Fixed Term Employment Guidelines

Please note that compliance with University Guidelines is expected in normal circumstances, and any deviation from Guidelines – which should only be in exceptional circumstances – needs to be justifiable.

Purpose

These guidelines provide information about legislation and University policy regarding fixed term employment. They include a number of examples of fixed term employment situations and appropriate wording for fixed term reasons in those situations.

Organisational scope

This policy applies University-wide.

Content

1. University Responsibilities

a. Human Resources Responsibilities

1. Ensure that staff with management responsibilities are aware of the requirements.
2. Provide advice to Departments so that they can identify valid fixed term employment situations and provide an appropriate reason.
3. Ensure that the reason in the employment agreement meets the standard required to be valid.

b. Department Responsibilities

1. Ensure that it is a valid fixed term employment situation i.e. that it is reasonable to conclude that the employment will end on the date specified (or at the end of the event specified) for the reason specified, and that the reason is valid.
2. Seek advice where there is any doubt as to the validity of the fixed term employment situation.
3. Seek advice if the nature of the employment changes.
4. Administer the employment effectively in line with University policies; ensuring that an annual leave plan is agreed and that the staff member has opportunity to participate in University processes including training and development, performance reviews and salary reviews, as appropriate.
5. Ensure that communication to the staff member is consistent with the fixed term nature of their employment, i.e. ensure that the staff member is not given any expectation of ongoing employment, verbally or otherwise.
6. Administer the end of the employment effectively, providing information, including outstanding annual leave, to the Human Resources prior to the payroll cut-off for the staff member's final pay.
7. Where appropriate, support the staff member to seek new employment or career opportunities and provide opportunity for the staff member and the Department to provide feedback to each other about the employment.

c. Divisional Heads (Deans in Health Sciences)

1. Ensure that Heads of Department are aware of their responsibilities.
2. Ensure that recommendations for fixed term employment are valid and the information provided to Human Resources meets these guidelines.
3. Seek advice, or ensure that the Head of Department seeks advice, where there is any doubt as to the validity of the fixed term employment situation.

2. Examples of Genuine Reasons for the University of Otago

Sometimes positions are clearly only available for a fixed period of time, and therefore the employer needs to clearly explain this to potential employees. It is a legal requirement that the employee understands the reason for the fixed term nature of the work he/she is agreeing to and how the employment agreement will end.

In the University of Otago context, genuine reasons based on reasonable grounds can be broadly defined as:

1. Additional staffing for peak workload periods (including seasonal work)
2. Projects of a specific and limited duration (including research projects)
3. Covering for staff members on leave
4. Covering for staff members undertaking alternative duties
5. Covering vacant positions until the recruitment process is complete
6. University student development opportunity positions

Reasons must be clear, detailed and specific to the employment situation for each fixed term appointment. Please seek advice from your Divisional HR Manager or Advisor on the reasons for fixed term employment, or on whether a position should be fixed term. Listed below are some examples of how genuine fixed term reasons can be applied in different limited duration work situations. The hiring manager can draft a fixed term reason specific to the employment situation using these examples as a guide, or contact Human Resources for assistance. The draft reason is reviewed by Human Resources then used in the letter of offer. The Head of Department/ Manager is responsible for ensuring that the reason provided fits exactly with the situation in each case.

a. Fixed Term Reason Examples: Additional staffing for peak workload periods (including seasonal work)

1. to assist with a (define additional/peak workload e.g. backlog of filing/ university enrolments). Once the majority of the (e.g. enrolments) has been completed, which will be no later than the end date, the University will no longer require additional assistance.
2. to teach the (topic name) component of the (course name). The lectures and tutorials will take place in (specific timeframe e.g. the 3rd and 5th weeks of Semester 1). Once the lectures and tutorials have been completed, the University will no longer require additional assistance.
3. to provide additional teaching assistance on (course name). This assistance is necessary to meet the needs of an unexpectedly high number of students enrolled in this paper this (Semester/Year).
4. to teach, examine and mark the (course name) for the University's Summer School.
5. Please note: Where a peak need situation becomes an ongoing need, it no longer fits the criteria for fixed term employment.

b. Fixed Term Reason Examples: Projects of a specific and limited duration (including research projects)

1. to undertake (define tasks/processes) within the (name of funded research project) project which are required to be completed by the end date in line with the project schedule and funding agreed with (name of funding source).
2. to complete the (project name e.g. department website review) project and implement the recommended improvements. The project is to be completed by the end date.
3. to undertake (define tasks/processes) of the (project name) project which are scheduled to be completed by the end date in line with the project schedule.
4. Please note:
   

• It may be useful to attach a copy of the project plan or other relevant documents.
  
