or about CID.

Evidence – Mr Conor O’Gorman:

Mr Conor O’Gorman gave evidence on oath on behalf of the Respondent.  He confirmed that he is the Employee Relations Manager with the Respondent.  He has been in that role since January 2023 and prior to that he worked for Ibec for 8 years.

Mr O’Gorman confirmed that he was appointed the Appeal Manager in relation to the Complainant’s appeal against his dismissal.  Prior to that he had no knowledge of the Complainant apart from hearing him on a radio interview.

Mr O’Gorman confirmed that the appeal came about when the Complainant’s representative sent a letter of appeal to the Head of Employee Relations.  He was then appointed to hear the appeal and he arranged to meet with the Complainant and his representative.  This meeting took place on 29/01/2024.  Mr O’Gorman gave evidence that he took the Complainant through his grounds of appeal and the Complainant outlined why he felt he had been denied an opportunity to avail of a CID.  The Complainant also outlined details of his meeting with Professor Cronin and he stated that he was informed by Professor Cronin said that the university had a policy of not allowing people to access a CID.  The Complainant also stated that as Professor Cronin was an agent of the college his view should be taken into account.  The Complainant  submitted that there were additional teaching hours available and he should have been offered those.  The Complainant also told the appeal hearing that he was interested in any opportunity that might arise in the School of Film.  The Complainant provided the appeal hearing with his employment history with the university and he shared various email correspondence.

Mr O’Gorman gave evidence that following the meeting he addressed the grounds of appeal. He was satisfied that the reason was not because a redundancy situation arose but because the contract ended due to the cessation of its purpose.  The Complainant’s contract had a specific purpose and Mr O’Gorman stated that he checked with the school if the person who was seconded was returning and it was confirmed that she was.  Mr O’Gorman said that he noted the Complainant’s submission that the contract ended for reasons of avoiding a CID.  Mr O’Gorman stated that he found no evidence to support this as the Complainant was on a special purpose contract.  Mr O’Gorman gave evidence that he also checked the Complainant’s assertion that additional hours were available but he found that there were none and he also found that the Complainant did not take up the offer of other additional hours.

Mr O’Gorman confirmed that the outcome of the appeal was that he did not uphold any of the grounds advanced by the Complainant.  He specifically found that there was no redundancy, the Complainant’s contract came to an end by virtue of the ending of its purpose and there was no evidence that there was any avoidance of a CID.  Mr O’Gorman confirmed that the Complainant did not produce any recordings of any conversations at the appeal hearing.  Mr O’Gorman also confirmed that copies of an email exchange between Professor Alyn Stacey and another colleague, which were included in the Complainant’s submission were not submitted during the appeal process. 

Mr O’Gorman confirmed that after he issued his finding, he received a letter from the Complainant but he did not respond to this as the appeal hearing is the final step in the process.

Mr O’Gorman was asked to outline the process in place to review eligibility for a CID for employees on a fixed-term or fixed-purpose contract.  He explained that there is a system whereby either an employee or a manager can ask and then raise a query within the relevant faculty as a first step.  Following this the HR Business Partner will review and form a view and set out the reasons why or why otherwise a CID is or is not warranted.  If there is a potential CID this is then sent to the Employee Relations team who conduct a further review and if there is agreement then they write to the employee and confirm the outcome.  If a CID is due to be issued this is then handed over to the HR Business Partner.

Mr O’Gorman confirmed that there was no request received from the Complainant for a review of his entitlement to a CID.  The first time that the Employee Relations department became aware of an issue in relation to the Complainant was when his appeal was submitted on 10/01/2024. 

Mr O’Gorman stated that he was confident that he conducted a thorough appeal and he considered the three grounds outlined.    Mr O’Gorman was asked why there were no advertisements for permanent posts in the Department of French.  He opened a copy of the Academic Titles Policy and referred to the section which deals with the criteria for appointment of a Teaching Fellow.  This is the policy that governs appointments in this role.

