ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00005454

Complaint(s):

Date of Adjudication Hearing: 13/03/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

Location of Hearing: Room 4.05 Lansdowne House

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.

Background:

The complainant commenced working with the respondent, a day and boarding school, in January 1998. She was employed as a French teacher and a TEFL (Teaching English as a Foreign Language) teacher on a number of fixed term contracts. The complainant commenced employment as a permanent member of staff in April 2008. The complainant also held the role of "International Students Co-ordinator". The complainant's gross salary was €45,426.50.

The complaint under the Unfair Dismissals Acts, the Redundancy Payments Act 1967 and the Payment of Wages Act 1991 were received by the WRC on 12^th October 2016.

CA-00007561-001 Claim under the Unfair Dismissals Act, 1977.

Preliminary Issue

At the outset of the hearing the respondent requested that the hearing be adjourned as a personal injuries claim is being taken by the complainant which, according to the respondent, arises from the same facts. It was the respondent's view that the outcome of the WRC hearing could prejudice the personal injuries process.

The complainant's representative was of the view that the respondent was making an assumption that the claims were arising from the same facts, however there was no overlap and no issue in relation to duplication.

Having considered the matter I did not believe an adjournment was warranted.

Respondent's Submission

The respondent maintains that the complainant was dismissed from her post by reason of redundancy.

The respondent submitted that in early 2016 it became apparent that there would be a significant reduction in the number of foreign students boarding in the school, due to a decision of an authority in another EU state deciding to discontinue their support for a programme which sent students to native English speaking countries. This coincided with a reduction in the number of Irish students enrolling in the school. There was also a reduction in the number of other foreign students enrolling.

The Board of Governors became aware of this situation in early spring 2016. The Board hoped the situation would improve. Because of the school's difficult financial situation and because it was hoped the situation could be turned around the complainant was not informed of the problem until the beginning of the school year in August 2016. Another reason for not informing the complainant earlier was because the school only knew for certain what its enrolment numbers would be in August 2016.

The respondent submitted that by the summer of 2016, due to the serious reduction in students enrolling, it was plain to the Board that it was in a grave position. Loans were restructured over the summer.

The respondent stated that the complainant's post was one of two posts most impacted upon by the drop in numbers.   The school's financial controller met with the complainant on 26^th August and explained the position to her. He wrote a letter to her on the same day informing her of the drop in the number of international boarders and explaining that because of the reduction in international boarders TEFL was being removed from the school timetabled curriculum. The letter went on to explain that these developments made the post held by the complainant, as International Co-Ordinator and teacher of English as a foreign language, redundant. The complainant was advised that her position was being made redundant with effect from 31 August 2016 and that she would receive three months' pay in lieu of notice, as per her contract. The letter thanked the complainant for her commitment and service to the students of the school.

The respondent went on to state that there was no comparable post to the complainant's in the school. The complainant's post and the post of Supervisor of Studies post were the two most directly impacted by the reduction in numbers. There was not any appropriate alternative vacancy which could have been offered to the complainant. The respondent pointed out that no one had been employed in the complainant's former position since the complainant was made redundant.

The respondent submits that there has been no breach of the Unfair Dismissals Acts as alleged. The respondent contends that the circumstances constituting the redundancy did not apply equally to one or more employees in similar employment in the school. There was only one International Co-ordinator/Teacher of TEFL post in the school and that post was held by the complainant. That post no longer exists having been made redundant due to the sudden fall in the number of international boarders.

In direct evidence the school's financial controller re-iterated the position that this was a genuine redundancy situation resulting from a substantial drop in the number of students enrolling.   Other cost saving measures were introduced but regulations prevented cuts in numbers of other types of staff. The financial controller stated that the decision to make the complainant redundant was based on pure economics, the fact that she had raised a grievance did not come into the equation. There were no alternative positions available because the numbers had dropped so dramatically.

In cross examination the financial controller stated that he was the person who had made the decision to dismiss. This option was identified as a possibility in May with a final decision taken in August. He stated that the school does not have any procedures for redundancy nor was there any precedence. He agreed that there had been no discussion or consultation with the complainant, the first time the complainant received any notification of a redundancy was on 26^th August.

The financial controller agreed that the email he sent to the complainant, inviting her to the meeting of 26^th August, did not advise that the reason for the meeting was to discuss redundancy even though he knew this is what would be discussed.

