Complainant

Respondent

Complainant

Respondent

Anonymised Parties

Research Assistant

Third Level Institution

Representatives

Hugh Hegarty SIPTU

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00010547-001

31/03/2017

The Claimant is seeking re-instatement with the named Respondent.

The Claimant was employed as a research assistant with the Respondent under a series of fixed term contracts from 2994 to 23006 at which stage he was confirmed as having attained a contact to indefinite duration status. His principle duty was research for the Anti-Bullying Centre (ABC) whish was associated with the School of Education in the Respondent’s university. He was one of two research assistants employed by the Centre.

In 2013 it was decided to transfer the ABC to another university DCU. This move raised the issue as to what would happen to him and his colleague. The Claimant make clear at all time he wished to remain with the Respondent. His contract was clear he was employed by the School of Education. During the negotiations, the Respondent advised him that his contract was contingent on the continuation of external funding to the ABC. The Claimant was never advised of this before.

While his colleague had, her issue resolved and was assigned to apposition within the School of Education, his position remained unresolved. He was advised by email in November 2013 that his jobs funding did not go through the Arts Faculty Executive as its funding relates to non-exchequer funding and that existing resources in the ABC will be used to pay his salary until 31 December 2014.

The ABC ceased operations at the Respondent university on 31 December 2013 and he began working on the transfer of the Centre to DCU and did so until its re-launch on 26 May 2014. On that date the Claimant was engaged in non-ABC work until his termination on 6 March 2015.

The Claimant’s contract during 1994-1999 stated that the post is funded from sources external to the university and the continuation of this appointment to the specified termination date is contingent, therefore, upon the continued availability of this funding. However, this explicit provision was removed in contracts following 1999 and is not included in the latest contract of 2006

It is the Claimant position that the Respondent by making him redundant they acted in breach of the Haddington Road Agreement and the Public Service Agreement. They are also on breach of their own procedures by not considering suitable alternatives to redundancy. The Labour Court case CD/13/414 was cited in support of his claim.

The Respondent confirmed the Claimant employment history. The Claimant was advised on several occasions in late 2013 of the winding down of the ABC and its intentions to cease operations on 31 December. However, in April a professor re-established the ABC in DCU. The Respondent comprehensively engaged with this professor at this time, setting out the obligation to transfer the two research assistants (one of whom was the Claimant) to DCU. The Claimant was copied with all exchanges in this regard. The Claimant sought to remain with the Respondent which could not be facilitated. At a further meeting in January 2015 he was further advised that there were no other possibilities of work for him.

Following the intervention by the LRC the outcome of a conciliation session it was agreed that the Respondent would seek DCU position on the matter. DCU were written to setting out its onus to the Claimant. No formal response was received. Under SI 131/2003 EC (Protection of Employees on Transfer of Undertakings) Regulation the Claimant should have transferred to DCU if his ABC work continued there. At the conciliation conference, it was clear that his preference was to remain with the Respondent, which could not be facilitated.

There Respondent was a well-established practise of existing research staff (whether on fixed term or CID employment contracts) upon completion or cessation of the research work or cessation of external funding that the employment ceases. Details of the numbers over the last 12 years were provided to the Hearing.

I have considered the submissions of both parties. Despite the complexities of this case, a genuine transfer of undertakings under SI 131.2003 took place. In the circumstances, the Claimant could have accepted a transfer retaining all his existing terms and conditions and continue his work with the ABC.

The Claimant declined the transfer. The Respondent did not have alternative positions to offer and therefore there was no other option but to declare a redundancy.

I therefore do not find the claim well founded and it fails.