Cross examination: Mr Conor O’Gorman:

Mr O’Gorman was cross examined by Mr David Miskell, IFUT, on behalf of the Complainant.  He confirmed that he was not involved in the day-to-day running of the college.   It was put to Mr O’Gorman that in his role as the appeal manager he had a duty to investigate the grounds for appeal.  He confirmed that he had and that he fully discharged that duty.  He confirmed that he reviewed all the documents and contractual hours.  It was put to Mr O’Gorman that in his decision he made no reference to the HR Business partner.  He confirmed that was correct and he also agreed that it was not mentioned in the letter with the appeal outcome.  It was put to Mr O’Gorman that the Complainant wrote to him on 13/04/2024 with details of errors in his letter of appeal and that he did not respond to the Complainant.  Mr O’Gorman stated that he did not respond because there was no obligation to do so.  Once his decision was issued, he had no further role.

It was put to Mr O’Gorman that the Complainant’s letter outlined three areas under a heading “Issues to Raise” and it was a fact that Mr O’Gorman did not meet with any of the people involved in those three issues.  Mr O’Gorman stated that an appeal hearing is not an investigation process.  An appeal process considers the reasonableness of the decision to dismiss the Complainant.  It was put to Mr O’Gorman that it would have been reasonable to follow up on the issues raised by the Complainant.  Mr O’Gorman stated that he believed what the Complainant told him and this does not change the fact the contract he had was coming to an end. Mr O’Gorman also said that the letter of appeal mentioned three areas: redundancy, breach of Croke Park Agreement and the avoidance of a CID.  The appeal dealt with those grounds of appeal.

It was put to Mr O’Gorman that he accepted the Complainant’s version of his meeting with Professor Cronin.  Mr O’Gorman confirmed that he did.  He was then asked if he was concerned that a senior member of staff had mentioned the issue of avoiding a CID.  Mr O’Gorman said that he was and he corrected that immediately.  Mr O’Gorman was asked if it would not have been better to interview Professor Cronin given that he held such a view.  Mr O’Gorman stated that it does not change the fact that Professor Cronin was wrong.  Mr O’Gorman was asked if he explored the possibility that such an informal policy existed in the school.  He stated that he was dealing with the Complainant’s appeal and there was no evidence that the Complainant was denied a CID.  It was put to Mr O’Gorman that it was significant that a senior academic believed that such a policy did exist.  Mr O’Gorman said that he did not and this was never raised as an issue.

Mr O’Gorman was asked about the email dated 02/10/2023 from the Head of School which issued guidance to Professor Cronin and Ms Fitzpatrick to take care to avoid a CID and it was put to Mr O’Gorman that this is clear evidence that there is an informal policy.  Mr O’Gorman stated that people might believe that such a policy exists but the fact is that the Complainant was asked to apply and he was also offered additional hours.

It was put to Mr O’Gorman that the Complainant’s claim is that he was denied a contract at that time as it would then have put him in line for a CID and Professor Cronin stated that he would not be considered for the job.  Mr O’Gorman said that he believes that Professor Cronin was being set up at that meeting.

Mr O’Gorman was asked about the letter sent to him by the Complainant which outlined a number of factual inaccuracies in his letter with the appeal outcome and it was put to him that it would be reasonable for a HR manager to consider the points raised in that letter.  Mr O’Gorman stated that it would not as the appeal process was over at that time.  It was put to Mr O’Gorman that if the appeal outcome was inaccurate then he should have responded to the letter.  Mr O’Gorman said that he did not think so as the process was concluded.

Mr O’Gorman was referred to the email dated 11/09/2023 and asked to explain how he interpreted this as a refusal by the Complainant to take on additional hours.  Mr O’Gorman said that the Complainant was offered additional hours but he seemed to think that this would somehow interfere with his existing contract.  Mr O’Gorman noted that the letter was sent to him after the appeal hearing process concluded.

Mr O’Gorman was asked if he followed up on the Complainant’s idea that he would be interested in working in the film department.  Mr O’Gorman confirmed that he did not raise any query with that department. Mr O’Gorman was asked if he, under the provisions of the Croke Park Agreement, looked at alternative roles when someone is in this situation.  He stated that he did look at other roles within the Complainant’s discipline.   Mr O’Gorman stated that he was not in a position to confirm the redundancy payment to the Complainant as he was not involved.

