Case Number: FTD1423. Labour Court

• Judgment Date: 01 December 2014
• Year: 2014
• Docket Number: FTD1423
• Court: Labour Court (Ireland)

FULL RECOMMENDATION FTC/14/33 DETERMINATIONNO.FTD1423 (R-141348-FT-14/JT); INDUSTRIAL RELATIONS ACTS, 1946 TO 1990; SECTION 15(1), PROTECTION OF EMPLOYEES (FIXED-TERM WORK) ACT, 2003 ; PARTIES : UCD; (REPRESENTED BY IBEC); - AND -; ÁINE MC CONNON; (REPRESENTED BY VINCENT MC CONNON); DIVISION : Chairman: Mr Duffy; Employer Member: Ms Doyle; Worker Member: Mr McCarthy

SUBJECT:
1. An appeal against a Rights Commissioner's Decision r-141348-ft-14/JT.


BACKGROUND:

2. The Claimant appealed the Rights Commissioner's Decision to the Labour Court on the 15th September 2014. A Labour Court hearing took place on the 11th November 2014. The following is the Labour Court's Decision.



DETERMINATION:

This is an appeal by Dr Aine McConnon against the decision of a Rights Commissioner in her claim against University College Dublin under the Protection of Employees (Fixed Term Work) Act 2003 (the Act).

In this Determination the parties are referred to as they were at first instance. Hence, Dr McConnon is referred to as the Claimant and University College Dublin is referred to as the Respondent.

The facts
The factual background giving rise to this dispute is not materially in dispute and can be summarised as follows: -

• The Claimant was employed by the Respondent on a succession of fixed terms contracts. Her employment related in the main to work associated with externally funded research projects.

  The Claimant was employed by the Respondent in its School of Public Health and Physiotherapy and Population Science on successive fixed term contracts, the first of which commenced on 17^thSeptember 2007. Her employment terminated on 30^thDecember 2013. The first period of fixed term employment ended on 28^thFebruary 2009. Her employment was then renewed on 1^stMarch 2009 for a further fixed term of four years. Her renewed employment was pursuant to a contract in writing signed by the Claimant on 4^thMarch 2009 and on behalf of the Respondent on 5^thMarch 2009. This contract will be referred to hereafter as the March 2009 contract.

  The March 2009 contract records that the Claimant was employed in the role of Data Coordinator on a project described as “HRB Centre of Health and Diet Research R10909”. This role will be referred to hereafter as the “HRB contract”.

  This contract contained the following statement: -

  • “The objective grounds for issuing this fixed term contract rather than a contract of indefinite duration is to facilitate the provision of high level research support and expertise to the above project, In the context of achieving key deliverables within a stated time frame, specifically, To provide data coordination expertise for the Obesity Cohort of HRB Centre of Health and Diet Research Project, which has a fixed end date ofFebruary 28^th2013.

    The fixed term nature of this contract underpins the fulfilment of a legitimate objective of the university to provide temporary, specialist expertise to / ensure transfer of knowledge on projects to enable their completion”

  On or about 10^thMarch 2010 the Claimant was reassigned to work as Project Manager on a project referred to as the FP7 project. That was unconnected with the HRB project and was a completely different role than that to which the contract entered into in March 2009 contract related. There was considerable divergence of recollection between the parties on the circumstances in which this change came about. The Respondent contends that it was at the request of the Claimant. The Claimant contends that it was at the instigation of the Respondent. For reasons that follow, the Court does not believe that this is a determinative consideration. It is clear that the Claimant ceased to perform the role to which the March 2009 contract specifically related and that she took on a new role on a different project.

  The Claimant was not issued with a contract in writing in respect to the FP7 project nor was she provided with any documentation in relation to her employment on that project. She accepts, however, that she was verbally informed that the contract would end on the same date as the March 2009 contract was intended to end, namely, 28^thFebruary 2013. The terms of the March 2009 contract in relation to remuneration and conditions of employment were also continued during her employment on the PF7 project.

