Complainant

Respondent

Parties

Asaf  Shnel

Teagasc

Representatives

Peter Glynn, SIPTU

 Ms Tanya Egan, ER Manager

Act

Complaint Reference No.

Date of Receipt

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

CA-00070532-001

03/04/2025

It is the Complainant’s case that the Respondent breached s 9 of the Protection of Employees (Fixed-Term Work) Act, 2003 (“the Act”) in failing to provide him with a contract of indefinite duration.  It is the Respondent’s position that there was no renewal of the first and second fixed-term contracts within the meaning of the Act.  Without prejudice to that position, the Respondent contends that continuity of service was broken between each of the fixed-term contracts.  Without prejudice to both of the foregoing submissions, the Respondent contends that there was objective justification for the renewal of each fixed-term contract.

The Complainant was employed on a series of continuous fixed-term contracts (“FTCs”) from 18th November 2019.  The work carried out by the Complainant on each contract was similar/over-lapped and is an ongoing need of the Respondent.  The work being performed by the Complainant under his third fixed-term contract (“FTC 3”) is a direct continuation of the previous project he was working on under his second fixed-term contract (“FTC 2”).  Line management into whom the Complainant reports has not changed in the past five years.  While the Act affords termination on the conclusion of a project, the Respondent is in contradiction of the spirit of the Act.  The Respondent is in breach of s 9 of the Act as the aggregate duration of the contracts exceed four years and therefore s 9(3) of the Act applies in this case.

Funding was the reason given as objective justification for the issuing of FTCs even though the Labour Court has identified that funding alone is not objective justification.  Further, the objective justification given is vague and general and does not meet the requirements of s 8 of the Act.

Restrictions placed on the Respondent which precludes them from issuing a contract of indefinite duration does not absolve the Respondent from their legal obligations and does not negate an individual’s legal right or entitlement.

The Complainant outlined to the hearing that he was instructed when to resign so that there would be no break in his service and there was no break in service between his first fixed-term contract (“FTC 1) and FTC 2, or FTC 2 and FTC 3.  His line manager got approval to extend FTC 2 so there would be no break in service between that contract and FTC 3.

The hearing was directed to National Gallery of Ireland v. Michael Coyne (FTD1232).

The Complainant commenced employment on a fixed-term contract (“FTC 1”) as a Technician Grade 1 on 18th November 2019 based in Cork.  He was employed to work on the VistaMilk project jointly funded by Science Foundation Ireland (SFI) and the Department of Agriculture, Food and the Marine (DAFM).  This project was funded for 36 months.

In April 2022 the Respondent advertised for a Technologist Grade 1 to work on the Teagasc/DAFM funded ReWet project for 23 months (“FTC 2”).  The Complainant applied, was interviewed for, and offered this role.  To take up this role effective from 3rd October 2022, he was required to resign from FTC 1.  Ms Egan outlined that FTC 2 expired on 3rd September 2024 (this evidence was later corrected by Ms Egan in her post hearing supplementary written submission.  Ms Egan clarified that FTC 2 was extended to 13th October 2024, however, the Complainant resigned from FTC 2 on 30th September 2024).

In September 2024 the Respondent advertised for a fixed-term contract role of Technician Grade 1 to work on Teagasc/DAFM funded D-TECT project for a period of 23 months.  The Complainant applied, was interviewed for, and offered this role.  The Complainant signed a third fixed-term contract (“FTC 3”) on 11th September 2024.  FTC 3 provided for a start date of 30th September 2024.  The Complainant commenced working under FTC 3 on 30th September 2024 and is currently in this role.

The Complainant was employed at two different grade levels – Technician Grade 1 for FTC 1 and FTC 3 and Technologist Grade 1 for FTC 2.  Level 6 is the entry requirement for a technician, whereas a level 8 is required for a technologist role.  Different pay scales apply which reflects the significant difference in the nature and level of duties and responsibilities of the roles. 

Section 9(4) and s 8(2) of the Act refer to a “renewal” of a fixed-term contract (“FTC”).  For s 9(4) of the Act to apply, there must be a renewal of the FTC.  There was no renewal of FTC 1 or FTC 2.  FTC 1 had not come to an end when the Complainant commenced working under FTC 2.  FTC 2 involved work under a different project than FTC 1 and was for a different role – technologist rather than a technician as had been the case under FTC 1.  FTC 3 was for a different project than FTC 2 and was at technician level.  Therefore FTC 2 was not a renewal of FTC 1 and FTC 3 was not a renewal of FTC 2.  Each position required an interview as they were for separate projects and the contracts issued were for separate and distinct roles and at different grades.  The Respondent opened to the hearing Lecturer/Assistant Professor v. A University (ADJ-00032350) in support of its argument that s 9(2) of the Act does not apply to the Complainant and the Complainant is not entitled to a contract of indefinite duration. 

