Contract not being renewed due to CID/permanency - can I do anything?

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Sive

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Hi, I will be 4 years in my current job at the beginning of October. I'm on an annual rolling contract from 1st Jan - 31st Dec. This year however my contract was issued from 1st Jan - 30th Sept, 4 days short of my 4 years. My contract is not being renewed, ostensibly because of the lack of work. There has been no change to my or my colleagues workload, if anything we are busier than ever. We have not lost any contracts, we have in fact been granted quite a substantial one. To me it seems obvious that my contract is not being renewed because of the issue of permanency. Have I any recourse? It doesn't help that I'm 22 weeks pregnant. Any help much appreciated!!
 
I would put a grievance in, citing what you put in your post and noting that you believe they re trying to avoid keeping you on because of your pregnancy. You may want to give the Equality authority a call too.

You have been working for more than a year, so it may well be that you re being unfairly dismissed. The fact that you are pregnant puts the company on very shaky ground, unless they have a cast iron proof that there is no work for you (such as having lost major contracts themselves).
 
Thanks for your response Diziet. I have already brought the fact that I'm not happy about it to their attention and their response was unsatisfactory. That is a greviance procedure of sorts. It would be the same people reviewing any greviance I brought so no point really.

I contacted NERA today who were very helpful and have advised me to refer it to a Rights Commissioner, as soon as I get the relevant forms that is what I will do. I don't think my pregnancy helped my case but I don't think it is the reason they refuse to renew my contract. It is solely to avoid the issue of permancy and the fact that another contract would be viewed as a contract of indefinite duration (CID), as one very senior manager said to me: "we don't do permancy!"

Will post an update when I can in case it helps anyone in a similar situation!
 
Sive said:
I have already brought the fact that I'm not happy about it to their attention and their response was unsatisfactory. That is a greviance procedure of sorts. It would be the same people reviewing any greviance I brought so no point really.

I contacted NERA today who were very helpful and have advised me to refer it to a Rights Commissioner, as soon as I get the relevant forms that is what I will do. I don't think my pregnancy helped my case but I don't think it is the reason they refuse to renew my contract. It is solely to avoid the issue of permancy and the fact that another contract would be viewed as a contract of indefinite duration (CID), as one very senior manager said to me: "we don't do permancy!"
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I would advise you to read the grievance procedure and raise a formal grievance adhering strictly to the process. The reason is that, if you don't, then this is the first thing the company is going to say to wriggle out of a dispute - "she did not raise a grievance according to he formal process". So, even though it may simply be a paper exercise and reviewed by the same people, it is absolutely essential that you do it.

The rules are not as simple as 'its under 4 years so no permanency' so i think the company is on shay ground anyway. The fact that you are pregnant strengthens your case - you say that you 'don't think the pregnancy helped your case'. So if the company get rid of you they don't have to deal with maternity leave, and avoid having to issue a permanent contract too!
 
Sive, what sector are you in?
Is there a union?
Are one year rolling contracts the norm?
 
Thanks again Diziet, I hadn't really thought of that. Will review the greviance procedure when I'm back in the office.
Purple - I'm not a member of a union tho' I believe some staff members are. It's a third level institute and as far as I know rolling contracts are only the norm in recent years. I'd be the first to reach the 4 year mark since the Act was brought in in 2003.
Will keep you posted.
 
So because there is little or no labour flexibility once people are permanent the employer feels they are forced to keep people on rolling contracts. This is a common problem and hurts both employees and employers. It's a very difficult situation for you, you have my sympathies. I expect this to become a political/legal issue over the next few months as more people in state/ quasi-state jobs find themselves in your position. As an employer if I knew that when I made someone permanent it would be almost impossible to get rid of them I would also try to keep everyone on a rolling contract as inflexibility of labour is one thing that will almost certainly kill a company.
 
Third levels institutes are notorious for their use and abuse of temporary contracts. Your position is not unusual (I have some experience with third level practices). There are people on temp contracts for twenty years, with no pension provision. This is not flexibility, this is abuse. It is entirely possible to make someone redundant if their funding is withdrawn, and a recent (2003 I think) EU directive forbids this type of rolling contract going or for over 4 years. They have to issue a standard contract after that. This does not mean it is a job for life, but it does mean similar rights to standard employees, and this is what your employer is trying to avoid.

I think you should talk to your union even if you are not a member. Depending on the outcome of the discussion, you should go to HR and explain your case, asking them to sort it out. If they are not helpful, ask for a copy of the grievance procedure and say that you intend to put in a grievance (and you have a strong bargaining card - the fact that you are pregnant, which IMO you should use because I can't help thinking that it is relevant). Is this new contract the case with everybody in the department? Talk to your colleagues. If they are doing this as a matter of course, then they are deliberately subverting the regulations, which can be challenged. Get your facts together - is there a chance in the funding and contracts that they are relying on to get rid of you? Back up any relevant electronic information from you inbox etc and keep it AWAY from the office.

