UDD1951

The Appellant commenced employment with the Respondent in 2010 and his employment was terminated on the 27^thor 30^thSeptember 2018.

Position of the Respondent

The Appellant commenced employment with the Respondent to teach Arabic language classes. The Respondent submitted that, in September 2017, the Appellant had proposed that his role be converted to a lectureship in Arabic. In October 2017 concerns were raised internally as regards the staffing levels within the Department of Near and Middle Eastern studies and approval was granted in January 2018 for the establishment of a full-time post of Assistant Professor in Modern Middle Eastern History which subsumed the majority of the Arabic classes. The post was advertised and the Appellant applied but was unsuccessful.

In February 2018 the Appellant was invited to speak on the subject of female genital mutilation on a TV programme. A number of viewers took exception to the Appellant’s remarks including the Respondent University’s Students’ Union. The Respondent took no steps to dismiss the Appellant but did suspend his classes for a week to ‘allow the matter to settle’.

In line with normal procedure the school included the Appellant’s classes in the list of available student options for the academic year 2018 / 2019 but students chose not to take his classes. The Appellant was therefore not engaged by the Respondent to provide any teaching in 2018 / 2019.

In accordance with the Act at Section 6(4) a dismissal ‘shall not be deemed to be unfair’ if it results wholly or mainly from the redundancy of the employee. The Respondent submitted that a genuine redundancy situation, as defined by the Redundancy Payments Act, 1967, existed with respect to the Appellant’s position. As a consequence of the filling of the post of Assistant Professor in Modern Middle Eastern History and insufficient student interest in his optional Arabic classes there was no requirement for the Appellant’s services in 2018 / 2019.

The Respondent submitted that the Assistant Professorship post was not filled in response to the Appellant’s TV appearance in February 2018 but rather arose as a consequence of an approval secured in January 2018 for the filling of the post.

The Appellant’s classes were not a core element of any degree course and the viability of the Appellant’s teaching hours were dependent on student interest.

With regard to redress sought the re-instatement of the Appellant would be wholly inappropriate in circumstances where the Appellant’s teaching hours have been subsumed into the newly created Assistant Professorship and where students have not chosen to participate in his classes.

Position of the Appellant

The Appellant submitted that on 8^thFebruary 2018 he was a guest on a TV programme where he spoke on the subject of female genital mutilation. In the course of that programme he exercised his right to express Islamic beliefs that were subsequently misrepresented to appear at odds with most opinions in Ireland.

Following the programme his classes were suspended for a week and students were offered an alternative lecturer by the Respondent. Some students however remained with the Appellant until the end of term.

Sometime after the Appellant’s return to work a position of Assistant Professor of Middle Eastern History was advertised and while the Appellant applied for the role, he was not successful. The Appellant submitted that the Respondent engineered his redundancy by filling the Assistant Professorship position by a candidate other than him and at the same time reducing the Arabic teaching to further support the decision to dismiss. He submitted that the job description of the Assistant Professorship was designed to ensure that he would not be the best suited applicant. He submitted that, on the balance of probabilities, this was planned at meetings convened by management in response to calls for his dismissal following his appearance on the TV programme.

The Appellant submitted that his redundancy was contrived in a response to his appearance on the TV show.

Relevant Law

The dismissal of the Appellant is not in dispute. Consequently, having regard to the Act at Section 6(1), the burden of establishing that the dismissal of the Appellant was fair rests upon the Respondent.

The Act at Section 6(1) provides as follows:

• 6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Subsection (4) of Section 6 states:

• (4) Without prejudice to the generality of subsection (1) of this section, 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, and

    (d) the employee being unable to work or 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 any statute or instrument made under statute.

• “redundancy” means any of the matters referred to in paragraphs (a) to (e) of section 7 (2) of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971;

• (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy 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, or

    (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

    (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Where redundancy is put forward by the Respondent as the reason for termination of the employment it is necessary for the Respondent to establish that the purported redundancy meets the definition of that term as it is used in the Act. The Act defines redundancy by reference to the Act of 1967 at Section 7(2).

The Respondent in the within matter has clarified to the Court that it relies upon Section 7(2) at subsections (b) and (c) in order to establish that a redundancy within the meaning of the Act has taken place. The Appellant has submitted that a redundancy has not taken place.

Charlton J in JVC Europe Limited v Jerome Ponisi [IEHC] (2012 ELR70) stated as follows:

• In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.”

The Court, at its hearing, invited both parties to proffer evidence on any matter. Both parties declined that invitation and instead relied wholly upon their written submissions.