Further, and without prejudice to the foregoing, the Complainant has not been employed on continuous FTCs.  Section 9(5) of the Act refers to the First Schedule to the Minimum Notice and Terms of Employment Acts, 1973 – 2001 for the purposes of ascertaining whether a period of service is continuous.  The Complainant resigned from FTC 1.  FTC 2 came to an end on 3rd September 2024 (this date was later corrected by the Respondent – FTC 2 was extended until 13th October 2024), and FTC 3 did not commence until 30th September 2024 (Ms Egan clarified in the post hearing written supplementary submission that the Complainant resigned from his employment under FTC 2 to take up FTC 3 on 30th September 2024).  There was no guarantee that the Complainant would be offered FTC 2 or FTC 3.  These positions were openly advertised, and he had to go through the same recruitment process as any other candidate.  If he was not successful in the application process, then he would not have been re-employed and any gap in service could not be regarded as lay-off.  Therefore, continuity of service was broken between each of the FTCs and s 9(2) does not apply.

Further, and without prejudice to the foregoing, there was objective justification to employ the Complainant under FTC 2 and FTC 3.  FTC 2 and FTC 3 state that a contract of indefinite duration could not be offered to the Complainant in each case as the employment was linked to the project which was funding dependent.  There is no guarantee that funding will be granted for future projects.  As a public sector body, the Respondent is bound by public sector agreements and has no mechanism for effecting redundancies.  There were objective grounds justifying the use of FTC 2 and FTC 3 and therefore there is no entitlement to a contract of indefinite duration.  The Respondent always has several research projects running concurrently and there is an on-going need for temporary research staff, however, depending on the project, the type of skills required varies from project to project.

The Respondent payroll system does not permit an employee to be ended and re-commenced on the system in the same payroll period.  If there was a break in the Complainant’s service on the payroll the Complainant would have had to wait until the end of the next payroll period which would be several weeks later to get his full pay for the month.  The Respondent tries to avoid this where a person is moving to a new contract of employment as this would cause unnecessary financial hardship for the person.    

In response to a question from the Adjudication Officer Ms Egan outlined that research was a fundamental part of the work performed by the Respondent.  Research is conducted by permanent staff and is supplemented by temporary employees (currently 250 temporary employees) for particular projects.    70% of staff costs are funded by the Department.  The Respondent will have a few hundred research projects running simultaneously.  Ms Egan confirmed there is an ongoing need for technical staff, but outlined that the skills required varies from project to project and individuals may not be transferrable between projects.  The use of fixed-term contracts is objectively justified for this reason and due to the temporary duration and funding of each project.

Relevant Law

The purpose of the Protection of Employees (Fixed-Term Work) Act, 2003 (“the Act”) is to provide for the implementation of Directive 1999/70 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE, and CEEP.  The Directive pursues two objectives, one of which is to establish a framework to prevent abuse arising from the use of successive fixed-term employment contracts or relationships.  It was left to Member States to determine under what conditions fixed-term employment contracts or relationships shall be regarded as successive.  While the expression ‘successive’ is not defined in the Framework Agreement, s 9 (5) of the Act provides that the first schedule of the Minimum Notice and Terms of Employment Act, 1973 should apply for the purpose of determining if employment is continuous.

Computation of Continuous Service

The First Schedule to the Minimum Notice and Terms of Employment Acts, 1973 to 2001 provides at para 1 in relation to computation of continuous service:

“The service of an employee in his employment shall be deemed to be continuous unless that service is terminated by . . . (b) the employee voluntarily leaving his employment . . . .”

“Renewal” of Fixed-term Contracts

Section 2 of the Act provides that ““renewal” includes extension and cognate words shall be read accordingly”. 

In Waterford City Council v. Andrew Kennedy (FTD 1235) the Court noted there was “. . . nothing magical in the word ‘renew’ and that “[i]t is a plain and ordinary English word which can properly be used to describe the continuation of something that would otherwise come to an end. The Oxford Concise Dictionary describes the terms as connoting, inter alia, “to extend the period of validity of (a licence, subscription, or contract)””.  

Successive Fixed-term Contracts

Section 9 of Act provides in relation to 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.

