ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00052675

Parties:

Complaints:

Date of Adjudication Hearing:  05/08/2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 14 of the Protection of Employees (Fixed-TermWork) Act 2003,following the referral of the complaints to me by the Director General, I inquired into the complaints 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 contends that he is entitled to a contract of indefinite duration under the provisions of Section 9 of the Act.  He further contends that the Respondent acted in breach of Section 8 of the Act in relation to written statements.

Summary of Complainant’s Case:

The Complainant made the following submission:

I held a series of fixed-term contracts with Midlands Regional Hospital, which were renewed annually over the course of three years. Despite the consultants' desire for me to continue in my role, the hospital's finance department and human resources (HR) decided not to renew my contract after the third year. At the end of this period, I was forced to sign a leave form. Subsequently, I was signed by an agency and covered shifts at the hospital under an agency contract for one month, beginning on 09/01/2023 and ending on 27/02/2023 During this entire period, including the agency contract month and the renewed fixed-term contract, I covered exactly the same post as an ED Registrar in the A&E department of the same hospital (All fixed term contracts). Following the agency contract period, my contract was renewed again as a fixed-term contract extending my employment until January 2024. Despite my contract not being renewed lor 2022-2023, I continued to receive the rota from HR, which indicated that I was rostered to work in the Emergency Department therefore I was expected to come via agency and cover exactly the same post. Throughout this entire process, I was not provided with any explanation as to why my initial series of contracts were not renewed in the usual manner, nor was I informed why I was not offered a contract of indefinite duration. At the end of my contract in January 2024, I received an email from HR, stating that "Hospital will not renew my contract'.

It appears that granting me a one-month break in my continuous contract may have been a strategy to avoid offering me a contract of indefinite duration.

I believe that HR did not comply with Section 14 of the Protection of Employees Act 2003.

The Complainant also contended that the Respondent failed to provide him with a statement justifying the renewal of his fixed term contract and the failure to offer a contract of indefinite duration.

Summary of Respondent’s Case:

The Complainant claims that

• (i) the Respondent breached the provisions of the 2003 Act in relation to the number of fixed-term contracts issued to the Complainant (per s.9(2) of the 2003 Act) and
• (ii) that the Respondent failed to offer a written statement setting out the objective grounds justifying the renewal of a fixed-term contract and the failure to offer a contract of indefinite duration (per s.8(2) of the 2003 Act).

The Complainant does not come within the scope of s.9(2) of the 2003 Act to be able to demonstrate an entitlement to a contract of indefinite duration on the basis that he does not have the necessary continuous service or, in the alternative, the aggregate duration of his fixed-term contracts with the Respondent was under four years and therefore s.9(2) of the 2003 Act was not triggered.

In respect to the claim per s.8(2) of the 2003 Act, the Complainant’s final fixed-term contract with the Respondent was not a successive fixed-term contract given the Complainant’s previous break in service or, in the alterative, this claim is out of time by over 12 months so as not to be within jurisdiction of the WRC.

It is the Respondent’s practice to allocate contracts to Non-Consultant Hospital Doctors (“NCHD’s”) on a fixed-term basis for periods of between six and 24 months. This is done in order to keep positions available for rotating doctors seeking to expand their training experience.

The Complainant was originally recruited by the Respondent through the UK based agency, Workplace Doctors. He was employed by the Respondent as an Emergency Department Registrar (a NCHD position) at the Midland Regional Hospital, Portlaoise (“the MRH”) on the following fixed-term contracts:

1. 13th January 2020 to 10th January 2021
2. 11th January 2021 to 9th January 2022.
3. 10th January 2022 to 8th January 2023. [Break in service from 9th January 2023 to 27th February 2023].
4. 27th February 2023 to 7th January 2024.

In addition to the above, the Complainant worked at MRH as an agency worker engaged through Global Medics employment agency (“the employment agency”) from 9th January 2023 to 26th February 2023 (i.e. during the period between the fixed-term contracts at paragraph 6 (c) and (d) above.

Prior to the commencement of his fourth fixed-term contract with the Respondent on 27th February 2023, the Complainant successfully completed a new application process including attending at interview on 21st February 2023.

By email of 29th November 2024, the Complainant was informed that his contract due to expire on 7th January 2024 would not be renewed.  This afforded the Complainant more than sufficient time to find a position in another hospital which as an experienced and very competent Emergency Department Registrar would have been very straightforward as such doctors are in high demand.

The Complainant is well respected by the Respondent and there were never any issues with his employment as an Emergency Department Registrar at the MRH. It is noted that the Complainant has the experience and specialist training qualifications required to apply to be included on the Irish Medical Council’s Specialist Register which is the next step in the process of seeking a consultancy position.

