Complainant

Respondent

Anonymised Parties

Springboard & Learning Support Worker

Third Level College

Representatives

Alastair Purdy & Co. Solicitors

IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00023168-001

13/11/2018

The Complainant was employed on the fixed-term basis to replace a permanent employee who was on career break. The Complainant has submitted a complaint under the Unfair Dismissals Act against her former employer. The Respondent disputes that the Complainant’s dismissal was unfair and contends that it arose as a result of the resignation of the permanent post-holder and the Respondent’s consequent decision to make this position redundant.  

The Respondent submits that in accordance with Section 6(4)(c) of the Unfair Dismissals Acts 1977 to 2015 that the Complainant’s dismissal was not unfair as it arose from the Complainant’s redundancy. The Respondent’s case is that the Complainant was at all times employed on a fixed term basis to replace a permanent employee on career break and continued employment was at all times contingent on that employee remaining on career break.

In June 2014 the Respondent advertised a part-time fixed term contract for one-year duration to replace a Springboard and Learning Support Worker who was availing of a career break. The Complainant successfully applied for the role and was awarded an initial one year part-time fixed term contract on 4th August 2014. As the permanent post-holder remained on career break the Complainant’s fixed term contract was renewed on successive occasions as follows: -

13th July 2015 to 12 July 2016

1st August 2016 to 31 July 2017

1st August 2017 to 31 July 2018

On each occasion the Complainant acknowledged the fixed term status of her role and accepted the contract extension without question. On issuing the final fixed term contact on 21st July 2017 the HR Manager informed the Complainant that “As you are aware this position is to cover a member of staff on career break, however due to the decline in the role it is unlikely that the position will be extended beyond 31 July 2018 …. If you have any queries, please do not hesitate to contact me”. The Complainant did not query the contents of this letter.

On 6th July 2018 the HR Manager wrote to the Complainant stating that “the focus of the Springboard programmes on unemployed people is gone and the focus has now shifted to people in work resulting in a decision by the college that Springboard programmes must now align much closer with the role of Lifelong Learning and the Academic schools at [the Respondent]. The HR Manager indicated that the outcome of the restructuring was that 75% of the special purpose contract relating to Springboard no longer existed and consequently the post which the Complainant held was being made redundant.

Over the ensuing weeks the Complainant met with the Secretary and Financial Controller to appeal this decision. However, the position was not altered.

The Department of Education and Skills queried the entitlement to a redundancy payment for the expiration of the Complainant’s fixed term contract and the HR Manager made a case in order to secure authorisation for payment under the terms of the Collective Agreement on Redundancy Payments to Public Servants.  

On 15th August 2018 the Department of Education and Skills emailed the Respondent granting sanction for the redundancy payment on the basis that the post in question was being suppressed. Unfortunately, the approval came by email and was initially sent to spam and the Respondent was unaware of its arrival until 29th August 2018. As a result, the Respondent offered to extend the Complainant’s employment until 14th September 2018, but the Complainant declined that offer.

On 27th August 2018 the Complainant’s solicitors wrote to the Respondent disputing the legitimacy of the redundancy.

The HR Manager met with the Complainant on 29th August 2019 to outline the terms of the redundancy package on offer and the options available under the scheme and confirmed this by letter to the Complainant.

On 30th August 2018 the HR Manager responded to the Complainant’s solicitor reaffirming the rationale behind the redundancy of the Springboard and Learning Support Worker role at the Respondent as had been communicated in his letter to the Complainant on 6th July 2018. The Collective Agreement on Redundancy Payments to Public Servants allows for an ex-gratia payment in addition to the statutory lump sum redundancy payment of three weeks per year’s service with restrictions on future employment in the public service and two weeks per year’s service with no restrictions on future employment in the public service. These options with an associated Compromise Agreement were put to the Complainant in both the meeting of 29th August 2018 and by letter to her solicitor on 30th August 2018.  

The HR Manager wrote to the Complainant’s solicitor again on 5th September 2018 asking for a response with the Complainants’ decision by 10th September 2018.   The Complainant did not accept either of the ex-gratia payments offered and the Respondent paid the statutory redundancy entitlement of €4,969.12 in the September 2018 pay run.

On 20th November 2018 the Respondent received a complaint form from the WRC lodged on behalf of the Complainant by the Complainant’s solicitor disputing the redundancy and alleging unfair dismissal.

Respondent Position

The Complainant entered into employment with the Respondent on a fixed term basis in order to replace a permanent member of staff availing of a career break.   The Respondent submits that the Complainant was of the full understanding that the situation would be reviewed annually. At all times the Respondent clearly communicated with the Complainant that the contract would not be renewed in the event that the permanent member of staff either returned to their post or resigned.

Over the period from 2014 to 2018 the rate of unemployment in Ireland fell from 13% to approximately 5%. During 2017 / 2018 the Respondent undertook a review of the delivery of the Springboard programme where a greater emphasis was placed on delivering courses to those in employment on a Lifelong Learning Basis over the provision of courses for unemployed.

