A recent Workplace Relations Commission (‘WRC’) decision in the case of Amy Farrell v An Garda Síochána (ADJ-00036366) has brought the features of fixed-term contracts into focus. The Complainant had raised a complaint under the Protection of Employees (Fixed-Term Work) Act 2003 (the ‘Act’) for not having received a contract of indefinite duration many years after starting work with the Respondent.

Background

The background to this case is that the Complainant had been a ‘relief’ cleaner on commencing her employment with the Respondent in 2016.  In 2016 and 2017, she worked in different stations.  From 2017 onwards she worked 37 hours per week consistently during the same days of the week.  She did not receive any of the benefits which the permanent cleaners were entitled to, such as incremental credit, paid sick leave or other leave entitlements. She had raised the issue of receiving a contract of indefinite duration with the Respondent.  The Respondent did, albeit somewhat belatedly, offer her a contract of indefinite duration in 2023.  That contract was backdated to take effect from 1 April 2019 and to afford incremental credit from that date meaning that the Complainant was on point 5 of the cleaner scale with effect from 1 April 2023.  The Respondent alleged that as the matter had been resolved satisfactorily that any further penalty on the Respondent would have been disproportionate.

What does the legislation say?

The Act was introduced in 2003 in order to ‘implement the provisions of Directive 1999/70/EC of the Council of the European Union concerning the Framework Agreement on Fixed-Term Work’.  The Act did so in order to prevent fixed-term workers from being treated less favourably than comparable permanent employees, and also to ensure that employees were not receiving successive fixed-term contracts.

It is worth highlighting that in this case, a claim had been brought under section 9 of the Act.  This relates specifically to the issue of successive fixed-term contracts and to the fact that there will be a contract of indefinite duration where rules around fixed-term contracts have not been complied with.  The claim did not relate to being treated less favourably to a permanent employee.

Essentially, the Act provides that, where a fixed-term employee is employed on two or more continuous fixed-term contracts, the total duration of such contracts shall not exceed 4 years.  The Act then provides that where any term of a fixed term contract contravenes this provision, the term of the contract has no effect and the contract concerned is deemed to be a contract of indefinite duration.

What constitutes a fixed-term contract?

The adjudication officer considered the question as to whether the Complainant was actually on a fixed-term contract and in turn whether she had standing to bring this complaint against the Respondent.  The adjudication officer focused on section 2 of the Act, which defines a fixed-term employee:

“… a person having a contract of employment entered into directly with an employer where the end of the contract of employment concerned is determined by an objective condition such as arriving at a specific date, completing a specific task or the occurrence of a specific event but does not include –

(a) employees in initial vocational training relationships or apprenticeship schemes, or

(b) employees with a contract of employment which has been concluded within the framework of a specific public or publicly-supported training, integration or vocational retraining programme;” (emphasis added)

Generally speaking, a commonly used example of a fixed-term contract would be a maternity cover contract or a contract spanning a particular project.

Outcome

There did not appear to be documentation relating to the employee’s role.  There was a suggestion that there was a panel of cleaners but neither side explained how it worked.  The adjudication officer noted that originally the employee went to different stations between 2016 and 2017.  She noted that on the one hand this could have been various fixed-term contracts or alternatively one single contract, which did not have a determining objective condition and that any periods where the complainant did not work was essentially periods of lay-off.

She noted that the employee had different terms of employment compared to other staff and that she felt she could be replaced by the respondent because she was a relief cleaner.  However these did not amount to the definition of a fixed-term employee.  In other words, the adjudication officer could not see evidence that the employee’s contract was determinable by an objective condition such as reaching a specific date, completing a specific task or the occurrence of a specific condition.

Therefore the complaint was not considered to be well-founded as the employee did not fall within the definition of a fixed-term employee and did not have locus standi to bring the complaint.

Conclusion

The facts of this case are a little unusual, and perhaps oddly, the fact there did not appear to be an original contract of employment was of benefit to the complainant here.  There was no clear identifying factor which suggested that the employee was on a fixed-term contract as defined in the legislation – even though it does appear that both parties seemed to be of that belief, culminating in the Respondent offering a contract of indefinite duration and increasing the employee’s grade.

Nonetheless the case serves as a reminder that a fixed-term contract has a specific definition, and the mere existence of ad-hoc arrangements may not alone constitute a fixed-term agreement.  It will be important to have an objective condition such as the completion of a specific date, task or the recurrence of a specific condition.

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