Complainant

Respondent

Anonymised Parties

{A Lecturer}

{A College}

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 16 of the Protection of Employees (Part-Time Work) Act, 2001

CA-00031222-001

26/09/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00031222-002

26/09/2019

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

CA-00031222-003

26/09/2019

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

CA-00031222-004

26/09/2019

The Complainant was employed with the Respondent as a Part-time Lecturer from 16th September 2015 to 22nd August 2019.

CA-00031222-001

The Complainant says he was treated less favourably than a full-time member of staff and or he was penalised for making a protected disclosure. The Complainant says he was unfairly dismissed and selected unfairly for redundancy and the Respondent failed to follow its own redundancy procedures.

The Complainant says a proposed change of class size from 30 to 70 students appeared to amount to a breach of the QQI accreditation requirements, which includes a breach of legislation and amounts to a relevant wrongdoing within the Protected Disclosures Act 2014. This is based on the validation of courses which noted a lack of tutorials on the degree programme and required a maximum learner teacher ratio. The Respondent emailed all lecturers and informed them that 2 classes would be merged and taught as a larger group of 70 students which was above the required learner teacher ratio.

The Complainant raised concerns that amounted to a protected disclosure around 1st March 2019.

The Complainant was not contacted any further in relation to the issue until 15th August 2019 when he was informed that his employment was no longer required. On 15th August 2019, the Complainant was informed that the module he delivered would be reallocated to a full-time staff member of the college. His redundancy was confirmed on 9th September 2019.

The Respondent opted to terminate a part-time employee and give the role to a full-time employee which amounts to prima facie discrimination. The Complainant relies on S8 of the Protection of Employees (Part-Time Work) Act 2001. The comparator is the full-time employee. The Respondent was required to consider alternative options less detrimental to the Complainant including reduced salary, lecture hours, division of lecturers between full and part-time staff.

CA-00031222-002

The Complainant did not receive any paid notice of dismissal.

CA-00031222-003

The Complainant did not receive any written statement of his terms of employment. The Respondent maintains they provided a statement of terms and conditions to the Complainant around 22nd September 2015. This is denied. The contract contains a clause regarding payment of holidays. The Complainant had emailed the college regarding payment of holidays in 2016 and was told his hourly rate includes holidays, in conflict with the terms of the contract of employment relied on by the Respondent.

CA-00031222-004

The Complainant was unfairly dismissed.

The Complainant raised concerns that amounted to a protected disclosure around 1st March 2019. On 15th August 2019, the Complainant was informed that the module he delivered would be reallocated to a full-time staff member of the college. His redundancy was confirmed on 9th September 2019.

The Complainant says he was treated less favourably than a full-time member of staff and or he was penalised for making a protected disclosure. The Complainant says he was unfairly dismissed and selected unfairly for redundancy and the Respondent failed to follow its own redundancy procedures. The Complainant was dismissed for making a protected disclosure, or unfairly dismissed without cause, or in breach of fair procedures and natural justice.

The timing of the Complainant’s dismissal was just prior to commencement of the semester, and meant it was not possible for the Complainant to seek alternative employment for the following semester.

The Complainant says the Respondent did not follow its own redundancy procedures in which it reserves a right to use a matrix process for selection which will be outlined as part of the process and the criteria will be notified to staff. All other factors being equal last in first out will apply. The Complainant was one of the longest-serving members of staff on the Degree course. Alternative courses were not offered to the Complainant.

The replacement lecturer for the alleged redundant role was only recently hired, and the Respondent is actively hiring staff in suitable areas for the Complainant. The Complainant was targeted. The Respondent failed to comply with fair procedures. The Complainant relies on the Labour Court decision of Tolerance Technologies Limited v J Foran UD/16/50 and ADJ-00001516. The Respondent acted in an unreasonable manner.

CA-00031222-001

The Respondent says the Complainant commenced employment on 21st September 2015 for a fixed-term of 12 months for a specific Degree course. His employment was extended until its termination on 22nd August 2019. Employment was part-time on a week by week basis, for lecturing and additional duties.

The Complainant’s employment terminated when the academic program in which he was engaged was restructured to improve delivery, business efficiency and cost effectiveness.

The Respondent says the issues raised in the Complainant’s letter of 1st March 2019 do not amount to a protected disclosure pursuant to S5 (2) (a) and S5 (3) of the Protected Disclosures Act 2014, as the employee has not shown one or more relevant wrongdoing and has failed to confirm the relevant wrongdoing was an offence or a matter concerning a failure or likely failure to comply with any legal obligation. The grievances were not submitted to a designated recipient externally or internally nor referred to as disclosures or wrongdoing.

The Respondent disputes the ratio of 1:48 learner to teacher is a maximum, this figure was given to QQI as it is the amount of pupils the largest room could hold. Since validation the largest room has increased capacity to 70 pupils. Other service providers accommodate multiples of this number in their lecture halls. The proposed integration of the 2 groups did not proceed. The Respondent says the Degree programme was validated in 2014 without the tutorial classes referred to. The QQI reengagement panel reviewed the college programs and feedback was favourable although the final report has not been furnished.

The Complainant did not declare it was a protected disclosure at the time so could not have attracted unfair treatment.

There was no alternative candidate for redundancy, this was raised by the Complainant. The Complainant cannot sustain a position that a fulltime employee might have been an alternative candidate for redundancy. He has not identified any alternative employee. There is no basis for his complaint he was treated less favourably than any other.

CA-00031222-002

The Complainant was notified by email of 15th August 2019 that he would no longer be required to deliver the program. One calendar month was given of the change from 15th August to 16th September 2019.