Agency workers are excluded from the scope of the 2003 Act. This is relevant in respect of the Complainant’s period of employment by the employment agency from 9th January 2023 to 26th February 2023 during which period, as an agency worker, he was excluded from the scope of the 2003 Act.

It is submitted on behalf of the Respondent that the Complainant cannot demonstrate an entitlement to a contract of indefinite duration in this case.

Section 9 of the 2003 Act provides as follows in respect to the use of successive fixed-term contracts:

9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed-term where there are objective grounds justifying such a renewal.

(5) The First Schedule to the Minimum Notice and Terms of Employment Acts 1973 to 2001 shall apply for the purpose of ascertaining the period of service of an employee and whether that service has been continuous.”

A “year” is defined at s.2 as “any period of 52 weeks.” Therefore, to accrue an entitlement to a contract of indefinite duration pursuant to s.9(2), an employee must have been employed on continuous fixed-term contracts for an aggregate duration of four years or 208 weeks.

In Department of Arts, Heritage and the Gaeltacht v. Rebecca Dobson FTD1515 [2016] ELR 72 (“Dobson”), the Labour Court addressed the question of whether periods of lay off between a series of fixed-term contracts could be included for the purpose of calculating the aggregate duration of those contracts which question it decided in the negative.

The following arguments are made on behalf of the Respondent in opposing the Complainant’s application for a contract of indefinite duration.

Firstly, his period of employment period from 13th January 2020 until 7th January 2024 was not in fact continuous – as required under s.9(2) – as there was a break in service from 9th January 2023 to 26th February 2023 during which period the Complainant was engaged through the employment agency (“the agency employment”). It is submitted that this period of agency employment during which the Complainant was employed by another party, is distinguishable from the periods of lay-off referred to in Dobson as the definition of contract of employment in the 2003 Act expressly excludes agency workers. During the period of agency employment, the Complainant was not on lay off, rather he was engaged under a contract of employment with the employment agency, as opposed to the Respondent, and this period must therefore be construed as amounting to a break in his service with the Respondent. Given this break in service, at the time of his termination on 7th January 2024, the Complainant had less than one years’ continuous service with the Respondent under only one fixed-term contract being the one from 27th February 2023 to 7th January 2024 and accordingly he has no entitlement to make any claim per s.9(2) of the 2003 Act.

Secondly, and without prejudice to the foregoing, if the period of agency employment were considered a continuation of the Complainant’s service with the Respondent (which is denied), notwithstanding that the period of agency employment does not give rise to a break in service, based on Dobson it could not be counted in the calculation of the Complainant’s aggregate period of employment by the Respondent. Therefore, from 13th January 2020 until 7th January 2024 (excluding the period of agency employment from 9th January 2023 to 26th February 2023) the aggregate period of employment by the Respondent is only 200 weeks. This is eight weeks less than the four years (being 208 weeks) required in order to trigger s.9(2) of the 2003 Act. As per Dobson therefore, the Complainant is not entitled to a contract of indefinite duration.

Thirdly, and further without prejudice to the foregoing, if the period of agency employment were considered as both continuous employment and as being included in the calculation of the aggregate duration of employment by the Respondent (both of which are denied) the aggregate duration of the Complainant’s employment in the period from 13th January 2020 to 7th January 2024 (including the period of agency employment) is still five days less than the four years of service required to become entitled to a contract of indefinite duration.

Therefore, the Complainant cannot satisfy the criteria at s.9(2) to warrant being awarded a contract of indefinite duration. In these circumstances, it is submitted the Complainant’s claim seeking a contract of indefinite duration pursuant to s.9(2) of the 2003 Act is misconceived and/or should not succeed.

Complainant’s Claim that No Written Statement was Provided

Section 8 of the 2003 Act provides for the following:

(1) Where an employee is employed on a fixed-term contract the fixed-term employee shall be informed in writing as soon as practicable by the employer of the objective condition determining the contract whether it is –

(a) arriving at a specific date,

(b) completing a specific task, or

(c) the occurrence of a specific event.

(2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

As per s.8(2), the duty on employer to provide objective grounds justifying the renewal of the fixed-term contract only applies when the employer “proposes to renew a fixed-term contract”. It is clear from the terms of s.8(1) and (2) that there is no such obligation on an employer when initially employing an employee on a fixed-term contract.

It is submitted on behalf of the Respondent that given the break in service that occurred during the Complainant’s period of agency employment, the Complainant does not come within s.8(2) as the contract he received for the period from 27th February 2023 to 7th January 2024 was not a “renewal” but an initial fixed-term contract referred to at s.8(1) of the 2003 Act (in respect of which the termination date was provided to the Complainant in the contract in compliance with s.8(1)). This fixed-term contract was not in fact subject to renewal and therefore s.8(2) is not invoked.

