ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00017970
Parties:
| Complainant | Respondent |
Parties | An Educator | A Youth Training Centre |
Representatives | Brian Spelman Spelman Callaghan and Co Solicitors Ian Fitzharris BL | Eugene Smartt Eugene Smartt Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00023174-001 | 13/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 | CA-00023174-002 | 13/11/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 | CA-00023174-003 | 13/11/2018 |
Date of Adjudication Hearing: 28/01/2019 and 05/10/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6) of the 1977 Act, in determining for the purposes of the Acts whether or not a dismissal of an employee was an unfair dismissal or not it shall be for the employer to show that the dismissal resulted wholly or mainly from one or other of the specified grounds (as outlined in the Act – conduct, redundancy, contravention of Statute etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed from her place of employment wherein, she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 13th of November 2018) issued within six months of the dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the Complaint brought under the Unfair Dismissals legislation above, the Complainant has made further allegations that the Employer herein has contravened provisions and/or enactments of Acts (protective employment Acts) which have been specified in Schedule 5 of the Workplace Relations Act of 2015. As the Adjudicator assigned to deal with these matters, my obligation is to hear these further complaints in accordance with the mechanism set out in part 4 (and in particular, section 41) of the 2015 Act. Having heard the complaints in the manner so prescribed I am entitled to consider redress in accordance with the Redress Provisions outlined in Schedule 6 of the Workplace Relations Act of 2015.
The Complainant herein has referred a matter for adjudication as provided for under Section 7 of the Terms of Employment (Information) Act, 1994 in circumstances where a Contract of Service has commenced and where the said Employee employed by an Employer is entitled to have been provided (within two months of the commencement of the employee’s employment with the employer) with a Statement of certain Terms of the employment.
The Complainant has additionally referred a matter for adjudication as provided for under Section 12 of the Minimum Notice and Terms of Employment Act, 1973 and the referral has been made within six months of the date on which this claim accrued to the Complainant. In particular the complaint is that the Employee did not receive the appropriate Statutory Minimum notice (or payment in lieu) on termination of the employment and as outlined in Section 4 of the Minimum Notice and Terms of Employment Act 1973.
Background:
This hearing commenced in January 2019 and prior to the decision in of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021). When the case resumed in October 2021, the parties herein agreed that their preference was to complete the hearing as it had started. Therefore, whilst the evidence was not heard on Oath or Affirmation, I am satisfied that all parties and witnesses gave honest accounts of the facts. To overcome the health concerns associated with face to face hearings in the course of the Covid pandemic, the WRC has been assigned the status of “designated body” under SI 359 2020 for the purposes of Section 31 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act of 2020. This has allowed the hearing of this case to be held remotely. I confirm that this facility (on the WebEx platform) is organised and Hosted by the WRC. I am satisfied that the hearing has not been prejudiced for having been heard remotely and transparency and principles of natural justice have been observed. This case concerns the termination of an employment in the not-for profit sector. The Complainant says the termination as it concerned her was Unfair and the Respondent says that the employment relationship had to be terminated by reason of a failure to secure funding to maintain the employment. The complaint issued by way of workplace relations complaint form dated the dated the 13th of November 2018. I note that an issue relating the employed/self-employed status of the Complainant which had featured at the time of the termination had been agreed upon when the matter came before me. |
Summary of Complainant’s Case:
The Complainant was fully represented. I was provided with a comprehensive submission dated the day of. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. The Complainant alleges that he she was Unfairly dismissed.
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Summary of Respondent’s Case:
The Respondent had representation at this hearing. The Respondent provided me with a written submission. I have additionally heard from witness on behalf of the Respondent. The Respondent rejects that there has been an Unfair Dismissal.