Objective Justification

The concept of objective justification within the meaning of clause 5(1)(a) of the Framework Agreement,has been considered in several decisions of the Court of Justice of the European Union (CJEU).  In C-212/04, Adeneler and Ors. v. Ellinikos Organismos Galaktos ECR I – 6091, the CJEU held that it “. . . must be understood as referring to precise and concrete circumstances characterising a given activity, which are therefore capable in that particular context of justifying the use of successive fixed-term employment contracts.  Those circumstances may result, in particular, from the specific nature of the tasks for the performance of which such contracts have been concluded and from the inherent characteristics of those tasks or, as the case may be, from pursuit of a legitimate social-policy objective of a Member State” [69-70].

In C-307/05, Del Cerro Alonso v. Osakidetza-Servicio Vasco de Salud [2007] ECR I – 7140, the European Court of Justice  held that what constitutes objective grounds is the same whether it arises in relation to equal treatment or the renewal of successive fixed-term contracts, and that the “ . . . concept requires the unequal treatment at issue to be justified by the existence of precise and concrete factors, characterising the employment condition to which it relates, in the specific context in which it occurs and on the basis of objective and transparent criteria in order to ensure that that unequal treatment in fact responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose” [58].

In Dr Mary Benson and National University of Ireland Maynooth (FTD1412), the Labour Court considered if uncertainty of funding for a post could, in and of itself, constitute objective justification within the meaning of the Act.  The Court opined:

“The source from which funding is derived for a post does not, in and of itself, relate to the specific nature of the post or to the inherent characteristics of the tasks to be performed. Consequently it cannot constitute objective reasons justifying the use of a fixed term contract as that concept was explained in Adeneler.  Moreover, if uncertainty of funding were to be accepted as an objective ground justifying the use of fixed term contract it could apply to almost any post. That is particularly so in organisations, such as the Respondent, which are dependent on the allocation of funding from public sources and in respect of which there can be no certainty from one year to the next.”

In C-380/07, Kiriaki Angelidaki and Ors. v. Organismos Nomarkhiaki Aftodiikisi Rethimnis andDimos Geropotamou [2009] ECR 1-3071, the CJEU distinguished between work undertaken for the purpose of meeting the fixed and permanent needs of the employer which would normally be done under permanent contracts of employment, and work for the purpose of meeting some temporary or transient need for which temporary contracts may be more suitable. 

In National Gallery of Ireland v. Michael Coyne (FTD1232) the complainant had been issued with four fixed-term contracts.  The Court considered the renewal of each of the fixed-term contracts in turn commencing with the first contract and was satisfied that the work performed by the Complainant met “a fixed and permanent need” of the respondent at that time.  Accordingly, the Court did not accept that there were objective grounds justifying the decision of the respondent to renew the complainant’s first FTC for a period in excess of one year and determined that the contract was a contract of indefinite duration by operation of the law. 

The Court also held that an employer cannot pre-emptively have recourse to fixed-term contracts to safeguard against a possible future risk of having surplus permanent employees.  The Court noted a:

“. . .  concomitant and perhaps more important objective of the Respondent was its desire to avoid a situation in which it might find itself with more permanent staff than it required . . . Rather than deal with this situation when it arose the Gallery decided to avoid such an eventuality by employing staff, for whom it had a fixed and permanent need, on successive fixed term contracts of employment . . . A desire to avoid a contingent liability to the Complainant that might arise at some point in the future could not of itself be a legitimate objective of an employer for the purposes of the Act nor could it justify the use of successive fixed term contracts of employment.  Avoiding a legal liability to a worker is not a legitimate objective of an employer”. 

The Court did not accept the view of the respondent that redundancy was not a realistic option in the public service and added that the respondent had “. . . a lawful option to make staff redundant where there is no work for them.  Any decision it takes not to avail of this lawful option available does not give rise to a legitimate objective on which the Gallery can rely in deciding to renew a fixed term contract of employment.”

In Teagasc v. McNamara (FTD138) the complainant had been employed by the Respondent as a technician on two “successive” fixed-term contracts.  The complainant was then re-employed on a third fixed term contract, at a different location, five months after the second contract expired.  The duration of each contract was incapable of precise ascertainment, and the contracts were expressed to relate to specific research projects for which funding was available.  The complainant submitted that he had completed four years successive fixed-term employment with the Respondent and therefore was entitled to a contract of indefinite duration and argued that the Respondent could not rely on funding as objective justification.  The Respondent contended that the complainant’s employment was related to specific projects which were externally funded and that the use of fixed-term contracts was objectively justified.   

The Court, relying on the findings of the CJEU in Adeneler and Angelidaki, held that the net question it was charged with determining was “ . . . whether the work for which the claimant was employed should properly be classified as coming within the fixed or permanent needs of the Respondent or whether it was part of a purely temporary or transient need”.  The Court was satisfied that the carrying out of research by way of specific projects was a core activity of the Respondent and was part of its fixed and permanent needs. 

