ADJ-00005796

Worker

Employer

Anonymised Parties

A Lecturer

A Third Level Institution

Act

Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00007985-001

04/11/2016

The Worker was employed as a Lecturer (Fixed-Term) on fixed term contracts from 19^th August 2013 to 31^st August 2016.

On 12^th May 2016, he received notification that he was unsuccessful with regards his application for a permanent post. The Worker received notice of redundancy on 18^th May, which was dated 5^th May 2016 (posted 17^th May) detailing that his employment would cease from 31^st August 2016 and that he was entitled to redundancy payment. It was again confirmed by email on 2^nd June 2016 by the Employer that the Worker’s contract would expire at the end of August and he would cease to be employed thereafter, albeit he remained in the recruitment process.

On 12^th July an offer of a permanent post was made to the Worker. He declined the offer as he had secured employment with another organisation. His employment ended with the Employer on 31 August 2016. On 23^rd September the Employer emailed him asking for his decision regarding the redundancy payment (whether he wanted to seek enhanced redundancy). On 2^nd November he received further correspondence from the Employer detailing that he was “no longer eligible for a redundancy payment”.

The Worker sought redundancy payment under the Collective Agreement: Redundancy Payments to Public Servants as per correspondence from the Employer dated 23^rd September 2016. 

The Worker it was argued had to leave his employment owing to a redundancy situation and while the Employer later referred to this as “protective notice”, this, the Worker stated, was not the case and the Employer failed to follow its own procedures.

While he was offered a post on 12 July, this was approx. seven weeks before he was due to leave and by then he had secured employment elsewhere.   Furthermore, the Worker had never actually interviewed for that specific role nor had he ever been advised that such an offer would result in the withdrawal of a redundancy payment.  

Following his departure from the Employer he was contacted again by the Employer on 23^rd September, requesting him to choose which redundancy option he wished to avail of. At no stage did any correspondence from the Employer advise that this new job offer would negate his right to redundancy.

The Worker was advised that he was to be made redundant. He was originally unsuccessful for the post for which he had originally applied for. However, when a senior lecturing role was unfilled, this was changed to a role of Lecturer above the Bar which he was offered on 12 July 2017 and which he declined on 6^th August 2017. Correspondence sent to him in September 2016 was sent in error. His role was not made redundant. He was not entitled to receive redundancy as he was offered a suitable alternative role.

It needs to be set down by way of a reminder that this claim is under the Industrial Relations Act, legislation that sets out in its long title, amongst other things, to make “further and better provision for promotion of harmonious relations between workers and employers”.

So while both sides quoted extensively from the Redundancy Acts (the Employer detailing the Worker is not entitled to any redundancy owing to a refusal to accept alternative employment, and the Worker detailing that such refusal with within their right as the offer was unreasonable), the fact remains that the Worker is seeking a recommendation which sets out my opinion on the “merits of the dispute”.

There is little dispute around the dates, correspondence issued and general facts: One section, within the HR department of the Employer, wrote to the worker advising that his position was redundant and another section within the same department wrote out advising him that he was unsuccessful in a job application that he had made, albeit he was later offered a job. Neither letters made reference to the full circumstances of the Worker’s situation. While the Employer cited that this occurred because of the size of the organisation and the limited resources available to it, I find it extraordinary because of the size and because of the resources available to it that the Employer could allow such an event to occur.

While it cannot be ignored that the Worker was indeed offered a position on 12 July 2017 which he declined and which gives the Employer cause to cite that it would go against common sense for an employee to expect to receive redundancy when they had been offered a position, however, it can also be argued that if an worker is offered redundancy by their employer is it not common sense that they would expect this to be honoured?   This letter of 17^th May is quite clear in detailing that the Worker’s “employment will cease with effect from 31^st August 2016” and that the Worker is “entitled to a redundancy payment”.     However, the correspondence of 23^rd September 2016 references that the Worker was issued “protective notice of the cessation of your employment”. This was not the case. 

I also note that nowhere in this same correspondence is there mention that the Employer made a mistake. It seems incredulous that the Employer failed to take any responsibility for the confusion they caused and furthermore, did not apologise to the Worker but instead issued what I would regard as at best, a ‘bland’ statement of “I trust this clarifies the University’s position”. 

Therefore, taking into consideration that this is a claim under the Industrial Relations Act, which seeks to promote “harmonious relations” and with due consideration for the unique circumstances of the case, I must look at this case in terms of “the merits of the dispute” and the following are my recommendations to be implemented within 42 days:

1. Firstly, I recommend that the Employer implement a robust, documented procedure that captures the complex life-cycle of their diverse employment relationship with their workers (e.g. job offers, termination of employment etc). It would be expected that such a procedure would capture that those who need to communicate with each other around same are communicating with each other and that where workers are notified that their positions are redundant they should also be advised of their rights and entitlements to redundancy where they may be offered alternative employment. This should ensure that such mistakes and confusion as referred to in this instant case are avoided. 
2. Secondly, I recommend that the Employer pay the Worker the sum of €3,500 in compensation for the confusion and distress caused and in recognition of the unique circumstances of this case.         

The following are my recommendations to be implemented within 42 days of this recommendation:

1. Firstly, I recommend that the Employer implement a robust, documented procedure that captures the complex life-cycle of their diverse employment relationship with their workers (e.g. job offers, termination of employment etc). It would be expected that such a procedure would capture that those who need to communicate with each other around same are communicating with each other and that where workers are notified that their positions are redundant they should also be advised of their rights and entitlements to redundancy where they may be offered alternative employment. This should ensure that such mistakes and confusion as referred to in this instant case are avoided. 
2. Secondly, I recommend that the Employer pay the Worker the sum of €3,500 in compensation for the confusion and distress caused and in recognition of the unique circumstances of this case.

Industrial Relations Act, redundancy, suitable alternative employment