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Fixed-Term Worker entitled to Contract of Indefinite Duration Despite Breaks in Service

In Alessio Caratti O Garatti v Dublin Institute for Advanced Studies (“DIAS”) the Complainant was employed by the Respondent as a Postdoctoral researcher on a number of Fixed Term contracts in the years 2014 to 2021.   The Respondent is a statutory independent body who reports to the Oireachtas.    In May 2021 the Complainant lodged a claim with the Workplace Relations Commission (“WRC”) under Section 9 of the Protection of Employees (Fixed-Term Work) Act, 2003 (“the Act”) claiming that he was entitled to a Contract of Indefinite Duration (“CID”).


The Complainant was employed from January 2009 until June 2011 with the Respondent.   He was again employed on a series of Fixed Term Contracts for the following periods:

  1. November 2014 to October 2016
  2. November 2016 to April 2017 and
  3. October 2017 to October 2021

If the Complainant did not have a break in service he would have been entitled to a CID in November 2018.  The Complainant stated that he was informally promised that he would receive a further contract with the Respondent in April 2017 and that the Respondent always intended on re-employing him.   In evidence, he confirmed that he had not received a P45 and received no redundancy payment in April 2017.  He gave evidence that he attended conferences for the Respondent between April and October 2017, the expenses of which were met by the Respondent.  During this time, he also retained his email address and laptop that he had used throughout the course of his employment and although this was disputed by the Respondent, he argued that he continued to supervise students. He further gave evidence that he refused other employment during this six month break in his employment as he understood it was a temporary break and he would be re-employed.

The Respondent claimed that the Complainant was responsible for sourcing his own funding grant to continue his research work and that he was in the same position as other post-doctoral researchers in Ireland.  

Despite being employed in Italy at the time of the hearing the Complainant was seeking a CID with the Respondent.

Decision – By way of his complaint form and in evidence before the WRC, the Complainant claimed that section 9 subsections (1), (2) and (3) of the Act apply to his circumstances.   The Act gives effect to Directive 1999/70/EC of 1999 (“the Directive”), concerning the Framework Agreement on Fixed Term Workers. Section 9 of the Act provides that upon completion of their third year of continuous employment, fixed term workers can only have their contract renewed once and for a period of no more than a year and employees shall not have two or more continuous fixed term contracts exceeding a period of four years.  In the event of a contravention of these provisions the employee shall be deemed to have a contract of indefinite duration.

The Adjudicator considered the evidence before him in conjunction with both the Act and the Directive.  In his decision he accepted the Respondent’s position in relation to why no redundancy payment was made and deemed there to be insufficient evidence in relation to the promise of a new contract and the continuing supervision of the students as per the Complainant’s evidence.  Nonetheless, the rest of the facts did not appear to be in dispute between the parties and therefore the Adjudicator considered the case of William Beary v Revenue Commissioners which examined the terms ‘continuous contracts’ in the Act as against ‘successive contracts’ in the Directive.  The Act does, in its marginal notes, refer to definitions in the First Schedule of the Minimum Notice and Terms of Employment Act 1973-2001 however this is not binding.  Beary determined that all periods of employment should be considered continuous unless broken by resignation or dismissal, unless the Respondent employer believed that the cessation of the employment was to be permanent.  The Adjudicator was required to establish whether there was a break in service and if there was, were the Complainant’s contracts considered ‘continuous’ under the Act.  There was little doubt that they were ‘successive’ contracts as provided for by the Directive.

In applying Beary the Adjudicator in the current case relied on evidence that the Complainant’s manager had sent an internal email stating that his ‘contract technically ends this week’ and ‘there may well be a break in his contract …. Depending on the timing of Departmental approval’ in determining that the Respondent did not intend the termination of the Complainant’s employment to be permanent.   In relying on both this and the Complainant’s retention of his email account and laptop during the break in service the Adjudicator stated that the relationship was ‘so closely aligned to the Respondent that it is not rational to believe that he would not be re-employed’.

The Adjudicator accepted the Complainant’s position that both he and the Respondent expected that his employment would recommence within a reasonable time.  The Complainant was awarded a CID.

Takeaway for the Employers:  It is essential when using fixed term contracts to ensure that at their expiry there is not only written justification for the lack of renewal but also that there is a definitive and permanent end to the employee’s employment and the relationship with the employer.

Link  – https://www.workplacerelations.ie/en/cases/2022/august/adj-00033432.html

Authors – Nicola MacCarthy, Anne O’Connell

30th September 2022

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2


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