The Court held that the question of whether the requirement for external funding can give rise to objective justification for the continued use of fixed-term contracts “presents difficulties of principle”, noting that there were “ . . . many forms of economic activity in which the viability of employment is dependent on funding generated by individual contracts or projects” and that if the Court was to hold “ . . . that the use of successive fixed-term contracts could be used indefinitely in such employments so as to protect the employer against the possibility of an insufficient supply of work at some point in the future the effectiveness of the Directive and the Act would be seriously subverted. If, due to economic circumstances or fall-off in demand, there is no longer sufficient work in order to maintain a worker in employment the employer’s remedy lies in making surplus staff redundant. It follows that while the requirement to balance staff levels with available funding is a legitimate objective the continuing use of fixed-term contracts is not always a proportionate and necessary means of achieving that objective.”

It is also clear from the decision of the Labour Court in St Catherine’s College for Home Economics v. Maloney [2009] 20 E.L.R. 143 and in Russell v. Mount Temple Comprehensive School [2009] IEHC 533, that the objective grounds relied upon must be present and operating on the mind of the relevant decision maker at the time that the impugned contract is concluded.

The Effects of Section 9(3)

In Health Service Executive v. Khan [2006] E.L.R. 313 the Labour Court held that the contract of indefinite duration to which a fixed term employee may become entitled by operation of s 9(3) is “identical in its terms . . . as the fixed term contract which it was derived”.   

In Minister for Finance v. McArdle [2007] 18 E.L.R. 165 Laffoy J in the High Court in considering the effect of s 9(3) quoted with approval the following passage from Labour Court determination in McArdle and the State Laboratory (FTD063):

“That section applies to a situation where an employee is given a renewed fixed-term contract in contravention of subss. (1) or (2). In such a case subsection (3) would operate so as to render void, ab initio, the term of the contract which purports to provide for its expiry by effluxion of time, or the occurrence of an event. Hence, by operation of law the offending term would be severed from the contract thus altering its character from one of definite duration, or fixed term, to one of indefinite duration. However, the remaining terms and conditions of the contract would be unaffected including terms as to pensionability and termination, which, as already observed, would have had to be aligned with those of a comparable permanent employee in accordance with section.”

The Labour Court confirmed in University College Dublin v. O’Doherty (FTD159), citing the judgment of Hanna J the High Court in Russell, that s 9(4) and by extension s 9(3) takes effect at the commencement of the impugned contract.  The Court further noted:

“This can have the practical effect of transmuting a fixed-term contract to one of indefinite duration before the expiry of the duration referred to in either subs (1) or (2) of Section 9 of the Act. Where, as in the instant case, a fixed-term contract is entered into before the expiry of the four-year period referred to in Section 9(2), and its duration extends beyond that period, Section 9(3) operates so as to sever the term in that contract providing for its expiry by effluxion of time. The contract is thus converted to one of indefinite duration from the date of its commencement. This construction of Section 9(3) of the Act is supported by the plain and ordinary meaning of the language used in the subsection, which provides that the ‘contract concerned’ shall be deemed to be a contract of indefinite duration”.

It is thus clear from the case law that the contract is transmuted to one of indefinite duration from the date of its commencement, and the only term that is rendered void and severed is that which purports to provide for its expiry on a particular date or on the occurrence of an event.

Time Limits

In Department of Employment Affairs and Social Protection v. Paul Keirnan (FTD194) the Labour Court noted it “. . . cannot find that a person’s entitlement under the Act at Section 9(2) and 9(3) are nullified if a complaint is not made within six months of the contended for coming into being of a contract of indefinite duration in accordance with the provisions of those sections of the acts”.  The Court further noted that s 9 of the Act sets out that a fixed term contract becomes transmuted to one of indefinite duration in certain circumstances and the operation of the law in that respect is not dependent on a complainant making a complaint within a specified time.

Redress

Section 14 of the Act provides:

“A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015 in relation to a complaint of a contravention of this Act shall do one or more of the following, namely— (a) declare whether the complaint was or was not well founded,

(b) require the employer to comply with the relevant provision,

(c) require the employer to reinstate or reengage the employee (including on a contract of indefinite duration), or

(d) require the employer to pay to the employee compensation of such amount (if any) as the adjudication officer considers just and equitable having regard to all of the circumstances, but not exceeding 2 years’ remuneration in respect of the employee’s employment.”

