Lynch v University of Ulster (Breach of Contract) [2002] NIIT 2165_01 (21 June 2002)
THE INDUSTRIAL TRIBUNALS
CASE REF: 2165/01
APPLICANT: Edward Lynch
RESPONDENT: University of Ulster
DECISION
The unanimous decision of the Tribunal is that the respondent is liable to the applicant in respect of two months' salary on foot of a contract of employment between the applicant and the respondent less tax, deductions and allowances as hereinafter set out.
Appearances:
The applicant appeared in person.
The respondent was represented by Mr J R O McCullough
EXTENDED REASONS
- There was no dispute about the facts. The applicant became aware of a short-term post becoming available with the respondent through personal contact with a member of the University staff. He applied for the post, was interviewed for it and provisionally offered the job. He enquired as to what the salary would be and he was shown an advertisement, which had, apparently, been placed internally within the University. That advertisement referred to a "temporary three month post". It stated that the University was "seeking a temporary consultant for an initial period of three months" and showed a salary within the range of £16,286-£23,256. According to the papers in the case the applicant's statement that his gross salary was £17,755 per annum was correct. Having seen the advertisement the applicant accepted the post and started work.
- The applicant received nothing further from the respondent for some time. He then received a letter of 12 January 2001 written "on behalf of the Council of the University to offer… a temporary appointment as e-commerce consultant on the following terms". The terms mentioned included the duration of the appointment, from 20 November 2000 until 19 February 2001 the location, hours of work and salary. The letter also made it clear that no provision was made for occupational sick pay or superannuation unless the contract were extended. In its final substantive paragraph the letter went on to indicate that annual leave would be accrued "during the first three months ….at the rate of 1½ days for each completed four week period". No other terms were provided for in the letter; nor were any other terms and conditions at any time brought to the applicant's attention or drawn to his notice. The applicant's contract was then extended by letter of 16 February 2001. This letter stated that it had been agreed that his contract as a e-commerce consultant had been extended until 19 May 2001 "on the same terms and conditions as outlined in my previous letter". The applicant signed this letter by way of acceptance of the extension. He enquired about the possibilities of a longer contract. It was indicated to him that a further extension might be given but if a longer contract were to be given then the post would probably be advertised and he would have to compete with outside candidates.
- Mr McCullough, for the University stated that guidance was issued internally to line managers in the various departments with a view to enabling them to deal with short-term contracts. The guidance was that such appointments should be for up to three months and that the duration of the post must be within the time scale of up to three months. Mr McCullough's evidence was that not more than one extension of up to three months should be granted but indicated that, as a matter of practice, and due to backlogs in recruitment, two extensions were regarded as permissible. The guidance also indicated that after a brief period from commencement of the contract workers would be paid monthly and in this case the applicant was paid monthly. Mr McCullough explained that the reason for terminating the applicant's contract was due to financial constraints in that funding for the post was no longer available.
- The applicant's case was, essentially, that he regarded the contract as fixed term contract for a period specified by both its commencement and its ending and which was not subject to earlier termination. Mr McCullough, for the University, submitted that the contract was not a fixed term but a temporary contract. The applicant, he said, should have recognised this distinction by reason of the reference in both the advertisement and his appointment letter to the post and/or appointment being "temporary" and also due to the provision regarding leave which, by its reference to leave being accrued at the rate of 1½ days "for each completed four week period" clearly envisaged the possibility of a period of less than three months being involved. The University had a number of fixed term contracts, usually for longer periods. The terms and conditions attaching to fixed term contracts were set out formally. They were given to persons subject to such contracts and were provided for the Tribunals information. The University, however, made a distinction between fixed term and temporary contracts. The applicant should, as outlined, have recognised that this was a temporary contract which would be subject to termination at any time.
- While the University may well make a distinction between fixed term and temporary contracts the Tribunal is not convinced that such a distinction is maintainable at law. In the Tribunal's view the contract in question which was expressed to be for a specific and defined time were the beginning and an end must be a fixed term contract. While the ultimate date of expiry of the contract is clear and certain that does not prevent the parties from agreeing that the contract may be determined earlier. However, the parties must, in the Tribunal's view, agree such terms. In this case it is clear that no direct and specific agreement for earlier termination was reached. There is no mention of such a term in the letter which constituted the contract.
Can such a term be implied?. Mr McCullough suggests that the use of the word temporary in the advertisement and in the contract letter itself and the reference to the accrue of leave at intervals shorter than three months such have alerted the applicant to the fact that earlier termination was contemplated as a possibility. The Tribunal does not agree. In this particular case there was no suggestion, as, perhaps, there should have been, in the advertisement that the post was for "up to" three months; a three month contract could not be regarded as anything other than temporary; the letter gave a start and finishing date for the period of employment and did not use any phrase such as "not exceeding"; and the Tribunal is not convinced that the leave arrangements would have raised any immediate thoughts that earlier termination must be in contemplation. While a term permitting termination for gross misconduct, long time illness or other such circumstances might be implied, it is difficult to see that it is reasonable to imply automatically into a contract of employment for a defined period as short as three months a term effectively permitting termination at will. In the Tribunal's view the University gave a commitment for three months employment. No express provision for earlier termination was made and no such provision can be implied. Accordingly the University must honour the commitment.
- On the above basis the applicant is entitled to the gross sum of £2,959.16, being two mouths outstanding salary. However, tax and National Insurance which would have been deducted in the ordinary way should be deducted from the sum The applicant should also give credit for any sums received by way of Jobseekers Allowance/Income Support during the period 20 March 2001 to 19 May 2001. If the parties are unable to agree and deal with the sum due the tribunal will reconvene on the application of either party to determine the precise sum payable and to make any further order which may be appropriate.
Chairman:
Date and place of hearing: 21 June 2002, Belfast
Date decision recorded in register and issued to parties:
