Complainant

Respondent

Anonymised Parties

An Adjunct Lecturer

A Third Level Education facility

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00023201-001

14/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00023201-002

14/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023201-003

14/11/2018

The Respondent is a third level education institute and engaged the Complainant to provide tuition in his native language and culture. The Respondent states that it made the Complainant Redundant arising out of a dwindling interest in his chosen subject and expertise.

The Complainant gave evidence in person. I have considered the submission provided by the Complainant’s representative. I have additionally considered some documents provided after the hearing date which were unsolicited by me but which the Complainant was anxious I would consider. On balance I do not think that anything contained in these documents had a significant bearing on my decision herein. I note that the Respondent was provided with the same documents. The Complainant primary complaint herein is that he was Unfairly Dismissed and in particular he is challenging his Employer’s entitlement to make him Redundant. He says he was never provided with a cogent reason for letting him go. Instead, he asserts that his employer lacked the fortitude to retain him as a lecturer when his retention might have been unpopular with the student body arising out of cultural differences.

The Respondent’s case is quite simply that the Complainant’s core subjects were not being availed of by the student body. Whether that was because of a general disinterest or an active movement to boycott his classes is unknown to the Respondent. Either way, the Respondent could not retain the Complainant to give classes that no-one would attend.

I have carefully considered the evidence adduced in the course of this hearing. Both parties prepared and opened up their submissions to me. I heard a Mr. O’D on behalf of the Higher level education facility (the Respondent herein) and on behalf of the Complainant himself.

The Complainant has been a part of this Third Level Education Institution since his own student days - having completed a Masters and PHD programme there. Since 2010, he has been engaged on an annual and initially ad hoc basis to teach language and culture. The academic year spans September through May and it appears to be common case that the Respondent and the Complainant would work out a workable timetable each year so as to allow the Complainant also perform other community based work that he was involved in. Both parties operated with flexibility. By academic year commencing 2017/2018 the Complainant was engaged to do about 9 hours of actual lecture hours each week. He taught relevant modules to 2nd 3rd and 4th year students and was also giving evening classes as demand would have it.

It is worth noting that prior to the commencement of academic year 2017/2018 the Complainant had successfully argued that he was entitled to have a Contract of Indefinite Duration and indeed it does not appear that the Respondent resisted this demand. Despite this recognition the Complainant was not provided with a physical Contract of Employment setting out his terms and conditions of employment. Instead I was asked to take cognisance of a letter/email from KO’D   to the Complainant ‘s Union representative which confirmed (on the 19th of July 2017) that the Complainant’s schedule for 2017/2018 would comprise up to 9 hours per week and that “… the above non-core language classes will continue if sufficient students continue to opt for them. Dr Selim is entitled to continue delivering these classes indefinitely subject to this condition”

So it was that at the start of academic year 2018/2019 the Complainant was a contracted employee of the Respondent body. The Complainant’s official title appears to have been that of Adjunct Lecturer – implying a support role.

On or about the 8th of February 2018 the Complainant got caught up in a wave of negative publicity arising out of some views that he had expressed on a well-known current affairs show broadcast across the nation on a terrestrial channel.   I note that the Complainant subsequently did assert through the media that he had been mis-interpreted. However, there can be no doubt that the damage had already been done and as his “views” came to be known on the campus these was a significant backlash against him. Students protested and boycotted his classes.

In response to the refusal by a portion of his students to continue to attend his lectures, the Respondent made provision for a parallel lecturer to run the same course in tandem with the Complainant. I accept fully that the majority of the complainant’s existing students did not avail of this alternative and the Complainant himself suggests that those that left him may not have known him as well as his 3rd and 4th year students.

I accept that the Complainant was advised not to run his lectures for a week in the immediate aftermath of the broadcast and that whilst this might have felt like a form of unpaid suspension, I would accept that in fact this was done to allow a period of heightened tension to pass before the Complainant resumed his duties. On balance, I think this was a reasonable response by the Employer to an inflammatory situation.

In March of 2018 the specific department in School of Languages wherein the Complainant worked, advertised for the position of Assistant Professor. Whilst the Complainant did compete for this position he accepts that the position required an historical proficiency that was outside of his skill set. I am satisfied that the candidate that was appointed to this position was also in possession of an advanced proficiency in the language that the Complainant had heretofore been lecturing in.