Findings

It was common case the Complainant was hired on two or more fixed-term contracts (“FTCs”) the aggregate duration of which exceeded four years.  It is the Complainant’s position that he was employed on a series of continuous FTCs, with no break in employment, and that therefore he is entitled to a contract of indefinite duration by operation of s 9(3) of the Act.  It was further contended by the Complainant that the objective justification for the use of successive fixed-term contracts is general and vague and funding alone cannot be objective justification, and therefore the Respondent could not rely on s 9(4).  The Complainant sought to rely on the findings in National Gallery of Ireland v. Michael Coyne (FTD1232). 

It is the Respondent’s position that there was no renewal of any of the FTCs and that each of the three fixed-term contracts issued to the Complainant involved work on separate and distinct projects at different grades.  The Respondent sought to rely on the findings of the Adjudication Officer in Lecturer/Assistant Professor v. A University (ADJ-00032350) in support of its argument that s 9(2) of the Act does not apply and the Complainant is not entitled to a contract of indefinite duration.  The Respondent also submitted, without prejudice to the foregoing, that the Complainant was required to resign from each contract to take up the next fixed-term contract (“FTC”) thereby breaking continuity of employment and accordingly the Complainant was not issued with “successive” contracts.  Without prejudice to the foregoing, the Respondent submits it had objective justification for issuing FTCs to the Complainant as each project is funding dependent, and as a public sector body, it is bound by public sector agreements and has no mechanism for effecting redundancies.   

Fixed Term Contract 1 (“FTC 1”)

It was common case that the Complainant was employed as a Technician Grade 1 on a fixed-term contract (“FTC 1”) from 18th November 2019.  This was a specified purpose contract for the purpose of carrying out specific technician activities associated with the VistaMilk project funded by SFI and DAFM and was based in Cork.  Funding was secured for 36 months.  The contract provided: [1.3]“You should note that it is not possible to offer you a contract for a fixed period since the exact duration and the amount of funding of the said Teagasc SFI-Science Foundation Ireland: Project Title: VistaMilk is incapable of precise ascertainment.  [1.4] As your employment is linked to a project which is funding dependent and will conclude for any of the reasons as outlined above, it is not possible to offer you a contract of indefinite duration.”

Prior to the natural expiry of FTC 1 (which was expected to be November 2022), the Complainant applied for and was offered a temporary Technologist role under a fixed-term contract (“FTC 2”).  It was common case that the Complainant was required by the Respondent to resign from FTC 1 before taking up employment under FTC 2, which he did effective from 2nd October 2022.  The Complainant gave his resignation via an online resignation form, the link to which was provided by the Respondent.  The reason the Complainant gave for his resignation was: “Resignation as I am commencing a new contract with Teagasc”.    

Fixed Term Contract 2 (“FTC 2”)

FTC 2 was a specified purpose contract for a Technologist Grade 1 and based in Cork.  The Complainant signed FTC 2 on 20th July 2022 and agreed a start date of 3rd October 2022 within said contract.  The purpose of FTC 2 was to carry out specific research activities associated with the Teagasc/DAFM ReWet project.  The expected duration of the project was 23 months.  The contract provided: [1.3] “You should note that it is not possible to offer you a contract for a fixed period since the exact duration and the amount of funding of the said Teagasc/DAFM/Facilitating watertable management on carbon rich soils (ReWet), DAFM/11/2021/PR.EFP.   [1.4] As your employment is linked to a project which is funding dependent and will conclude for any of the reasons as outlined above, it is not possible to offer you a contract of indefinite duration.

FTC 2 was expected to end on 3rd September 2024 and on 9th August 2024 the Complainant received an email from HR to advise that FTC 2 would end on 3rd September 2024.  It is common case that FTC 2 did not end on 3rd September 2024 but was extended by the Respondent to an “indicative end date of 13th October 2024” (email to the Complainant dated 5th September 2024).  According to the Complainant, this extension was sought on behalf of the Complainant by his line manager so as to prevent a break in the Complainant’s service as the Complainant had secured a third FTC which was due to commence in a few weeks.  According to the supplementary submission provided by Ms Egan, the ReWet project was continued until 13th October 2024 due to additional funding which was secured by the Respondent to complete activities on the project (no supporting documentation in relation to the extension of funding was provided with the submission). 