On foot of this, the Complainant was informed, as far back as 21st July 2017, that it was unlikely that the position of Springboard and Learning Support Worker would be extended beyond 31st July 2018. The contract was accepted, and this issue was not disputed.    On 6th July 2018 the HR Manager confirmed this by letter to the Complainant. Although the Complainant participated in a number of meetings with college management after the issue of the letter of 6th July 2018 she did not submit a grievance under the Respondent’s grievance procedure and indeed the first written complaint on the decision was received from her solicitor on 27th August 2018, seven weeks after the notification of redundancy and four days before the expiration of the Complainant’s final fixed term contract. The Respondent has a clearly defined Grievance Procedures which, along with other HR Policies and Guidelines, are recirculated annually to all staff. In the Complainant’s submission a narrative is laid out covering the period of the final fixed term contract portraying alleged mistreatment by her line manager and that these issues were brought to the attention of the HR Manager and the Secretary and Financial Controller. The only issue of this nature raised during the period in question was the Complainant’s displeasure with being asked to conduct a radio interview in June 2018 and on speaking to the HR Manager the Complainant was emphatic that she did not want to make a complaint about the issue. Also, it is important to note that the Senior HR Officer regularly signposts staff to the location of HR Policies and guidelines asking staff to contact her if they have any queries.

In the Complainant’s solicitor’s letter of 27th August 2018, the legitimacy of the redundancy is disputed in the following manner “it is difficult to ascertain how [the Respondent] can purport that our client’s position is so redundant and falls in line with the definitions under the applicable legislation.”

The Respondent refers to Section 7(2)(c) of the Redundancy Payments Acts 1967 to 2014 which contains the following definition of redundancy: -

“the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise”

The Respondent operates under the Employment Control Framework (ECF) introduced by the Government to put a cap on Public Service Numbers. At present the cap is at 312 full-time equivalent staff numbers however in June 2018 the Respondent had 332 full-time equivalent staff numbers. Accordingly, the Respondent is not in a position to create new posts but rather must aim to reduce this number.

The Respondent had clearly decided to suppress the role of Springboard and Learning Support Worker and the relevant tasks going forward were subsumed by other members of staff including the Marketing Officer, Schools Engagement and RPL Officer and other staff across the Academic Schools and across the Lifelong Learning function under the remit of the Vice President for Research, Equality and External Affairs. As the circumstances constituting the redundancy did not apply to one or more other employees in similar employment no issue of redundancy selection arose. In the Complainant’s submission a case is made that she should have been put at notice of the risk of redundancy. However, the permanent employee only informed the Respondent that he was resigning his position on 13th June 2018 at 10:14 pm by email. The events that followed were in conformity with what had been communicated with the Complainant throughout her tenure and as cited in her submission to the WRC.

The Respondent complied with the requirements of section 10 of Protection of Employees (Fixed-Term Work) Act 2003 in order to allow fixed-term employees to have the same access to permanent posts, by informing the employee in relation to relevant vacancies that arise. The Complainant applied for a number of these vacancies during her final fixed term contract.

The Respondent submits that under section 2(2)(b) of Unfair Dismissals Act 1977 to 2015 the non-renewal of a fixed-term or specified-purpose contract does not amount to an unfair dismissal. The Respondent submits that it complied with the requirements of the Protection of Employment (Fixed Term Work) Act 2003. The Complainant knew from the issue of the letter indicating the renewal of the specified purpose contract on 1st August 2017 that the employment would come to an end on 31st July 2018. In fact, the expiration date was extended in the letter of 6th July 2018 in order to apply for sanction of a redundancy payment through the Department of Education and Skills.

Notwithstanding this, a genuine redundancy situation within the meaning of Section 7(2)(c) of the Redundancy Payments Acts 1967 to 2014 existed at the time of the Complainant’s dismissal and in accordance with Section 6(4)(c) of the Unfair Dismissals Acts 1977 to 2015 that the Complainant’s dismissal was not unfair as it arose wholly from the Complainant’s redundancy.

Summary of the evidence of the Access and Lifelong Learning Co-ordinator (the Complainant’s Line Manager)

The Line Manager (LM) maintains that he is the Springboard co-ordinator in the Respondent organisation and that this is stated on the website.

LM confirmed that the Complainant carried out a very busy role.

LM maintains that he had a good working relationship with the Complainant and that she never raised any grievance with him while they worked together. He maintains that he asked the Complainant to do the radio interview as the fulltime post-holder would have done it.  

LM contends that the Business in the Community (BITC) element of the Complainant’s work accounted for less than 1% of her working time annually. He said that because the Complainant complained that she was very busy with the Springboard programme, he asked another member of staff to work in on the BITC programme. In cross-examination he confirmed that he never discussed with the Complainant that she would not be continuing her involvement with the BITC programme.

LM submits that another staff member was asked to attend the December 2017 Springboard meeting in Dublin as he was already in Dublin on other business. It is his recollection that he explained to the Complainant why she was not going to the meeting.

LM submits that he had no role in the whether or not the Complainant continued in employment. He submits that the work which the Complainant carried out has been distributed amongst other areas in the college and confirmed that the position which the Complainant held has not been filled since the fulltime post-holder resigned.

