ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002433
Complaint(s)/Dispute(s) for Resolution:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003398-001 | 22/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00003398-002 | 22/03/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00003398-003 | 22/03/2016 |
Date of Adjudication Hearing: 24/10/2016
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977 and or Section 14 of the Protection of Employees (Fixed-Term Work) Act, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Attendance at Hearing:
By | Complainant | Respondent |
Parties | Assistant Professor | A Third Level Institution |
Abridged Summary of Complainant’s Submission and Presentation:
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977CA-00003398-001 The Complainant was employed as Assistant Professor in Respondent College by Letter of Appointment dated 21st July 2010 which term commenced on the 31st October 2010. The description of his position, in the Letter of Appointment dated 21st July 2010, was that of a “Temporary Lecturer” with the following “Commencement Date and Term” recorded therein: “This appointment is offered with effect on and from 1st October 2010 and will be for a fixed period terminating on 30th September 2015. The specific purpose of this contract is to contribute to teaching to undergraduate and postgraduate students, provide supervision to both undergraduate and postgraduate students and contribute to the international profile of research in psychology in the School of Psychology. Employment is not offered on an indefinite duration basis as it is expected that this work will be completed during the above fixed term.” In his 2014 Review by Professor XX, nothing was stated to him which suggested to him that his position would not be made permanent. This confirmed his understanding of a previous strategy document titled “Contract Posts provided for within the pay estimates process” which had been brought to his attention in late 2012/early 2013. The “conversion process” referred to in the Respondent College document was only recently in 2015 brought to his attention by a third party where he only then learned that there was a formal review process of review of academic staff for conversion to established posts (issued August 2013) of which he could have availed in December 2014, had it been brought to his attention (as subsequently advised to him by Professor XX in December 2014) that his position was not to be made permanent but that my contract was to terminate in September 2015. It was, in those circumstances, with great shock that he learned from Professor XX in December 2014 that his contract was to be terminated in September 2015. The Complainant filed a Grievance on the 2nd April 2015, referring to his meeting with the Head of School on the 22nd December 2014, where he had been informed that, due to lack of funding, his contract would terminate in September 2015. In that Grievance, the Complainant pointed to the fact that, since the commencement of his employment, he had been involved in teaching on undergraduate and postgraduate courses and that he had been responsible for the administration and examination of undergraduate and postgraduate modules. He was Module Co-ordinator for a number of modules and currently involved in the direct supervision of a number of students. His duties had evolved over and above those originally envisaged in his original contract. In response, the Complainant received an email from Ms.Y, Employment Relations Team Leader, Human Resources dated 8th May 2015 stating that she had liaised with the Head of School in relation to the Complainant’s Letter of Grievance. In that email, it was stated that she had liaised with the Head of School and she stated, contrary to what he had been informed at the December meeting: “I can confirm that the only reason for cessation of your contract on its expiry is that all of the contracted duties that you have been employed to carry out will have ended and none will continue after your departure in September 2015.” Whereas the email concluded by stating that new positions/vacancies in the College were advertised on www.jobs.ie, at no point was he informed, either by Professor XX or by Ms. Y from HR, of the fact that he could have availed of the “Review of Academic Staff for Conversion to Established Post” procedure (issued August 2013). By letter dated 25th September last, the Complainant once again appealed in writing to Professor XX to reconsider his position. The Complainant gave other examples of Courses which have been devised for the current Academic programme which are effectively the same Courses which he taught but have been classified under a different name in an effort to suggest that the specific purpose of his Contract had ended. It is clear that over the years of his contract he was expressly led to understand that his Contract would not be terminated in September 2015 and, in reliance on such conduct, his position was prejudiced in circumstances where he could have applied for posts which may have arisen in other colleges. > |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003CA-00003398-002 Subsequent to his Dismissal, in the circumstances outlined in his Unfair Dismissal Complaint, the Complainant was offered Statutory Redundancy only, where it is his belief that where permanent employees in the past have been made Redundant they have received an Ex Gratia payment over and above the Statutory Redundancy payment. While it is his belief that the Redundancy process which was applied to justify his Dismissal was a sham Redundancy the Complainant believes that the Respondent employer, in dismissing him and only paying Statutory Redundancy, discriminated against him by reason of the alleged Fixed Term status.> |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003CA-00003398-003 As outlined in the history detailed in the Unfair Dismissal Complaint, the Respondent employer failed to inform the Complainant or make available to him, even up to the date of Dismissal, the conversion process which was available for approval of permanency under the formal review process of academic staff for conversion to established posts (issued August 2013). In circumstances where it is now clear that his Courses still exist (albeit under different names) and that his duties still exist this process could and should have been made available at any time up to the date of Dismissal.> |
Summary Respondent Submission and Presentation:
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003398-001 |
The Complainant was engaged on a Fixed Term Contract from 1st October 2010 to 30th September 2015. His employment ended on the 30th September 2015 and accordingly under Section 2(2) b of the UD Act, 1977 the UD Act cannot apply to him.
In oral evidence it was put forward by the Respondent Senior Academic Head of Department Professor XX that the Academic work being performed by the Complainant had ceased to be an offering in the College/Department course offerings.
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00003398-002 |
In relation to the Protection of Employees (Fixed-Term Work) Act, 2003 the Complainant has failed to identify a suitable permanent comparator with whom he was treated less favourably.
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00003398-003 |
In relation to information in regard of vacancies arising in the Respondent College all vacancies are advertised on the College internal electronic mail system. The Complainant could not conceivably have been unaware of any vacancies.
