Rights under the Fixed Term Work Act 2003

L

litmus

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Hi there, I'm a long time lurker, first time poster.

I've checked the relevant threads already posted on this forum regarding fixed term contracts but it is a particular technicality of the Protection of Employees (Fixed Term Work) Act (2003) that I need clarification on.

I am employed by a large organisation and my original contract beginning March 2002 was for 2 years. On its expiry in March 2004, it was renewed for another two years. Both contracts were fixed term waiver contracts which specified that the Unfair Dismissals Act would not apply to dismissal consisting solely of the expiry of the contract. I should add that the work I undertake is not project or deadline based, rather I fill a position in my section of the organistation where the work is continous and routine. In fact a colleague of mine has the exact same job description as me but is a permanent employee.

The renewal of March 2004 comes after the 14 July 2003 implementation date of the Fixed Term Workers Act (2003) which is where I am getting confused as to my rights under the Act. The act states:

Where on, or after the passing of this Act (14 July 2003), a fixed term employee completes or has completed his or her third year of continuous employment with his or her employer or associate employer, his or her fixed term contract may be renewed on only one occasion and any such renewal shall be for a fixed term of no longer than one year.

As I will have 4 years continous service completed in next three weeks (March 06) am I right in thinking that they cannot offer me another fixed term contract and that they either have to make me permanent or dismiss me on expiry of the contract?

If I am dismissed and within, for instance, 6 months, another person is hired to fill my position, does the Unfair Dismissals Act then apply to me, as it would be clear that the renewal and the dismissal were ways to avoid making me permanent?
 
Have you tried the DETE Employment Rights section to get information about your statutory rights in this situation? I had cause to contact them a few years ago in a redundancy situation and found them very responsive and helpful.
 
Thanks for that link ClubMan; I downloaded a very useful explanatory booklet on the Act in question. It will take another couple of weeks to sort out where I stand but I'll add to this post if any resolution to the problem occurs for other readers' information.

In the meantime if anyone else has had recent experience of this Act or fixed term contract disputes, please reply!
 
The position is that you can be offered one more contract of a fixed duration of up to one year. At the end of this additional contract, you can only be offered a contract of indefinite duration. By definition, this contract cannot have an end date. The only grounds open to an employer to terminate the contract at this stage is on 'objective grounds'.

The law (which is VERY poorly drafted imo), is completely vague on what objective grounds are. Some of the few cases that have gone to court (or a rights commissioner) have stated that objective grounds include where a fixed term worker has been working on a particular project and the project comes to an end.
 
Thanks tallpaul. I agree entirely with you re the vague wording of the Act when it comes to 'objective grounds'. I was not employed to complete a particular project or to achieve something by a certain deadline, so hopefully that will stand in my favour. I fill a post that has continuous responsibilites and have a 'comparable permanent employee' working alongside me.

I'm disappointed to think that if they do renew me for another year, I'll have to deal with all this again next year :(
 
Re: Rights under the Fixed Term Work Act 2003 - Update

I just thought I'd post an update for anyone browsing for this subject in the future.

After a lot of to-ing and fro-ing, they decided that a permanent job was needed in the area I work in, and management duly signed off on the matter and put the post forward to be advertised. This would have meant me competing for the job along with anyone else that applied.

Having discussed the situation with my union, they agreed that as I was already in the post for 4 continuous years that I was to be offered a permanent contract outright. So in effect I personally became permanent rather than the position if this makes any sense?

Anyway all's well that ends well as they say.
 
In addition there is an Anti Abuse provision under the Unfair Dismissals Acts 1977 - 2001.

Where an employee is employed on 2 or more fixed terms contract, for same or similar work where there is a break of less than 3 months between contracts they are protected under the unfair dismissal acts.

In the event of dismissed on the expiry of the second or subsequent contracts you are protected under the unfair dismissal acts and a redundancy situation may exist.

Using such a waiver in the second or subsequent contracts carry little weight as the company would be seen to partly or wholly trying to avoid liability under the act. (that the Unfair Dismissals Act would not apply to dismissal consisting solely of the expiry of the contract)
 
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