In cross-examination LM confirmed that he did not have any conversation with the Complainant about her position between the time the permanent post-holder resigned and the time the Complainant was issued with notice of her redundancy.

Summary of the evidence of the HR Manager

The HR Manager (HR) submits that the Respondent was in breach of the Employment Control Framework which is in place for Exchequer funded organisations. However, because of the nature of the Industrial Relations arrangements which operate within the Respondent’s sector at both a local and national level, the Respondent has very little scope to reduce staff numbers. The only time that the Respondent has scope to reduce staff numbers is when a permanent member of staff either retires or resigns. HR submits that the resignation of the permanent post-holder whose post the Complainant was filling on a fixed-term basis afforded the Respondent the opportunity to reduce staff numbers by suppressing the position.

HR submits that at least two more positions which were filled on a fixed term contract basis were made redundant in 2018

HR submits that he had ongoing discussions with the Heads of Functions with regard to staffing numbers. HR submits that the decision to suppress the position which the Complainant was filling was made in the first instance by the relevant Head of Function who made a submission to the Resources Committee who in turn made a full report to the Respondent’s Executive Board. HR submits that the position has not been filled.

HR submits that he tells every staff member on a fixed-term contract that the post will have to be re-advertised if the objective grounds for the contract change and he would explain that holders of fixed-term position have no automatic entitlement to the position in such instances.

In cross examination, HR accepts that he never informed the Complainant that redundancy might be a possibility and he submits that he did not engage in consultation with the Complainant because she was on a fixed-term contract. HR accepts that the Complainant should have been called into a meeting about her redundancy but contends that, from his viewpoint, the most important thing was that the Complainant be informed of the redundancy in writing.

HR submits that the Complainant did not raise any grievance about her Line Manger with him. In fact, he recollects a meeting with the Complainant about a disputed radio interview where she was emphatic that he did not discuss the matter with her Line Manager. HR submits that the Respondent’s grievance procedure is well-publicised.

Summary of the evidence of the Head of Function

The Head of Function (HF) submits that the Respondent operates in a resource constrained environment where senior management are required to be cognisant of the competing need for resources.

HF explained that, at the height of the recession, the Springboard programme was developed as a labour market activation measure.   However, it was constantly evolving and was now viewed as a labour market support programme to upskill people who were already in the workforce. HF said that it is the norm for initiatives such as Springboard to become mainstreamed over time to ensure their sustainability.

HR submits that the resignation of the permanent post-holder afforded the Respondent the opportunity to evaluate the position that he had held. A decision was made to distribute the core tasks associated with Springboard across the four academic schools and the admissions office and to suppress the role that had been filled on a fixed term basis by the Complainant. HF said that the decision to mainstream the tasks and suppress the post had been made on his recommendation as the relevant senior manager. He accepted responsibility for the decision and conceded that he should, and could, have probably done better with regard to communicating his decision to the Complainant.

Caselaw Comment

The Respondent comments as follows on the precedents submitted by the Complainant:

It is true that in the case of Lyons v. Grangemore Landscapes Limited (UD 541/2008), the EAT focused on whether the Complainant’s position was genuinely redundant. The Company had claimed that due to financial difficulties the Complainant’s position as an engineer was made redundant in January 2008 and that his job function was no longer being carried out. However, the Company subsequently employed an engineer in June 2008. This new employee had identical qualifications to the Complainant and the Complainant was not considered for this position. The EAT were influenced by the fact that no consideration was given to the possibility of offering the Complainant another role before making him redundant. The EAT also placed emphasis on the fact that a new employee, who had identical qualifications to the Complainant, was employed by the Respondent company “within a few weeks” of the Complainant’s dismissal. This case is not relevant as per the Respondent submission the role of Learning Support and School Liaison was suppressed on the resignation of the post-holder and remains unfilled.

In the case of the quote from Maloney v Deacon and Sons Ltd contained in the Complainant’s submission, the full quote reads “One of the essential features of redundancy is impersonality. One of the reasons given for the dismissal refers to the Complainant’s personality” in reference to the fact thatthe Respondents referred to matters of a disciplinary nature and a claim for backpay which was withdrawn. In the case at hand it was the role of Learning Support and School Liaison that was made redundant and as a result the Complainant’s contract came to an end.

In the case of Joe Foran V Tolerance Technologies Ltd, UD 16/50 the Court did find that the Company had failed to adequately consult with Mr Foran regarding his redundancy, failed to allow representation and failed to allow or consider an appeal to the board of the Company. In the case at hand it is critical to note that from 1st August 2017 the Complainant was on notice that her contract with the Respondent would end on 31st July 2018. The Complainant also had an opportunity to appeal the decision to the Secretary and Financial Controller but was unsuccessful in her appeal.

After the adjudication hearing, the Claimant's solicitor submitted a copy of Richard Moran V Limerick City & County Council, UD/17/46 in support of their case. The Respondent submits that the findings of this case are unrelated to the case at hand in that: -

•       Mr Moran was singled out from a group of fixed-term employees and he alone did not have his contract renewed.