The Respondent submitted that, of the four elements of the Appellant’s role, two of those elements were no longer being delivered by the Respondent and a third element had been suspended because it did not fit into the Respondent’s programme and was under review at the date of the hearing of the Court. The Respondent has also submitted that the majority of the role of the Appellant had been subsumed into the role of a newly appointed Assistant Professor of Middle Eastern History.

The Court observes that these two contentions cannot, in logic, stand together. In the event that three quarters of the elements of the Appellant’s role were discontinued or suspended it would be impossible for the majority of the role to be subsumed into the role of another newly recruited staff member. The Appellant contends that one element of his role was suspended but that all other elements continued to be delivered by the Respondent.

This case will turn on whether the Respondent can establish that a redundancy as described at Section 7(2)(b) or (c) of the Act of 1976 was the cause of termination of the Appellant’s employment.

The Respondent contends that the requirement to carry out the work which had been carried out by the Appellant had ceased or diminished in September 2018 to the degree that his role had become redundant. The Respondent submitted that the role of the Appellant comprised four elements as follows:

• 
  •Introduction to Arabic (3 hours per week)

  •Intermediate Arabic (2 hours per week)

  •Advanced Arabic (2 hours per week in Michaelmas term only)

  •Arabic Language (2 hours per week)

Neither party chose to put evidence before the Court as regards their dispute as to whether two currently delivered programmes were the same, similar or different to programmes which the Appellant had delivered. The parties made no submissions setting out detail of syllabus or programme content of the various programmes. The Court therefore has been unable to make a finding as regards the proposition that the work delivered by the Appellant had ceased to be required or had diminished to the degree that a redundancy situation had occurred as envisaged by the Redundancy Payments Act, 1967 at Section 7(2)(b). Having regard therefore to Section 6(1) of the Act, the Court finds that the Respondent has not discharged the burden of establishing facts which would allow the Court to find that a redundancy as defined at Section 7(2)(b) of the Act of 1967 had arisen such that the dismissal could be deemed to be fair.

The Respondent, in addition to submitting that three of the four elements of the Appellant’s role had been discontinued or suspended, contended that the majority of the role had been subsumed into the role of a new post of Assistant Professor of Middle Eastern History which was established at or about the time the Appellant’s employment was terminated. The Respondent submitted therefore that a redundancy situation had arisen in the manner envisaged by the Act of 1967 at section 7(2)(c).

On a plain reading of the section it is clear that in order for the Respondent to be able to rely on this section of the Act of 1967 to establish that a redundancy within the meaning of the Act has taken place, it must establish that it had decided to carry on the business with fewer or no employees. In fact however, the Respondent submitted that it had decided to continue the business with the same number of employees as previously in that it recruited an Assistant Professor and terminated the employment of the Appellant. That being the case the Court must conclude that the Respondent did not decide to carry on the business with fewer or no employees. The proposition that an employer has decided to carry on the business with fewer or no employees is a condition precedent for reliance on Section 7(2)(c) of the Act of 1967 to establish that a redundancy has taken place. The Court therefore finds that the Respondent has failed to discharge the burden of establishing that a redundancy as defined by the Act of 1967 at Section 7(2)(c) has taken place.

For the reasons set out above the Court finds that the Respondent has failed to establish that a redundancy within the meaning of the Act has taken place. Applying the reasoning of Charlton J in JVC Europe Limited v Jerome Ponisi [IEHC] (2012 ELR70) therefore the Court finds that the Respondent has failed to discharge the burden of establishing that the dismissal of the Appellant was fair. The Court therefore finds that the Appellant was unfairly dismissed.

Having made these findings it is not necessary for the Court to consider the procedure employed by the Respondent to terminate the employment of the Appellant other than to note a number of disagreements as regards matters of fact between the parties and the fact that the parties declined to proffer evidence in respect of any such matters.

Determination

The Court determines that, for the reasons set out above, the Appellant was unfairly dismissed.

The Court has considered the remedies available and has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate form of redress.

Having assessed all of the information before it, the Court considers that the Complainant has suffered financial loss as a result of his unfair dismissal. The Court, on the basis of the submission of the Appellant, is unable to determine the degree to which the Appellant, having regard to the Act at Section 7(2)(c), took steps to mitigate any loss suffered albeit he did submit that he had applied to other Universities for positions. In all of the circumstances therefore, the Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €7,500.

The Decision of the Adjudication Officer is varied.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
FMc______________________
11 September 2019Chairman



NOTE

Enquiries concerning this Determination should be addressed to Fiona McCarthy, Court Secretary.