Complainant

Respondent

Anonymised Parties

A Former Tutor

An Education and Training Board

Representatives

Ibec

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032102-001

11/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00032102-002

11/11/2019

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

CA-00032102-003

11/11/2019

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

CA-00032102-004

11/11/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00032102-006

11/11/2019

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

CA-00032102-007

11/11/2019

The Complainant was employed by the Respondent from 5th February 2007 to 31st October 2019 as a Tutor. She was paid €45.44 per hour and worked approximately 8 hours a week.

The Complainant submitted a number of complaints against the Respondent.

The Complainant, in the WRC Complaint Form submitted that she did not receive any payment in relation to hours she would normally work for the weeks of 14th October, 21st October and 28th October 2019. The Complainant claimed that she is owed payment for 30 hours at €42.68 per hour. She also claimed that she was owed one fifth of her normal weekly rate of pay for the public holidays in August and October 2019 and that she did not receive her annual leave.

In her submission at the oral hearing the Complainant argued that she did not receive payments for the weeks starting on 14th, 21st and 28th October 2019. The Complainant argued that the WRC form is not a statutory form and this complaint may be more properly submitted under the Payment of Wages Act. The Complainant submitted that the Respondent was not prejudiced as the details regarding her complaint were very clearly set out.

The Complainant relied on Section 5 of the Payment of Wages Act, 1991 and claimed that the Respondent failed to pay monies normally paid to her of 10 hours per week for three weeks at €45.44, which equates to €1,363.20.

The Respondent submits as follows:

The Complainant claims that she did not receive her paid holiday/ annual leave entitlement owed to her for the week of 14th, 21st and 28th October 2019. She also seems to suggest that she is due her full pay for these weeks, being €42.68 for 30 hours, as well as her annual leave entitlement, in addition to one fifth of her normal weekly rate of pay for the public holiday in August in October.

The claim was brought under the Organisation of Working Time Act, 1997 and not under the Payment of Wages Act, 1991. The Respondent does not accept that it was not prejudiced, and as a result the Complainant cannot introduce a new claim at the hearing. In any event, the Respondent argues that the Complainant was paid her full salary until 1st November 2019. The Respondent submits that the specific project the Complainant worked in (the Project) was closed on 28th September 2019. The Complainant continued to be paid until 1st November 2019.

At the oral hearing, the Respondent argued that the Complainant was paid fortnightly in arrears e.g. payslip dated 1st November 2019 related to the payment for the period 14th – 26th October 2019. The Respondent undertook to deliver by email post hearing copies of the relevant payslips.

Post hearing, on 29th October 2020, the Respondent’s representative furnished an email from the Respondent saying that that the Complainant was paid until 11th October 2019 and providing clarification of the non-payment thereafter. The Respondent argued, in their post hearing correspondence that the system is that employees paid by claim form must submit their signed claim to the payroll department for payment. The Respondent’s payroll department does not have any record of having received from the Complainant a claim covering the weeks ending 18th and 25th October 2019, which would have been paid on 15th November 2019 and week ending 1st November, which would have been due for payment on 29th November 2019 and would have included any October public holiday entitlement. The Respondent in its email said that if the Complainant worked weeks that she did not claim for, there would be no issue paying her for same on receipt of relevant claim forms.

Preliminary matter - the applicable legislation

An issue arose at the oral hearing in relation to the applicable legislation under which the alleged contraventions in the present complaint should be considered. The Complainant referred the present complaint under the Organisation of Working Time Act.

The claim relates to three aspects, namely a) annual leave, b) public holidays in August and October 2019, c) payment of wages for weeks starting on 14th, 21st and 28th October 2019. It was agreed at the hearing that claims in respect of annual leave and public holidays are duplicated in CA- 00032102-002 and will be dealt with under this heading. CA-00032102-001 will deal with the matter of the alleged non-payment of wages.

At the outset of the oral hearing, the Complainant sought to amend the complaint referral form and have the matter considered for adjudication in accordance with the relevant provisions of the Payment of Wages Act,1991.

In considering the matter, I have noted the judgement of McKechnie J. in the Supreme Court case County Louth VEC v The Equality Tribunal [2016] IESC 40 where it was held that:

“As is evident from the aforegoing (para. 19 supra), the initiating step for engaging with the provisions of the 1998 Act is that an applicant “… seeks redress by referring the case to the Director” (s.77 (1) of the 1998 Act). In the absence of any statutory rules to facilitate such a process, the Tribunal itself, in the form of guidelines, has drafted and published what is an appropriate form to use in this regard …… I agree with the view that there is nothing sacrosanct about the use of an EE1 Form to activate the jurisdiction of the Tribunal. I see no reason why any method of written communication could not, in principle, serve the same purpose; in fact the Tribunal itself has so held in A Female Employee v. A Building Products Company DEC-E2007-036. Indeed, it is arguable that even a verbalised complaint would be sufficient to this end.”

Whilst I note that this Supreme Court judgement relates to a claim under the Employment Equality Acts, I am satisfied that the reasoning of McKechnie J., in relation to the referral of complaint to a quasi-judicial body using a non-statutory form is equally applicable in the present case. It is clear that the on-line complaint referral form used by the WRC is not a statutory form. In the present case, I am satisfied that it was clear from the information included in the Complaint referral form which the Complainant submitted to the WRC on 11th November 2019 that she was seeking redress in relation to the alleged non-payment of wages for weeks starting on 14th, 21st and 28th of October 2019. Furthermore, I note that a copy of the complaint form was forwarded to the Respondent by the WRC shortly after the date of the referral and I am satisfied that the Respondent was fully aware of the nature of the alleged contraventions underpinning the proceedings well in advance of the oral hearing.

In the circumstances, I am satisfied that I have jurisdiction to inquire into the present complaint in accordance with the provisions of the Payment of Wages Act, 1991.

Substantive matter

The Complainant alleges that she was not paid her wages for the weeks starting on 14th, 21st and 28th of October 2019. The Respondent rejects the claim.

The definition of wages under the Section 1(1) of the Payment of Wages Act, 1991 provides as follows:

“wages”, in relation to an employee, means any sums payable to the employee by the employer in connection with his employment, including—

(a) any fee, bonus or commission, or any holiday, sick or maternity pay, or any other emolument, referable to his employment, whether payable under his contract of employment or otherwise,”

The Act further states:

“5. Regulation of certain deductions made and payments received by employers

(1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless–

(a) the deduction (or payment) is required or authorised to be made by virtue of any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by virtue of a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it.

(6) Where—

(a) the total amount of any wages that are paid on any occasion by an employer to an employee is less than the total amount of wages that is properly payable by him to the employee on that occasion (after making any deductions therefrom that fall to be made and are in accordance with this Act), or

(b) none of the wages that are properly payable to an employee by an employer on any occasion (after making any such deductions as aforesaid) are paid to the employee,

then, except in so far as the deficiency or non-payment is attributable to an error of computation, the amount of the deficiency or non-payment shall be treated as a deduction made by the employer from the wages of the employee on the occasion.”

I note that in the case Sullivan v Department of Education [1998] E.L.R. 217 the Tribunal took the word payable to mean ‘properly’ payable, i.e. all sums to which an employee is properly entitled.