•       The court accepted that Mr Moran's dismissal came about for disciplinary reasons resulting from his performance and that he was not afforded fair procedures in accordance with the disciplinary procedures of Limerick City & County Council which laid out a procedure to follow if a staff member fails to achieve the required work standard.

The Complainant submits as follows:

The Complainant was employed by the Respondent on a fixed term contract to cover an employee who had taken a career break.   The first one year fixed term contract was dated the 4th of August, 2014 and as the permanent employee continued on his career break, the Complainant was furnished with the following successive contracts.

13th of July 2015 to the 12th of July 2016

1st of August 2016 to the 31st of July 2017

1st of August 2017 to the 31st of July 2018

The Complainant’s role was that of “Springboard and Learning Support Worker” and she worked under her Line Manager.   After the first year of employment with the Respondent, the Complainant moved from a three to a five day week and her salary was increased and her title changed to that of Learning Support and School Liaison.   Initially she worked well with her Line Manager and was extremely happy with the position however at the beginning of her fourth year of employment, she became concerned and upset at the unfair treatment she felt she was receiving at the hands of her Line Manager.

The Complainant sat in an office with three men, two of whom were full time permanent employees. The Line Manager would pass the door of the office every morning and would generally ask all to go for a coffee at break time. This however appeared to cease in approximately September 2017 where the Line Manager would ask the other gentleman by name to go for a coffee but excluded the Complainant.   By December of that year the Complainant made the comment openly to the other two gentleman and asked that she be included in this coffee break as she felt extremely excluded and upset.

Her relationship with her Line Manager appeared to deteriorate after this and she felt that he communicated with her on a very scarce level in the academic year September 2017 to June 2018.

An element of the Complainant’s role was working with schools in the Business in the Community (BITC) initiative and youth reach initiative. The BITC initiative involves eight meetings with transition year students from two schools, sixteen meetings in total. The Complainant would go to the schools and teach employability skills etc., which included carrying out mock interviews and the secondary school students would also attend the Respondent for a two day taster. The Complainant would take part in this initiative with her manager and initially they got on well.   The Youthreach initiative is similar to the project described above excluding the fact that the Complainant would not visit them in their own centres.    

At the end of September 2017, the Complainant sought confirmation from her Line Manager that the BITC initiative was starting. The Complainant received a response that she should not assume that the Respondent would get funding for the initiative. However, her Line Manager assured the Complainant that he would up-date her on matters. On the 6th of October 2017, the Line Manager requested from the Complainant all information, including over heads etc., for the BITC initiative as he wished to up-date them. On the basis of this e-mail and taking into account the manner in which the initiative had run in previous years, the Complainant felt that the initiative had already commenced. She spoke with her Line Manager again and he assured her that it had not commenced and he would keep her up-dated.

By the end of November, the Complainant spoke with her Line Manager in his office and asked what was happening with the BITC project.   The Complainant was informed that the HR manager had directed the Line Manager that the Complainant no longer be involved in this project as they were seeking for her to stick more rigidly to the detail of her contract which was coming to a conclusion.   Whilst the Complainant was upset, she asked why it had taken the Line Manager so long to relay this information to her and he stated that he had tried to negotiate with HR on her behalf.  

The Complainant contacted the HR Manager at the beginning of December 2017 and sought clarity on why she was not allowed to do the BITC project. The HR Manager stated that he had no recollection of any conversation with the Line Manager in this regard and was not looking to restrict her duties.   The Complainant then sought confirmation on her role and the HR Manager informed her that as she was covering a leave of absence, if the permanent employee extended then the role was hers for another year and if he handed in his notice, the position would be advertised.

The Line Manager was accompanied by a part-time colleague in carrying out the BITC initiative and this was witnessed by many colleagues on numerous occasions. It was commented on by other colleagues to the Complainant that she appeared to be excluded and it would appear that the Respondent would have to pay the part-time staff member for a job that the Complainant was capable of doing and being prevented.

The Higher Education Authority (the HEA) scheduled a Springboard meeting in Dublin which took place on the 13th of December 2017.   The Complainant contacted her Line Manager about attending the meeting and a conversation ensued wherein her Line Manager stated that he believed her contract would expire in July and that she should start to look for another job.     The Complainant was shocked that her Line Manager could be so definitive about her role as the HEA had yet to announce any plans for the Springboard initiative and felt determined that her Line Manager did not wish for her to continue in her employment.   Despite the Complainant being the Springboard co-ordinator, she was denied the opportunity to attend the meeting.

Following the HEA meeting in Dublin on the 13th of December 2017, the Complainant approached her Line Manager and sought confirmation and information on the outcome of the meeting.   He stated that there was nothing important to report and said that he would forward on the notes which he never did. The Complainant was forced to ring a colleague also working as a Springboard Co-ordinator in another college and ask for the notes to be sent to her.   It was at this juncture that she was informed that Springboard was not in decline as had been expected but was now open to people in employment and the Government had committed to an additional €3 million for September 2018 and made reference to increasing this year on year for the next few years. It is of note that the HEA Springboard contractual agreement demands that each third level institute provides a dedicated Spring co-ordinator for the duration of courses.  