However, I would further accept that the Complainant was not advised that the new appointment would affect his role or his hours one way or another.

The Complainant worked through to the end of academic year 2018 and I assume that the furore created by his own words had largely dies down by that time too.

At the end of September 2018 the Complainant was notified, without preamble or forewarning it seems, that his services were no longer required. The Complainant was notified through his Union Representative by Mr. KO’D and also by the head of the Department. Two reasons were given to the complainant. Firstly, that the new Assistant professor would be taking over some of the classes he had been doing and secondly, that no students opted for the extra modules on offer. And as previously noted…”language classes will continue if sufficient students continue to opt for them. Dr Selim is entitled to continue delivering these classes indefinitely subject to this condition”.

The only other programme of work that the complainant had heretofore been giving on an annual basis was the evening classes – and these were simply terminated pending a review.

It is not clear to me how many people did make enquiries or seek to apply to attend for any of the Complainant’s modules nor was I told what constituted a “sufficient” numbers of students.

The Complainant was given no further information, nor was he told when the review relating to the evening classes would be concluded. I note that at the date of the WRC hearing this review into the evening classes has still not been completed which seems a little surprising.

The Complainant has made an almost irresistible connection between the public outcry that he admits he himself created, and the subsequent move (as he perceives it) to drop the Complainant’s association with the Respondent institution. The Respondent emphatically denies there is any nexus between the two and makes the case that the Complainant’s position was made redundant wholly and or mainly by reason of the re-configuration in the department which brought in an Assistant Professor with many talents one of which was the ability to teach the language which the Complainant had been teaching.

Having considered the evidence and arguments presented by both sides I am satisfied that the Employer’s actions were inadequate. It cannot have been reasonable for them to present the Complainant with a termination of his Employment without any notice or any discussion at the end of September 2018. There is no transparency here. The Complainant has no idea what courses were offered to the student body which were on his behalf and he has no idea of how they were advertised or made known to the student body. Additionally, the Complainant was at no time given any evidence or even feedback on what interest there might have been in relation to his courses (I was told all such applications were made online). There was no discussion of continuing with cut back hours or on an ad hoc basis. The Complainant was made Redundant in advance of the completion of the review process being carried out and it is not clear to me as to whether such a review was in fact ever carried out.

I also note that in the previous academic year, the Complainant was notified of his upcoming timetable as early as the preceding July. I have been offered no explanation of what was happening between July and September of 2018. Why did it take until the end of September to start the process of notifying the Complainant that his services were no longer required? What is clear is that the Complainant was not advised of the drop off in numbers and was most certainly not given the opportunity to suggest alternative programmes, nor in any other way asked for proposals which might meet with some approval and which would allow the Complainant to continue with his cherished association with the Respondent institution.

There was no obvious clear and deliberate process for selection for Redundancy and even if it had been inevitable the process of getting to the end point should be clear and unambiguous. The various communications between the parties at the end of September signify a done deal with no real detail on how that point was reached.

On balance I find that whilst there may ultimately have been a legitimate Redundancy herein, the procedures for getting there were inadequate and unfair. I accept the Complainant’s argument that the procedures adopted (if any) seemed to be unreasonably weighted against him.

However, having regard to all the circumstances, and in particular in light of the fair and appropriate appointment of the new Assistant Professor (who has legitimately absorbed some of the Complainant’s hours in addition to providing other skills and knowledge which made him the best candidate for the position) I do not think it appropriate that the Complainant should be re-instated or re-engaged within the Respondent body.

Regarding the issue of a Notice period the Complainant has established that he was entitled to a notice period. The Complainant’s Notice must be calculated on the basis of his having commenced his employment in October 2010 and his employment having ended in September of 2018. I will accept the Complainant’s calculations regarding his gross weekly pay at a rate of €411.00 per week. The Respondent did not provide me with any formal communication addressed to the Complainant setting out the fact of Redundancy and making other provision in accordance with formal and informal entitlements. Therefore, giving Minimum Notice was not given any consideration. The series of emails which did not emanate from the Complainant does not suffice.

Complainant

Respondent

Anonymised Parties

An Adjunct Lecturer

A Third Level Education facility

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00023201-001

14/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00023201-002

14/11/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00023201-003

14/11/2018

The Respondent is a third level education institute and engaged the Complainant to provide tuition in his native language and culture. The Respondent states that it made the Complainant Redundant arising out of a dwindling interest in his chosen subject and expertise.