Mr O’Gorman was asked about an email exchange on 21/08/2023 and asked to clarify if this was a claim for a CID after such a request was made.  He clarified that this was not a CID request and noted that such a request can also be initiated by an employee.

It was put to Mr O’Gorman that he did not investigate the existence of an informal policy in the school where the Complainant worked.  Mr O’Gorman stated that there was no evidence produced that such a policy existed.  It was put to Mr O’Gorman that the evidence was that two senior academics and a head of school mentioned it.  It was put to Mr O’Gorman that a previous WRC decision involving the Respondent would be relevant to the Complainant’s case.  Mr O’Gorman stated that he considered it irrelevant as he had no knowledge of that particular case.

Redirection:

Under redirection Mr O’Gorman was asked what he thought of the email from the head of school dated 02/10/2023.  He stated that he considered this to be an inappropriate email.  Mr O’Gorman was asked why the Complainant’s contract came to an end.  He stated that the contract specifically states: “This appointment is offered with effect on and from 06 September 2021.  This employment arises as a result of the original post holder’s secondment to another College post.  Therefore, the specific purpose of this employment is to provide cover during the period of secondment.  Employment is not offered on an indefinite duration basis as the secondment will become finite”.  Mr O’Gorman stated that the person who was seconded, Ms A, confirmed that her secondment would end in January 2024. 

Mr O’Gorman also confirmed that the contract clearly outlined that the provisions of the Unfair Dismissals Act (1977-2015) would not apply to a dismissal consisting only of the expiry of the specific purpose stated in the contract.  Mr O’Gorman stated that he believed that the dismissal of the Complainant was fair under the provisions of the Act.  He also confirmed that there is no screening panel or process in place in relation to any other policy apart from the Dignity and Respect policy.

Mr O’Gorman also agreed that there was no onus on the college to look at alternative roles but they do so and encourage employees to apply.

Closing submission:

In a closing submission on behalf of the Respondent Ms Leahy outlined that the Complainant’s contract of employment came to an end when the purpose for which he was employed ended, i.e., the person whose secondment was being covered was returning to her substantive role.   The Complainant was not a permanent employee and there was no onus on the Respondent to look for or to find other employment for the Complainant. 

The Complainant was entitled to a redundancy and the Respondent has paid that.  Finally, it is the Respondent’s position that the recordings made by the Complainant were illegally obtained and this had resulted with a significant breach of trust with his former colleagues.

It was also submitted on behalf of the Respondent that reinstatement or reengagement are not viable options as the Respondent has no role available for the Complainant.  The question of trust is a significant factor for the Respondent.

The Complainant gave evidence on affirmation.  He outlined his employment history with the Respondent.  His initial employment started in September 2018 as an adjunct teaching fellow.  In September 2020 he commenced as a teaching fellow.  He outlined details of what the role involved.  He confirmed that the role also involved approximately 40% of language teaching to four undergraduate groups.    The Complainant gave evidence that his initial contract was a specific purpose one from September 2020 to June 2021.  This was renewed in September 2021 until June 2022 and renewed again in September 2022. The Complainant outlined that he did have a review during this time.  He was contacted by the Head of Department and in his review, he obtained the highest possible rating and it was stated that he went above and beyond the demands of the role.  There were never any issues in relation to his performance.

The Complainant gave evidence in relation to his anti-precarity activity.  He outlined that for some time he was concerned about the use of temporary contracts.  Arising from this activity he was invited to appear and provide evidence to the Oireachtas Joint Committee on Higher Education on 29/03/2022.  The Complainant confirmed that he provided the Committee with a submission.  He stated that he wanted to highlight that there was 50% precarity and highlight the impact this had on the life of individuals.  There was also a gender imbalance and it also had a serious impact on the professional lives of people. 

The Complainant stated that he refuted the Respondent’s submission that he was a union activist although he is a union member.  The Complainant also confirmed that he had no familiarity with the agreements mentioned by the Respondent. 

