ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00022427
Parties:
| Complainant | Respondent |
Anonymised Parties | A Researcher | A University |
Representatives | N/A | Darragh Whelan IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 | CA-00029070-001 | 14/06/2019 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00029070-002 | 14/06/2019 |
Date of Adjudication Hearing: 17/10/2019
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The Complainant was employed as a Research Fellow/Post Doc researcher from 18th October 2013 until 31st December 2018 when his employment was terminated by reason of redundancy due to an application for further funding having been rejected. |
Summary of Complainant’s Case:
The Complainant believed that he should have been awarded a contract of indefinite duration (CID) having completed four years’ service with the university. He also stated that there were no alternative roles explored following the redundancy of his position and that he should have been considered for other positions. He also claimed that there are schemes in other universities where alternative temporary roles are provided to employees when funding ends until the researcher secures another position. |
Summary of Respondent’s Case:
The Respondent stated that the Complainant received a contract of indefinite duration by operation of law in October 2017 upon attaining four years continuous service with the University. The Respondent also stated the Complainant was made redundant because of the cessation of funding for his role and highlighted that externally funded research posts are not protected from redundancy. It was also alleged that the Complainant was not considered for other work because the Research work, in which he was engaged, is specialist while work of an administrative nature is generic. It was also stated that there are agreements in place with the university’s trade unions which would have precluded another position being offered to the Complainant. |
Findings and Conclusions:
CA-00029070-001: While it is regrettable that there was no copy of a contract of indefinite duration issued to the Complainant when he became entitled to same in October 2017, I nonetheless recognise that there is no legal requirement to do so. Given that it was confirmed in writing to the Complainant that he was on a CID further to his notification of redundancy and that this was not disputed by the Respondent at the hearing, I find that this claim was not well founded. CA-00029070-002: In reaching my decision on this claim, I have reviewed the relevant provisions of Section 6 of the Unfair Dismissals Acts 1977 to 2015. Specifically, Section 6(1) provides that a dismissal is unfair “unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”. It is the Respondent’s case that the Complainant’s position was redundant due to funding for the position having ceased and that he was fairly dismissed on these grounds. The definition of redundancy, as set out in Section 7 of the Redundancy Payments Acts is the starting point for a consideration of the Respondent’s position and Section 7 (2) sets out five definitions of redundancy. In respect of this matter, I need to concern myself with the definition at subsection 7 (2) (c): “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— (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”. The Respondent’s position is that the redundancy of the Complainant’s position was required due to the cessation of funding for the role. Accordingly, I do not consider that there was a breach of Section 6 (1) and that a redundancy situation arose in relation to the specific role in which the Complainant was engaged. I must also however have regard to the provisions of Section 6(7) of the Act (as amended) in relevant part as follows: (7) 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 or the Labour Court, as the case may be, considers it appropriate to do so— o (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal and must consider whether, notwithstanding the fact of the redundancy of the Complainant’s position, the conduct of the Respondent in relation to the dismissal was reasonable. In making a decision on this, I have examined firstly the process surrounding the notification of redundancy and whether or not there was a meaningful consultation process. I note firstly that the Complainant was insensitively informed via a poorly worded, informal email from his line manager on November 23rd 2018 that his position would be made redundant just 5 weeks later. Specifically, it is not abundantly clear from the email that he would be dismissed by reason of redundancy and there is no reference as to what his entitlements would be on the termination of his employment. Moreover, it is incomprehensible to me that a body such as the Respondent, with a sizeable HR department, did not communicate formally with the Complainant, setting out his redundancy entitlements until 20th December 2018, more than four weeks after he was notified of the redundancy by his line manager in the first instance, and only 11 days before the termination of his employment. It is also difficult to understand why there was no engagement or discussion whatsoever with the Complainant surrounding the sourcing of alternative roles given the size of the institution in question. While it was stated in evidence by a member the Respondent’s HR department, both that the Complainant’s role was specific and there are union agreements in place in the university which allegedly prevented alternative roles from being offered, I do not believe that this is not a justifiable or acceptable defence. In support of this view, I wish to highlight that the Labour Court in the matter of Trinity College Dublin and IFUT (LCR 20652), while ultimately finding in favour of the employer, appeared to give significant weight in its decision to the fact that the Respondent in that particular matter “made efforts to find suitable alternative employment opportunities for the claimant’s area of expertise” The Court further noted that despite funding for the role in that case having ceased in February 2012, “a meeting was held in that regard on 14th May 2012 to outlines its efforts to the Claimant and her union. Furthermore, while endeavouring to place the Claimant in an alternative position, the College extended her contract for two months from 1st April until 31st May 2012 by placing her on a contract working on a separate short term contract unrelated to her previous work”. There is also a significant body of case law to support the contention that an employee is unfairly dismissed in circumstances where either there was no consultation or it was deemed to be inadequate and where alternative options were not examined. In Dower vs Waterford Star UD 151/2010, the Employment Appeals Tribunal held that any reasonable employer would consult with employees whose employment is potentially affected by redundancy and would invite them to make representations so that alternatives to redundancy could be considered. On the same issue of consultation, in the matter of O’Kelly v Exil Limited UD 1086/2017, the employer was found not to have acted reasonably and fairly as there were no meetings with the Complainant prior to redundancy and no discussion with the employee about suitability for alternative positions. As well as the failure to adequately consult and engage with the Respondent, I also note that there was no avenue of appeal provided to him either in the initial email sent to him on 23rd November 2018 or in the belated correspondence issued by the HR department on 20th December 2018. Such a process could have given him the opportunity to defend his future employment and highlight his willingness to work in alternative roles. In Mackey v Resource Facilities Support Limited UD56/2009 and Fennell v Resource Support Services Limited UD57/2009, it would appear that the failure to inform the claimants of their right to appeal the redundancy decision was a relevant factor in the EAT’s finding that the redundancy was implemented in an unreasonable and unfair manner. Having considered all matters put before me, I find that the Complainant was unfairly dismissed in light of the Respondent’s breaches of 6 (7) of the Unfair Dismissals Acts 1977 -2015 and that his complaint in this regard is well founded. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
CA-00029070-001: I find that this claim was not well founded. CA-00029070-002: Given the difficulty in sourcing employment in the third level sector generally, the size of the institution in question with a significant variety and number of employment opportunities inevitably available and the unquestioned character and behaviour of the Complainant in the workplace, I do not believe that compensation is the most appropriate remedy in this instance. I must therefore consider whether he should be re-instated or re-engaged by the Respondent, notwithstanding any union agreements which may exist in the University. The Complainant stated that he has not worked since his dismissal and produced no evidence to support any mitigation of losses, indicating that he would do so after the hearing. Such evidence is not in a position to be tested however and cannot therefore not considered. I have also taken into account the 5.5 month period in which it took him to submit the unfair dismissal claim to the WRC and do not therefore consider that re-instatement without any loss of pay from the date of termination is appropriate in this instance. Instead, I find that the Complainant should be re-engaged by the Respondent University (on return of the redundancy payment) in an alternative role without loss of his prior service, within one week of the date of this decision. |
Dated: 18th December 2019
Workplace Relations Commission Adjudication Officer: Breiffni O'Neill
Key Words:
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