Fixed Term Contract 3 (“FTC 3”)

In early September 2024 the Respondent advertised for a temporary Technician Grade 1 based in Wexford.  The Complainant applied for and was offered this role.  A specified purpose contract of employment was signed by the Complainant on 11th September 2024 (“FTC 3”).  The purpose of this contract was to carry out specific research activities for research project D-TECT and was funded by Teagasc/DAFM for an indicative timeframe of 21 months.  This contract provides: [1.3] “You should note that it is not possible to offer you a contract for a fixed period since the exact duration and the amount of funding of the said Teagasc/Department of Agriculture and Marine/GEO spatial drainage status detention mapping of organic rich soils for NIR and policy support needs (D-TECT)/PN:2239 is incapable of precise ascertainment.  [1.4] As your employment is linked to a project which is funding dependent and will conclude for any of the reasons as outlined above, it is not possible to offer you a contract of indefinite duration.”  

It was common case the Complainant was required to resign from FTC 2, and that he did so on 23rd September 2024.  He gave a resignation effective date of 30th September 2024 (Appendix 5 of the Complainant’s supplementary submission).  The Complainant gave his resignation via an online resignation form, the link to which was provided by the Respondent.  The reason the Complainant gave for his resignation was: “Resignation as I am commencing a new contract with Teagasc”.  FTC 3 commenced on 30th September 2024.

Was the Complainant employed on two or more continuous fixed-term contracts?

I find the Complainant was employed on two or more (three) continuous fixed-term contracts for the reasons set out below.

The Complainant submits that the aggregate duration of his contracts to date exceeds the four-year threshold provided for within s 9(2) of the Act and therefore s 9(3) of the Act applies.  The Respondent contends that the Complainant has not been employed on continuous fixed term contracts as the Complainant resigned from his employment under FTC 1 and resigned from his employment under FTC 2 and therefore s 9(2) of the Acts do not apply.

I note that unlike s 9(1) of the Act, s 9(2) does not refer to the renewal of a fixed-term contract.  Instead, s 9(2) requires a fixed-term employee to have been employed on two or more “continuous” FTCs.  If the fixed-term employee has been employed on two or more continuous FTCs, the aggregate duration of such contracts must not exceed four years.  Section 9(3) provides, subject to s 9(4), that any term in a FTC purporting to contravene s 9(2) of the Act will have no effect and that contract will be deemed to be a contract of indefinite duration. 

Section 9(5) provides that the First Schedule to the Minimum Notice and Terms of Employment Acts, 1973 to 2001 applies for the purposes of ascertaining the period of service of an employee and whether that service has been continuous.  Para 1(b) of the First Schedule to the Minimum Notice and Terms of Employment Acts, 1973 to 2001 provide that the service of an employee is continuous unless that service is terminated by an employee leaving his employment.  While para 6 of the First Schedule provides that continuity of service is not broken by a dismissal by the employer followed by the immediate re-employment of the employee, there is no similar provision with respect to a resignation followed by the immediate re-employment of the employee.  Para 1(b) requires only that the resignation be voluntary. 

I am not satisfied the Complainant voluntarily resigned his employment on 2nd October 2022, before FTC 1 had ended, to take up employment under FTC 2.  It is common case a ‘resignation link’ was included in the formal offer of FTC 2.  Ms Egan’s sworn testimony is that the Complainant was “requiredto resign”, the reason she gave being that “an employee can’t be employed under two contracts and also, so they are not ended on payroll”.  I note in an email to the Complainant on 28th September 2022, Recruitment Services advised the Complainant as to when he should resign stating: “I would recommended [sic] resigning from Sunday the 2nd of September [sic] ahead of your starting date of Monday the 3rd of October to ensure there is no break in service”.  The Complainant continued to work for the Respondent albeit in a different role, on a different project, funded by a different source.  I find the Complainant’s entering of a resignation date on the Respondent’s system effective 2nd October 2022, as directed by the Respondent, was not a voluntary resignation within the meaning of para 1(b) of the First Schedule and therefore did not sever the Complainant’s continuity of employment with the Respondent. 

The Complainant signed FTC 2 on 20th July 2022 and agreed a start date of 3rd October 2022 within said contract.  It is common case the Complainant commenced employment under FTC 2 on 3rd October 2022.  Therefore, for the purposes of s 9(2), the Complainant satisfies the requirement to have been employed on two (or more) “continuous” FTCs.  Section 9(2) provides that the aggregate duration of these contracts must not exceed four years.  I am satisfied that the Complainant had completed 4 years continuous service by 17th November 2023.  Accordingly, the relevant contract for the purpose of this complaint is FTC 2.  It is common case that the Complainant worked under FTC 1 from 18th November 2019 until 2nd October 2022, and that he worked under FTC 2 from 3rd October 2022 until 30th September 2024 – a total period of 4 years, 10 months and 13 days.  I find this period of employment was continuous within the meaning of First Schedule to the Minimum Notice and Terms of Employment Acts, 1973 - 2001 and that it exceeds the four-year threshold permitted under s 9(2).  Consequently, the Complainant’s second fixed term contract (FTC 2) would have transmuted to one of indefinite duration on 3rd October 2022 by operation of the law, unless saved by s 9(4) of the Act. 