The Complainant outlined that during the course of his employment with the Respondent he did not notice any advertisements for permanent positions in the department.  He said that he would estimate that about 20 people passed through the department while on temporary contracts. The Complainant said that he applied for a teaching fellow post in the Summer of 2023. But he was not successful.  He was offered an opportunity to return in September 2023 to see out the remainder of his contract.

The Complainant was asked to explain the context of the Respondent’s submission that he refused additional hours.  He stated that he returned in September 2023 and serve out the special purpose until January 2024.  On 08/09/2023 he was asked to sign a form.  He was shocked to receive the email as he thought he was returning on the same terms and conditions that he previously had.  This form represented a change to hourly based pay which would amount to less pay.  The Complainant stated that he sought clarity as he was worried that he was being downgraded and he needed time to consult with the trade union and get the conditions he was previously on.

The Complainant confirmed that this was sorted out as the sender of the email made an error.  The Complainant stated that he did not decline anything in those emails.  He confirmed that he sent those to Mr O’Gorman as he wanted to be clear the pressures he was under and also these emails confirmed his terms and conditions from September 2023 to January 2024.  The Complainant confirmed that he did not refuse additional hours as he was never offered any hours.

The Complainant outlined details of his meeting with Professor Alyn Stacey.  The meeting took place on 19/09/2023 and he had requested the meeting.  His intention was to ask about a teaching fellow position over the summer.  The Complainant stated that he was unhappy with the feedback provided in relation to his interview and he wanted to request more specific feedback.  The Complainant stated that Professor Alyn Stacey was clear that she wanted to keep him on and two other meetings were planned.  One was to obtain more specific feedback and the second was to get information in relation to other opportunities.

The Complainant stated that the feedback he received was disappointing.   It dealt mainly with technical issues and did not outline any path to improve.  The Complainant stated the Professor Alyn Stacey told him that she had not read that feedback.

The Complainant was asked about Professor Alyn Stacey’s evidence that she disputed that she had agreed to meet him again.  He stated that she was going on research leave.  She was aware that this was a time sensitive issue due to his housing rental situation.  The Complainant stated that it was his understanding that they would have an imminent meeting over Zoom or when she returned in October.      

The Complainant also gave evidence in relation to his meeting with Professor Cronin.  He gave an overview of this meeting.  He told Professor Cronin that he had not heard anything from Professor Alyn Stacey.  Professor Cronin volunteered that it would not be possible to get additional hours as another contract would put him in place to get a CID.    The Complainant stated that he mentioned to Professor Cronin about a possible maternity leave cover and if this was an opening.  Professor Cronin confirmed that there was a maternity leave cover but he could not get it was it would put him in a CID space. 

The Complainant was asked if there was any discussion about the email from Ms Fitzpatrick.  He stated that Professor Connin said that he might not be able to apply.  The Complainant stated that he asked Professor Cronin to put this in writing.  Professor Cronin then went to his computer and then read out an email which said that care must be taken to ensure that the successful candidate does not become eligible for a CID.   The Complainant stated that this email was from the Head of School.

The Complainant gave evidence in relation to the chain of events following this meeting.  He stated that the asked Professor Cronin to contact Professor Alyn Stacey. He said that he would do so and he left the meeting on that basis.  The Complainant stated that he took the view that it would be fruitless for him to apply for the maternity leave role and it would be a complete waste of time to apply knowing that he would be unsuccessful.  Professor Cronin did say that he would clarify the position with Ms Fitzpatrick and he asked Professor Cronin in relation to the policy he quoted.  The Complainant stated that he subsequently got a message from Professor Cronin who got an email form Ms Fitzpatrick in which she said that they cannot legally prevent him from applying.  The Complainant stated that he submits that there is a clear distinction between applying for a post and being considered for a post on merit.  The Complainant stated that from this meeting he felt that there were additional considerations at play and he could not be stopped from applying.   The Complainant stated that based on the email from the Head of School he knew it would be fruitless to apply as he would not be excluded on the basis of merit.

