The purpose of the Protection of Employees (Fixed Term Work) Act according to the Department of Trade & Employment is:
- To provide for the improvement of the quality of fixed-term work by ensuring the application of the principle of non-discrimination (i.e. fixed term workers may not be treated less favourably than comparable permanent workers) and;
- To provide for the removal of discrimination against fixed term workers which such exists and the establishment of a framework to prevent abuse arising from the use of successive fixed term employment contracts.
The general rule under the Protection of Employees (Fixed Term Work) Act 2003 is that once an employee has completed 3 years continuous employment with his employer then the employer may renew the contract for a fixed term on one further occasion only and that renewal may be for a period of no longer than 1 year (though exceptions exist for “objective” grounds).
This requirement has sometimes created difficulties in the public sector. The reason for this would seem to be caps that have existed on the number of permanent staff that can be employed and budgetary restrictions.
It appears to be common practice in some schools, to employ a large number of teachers on part-time contracts. In the fourth year it has been claimed that some schools renew these contracts for a reduced number of hours, which in the fourth year become CID contracts or “contracts of indefinite duration” thanks to Section 9 (3) of the Act. It has been claimed that some schools give teachers less than 18 hours per week in the fourth year. This may be because under a union agreement, these hours subsequently kick up to an entitlement to the maximum 22 hours that a teacher can work i.e. it becomes a permanent full-time contract. The number of permanent full-time staff is also thereby kept down.
So what is the legal position?
The trite answer is that discrimination against part time workers is prohibited in law by the Protection of Employees (Fixed Term Work) Act 2001. However, discrimination in these circumstances can be difficult and often impossible to prove.
Do affected teachers have any recourse?
Section 9 (1) says that where a fixed term employee complete his third year of continuous employment, his fixed term contract can only be renewed once more and for a period of no longer than one year. So the part-time teacher’s hours are limited to, say for example, a 12 hours per week contract in the fourth year, which becomes a CID for 12 hours.
In the fifth year, some teachers experience a situation where the school is not concerned about limiting their hours, possibly due to a misinterpretation of the Act, so they often push the hours back up towards and even above 18 hours per week to suit the school’s needs. The school treats the surplus hours as a new contract.
In essence there is one contract in this theoretical example for 12 hours that is in its fifth year and a new contract for the balance hours that is in its first year. The school therefore argues that this second contract does not benefit from Section 9(3) to become a CID.
In the writer’s view, this is not what the legislation says. The employee has completed his/her third year and indeed his fourth year, and Section 9(1) prohibits the additional contract from being limited in time to 12 months and therefore, in accordance with clause 9(3) the 12 month limit on the contract is deleted and it is deemed to be a contract of indefinite duration. My interpretation of the Act is that the teacher therefore has a contract of indefinite duration for the hours contracted to him/her after the fourth year, unless there are stated objective grounds why this should not be the case. It will be interesting to find out what the Labour Court says on the matter.
Section 9(3) of the Act states:
“Where any term of a fixed term contract purports to contravene subsection (1) or (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration”.
Clause 9(2) states that the aggregate duration of two or more continuous fixed term contracts cannot exceed 4 years, so in the writer’s view an attempt to extend it to 5 years, automatically transforms the contract into a contract for indefinite duration by virtue of Section 9(3).
So what does the caselaw say?
In the case Trinity College Dublin v. Elaine Moriarty, determination FTD125, the Labour Court considered the position of a part-time lecturer who had worked on the basis of four fixed term 12 month contracts from October 2003 to September 2007 for Trinity College Dublin. Thereafter, the employee successfully applied for a research fellowship vacancy and was awarded a 3 year contract from November 2007 to September 2010. An additional 1 year contract as a temporary lecturer was then issued in October 2010. The employee claimed a contract of indefinite duration on the basis that Section 9(3) converted the 12 month fixed term contract commencing in October 2010 into one of indefinite duration.
The employer argued that these were separate and distinct contracts of employment, one being a part time lecturer, and the other a research fellowship and that the Act should not apply.
In rejecting this argument, the Labour Court commented that if the employer believed that these were separate contracts (and they were certainly separate roles) then it should have issued separate contracts and not rolled the jobs into one contract. It seems that these comments have been interpreted by some schools with a view to attempting to give a legal basis to their approach. It is the writer’s view that these observations of the Labour Court do not alter the wording or intent of the legislation set out above.
In that case the Labour Court held that the provisions of Section 9(2) of the Act were met by the fixed term work contract of employment that was issued to the complainant by the respondent on 1st October 2007. On that date the aggregate duration of the successive fixed term contracts of employment under which she worked for the respondent exceeded four years duration. Section 9(3) therefore applied and transformed the fixed term contract into a contract of indefinite duration. It would appear to the writer that the same argument should defeat the approach that has been adopted by some schools in some cases as set out above. We look forward to clarification by the Labour Court when further cases come to hearing.
Employees should also be aware of the 6 month time limit within which to refer a complaint to a Rights Commissioner.
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