Complainant

Respondent

Parties

Louise  Nagle

Munster Technological University

Representatives

Stephen Hanaphy BL instructed by Wallace Corporate Counsel LLP

Maggie Kelleher Byrne of O’Flynn Exhams LLP

Act

Complaint/Dispute 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-00070985-001

22/04/2025

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

CA-00070985-002

22/04/2025

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

CA-00070985-003

22/04/2025

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

CA-00070985-004

22/04/2025

The Complainant gave evidence on Affirmation.

Ms Siobhán Garvey, HR Manager with the Respondent gave evidence on affirmation.

Legal submissions and supporting documentation were relied upon by both parties during the hearing.

The Protection of Employees (Fixed-Term Work) Act, 2003 will be referred to the “2003 Act” and the Workplace Relations Commission, the “WRC” throughout.

It was the Complainant’s evidence she began her employment with the Respondent in May 2005 as a Careers Officer at Grade 7, on a permanent basis. In August 2016, she moved to a fixed‑term position as E‑Learning Project Coordinator, also at Grade 7. She subsequently returned to a permanent Grade 7 post in February 2019, titled E‑Learning and Strategic Projects Coordinator.

From March 2019 onwards, the Complainant gave evidence that she undertook a series of fixed‑term contracts at Assistant Principal Officer (“APO”) grade. The first of these was the Munster Technological University (“MTU”) Project: Student Administration and Support Project Lead role (“Fixed Term Post 1”). This contract commenced in March 2019 and was extended on at least four occasions concluding on 31 January 2023. The Complainant emphasised that the repeated renewal of this APO‑level contract is central to her claim.

Responding to the Respondent’s submission that Fixed Term Post 1 related to a temporary pre‑ and post‑merger transformation project associated with the creation of MTU, the Complainant submitted that the temporary label applied by the Respondent does not prevent a Contract of Indefinite Duration (“CID”) from arising.

The Complainant added during that period, in August 2021, she completed a PhD from the University of Limerick in research‑related fields.

In February 2023, she took up a second APO‑level fixed‑term role as N-TUTORR Project Lead (“Fixed Term Post 2”). This contract was to run until January 2025, later being extended to April 2025. In correspondence dated 18 December 2024, the Complainant was informed that upon expiry of this contract she would “revert to [her] substantive Grade 7 post.”

She submits that this stated intention by the Respondent cannot, as a matter of law, prevent a CID from arising. She further argues that the Respondent’s approach constitutes unfavourable and unfair treatment, the details of which would be developed further at hearing.

The Complainant’s evidence was that throughout her employment, and particularly during the fixed‑term contracts that form the basis of this claim, she and four other MTU Merger Project Leads operated within a structured system whereby each Project Lead was aligned with a dedicated “sponsor”. These sponsors were senior figures who oversaw, guided, and advocated for the work of each Project Lead during the MTU transformation project.

The Complainant gave evidence of comparators to illustrate what was a consistent pattern of outcomes linked to the status and career progression of the relevant sponsor:

Project Lead No. 1: This Project Lead did not hold a PhD but had a master’s degree and worked within Professional Staff functions such as IT Services and Corporate units. She commenced her project work around 2017 and subsequently applied for, and was appointed to, the role of PMSS Change Management Integration Programme Facilitator, an APO‑level position. This role commenced in 2023 and has been extended until 2027. The Complainant notes that this Project Lead’s sponsor during the MTU Merger Project subsequently secured a Vice President role in the new university.

Project Lead No. 2: This Project Lead also did not hold a PhD but had a master’s degree and worked on the MTU Merger Project from July 2017 to April 2023. She then successfully applied for the role of External Services Manager, a post that has been extended and continues at APO. Her sponsor, now also her current line manager, likewise secured a Vice President post in MTU.

Project Leads No. 3 and No. 4: The two remaining equivalents of the Complainant, who also worked as MTU Merger Project Leads, reverted to Senior Lecturer (SL) roles following the project. The Complainant notes that these roles are closely aligned in seniority to APO.

