Fixed Term Contracts, Funding and Unfair Dismissal

In last month’s reported employment appeals tribunal cases, the tribunal was asked to consider in Patrick Fournet v NUI Galway UD 1262/2011 MN 1367/2011 whether the claimant had been unfairly dismissed from his post when funding ceased for his role.BackgroundThe claimant commenced employment with the respondent in 2004 on a fixed term contract concerning post doctoral research with NCBES. The contract was effective from 1st October 2004 to 30th October 2006. the funding for the contract arose from various sources including semi states. In July 2006 a second “full-time specific purpose contract research appointment” was confirmed from 1st September 2006 to 21st July 2008 “at which date the contract will cease due to cessation of funding for this project”. On 11th September 2008 the claimant was issued with a contract of indefinite duration (CID) with NCBES as post doctoral researcher from 1st October 2008. In 2009 apparent funding on the project ceased and on 18th October 2009, an email was submitted to the claimant’s supervisor stating that funding could be renewed or terminated on the project the claimant was working on. If funding was terminated, the claimant would be made redundant however it was confirmed that the claimant’s post would be renewed. On 27th January 2010 the same email was sent again and it was confirmed funding would continue. In February 2011 the claimant was advised that his CID would expire on 31st March 2011 and he was also asked to submit an up to date CV in order for the respondent to seek alternative employment for him. The claimant was made redundant on 31st March 2011.The respondent’s human resources manager confirmed that the claimant was made redundant as funding has ceased. He also confirmed that the LIFO (last in first out) method of selection was not used and the claimant’s role was not compared to that of his peers to determine whose role would be made redundant.DeterminationThe EAT looked at the elements of the definition of redundancy as set out in the Redundancy Payments Act 1967 (as amended). In addition the Tribunal noted that Section 10(b) of the Redundancy Payments Act 1971 (as amended) provides that “an employee who has been dismissed by his employer shall, unless the contrary is proved, be presumed to have been dismissed by reason of redundancy”.The Tribunal noted that the claimant’s role was clearly dependent on funding and the claimant conceded this. In addition it noted:1. On 21st October 2009 snd 27th January 2010 an email in relation to funding and an extension of the claimant’s contract was sent. Both times funding was secured and the claimant’s contract renewed.2. On 28th February 2011 the claimant was notified that his contract would expire on 31st March 2011 and asked to submit a CV. The respondent sent the claimant’s contract to various departments in an attempt to seek alternative employment.3. The claimant argued that his CV was not sent to every source and others should have been selected before him. The Tribunal noted however that the claimant was skilled in a specific area and “employed for a specific purpose and that specific purpose was funding dependent…the respondent was obliged in law to make reasonable efforts to secure alternative employment for the employee…….the respondent is not obliged to make some other employee redundant in order to give the position to the claimant……..the respondent is not obliged in law to make arduous efforts exhausting every single possibility available…..the respondent did make reasonable attempts to secure alternative employment for the claimant and their shortcomings in this regard are not as such as to render the redundancy an unfair dismissal…….the claimant was informed adequately that due to the cessation of funding his position was going to be made redundant“.The Tribunal concluded that the claimant’s claim for unfair dismissal must fail as a result.