On the 23rd of April 2018 the Complainant again spoke with her Line Manager to seek clarity on whether her contract would be renewed in July of that year.   She was informed that he would speak to HR and would revert to her within two weeks.   In fact he reverted to her two days later and reiterated what the HR Manager had stated beforehand that should the permanent employee take another year, then she would be furnished with another contract and if he resigned, they would advertise the role.

On the 6th of June 2018, the Complainant again spoke to her Line Manager following a meeting with the Respondent’s Marketing Officer. The Complainant stated that the Marketing Officer would like someone to do a radio interview regarding Springboard.   As the Complainant was somewhat nervous about a radio interview and indeed was not management, she asked if he would take this on. The Line Manager said that he did not wish to do the interview either and would speak to another party. He later communicated back to the Complainant that one of the Heads of the Department would do the interview.

On the 13th of June 2018 an e-mail was received from the HEA stating that the interview was scheduled with the local radio station for the next day. At the same time, the TUI were in discussions with Respondent’s management regarding delivery of on line Springboard courses and as six out of the eleven courses were delivered on line, this was a contentious issue. In fact it was one of the Heads of Departments view that the interview should not take place. Due to this the Complainant spoke with her Line Manager about whether the interview should be proceeded with by the Head of Department.     He informed her that she was doing the interview. Despite the Complainant objecting, he stated that she was doing the interview and a dispute ensued.   As the Complainant was upset she contacted her Trade Union Rep who assured her that due to her grade, the interview should be carried out by a Manager.

On the Complainant’s attendance at work the following morning, she had received an e-mail from her Line Manager stating that she was responsible for carrying out the interview and while the Complainant gathered all the applicable relevant information for the interview she also decided to complain directly to the HR Manager. After setting out all of the facts, she asked the HR Manager if he believed it was reasonable for her to refuse to do the interview and he said he felt that it was.   The Complainant was visibly upset during this meeting with the HR Manager however the Complainant was not advised of the possibility of taking any grievance regarding the behaviour that Complainant had been subjected to by her Manager.  

The following week, the Complainant was speaking with the permanent employee whose position she was covering. He informed her that he had resigned his position and had notified HR the previous week. This came as a shock to the Complainant as at that meeting with the HR Manager she had asked whether he had any news on her contract and he stated that he did not and again reiterated what he had stated beforehand that should the permanent employee take another year, then she would be furnished with another contract and if he resigned, they would advertise the role. After the Complainant’s discussion with the permanent employee she went on pre-booked annual leave believing and understanding that the Springboard position would now be re-advertised. On her return to work on Monday the 9th of July the Complainant was contacted by her husband who stated that a letter had arrived from the Respondent. The letter, dated the 6th of July 2018, informed the Complainant that the post she holds will now be made redundant.

Obviously, the Complainant was most upset as this was something that had never been flagged by HR or higher management as a possibility. She met with the HR Manager the next day and asked why she was so abruptly informed of this decision by way of letter. The HR Manager had no answer. On Monday the 23rd of July, the Complainant met the Chief Financial Officer who agreed that she should not have received the decision the way she did and when she spoke to him in regard to her issues with her Line Manager, he stated that he couldn’t comment on those.

Comments on Respondent’s Submission

The Respondent’s submission refers to the contract issued on the 21st of July 2017 and the comment of the HR Manager.   That comment states that “due to the decline in the role, it is unlikely that the position will be extended beyond the 31st of July 2018”.   Obviously, this comment was made prior to the HEA meeting in December 2017 which broke the news that the Springboard initiative was now being expanded as opposed to being wound down and now included those in full time employment. In fact this had a substantial positive impact on the Springboard applications to the Respondent organisation in the following year, 2018.

It is quite clear from the above that due to the enormous increase in applications to the Springboard system, that the comments made by the HR Manager in July 2017 could, the Complainant submits, have no impact on the ability to make the Complainant’s position redundant.

The Respondent goes on to state that on the 6th of July 2018 the HR Manager again wrote to the Complainant (being the letter confirming her position was redundant) and it is alleged that this letter is in accordance with the indications given in the earlier letter of the July 2017.   The Complainant contends that it is impossible to state that one is in accordance with the other. In fact the comments made by the HR Manager in July 2017 clearly states that there is a decline in the uptake of Springboard courses however the comments made in July 2018 now go on to state that “the focus of the Springboard programme on unemployed people is gone and the focus is now shifted to people in work resulting in a decision by the college that Springboard programmes must now align much closer with the role of lielong learning”. Therefore the Respondent has now had to “adjust” the reason in which to make the Complainant’s position redundant which the Complainant contends clearly shows that the post itself was not redundant and the Respondent is attempting to “amend” the reasoning for terminating the Complainant’s employment.

Indeed, despite the HR Manager stating that Springboard now aligns much closer with the role of lifelong learning, it is the Complainant’s contention that Springboard has always been part of the Lifelong Learning Department.   In addition, while references are made that 75% of the special purpose contract relating to Springboard “no longer existed”, taking into account the actual circumstances in which the work of Springboard increased, it is difficult to comprehend how at that juncture in time the Respondent could allege that a restructure resulted in the Complainant’s role being made redundant. Further, no mention is made to the balance 25% of the Complainants contract which continued and is confirmed as such by an e-mail to the HR Manager dated the 2nd of July, 2018 .