• If there the work may be completed earlier than the end date provided, you may wish to include an early termination clause such as: “Should the project be ahead of schedule, or the project requirements change, for any reason, the employee may be given one month's notice of termination.”
  
• If the employee is likely to undertake work outside the core aspects of the role, you may wish to include a statement such as: “In order promote collaborative research in this field and to support your academic development, you may be required to support teaching delivery, supervision of postgraduate students, preparation of future grant applications or to contribute to related projects. This does not affect the reason for the position, or the fixed term nature of the employment. ”

c. Fixed Term Reason Examples: Covering for staff members on leave or reduced hours

1. to provide cover for the position while the incumbent is on (parental) leave. The incumbent is expected to return from leave by the end date of this agreement. The position will end when the incumbent either returns from (parental) leave or resigns. If that return or resignation date is prior to the end date of this agreement, the employee will be given (one month)'s notice of termination.
2. to provide additional staffing made necessary while a staff member is working reduced hours for an agreed period of time. Once the staff member resumes normal hours, which will be by the end date of this agreement, there will be no further need for this support.
3. Please note: Please provide the name of the staff member, the date that has been agreed for the staff member to return to work (or to normal hours), and any other information relevant to the proposed end date of the fixed term appointment.

d. Fixed Term Reason Examples: Covering for staff members undertaking alternative duties

1. to provide coverage for an academic staff member who would usually lecture in this area and who has been released from teaching and administration duties in order to allocate time during the academic year to focus on (specify as appropriate). The dates for this fixed term agreement are set to allow for sufficient time to prepare for the academic year and to complete end-of-year academic requirements such as marking. Once the academic staff member resumes normal duties, there will be no further need for this support.
2. to provide additional staffing made necessary due to a staff member being released from normal duties to undertake additional work required to (specify e.g. complete project). Once this additional work is finished, which will be by the end date of this agreement there is no further need for this support.
3. Please note: Please provide the name of the staff member who has been released from duties; and confirmation that either:

• the agreement to release the staff member ends on a date that is consistent with the end date of the fixed term agreement; or
• the additional work that the staff member is doing ends on a date that is consistent with the end date of the fixed term agreement

e. Fixed Term Reason Examples: Covering a vacant position until the recruitment process is complete

1. to provide cover for the position while the position is advertised and filled. When the successful candidate is appointed, and a handover period has been completed, the position will end. This process is expected to be completed by the end date of this agreement.
2. Please Note: You may wish to include an early termination clause such as: “Should an earlier appointment be made, the employee will be given (one month)'s notice of termination.”
   

• to cover a vacant position while the Department undertakes a review of its requirements. The review will be completed by the end date of this agreement, at which time the Department's requirements will be known and, if a position is required, it will be advertised accordingly.
  
• Please note: For this type of situation, the Head of Department/Manager must be able to clearly show evidence that the review is planned and has a timeframe that is consistent with the end date of the fixed term agreement.

f. Fixed Term Reason Examples: University Student Development Opportunity Positions

The University of Otago has positions which are specifically created to enable University of Otago students to gain practical work experience during, or immediately following, their degree. These include Tutors & Demonstrators, Assistant Lecturers, Residential Assistants, Dental House Surgeons and may include other specific positions as agreed by the Head of Department and Divisional HR Manager.

i. Tutors & Demonstrators

to provide an opportunity for students attending the University of Otago to develop their academic knowledge and experience. The function of this position is to provide support for students as a tutor or demonstrator and undertake specific duties associated with the provision of (specify papers) during the academic year. Once the semester is finished there is no further need for this support. The parties agree that it is important that as wide a range of students as possible have this experience, and accordingly the employee's employment will end at the conclusion of the semester without further notice, and the position may be offered to a different student for the following semester. For the same reasons, this Agreement will end earlier, with notice, if the Employee ceases to be a student.

ii. Residential Assistants

to provide an opportunity for students attending the University of Otago to make an important contribution to their College by working with their peers, whilst obtaining some financial assistance with the cost of study. It is an opportunity that with support and training assists students to develop their leadership and organisation skills, further extending the range of educational experience. In so doing students contribute to the special student culture that is distinctive to Otago's tertiary Institutions. The parties agree that it is important that as wide a range of students as possible have this experience, and accordingly the employee's employment will end at the conclusion of the academic year without further notice, and the position may be offered to a different student for the following academic year. For the same reason, the parties agree that this agreement will end earlier, with notice, if the employee ceases to be a student.

