Labour Court Ruling on Fixed Term Contract Case - The Dublin Institute of Technology v Stephen Nealon (26/06/2012)

The Dublin Institute of Technology v Stephen Nealon,

Determination of the Labour Court No FTD 126

The complainant was an hourly paid, part-time, assistant lecturer at DIT.  His employment began in 2005 and was renewed annually until 2011. In accordance with Section 8 of the Act, each of the fixed term contracts contained a statement of the objective grounds relied upon for renewing of the contract for a fixed term and the failure to provide the claimant with a contract of indefinite duration. 
 
The Section 8 statement for 2007 and 2008 said “The Institute is offering you a renewal for a fixed term rather than a contract of employment of indefinite duration because the nature of the position is dependent on teaching hours being available and the continuation of the programme on which you teach”. 
 
The Section 8 statement for 2009 and 2010 said “The Institute is not in a position to offer you a permanent position as it is subject to State control as set out in the Moratorium on Recruitment in the Public Service.”

DIT tried to argue that contrary to what was said the Section 8 statement in 2009 and 2010 the real reason for the renewal was a fall off in demand for the courses which the claimant was employed to teach.

The Court said that the purpose of Section 8 is not just to ensure that a fixed term employee is informed of the reason why his/her contract is being renewed, it is intended to ensure that the employer definitively commits itself, at the point at which the contract is being renewed, to the grounds upon which it will rely subsequently when pleading a defence under Section 9(4) i.e. objective justification.
 
The CJEU case of Lommers 476/1999 is authority for the proposition that a plea of objective justification must be strictly construed against the person by whom it is invoked. In this case, the grounds now relied on by the Institute were not referred to in the notice provided to the claimant pursuant to Section 8 of the Act. In those circumstances, the Court concluded that the reasons now relied on by the respondent to justify the renewal of the fixed term employment beyond that four year period were not the actual or operative reasons for the impugned renewal. 
 
FTD126 DIT (IBEC) - and - Stephen Nealon (TUI)
    
For further information please contact Jacqueline Kelly at jakelly@algoodbody.com.

Date published: 26 June 2012