I think some third level institutes have some of the worst employment practices around. However, I have known people who have challenged this and have been kept on, so it is worth challenging. Your union is the first step, and just do a search in the labour court archives to see if there are cases similar to yours - then you can cite in any grievance.

The other aspect of this is whether you want to stay in the academic world or not - what I am saying is you can walk away or challenge this, and the decision is your own personal and career choice. You should not do it for reasons of principle, but for personal and career ones, and depending on your circumstances, you might choose to walk away and do something better.

Whatever you do, make sure you do it while you are still an employee. Things get considerably more difficult once you are out of the door.

Good luck,

Diziet
 
Diziet, I really appreciate you taking the time to answer my posts. My problem is that HR is one person who I have already spoken to on this subject on 2 separate occasions, getting nowhere, this is ongoing since just before Christmas. My manager is telling me one thing and the HR Manager is telling me another. I have to assume that one or both of them is lying. I've also checked the Greviance Procedure and it could take months. There are 5 stages and the final stage before external reference (appeal to the governing body) has no time limit on it. I have started this but now I wish I hadn't. Due to my previous dealings with both managers I have no faith in either. For example I received a memo yesterday from HR Manager summarising a meeting we had last Friday. It stated something completely different to what he told me on the day. I'm wondering can I now suspend the internal greviance procedure and just go ahead with referral to a Rights Commissioner? Is it a legal requirement to try to sort things internally? I'm 23 weeks pregnant, very stressed and possibly hormonal, I'm not sleeping. Other academic colleagues within the department have stopped speaking to me and work feels impossibly arkward on a day-to-day basis. I was afraid to take today off sick even though I feel distinctly under the weather as I was worried how it would look considering all that is going on. I feel distinctly isolated, bullied and victimised and am at a loss as to where to turn. Where are you supposed to go when your problem is with HR?
My fellow admin colleagues in the department are here 11 years and 16 years respectively so are unaffected by this.
 
Give the Rights Commissioner office a call and ask. Your pregnancy means that there is time pressure. There is no point in withdrawing the grievance I don't think, it would do more harm than good. When does your contract end?

The EU directive is called the Protection of Employees fixed term workers directive 1999. Look it up - it is very informative and in fact the trade union IMPACT have just won a case on it on the European court recently. It is not legitimate to structure contracts purely to avoid complying with the directive so call the Rights Commissioner office today and explain your case. Did you talk to the union rep?

The other option is a call to the Equality Authority, who would be able to advise you. Your employer would have to have a cast iron reason for getting rid of you prior to your maternity leave.

One final option - to consult a solicitor, request a meeting with HR with your solicitor present and get solicitor to push them.
 
Sive said:
My problem is that HR is one person who I have already spoken to on this subject on 2 separate occasions, getting nowhere, this is ongoing since just before Christmas. My manager is telling me one thing and the HR Manager is telling me another. I have to assume that one or both of them is lying. I'
Click to expand...

If you're getting mixed messages, try getting both of them into the same room/meeting/conference call, and point out the discrepancies in their position.
 
Don,t get too stressed, you have bigger fish to fry !!!


Whats CID ???

what would be an acceptable outcome for you ??

My advise is to document / bulletpoint reasons you believe have led to htis situation.

1. No one else released

2. Any new employees

3. No decrease in work

4. Non Union member ( easier to dispose of)

et al ..

http://www.flac.ie

speak to good industrial relations lawyer, as you will be midway through Maternity leave they will still pay, so deadline is start of 2009.
 
Sive,

The previous posters have set a number of potential routes of redress. Persoanlly, I don;t think they are legally valid. These are my reasons why:

Claim under Fixed Term Work Act 2003:

After 4 years continuous service, under the Fixed Term Work Acts 2003, a fixed-term worker can generally assert a right in law to a permanent contract.

However, contrary to the other posts in this thread, there is nothing preventing an employer from ensuring that an employee does not become permanent. This may be acheived by prior planning to ensure that a person's service comes to an end before the 4 year threshold is reached.

Whilst there a provision in the 2003 Act effectively outlawing any agreement put forward by an employer that seeks to sidestep their obligations under the 2003 Act, this provision relates to clauses inserted into a contract stating "The 2003 Act shall not apply" etc. This does not arise where the term of a contract merely expires prior to an employee attaining 4 years continuous service.

There is little difference between this concept and residential lease agreements that are designed to expire just prior to 4 years of continuous occupation by a tenant, so that a landlord can insure that a tenant cannot then claim any of the rights and benefits arising under Part 4 of the Residential Tenancies Act.