In a High Court case Dunnes Stores (Cornelscourt) v Lacey & O’Brien [2005] IEHC 417Finnegan P. stated that in determining claims under the legislation, the central consideration is whether or not the remuneration in question was “properly payable” to the claimant.

There was no dispute that the Complainant was employed by the Respondent until 31st October 2019 when she resigned her position.

At the adjudication hearing the Respondent relied on payslips issued to the Complainant dated 18th October and 1st November 2019. The Respondent argued that the Complainant was paid fortnightly in arrears i.e. the payslip dated 1st November 2019 related to the period from 14th to 25th October 2019. The Complainant confirmed that she did receive the payslips and the payment they related to. However, she was not confident that the payments referred to the period the Respondent claimed they did. The Complainant was convinced that she was not paid for the three weeks in question.

As copies of the payslips referred to were not made available at the hearing, the Respondent undertook to deliver same by email to the Adjudication Officer and the Complainant. However, post hearing the Respondent delivered additional submission outlining its changed view on the matter. The Respondent confirmed that the Complainant was not paid for the weeks starting on 14th, 21st and 28th October 2019. The Respondent argued that the non-payment of wages for the weeks in question was due to the Respondent not receiving relevant claim forms.

I am satisfied that copies of the correspondence received from the Respondent after the hearing were forwarded to the Complainant and she was invited to provide her comments.

In considering the matter I am guided by the Labour Court determination in Financial Services Union v Garry Hanna PWD202 where the Court found:

“Where a deduction is made in an employee’s salary it is incumbent on the employer making the deduction to identify the statutory or contractual provision under which that deduction is authorised.”

I also note the following from the Labour Court determination in A Worker v A Retail Company PWD2024 where the Court referred to the observations of White J in John Lawe v Irish Country (Pig Meats) Ltd (1998) 9 E.L.R. 266 “An employer’s fundamental obligation is to pay the agreed remuneration for the time of work during which the employee is prepared to work.”

The Respondent in the present case did not rely on a statutory or contractual basis for refusing to pay the Complainant her wages. Rather, it was relying on an administrative process, which seemingly the Complainant did not follow.

Having carefully considered all the evidence before me I am satisfied that the payment of remuneration for the weeks commencing 14th, 21st and 28th October 2019 is remuneration that is properly payable to the Complainant.

The Complainant claimed that she was owed her payment for 10 hours a week for three weeks. Neither party supplied a schedule of the hours worked by the Complainant in the relevant weeks i.e. dates and number of hours worked. At the oral hearing the parties confirmed that, while the Complainant could have been required to work more hours and, on average, she would have worked 10 hours a week, her core hours of work were eight hours a week. I note that in the final four weeks the Complainant was paid for she would have worked eight hours a week (4 hours on a Monday and 4 hours on a Tuesday). In the absence of any evidence to support the Complainant’s assertion that during the final three weeks of employment she worked in excess of her core 8 hours a week, I find that the Complainant worked eight hours a week.

Accordingly, I am satisfied from the totality of the evidence adduced that the Complainant is entitled to the payment for 24 hours at the rate of €45.44 per hour.

I declare this complaint to be well founded and I direct the Respondent to pay the Complainant the sum of €1,090.56.

The Complainant submits that the Respondent failed to pay her her public holidays entitlements for public holidays in August and October 2019.

Furthermore, the Complainant submits that the Respondent failed to pay her annual leave as provided by the Act.

The Respondent submits that the Complainant was paid an hourly rate of €45.44, which included holiday pay. The breakdown of the hourly rate is as follows: €39.99 per hour plus holiday pay of €5.45 per hour. The Respondent relied on the circular 0041/2019 issued by the Department of Education and Skills in that regard. A copy of the Circular was provided post hearing.

At the hearing the Respondent asserted that the Complainant received her public holidays’ entitlements. However, the Respondent presented no evidence to support this assertion.

Post-hearing the Respondent submitted that the Complainant did not work 40 hours in five weeks prior to the dates in questions and therefore, was not entitled to the public holiday pay. The Respondent provided copies of the ‘Part-Time Hours Claim Form’ for weeks ending 2nd – 13th September 2019, 16th – 27th September 2019 and 30th September – 11th October 2019. The Respondent also furnished an ‘Hours Centre Analysis Report’ for the Complainant for the period from September 2008 to August 2019. These records were copied to the Complainant and she was invited to submit any comments and observations.

The Complainant alleges that during her employment with the Respondent she did not receive her annual leave entitlements. She also claims that she did not receive her public holidays entitlements for the public holidays falling on 5th August and 28th October 2019. The Respondent rejects the claims.

Pursuant to Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint.

This complaint was presented to the WRC on 11th November 2019 and therefore the cognisable period that may be investigated is 12th May 2019 to the date of termination.

Annual leave

I note that Section 2(1) of the Act stipulates that “leave year” means a year beginning on any 1st day of April”. Therefore, I may adjudicate on the period from 1st April 2019 to 31st October 2019.

Section 19 of the Organisation of Working Time Act, 1997 stipulates that:

"(1) Subject to the First Schedule(which contains transitional provisions in respect of the leave years 1996 to 1998), an employee shall be entitled to paid annual leave (in this Act referred to as “annual leave”) equal to—

a)      4 working weeks in a leave year in which he or she works at least 1,365 hours (unless it is a leave year in which he or she changes employment),

b)      one-third of a working week for each month in the leave year in which he or she works at least 117 hours, or

c)       8 per cent. of the hours he or she works in a leave year (but subject to a maximum of 4 working weeks):

Provided that if more than one of the preceding paragraphs is applicable in the case concerned and the period of annual leave of the employee, determined in accordance with each of those paragraphs, is not identical, the annual leave to which the employee shall be entitled shall be equal to whichever of those periods is the greater.”

I note that while the Complainant’s initial Fixed-Term contract stipulated that “Holiday and Public Holiday may be paid in accordance with the Organisation of Working Time Act, 1997”, her Contract of Indefinite Duration, copy of which was exhibited at the hearing is silent in that regard. However, I note that the CID details:

“10. Remuneration: You will be paid at the appropriate tutor hourly rate, as laid down by the Department of Education and Skills from time to time. You will be paid for timetabled hours worked. Your hourly rate assumes the carrying out of all duties associated with the planning, delivery and evaluation of courses. Statutory deductions will be made, payment will be made in arrears by direct transfer to a bank account nominated by you on a fortnightly basis.”

The Respondent submitted that the Complainant had received an allowance or a “top up” of €5.45 per hour in lieu of her statutory annual leave entitlements. In that regard the Respondent relied on the Circular Letter 0041/2019 issued by the Department of Education and Skills, appendix 2(d) which says

In Kvaerner Cementation (Ireland) Limited v Martin Treacy DWT017 the Labour Court held as follows:

“Article 7 of the Directive provides as follows:(1)Member States shall take the measures necessary to ensure that every worker is entitled to paid leave of at least four weeks in accordance with the conditions of entitlement to, and the granting of, such leave laid down by national legislation and/or practice.(2) The minimum period of annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.Part III of the 1997 Act was enacted to give effect to Article 7(1) of the Directive. It provides employees with an entitlement to four weeks' paid annual leave per year (and proportionately less where the employee has less than a full year's employment) and to paid leave, or additional payments, in respect of public holidays. This Part also makes consequential provisions in relation to the calculation and time of payment for such leave. It also makes provision (at Section 23) for the payment of compensation to an employee where annual leave is outstanding at the cesser of his/her employment.”