The Complainant’s evidence was that, across these comparators, a consistent pattern emerged Project Leads whose sponsors advanced into Vice President positions were retained at APO, whereas she was not. She maintains that this pattern is material to the treatment she received. She further submits that all four comparators identified above are currently remunerated at a rate approximately €27,900 gross per annum higher than her own salary.

The Complainant also gave evidence of what she described as double standards in other areas of the university. She refers specifically to instances where the Heads of Department were appointed to “Assistant Dean” roles on the SL3 salary scales, despite these roles never having been advertised, and Director posts were extended to staff members without advertisement, with the individuals maintained on SL3 terms and conditions.

It was her submission that these examples demonstrated the Respondent has, in multiple contexts, exercised discretion to retain individuals at higher grades or to extend senior roles without open competition. She argued that this further supports her position that the decision not to retain her at APO reflects unfair and inconsistent treatment, rather than a genuine requirement arising from the nature of her project work.

Legal Submissions

The Complainant relied on Maher v Technological University Dublin (ADJ-00040417), wherein the WRC held that reverting an employee to a lower‑graded permanent post at the end of successive fixed‑term contracts constituted penalisation and an attempt to avoid granting a CID. The Complainant submitted that, as in Maher decision, the failure to renew their higher‑grade fixed‑term role and the decision to return them to a lower‑paid substantive grade amounted to unlawful penalisation and should result in compensation and re‑engagement at the higher grade.

The Complainant relied on Wurmel v National University of Ireland [2015] 26 ELR 164, where the Labour Court accepted that although the renewal of a fixed‑term contract amounted to a prima facie breach of the 2003 Act, the employer avoided granting a CID because the post was underpinned by a genuine temporary need, demonstrated by falling student numbers and the discontinuation of specific course modules. The Complainant submitted that MTU cannot rely on Wurmel, as the objective justification in that case depended on clear evidence of a temporary and time‑limited need, which the Complainant contends is absent in the present matter.

It was further submitted that Wurmel dealt with CID entitlement, whereas here the Complainant claims both a right to a CID and penalisation arising from being compelled to return to a Grade 7 role after over six years at Assistant Principal level, following her invocation of statutory rights under Section 13 of the 2003 Act.

Ms Siobhán Garvey, HR Manager

It was Ms Garvey’s evidence that she is the HR Manager for MTU based on the Kerry campus and has approximately 30 years’ experience in HR across the private sector and within MTU and its predecessor institute.

It was Ms Garvey’s evidence that the MTU Merger Project comprised the statutory merger of IT Tralee and Cork Institute of Technology, funded nationally through the TUTF programme to align processes across the two institutes, during which the Complainant served as one of several projects leads responsible for the student administration workstream.

Fixed Term Post 1 - It was Ms Garvey’s evidence that the Complainant’s first fixed‑term contract in March 2019, Fixed Term Post 1, was grounded on the temporary nature of the merger project. She stated that all such posts were advertised to all staff across Cork and Kerry, with job specifications attached and applications submitted through MTU’s online recruitment system. The witness gave evidence that this fixed‑term contract, and its subsequent extensions, were required because the merger work had not yet concluded.

It was Ms Garvey’s evidence that the MTU Merger Project Office no longer exists, having been replaced by the “Transformation Office” following a 2023 review. She stated that all original project‑lead posts, including the one held by the Complainant, came to an end, and that only two project‑lead/change‑management facilitator posts now remain, one academic, one non‑academic, both of which were openly advertised in March 2023. The Complainant did not apply for either position.

Fixed Term Post 2 - The witness gave evidence that the Complainant later took up a distinct fixed‑term post on the N-TUTORR Project, which she emphasised was a national EU‑funded programme unrelated to the MTU merger. She stated it was externally funded by NextGeneration EU, managed by the Higher Education Authority, and carried out across multiple universities. The objective grounds for the Complainant’s fixed‑term appointment in February 2023 were the specific, time‑limited scope of that national project, funded only until December 2024.

It was Ms Garvey’s evidence that when the N-TUTORR Project formally concluded in December 2024, all project staff finished their roles and returned either to their permanent posts or to other temporary posts obtained through open competition. The Complainant’s contract was extended until April 2025 solely to allow completion of final reporting and auditing. At the end of April 2025, the Complainant returned to the substantive Grade 7 post.