With regard to the HR Manager’s interaction with the Department of Education and Skills, the Respondent states that this interaction related to obtaining a redundancy payment for the Complainant however as can be seen from the e-mail chain between the HR Manager and the Department, it is clear that the decision to make the post redundant was not “impersonal” as is required by the legislation but that same was specific to the Complainant holding the post. The HR Manager states in relation to the permanent member of staff who the Complainant was covering “as he was a permanent member of staff we would not have that opportunity to reorganise in this way. His resignation affords the opportunity”.

This sets out quite clearly that the decision to make the Complainant’s post redundant was not an impersonal decision and did not relate to matters not connected to the Complainant.   In fact if the permanent member of staff had instead still be in situ, it is noteworthy that the post would not have been made redundant.

It is strongly disputed that any rational set out is the actual rational relied on by the Respondent in relation to terminating the Complainant’s position. It is clear from that a will had been shown by the personnel of the Respondent to bring the Complainant’s employment to an end and the Complainant contends that this is highlighted by the abject failure of the Respondent to comply with the standard redundancy procedures of putting the position at risk of redundancy and consulting with the Complainant.

In reference to the Respondent’s review of the delivery of the Springboard programme, the Complainant, as the Springboard Co-ordinator, was oblivious and ignorant of any such review. Indeed no mention of such a review is referred to in any of the redundancy documentation or letter to the Complainant.

It is disingenuous of the Respondent to state that “as far back as the 21st of July 2017, that it was unlikely that the position of the Springboard and the Learning Support Worker would be extended beyond the 31st of July 2018”. The Complainant submits that the reason the comment was made at that time was the decline in numbers to the Springboard programme in 2017.   Taking into account the announcement of the HEA in December 2017 that position was “turned on its head” and indeed in 2018 the Respondent was approved for 214 places by the HEA, an increase of approximately 75% on the previous year’s figures. It was therefore necessary for the Respondent to now find a “new reason” to terminate the Complainant’s contract of employment. The Complainant appealed to the Chief Financial Officer the decision to make her redundant and this was not overturned.   Also, it is clear that the Complainant had previously complained about her Line Manager and his behaviour to the HR Manager who at no point indicated or, as per his duty of care, outlined the grievance procedure to the Complainant.  

The Respondent attempts to rely on section 7(2)(c) of the Redundancy Payments Act 1967 to justify the decision to dismiss the Complainant.   What is noteworthy is that in 2017, the Respondent was attempting to use another reason to terminate the contract by stating that the decline in applications to Springboard was the reason that the contract would may not be renewed.

It also telling, that at no juncture did the Respondent, either in discussions with the Complainant or via correspondence with her Solicitors, outline that it had a need under the Employment Control Framework to reduce its numbers. The Complainant contends, therefore, that the Respondent is continuously attempting to retrospectively justify its decision to unfairly dismiss the Complainant from her position.

Should, as the Respondent states, a decision been made to suppress the role of the Springboard Learning Support Worker, it is simply unbelievable that the Complainant would not have been put on notice of these discussions and that her position was both at risk of redundancy and indeed given the opportunity to put forward alternatives.

The Respondent states that under Section 2(2)(b) of the Unfair Dismissal Act 1977, the non-renewal of a fixed term or specified purpose contract does not amount to an unfair dismissal. Obviously, the Respondent has decided to “cherry pick” information in this regard and it is clear from the legislation and indeed case law that this is only the case if the employment contracts terminates simply by efflux of time or if a specified purposes contract, that the specified purpose comes to an end. This is not the case and indeed was not relied upon by the Respondent who instead decided to terminate the contract by way of redundancy of which the Respondent has not been able to substantiate.

It is simply not acceptable to state that this was a genuine redundancy. It is clear that firstly, the Complainant had issues in the months leading up to the termination of the contract with her Line Manager and the HR Manager of the Respondent had been put on notice of same and no action was taken.   Secondly, it has been confirmed in writing by the Respondent that if the Complainant had been the original permanent staff member, the redundancy would not have taken place.   Thirdly, the reasoning for the redundancy has changed over time and the Respondent appears to believe that it can rely on all such amended reasons. Finally if the termination was a genuine redundancy as averred to, it is simply not believable to state that the Respondent would not have engaged with the Complainant to put her on notice of same.

The Complainant submits that dismissal was not a genuine redundancy.

Summary of the Complainant’s direct evidence

The Complainant submitted that she was always known as the Springboard coordinator. She said   that she was aware that there was an increase in applications for Springboard and she assumed that, since the permanent post-holder had tendered his resignation, the position would be advertised as a permanent one and she would be given the opportunity to interview for it.

The Complainant maintained that the first time she heard that the position that she was filling was being made redundant was when she received a letter to that effect from the Respondent on 6th July 2018. Before that, she had understood from her Line Manager that if the post-holder resigned the job would be advertised, otherwise, if he continued on his career break, she would be offered another fixed term contract.