The Court went on to say:

“What emerges from these statutory provisions is that:1. The primary obligation on an employer is to ensure that employees receive the requisite period of paid leave.2. That obligation cannot be offset by payment of an allowance in lieu of such leave.3. The obligation is imposed for the protection of the health and safety of workers.”

The Court decided that “the inclusion of an element in basic pay designed to cover holiday pay is inconsistent with the result which Article 7 of the Directive and Part III of the Act is intended to achieve.”

The Labour Court in Mold Nal Ltd. V Olga Motovilova DWT0754 did not accept the respondent’s position of paying an allowance in lieu of the complainant’s annual leave entitlements.

The Court stated that “[t]he right to paid annual leave is provided for by Article 7 of Directive 93/104/EC “concerning certain aspects of the organisation of working time. Section 19 of the Organisation of Working Time Act gives effect to Article 7 of the Directive and must be interpreted so as to achieve the result envisaged by the Directive.”

The Court pointed out that the Article 7 of the Directive 93/104/EC on the Organisation of Working Time provides that the prescribed minimum period of annual leave may not be replaced by an allowance in lieu, except where the employment relationship is terminated.

Having considered the evidence before me and the circumstances of this case, I find that a payment of an allowance in lieu of statutory annual leave entitlements is not acceptable under the Act. Accordingly, the complaint is well founded.

The Respondent furnished post hearing ‘Hours Centre Analysis Report’ sheets. These were copied to the Complainant, she was given an opportunity to review them and her comments and observations were sought. The Complainant did not dispute the hours of work as presented by the Respondent.

The records, which were not disputed by the Complainant show that the Complainant worked the following hours: 15 hours in April 2019, 30 hours in May 2019, 63 hours in June 2019. The Complainant did not work in July and August 2019. The signed Part-Time Hours Claim Forms show that the Complainant worked the following: 28 hours in the period 2nd- 13th September 2019, 16 hours in the period 16th – 27th September 2019, 16 hours in the period 30th September – 11th October 2019. While no further records of hours worked by the Complainant were available to me, in view of my decision CA- 00032102-001 I find that the Complainant worked 8 hours a week in week starting on 14th, 21st and 28th October 2019.

I find that the Complainant worked 192 in total in the cognisable period. Therefore, she is entitled to 15.36 hours of annual leave.

Public Holidays

In respect of the public holidays’ entitlement Section 21 of the Act provides:

“21. Entitlement in respect of public holidays

(1) Subject to the provisions of this section, an employee shall, in respect of a public holiday, be entitled to whichever one of the following his or her employer determines, namely—

(a) a paid day off on that day,

(b) a paid day off within a month of that day,

(c) an additional day of annual leave,

(d) an additional day's pay:

Provided that if the day on which the public holiday falls is a day on which the employee would, apart from this subsection, be entitled to a paid day off this subsection shall have effect as if paragraph (a) were omitted therefrom.

…

(4) Subsection (1) shall not apply, as respects a particular public holiday, to an employee (not being an employee who is a whole-time employee) unless he or she has worked for the employer concerned at least 40 hours during the period of 5 weeks ending on the day before that public holiday.”

The Complainant claims that she did not receive her entitlements in respect of public holiday falling on 5th August and 28th October 2019. It was confirmed at the hearing that the Complainant did not work during the summer months of July and August 2019. This was reflected in the records, copies of which the Respondent provided after the hearing and which confirm that the Complainant has not worked the requisite 40 hours in 5 weeks ending on 4th August 2019. She was therefore not entitled to the public holiday benefit in respect of the public holiday falling on 5th August 2019.

In respect of the public holiday falling on 28th October 2019, I find that the records available to me show that the Complainant worked 8 hours in the weeks starting on 23rd September, 30th September and 7th October 2019. In view of my findings in CA-00032102-01, I find that the Complainant worked 8 hours in the weeks starting on 14th and 21st October. The Complainant would have therefore worked the requisite 40 hours in 5 weeks ending on 27th October 2019. Accordingly, she was entitled to one fifth of her normal weekly wage in respect of her public holiday entitlement for the public holiday falling on 28th October 2018.

I declare this complaint partially well founded. The Complainant is owed 15.36 hours in respect of annual leave and one fifth of her normal weekly wage (1.6 hour) in respect of the public holiday falling on 28th October 2019 at the rate of €45.44 per hour. The Respondent is directed to pay the Complainant compensation of €800 which I deem to be just and equitable having regard to all the circumstances of this claim.

The Complainant claims that she was not notified in writing of a change to her terms of employment. She submits that she had been working approximately 358 hours each year. She claims that at the end of April 2019 she received a contract which set out that her hours would be 277 hours per year which was a significant reduction and a breach of her contract and a clear breach of the requirements of the legislation. She submits that her line manager accepted her version of events around her actual hours and committed to correct this inaccuracy but failed to do so.

The Respondent denies the claim. The Respondent submits that the Complainant commenced work in 2007 and was therefore eligible for the first contract of indefinite duration in 2010/2011 academic year. CID was issued for 277 hours as these were the hours the Complainant worked in the academic year 2010/2011. The Respondent submits that the next review of contract, “top up CID” was in 2014/2015. The Complainant worked 274 hours in the previous year, but 277 hours were shown in her updated contract. The next “top up CID” was at the end of academic year 2018/2019. The Complainant’s line manager requested an update to her contract once all hours for 2018/2019 had been calculated. On 17th September 2019 he assured the Complainant that whatever hours she had worked in 2018/2019 would be included in the contract and this would be issued by HR once prepared. The Complainant was also advised if she was unsure of the hours to contact HR directly.

The Respondent submits that the calculations showed that the third “top up” with 401 hours was due but the Complainant resigned.

The Respondent submits that the Complainant’s basic hours were eight hours a week but she would work additional hours from time to time.

The Complainant submitted her claim pursuant to Section 7 of the Terms of Employment (Information) Act, 1994. She claims that she was not notified in writing of a change to her terms of employment. The Respondent rejects the claim.

Section 5 of the Act states:

“5. Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.”

The Complainant started her employment with the Respondent in 2007. At the time she was issued with Fixed Terms Contract. In the academic year 2010/2011 the Complainant was issued with a Contract of Indefinite Duration (CID) with the hours of work of 277. She then received an updated version with, again 277 hours in 2014/2015. Subsequently, another contract was issued with 277 hours for the academic year 2018/2019 in or around April 2019. The Complainant refused to sign the updated contract and requested the hours of work to be amended. The Complainant argued that she had worked 358 hours a year for several years. It is unclear how did the Complainant arrive with this figure. The Complainant was unsure as to what detriment, if any she suffered as a result of the 277 hours being recorded her contract and it appears that it had no practical significance for the Complainant. The Complainant did not argue that she suffered any monetary loss or any other form of material detriment or prejudice in consequence of the claimed contravention of the Act.

