A recent fixed term worker decision of the Labour Court addresses the issue of the obligation of an employer in circumstances where funding provided by a third party for a particular role is withdrawn. This issue frequently arises with research posts at third level institutions. A related High Court decision arising from the same facts confirms that the High Court has no jurisdiction to hear claims under the Protection of Employment (Fixed Term Workers) Act 2003, other than on appeal on a point of law from the Labour Court.
In the case of Dr Anne Buckley and National University of Ireland Maynooth, NUI Maynooth ("NUIM") agreed to engage Dr Buckley as a research fellow in the Department of Music for the duration of a grant made available by the Irish Research Council for the humanities and social sciences ("IRCHSS"). A fixed term contract of employment for a three year period was given to Dr. Buckley. Dr. Buckley's salary was paid from the grant provided by the IRCHSS. She was provided with an office by NUIM. A second fixed term contract for a two year period due to expire on the 30th September 2008 was entered into on completion of the first contract. On the 23rd November 2007, Dr. Buckley claimed an entitlement to a contract of indefinite duration pursuant to Section 9 of the Protection of Employees (Fixed Term Work) Act of 2003. The NUIM resisted the claim.
Rights Commissioner Decision
The Rights Commissioner declared that the plaintiff was entitled to a contract of indefinite duration with the University and in addition awarded compensation of €5,000. The plaintiff's second fixed term contract expired on the 30th September 2008. On the 27th August, 2008 the NUIM told Dr Buckley they were making her redundant from the 30th September 2008 and gave her an RP 50 and a copy of the colleges appeal against the Rights Commissioner to the Labour Court.
Labour Court Hearing – 16th October 2008
The NUIM claimed the plaintiff was never an employee of the University. An adjournment was granted to give Dr. Buckley a chance to consider this new claim and the University agreed with the Labour Court that they would maintain the status quo pending the adjourned hearing.
Following the hearing the NUIM asked Dr. Buckley to vacate her office and stated that the undertaking given to the Labour Court was in respect of salary only. Dr Buckley's Union notified the Labour Court of the university's actions and the Labour Court responded by replying to both parties noting the agreement by the college to maintain the status quo including payment and stating that the Court's only role was to determine the claim to a contract of indefinite duration. Following the resumed hearing at the Labour Court, the NUIM informed Dr. Buckley that payment would cease from the 12th January 2009. It claimed that the payments did not constitute salary and that these were ex-gratia payments only as a gesture of goodwill pending the hearing of the appeal. The college also asked Dr. Buckley to vacate her office on Monday 5th January 2009. On 22nd January 2009 Dr Buckley attended her office in the University, she left the office at lunchtime and returned to find that the locks had been changed. She sought injunctive relief from the High Court on the basis that the NUIM's actions were prejudicial to her rights and sought to pre-empt the Labour Court's determination.
High Court decision
Mr Justice Roderick Murphy heard the injunction application and refused it on the basis that:
- the High Court has no jurisdiction to deal with the claim under the Protection of Employment(Fixed Term Work) Act 2003;
- the only issue before the High Court was that of wrongful dismissal and he noted the entitlement of the employer to terminate the contract on the giving of reasonable notice and in accordance with the fair procedures;
- The NUIM was not bound by the Rights Commissioners ruling that Dr Buckley is entitled to a contract of indefinite duration pending the determination of the appeal;
- there was only a contract of employment in existence if Dr Buckley is successful in her appeal to the Labour Court;
- undertakings given to the Labour Court are not enforceable as a matter of law;
- Dr. Buckley had not made out a strong case for breach of contract/breach of the implied term of mutual trust and confidence and noted that she may be protected by the law of unfair dismissals or redundancy but that it is the EAT and not the High Court who have jurisdiction over those issues; and
- as the NUIM gave Dr. Buckley sufficient notice to terminate her contract and a strong case for breach of contract was not established, the application for injunctive relief was refused.
Labour Court Determination
NUIM claimed there was never an employment relationship and argued that Dr. Buckley was an independent contractor. Dr. Buckley refuted this claim and relied on a technical breach of Section 8(2) of the Act. The objective grounds justifying the renewal of her contract on 26th October 2006 were provided only a month after the renewal of the contract. She claimed that as a result of this delay she became entitled to a contract of indefinite duration on the 30th September 2007. NUIM argued that should Dr. Buckley succeed in her claim that there was no alternative work available for her, that her research project was complete and as there was no vacant position that a redundancy situation would apply. The Labour Court firstly decided the issue of whether or not a contract of employment was in existence and found that there was. The Court found that the delay in providing objective grounds for not offering a contract of indefinite duration is a breach of a mandatory provision in Section 8(2) and cannot be overlooked. The Court awarded €2,000 compensation in respect of the breach of Section 8. The Court went on to find however that Dr. Buckley could not resign from her completion of the staff appointment form on the 10th October 2006 in which she completed the objective grounds for not providing her with a contract of indefinite duration. She subsequently entered into a contract in which the objective grounds were again stated including a provision that the funding which was provided was for a maximum of 2 years.
Practical implications of decision
In summary, this case confirms that an employer is entitled to use the issue of lack of funding as an objective justification for failure to renew a fixed term contract but must ensure that it does so before the renewal date. The practice of the NUIM of requesting the employee herself to complete the objective justification section of the application form for a renewal of her contract, even if it was on their instruction, proved beneficial to them in this instance.
The High Court decision confirms the entitlement of an employer to treat the employee's contract of employment as having ended, notwithstanding an outstanding claim. In other words there is no obligation on an employer to continue to treat a fixed term worker as an employee pending the outcome of a claim under the Protection of Employment (Fixed Term Workers) Act 2003. Finally, the High Court decision sits neatly with Ms Justice Mary Laffoy's recent decision in Nolan v EMO Oil Services Limited in refusing jurisdiction in cases where the relevant legislation is clear that such claims are subject to the jurisdiction of either the EAT, Labour Court or Equality Tribunal.