In Hugh O’Neill v Trinity College Dublin, the Workplace Relations Commission (“WRC”) heard a Complaint from Mr O’Neill (“the Complainant”) under the Protection of Employees (Fixed Term Work) Act 2003 (“the FTW Act”). He claimed that Trinity College Dublin (“the Respondent”) had not renewed his fixed term contract due to the fact that if it was renewed, he would become entitled to a Contract of Indefinite Duration (“CID”). He claimed that the Respondent’s business strategy was being used retrospectively to justify his dismissal.
Facts:
The Complainant had been employed by the Respondent on a series of Fixed Term Contracts since October 2017 and was dismissed on 31st December 2020. One of the Complainant’s contracts had been for a period of two years, another for one year and a final contract for three months. His position was that of Business Development Manager, however after his dismissal the Respondent advertised a role of Business Analyst. The Respondent argued that there was a business plan in place which favoured analytics to development and focused on hiring fixed term workers rather than permanent employees.
At the time of the Complainant’s dismissal recruitment had been suspended due to Covid-19 and all contract renewals were dealt with by a committee within the Respondent.
The Adjudication Officer, Kevin Baneham, accepted that the Respondent could dismiss the employee on the expiration of his fixed term without following fair procedures but only where such dismissal is not “wholly or partly for or connected with the purpose of avoidance of a fixed-term contract being deemed to be a contract of indefinite duration” as prohibited under the Act.
Decision:
In considering the Complainant’s position and the Respondent’s business case, the Adjudicator found that although the Complainant may have been made redundant even if he acquired a CID, it was not inevitable. Further, had he been made redundant upon acquiring a CID he would have had the benefit of full procedures including consultation throughout the redundancy process.
In awarding €15,000 to the Complainant, the Adjudicator highlighted the significance of both the deciding Committee knowing that the Complainant would acquire a CID if he was re-hired and the fact that new hires were being provided with Fixed Term Contracts only.
Takeaway for the Employers:
It appears from this decision that employers have an increased risk if they decide not to renew a fixed term contract when the employee is close to acquiring a contract of indefinite duration i.e. close to 4 years. It would be very difficult for an employer to prove that the non-renewal in such circumstances had nothing to do with the employee’s anticipated right to the CID. Therefore, employers who do not want to grant employees a contract of indefinite duration should consider letting the fixed term contract expire without renewing as far away from 4 years’ service as possible.
Link – https://www.workplacerelations.ie/en/cases/2023/january/adj-00033533.html
Authors – Anne O’Connell, Nicola MacCarthy
31st January 2023
Anne O’Connell Solicitors
19-22 Lower Baggot Street, Dublin 2
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