There was no dispute at the hearing that the Complainant’s core hours of work were eight hours per week. However, from time to time the Respondent would have made more hours available to the Complainant. As a result of this mutually agreed arrangement the Complainant’s hours of work varied. The Complainant confirmed at the hearing that regardless of the number of hours included in her contract, the arrangement was flexible and while her core hours were 8 hours a week, her actual hours of work would vary. This was reflected in the summary of the hours the Complainant had worked in the years 2007 to 2019. The Complainant worked: 420 hours in the academic year 2007/2008, 306 hours in the year 2008/2009, 277 hours in 2009/2010, 277 hours in 2010/2011, 177 hours in 2011/2012, 310 hours in 2012/2013, 300 hours in 2013/2014, 274 hours in 2014/2015, 409.20 hours in 2015/2016 , 417.20 hours in 2016/2017, 401 hours in 2017/2018 and 401 hours in 2018/2019.

I find that at no stage did the Respondent introduce a change to the Complainant’s terms of employment. The Complainant’s terms of employment consistently showed 277 hours annually. The parties confirmed at the hearing that these were the basic contractual hours the Complainant was expected to work. There was no dispute that the actual hours worked by the Complainant fluctuated as a result of her accepting additional hours.

Having considered the evidence before me and the submissions of the parties, I find that the complaint as submitted cannot succeed.

I declare this complaint not well founded.

In her initial Complain form submitted to the WRC on 11th November 2019, the Complainant claimed that she has worked for the Respondent since 2007 as a Tutor and previously as an Assistant Tutor. She was engaged as a Tutor working with Travellers, however, the centre she worked in closed around end June 2019 and the Respondent has failed to provide her with suitable alternative work. The Complainant claimed that the Respondent seemed intent on offering her positions that were clearly unsuitable alternatives. Such offers included:

1. Suggesting that she takes up a role working with people with intellectual difficulties even though she advised that she was not suitably qualified for such a role. The Complainant claimed that the Respondent has continuously failed to provide her with a job description in relation to this role.

2. The Respondent suggested that she works in locations approximately 35 minutes away in two named locations, again unsuitable alternative role.

3. She was sent by the Respondent to an interview but only when she arrived at the interview, she was advised that there was no position.

4. The Respondent suggested that she waits till 2020 when there “might” be a German Tutor role. However, her line manager has advised her that this role will not materialise as there is not sufficient demand for German.

5. The Complainant has previously worked with her sibling, but serious issues arose where allegations were made by another employee that her sibling was showing favourable bias in her treatment towards the Complainant. The Complainant was shocked then when the Respondent suggested that she works with her sibling. While she has no issues working with her sibling, she could not understand why the Respondent would put her in the situation again whereby such allegations of bias could be made.

The Complainant argued that she has raised all of these issues as grievances and looked to meet with the Respondent who has failed to meet her, and she was left with no alternative but to resign her position.

At the hearing the Complainant expanded her initial claim and submitted as follows:

Without prejudice to the complaint that the position was redundant the Complainant submitted that the project she worked in closed in June 2019 and the Respondent failed to advise her of what would happen to her role despite her repeated requests such that she was left with no alternative but to resign her position. The Complainant further submitted that the Respondent has continuously failed in its obligations to her, including allowing bullying to take place and has failed in its health and safety duty of care to her, all of which were documented to the Respondent.

The Complainant submitted that the failures of the Respondent were:

Her Line Manager asked her on what area she would like to work in, and it was her expectation to continue to work with young children. She also expressed an interest in working with children with autism. The Complainant also advised her Line Manager that further training to support her work would be useful and her expectation was that this training might be in the areas of conflict resolution, crisis intervention. This was because the nature of the Complainant’s work was that she could deal with challenging difficult individuals and their families and over the years the Complainant had been subjected to verbal and physical abuse as well as threats and no such training was given.

The Complainant submitted that she was advised that there might be work available in a number of locations but all such suggestions were very vague. Some of these suggestions included:

Offer / Location 1 – the Complainant was advised to attend an interview on 6th August 2019 but it was evident that she did not have the range of skills required to teach 8/9 severally physically and mentally challenged male adults when much of her skills and experience was in the area of literacy with children; none of whom had disabilities as profound as those at location 1.

Offer / Location 2 – the Complainant was asked to attend an interview in location 2 on 12th September 2019 for a position in another location but was advised at that interview that there was in fact no vacant role. She fails to understand why the Respondent would have her attend for interview for a position that was not available and in a location that was a lot further than her previous work location.

Offer/ Location 3 – the Complainant was asked to make contact with a named youth service and this required her to make a numerous calls to them and they did not return her call. When the Complainant visited them in person on 30th September 2019, they called her for an interview on the next day. She was advised that they were looking for a maths /science teacher which the Respondent would have known that she was not suitably qualified for.

The Complainant submits that she advised her Line Manager that she would welcome a position teaching German as she is also qualified in this area, but he advised that there were no such positions available and not likely to be a position in the foreseeable future.

There were also other suggestions of possible work including Location 4 and Location 5. The Respondent failed to advise the Complainant of her options and left her hanging around without appropriate payment.

The Complainant submits that there are two tests determining if a constructive dismissal has occurred, the first test is the “contract test”. In considering this test there is a requirement to consider if a term of an employee’s contract was breached by the actions of the employer such as to make it reasonable for an employee to determine that the contract had been terminated. The Complainant submits that it is unreasonable not to provide an employee with inter alia details of an employee’s location of work,the nature of an employee’s job, and an expectation of a safe environment in which to work in. The Complainant submits that the Respondent repeatedly breached this such that she was left with no alternative but to resign her position.

The Complainant submits that the second test is the “Reasonableness Test”, in which there is a burden of proof on her to establish that the behaviour of the employer was so unreasonable that it was reasonable for her to terminate her contract of employment. The Complainant argues that, if it is found that she did not meet the contract test, she would suggest that she meets the burden of proof in the reasonableness test. The Complainant reminded that it is not always necessary to display that the complainant has exhausted all internal procedures for dealing with complaints before resigning from their employment but it is clear that she has exhausted all internal procedures and the Respondent failed to engage/reply and respond to her.

The Complainant argues that the Respondent did not take responsibility for engaging with her, its employee, and it appeared that the Respondent just wished for her to go away.

The Complainant submits that she made all reasonable efforts to seek other employment.

The Complainant was asked to shed some light on her allegation of bullying. The Complainant submitted that just before Christmas 2018 a parent of one of the participants in the Project was bullying her. She claimed that she reported the matter verbally to her manager who, in turn, referred the matter to the next in line. The Complainant said that she was subsequently informed that “policies and procedures were issued”. The Complainant noted that while she was not happy with the outcome, she did not pursue the matter. She confirmed that there were no more incidents of that nature. However, she claimed that incidents of intimidation did occur, but she did not report them. The Complainant said that she “had enough of that target group”, all she asked for was a break and to move to a different area of work.

The Respondent refutes this allegation in its entirety. The Respondent submits that it has gone to great lengths to source any suitable alternative role for the Complainant, all of which the Complainant unreasonably declined.