iii. Assistant Lectureship

to provide an opportunity for PhD students attending the University of Otago to develop their academic knowledge and experience. The employee will be required to undertake supervised teaching and research duties in addition to their PhD studies. The parties agree that it is important that the Department is able to continue to offer this opportunity to successive post graduate students so that they can have also have the opportunity to gain this experience. Accordingly the employee's employment is fixed term and will end on [e.g. the planned PhD completion date (which is the end date of this agreement)]. For the same reason, the parties agree that this agreement will end earlier, with notice, if the employee ceases to be a student.

iv. Dental House Surgeons

to provide the opportunity for recent Otago Dentistry graduates to undertake a dental internship to gain further experience in teaching and clinical experience and to further prepare them for their career, although it does not guarantee that the recipient will be appointed to an academic or clinical position in the future. The parties agree that it is important that this development opportunity is made available to a wide a range of appropriately qualified graduates each year, and accordingly the employee's employment will end at the conclusion of the specified period without further notice, and the position will be offered to a different student in the next intake.

g. Note for the preparation of offer letters

1. The draft fixed term reason that you provide will be reviewed by Human Resources, and edited in consultation with you as appropriate. Once finalised, the reason will be used within the letter of offer, normally within the following paragraph:
2. “This employment agreement is for a fixed-term commencing {start date} and ending on {end date} without further notice. The reason for the fixed-term is {fixed-term reason}. We do not expect your employment to continue beyond the end of the fixed term because of this reason. Nothing contained or implied in this agreement is intended to create an expectation of an employment relationship continuing beyond the end of the specified term. No express or implied promise of continuing or subsequent employment will be binding on the University unless it is made expressly and in writing.”
3. If the guidelines request that additional information is provided to justify the fixed term reason (for example, the name of the staff member on leave whose position is being covered by the fixed term appointment), please note this information on the recommendation to appoint form (Academic / General). In some cases it may be useful to attach relevant documents (for example, a project plan).

3. Considerations in Defining the Fixed Term Reason

a. In defining the fixed term reason, the Head of Department needs to consider:

1. The likelihood of the employment ending before the end date specified and an appropriate notice period if this were to occur. Some of the example reasons provided include the arrangements for giving notice to end the employment should it be necessary before the date specified.
2. Whether there is more than one reason e.g. “where the person will cover 0.3FTE of the Department Administrator's position while she is on reduced hours until 3 December and will provide administrative support to the Project Manager until the project is completed on 5 January”. Where there is more than one reason for ending the position, this must be clearly stated in the agreement.
3. Whether the hours of work will vary over the term of the agreement. Where this is likely, the reason should include arrangements for varying hours of work.
4. Whether the type of work will vary over the term of the agreement, or where there is an expectation that the employee will undertake work outside the core position. This should be clearly stated to avoid any confusion, and to ensure that the fixed term reason is valid.
5. Whether there is a history of fixed term reasons for the position or employee that may create doubt about whether it is reasonable to conclude that the employment will end. Please contact your Divisional HR Manager or Advisor for advice.

It is important to remember that a fixed term employee has no right or claim over any future work, project, fixed term employment or permanent employment. Where the Head of Department's assessment is that a successful candidate for a fixed term position should be employed for any similar work in future, and that similar work is likely to be available in the future, a permanent appointment should be considered. (If the position is research funded, please refer to the Research Funded Permanent Staff Guidelines.)

Please seek advice from your Divisional HR Manager or Advisor on the reasons for fixed term employment and on whether a position should be fixed term. This will help minimise any delays in the recruitment process.

b. Potential Employees Who Are Only Available for a Fixed-Term

There may be situations where potential employees only want to commit to a position for a set period of time. Please note that this does not change the permanent (or longer term fixed term) nature of the position, nor does it alter the requirement to advertise that position. An offer can include a statement such as:

“Although the position is available on a (a permanent basis/ until date), your employment agreement has an agreed end date of (end date) due to your request and availability. The end date may be reviewed at any time up to (specify e.g. two months) before the end date, on your request.”

4. Considerations in Making a Fixed Term Appointment

a. Remuneration and Budget Considerations

The University's remuneration policy applies to fixed term staff members. A staff member's remuneration is likely to increase during their employment due to either negotiated increases or salary reviews. The Head of Department is responsible for ensuring that potential salary increases are considered before approving the appointment. The Department is responsible for covering any additional costs. Please seek advice from the Manager, Promotions and Remuneration if you have any queries.

b. Advertising

A genuine reason based on reasonable grounds for the fixed term must be provided before a position can be advertised.