In regard to the College “Conversion Process” from Fixed Term or other non-permanent posts to Permanent Posts this process is open to all Academic staff but is only realistically an opportunity when the work engaged upon continues past the end of, in this case, the Complainant’s Contract. The Complainant did not submit an application to the Conversion process.
Respondent Summary
In the light of the arguments above the Respondent requested that the three claims outlined be dismissed.
Decision:
Section 41(4) of the Workplace Relations Act 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977 and Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions of the cited Acts.
Issues for Decision:
Do well founded complaints exist under the Unfair Dismissals Act, 1977 - “the UD Act, 1977” and the Protection of Employees (Fixed-Term Work) Act, 2003?
Does the Respondent argument that the UD Act, 1977 does not apply due to the ending of a Fixed Term Contract apply in this case?
Was the application of the process involved in applying/invoking the ending of the Fixed Term Contract fair and reasonable to the Complainant?
Legislation involved and requirements of legislation:
Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 and Section 8 of the Unfair Dismissals Act, 1977. S.I. 146 of 2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order also applies for guidance.
Did fair procedures and Natural Justice apply throughout the case in hand?
Decision:
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00003398-001 |
There was no doubt and it was accepted by all parties that the employment relationship which was set out in the original letter of Appointment on 21st July 2010 was for a fixed term period to end on the 31st October 2015.
Extensive written and oral evidence was presented and strongly contested by both parties in relation to the central point as to whether or not the work carried out by the Complainant had ceased to exist and therefore justify the non-renewal of the Fixed Term Contract and his redundancy.
The Respondent main Academic witness Professor XX explained to the hearing that he had reviewed as part of strategic planning and adapting the Department to the perceived future needs of the College all the academic offerings being made by the Respondent Department and in this context courses taught by the Complainant.
Details were provided of courses taught by the Complainant which now no longer existed or had been replaced/combined with other courses that had a different academic focus. The background and specialist experience of the Complaint while very strong in many areas was in the view of Professor XX not best suited to the new course offerings. The analogy of a professional Sports Manager was used – the Professor as Head of Department had to best deploy his available talents to the needs of the Department now and in the future as he could best perceive it. The Courses being offered by the Complainant, while required in 2010, were now no longer required and the ending of the Complainant’s fixed term was regrettably justified.
The Complainant was at all times kept informed of Academic developments, numerous minutes of meetings such as those from the Committee of UG Teaching and Leaning in December 2014 were exhibited. It was clear from these that identified Modules taught by the Complainant would not be offered in the 2016/2017 Academic period. There was considerable debate with the Respondent as to whether or not the Courses identified by the Respondent had simply been renamed and repackaged to avoid entering any long-term commitments with the Complainant.
Minutes of meetings during the Autumn and Winter of 2014 were considered, leading up to the meeting between the Complaint and Professor XX on 22nd December 2014 at which meeting the Complaint was notified that his contract was not going to be renewed.
On the 2nd of April 2015, the Complainant filed a formal Grievance to the College against the Professor’s decision. The Grievance was responded to by Ms Y from HR, e mail letter of the 8th May 2015 who stated, as quoted below, that following liaisons and contacts she had undertaken
“The only reason for cessation of your contract on its expiry is that all the contracted duties that you have been employed to carry out will have ended and none will continue after your departure in September”.
The Complainant noted that he had never been informed by either Professor XX or by Ms. Y of HR of the College policy called “Review of Academic Staff for Conversion to Established post”. This policy was largely for staff members in the Complainant’s position. i.e. Temporary or Fixed term seeking permanent positions. The Complainant had accordingly not submitted a formal application to this process. Further correspondence between the Complaint and Professor XX continued culminating in an exchange in September 2015. The Complainant at this stage, 25th September 2015, pointed to number of Courses in adult mental health that were being advertised. He maintained that they were largely courses that he had delivered but were now in effect disguised in new formats to avoid any commitments to him. The question was raised as well by the Complainant as to the teaching of some of this material by Ph.D. students while he was a fully-fledged Ph.D.
After consideration of considerable debate and much documentary and oral evidence containing detailed course descriptions/schedules I came to the view that Professor XX had outlined a situation where the strengths of the Complainant were not perfectly suited to the future needs of the Respondent and that the academic materials/ course teaching offerings that the Complaint had offered had effectively been replaced or had ceased to exist. The decision of Professor XX could not be described as arbitrary and had clearly been come to after considerable consideration and much communication with the Complainant during December 2014 and throughout 2015.
Accordingly, I could find no sustainable case to extend the Fixed Term Contract and the Redundancy on termination of the fixed term was appropriate. Section 2(2) b of the UD Act, 1977 applies. The Unfair Dismissal Act, 1977 claim fails.
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00003398-002 |
The issue in this complaint was that the Complainant had not been offered any supplementary Ex Gratia Redundancy payments as allowed for in Department of Education/DPER policies.
At the hearing the College Staff Officer volunteered the necessary forms and paperwork to the Complainant and advise him to return them to the HR Department for immediate processing.
It was accepted that there was no issue here other than processing the necessary paperwork to afford payment to the Complainant.
Accordingly, this claim was in effect withdrawn.
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00003398-003 |
The issue in this complaint was one of adequate or otherwise notification to the Complainant of adequate information to allow the lodging/processing of an application under the “Review of Academic Staff for Conversion to Established post” Process.
In reviewing the evidence of the parties, it was beyond reasonable belief that the Conversion process was not widely known throughout the College particularly among Academic staff such as the Complainant likely to be impacted upon by same. The Complainant could have applied under this process during his fixed term period and following his meeting with Professor XX on the 22nd December 2014.
Accordingly, having reviewed the evidence I find this complaint not well founded and is dismissed.
Dated: 5 January 2017