The Respondent submits as follows:

The Complainant started working for the Respondent in 2007 and has worked average 8 hours per week as per the last submitted timetable for year September 2018 – June 2019. The Complainant is a German and Spanish teacher with a qualification in special needs and was hired to work in the named Project (the Project). Under the new Funding Scheme, the Project could not continue in its existing format. The Adult Education Officer (AEO) met with the Complainant on 7th February 2019 to outline the potential risk of funding changes and to advise that alternative funding would be sought but would not be guaranteed and if no funding was secured then staff would need to be redeployed within the Respondent organisation.

On 17th April 2019, the Respondent met with the Complainant at her request. The Complainant attempted to discuss details of another staff member looking to move centres. As the AEO had not been formally notified of this, he rightly could not discuss it. The Complainant requested a transfer from the named project, with a particular interest in working with young people with autism / special needs. The AEO agreed to contact named organisation providing service for adults/ children with special needs. The AEO attempted to make this contact that same day and again on 16th May. The AEO then went on bereavement leave and met with the Complainant again on 10th July 2019. He outlined that no funding had been secured for the Project and the Complainant’s transfer would be proceeding. Two options available to the Complainant were outlined and she agreed to attend with the named service to discuss. The AEO emailed contacts for both services to the Complainant on 10th July 2019 by email. On the same day the Respondent forwarded the Complainant the information in relation to the Continuous Professional Development Funding for staff and encouraged her to apply, following a request from her for access to CPD. The Respondent followed up by email with the Complainant to confirm that she had received this email on 24th July 2019.

On 16th August 2019, the AEO emailed to Complainant to enquire whether she had met with the named service. The Complainant requested a meeting with him on foot of this email.

On 22nd August 2019, the AEO met with the Complainant. The Complainant confirmed that she had met with the named organisation and felt that the role was not the right fit for her. The Complainant requested that other options be explored. The AEO suggested other options including Youth Reach and a named Government Department training workshop. These options were declined by the Complainant. Other options included Adult Literacy and Traineeships. The Respondent agreed that the Complainant would continue her work in the named Project, helping to wind up the centre and deal with any outstanding issues until the end of September 2019.

The AEO emailed the Complainant on 4th September 2019. The Traineeship had not been scheduled to start at that point and was dependent on numbers. At that stage, it was not an option (though could yet become one in the future). The Adult Literacy in a named location was discussed (the Complainant was based in a location some 30 minutes away by car). The Complainant had requested to work in a separate centre from a previous colleague, and this option would allow for that. The AEO provided the Complainant with the details for the relevant Adult Literacy Organiser and encouraged her to contact him to meet and discuss this option.

On 17th September 2019, the Respondent and the Complainant met again. The Complainant had met the above Adult Literacy Organiser and felt that the Centre was not a feasible option for her. The Complainant then asked the AEO about redundancy. The AEO advised that this would be unusual as he hadn’t known anyone to received redundancy in the past. He agreed to contact the HR Manager (HR), to explore options.

The Respondent emailed the Complainant on 20th September 2019, forwarding an email from HR outlining that redundancy was not an option. The AEO reminded the Complainant of the option of work in the Adult Literacy centre in the named location. The Adult Literacy Organiser was willing to provide any necessary training or job-shadowing for the Complainant to deliver the programme. Following consultation with colleagues, the AEO informed the Complainant that no other opportunities existed for her at that time.

On 26th September 2019 the AEO emailed the Complainant again. The opportunities previously outlined were reiterated. One last potential option as an extra tutor within a named Youth Services was proposed. In order to continue being paid, the Complainant would need to be timetabled as a tutor in an ETB centre.

The Project closed on 28th September 2019. The Complainant continued to be on payroll (and was last paid on 1st November 2019).

The Complainant emailed the Respondent on 1st October 2019 to inform the AEO that she had met with the named Youth Services and there was no suitable vacancy.

On 2nd October 2019, the AEO emailed the Complainant outlining that he had spoken to the Full Time Education (FET) Director who would get in touch with her about the next steps. The FET Director requested to meet the Complainant to discuss hours and a proposed new offer of hours within a named theatre company, a subsidiary of an organisation funded in part by the Respondent. The Complainant responded by email to say that she had a bereavement and would deal with the email as soon as possible.

The FET Director emailed the Complainant again on 17th October 2019 outlining the options presented to her previously to see if she wished to reconsider and also informing her that a traineeship in German in Business was proposed for January / February 2020 and, subject to numbers taking up the course, the Complainant could deliver the German element. This would require her to work in one of the other centres until the course was established.

On 14th November 2019, the FET Director asked the AEO to invite the Complainant to a meeting on her office on Monday 18th November.

The Respondent submits that the initial roles offered to the Complainant were in the area of intellectual disability which were sourced at the request of the Complainant as the Complainant has a qualification in special needs so therefore deemed suitable. The Complainant was subsequently offered hours in Youth Reach and the named Government Department workshop – both locations work with early school leavers which is in line with the work she was undertaking in the Project. The offer of working within the Basic Education (Adult Literacy Service) was made on the basis that the Complainant was employed as a Literacy Tutor initially and, although this service works with adults, the Complainant was offered training and job-shadowing for as long as required to be comfortable delivering to adults.

As per details outlined above, any request that was made to meet her was followed up and granted as soon as was feasible to do so.

Notwithstanding that the Respondent is of the opinion that their attempts to find a role for the Complainant were genuine and exceedingly accommodating, the Respondent would submit that the failure to find a suitable alternative role would not constitute a constructive dismissal. However, this was done at a time when the Respondent was ardently attempting to find the Complainant alternative work and to suggest that not meeting within such a short time frame is so severe as to leave the Complainant with no other alternative is not credible.

The Respondent cited Duane v Masonry Fixed Services Limited:

“It is incumbent on an employee in a constructive dismissal scenario to act fairly towards his employer, just as he is entitled to expect to be treated fairly by his employer. Part of this is that he will sufficiently notify his employer of any grievance and allow the employer a reasonable opportunity to resolve it. The claimant did not do so. He resigned before allowing the claimant a reasonable opportunity to resolve his grievances. For that reason this claim under the Unfair Dismissals Acts, 1977 to 2007 fails.”

The Respondent cited also Jabczuga v Ryanair Limited.

The Respondent argues that in light of the definition of dismissal in relation to an employee in Section 1(b) of the Act and established principles adopted by the Tribunal and the Courts, there exists a burden on the employee to demonstrate that:

a)       The employee was entitled to terminate the contract of employment by virtue of a demonstrated breach of contract on part of the employer, or

b)      The employer had acted so unreasonably as to make the continuation of the employment intolerable, and it was reasonable for the employee to resign.

It is only when either of the above criteria has been met that the employee is entitled to terminate the contract of employment. It is the Respondent’s position that neither criterion had been met at the point the employee left her position. She did not utilise the grievance procedure at all. Her constructive dismissal claim is rejected, does not stand up to scrutiny and must fall.

In respect of the Complainant’s allegations of bullying, which were raised at the oral hearing, the Respondent argued that the Complainant had not raised the matter prior to the hearing and therefore it cannot be considered. The Respondent argued that it is a stranger to this and the Complainant had never raised a grievance in that regard. Moreover, the Respondent argued that as the Project was shut down from the end of June 2019 the Complainant would no longer work with the student in question and therefore, it could not be part of the reason to resign.

As the Complainant is claiming constructive dismissal, the fact of dismissal is in dispute between the parties, and in such circumstances, the onus of proof rests with the Complainant to establish facts to prove that the actions of the Respondent were such to justify terminating her employment.