  The FP7 project was not completed on time. Sufficient funds were available to the Respondent to extend the duration of the project and the Claimant’s employment as Project Manager was extended for a period commencing on 1^stMarch 2013 until the completion of the project.

  The Claimant was issued with a fixed purpose contract in respect of this extension of her employment. This contract recorded that the Claimant was employed as Project Manager on the Food Risk project (the FP7 project). The contract contained the following statement: -

  • “The objective grounds for issuing this specified purpose contract rather than a contract of indefinite duration is to continue to facilitate the provision of high level research support and expertise to the above project, in the following context.

    School of Public Health and Physiotherapy and Population Science have negotiated an extension with the EU Commission in relation to FoodRise C project as the research revealed additional findings which have resulted in additional work, the extension was sought because the additional work will delay the delivery of some deliverables originally cited. The specified purpose nature of this contract underpins the fulfilment of a legitimate objective of the university to provide temporary, specialist expertise to ensure transfer of knowledge on projects to enable their completion.

    [The key deliverables for completion were then recited]

    The specified purpose nature of this contract underpins the fulfilment of a legitimate objective of the university to provide temporary, specialist expertise to projects to enable their completion. At the ending of this project, your contract will end with one month’s notice.

The Claimant’s employment was terminated on 30^thDecember 2013 when the project was completed. She was offered a redundancy lump sum which she declined to accept.

The issue
The submissions advanced on behalf of the Claimant ranged over a wide spectrum. However, the net issue in contention is whether the Claimant’s fixed term employment was transmuted to employment of indefinite duration by operation of law by the combined effect of s.9(2) and s.9(3) of the Act. Central to that question is whether the Claimant’s assignment as Project Manager to the PF7 project in March 2010 was pursuant to a new contract or pursuant to the March 2009 contract. In that regard the question arises as to whether the March 2009 contract was discharged by agreement between the parties and a new verbal or implied contract came into being for the purpose of undertaking the work associated with managing the PF7 project. If that is the correct construction of what occurred a further question arises as to whether the Claimant’s fixed term employment was renewed within the meaning of the statute in March 2010 and if so whether that renewal attracted the application of s.9(3) of the Act.

The 2009 Contract
The contract of March 2009 was expressed to be for a term limited by time. However, from a reading of the contract as a whole it is clear that it was for a specific purpose, namely to provide data coordination expertise for the Obesity Cohort of HRB Centre of Health and Diet Research Project (the HRB project). Moreover the role assigned to the Claimant was that of Data Coordinator. The contract is expressed to be for four years but it is clear that the term was expected to coincide with the duration of the project. Irrespective of who initiated the change, the reality is that by March 2010 the parties agreed that the Claimant would cease working on the HRB project to which the March 2009 contracted related. Another person was recruited to undertake that role and presumably did so from March 2010 onwards. It is reasonable to infer from these facts that the contract of employment entered into between the parties in March 2009 was discharged by agreement in March 2010.

Coincidental with that occurrence, the parties entered into a new arrangement by which the Claimant would work on a completely different project and in a totally different role, namely as Project Manager on the PF7 project. That amounted to a renewal of the Claimant’s employment on a new contract for a different purpose and for a different role unrelated to that for which the March 2009 contract was concluded. That contract will be referred to hereafter as the PF7 contract.

The PF7 contract was not in writing but it was a contract of employment nonetheless. That term is defined by s.2 of the Act as: -

• “contract of employment” means a contract of service whether express or implied and, if express, whether oral or in writing but shall not include a contract whereby an individual agrees with another person, who is carrying on the business of an employment agency within the meaning of theEmployment Agency Act 1971and is acting in the course of that business, to do or perform personally any work or service for a third person (whether or not the third person is a party to the contract);

The renewal of the Claimant’s employment pursuant to the PF7 contract was not supported by a statement in writing of the objective grounds justifying its renewal for a...