The financial controller stated that at the meeting he had raised the matter of the need to reduce staff numbers, that the complainant's post had been identified for redundancy and whether she would discuss the possibility of a voluntary redundancy or failing that move on to discuss compensation for redundancy.

Regarding the need for someone to teach TEFL the financial controller agreed that there was still a need for such a teacher, but that it had been moved off the curriculum and was being provided by a member of the boarding home staff.

The financial controller explained that he had not replied to the letter from the complainant's union as a letter from her solicitors came in before he had a chance to do so. Redeployment had been looked at but there were no options.

In response to a question as to why the redundancy payment was only paid the week before the hearing the financial controller stated that there would have been some discussion, but that it should have been paid sooner. A heavy workload had also been a contributory factor in the delay. Pay in lieu of notice was paid on 26^th January 2017.

The financial controller disagreed when it was put to him that the complainant would have been right to assume that she had been dismissed as she did not get a redundancy payment for six months after the termination. In his view it was clear from correspondence, in September, from the school to the complainant that it was a redundancy.

The P45 had been issued in early November which the financial controller maintained was not unduly late, nor had it been issued after a Data Protection request.

In closing the respondent stressed that the termination of the post in August 2016 was due to the fall in enrolment numbers, it was based solely on economic factors. The complainant has not been replaced.   There is no suitable vacancy available in the school. As it was the Board of Governors who agreed with the decision to make the post redundant there was nowhere else an appeal could be made.

Summary of Complainant's Submission

The complainant submitted that three days before the new school term was due to start and in the absence of any warning or prior notice, she was requested to attend a meeting (on 26^th August 2016) with the school's financial controller during which she was dismissed from her employment on the spot, in the absence of fair procedures or any procedure whatsoever. The complainant contends that she was told that a decision had been made to make her roles within the school redundant effective from the 31^st August 2016. An email from the financial controller, sent on the same day, notified her not to attend work and that she would be paid in lieu of notice.

The complainant does not believe a genuine redundancy situation exists and that the decision to make her position redundant was predetermined. Prior to 26^th August there had never been any discussion with her regarding the viability of her role. There was no consultation, which she believes is a breach of her right to due process and fair procedures.  

The complainant believes the decision to make her redundant was made well before 26^th August as she did not get her time allocations for September in May as would be customary; all her colleagues got their allocations in May. Requests for other pieces of information were, according to the complainant, fobbed off.

The complainant disputes that there has been as great a drop off in international students as claimed by the respondent and that the drop in numbers from the specific EU state impacted directly on her IS Co-ordinator role. Furthermore the complainant disputes that TEFL has been removed from the timetabled curriculum.

The complainant believes that the school had made a decision to "get rid of her" because of a number of on-going issues between herself and management over the last number of years and particularly in the months leading to her dismissal, including a grievance which she contends has not been dealt with by the school.

The complainant also submitted that she raised a number of concerns relating to the health and safety of students. She passed her concerns through what she believed to be the appropriate channels but now believes she is being penalised for doing so, in breach of the Protected Disclosures Act 2014. Another example of this penalisation relates to the wrongful deduction of money from her salary during the Easter break. When she queried this deduction it was put down as an administrative error.

The complainant also highlighted the fact that although she was told she would be paid in lieu of notice this was not paid until 26^th January 2017 and she was not paid statutory until 7^th March 2017.

The complainant submitted that she was summarily dismissed by the respondent, as no redundancy payment was forthcoming and the respondent ignored correspondence from both the complainant's union and the complainant's solicitor regarding same. To support this claim the complainant contends that there was no consultation or due process or procedure afforded her, nor was she paid any (statutory) redundancy monies until 7^th March 2017, some seven months after she was dismissed. The complainant was not given any right of appeal.

In direct evidence the complainant gave a detailed background to her role in the school. In relation to the period leading up to her termination the complainant stated that she got a message that a new Principal had been appointed but this was only through a colleague as her school email was blocked out. She contacted the new Principal to set up an introductory meeting but she got no response. The complainant found out from other staff members that they had got information on the upcoming school term that was not given to her and that her name did not appear on the document.

Regarding the meeting which took place on 26^th August the complainant stated that she was told by the financial controller, that her role as International Co-ordinator was being made redundant, that she could take redundancy but if she did not accept it, it would be forced upon her.   She stated that if she had known the purpose of the meeting in advance she would have brought a representative with her.

The complainant is of the view that the basis on which she was told the redundancy was based, i.e. the reduction in foreign students form the EU state, was a lie; there were more international students than ever.