Positions of more than 12 months must be advertised. In exceptional circumstances you can request this be waived. Prepare a memo summarising the case and attach it to the recommendation to appoint form for the approval of the Director of Human Resources. An exceptional circumstance might be where the potential employee is a named Principal Investigator on a successful research grant application.

Fixed term positions of less than 12 months can be advertised as appropriate. A contestable selection process should normally take place, however it is appreciated that, from time to time, there is an immediate need to provide a staffing resource.

Important Note: Close relatives and close friends of staff members in the Department or Section concerned cannot be considered for appointments that have not been advertised. If a close relative or friend of a staff member is being considered, the staff member currently in the employ of the University should not justify the need for the appointment, select the appointee, or directly supervise them. Please refer to the University's Ethical Behaviour Policy or contact your Divisional HR Manager or Advisor for assistance.

c. Acceptance

A signed acceptance will be required from the employee, which will include a declaration that they understand the reason for the fixed term agreement and how their agreement will end, prior to commencing work. Employees must not start work before signing their fixed term agreement.

Approving named individuals on grant applications

Where an individual who is not a current permanent employee of the University is named on an application for a research grant, and the grant is successful, the individual is likely to have an expectation of employment with the University at the remuneration level specified in the grant. Therefore, when approving grant applications, the Head of Department, Dean and Divisional Head must:

1. Ensure that it would not be practicable to advertise to enable suitably qualified persons to apply for the position.
2. Ensure that the individual is suitable for employment at the University of Otago. This includes appropriate employment reference checking.
3. Ensure that the proposed level of appointment and remuneration are consistent with University policies and maintain relativities in the Department, School and Division.

5. What Happens if Changes to a Fixed Term Appointment are Necessary?

In any employment agreement, the University of Otago normally commits to set hours of work, remuneration and the end date. However, change is sometimes necessary. If you need to change the employment agreement, the change could be negotiated and agreed with the staff member or, in some cases, the management of change process may be required. Please contact your Divisional HR Manager or Advisor for advice.

a. Extension

If the progress of the work is not as expected, it may become necessary to extend the period of employment to enable the work of the original fixed term position to be completed. The nature of the employment and the reason for the employment ending must be the same as the original fixed term agreement, and the reason for the extension justified. Short extensions may be used up to a maximum of 3 months beyond the original fixed term end date. Extensions can be requested by memo. Human Resources will send formal advice of variation to the staff member.

An extension cannot be used if new or different work is available for a fixed term, and a current fixed term employee would be able to do this work. Nor can an extension be used if similar work is available for a new period of time and then ending for a different reason. Continued employment cannot be achieved by extending or changing the current fixed term employment in these situations. A new fixed term position would be created and the Head of Department would need to consider an appropriate advertising and selection process before appointing to that position. This new appointment would be requested using normal process.

The Head of Department must ensure that any extensions or new offers are agreed in writing before the end of the current fixed term employment. No employee should continue to work beyond the end date of their fixed term agreement.

b. Hours of Work

If the progress of the work is such that it is necessary to increase, decrease or change the hours of work, and an agreement with the staff member is reached, the University's change of hours form should be completed, approved by both parties and sent to Human Resources for processing. Otherwise, please contact your Divisional HR Manager or Advisor for advice.

c. Nature of Work

If the requirements change during the fixed term agreement, there must be documented variation to the employment agreement, or a new fixed term agreement. This could occur if a project does not go as planned, if the work is completed earlier than planned, or if there is an urgent need for their skills in another area. Please contact your Divisional HR Manager or Advisor for advice.

d. Early End of Employment

A need to end the employment early could occur if a project does not go as planned, if a key staff member leaves and the University is unable to continue the work, or if the work is completed earlier than planned. The ability to end a fixed term agreement early depends on the wording of the agreement. Please contact your Divisional HR Manager or Advisor for advice.

Appendix 1: Fixed Term Employment and New Zealand Employment Legislation

The Employment Relations Act 2000 (section 66), requires that a fixed term Employment Agreement must be for “genuine reasons based on reasonable grounds”, that the employee must agree to those reasons and that those reasons and the way the Employment Agreement will end be recorded in writing as part of every fixed term Employment Agreement. For further information see the Ministry of Business, Innovation & Employment website.

Related policies, procedures and forms

• Remuneration Policy

Contact for further information

If you have any queries regarding the content of this policy or need further clarification, contact:

Dan Wilson
Human Resources Manager, Promotions & Remuneration
Email dan.wilson@otago.ac.nz
Tel +64 3 479 8092