The Complainant also said that Professor Cronin told him that he had not heard from Professor Alyn Stacey and he asked him to contact her directly.  The Complainant confirmed that he contacted Professor Alyn Stacey and told her about his housing issue.

The Complainant was asked if he queried why the teaching hours that were offered to someone else.   He confirmed that he was contacted by someone to say that she was offered teaching hours.  This person wanted to know if he could provide any light in relation to these hours.  The Complainant confirmed that this person was not working for the Respondent in 2023.  The Complainant also confirmed that he was provided with no explanation offered as to why they were not offered to him.

The Complainant was asked about Mr O’Gorman’s evidence that he turned down the additional hours that were offered to him.  The Complainant stated that this was not a tenable proposition as he was never offered any hours.  The discussions were about hours in January 2024. 

The Complainant was asked about his appeal.  He confirmed that there was no attempt to arrange a redeployment meeting.  There was work offered to another person and as he was a fixed term worker he was being penalised due to him approaching eligibility for a CID.   The Complainant confirmed that he outcome of his appeal was that it was rejected.  The appeal erroneously found that he had refused hours and this justified them being given to another person.  The appeal also stated that there was no obligation to discuss alternative work.

The Complainant gave evidence that because of the errors in the appeal outcome he wrote to Mr O’Gorman.  He did so because the appeal failed to address come of his concerns such as his requests for meetings, the email from the Head of School, the fact that he did not refuse hours but rather queried the terms and conditions being offered.  The appeal also failed to address Professor Cronin’s remarks about a CID.  Mr O’Gorman said that Professor Cronin was not his line manager but the fact is that he was the acting head of department at that time.   It was wrong that the chatty nature of the meeting is used by the Respondent as a basis to discredit the meeting.     The Complainant was asked if his anti-precarity activism might be a factor in his dismissal and penalisation.  He stated that he believed that the policy in relation to falling into a CID had no exception.  He did not believe that his activism would have any impact on his career.

The Complainant was asked if it was correct that neither Professor Cronin or Professor Alyn Stacey did not consent to the recording of their meetings and he agreed that he did not seek their consent.  The Complainant also stated that he recognised that he has caused hurt by making the recordings.  The stated that he made these recordings as he had no alternative and he is aware of the damage this has done to his relationship.  The Complainant explained when he meant by having no alternative in that he tried to get the remarks about the CID in writing but he was not successful. The recordings were a means of self-protection. 

The Complainant was asked about Mr O’Gorman’s evidence that he accepted his version of the meetings.  He agreed that was correct and he stated that he made the recordings as he wanted to uphold his legal rights.  He tried to achieve his outcome without the use of these recordings and that is why he did not produce them during the appeal hearing.  He thought that Mr O’Gorman would carry out a full investigation and he gave a detailed account to Mr O’Gorman as he had hoped he would ask Professor Cronin and Professor Alyn Stacey if his account of the meetings was accurate and if they agreed then there would be a finding of fact and the recordings would no longer be required.

The Complainant was asked about Mr O’Gorman’s evidence that he did not have to reply to his letter.  The Complainant stated that he believed there would be a full investigation and he had expected that the findings about the issues he raised about not having meetings and the other points would be addressed but they were not.

The Complainant was asked why he did not use the grievance procedure.   The Complainant stated that he did use the Respondent’s grievance procedure.  He raised the issues with the section head, then with the head of department, then, with HR and then with the WRC.

The Complainant was asked if it was correct that everyone knew that his contract was coming to an end in January 2024.   The Complainant stated that that did not mean that another contract could not begin. He already had two contracts and there was no reason why he could not have had another one.

The Complainant was asked about the 2003 Act in relation to penalisation and also unfair dismissal.  He stated that he did not refuse any hours and he did not apply for the other job purely because he was told that he would not be successful.

The Complainant was asked if his precarity activism was a means of using his axe to grind with the Respondent.  He stated that it is about how him as an individual have been seriously damaged by the way his employment ended.

The Complainant also provided the hearing with his attempts to mitigate his loss and the various applications he has made since his employment with the Respondent ended.  He clarified that he has only ever worked in an academic role since 2010 and has no experience in any other area.

