Fixed Term Worker – Was backdated contract an attempt to avoid the Unfair Dismissal Acts?

The case of Gerard Kemmy v Amgen Technology (Ireland) t/a Amgen [UD1979/2013] concerned a claim for unfair dismissal in respect of a fixed term work contract.Preliminary IssueBy way of preliminary submission, the respondent contended that the claimant’s employment had come to an end in May 2013 in accordance with his fixed term contract and therefore the Tribunal had no jurisdiction to hear the claim.The claimant contended that the last fixed-term contract the claimant had been on was preceded by a period of six months when the claimant was working without any written contract as the previous fixed-term contract expired on 30th November 2011. In May 2012 the respondent issued a fixed-term contract to the claimant to cover the period of 30th November 2011 to 16th May 2013 which the claimant signed. The claimant argued that this contract was an attempt by the respondent to avoid its obligations under the Unfair Dismissals Acts.Respondent’s Submission on Preliminary IssueThe claimant commenced employment on 15th March 2010 as a QC Biotechnology Analyst within the Biologics department of ‘Company A’ pursuant to the terms of a one year fixed-term contract entered into between the parties on 3rd March 2010. The claimant subsequently signed acceptance of a change in terms and conditions on 11th March 2011.On 15th April 2011 the Claimant accepted the terms of a new fixed term contract of employment as a QC Biologics Analyst with Company A with a retrospective commencement date of 14th March 2011 and a termination date of 30th November 2011.In or around 16th May 2011 the business of Company A was acquired by the Respondent and under the “TUPE Regulations all of the rights and obligations arising from the Claimant’s contract of employment transferred to the Respondent.The Claimant was subsequently offered and accepted a new fixed term contract on 31st May 2012 covering the period 30th November 2011 until 16th May 2013.On 1st March 2013 the Claimant was given notice by his supervisor that his contract would not be renewed past 16th May 2013 and the claimant met with the respondent to discuss opportunities on site and he was furnished with contact details for recruitment agencies.The Respondent submitted that there was a preliminary issue to be determined which was whether the provisions of the Unfair Dismissal Acts apply to the contract of employment between the Claimant and the Respondent as the final contract contained the following terms:“You should note that the Unfair Dismissals Acts 1977 to 2007 shall not apply to a dismissal consisting only of the expiry of this fixed term contract without it being renewed.”The Respondent accepted that there was a period from 30th November 2011 until 31st May 2012 when the Claimant had no written fixed-term contract of employment. However, the Claimant voluntarily entered into a contract of employment on 31st May 2012 and the Respondent stated he did so free from duress. The respondent stated that the claimant also knew that the nature of his employment was fixed-term and section 2(2)(b) of the Unfair Dismissal Acts applied as the criteria excluding the unfair dismissal acts were included in the contract.On the authority of Ó’Cuinneagáin v Guardian Angels National School and in circumstances where the Claimant’s contract of employment complied with the conditions set out in section 2(2)(b) of the Unfair Dismissal Acts, the Respondent submitted that the Unfair Dismissal Acts did not apply to a dismissal consisting only of the expiry of the term without its being renewed under the said contract.The Respondent also denied that it was required to provide the Claimant with statutory notice of the termination of his employment in circumstances where he was employed on a fixed-term basis and the employment terminated on the expiry of the fixed-term contract.Without prejudice to the foregoing, the Claimant was given notice on 1st March 2013 that his fixed-term contract would not be renewed on its expiry on 16th May 2013.The Respondent submitted that the Tribunal had no jurisdiction to hear the Claimant’s complaint under the Uunfair Dismissal Acts as the Claimant’s last fixed-term contract of employment specifically excluded the application of the Acts on its expiry in accordance with the conditions set out in section 2(2)(b).Claimant’s Submission on Preliminary IssueIt was the Claimants contention that he was in continuous employment with the Respondent within the meaning of Schedule One of the Minimum Notice and Terms of Employment Act 1973 and by extension within the meaning of the Unfair Dismissals Acts 1977 -2007, from the 15th March 2010 to the 16th May 2013. He contended that his dismissal was in breach of Section 2 of the 1977 Unfair Dismissals Act (as amended) and in breach of Sections 6, 8, 9 and 14 of the Protection of Employees [Fixed-term Work] Act 2003.The claimant further contended that he was in continuous employment from the 15th March 2010 until the 16th May 2013 and that the Respondent’s purported attempt to alter his employment status by writing to him on the 23rd May 2012 with “a renewal of your fixed term contact from 30 November 2011 to 16th May 2013 [the “Extended Date”)” was an attempt to avoid their obligations under Unfair Dismissals Acts 1977-2007 and the Protection of Employees (Fixed Term Work) Act 2003.The claimant also contended that his employment transmuted from a fixed term contract to a contract of indefinite duration by operation of law following the expiry of his second fixed term contract at the 30th November 2011.Determination on Preliminary IssueThe Tribunal determined that the claimant knew from previous years that his contract was on a fixed term basis and that he entered into a third contract in respect of the period 1st December 2011 to 16th May 2013 on 31st May 2012 and did so without pressure. The Tribunal further noted thatthe fact that an argument was made that he was asked to sign a back-dated contract in an effort to avoid the Unfair Dismissals Act may have been sustainable if he had been dismissed during that period, however that was not the case and therefore the Tribunal had no jurisdiction to hear the claim.