National University of Ireland Maynooth – v- Dr Jennifer Wood
Labour Court, Determination No. FTD/1511
This case relates to an appeal of a Right Commissioner's decision under the Protection of Employees (Fixed Term Work) Act, 2003 wherein the Rights Commissioner refused to grant a contract of indefinite duration (CID) sought by Dr Wood.
Dr Wood commenced employment with National University of Ireland Maynooth (NUI Maynooth) in September 2006. She was engaged on seven written contracts of employment for each academic year thereafter until Dr Wood was made redundant following the completion of her seventh contract on 31st May 2013. For completeness, there was no written contract provided to Dr Wood for the academic year September 2008 to August 2009.
Dr Wood claimed that she was entitled to a CID "by operation of law" from the 1st September 2010 following the completion of her fourth year of service.
The Protection of Employees (Fixed Term Work) Act 2003 ("the Act") provides that an employee who is engaged on two or more continuous fixed term contracts, the aggregate duration of which exceeds four years, shall be entitled to a CID unless there are objective reasons justifying the renewal of the fixed term contract.
In particular, section 9, subsections (2) (3) and (4) are the most relevant. They state as follows:-
Section 9(2) "...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 such contract is subsequent to the date on which this Act is passed, the aggregate duration of such contracts shall not exceed four years.
Section 9(3) "...where any term of a fixed term contract purports to contravene [section 9(2)] that term shall have no effect on the contract concerned shall be deemed to be a contract of indefinite duration.
Section 9(4) "[Sections 9(2) and 9(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." (emphasis added)
WHAT IS A CID?
There is no statutory definition to define "contract of indefinite duration". An interpretation of what a CID is has evolved over the years and can broadly be defined as a contract terminable on reasonable notice.
The leading authority on the interpretation of the term can be found in the High Court decision of Minister for Finance .v. McArdle  IRLM 348. Laffoy J held that in this case that where a contract is renewed for a further fixed term in breach of the Act, section 9(3) (set out above) operates "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."
In short, the "offending term" is severed from the contract and the remaining terms and conditions of employment stand.
Dr Wood was engaged on seven different contracts from 1st September 2006 until 31st May 2013, at which point her employment was terminated by reason of redundancy. The specific purpose of the fixed term contract and the objective reasons as to why no CID was offered to Dr Wood were included in each contract.
No written contract was provided to Dr Wood for the year commencing September 2008 to August 2009. NUI Maynooth contended that Dr Wood did not have a fixed term contract during that period as she was working "occasional working hours" only. During that year, Dr Wood's work included during the correction of exams and essays, assessment of oral exams, preparing exam scripts, tutoring and co-teaching some modules.
The Rights Commissioner found that there was a break in service at this point and refused to grant the CID sought on that basis.
As a preliminary issue, the Labour Court revisited the question of a "break in service". Continuity of employment is defined in the First Schedule of the Minimum Notice and Terms of Employment Act 1973 -2001. This schedule sets out various circumstances in which a break in the continuity of employment/service occurs. None of the circumstances in the schedule applied to Dr Wood. By way of example, the circumstances include a dismissal, a resignation, lay-off, and a strike. Dr Wood continued to work over the course of the year as outlined above.
The Labour Court held that there was no break in service. Accordingly, Dr Wood had 8 years' service on 8 consecutive contracts at the date of her redundancy.
Based on the Labour Court's preliminary determination on the question of continuity of service, Dr Wood qualified under section 9(3) for a contract of indefinite duration. Dr Wood had two or more continuous fixed term contracts the aggregate duration of which exceeded four years.
However, the Act permits an employer to renew a fixed term contract under section 9(4) where they are objective grounds justifying such a renewal.
Dr Wood disputed that any such objective grounds existed here. The relevant contract upon which Dr Wood claimed that she was entitled to a CID was dated 1st September 2010 to 31st August 2011. The contract specified that the role of Assistant Lecturer was to "cover for Professor John Kinsella", who was on sabbatical.