The term “constructive dismissal” is not specifically provided for in the Unfair Dismissals Act 1977. However, it is a term commonly understood to refer to that part of the definition Section 1(b) of the Act which defines “dismissal”, in relation to an employee, —

“the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”

The legal test in respect of constructive dismissal was provided in the case of Western Excavating (ECC) Ltd v Sharp [1978] IRL 332. It comprises of two tests, referred to as the ‘contract’ and the ‘reasonableness’ test. It summarised the ‘contract’ test as follows “if the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance” . The ‘reasonableness’ assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so, the employee is justified in leaving.

According to the Supreme Court in Berber-v- Dunnes Stores [2009] E.L.R. 61 ”The conduct of the employer complained of must be unreasonable and without proper cause and its effect on the employee must be judged objectively, reasonably and sensibly in order to determine if it is such that the employee cannot be expected to put up with it.”

In both types of the situation, the conduct must be of sufficient gravity so as to entitle the employee to terminate his or her contract without notice or render it reasonable for the employee to do so. The question for me to decide is whether, because of the conduct of the Respondent, the Complainant was entitled, or it was reasonable for her, to terminate the contract of employment. It is well settled law in the area of constructive dismissal that an employee who terminates their own employment because of the unreasonable conduct of the employer may only succeed in a constructive dismissal action where they show that they themselves acted reasonably by seeking, prior to termination, to bring complaints to the attention of the employer with a view to resolving the issues.

In essence, in a constructive dismissal claim the burden of proof rests with the employee, who must prove that their decision to resign was both justified and reasonable. In effect, the employee must demonstrate that they had no option but to resign. The notion places a very high burden of proof on an employee to demonstrate that she acted reasonably and had exhausted all internal procedures in an attempt to resolve her grievance with her employer.

There was no dispute that the Complainant resigned from her position by email on 31st October 2019.

The Complainant initially contended that the failure of the Respondent to advise her of what would happen to her role and the failure to provide her with suitable alternative position brought about her resignation and amounted to a constructive dismissal. At the adjudication hearing the Complainant expanded her claim alleging that the Respondent has failed in its obligations to her by allowing bullying to take place and has failed in its health and safety duty of care to her.

The Respondent disputed the Complainant’s contention that her position was untenable. The Respondent argued that the Complainant was offered a number of roles and while, perhaps, it was not exactly what the Complainant would have wanted, they were suitable roles. In respect of the allegation of bullying, the Respondent claimed that it was a stranger to this allegation and the Complainant had not raised any grievance in that regard. Moreover, the Respondent argued that the allegations related to a student of the Project which was shut down, therefore the Complainant no longer worked with the student.

There was no dispute that the Project the Complainant worked in was discontinued due to issues with funding. There was also no dispute that, following the closure of the Project, the Complainant remained on the payroll associated with the Project. The Complainant confirmed at the hearing that she was “tidying up and sorting out stationary etc.”

The Complainant’s Contract of Indefinite Duration, as exhibited at the hearing states at point 4:

“Employment Centre: Your place of work is dependent on the programme to which you are assigned which may be in any centre in which any one of the Further Education Programmes Co-operation operate, currently [named]”.

While the parties disagreed as to the level of commitment on part of the Respondent in terms of securing a new position for the Complainant, at the adjudication hearing the parties confirmed that the following offers were made to the Complainant, which the Complainant declined for the reasons outlined below:

1.       Offer A – the Complainant felt that the role was not suitable for her. The work involved teaching physically and mentally challenged male adults. The Complainant asserted that her skills and experience was in the area of literacy with children and it would be unfair to the male adults to have her in the role.

2.       Offer B – similar to above role, involving adults with mental and physical disabilities. The Complainant felt that the role was not suitable.

3.       Offer C – persons between 16 and 21 years of age with no disabilities. The Complainant felt that it was the same target group as in the role she had in the Project, namely the Traveller Community. The Complainant felt that she needed a break from this specific target group.

4.       Offer D – a Government Department youth training project – persons between 15 and 20 years old. While it could involve members of Traveller Community, it was not specifically for the Traveller Community. The Complainant said she could not remember this offer but she needed a break from this specific target group.

5.       Offer E – Adult Literacy Centre – The Complainant argued that while the interview was held in a location X, she believed that the job offers were for location Y and Z. The Complainant refused the offers on the basis that they were unsuitable due to the distance (it was confirmed at the hearing that the distance was of some 25 kilometres). The Complainant confirmed that she did not inquire as to the details of the location as at this stage “she’s had enough”.

6.       Offer F – Youth Service - the Complainant argued that while she attended a meeting there was no specific offer put to her.

7.       Offer G – German tutor in a project which was due to commence in January 2020. Until January 2020 (approximately three months) the Complainant would be required to work in another centre.

Having reviewed the evidence presented to me and the parties’ submissions, I am of the view that the Respondent’s attempts to find a new role for the Complainant were not ideal. It appears that the Respondent’s approach was limited to providing the Complainant with contact details and letting her deal with the matter. Nevertheless, it was not disputed that a number of roles were offered to the Complainant and she found them unsuitable for variety of reasons. I note that the Complainant, when asked, did not confirm to this Adjudication Officer that she did not have the required the qualifications for the roles offered to her. Rather she insisted that she had been working in a challenging position for some 12 years and all she wanted was a break. While I empathise with the Complainant in regard to her tiredness and fatigue, this is a separate matter.

I find that the Complainant was offered a number of roles. On the face of it, the Complainant was qualified for the positions offered but she was not inclined to accept any and appeared to have a reason to decline any proposal from the Respondent. The Complainant was a permanent employee of the Respondent and the matter of potential termination of her employment never arose. The Complainant was paid despite the fact that the Project was terminated. Given the Complainant’s actions and taking her qualifications and experience in consideration, I am not convinced that the Respondent was in a position to offer the Complainant a position she would be prepared to accept.

For the avoidance of doubt, the Complainant did not cite the non-payment of wages as a reason contributing to her resignation. I note that the matter of non-payment of wages under CA-00032102-001 relates to payments due to be made post the Complainant’s resignation.

It is well established that in advancing a claim of constructive dismissal that an employee is required to show that he or she had exhausted all internal procedures.

The Labour Court has held in the case of Ranchin -v- Allianz Worldwide Care S.A. UDD1636 that: “In constructive dismissal cases, the Court must examine the conduct of both parties. In normal circumstances a complainant who seeks to invoke the reasonableness test in furtherance of such a claim must also act reasonably by providing the employer with an opportunity to address whatever grievance they may have. They must demonstrate that they have pursued their grievance through the procedures laid down in the contract of employment before taking the step to resign: Conway v Ulster Bank Limited UDA474/1981”.

The Employment Appeals Tribunal held in the case of Travers v MBNA Ireland Ltd UD720/2006 that: “We find that the claimant did not exhaust the grievance procedure made available to him by the respondent and this proves fatal to the claimant’s case…In constructive dismissal cases it is incumbent for a claimant to utilise all internal remedies made available to him unless good cause can be shown that the remedy or appeal process is unfair”.