The witness gave evidence that no other N-TUTORR Project staff submitted complaints arising from the project’s closure.

It was Ms Garvey’s evidence that she conducted a CID review at the request of the Complainant. She stated that MTU conducts CID reviews for all temporary staff approaching four years’ service. In the Complainant’s case, she determined that neither the merger post nor the N-TUTORR Project post was viable on an ongoing basis. Both projects had concluded, and therefore no CID applied.

The witness also gave evidence in relation to comparators referenced by the Complainant. She stated that the individuals mentioned in the Complainant’s submissions had either obtained new roles through open competition or had simply reverted to their permanent posts when their project roles ended. She stressed that alleged “sponsors” could not have influenced appointments, as the relevant executives had not taken up their roles until more than a year after these recruitment decisions were made.

It was Ms Garvey’s evidence that the Complainant’s return to a shared office was not a detriment arising from penalisation but rather a function of the substantive Grade 7 post. She stated that Grade 7 administrative staff ordinarily work within team‑based office settings, whereas APO managers typically have individual offices. She suggested that any memory of a private office may relate to an earlier role held by the Complainant as a Careers Officer, which did have a single‑occupancy office.

Finally, the witness gave evidence that the N-TUTORR Project no longer exists and that the MTU merger project continues only insofar as ongoing integration work remains. Two externally‑funded change‑management posts remain in place under the TSF funding stream until June 2026. She stated that whether such posts continue beyond that date is unknown and outside her control.

Cross Examination of Ms Garvey

It was put to Ms Garvey that her CID review stated the Complainant knew the roles were temporary, yet the merger project was still ongoing. She replied that the reference in the report was mistaken and that the specific project‑lead post held by the Complainant no longer existed, even if the wider merger work continued. She stated that all original project‑lead roles had concluded as the needs of the merger evolved.

It was put to her that the Complainant’s skills were transferable and that the ongoing merger demonstrated roles were available. Ms Garvey disagreed, stating there were no vacant posts at the time. She said the only relevant posts were advertised in March 2023, through open competition, and that the Complainant did not apply.

It was suggested to the witness that the Respondent used successive “temporary” roles to avoid granting a CID. Ms Garvey rejected this, insisting that all posts were openly advertised and that the N-TUTORR Project was a national HEA programme outside MTU’s control, and thus could not have been manipulated to avoid CID obligations.

It was also put to her that the Complainant had been encouraged to take fixed‑term roles, demonstrate loyalty, and then was returned to a lower‑paid permanent grade, amounting to unfair treatment. Ms Garvey denied this, saying it was common practice in universities for staff to take temporary acting‑up or project roles, gain experience, and then revert to their substantive posts.

When asked about case law indicating that the expiry of fixed‑term contracts does not determine CID entitlement, Ms Garvey declined to comment on legal interpretation. She said her decision was based on post viability and the Complainant’s awareness that the roles were temporary, concluding the Complainant was not entitled to a CID.

It was put to Ms Garvey that her experience as a HR Manager was relevant. She stated she had approximately 30 years’ HR experience, including in the private sector in Ireland, the UK, and France, and had been with MTU (and its predecessor institute) for 19 years. When asked whether she was aware of fixed‑term cases arising in universities, she accepted that such cases existed, as in any sector. It was put to her that the Complainant’s treatment by MTU resembled other university cases where employees were found to have been unfairly treated and entitled to a CID. Ms Garvey responded that this was a matter for the WRC and that she did not comment on case law.

In relation to detriment, it was put to her that the Complainant had reverted to sharing an office with six or seven colleagues, whereas previously the Complainant had had a private office. Ms Garvey stated that Grade 7 administrators generally work within teams and do not have private offices, whereas APO‑level managers typically do. She suggested the Complainant may have been referring to an earlier role as a Careers Officer, which did have a private office, but stated that the e‑learning team, the Complainant’s immediate prior role before the APO acting post, worked in shared spaces. She said any change in office arrangements was due to the nature of the posts rather than any act of penalisation.