Can the Respondent rely on section 9(4) of the Act?

Section 9(2) of the Act is subject to s 9(4) of the Act.  Section 9(4) provides inter alia that 9(2) does not apply to the renewal of a contract of employment for a fixed term where there are objective grounds justifying such a renewal.  Although the Respondent contends there was no renewal of FTC 1 and no renewal of FTC 2, s 9(4) only requires that there is a “renewal of a contract of employment” and that renewal is “for a fixed term”.  I am satisfied that in 2022 and again in 2024, there was a renewal of a contract of employment with respect to the Complainant and on both occasions that renewal was for a fixed term.

The third point taken by the Respondent is that if the Complainant’s first and second fixed-term contracts were renewed there were objective grounds for so doing.  Thus, it was submitted that any renewal was saved by s 9(4) of the Act.  

The Labour Court, in applying the jurisprudence of the CJEU, noted in Department of Education & Skills v. Aishling Abbot (FTD1331) that s 9(4) permits a significant derogation and must therefore be understood and applied strictly against the party seeking to rely on it.  Further, it is for that party to prove the facts necessary to make out the defence. 

As noted by the Labour Court in several decisions, including the National Gallery of Ireland and in  Teagasc, there is considerable authority in the jurisprudence of the CJEU on how the concept of objective justification should be applied.  The Court refers to the test set out in Adeneler and Alonso, namely, that objective and transparent criteria must be identified to verify whether the renewal of such contracts actually responds to a genuine need, is appropriate for achieving the objective pursued and is necessary for that purpose.  General or vague reasons for renewal are not sufficient.

It is clear from the case law that successive fixed-term contracts cannot be used to fill a permanent, ongoing need of the employer, and an employer cannot pre-emptively have recourse to successive fixed-term contracts to safeguard against the possible future risk of having too many permanent employees.

I am not satisfied on the evidence presented to the hearing that objective justification had been made out in this case for the reasons set out below. 

The Respondent contends that the Complainant was employed to work on specific research projects which were funding dependent and run for a limited period, and that there is no guarantee that funding will be obtained for similar future projects or that employees with the skills for one project will be required for future projects.  The Respondent submits therefore that it has a legitimate objective in needing to employ individuals with the necessary skills for the project for the duration of the project and the use of fixed term contracts was appropriate and necessary in these circumstances.  It was further contended by the Respondent that as it is a publicly funded body it has a limited budget for the hiring of permanent staff and must adhere to a pay ceiling set by its parent Department.  In addition, it is bound by public sector agreements in relation to redundancies and has no mechanism for effecting redundancies.  The Respondent submits therefore that the use of FTCs for externally funded projects is necessary and appropriate for that purpose.  The Complainant submitted that he holds a level 8 qualification, and this permitted him to do the work of a technician and technologist.  He outlined that the work he performed under each of the fixed terms contracts often overlapped.  It was submitted on behalf of the Complainant that the objective justification outlined in each contract was vague and that the Labour Court has held that funding alone is not objective justification.  The hearing was directed to the findings in National Gallery of Ireland v. Michael Coyne (FTD1232) in this regard.

In each of the fixed-term contracts issued to the Complainant the objective justification set out by the Respondent at the time of the issuing of the contract was limited to the following: “As your employment is linked to a project which is funding dependent and will conclude for any of the reasons as outlined above, it is not possible to offer you a contract of indefinite duration.”  The Respondent submitted that there is no guarantee of future projects as they are funding dependent and for this reason it has an objective justification for the use of fixed term contracts.  I note the findings of the Labour Court in McNamara with respect to projects dependent on funding and that if it were to be held that the use of successive fixed-term contracts could be used indefinitely so as to protect the employer against the possibility of an insufficient supply of work at some point in the future, the effectiveness of the Directive and the Act would be seriously subverted. 

Ms Egan confirmed to the hearing that conducting research is a fundamental and ongoing part of the Respondent’s work.  This research is normally undertaken within specific projects.  Ms Egan outlined that it is critical for the Respondent to secure research projects on an on-going basis.  At the time of the hearing, Ms Egan confirmed that the Respondent had a “few hundred projects running simultaneously” for which “250 temporary employees were employed which included technicians and technologists”.  I am satisfied that although projects are time-limited, the need for research is a fixed and permanent need of the Respondent rather than a temporary or transient need.  I am satisfied that at the time of the renewal of the Complainant’s contract of employment on 3rd October 2022 for a fixed term, the work performed by the Complainant met a fixed and permanent need of the Respondent.  Accordingly, I find the renewal of the Complainant’s contract of employment on 3rd October 2022 for a fixed term was not for the purpose of achieving a legitimate objective of the employer.

