In Dublin Institute of Technology v James Wogan,
the Labour Court found that Mr Wogan had been penalised under
Section 13(1)(d) of the Protection of Employees (Fixed-Term Work)
Act 2003 (the "Act") because of its
decision not to renew his final fixed-term contract on its
expiry. We examine the facts of the case and the likely
implications for employers.
Mr Wogan had been employed as a business development manager in
the Digital Media Centre (DMC), which was attached to DIT. He was
employed on a series of fixed-term contracts from 2009 until his
employment terminated on 31 December 2012, when his final
fixed-term contract expired without being renewed.
The core issue in this case was whether the non-renewal of Mr
Wogan's final fixed-term contract amounted to penalisation
under the Act. This section provides that an employer shall
not penalise an employee by dismissing him/her 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).
The management of DMC told the Court that, at the time that Mr
Wogan's contract was due for renewal, it believed that
sufficient funding and work was available to justify the
continuation of the business development manager role for a further
27 months. However, his contract was renewed only for a period of a
further 15 months from 1 October 2011. As a result, Mr Wogan had
continuous service of less than four years on the expiry of his
It was conceded by DIT that the non-renewal of the
complainant's fixed-term contract on its expiry at the end of
2012 constituted a dismissal. The case then turned to the
question of whether the dismissal amounted to penalisation under
Section 13(1)(d). The Court noted that the purpose of avoiding a
fixed-term contract from becoming a contract of indefinite duration
need not be the only reason for the dismissal. It is sufficient if
it was an operative consideration in the sense that it was an
influential factor operating in the mind of the decision-maker at
the time that the decision was made. The Court referred to the
decision of Noonan, J in Board of Management of St
Joseph's School for Deaf Boys v Philip Grehan  605,
where he noted that "such inferences must be drawn having
regard to the factual matrix as a whole and not in the teeth of
The Court was satisfied in this case that the evidence disclosed
that at the end of 2012, the DMC was fully funded and that the
continued employment of Mr Wogan was financially viable up to at
least 2014. The Court considered the context in which the decision
had been made, noting that it had occurred at a time when DIT was
actively trying to ensure that its permanent staffing levels were
not unintentionally expanded by temporary fixed-term employees
attaining permanent status by operation of the Act. Reference was
also made to the Economic Control Framework (ECF), which had
imposed funding constraints on all public sector employees during
the economic recession, and to the public service agreement which
curtailed the capacity of public sector employers, including DIT,
to make surplus permanent staff redundant.
The Court went on to note that it was apparent that a central
strategy adopted by DRT in was to avoid situations in which
fixed-term employees would accrue more than four years'
continuous service and come within scope of Section 9 of the Act.
This was evidenced in the documentation before the Court. The Court
found it reasonable to infer that DITs' decision was influenced
by the realisation that a 27-month extension would bring the
complainant's aggregate service over four years and thus bring
Section 9 of the Act into play. It awarded Mr Wogan
€112,932, which amounted to 133% of his
final annual remuneration.
Implications for employers
This case underlines the importance to employers of managing
fixed-term employees. Before renewing a fixed-term contract,
employers should consider whether there are objective grounds
justifying the renewal and whether these grounds will stand up if
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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