Fixed and Part Term Contracts
The Protection of Fixed term and part time workers has been regulated by statute for some time now, however the laws are complex and unwieldy. We are seeing more and more of these claims particularly in the Public Sector.
There is a place for Fixed term contracts, however as a fixed term worker you are entitled to be treated in the exact same manner as your permanent colleagues. Employers cannot use fixed term contracts to avoid an employee’s right to a contract of indefinite duration or permanent contract.
Similarly, part time workers should not be treated differently simply because of their part time status. Read on to find out more about your rights…
Protection of Fixed Term and Part Time Employees
The Protection of Employees (Fixed Term Work) Act 2003 was introduced on the 14th July 2003.
The main purpose of this Act is to ensure that fixed term workers are not treated less favourably than comparable permanent workers.
This Act defines a fixed term employee as a person who has entered into a contract of employment with an employer where the end of the contract is determined by an objective condition such as arriving at a specific date or completing a specific task.
The Act provides that a fixed term employee shall not be treated in a less favourable manner in respect of his/her conditions of employment than a comparable permanent employee. For example overtime payments and holiday entitlements.
Fixed term employees must be aware that under this Act an employer cannot employ an employee on a series of fixed term contracts indefinitely.
Once a fixed term employee completes or has completed three years continuous employment with the employer, the employer may then only renew the contract for a fixed term on one occasion only and that renewal may be for a period for no longer than one year.
An employer is also obliged to provide the employee with the objective reasoning why they are only renewing the contract on a fixed term basis. If the employer fails to properly follow the prescribed procedure in renewing the contract, the employee could be entitled to a contract of indefinite duration.
So what does the Act say?
Section Eight of The Protection of Employees (Fixed Term) Work Act 2003
Under Section 8 (2) of the Act, a fixed term employee is defined as a person having a contract of employment entered into directly with an employer where the end of the contract is determined by an objective condition, such as the arrival at a specific date, the completion of a specific task or the occurrence of a specific event.
Section 8 of the Act confers an entitlement upon fixed term employees to be informed in writing as soon as practicable by the employer of the objective condition determining the contract, whether that condition is the arrival of a specific date, completion of a specific task, or the occurrence of a specific event.
Section 8 (1) specifically requires the employer to inform the employee in writing as soon as practicable of the objective condition determining the contract.
Section 8 (2) provides that where the employer proposes to renew a fixed term contract, the fixed term employee shall be informed in writing by the employer of the objective grounds justifying the renewal of the fixed term contract and the failure to offer a contract of indefinite duration, at the latest by the date of the renewal.
In Galway City Council –v- Mackey FTD065 23rd June 2006 the Labour Court has characterised these provisions as a mandatory provision admitting of no exceptions.
In the case of Management of North Dublin Muslim School –V- Naughton FTD 0811 21 May 2008 the Labour Court has observed that there is a requirement to give the information in writing and this is imposed so as to avoid the type of uncertainty or misunderstanding that can occur with verbal communications.
In Clare County Council –v- Power FTD 0812 4th June 2008 it was established that such a breach will automatically entitle an employee to a contract of indefinite duration and the employer’s contention that its breach of Section 8 was merely ‘a technical breach and was not motivated by any bad faith’ was rejected.
Finally in HSE –v- Ghulam FTD089 12th May 2008 the Labour Court noted that; “There is no doubt that a failure to provide such a statement is a breach of the provisions of the Act”
Section Nine of The Protection of Employees (Fixed Term) Work Act 2003
Section 9 (1) of the Act provides that where a fixed term employee completes or has completed his or her third year of continuous employment then the fixed term contract may be renewed by the employer on only one occasion and any such renewal shall be for a fixed term of no longer than one year.
The aim of this Section is to guard against the potential abuse of successive fixed term contracts by employers.
Section 9 of the Act prevents the renewal of a fixed term contract which effect is to bring the aggregate period of such periods to more than four years, except where there are objective grounds for renewal.
Section 9 (2) provides that where a fixed term employee is employed on two a more continuous fixed term contracts and the date of the first such contract is subsequent to the date on which the Act was passed, the aggregate duration of such contracts shall not exceed four years.
Where any term of a fixed term contract purports to contravene Section 9 (1) or Section 9 (2) that term shall have no effect and the contract concerned shall be deemed to be a contract of indefinite duration.
Section 9 (3) provides that once the four-year threshold has expired then the fixed term contract is transmuted into a contract of indefinite duration by operation of law, unless there is an objective justification for not ordering the status of the contract in this way.
The effect of Section 9 then is to transmute the fixed term contract into a contract of indefinite duration.
In Health Service Executive FTD 60 to 70 of April 2006 the Labour Court held that the measure must firstly meet a real need of the employer; secondly the measure must be appropriate in the objective which presumes; lastly, the measure must be necessary in order to achieve that objective. S complaint to the rights Commissioner was entered on the 3rd February 2011 and relates to all contracts within particular the contract 01st July 2010 to 30th September 2010.
The Act states that where a fixed term contract is to be renewed then the employer must provide the employee with the objective reasons justifying the renewal and essentially justifying the decision not to provide a contract of indefinite duration.
Section 7 (1) of the Act states that the grounds relied upon must be justified as being the purpose of achieving legitimate objectives of the employer and that such treatment must be appropriate and necessary for that purpose.
Protection of Part Time Employees
The law relating to part time workers in Ireland was drastically changed by the introduction of this 2001 Act, which was was long overdue in Irish Employment Law.
This Law states that part time employees will not be treated less favourably than comparable full time employees doing the same type of work. For example overtime payments and holiday entitlements.
This Act applies to any part time employee working under a contract of employment or apprenticeship, employed through an employment agency or holding office under, or in the service of the state.
The Protection of Employees (Part Time Work) Act 2001 also makes a provision for part time employees working on a casual basis.