The Complainant concluded his evidence by saying that he does not believe he was afforded due process.  The appeal did not investigate the issues and he got no reply to emails from September 2023 to December 2023.  The Complainant also stated that he regrets that he had to make the recordings and anyone critical of him for doing so should put themselves in his shoes.  He tried everything he could before making these recordings.  This matter has been devastating for him as he lost his career.  He gave 15 years of his life and he cannot buy a house or have a family.  The fact is that “my career had been ripped away from me”.                                                                                                                                                                                                                                                                                                                                   

Cross examination – the Complainant:

The Complainant was cross examined by Ms Leahy on behalf of the Respondent.  

The Complainant agreed that the copy of his contract opened at the hearing was a specific purpose contract and it contained his signature.  He also confirmed that he understood the need for the contract and he agreed that his second contract was for the same purpose which was to fill in for another employee who was seconded.

It was put to the Complainant that the Respondent’s “Academic Titles” policy determined how permanent vacancies were approved.  He agreed that he was in a Teaching Fellow role and the policy outlined how these posts were approved.  The Complainant stated that during his time there were no permanent posts advertised.

The Complainant was asked about the email he received on 09/09/2023 which asked him to sign a casual contract.  He confirmed that he sought and obtained advice from his trade union in relation to this.  It was put to Complainant that his evidence was that Professor Cronin said that he would not be considered for the position.  The Complainant stated that Professor Cronin assented to the proposition.  The Complainant was asked if he made any reference to the email from a senior member of staff and he stated that he could not recall if he did and he did not know that email was not from HR.   The Complainant was asked if he still believes that a policy of not appointing people in order to avoid a CID exists.  He stated that he believes that at the material time such a policy existed in the department where he worked.

The Complainant was asked what the clarification was he sought from Ms Fitzpatrick.  The Complainant stated that he asked Professor Cronin to put his comment about CID in writing when he quoted the email from the Head of School.  The Complainant was asked if he followed up to clarify.  He stated that it was very clear what he was asking for and when he did not get it he took the view that Professor Cronin did not want to provide it.  The Complainant said that he was hoping Professor Cronin or Professor Alyn Stacey would make efforts to find something and arrange informally.  There was no benefit to the Complainant by demanding it from him.

It was put to the Complainant that he said he was not impressed with Ms Fitzpatrick’s email.  He was asked if he followed this up.  The Complainant said that he took that email to confirm what he had already being told.   The Complainant was asked if he brought this up at his appeal hearing.  He said that he did but Mr O’Gorman’s interpretation of was the opposite of what was said.  The pain English should have been read.  The Complainant also confirmed that he had taken legal advice.

The Complainant was asked if he contacted HR at any time from September to December 2023.  He confirmed that he did and that contact was with Ms Fitzpatrick as he understood she was the HR contact person.  The Complainant also confirmed that he contacted HR with his appeal on 10/01/2024.   The Complainant was asked if he included everything in his appeal.  He confirmed that he understood the bullet points were the main points but he reserved the right to raise any other relevant matters.   The Complainant confirmed that he did not make the appeal manager aware of the recordings.

It was put to the Complainant that he expected another contract extension although he was aware that there was no need as the person returning from secondment had confirmed her return.  The Complainant stated that there was other work such as the maternity leave cover role but he was told that he would not be considered.  There were other hours available but these were offered to a person not working in the college.  The Complainant stated that he was not privy to what other work was available and he was informed by the Head of the Department that she wanted to keep him on.

The Complainant was asked if anyone new was employed and he stated that he was not in a position to know since January 2024 but he believed that one person was employed.

It was put to the Complainant that the three recordings were made without consent and he confirmed that they were and he also confirmed that he now wished to apologise for doing so.  It was put to the Complainant that when making these recordings he deliberately went to the meetings with specific questions and wanting specific answers.  The Complainant said that he would refute that proposition and stated that he tried to get an understanding of his situation and his available options.

