Complainant

Respondent

Anonymised Parties

An Employee

A College

Representatives

VivianCullenSIPTU-Trade Union

Hugh HegartyManagement Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00021262-001

22/08/2018

The Complainant was an Academic Co-Ordinator and Director of the college since March 2014. He was dismissed due to redundancy on 31 July 2018.

The Complainant was the subject of formal complaints and 2 investigations, grounds were found for the accusations made against him. He was not fully aware of all grievances by his former colleagues. An investigation took place into allegations made by a former employee and the way in which her complaint was dealt with, the Complainant had no knowledge of this and was not asked to participate in the investigation which occurred while he was still employed. At the same time the Complainant was told that mediation would take place in the future regarding other complaints which did not happen.

This is an abuse of procedures by the Respondent to the detriment of the Complainant’s rights and undermines trust and confidence which is an implied term.

Where an employee is dismissed due to serious or gross misconduct, the behaviour of the worker is called into question as a result of a complaint, which must be substantiated. The worker has a presumption of innocence and the right to access due process (SI 146 of 2000).

There were a plethora of complaints made against the Complainant, but instead the Respondent chose to masquerade an unfair dismissal as a redundancy situation.

He was then made redundant and offered alternatives that were not suitable for his experience or skill set. He was excluded from positions which would utilise his skills and says the Respondent used false premises to justify their position.

The Complainant was not given or provided with an alternative such as a salary cut, freeze, reduced working hours, job sharing, tangible alternative roles, or other alternatives.

The Complainant’s representatives rely on St. Ledger v Frontline Distributors Ireland Ltd which held: “impersonality runs through the five definitions in the [Redundancy Acts]. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job”.

Impersonality is necessary in a genuine redundancy situation and the change must arise as a result of a change in the workplace. The onus is on the employer to supply objective criteria to act fairly and reasonably towards their employees, to justify the selection for dismissal due to redundancy. Definition (d) and ( e) involve change in the way the work is done or change in the nature of the job. (e ) must involve partly work of a different kind which is the meaning of “other work”. More or less work of the same kind does not mean “other work” only quantitative change.

The Respondent says there was a genuine redundancy situation at the time and relies on S6 (4) (c ) of the Unfair Dismissals Acts 1977-2015 that a dismissal is deemed not to be an unfair dismissal if it resulted wholly or mainly from the redundancy of the employee.

The Claimant commenced as a Teacher, was then a Co-Ordinator and was an English Director when he was made redundant. As a Director he was responsible for assisting with management, oversight and development of pre-university provision and English, co-ordination of a campus project, including timetabling staff, coordinating content, and exams.

Eight positions were identified in April 2018 to be at risk due to severe financial loss in 2016/2017 financial year, and streamlining required.

The consultation period began on 16^th April 2018 and the Claimant and 7 others were at risk. All were invited to apply for alternative positions within the organisation and group. The Claimant applied for newly created positions as Head of Teaching and Learning and Assistant Director of Studies.

The Claimant did not possess the required qualifications nor experience for the post of Head of Teaching and Learning and was not called for interview.

The Claimant and 2 others were called for interview for the post of Assistant Director of Studies. The interview was competency based and was conducted by a London based academic director and the acting head of school. Another candidate employed by the Respondent who scored higher accepted the position. The Respondent informed the Claimant that the other candidates who were interviewed had more direct and relevant experience. The Respondent says it acted reasonably and objectively when it established and applied the selection criteria.

The interview process was fair and independent. The Complainant availed of the Appeal process which was conducted by the Group CEO. The Complainant alleged the allegations raised by colleagues created a bias against him, the redundancy process was unfair, he was excluded from jobs and the selection process was biased and unfair, and there was no genuine provision of alternative roles. These were addressed thoroughly and the Appeal denied.

I have considered the oral and written submissions of the parties in reaching my decision.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal.

 Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

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

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer as the case may be, considers it appropriate to do so-

(a)    to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal and,

(b)    to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee with the procedure referred to in S14 (1) of this Act, or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals Amendment Act 1993) of section 7 (2) of this Act.

The Complainant is the Academic Co-Ordinator and Director of the Respondent since March 2014. He was dismissed due to redundancy on 31 July 2018. I am satisfied there is evidence of a financial basis for the restructuring and consideration of redundancy by the Respondent.

S6 (3) of the Unfair Dismissals Acts 1977-2015 applies where an employee is dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and the selection of the employee for dismissal resulted from a prohibited ground under S2 or another matter that would not be a ground justifying dismissal, or he was selected for dismissal in contravention of an agreed procedure (with a Trade Union or excepted body or established by custom and practice) relating to redundancy and there were no special reasons for departure from that practice.

The Complainant applied for 2 positions. He was informed he was not qualified for the Head role which he disputes. He was interviewed for the Assistant Director role, but a colleague received higher scores. The acting Head of the school was on the interview panel. She had informed him about the Petition. He was the only member of academic staff that was made redundant.

Some months prior to the Complainant’s redundancy a number of complaints had been made against him by former and existing staff. In addition, there was a Petition signed by 23 staff alleging repeated errors in tests prepared by the Complainant and problems with the process. Following the Petition, in April 2018 the internal assessment role was removed from the Complainant. He was informed of this in front of other staff. There was no discussion with him nor consideration of the concerns. The Respondent says the Petition referred to the process not specifically to the Complainant and so it was given to a member of management to resolve. I do not find this credible. The Petition refers to repeated complaints about the exam papers and solutions all of which were part of the Complainant’s role, and he should have been given an opportunity to respond to the Petition in accordance with fair procedures.

The Complainant agreed to attend mediation in order to resolve the complaints. This was deferred until after the restructuring took place. At the same time an investigation into the complaints of one former member of staff was being conducted by an external investigator. This commenced while the Complainant was employed, but he was not notified about it nor did he participate in this investigation. 

The Respondent says that all complaints were investigated, no fault was attributed to the Complainant and one issue was due to go to mediation. This is not so, the initial investigation partially upheld the former employee’s complaint. The external investigator (who had not interviewed the Complainant and made no findings) found the former employee to be a credible witness and it is probable that the facts as she described did take place. He also noted that the first investigator claimed to have interviewed all the employees involved which the Complainant confirmed did not occur. The first investigator concluded “Although we could not confirm all of your allegations, it does appear that inappropriate behaviour and violations took place”. The external investigator partially upheld the complaint of the former employee in June 2018. This former member of staff returned to the Respondent after the Complainant was made redundant.

The Courts are cognisant of the serious damage that can be caused to the reputations of individuals where there are allegations of bullying and harassment. Ms. Justice Irvine outlined the entitlement of employees to fair procedures in investigations and disciplinary processes and SI 146 Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order 2000 in Irish Rail v McKelvey. Fair procedures are an essential requirement to ensure that an alleged perpetrator can defend their name and to ensure a fair process is applied.

In the absence of the Respondent properly investigating the serious complaints against the Complainant, I am not convinced that the Respondent has acted reasonably as this has significantly disadvantaged the Complainant. I am also of the view that the unresolved allegations tainted consideration of the Complainant for other roles within the Respondent.

I find the Complainant was unfairly dismissed, and it is just and equitable to award him 7,748 euro gross which is his full financial loss. This payment is in addition to the redundancy lump sum already paid

The Complainant was unfairly dismissed, and it is just and equitable to award him 7,748 euro gross which is his full financial loss. This payment is in addition to the redundancy lump sum already paid.

Genuine redundancy, selection for dismissal, unresolved complaints, failure of employer to adequately investigate complaints, selection procedures inadequate