Finally, she confirmed that the APO grade exists outside the merger and outside N-TUTORR Project, as APO is a national salary grade.

Legal Submissions

The Respondent submitted that the Complainant was always treated the same as all other staff, with equal access to internal vacancies, competitions, and training opportunities through established HR channels. It was further submitted that the Complainant successfully applied for multiple fixed‑term and permanent roles over the years, availed of various training supports, and that MTU funded the Complainant’s Masters and PhD studies.

The Respondent submitted that, applying the established in Bilka-Kaufhaus GmbH v. Weber Von Hartz [1986] ECR 1607 three‑stage test, any difference in treatment must be justified by a real need of the employer, and the measures taken must be appropriate and necessary to achieve that aim. The Respondent further submitted that both the ECJ in Adeneler and others v. Ellinikos Organismos Galaktos [2006] IRLR 716, and the Labour Court in St Catherine's College for Home Economics and the Minister for Education and Science v Helen Maloney and Margaret Moran 2009 20 E.L.R. 143  have confirmed that objective justification must relate to concrete circumstances of the work in question, and that this same proportionality test governs the assessment of objective grounds under the 2003 Act.

Section 1 of the Protection of Employees (Fixed-Term Work) Act 2003 (“2003 Act”) defines a fixed term employee as:-

“fixed-term employee” means 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 but does not include—

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;”

Section 7 of the 2003 Objective grounds for less favourable treatment.

“7.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a fixed-term employee and the less favourable treatment which it involves for that employee (which treatment may include the renewal of a fixed-term employee's contract for a further fixed term) is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.

(2) Where, as regards any term of his or her contract, a fixed-term employee is treated by his or her employer in a less favourable manner than a comparable permanent employee, the treatment in question shall (for the purposes of section 6(2)) be regarded as justified on objective grounds, if the terms of the fixed-term employee's contract of employment, taken as a whole, are at least as favourable as the terms of the comparable permanent employee's contract of employment”

Section 9 of the 2003 Act addresses 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.”

Section 13 of the 2003 Act - prohibition of penalisation of employee by employer.

“13.—(1) An employer shall not penalise an employee—

(a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part,

(b) for having in good faith opposed by lawful means an act which is unlawful under this Act,

(c) for giving evidence in any proceeding under this Act or for giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a) or (b), or

(d) by dismissing the employee from his or her employment if the dismissal is 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 under section 9(3).

(2) For the purposes of this section, an employee is penalised if he or she—

(a) is dismissed or suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

(b) is the subject of any other action prejudicial to his or her employment.”

It is agreed that the Complainant has been continuously employed by the Respondent since 2005, holding a substantive permanent Grade 7 post. Between March 2019 and April 2025, she undertook two successive fixed‑term appointments at APO grade:

Fixed‑Term Post 1: MTU Merger Project (2019–2023)

Fixed‑Term Post 2: N-TUTORR Project (2023–2025)

Both fixed‑term roles were higher‑graded than her substantive post and were extended on multiple occasions.

Therefore, the key question is whether the fixed‑term arrangements were underpinned by objective grounds, as required by s.9(4) of the 2003 Act.

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”

It is also clear from the decision of the Labour Court in St Catherine’s College for Home Economics v. Helen Maloney and Margaret Moran [2009] 20 E.L.R. 143, 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 test for deciding if a ground can be regarded as an objective ground is the same as that first formulated by the ECJ in Bilka-Kaufhaus GmbH v Karin Weber von Hartz Case 170/84 [1986] E.C.R. 1607. In that case the court set out a three-tiered test by which an indirectly discriminatory measure may be justified. It said that the measure must firstly meet a “real need” of the employer; secondly the measure must be “appropriate” to meet the objective which it pursues and finally the measure must be “necessary” to achieve that objective. The various elements of the test were analysed in detail by this court in Inoue v NBK Designs Ltd [2003] E.L.R. 98. While there are textual differences in the formulation of the test in s.7 of the Act and that in Bilka-Kaufhaus, the differences are not material. Consequently, the jurisprudence of the ECJ in the application of the test is relevant in cases under the Act of 2003.”