The Complainant gave evidence in person. I have considered the submission provided by the Complainant’s representative. I have additionally considered some documents provided after the hearing date which were unsolicited by me but which the Complainant was anxious I would consider. On balance I do not think that anything contained in these documents had a significant bearing on my decision herein. I note that the Respondent was provided with the same documents. The Complainant primary complaint herein is that he was Unfairly Dismissed and in particular he is challenging his Employer’s entitlement to make him Redundant. He says he was never provided with a cogent reason for letting him go. Instead, he asserts that his employer lacked the fortitude to retain him as a lecturer when his retention might have been unpopular with the student body arising out of cultural differences.

The Respondent’s case is quite simply that the Complainant’s core subjects were not being availed of by the student body. Whether that was because of a general disinterest or an active movement to boycott his classes is unknown to the Respondent. Either way, the Respondent could not retain the Complainant to give classes that no-one would attend.

I have carefully considered the evidence adduced in the course of this hearing. Both parties prepared and opened up their submissions to me. I heard a Mr. O’D on behalf of the Higher level education facility (the Respondent herein) and on behalf of the Complainant himself.

The Complainant has been a part of this Third Level Education Institution since his own student days - having completed a Masters and PHD programme there. Since 2010, he has been engaged on an annual and initially ad hoc basis to teach language and culture. The academic year spans September through May and it appears to be common case that the Respondent and the Complainant would work out a workable timetable each year so as to allow the Complainant also perform other community based work that he was involved in. Both parties operated with flexibility. By academic year commencing 2017/2018 the Complainant was engaged to do about 9 hours of actual lecture hours each week. He taught relevant modules to 2nd 3rd and 4th year students and was also giving evening classes as demand would have it.

It is worth noting that prior to the commencement of academic year 2017/2018 the Complainant had successfully argued that he was entitled to have a Contract of Indefinite Duration and indeed it does not appear that the Respondent resisted this demand. Despite this recognition the Complainant was not provided with a physical Contract of Employment setting out his terms and conditions of employment. Instead I was asked to take cognisance of a letter/email from KO’D   to the Complainant ‘s Union representative which confirmed (on the 19th of July 2017) that the Complainant’s schedule for 2017/2018 would comprise up to 9 hours per week and that “… the above non-core language classes will continue if sufficient students continue to opt for them. Dr Selim is entitled to continue delivering these classes indefinitely subject to this condition”

So it was that at the start of academic year 2018/2019 the Complainant was a contracted employee of the Respondent body. The Complainant’s official title appears to have been that of Adjunct Lecturer – implying a support role.

On or about the 8th of February 2018 the Complainant got caught up in a wave of negative publicity arising out of some views that he had expressed on a well-known current affairs show broadcast across the nation on a terrestrial channel.   I note that the Complainant subsequently did assert through the media that he had been mis-interpreted. However, there can be no doubt that the damage had already been done and as his “views” came to be known on the campus these was a significant backlash against him. Students protested and boycotted his classes.

In response to the refusal by a portion of his students to continue to attend his lectures, the Respondent made provision for a parallel lecturer to run the same course in tandem with the Complainant. I accept fully that the majority of the complainant’s existing students did not avail of this alternative and the Complainant himself suggests that those that left him may not have known him as well as his 3rd and 4th year students.

I accept that the Complainant was advised not to run his lectures for a week in the immediate aftermath of the broadcast and that whilst this might have felt like a form of unpaid suspension, I would accept that in fact this was done to allow a period of heightened tension to pass before the Complainant resumed his duties. On balance, I think this was a reasonable response by the Employer to an inflammatory situation.

In March of 2018 the specific department in School of Languages wherein the Complainant worked, advertised for the position of Assistant Professor. Whilst the Complainant did compete for this position he accepts that the position required an historical proficiency that was outside of his skill set. I am satisfied that the candidate that was appointed to this position was also in possession of an advanced proficiency in the language that the Complainant had heretofore been lecturing in.

However, I would further accept that the Complainant was not advised that the new appointment would affect his role or his hours one way or another.

The Complainant worked through to the end of academic year 2018 and I assume that the furore created by his own words had largely dies down by that time too.