The Complainant was asked if he believed there was a difference between a formal and an informal meeting.  The Complainant stated that there is a difference between a conversation and an email.  The meeting with Professor Cronin was in his office and there is no relevance between formal and informal when legal issues are at stake.  The Complainant said that he did not see a difference.

The Complainant was asked about his attempts to mitigate his loss and he confirmed the number of applications made.  He also confirmed that he only applied for posts relevant to his field as he has no relevant experience or qualifications in any other role.  The Complainant also stated that taking other jobs might end any attempts he was making to get back to a higher education role.  The Complainant also confirmed that given his situation he could not afford to take on any training courses.

Redirection:

Under redirection the Complainant was asked to clarify the email he received on 08/09/2023 asking him to sign a casual contract.  He stated that he replied saying that he was unable to sign the attached contract as he returned in September 2023 on his existing terms and conditions and he did not want to accept any reduction in his conditions.  He was expecting to serve out the remaining time on his contract on the same terms and conditions.  The Complainant stated that in that email exchange he did not deny or turn down any additional casual work.  

Closing Submission:

Mr David Miskell, IFUT, made a closing submission on behalf of the Complainant.  He confirmed that the complaint under the Unfair Dismissals Act was withdrawn and their focus is on the complaint seeking adjudication under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003.  The core issue of this dispute is that the Complainant was subjected to penalisation.  It is not disputed that the fixed-term contract was due to end in January 2024.   The Complainant was refused additional hours.  The hours that were available were given to a person who was not a college employee at that time. 

The question is:  Was the ending of the Complainant’s contract an objective cause.  Ms Fitzpatrick was not a decision maker.  Professor Alyn Stacey and Professor Cronin were clear in relation to the informal policy.

What is not smoking mirrors is the existence of the email from the head of school dated 02/10/2023 which is unambiguous when it states:  “… we should be careful not to appoint someone who could indirectly fall into a CID via the back door, e.g., someone has already been with us over the last 3 years”.   The fact is that a person’s contractual status should have no relevance in a recruitment competition.

It is accepted that Professor Alyn Stacey and Professor Cronin were honest in their conversations and meetings with the Complainant. 

It must also be considered whether there is an obligation on an Employee Relations Manager to investigate matters fully.  To do so in this case would have uncovered an inconvenient truth.

This is a clear case of penalisation.  The operative cause is that the head of school was operating on the understanding that if the Complainant got a further contract he could “indirectly fall into a CID via the back door...”

It was confirmed that the redress which the Complainant is seeking is reinstatement.

This complaint seeking adjudication under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003. 

The Legal Framework

Under the heading “Interpretation” at s.2 of the 2003 Act, a fixed-term employee is defined as,

“…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…”

It is apparent from this that, apart from a temporal appointment with a fixed start and end date, a fixed-term employee may be employed for a specific purpose that has no end date, or, they may be employed, as in Power v the HSE [2021] IEHC 346 until the occurrence of a specific event such as a permanent appointment. 

The genesis of the Fixed-term Work Act is Council Directive 1999/70/EC concerning the framework agreement on fixed-term work.  Clause 1 of the framework agreement states that the purpose of the Directive is to:

(a)  improve the quality of fixed-term work by ensuring the application of the principle of non-discrimination.

(b)  establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.

It is clear therefore, that the Directive is intended to provide protections for fixed-term workers and to prevent abuse where employers might seek to offer temporary assignments to a succession of employees, or to resist making a permanent appointment.  Clause (b) above has been transposed into Irish law by section 9 of the 2003 Act which addresses the issue of successive fixed-term contracts:

“(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”.

Covert recordings:

Given the usage of covert recordings by the Complainant, there is a need to make some observations on their use. Covert recordings by an employee during interactions with their manager or head of department is a complicated matter.   Many issues of a sensitive nature arise.  These can encompass legal, ethical professional and indeed moral discussion.  While an employee may feel justified in making such recordings if they are of the view that their complaints may lack other evidence to support them.

The legality of recordings of a covert nature does not have a uniform consensus regarding their admissibility or appropriateness. There is much evidence that such recordings can erode trust and damage professional relationships in the workplace. From an employer’s perspective such recordings are generally regards as a fundamental breach of trust, breach of confidentiality, and/or data protection obligations.