Dr Wood contended that it was not sufficient for the Respondent to simply identify a person on sabbatical; rather it must be shown that the employee was actually carrying out a genuine replacement of that employee's work.
NUI Maynooth made a number of points in its defence:
- The use of a fixed term contract to cover a sabbatical absence was an "appropriate and necessary means of achieving a legitimate objective" for the renewal of Dr Wood's employment.
- It was not required to "engage an exact or direct replacement of the employee on sabbatical leave".
- It was entitled to engage someone with a different skill set and reallocate the work/duties of Professor Kinsella. Given Professor Kinsella's senior role, it naturally involved the reallocation of some of his duties to other more senior staff members. In turn, some of those staff members' duties also had to be reallocated to Dr Wood and others.
Relying on a decision of the Labour Court in O`Keeffe .v. NUI Maynooth FTD 1411 of 4th June 2014, NUI Maynooth cited the following in support of its position:-
"It seems clear that the provision of sabbatical leave is a desirable objective which brings benefits to both the University and the teacher who avails of the leave. During the period of leave the University must continue to provide tuition to its students and it must provide that tuition while recognising the rights of the teacher on leave to return to his or her post at the end of the leave".
In O'Keeffe case, the Labour Court accepted that employment on a fixed term contract was both appropriate and necessary to achieve the legitimate objective of providing tuition to students during a sabbatical period.
There is a wealth of authority on how the concept of objective justification should be applied. In particular, the Courts have held that it must be by reference to the work actually performed and the circumstances under which it is performed.
Dr Wood asserted that the role undertaken by her was completely different to the work carried out by the person for whom she was providing cover and for that reason the objective grounds stated in her contract "were not the reality of the situation".
The Court looked at the specific terms set out in Dr Wood's contract to understand whether Dr Wood was genuinely employed on a fixed term contract due to cover Professor Kinsella's absence on sabbatical. It noted that:-
- "It was not unreasonable that the most senior members of the department would undertake Professor Kinsella's faculty and administrative duties."
- It could understand how in those circumstances, that this would result in a "very significant reorganisation or reallocation of work within the department".
- While it was "not a simple and direct assignment of the work of Professor Kinsella" to Dr Woods, "it was by way of general reallocation of work to a number of academic staff".
- There was a relationship "between the work performed by the Complainant and that performed by Professor Kinsella in that they were both lecturers in Spanish and there was a general reallocation of the work in the department in question".
In summary, the Court was satisfied that Dr Wood's work did amount to a "genuine replacement for Professor Kinsella while he was on sabbatical leave which was temporary in nature".
Accordingly, there were legitimate objective grounds justifying the renewal of Dr Wood's contract of employment beyond the normal four year period set out in section 9(2) of the Act.
Dr Wood was provided with three further fixed term contracts following the completion of the 2010/2011 contract. Objective reasons were specified in all three contracts. Following the expiration of the third contract, Dr Wood was made redundant.
The Labour Court held that Dr Wood was not entitled to a CID, as legitimate objective reasons were provided to Dr Wood upon the renewal of each contract.
The Court upheld the Rights Commissioner's decision and dismissed Dr Wood's appeal, albeit for entirely different reasons.
This case highlights the benefit of the appropriate use of section 9(4) of the Act, wherein an employer is entitled to renew a fixed term contract, despite the fact that there were two or more continuous contracts with an aggregate duration of four or more years, where there are objective grounds justifying the renewal.
The case is interesting in that the work carried out by Dr Wood was not a direct like-for-like replacement of another employee's duties, such as a maternity leave cover for example. In reality, the work carried out by Dr Wood included duties and responsibilities entirely unconnected with Professor Kinsella's role. It is a progressive step to see the Court hold that it was reasonable for Professor Kinsella's duties to be reallocated within a team, with Dr Wood only assigned to a limited number of those duties, and still hold that the objective grounds test is satisfied with the reasons outlined in Dr Wood's contract.
A full copy of the decision can be reviewed at the following link: http://www.workplacerelations.ie/en/Cases/2015/June/FTD1511.html
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