At the end of September 2018 the Complainant was notified, without preamble or forewarning it seems, that his services were no longer required. The Complainant was notified through his Union Representative by Mr. KO’D and also by the head of the Department. Two reasons were given to the complainant. Firstly, that the new Assistant professor would be taking over some of the classes he had been doing and secondly, that no students opted for the extra modules on offer. And as previously noted…”language classes will continue if sufficient students continue to opt for them. Dr Selim is entitled to continue delivering these classes indefinitely subject to this condition”.

The only other programme of work that the complainant had heretofore been giving on an annual basis was the evening classes – and these were simply terminated pending a review.

It is not clear to me how many people did make enquiries or seek to apply to attend for any of the Complainant’s modules nor was I told what constituted a “sufficient” numbers of students.

The Complainant was given no further information, nor was he told when the review relating to the evening classes would be concluded. I note that at the date of the WRC hearing this review into the evening classes has still not been completed which seems a little surprising.

The Complainant has made an almost irresistible connection between the public outcry that he admits he himself created, and the subsequent move (as he perceives it) to drop the Complainant’s association with the Respondent institution. The Respondent emphatically denies there is any nexus between the two and makes the case that the Complainant’s position was made redundant wholly and or mainly by reason of the re-configuration in the department which brought in an Assistant Professor with many talents one of which was the ability to teach the language which the Complainant had been teaching.

Having considered the evidence and arguments presented by both sides I am satisfied that the Employer’s actions were inadequate. It cannot have been reasonable for them to present the Complainant with a termination of his Employment without any notice or any discussion at the end of September 2018. There is no transparency here. The Complainant has no idea what courses were offered to the student body which were on his behalf and he has no idea of how they were advertised or made known to the student body. Additionally, the Complainant was at no time given any evidence or even feedback on what interest there might have been in relation to his courses (I was told all such applications were made online). There was no discussion of continuing with cut back hours or on an ad hoc basis. The Complainant was made Redundant in advance of the completion of the review process being carried out and it is not clear to me as to whether such a review was in fact ever carried out.

I also note that in the previous academic year, the Complainant was notified of his upcoming timetable as early as the preceding July. I have been offered no explanation of what was happening between July and September of 2018. Why did it take until the end of September to start the process of notifying the Complainant that his services were no longer required? What is clear is that the Complainant was not advised of the drop off in numbers and was most certainly not given the opportunity to suggest alternative programmes, nor in any other way asked for proposals which might meet with some approval and which would allow the Complainant to continue with his cherished association with the Respondent institution.

There was no obvious clear and deliberate process for selection for Redundancy and even if it had been inevitable the process of getting to the end point should be clear and unambiguous. The various communications between the parties at the end of September signify a done deal with no real detail on how that point was reached.

On balance I find that whilst there may ultimately have been a legitimate Redundancy herein, the procedures for getting there were inadequate and unfair. I accept the Complainant’s argument that the procedures adopted (if any) seemed to be unreasonably weighted against him.

However, having regard to all the circumstances, and in particular in light of the fair and appropriate appointment of the new Assistant Professor (who has legitimately absorbed some of the Complainant’s hours in addition to providing other skills and knowledge which made him the best candidate for the position) I do not think it appropriate that the Complainant should be re-instated or re-engaged within the Respondent body.

Regarding the issue of a Notice period the Complainant has established that he was entitled to a notice period. The Complainant’s Notice must be calculated on the basis of his having commenced his employment in October 2010 and his employment having ended in September of 2019. I will accept the Complainant’s calculations regarding his gross weekly pay at a rate of €411.00 per week. The Respondent did not provide me with any formal communication addressed to the Complainant setting out the fact of Redundancy and making other provision in accordance with formal and informal entitlements. Therefore, giving Minimum Notice was not given any consideration. The series of emails which did not emanate from the Complainant does not suffice.

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973 - CA-00023201-001 – the Complaint herein is well-founded, and the Complainant is entitled to be paid his Minimum Notice in lieu. His Notice period was due to commence on the 1st of September 2018. Calculations are based on a start date of October 2010 and a finish date of September 30th 2019 and at a Gross rate of €411.00 gross per week.

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 -CA-00023201-002

the Complainant did not receive a statement in writing on his terms of employment as provided for under the Act. His Complaint is well-founded and I direct he be paid €500.00.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 - CA-00023201-003

the process for the selection of the Complainant was unfair and resulted in an Unfair Dismissal and I award the Complainant €4,000.00 for his loss of earnings.