Having considered all of the evidence, I am satisfied that the specific posts held by the Complainant, rather than the general project activity, ceased to exist. It was not disputed that the MTU Merger Project Office was dissolved in 2023 and that the original Project Lead roles no longer existed thereafter. The N-TUTORR project formally ended in December 2024, with the Complainant’s contract extended only to April 2025 to complete reporting requirements. Two new project‑lead roles in the Transformation Office were created but were filled through open competition, which the Complainant did not enter. The continued existence of merger‑related work does not establish the ongoing viability of the posts she previously held. The very nature of a merger project is temporary, transitional and time‑bound, which is reflected in the succession of distinct project roles undertaken by the Complainant over a number of years.

This distinguishes the present case from the decisions in Maher v TU Dublin (ADJ‑00040417) and Wurmel v National University of Ireland [2015] 26 ELR 164. In those cases, the tribunals found that the work being performed related to a genuine temporary need but one that was directly connected to the institutions’ core ongoing business, namely the expansion of student intake and the continuation of academic programmes. By contrast, a merger does not form part of a university’s core business but is a finite organisational transition. Accordingly, unlike in Maher or Wurmel, the Respondent has demonstrated precise and concrete circumstances showing that the Complainant’s fixed‑term roles were genuinely temporary and that the posts themselves ceased to exist.

In conclusion, I find that the Respondent has demonstrated genuine objective grounds for the use and non‑renewal of the Complainant’s fixed‑term contracts, and no CID exists.

Turning to the complaint of penalisation, the Complainant argued that she was penalised by being required to return to Grade 7 following her request for a CID review, and that this included moving from a private office to a shared workspace.

To succeed in a penalisation claim, a Complainant must establish a protected act, a detriment, and a causal connection between them. It is accepted that the Complainant’s request for a CID review constituted a protected act. However, I must consider objectively whether she suffered a detriment and, if so, whether it resulted from the protected act. The evidence establishes that all N-TUTORR Project staff reverted to their substantive posts at the end of the project unless they were successful in applying for new roles through open competition. The Complainant was treated in the same way. Grade 7 administrative staff customarily work in shared spaces and there is no evidence that the change in office arrangements amounted to an adverse change or was linked to the CID request. Rather, it reflected the standard working arrangements attached to the substantive Grade 7 role.

I am satisfied that the Complainant’s reversion to Grade 7 resulted from the expiry of her fixed‑term contract and not from any retaliatory conduct by the Respondent. Accordingly, I find no causal link between the protected act and the alleged detriment, and the penalisation complaint cannot succeed.

The Complainant also alleged less favourable treatment compared with various comparators, including other Project Leads, Senior Lecturers, Heads of Department, and Directors. The evidence confirms that comparator Project Leads either reverted to their own permanent roles or successfully applied through open competition for different posts. Senior Lecturers returned to their permanent academic posts, which are not comparable to the Complainant’s administrative roles. There is no evidence supporting the claim that promotions of other staff were influenced by factors relevant to the Complainant’s circumstances. The comparators relied upon were not in like situations, nor were their employment contexts equivalent for the purposes of establishing less favourable treatment.

Finally, the Complainant claimed that the Respondent failed to inform her of permanent opportunities or training. Very little evidence was provided in support of this allegation. The only relevant evidence was that APO roles were openly advertised in 2023, and the Complainant chose not to apply. There is therefore no basis on which to uphold this aspect of her complaint.

In summary, the evidence does not support the contention that a CID should have been awarded, nor that the Complainant was penalised or treated less favourably. All complaints are therefore not well founded.

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

CA-00070985-001

I find the Complainant was not penalised.

Consequently, I find the complaint is not well founded.

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

CA-00070985-002

I find the Respondent did not contravene the Protection of Employees (Fixed-Term Work) Act, 2003.

Consequently, I find the complaint is not well founded.

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

CA-00070985-003

I find the Complainant was not treated less favourably than a comparable permanent employee.

Consequently, I find the complaint is not well founded

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

CA-00070985-004

I find the Respondent did not fail in informing the Complainant of opportunities for permanent employment or appropriate training opportunities.

Consequently, I find the complaint is not well founded

Fixed Term Workers