In rebuttal the respondent stated that there had been no interference with the complainant's email account and that no evidence had been adduced regarding the numbers of international students in the school.

In closing, the complainant outlined the alleged breaches of procedure, i.e. no notification of the reason for the meeting of 26^th August, no chance to bring a representative, no consultation, no procedures. The complainant put forward that up to last week, when the redundancy payment was paid, this was a summary dismissal, without a right of appeal.

Regarding efforts to mitigate her loss, the complainant has set up a business finding host families for foreign students however it has not generated any income as yet and will take some time to get up and running. There will be no income until September.

Findings and Conclusions

I have carefully considered the evidence adduced and the documents opened in this case. The fact of dismissal was not in dispute. The respondent maintains that that the complainant's position was made redundant and therefore her dismissal was not unfair. The complainant contends that the job she performed, namely a TEFL teacher and international student co-ordinator, continue to be done and therefore her dismissal did not result from a genuine redundancy.  

The respondent claims that the termination of the complainant's position was made for financial reasons based on a substantial decline in student numbers. The complainant believes the termination of her employment is linked to a grievance she had raised in May 2016.

I am not convinced a genuine redundancy situation existed at the time of the complainant's termination. It would seem to me that other matters were at play, including the grievance raised by the complainant in May 2016 . If a genuine redundancy was being contemplated by the school in May 2016 it would only have been right that they opened a dialogue with those who might be impacted most, that they chose not to do so, claiming the need for confidentiality, not a good enough reason in my eyes.

Notwithstanding the existence of a genuine redundancy or not, when an employer is terminating the employment of an employee it is incumbent on that employer to effect the termination by recourse to fair and open procedures (see Morrissey v Galmor Ltd UD2237/2010).

In the case we are dealing with the complainant was given no notice of her redundancy, there was no consultation, no discussion on alternative positions, no process and a disregard for correspondence from her union and subsequently from her solicitor. The lack of any appeal mechanism is particularly telling. The complainant was waylaid and sent packing with no regard to the requirements of law.

Section 14 of the Act states:

of employment with an employee, give to the employee a notice in writing setting

out the procedure which the employer will observe before and for the purpose

of dismissing the employee.

The respondent admitted that no such procedures exist. In this instance the lack of procedures is compounded by a general disregard for the principals of natural justice.

Adding to the dismal treatment of the complainant in regard to lack of process and procedures, having made the complainant, as they would argue, redundant, the respondent then chose not to pay the complainant her pay in lieu of notice until 27^th January 2017, some five months after she was instructed not to come back to the school.

More extraordinarily, it was almost seven months after the school told her that her position was redundant that the respondent paid a statutory lump sum redundancy payment of €11,400 to the complainant.   From August 2016 until March 2017 the complainant was left in a state of limbo; the respondent saying she had been made redundant but not paying her the entitlements due to her.   The delay in getting a P45 to her also created problems for her in seeking social welfare assistance and or another job.

All in all the complainant has been treated shabbily by her former employer. The manner in which she was dismissed was unfair; procedures were non-existent and the rules of natural justice ignored, no notice of redundancy was given, no consultation took place, no alternative roles were subject to debate, the complainant was not offered the opportunity to appeal the decision to make her redundant.

In light of the above I must find in favour of the complainant.

Decision

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

The complaint is upheld. Section 7 of the Act states:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court , as the case may be, considers appropriate having regard to all the circumstances:

( a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

( b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

( c ) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

Although the complainant's preferred redress is re-instatement I do not believe this would be appropriate in the circumstances; the relationship between the protagonists has been badly damaged and the respondent is adamant that no suitable position exits in the school for the complainant. That being the case I believe compensation is the most suitable method of redress.

The complainant has not found employment since her dismissal and so has incurred a financial loss. Letting a teacher go at the start of the school year must lessen the chances of that teacher finding employment. The delay in the payment of notice and the redundancy lump sum must have multiplied her financial difficulties.

In the circumstances, and taking into account the payment of the redundancy lump sum, I order the respondent to pay the complainant compensation of €34,060, this to be paid within six weeks of the date below.

CA00007561-002 Redundancy Payments Act, 1967

This complaint was withdrawn by the complainant at the outset of the hearing.

CA00007561-003 Payment of Wages Act, 1991

This complaint was withdrawn by the complainant at the outset of the hearing.

Dated:   11/05/2017

Workplace Relations Commission Adjudication Officer: Roger McGrath

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