Complainant

Respondent

Parties

Matthew  Burke

Health Service Executive

Representatives

Thomas Cowman Forsa Trade Union

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-00071410-001

08/05/2025

The Complainant is a permanent employee of the Health Service Executive (HSE), employed since 2003.  The Complainant contends that he is entitled to a Contract of Indefinite Duration at the Grade of Manager from his employer, the HSE, based on his continued service in that grade and the failure of the employer to abide by the Protection of Employees (Fixed-Term work) Act, 2003.

The Respondent put forward that this complaint is out of time.

The Respondent asserts that this complaint was lodged more than six months after the alleged contravention of the Act took place. The Respondent submits that as the Complainant’s last fixed-term contract ended on 2 September 2024 and the complaint was not lodged with the WRC until 8 May 2025, it is well outside the time allowed.

It is the Respondent’s case that the Complainant was notified that he was not getting the General Manager’s role and that he would have to apply for the role. Despite this he did not initiate a grievance process when he was thus notified, as allowed under the Respondent’s Grievance Policy.

The Respondent’s representative stated that from 3 December 2020 until 2 September 2024 (the period of the fixed-term contracts) the Complainant was paid as a General Manager, however on 3 September 2024, he returned to his substantive grade, Grade 8 pay, and was no longer paid as a General Manger.  The permanent person came into post in October 2024.

Ms Joyce Shaw, Chief of Transformation and Technology in the HSE gave evidence on affirmation at the hearing.  Regarding the Preliminary Point, Ms Shaw stated that the Complainant reverted to his substantive pay grade on 3 September 2024.

The Respondent argues that no reasonable grounds exist on which the time limit could be extended.

In conclusion, the Respondent asserts that the complaint is out of time and therefore cannot proceed.

The Complainant’s representative provided a detailed written submission in advance of the hearing.

The Complainant submits that on 3 December 2020 he was successfully panelled number 1 following a recruitment campaign for the position of Head of Service Delivery at the grade of General Manager.  He accepted the post and then was provided with eight successive contracts relating to his role of General Manager.

The first of these eight contracts commenced on 3 December 2020; the last ended on 2 September 2024.

 During the duration of these contracts there was continued correspondence from the Complainant seeking reassurances on his position from management.

The Complainant accepts that he was informed on 10 September 2024, that there would be no further extensions to his contract and that he would revert to his Grade VII position.  However, the Complainant submits that he was requested to continue performing the full duties and responsibilities of the General Manager role for an additional five months and 10 days from September 2024 to February 2025.  During this period, he carried out the same functions as those he performed under his previous fixed-term contracts for the General Manager position. Following this additional period the Complainant requested that he be given a CID.

The Complainant’s union contacted the employer on 27 March 2025, seeking that their member be afforded the position of General Manager, due to the accrual of his duration of service under successive fixed-term contracts and the failure of his employer to adhere to their obligations to their member under the 2003 Act. The union received a negative response to their request on 17 April 2025.

The Complainant submits that he falls within scope of section 9 of the 2003 Act, that he was a “fixed-term employee”, as he had entered into, “two or more contracts.”

The Complainant submits that the Respondent breached section 9-(1) of the Act as he was issued with two fixed-term contracts after he had been in the post for more than three years.  The Complainant also believes the Respondent’s actions in not renewing his contract after he had been in the post for three years and nine months is an attempt by the Respondent to circumvent the protections afforded an employee in section 13 of the Act and in this instant case amounts to penalisation.

The Complainant puts forward that his contracts extended beyond the four-year threshold of four years stated in section 9 (2) of the Act, because he was requested by his employer to continue in the role of General Manager, which he did for another five months and 10 days, from September 2024 until February 2025. the Complainant asserts that this fact not only brings him over the four-year threshold but also brings his complaint to the WRC, which was received by the WRC on 8 May 2025, within scope of the allowed time limits for making a complaint under the 2015 Act. Notwithstanding this, the Complainant submits that discussions between the Respondent and the Complainant’s union only came to a close on 17 April 2025, and this justifies “reasonable cause” under the 2015 Act.

Mr Burke gave evidence on affirmation at the hearing.

Mr Burke stated that he was offered fixed-term contracts as General Manager that varied in length over the period in question but as time went on these contracts were for shorter and shorter periods. In August 2024, Mr Burke did an interview for the role. After the interview he asked his employer whether he was to continue doing the work he had been doing in the General Manager’s post and he was told, he should.  He continued fulfilling the role until February 2025, when he completed a handover to the person appointed into the General Manager’s role.

In conclusion, the Complainant submits that it is his right, in light of the circumstances of his case, that he be appointed to the post of General Manager based on the accrual of service in that role.

Section 14 of the 2015 Act states:

14. 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.

The definition of a fixed-term worker contained in the 2003 Act is:

“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…”

The Complainant commenced employment with the Respondent in 2003.  He works under a contract of indefinite duration.

The Complainant is not a fixed-term employee in accordance with the definition in the Act.                       He cannot therefore seek protection under the 2003 Act.

The complaint is not well founded.

Fixed-term contract, contract of indefinite duration, permanent employee