At the hearing the Respondent also sought to rely on objective justification other than the objective justification referred to in the fixed-term contracts issued to the Complainant, including that the Respondent is bound by public sector agreements and department-imposed staffing restrictions and the inability to transfer employee skills from one project to another.

The Complainant commenced employment with the Respondent on 18th November 2019 to work under specific research projects, initially as a technician (FTC 1), then as technologist (FTC 2), and currently as a technician (FTC 3).  The indicative duration of his current fixed-term contract (FTC 3) is 21 months, and it is expected that the Complainant will remain in employment with the Respondent until mid-2026.  In line with the finding of the Labour Court in McNamara, I find that the possibility that the Complainant’s job may become redundant due to a decline in funded projects and, that the Respondent is bound by public sector agreements in relation to redundancies and accordingly may have no mechanism for effecting redundancies, does not constitute an objectively justified ground, within the meaning of the Act, for the continued employment of the Complainant on fixed-term contracts beyond the period permitted by s 9(2) of the Act.

It was further contended by the Respondent at the hearing that as the Respondent is a publicly funded body it has a limited budget for the hiring of permanent staff and must adhere to a pay ceiling set by its parent Department.  Essentially the Respondent contends it is precluded by a departmental decision from offering the Complainant a contract of indefinite duration.  As noted by the Labour Court on several occasions, objective grounds for not issuing a contract of indefinite duration must relate to precise and concrete circumstances characterising the activity to which the fixed-term contract relates.  Such a departmental decision is of general application and does not relate to the particular work at issue in this case.  Therefore, it is not a ground on which the use of successive fixed-term contracts could be objectively justified for the purposes of s 9(4) of the Act.

The Respondent also contends that different projects require different skills, and it is not possible to transfer them from one project to the next.  This too was not referenced in any of the three fixed term contracts issued to the Complainant as a reason not to issue him with a contract of indefinite duration. I am satisfied that this also is a generalisation which cannot be relied upon as providing objective justification within the meaning of the Act.  

For all the reasons set out above, I find the Complainant’s fixed-term contract was transmuted to one of indefinite duration by operation of the law on 3rd October 2022. 

It is clear from the case law that when a contract is transmuted to one of indefinite duration from the date of its commencement, the only term that is rendered void and severed is that which purports to provide for its expiry on a particular date or on the occurrence of an event.  It was common case that when the Complainant concluded working under FTC 2 on 30th September 2024, he was on point 2 of the technologist grade 1 pay scale.  The Complainant is currently working under FTC 3 in Wexford as a technician grade 1.  The technician grade 1 pay scale provides for lower rates of pay than the technologist grade 1 pay scale.  On commencing employment under FTC 3 the Complainant was appointed at the first point of the technician grade 1 scale.  As the Complainant was entitled to a contract of indefinite duration by operation of the law on 3rd October 2022,  I require the Respondent to place the Complainant on the appropriate point of the technologist grade 1 pay scale that the Complainant would now be on had he not been moved to the technician grade 1 pay scale on 30th September 2024, and I require the Respondent to pay to the Complainant any arrears of pay due to him arising as a consequence of this decision (i.e., the Complainant should have continued to be paid at point 2 of the technologist grade 1 pay scale after the 30th September 2024 until 2nd October 2024; point 3 of the technologist grade 1 pay scale effective from 3rd October 2024 until 2nd October 2025; and point 4 of the technologist grade 1 pay scale with effect from 3rd October 2025). 

I decide this complaint under the Protection of Employees (Fixed-Term Work) Act, 2003 is well-founded.  As the Complainant was entitled to a contract of indefinite duration by operation of the law on 3rd October 2022,  I require the Respondent to place the Complainant on the appropriate point of the technologist grade 1 pay scale that the Complainant would now be on had he not been moved to the technician grade 1 pay scale on 30th September 2024, and I require the Respondent to pay to the Complainant any arrears of pay due to him arising as a consequence of this decision (i.e., the Complainant should have continued to be paid at point 2 of the technologist grade 1 pay scale after the 30th September 2024 until 2nd October 2024; point 3 of the technologist grade 1 pay scale effective from 3rd October 2024 until 2nd October 2025; and point 4 of the technologist grade 1 pay scale with effect from 3rd October 2025). 

Fixed-term contract. Renewal. Continuous service. Objective justification.