The Complainant accepted that she was a member of a Trade Union during her employment with the Respondent but stated that she was reluctant to raise a grievance about her Line Manager because she was afraid that if she did so, her contract would not be renewed.

The Complainant submitted that she appealed the redundancy but that she was unsuccessful.

Legal Argument

The first hurdle that all employers have to cross following a claim of unfair dismissal relating to a redundancy is to be prove that the redundancy is genuine.   The Complainant contends that taking into account the circumstances described above and the interactions between the Complainant, her Manager and the HR Manager and indeed the “moveable feast” of reasons for the redundancy, it is clear that this termination of employment by way of redundancy is not genuine. As set out in Lyons –v- Grangemore Landscapes Limited UD541/2008, it is essential for a Tribunal to scrutinize every case in detail to determine the genuine nature of any redundancy.

The second hurdle for an employer to cross is that of impersonality.   In Maloney –v- Deacon and Sons Limited [1996] EL230 the EAT held “one of the essential features of redundancy is impersonality”. The Complainant holds that the decision to terminate the employment was indeed related solely to the Complainant and not the position itself.

The third hurdle is that of reasonableness and the conduct of the employer. Since the enactment of the Unfair Dismissals (Amendment) Act, 1993 the reasonableness of an employer’s conduct is now an essential factor to be considered in all such dismissals (See Protection on Employment Act 1977, Section 6(7) as inserted by the Unfair Dismissals (Amendment) Act, 1993, Section 5(G)). The Complainant submits that it cannot be described as reasonable for an employer to engage in no form of consultation with an employee if a genuine redundancy did indeed exist. It is in fact standard industrial norm practice to meet with an employee and put them on notice that their position may be at risk of redundancy and indeed to discuss with them possible alternatives etc.   No such meetings took place with the Complainant who instead was given confirmation via both her Line Manager and the HR manager that the position would be re-advertised if the permanent employee resigned his post. Instead, while the Complainant was on annual leave, a letter was sent to her home address confirming that her post was now redundant.

Indeed the Labour Court has confirmed this position in the case of Tolerance Technologies Limited and Joe Foran UD/16/50. The Courtfound that the dismissal by way of redundancy was procedurally unfair.     It noted that the employee was not consulted adequately, was not afforded representation and was denied the opportunity to engage with the Board when he requested that said facility.   The Labour Court referred to Section 6(7) of the Unfair Dismissals Act which sets out that consideration must be taken of the reasonableness or otherwise of the conduct of the employer in relation to a dismissal. The Labour Court went on to state that notwithstanding the fact of redundancy or the position in that matter, the conduct of the employer in relation to the dismissal could not have been held to have been reasonable and in that regard upheld the claim of unfair dismissal.  

Following the hearing, the Complainant submitted a copy of the Labour Court Recommendation in the case of Limerick County Council and Richard Moran UD/17/46 in which the Labour Court found that “having established that the expiry of his fixed term contract was not the only factor giving rise to the decision to dismiss, that the manner in which the decision was made to dismiss the Appellantwas lacking in procedural fairness to which he was entitled”. The Complainant would suggest that that case is consistent with the case at hand.

The first matter for me to decide is whether the Respondent is entitled to rely on the exclusion provided under section 2 (2)(b) of the Unfair Dismissals Acts in defence of this claim.

Relevant Legislation

Section 2 (2)(b) of the Unfair Dismissals Acts provides that the provisions of the Unfair Dismissals Acts shall not apply to:

“dismissal where the employment was under a contract of employment for a fixed-term or for a specified purpose (being a purpose of such a kind that the duration of the contract was limited but was, at the time its making, incapable of precise ascertainment) and the dismissal consisted only of the expiry of the term without its being renewed under the said contract or the cesser of the purpose and the contract is in writing, was signed by or on behalf of the employer and by the employee and provides that this Act shall not apply to a dismissal consisting only of the expiry or cesser aforesaid.”

In order to reach a decision, I will first examine each provision of section 2 (2)(b) of the Acts as they relate to the Complainant’s contract.

Fixed Term

The first requirement of section 2 (2)(b) of the Acts is that the contract of employment is for a fixed term. In this regard, I note that both of the contracts which were issued to the Complainant include the clause that “This is a fixed term contract to cover a member of staff on Career Break”. I find, therefore, that the first requirement of section 2 (2)(b) of the Acts has been met.

Dismissal consisting only of the expiry of the fixed term

The second requirement of section 2 (2)(b) of the Acts is that the dismissal consisted only of the expiry of the term without its being renewed under the said contract. In this regard, I note the HR Manager’s letter of 6th July 2018 to the Complainant regarding the termination of her employment which included the following “I wish to put you on notice that your current contract will be extended until 1 September 2018 at which point it will be terminated”.

I find, therefore, that the second requirement of section 2 (2)(b) of the Acts has been met.

The contract is in writing and was signed by or on behalf of the employer and by the employee

The Complainant signed two fixed-term contracts with the Respondent – a part-time contract which commenced on 4th August 2014 which was replaced by a full-time contract which commenced on 13th July 2015. I find that the Complainant’s second fixed-term contract with the Respondent is in writing and is signed by both parties, thereby fulfilling the third requirement of section 2 (2)(b) of the Acts.

