Murdoch's Term of the Week: Fixed-Term Contract

Fixed-Term Contract:

Unfair dismissal legislation does not apply to fixed term contracts of employment where the dismissal consists only of the expiry of the term or cesser of the purpose: Unfair Dismissals Act 1977 s.2(2)(b).

However, s.2(2)(b) only applies where the fixed term contract specifically states that the 1977 Act shall not apply to a dismissal consisting of an expiry or cesser: Sheehan v Dublin Tribune Ltd [1992 EAT] ELR 239. Also an amendment in 1993 to s.2(2)(b) provides for the application of the Act to a dismissal where the employee is re-employed within three months of the dismissal and it is found that the entry by the employer into the subsequent contract was wholly or partly for the purpose of avoiding liability under the Act: Unfair Dismissals (Amdt) Act 1993 s.3(b). Also re-employment by the same employer not later than 26 weeks after the dismissal will not operate to break continuity of service (ibid 1993 Act s.3(c)).

A right to terminate a contract during its currency does not destroy the fixed term nature of the contract: O’Mahony v Trinity College [1998 EAT] ELR 159. See Cahill v Teagasc [1996 EAT] ELR 215; Earlie v Aer Rianta International CPT [1997 EAT] ELR 69.

One of the effects of the decision of the European Court of Justice in Adelener Ellinikos [2006 ECJ] IRLR 716, is that domestic legislation provisions cannot in themselves provide objective reasons for not complying with Protection of Employees (Fixed-Term Work) Act 2003 s.9(1).

In University College Hospital Galway v Awan [2008 LC] ELR 64, the Labour Court held that the fixed term contract issued to the claimant after his fourth year of continuous fixed-term employment became a CONTRACT OF INDEFINITE DURATION (qv).

The Labour Court has stated that a lawfully concluded fixed-term contract will not become one of indefinite duration because the objective grounds originally relied upon for its renewal cease to exist during its currency: Russell v Mount Temple Comprehensive School [2009 LC] ELR 81.

It has been held that Council Directive 1999/70 recognised that there were good reasons for maintaining fixed-term contracts in certain work areas and that the role of consultants in the medical care services was one of those work areas because while open competitions to fill permanent consultant posts were being conducted, it would be necessary to have those posts filled on an interim basis: HSE v Umar [2011] IEHC 146; [2011 HC] ELR 229.

The European Court of Justice has stated that aspects of Directive 1999/70 and the framework agreement were DIRECTLY EFFECTIVE (qv) and could be relied upon: Impact v Minister for Agriculture [2008] Case C-268/06; [2008 ECJ] ELR 181.




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