While covert recordings can serve as a protective mechanism for some employees in vulnerable situations, their use is approached with caution, and employees are generally advised to pursue formal grievance procedures.  Both parties provided comprehensive submissions and legal precedents in relation to the use or otherwise of covert recordings.

In this case, the Complainant submitted three such recordings. Upon reviewing the transcripts, the Adjudication Officer ruled that they should be admitted into evidence and reserved the right to determine the degree of weight, if any, to be attached to each.

The recording of the meeting with Professor Alyn Stacey has been considered in light of Professor Stacey’s evidence that this was an informal, supportive, and conversational engagement intended to assist a colleague. Accordingly, no weight has been attributed to this recording.

It was not disputed that the recording with Professor Cronin took place in a more formal context. The contents were not disputed by Professor Cronin, and the recording confirms the existence of the email sent by the Head of School, which was referenced by Professor Cronin during the meeting.

The recording of the online meeting with Ms Fitzpatrick was likewise undisputed and provided useful clarification regarding the hours queried by the Complainant and the recruitment practices within the school.

Discussion and Findings:

The Complainant submits that he was dismissed and subsequently not appointed to another role in order to prevent him from attaining the requisite period of service that would have entitled him to a Contract of Indefinite Duration (CID).

It is his position that an informal policy existed within the school which, when applied, ensured that he would not acquire a CID. In support of this claim, the Complainant produced several covert recordings, which he contends demonstrate this practice, as well as two emails that he submits are consistent with such an informal policy. One of these emails, from the Business Manager to Professor Cronin, confirmed that there was no legal basis to prevent the Complainant from applying for a particular post.

The Complainant also relies on an email dated 2 October 2023 from the Head of School, which he asserts clearly reflects the intended approach. This email cautioned that “we should be careful” to avoid appointing anyone who “could indirectly fall into a CID.” Although it was disputed whether this amounted to a formal instruction, it is clear that the email represented a guiding position in the management of appointments.

The Complainant had been employed under a series of fixed-term contracts, and a further renewal would have entitled him to a CID. The central issue, therefore, is whether the risk of him acquiring a CID was an operative factor in the decision not to appoint him. I accept the Respondent’s evidence that there was no formal written policy to this effect.

However, I also accept the Complainant’s submission that an employee’s contractual status should not be a relevant consideration in a recruitment process. The fact that the Head of School both authored the email and chaired the interview panel is of particular importance. It is not possible to reconcile the tone and content of that email with the subsequent decision not to appoint the Complainant.

On the balance of probabilities, I am satisfied that the prospect of the Complainant acquiring a CID was an operative cause in the decision-making process.

Accordingly, I find that the complaint is well-founded.

Having carefully reviewed all the facts and evidence presented in this case, I have given thorough consideration to the possibility of reinstating the Complainant to their former position. I note that reinstatement is the preferred remedy advanced on behalf of the Complainant in this case.   However, such an outcome must be both practical and conducive to restoring the employment relationship in a fair and sustainable manner.

In this instance, I am satisfied that reinstatement is not a realistic or appropriate remedy. The circumstances surrounding the termination of employment, the passage of time since the Complainant’s departure, and the current nature of the working relationship between the parties indicate that a return to employment would not be viable. Reinstatement could not reasonably be expected to restore trust or provide a stable working environment for either party.

Accordingly, I have considered alternative forms of redress. Having weighed the evidence and the degree of the contravention of the relevant provisions of the Act, I find that compensation is the most appropriate remedy in this case. This award is intended to acknowledge the impact of the contravention on the Complainant and to provide fair financial redress.

Therefore, I direct that the respondent pay to the Complainant the sum of €30,250 as compensation for the contravention of the Act. This payment should be made within 42 days from the date of this decision.

CA-00063262-001: This complaint was withdrawn at the hearing on 25/09/2025.

CA-00063262-002: I have decided that this Complainant is well-founded and I award the Complainant the sum of €30,250.

Fixed term work.  Contract of indefinite duration. Covert recording.