Claim under Unfair Dismissals Acts

Whilst it is unlikely that you can assert any right under the 2003 Act, you may be able to claim unfair dismissal under the Unfair Dismissals Acts on the basis of the fact that you have more than one year's continuous service.

However, you will need to check your employment contract to see if there is a specific clause relating to the unfair dismissals acts and, in particular, a clause that states the Unfair Dismissals Acts will not apply for a termination of employment arising solely by reason of the expiration of the contract.

Under the Unfair Dismissals Act 1993, the insertion of such a clause is a cast iron defence for an employer against any claim of unfair dismissal by a fixed term worker - where such claim relates to their dismissal arising from their contract running out of time. However, such a clause must be explictly set out in a contract for an employer to rely on this "carve-out".

Claim under Equality grounds / Maternity Protection Acts:

The issue of your pregnancy is nothing more than an unfortunate coincidence. There is no suggestion that pregnancy was on the cards when you entered into your current contract. As such , there is clearly no link between the expiry of your contract and the fact that you are now pregnant. This rules out a claim under the Maternity Protection Acts.

Nothing you have said suggests that any other fixed-term worker is being kept on and made permanent.The only basis for an equality claim on the grounds of family status/gender would be if you were treated differently than another comparable employee who was not pregnant (or who was male).

Conclusion:

In light of the above, I would suggest that the only possibility for a claim would arise if your contract does not include an Unfair Dismissals Acts "carve-out".
 
<... As such , there is clearly no link between the expiry of your contract and the fact that you are now pregnant. ...>


There may however be a link between refusal to renew (given that the workload has not changed) and the OP's pregnancy.
 
Diziet,

The point is that any reason for their refusal to renew is irrelevant from a legal perspective. If there is an Unfair Dismissals carve-out, the employer does not have to give any reason for non-renewal bar the expiration of the term of the contract.
 
NiallP said:
Sive,

The previous posters have set a number of potential routes of redress. Persoanlly, I don;t think they are legally valid. These are my reasons why:

Claim under Fixed Term Work Act 2003:

After 4 years continuous service, under the Fixed Term Work Acts 2003, a fixed-term worker can generally assert a right in law to a permanent contract.

However, contrary to the other posts in this thread, there is nothing preventing an employer from ensuring that an employee does not become permanent. This may be acheived by prior planning to ensure that a person's service comes to an end before the 4 year threshold is reached.

Whilst there a provision in the 2003 Act effectively outlawing any agreement put forward by an employer that seeks to sidestep their obligations under the 2003 Act, this provision relates to clauses inserted into a contract stating "The 2003 Act shall not apply" etc. This does not arise where the term of a contract merely expires prior to an employee attaining 4 years continuous service.

There is little difference between this concept and residential lease agreements that are designed to expire just prior to 4 years of continuous occupation by a tenant, so that a landlord can insure that a tenant cannot then claim any of the rights and benefits arising under Part 4 of the Residential Tenancies Act.

Claim under Unfair Dismissals Acts

Whilst it is unlikely that you can assert any right under the 2003 Act, you may be able to claim unfair dismissal under the Unfair Dismissals Acts on the basis of the fact that you have more than one year's continuous service.

However, you will need to check your employment contract to see if there is a specific clause relating to the unfair dismissals acts and, in particular, a clause that states the Unfair Dismissals Acts will not apply for a termination of employment arising solely by reason of the expiration of the contract.

Under the Unfair Dismissals Act 1993, the insertion of such a clause is a cast iron defence for an employer against any claim of unfair dismissal by a fixed term worker - where such claim relates to their dismissal arising from their contract running out of time. However, such a clause must be explictly set out in a contract for an employer to rely on this "carve-out".

Claim under Equality grounds / Maternity Protection Acts:

The issue of your pregnancy is nothing more than an unfortunate coincidence. There is no suggestion that pregnancy was on the cards when you entered into your current contract. As such , there is clearly no link between the expiry of your contract and the fact that you are now pregnant. This rules out a claim under the Maternity Protection Acts.

Nothing you have said suggests that any other fixed-term worker is being kept on and made permanent.The only basis for an equality claim on the grounds of family status/gender would be if you were treated differently than another comparable employee who was not pregnant (or who was male).

Conclusion:

In light of the above, I would suggest that the only possibility for a claim would arise if your contract does not include an Unfair Dismissals Acts "carve-out".
Click to expand...
That is the sort of clear, well laid out post that makes AAM so good.
Excellent stuff NiallP
 
I agree post was good, and because law favours employer is reason to look at circumstances they terminated contract.

Is this a common practice, or is it due to pregnancy ..
 
Thanks for post NiallP, not much positive in it for me as there is indeed a clause stating that the Unfair Dismissals Act does not apply in my contract.

Internal process still ongoing and will probably take a few more weeks to get thru', will decide what I can do if anything during that time.

Thanks to you all for your posts!!
 
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