Without prejudice to the foregoing, if the period of agency employment were considered a continuation of the Complainant’s service with the Respondent so as to invoke s.8(2) on the final contract renewal (which is denied), it is submitted that the Complainant is out of time to bring a claim in respect of the obligation at s.8(2) in circumstances where that provision provides the obligation in question is to be complied with “at the latest by the date of the renewal”.

The date of renewal of the Complainant’s final contract of employment with the Respondent was 27th February 2023. Section 8(2) provides that the obligation to inform the Complainant in writing of the objective grounds justifying the renewal of the fixed-term contract must be complied with “at the latest” at the date of renewal. Any claim made by the Complainant concerning a breach of s.8(2) therefore had to be submitted to the WRC by 26th August 2024 in order to comply with s.41(6) of the 2015 Act or, at the latest, 26th February 2024 if an extension of time were successfully applied for per s.41(8). In circumstances where the Complainant’s claim was not lodged until 28th June 2024, i.e. over 12 months from the contravention to which it relates, the Complainant is completely stature barred from pursuing this claim and the WRC has no jurisdiction to consider it.

Based on the foregoing, it is submitted that the Complainant should not succeed in his claims herein.

Findings and Conclusions:

CA-00064382-001

I note the Complainant had 3 fixed term contracts and a period of Agency work as follows:

13th January 2020 to 10th January 2021 - fixed term

11th January 2021 to 9th January 2022 - fixed term

10th January 2022 to 8th January 2023 - fixed term

9th January 2023 to 27th February 2023 – agency work

27th February 2023 to 7th January 2024 – fixed term

The Complainant expressed a serious grievance during the hearing about the fact that his duties remained the same and the possible cynical manipulation of circumstances whereby he could not avail of an entitlement to a contract of indefinite duration.  I note that he stated at the hearing that he was not a lawyer.  Many lay litigants state this at hearings.  However, I am obliged to address the complaint as it relates to the relevant aspects of the legislation upon which I must base my decision.

The Complainant seeks a contract of indefinite duration based on the number and duration of his contracts.  The Respondent states he is not so entitled a number of reasons including that his employment from 13th January 2020 until 7th January 2024 was not continuous.  Should it be deemed to be continuous, the aggregate period of employment by the Respondent is less than the 208 weeks required to trigger Section 9(2) of the Act. 

The applicable law

9.—(1) Subject to subsection (4), where on or after the passing of this Act a fixed-term employee completes or has completed his or her third year of continuous employment with his or her employer or associated employer, his or her fixed-term contract may be renewed by that employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

(2) Subject to subsection (4), where after the passing of this Act a fixed-term employee is employed by his or her employer or associated employer on two or more continuous fixed-term contracts and the date of the first such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed 4 years.

(3) Where any term of a fixed-term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.

(4) Subsections (1) to (3) shall not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.

In January 2023, the Complainant was completing his third year of continuous employment and in that case, the Respondent was only entitled to renew the contract for only one occasion as provided for in Section 9(1).  The Respondent did not at that time renew the Complainant’s contract.  At that point the Complainant had been employed on ‘two or more continuous fixed-term contracts’ and in accordance with the provisions of Section 9 (2), the aggregate duration must not have exceeded 4 years.   I note the aggregate duration did not exceed 4 years.

I note the reliance of the Complainant on the provision of Section 13 (1)(d) of the Act as it refers to dismissal with the purpose of the avoidance of a fixed-term contract being deemed to be a contract of indefinite duration.  However, at the point where the Complainant’s contract was terminated on 9 January 2023, he had not completed his third year of continuous employment as provided for in Section 9 (1). The Complainant therefore cannot avail of Section 9 (1).

Given the fact that the Respondent did not renew the Complainant’s fixed-term contract in January 2023, and the aggregate duration of such contracts as he had been given did not exceed 4 years, I find he cannot avail of the provisions of Section 9 (3) of the Act.

I find the complaint to be not well founded.

CA-00064382-002

The complaint here is that, in contravention of Section 8 (2) of the Act, the Respondent failed to inform the Complainant in writing of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

This complaint was received on 28 June 2024.  The most recent fixed-term contract was issued to the Complainant on 27 February 2023.

Section 41 (6) of the Workplace Relations Act 2015 provides:

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

Section 41 (8) provides:

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

Section 8(2) of the 2003 Act provides:

2) Where an employer proposes to renew a fixed-term contract, the fixed-term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed-term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.

In this case, the Complainant submitted his complaint some 16 months following the issue of the most recent fixed-term contract.  The complaint is out of time and is not well founded.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 14 of the Protection of Employees (Fixed-Term Work) Act 2003 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions of that Act.

CA-00064382-001

Based on the findings and reasons outlined I have decided that the complaint is not well founded.

CA-00064382-002

Based on the findings and reasons outlined, I have decided that the complaint is out of time and is not well founded.

Dated: 13th October 2025

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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