In considering this issue, I am satisfied that the Respondent had an established Grievance Procedure in place. The Procedure was prepared in accordance with S.I. 146/2000 – Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000.

The Respondent submitted that it is a nationally agreed procedure, which is available on the Respondent’s website. The Respondent asserted that the procedure is also available from the managers and from HR Department and that it was emailed to all staff at some stage. The Complainant argued that she was not aware of the procedure and had not had the benefit of viewing it.

I note that the Complainant’s contract states at point 19:

“Disciplinary and Grievance Procedures: All grievance and disciplinary matters are dealt with in accordance with the agreed national policies and procedures”.

I further note that the Respondent’s website contains link to “Services”, which covers matters such as the Department of Education Circulars, Education Resources, Training Services, Corporate Services and HR, IR and Legal Support , which in turn encompasses various matters such as pensions, circular letters, Terms & Conditions of Employment for Registered Teachers, and Policies and Procedures, including Grievance and Disciplinary Procedures and Bullying Prevention Policy. The website also contains staff only password accessible services. I find it hard to believe that, having worked for some 12 years for the Respondent, the Complainant would not be aware of the resources available on the Respondent’s website. I find it implausible that the Complainant was not aware of the existence of the Grievance and Disciplinary Procedure. Moreover, I note that in her written submission the Complainant argued that “…it is not always necessary to display that the complainant has exhausted all internal procedures for dealing with complaints before resigning from their employment but it is clear that I have exhausted all internal procedures but the respondent failed to engage/reply and respond to me”. The above statement suggests that the Complainant was, in fact, aware of the existence of internal procedures and of the requirement to invoke same. However, in her opinion it was the Respondent who failed to engage. The Complainant never escalated the matter of her dissatisfaction past the two individuals she had dealt with in relation to her reassignment.

It is well established that there can be situations in which a failure to invoke the internal procedures in relation to a grievance will not be fatal in circumstances where it is established that an employee could not have faith in the employer’s ability to properly or effectively address his or her grievances (see Liz Allen -v- Independent Newspapers [2002] 13 E.L.R. 84, Moy-v-Moog Ltd [2002] 13 E.L.R. 261, Monaghan-v- Sherry Bros [2003] 14 E.L.R. 293, and New Era Packaging-v-A Worker [2001] E.L.R. 122).

Having regard to the totality of the evidence before me, I am not satisfied that there were factors present in the circumstances of the instant case which excuse the Complainant’s failure to invoke the internal grievance procedures before resigning.

In relation to the Complainant’s allegation of bullying, I find that the Complainant did not raise the matter in her initial complaint form or in any other way prior to the adjudication hearing. The Respondent submitted that the Complainant did not make any formal complaint in that regard. The Respondent has established Bullying Prevention Policy – Complaint Procedure For ETB Staff. The Procedure, similarly to the Grievance and Disciplinary Procedure is available to the staff in the manner outlined above. The Complainant submitted that, at the time she informed her manager of the issue and while she was not satisfied with the outcome, she did not pursue the matter or submit a formal complaint. I find that the Complainant did not adequately and sufficiently raise her concerns through the Respondent’s procedures. I note that the alleged incident of bullying the Complainant referred to was alleged to take place in December 2018, some 10 months before the Complainant’s resignation. There was no dispute that the student whose parents the allegations were made against attended the Project which ceased to exist in June 2019. I also note that in her resignation email the Complainant at no point stated that she had been bullied. Neither was bullying mentioned in any previous correspondence with the AEO or FET Director, copies of which the Complainant exhibited in these proceedings.  

Having examined the facts as presented, I find that the Complainant did not utilise the internal procedures available to her to process her grievance and bullying complaints. Therefore, I must conclude that the standard of reasonableness required to substantiate a claim of constructive dismissal, has not been met where the Complainant failed to exhaust the procedures available to her before taking the step to resign, thereby not providing the Respondent with an opportunity to address her grievance in a proper manner.

I find that the Complainant has failed to establish that the Respondent’s conduct was unreasonable or was such that she had no option but to resign her position or it was such as to show that it no longer intended to be bound by one or more of the essential terms of her contract. I am, therefore, satisfied that the Complainant was not constructively dismissed, and she resigned from her employment of her own volition.

I find that the Complainant resigned her position on her own volition and was not constructively dismissed within the meaning of Section 1 of the Unfair Dismissals Act, 1977.

I declare this complaint to be not well founded.

Without prejudice to her previous complaints, the Complainant submits that the Respondent has failed to pay her a redundancy payment in line with the legislation.

The Complainant argues that there was no suitable alternative work made available to her such that the Respondent is obliged to provide her with redundancy payment.

The Complainant relies on Section 7 of the Act – General right to redundancy payment.

The Complainant submits that the Respondent advised there might be possible vacancies including the following locations:

Offer / Location 1 – the Complainant was advised to attend an interview on 6th August 2019 but it was evident that she did not have the range of skills required to teach 8/9 severally physically and mentally challenged male adults when much of her skills and experience was in the area of literacy with children; none of whom had disabilities as profound as those at location 1.

Offer / Location 2 – the Complainant was asked to attend an interview in location 2 on 12th September 2019 for a position in another location but was advised at that interview that there was in fact no vacant role. She fails to understand why the Respondent would have her attend for interview for a position that was not available and in a location that was a lot further than her previous work location.

Offer/ Location 3 – the Complainant was asked to make contact with a named youth service and this required her to make a numerous calls to them and they did not return her call. When the Complainant visited them in person on 30th September 2019, they called her for an interview on the next day. She was advised that they were looking for a maths /science teacher which the Respondent would have known that she was not suitably qualified for.

There were also other suggestion of possible work but at no stage did the Respondent offer the Complainant any suitable employment and the Complainant submits, she felt that she was the one tasked with seeking another position within the organisation and the Respondent did nothing other than suggest maybe she should try contacting various people who might have roles for the Complainant.

The Complainant claims that she did not receive the redundancy payment due to her. The Respondent respectfully submits that this is not a redundancy situation as various suitable alternative employments were offered to the Complainant. It is the Complainant’s position that these roles were “unsuitable”. However, the Respondent strongly contests this. The Respondent submits that no redundancy occurred and no payment is due.

The Law:

Section 7. General right to redundancy payment of the Redundancy Payments Act, 1967 as amended:

(1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period, and

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, immediately before the date of the termination of his employment or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(2) For the purposes of subsection (1), 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, 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.

Section 9. Dismissal by employer

(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if–

(a) the contract under which he is employed by the employer is terminated by the employer, whether by or without notice, or

(b) where, under the contract under which the employee is employed by the employer the employee is employed for a fixed term or for a specified purpose (being a purpose of such a kind that the duration of that contract was limited but was, at the time of its making, incapable of precise ascertainment), that term expires or that purpose ceases without being renewed under the same or similar contract, or

(c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.

Section 15. Disentitlement to redundancy payment for refusal to accept alternative employment

(1) An employee shall not be entitled to a redundancy payment if

(a) his employer has offered to renew that employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract.