CA-00031222-003

The Respondent says the Complainant was provided with a statement of the terms and conditions of his employment on 23rd September 2015.

CA-00031222-004

The Complainant interpreted the notification as a redundancy and sought his P45. He was advised this was being processed and P45’s are no longer issued. The Complainant sought to discuss the matter with the Managing Director on 23rd September 2019. On 26th September 2019 the Respondent confirmed the notification of change remained and his redundancy payment would issue. The Complainant did not request alternative hours or input. No alternative was offered as it was understood the Complainant proposed his own redundancy.

The module on which the Complainant lectured was reassigned which is common. There was no requirement for a formal process of selection for redundancy. No other employee or role was affected. The termination was not unfair, and the Complainant only raised this after the redundancy payment was being advanced.

I have considered carefully the oral and written submissions of the parties.

CA-00031222-001

The Complainant complains that he has been discriminated against as a part-time worker as his lecturing course which included his module was restructured and his hours were reallocated to a full-time worker by the Respondent.

S9 (1) of the Protection of Employees (Part-time Work) Act 2001 provides

S9 (1) …” a part-time employee shall not in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

S9 (2) Without prejudice to S11 (2) if treating a part-time employee, in respect of a particular condition of employment in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1) be so treated.”

The Protection of Employees (Part-time Work ) Act 2001 is enacted to protect part-time employees. The Complainant has raised a prima facie case of discrimination. It is open to an employer to justify less favourable treatment of a part-time worker and in order to do so, the employer must demonstrate the less favourable treatment is objective and necessary. The Respondent’s Registrar gave evidence the restructuring took place for business efficiency, cost effectiveness and as there was a drop in numbers. However, the hours were reassigned and satisfactory evidence of the alleged costs savings was not adduced. The Respondent has not shown this action is objectively justified, was appropriate and necessary and there were no alternatives to the redundancy of the Complainant.

I find the Respondent has discriminated against the Complainant on the basis of his part-time status and award €1,000 euro compensation for discrimination.

CA-00031222-002

The Complainant complains that he did not receive his paid notice entitlements of four weeks wages. The Respondent accepts this is due.

I find this complaint is well founded and direct payment of two weeks minimum notice of €627 by the Respondent to the Complainant in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973.

CA-00031222-003              

The Complainant claims he did not receive a statement of his terms of employment. The Respondent has produced a copy of a statement of terms of employment dated 23rd September 2015.

The Complainant says he was unaware of the contents of the contract of employment and raised queries regarding his holidays with the Respondent in 2016. The response given by the Respondent at the time, does not accord with the contents of the contract provided.

There was no evidence adduced that the Complainant was provided with the statement of terms of employment, accordingly, I find this complaint is well founded. I direct payment of two weeks compensation for the breach of €627 by the Respondent to the Complainant.

CA-00031222-004

The Complainant worked as a part-time lecturer on a degree course from 21st September 2015 to 19th August 2019 when his employment was terminated due to redundancy.

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 onus falls upon the employer to demonstrate the dismissal results wholly or mainly from redundancy which is a fair dismissal.

The Respondent says the academic program in which the Complainant was engaged was restructured to improve delivery, business efficiency and cost effectiveness in August 2019. Evidence was given by the Respondent Registrar that the numbers dropped to one course. Records of the numbers of applicants for the courses were not produced. The Respondent says the Complainant was made redundant as he interpreted the cessation of his hours as a redundancy. The Managing Director who discussed the proposed redundancy with the Complainant was unavailable.

The Respondent did not comply with their own redundancy policy in carrying out the redundancy, whereby the selection criteria are notified to affected staff. There was no consultation with the Complainant regarding the restructuring, nor consideration of redeployment, other hours or available assignments and a lack of transparency. The Complainant was informed his hours were taken on by full-time staff, but no evidence was adduced of grounds for this. During the same period the Respondent were taking on new staff.

Some months previously, the Complainant had objected to a proposed amalgamation of 2 courses by the Respondent in March 2019 and raised certain issues alleging this was not in compliance with the QQI validation certificate. The Respondent did not proceed with the amalgamation of the courses. However, the complaint was never investigated by the Respondent under the grievance procedure in accordance with Si 146 of 2000.

I am cognisant of the judgement of Mr. Justice Charleton in Panisi v JVC Europe Ltd [2011 ] IEHC 279 where he states ”As a matter of contract, where selection procedures for redundancy or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed”.

I am not satisfied the dismissal of the Complainant results wholly or mainly from redundancy. The Respondent has not satisfied the burden of proof. I find the Complainant was unfairly dismissed. It is just and equitable that the Complainant be awarded his financial loss for nine months of €4,503.00 gross and I direct payment of €4,503.00 by the Respondent to the Complainant.

CA-00031222-001

I find the Respondent has discriminated against the Complainant on the basis of his part-time status and award €1,000 euro compensation for discrimination.

CA-00031222-002

This complaint is well founded and I direct payment of two weeks minimum notice of €627 by the Respondent to the Complainant in accordance with the provisions of the Minimum Notice and Terms of Employment Act 1973.

CA-00031222-003

I find this complaint is well founded. I direct payment of two weeks compensation for the breach of €627 by the Respondent to the Complainant.

CA-00031222-004

It is just and equitable that the Complainant be awarded his financial loss for nine months of €4,503.00 gross and I direct payment of €4,503.00 by the Respondent to the Complainant.

Discrimination part-time worker, burden of proof, unfair dismissal