Explicit exclusion of the provisions of Unfair Dismissals Acts in the contract

Nowhere in either of the fixed term contracts issued to the Complainant is it explicitly stated the Unfair Dismissals Acts 1977 to 2015 shall not apply to a dismissal consisting only of the expiry of the terms of the contract.

I find, therefore, that the final requirement of section 2 (2)(b) of the Acts has not been met and, accordingly, that the Respondent is not entitled to rely on section 2 (2)(b) of the Unfair Dismissals Acts in defence of this claim.

In view of my findings above, I must now decide whether the Complainant was unfairly dismissed by the Respondent.

Relevant Legislation

Section 6(4)(c) of the Unfair Dismissals Act provides that the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy:

“the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, …”

Under the Unfair Dismissals Act, redundancy has the same meaning as it has under section 7(2) of the Redundancy Payments Act 1967, as amended:

“an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

[(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, …”

According to the Employment Appeals Tribunal in St Ledger v Frontline Distributors Ireland Ltd UD 56/1994 (reported at [1995] E.L.R. 160 at 161-162), the statutory definition of “redundancy” has two important characteristics, namely “impersonality” and “change”.

The impersonality of redundancy was emphasised by Charleton J. in JVC Europe Ltd v Ponisi [2012] E.L.R. 70, where he described it as the “economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner”.

Change

The Respondent is an Exchequer funded third level education establishment. I accept that, as such, it is subject to the Employment Control Framework (ECF) which places a cap on employee numbers. I also accept that the Respondent’s scope to reduce employee numbers to meet to the ECF criteria is significantly constrained by the collective industrial relations agreements which are in place.

In this regard, I note the EAT decision in Kinga Byrne v Dublin Institute of Technology RP2260/2009 where the EAT found that: “it is clear that “budgetary constraints” involved a cut in staff numbers, and would therefore fall within the definition of redundancy. It is also clear that it was this factor that led to the non-renewal of her fixed term contract”.

I find that an analogous situation pertains in the herein case.

In light of the constraints under which it operates, I believe that it was reasonable for the Respondent to take advantage of the opportunity afforded to it by the resignation of the permanent post-holder to change the way in which the core functions of the Springboard programme were delivered and to mainstream them across a number of functional areas.   This resulted in the suppression of the post which had been filled by the Complainant and her consequent redundancy.

A scenario such as this falls within the ambit of section 7(2)(c) of the Redundancy Payments Act which provides that an employee may be dismissed by reason of redundancy if “his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, …”

Impersonality

From the Complainant’s submissions, both written and oral, it would appear that the Complainant is of the very strong view that her post was made redundant and that she should have been involved in discussions surrounding the redundancy and the possibility of alternative employment.   From close scrutiny of the evidence adduced by both parties, it is my understanding that the Respondent took the opportunity afforded by the resignation of the permanent post-holder to reorganise the allocation of the work associated with the Springboard programme and decided to make the post redundant. I accept the Respondent’s position that the industrial relations arrangements which operate in its sector severely limit its ability to restructure and that the only opportunity it has to do so are when a permanent member of staff retires or, as in this case, resigns.

It is very important to make a clear distinction between the post that was made redundant and the post held by the Complainant. The post that was made redundant was that of a full-time permanent member of staff.   The post held by the Complainant was a fixed-term position, the purpose of which was to fill-in for a permanent member of staff who was on career break. The fact that the Complainant was eligible for a redundancy payment does not alter the situation.

Likewise, whilst it is regrettable that the Respondent’s communication concerning the suppression of the post which the Complainant was filling was sub-optimal, this does not negate the validity of the decision.

Once the permanent member of staff resigned, and the decision was made to suppress his post, the position which the Complainant was filling no longer existed. Accordingly, the possibility of the Complainant being able to engage in a competitive process to fill a permanent vacancy did not arise.

I note the Complainant’s contention that the Respondent’s decision to make her redundant was in some way connected with the difficulties that she alleges she had with her Line Manager. In this regard, I note that despite the fact that the advice of a Trade Union was available to her, the Complainant never raised a formal grievance with the Respondent. I find, therefore, that there was no causal connection between the Complainant’s alleged grievance and the decision to suppress the post that she was filling on a fixed-term basis whilst the permanent post-holder was on career break.

Accordingly, I am of the view that the Complainant cannot rely on the Limerick County Council precedent which she referenced in her submission, as the Complainant in the herein case had not invoked, nor been subject to, the Respondent’s disciplinary or grievance procedures during the course of her employment with the Respondent unlike the Complainant in the cited case. Furthermore, the Complainant in the herein case was not part of a group of fixed-term workers unlike the Complainant in the cited case who was treated less favourably than the other fixed-term workers in his cohort.

Having carefully considered the submissions of both parties and all the evidence adduced at the adjudication hearing, I find that the complaint of alleged unfair dismissal is not well founded.

I find that this case is not well founded.

Dismissal – redundancy – fixed-term contract