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

The Respondent submitted that at no stage the Respondent suggested redundancy to the Complainant. The Respondent emphasized on a number of occasions throughout the adjudication hearing that it operates in a sector where redundancies are not frequent. Rather, the employees move from one project to another. The parties confirmed that the Complainant inquired whether redundancy would be an option and the Respondent confirmed to her that it was not. While the Complainant’s role within the Project ceased to exist, she was offered a number of positions within the Respondent’s organisation. The Complainant confirmed at the hearing that other employees who worked with her in the Project were accommodated in other locations within the Respondent’s organisation. The Complainant accepted that she resigned her employment but argued that she did so in circumstances which justified her resignation.

I note that the Complainant’s Contract of Indefinite Duration, as exhibited at the hearing states at point 4:

“Employment Centre: Your place of work is dependent on the programme to which you are assigned which may be in any centre in which any one of the Further Education Programmes Co-operation operate, currently [named]”.

I am satisfied, based on the evidence of the parties, that the position the Complainant had been employed in ceased to exist in the particular Project. I am satisfied that the Complainant’s contract clearly provided for relocation to various centres within the Respondent organisation. The Respondent at no stage implied that redundancy payment is an option. There were a number of alternative roles offered to the Complainant, as outlined above. It appears that the Respondent was anxious for the Complainant to decide on one of the options offered as the Complainant needed to be assigned to one of the centres in order to continue to be paid. The Complainant, however, was not prepared to accept any of the proposed options and she constructively dismissed herself.

In considering whether the Complainant’s decision to refuse to move to any of the new locations was reasonable in all circumstance, I note the Labour Court decision in the case of Garrett Browne v Isabella Di Simo RPD1914 where the Court applied the English EAT case of Cambridge & District Co-operative Society Ltd v Ruse [1993] I.R.L.R. 156 as the British legislation has similar provisions. The Labour Court quoted the following passage from the EAT:

“the suitability of the employment is an objective matter, whereas the reasonableness of the employee’s refusal depends on factors personal to him and is a subjective matter to be considered from the employee’s point of view.”

In the instant case, the Complainant was a tutor with a qualification in special needs. The Respondent offered her two roles in the area of intellectual and physical disability. However, the Complainant felt that she was not prepared to work with young males with disabilities. She was then offered two roles which involved working with persons between 15 and 21 years of age with no disabilities. The Complainant again refused on the basis that she would work with members of Traveller Community, which she wanted a break from. The Complainant did not accept the Adult Literacy role as the location was not suitable, despite the mobility clause in her contract. The Complainant was also offered a role in a project which was due to commence in January 2020 on the condition that she would work in another centre until that time. The Complainant refused this offer as, as she asserted at the hearing, she believed she would remain out of work until January 2020.

While the Complainant asserted variety of reasons for her refusal to accept any of the offers, she indicated at the adjudication hearing that the key reason for her refusal to accept the Respondent’s offers was her inclination to move on from a demanding role in terms of challenging participants towards one which, as she put it would give her a break. While I am cognisant of the challenges the Complainant could have faced over the previous 12 years, I am not convinced firstly that the Complainant articulated her concerns to the Respondent, and secondly that taking the Complainant’s qualification the Respondent was in a position to offer her any more suitable roles than it already had.

In the instant case, I am satisfied, on balance and after careful consideration that it was unreasonable for the Complainant to refuse the offers made. Accordingly, I find that the Complainant is not entitled to a redundancy payment.

I disallow the Complainant’s appeal.

The Complainant submits that the Respondent has failed to offer her alternative work which is, she believes, because she is a part-time worker. She claims that the Respondent would not have treated a full-time worker in the same manner.

The Complainant submits that the Respondent treated her differently than if she had been a full-time employee and her comparator is that of any hypothetical full-time worker would have been provided with a suitable alternative position and/or would not have been constructively dismissed.

At the hearing, the Complainant submitted that there were two other part-time employees within the Project, and they were moved to different positions.

The Complainant claims that she is a part-time employee who has been treated less favourably than a comparable full-time employee. The Respondent submits that the Complainant failed to provide any proof of her belief that the Respondent “would not have treated a full time worker in the same manner”. Not only is there no comparator in this case, the Complainant has absolutely no grounds to make such an allegation. The situation has arisen as a result of funding shortage. If anything, the fact of her part-time status was an aid to holding on to the position for as long as she did. The Respondent strongly rejects the claim.

Relevant Law

Section 9 of the Protection of Employees (Part-Time Work) Act, 2001

“Conditions of employment for part-time employees

(1) Subject to subsections (2) and (4) and section 11(2), 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.

(2) Without prejudice to section 11(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.

(3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8, to a part-time employee.

(4) Subsection (1) shall, in so far, but only in so far, as it relates to any pension scheme or arrangement, not apply to a part-time employee whose normal hours of work constitute less than 20 per cent of the normal hours of work of a comparable full-time employee.

(5) For the avoidance of doubt, the reference in this section to a comparable full-time employee is a reference to such an employee either of the opposite sex to the part-time employee concerned or of the same sex as him or her.”

Section 9(1) of the Act provides the general right of part-time employees to equal treatment with comparable full-time employees in respect to conditions of employment. In order to make out a claim under the Act a claimant must first identify a comparable full-time employee against whom the claim is grounded. Section 7(2) of the Act defines “a comparable full-time employee” as follows:-

“(2) For the purposes of this Part, an employee is a comparable employee in relation to the employee firstly mentioned in the definition of “part-time employee” in this section (the “relevant part-time employee”) if–

(a) the employee and the relevant part-time employee are employed by the same employer or associated employers and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

(b) in case paragraph (a) does not apply (including a case where the relevant part-time employee is the sole employee of the employer), the employee is specified in a collective agreement, being an agreement that for the time being has effect in relation to the relevant part-time employee, to be a type of employee who is to be regarded for the purposes of this Part as a comparable employee in relation to the relevant part-time employee, or

(c) in case neither paragraph (a) nor (b) applies, the employee is employed in the same industry or sector of employment as the relevant part-time employee is employed in and one of the conditions referred to in subsection (3) is satisfied in respect of those employees,

and references in this Part to a comparable full-time employee in relation to a part-time employee shall be construed accordingly.”

The conditions mentioned in subsection (3) of s.7 are: -

“(a) both of the employees concerned perform the same work under the same or similar conditions or each is interchangeable with the other in relation to the work,

(b) the work performed by one of the employees concerned is of the same or a similar nature to that performed by the other and any differences between the work performed or the conditions under which it is performed by each, either are of small importance in relation to the work as a whole or occur with such irregularity as not to be significant, and

(c) the work performed by the relevant part-time employee is equal or greater in value to the work performed by the other employee concerned, having regard to such matters as skill, physical or mental requirements, responsibility and working conditions.”

The combined effect of these provisions is that a comparable full-time employee for the purposes of the Act is a full-time employee employed by the same employer as the complainant, (or in the absence of a comparable employee employed by the same employer, a person who comes within the terms of par (b) or (c) of s. 7(2)) who is engaged in like work with the complainant (while the term “like work”, which is used in employment equality law, is not used in the Act, the conditions set out at section 7(2) and 7(3) amount to same thing.)

In order for the Complainant to succeed in her case, she must first prove that she has been treated in a less favourable manner than a comparable full-time employee. The Complainant did not nominate a comparator for the purposes of the within complaint. Therefore, the Complainant in the present case has made no such case and her complaint cannot succeed.

I declare this complaint to be not well founded.

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