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Findings and Conclusions:
I have carefully considered the evidence adduced over the two days allocated to this hearing. hearing. The Respondent is a Community Training Centre operating to provide specialised training and education to young people who have fallen out of mainstream secondary education. The Respondent is funded through its central body and from the Department of Education and Skills. The General Manager (JH) gave comprehensive evidence on how the Centre operates and how funding is obtained and dispersed. In particular, he described how a business plan (together with projected costs and expenses) has to be submitted annually to the Central body for approval. The ratio of children to Instruction is set at one for every ten learners and for some time now the Respondent has operated with the funding needed for 2.5 Core Instructors. The General manager emphasised that Budgets were strict and that the centre faces constant issues around under resourcing with gaps in IT and communications. Included in the Operational Budget requested every year is non-core capacity. Non-core capacity allows the Respondent to make the case for extra funding for extra hours of tuition. This could include covering absenteeism, maternity leave and Special Inputs which is a class of budgetary funding to allow for temporary learning supports in the areas of literacy and numeracy. It was explained to me that the optimal scenario is that the services of qualified teachers would be obtained on the open market. It is a feature of this funding that it allows for Contract for Service engagement only. Indeed, I heard from the Chairperson of the Board of Management that the relatively high per hour rate at €24.50 (significantly more than an equivalent member of staff) reflects the fact that the successful candidates have to pay their own tax and PRSI out of their Gross wages and, of course, wouldn’t get paid when the centre is closed. The Complainant gave evidence that a mutual friend put herself and the General Manager in touch. The Complainant was coming from long term work experience in the sector involved with meeting the needs of the more vulnerable in society. I accept that the Complainant was made aware of the fact that this was a self-employed position at the outset. She said in evidence that she was not initially familiar with how this would work but taught herself how to organise her finances and send in her invoices. The Complainant was engaged to provide Literary Support Services for 20 hours per week from March 2016. I note that the pre-employment checklist describes the position as that of “External Trainer”. In January 2017 the Complainant was taken on to teach Communications-based learner modules. This was intended to be for a further 17.5 hours per week and this was a Contract of Service arrangement made possible by the fact that the Respondent had secured funding in i’s business plan for a part time non-core salaried post. This funding had been obtained for one year up to February 2018. The Complainant was seemingly advised that if this post became permanent, she would have to compete for it in the usual way. I note a Statement of Arrangements was prepared in July of 2017 once again confirming the fact that the role of external trainer is not permanent, and the Complainant is obliged to take on the responsibility of organising her own tax affairs. I note that a subsequent scoping exercise performed by Revenue found that to all intents and purposes arrangement between these two parties amounted to a Contract of Services for the purpose of taxation. This decision does appear to have been appealed by the Respondent and was confirmed on appeal. By the time the parties came before me, both sides were reconciled to this fact, and it was agreed that the Complainant should be regarded as an employee under a Contract of Employment. I note that at the time, the Complainant continued to invoice for one half of her working week through 2017 and into 2018 and then was paid by payslip for the second half of her weekly wage. The General Manager gave evidence that the complainant had always expressed concern at the seemingly transient nature of her position. She really wanted to be made permanent. In evidence he stated that the Complainant worked much more in the communications role with the levels 3 and 4 students as against in the literacy role for which she was originally engaged. It was hoped that once a full-time role was sanctioned that she would be the successful candidate in any application process. The General Manager says the Complainant was working well and there was no issue with respect to her employment though he knew she always wanted job certainty as it impacted her entitlement to get a mortgage and credit cards. There had been a number of conversations on this issue. In her evidence, the Complainant says she found this to be a difficult workplace for her. It was quite unlike anywhere she had experienced before. She felt it was badly organised and she did more than should have been expected of her. To her mind the way in which she was getting paid was all “cloak and dagger stuff”. She says she never grasped the language of non-core and Special input and that it all went a bit over her head. The General manager was very unclear in how he explained things she said. I would to say that having heard the General Manager I have to agree with he in this regard. I do not blame the GM I am simply saying that the strategy for obtaining funds was convoluted The Complainant conceded that she often threatened to leave her role in the hope of garnering a response from JH. She’d say she needed more money or more job certainty but in fact never followed through on that. The parties do appear to have had a conversation in January 2018 and there is a conflict in the evidence as to what was said. JH said he formed the definite impression that the Complainant was planning on moving on to a new position and was asking for a three-week flexible period of lead-in to allow for training up. The Complainant says she never intended tendering a resignation. On the one hand I have to accept that the Complainant never formally offered a resignation (in writing) and nor did the Respondent ever confirm a resignation (in writing) but on the other hand the Complainant did re-organise her working hours to allow for training-up in an alternative workplace for the best part of two weeks after this conversation. In any event, the Complainant has asked me to consider the fact that her normal working pattern fell in to place from January 2018 to April of 2018 as evidence of her intention and understanding that she was not leaving the workplace. I have to accept that nobody came looking for a departure date and the normal relationship did, in fact, resume. Indeed, it appears that a conversation had in February of 2018 seems to have confirmed that the complainant’s alternative employment was not going to be working out. It is an unfortunate fact of the narrative herein that the Complainant was forced, by reason of an accident, to go out on sick leave and so was unable to work from the 17th of April 2018. I am satisfied that when the Complainant went out through injury she went out as an Employee with the Respondent company. If there had been conversations between January and April regarding reduction of hours or stepping back from certain tasks, as has been alleged by the Respondent, then these were not fully implemented or thought through. I do not see notes in the minutes of a Board of Management meetings as being evidence of anything other than a comment on a potential change. No steps had otherwise been taken. I do accept that on or about the 2nd of May 2018 the Respondent General Manager was notified that the funding needed for the Communications role being carried out by the Complainant since early 2017 was being stopped. This was not a reflection on the complainant’s performance. This was a result of the fact that an IT role had recently been advertised and filled. This effected the ratio balance (previously averred to) and the Communications post which had continued to be sanctioned on a month-to-month basis, was identified for exclusion. I accept that the Respondent felt obliged to communicate this fact with the Complainant who was out on sick leave at the time. I understand that this was a phone conversation and the Complainant in her evidence did say that she struggled to understand what this meant for her. The question of why she hadn’t applied for the IT role was part of the conversation, but the Complainant never felt this was a part of her skillset. I am satisfied that this was in fact a legitimate Redundancy situation. The role that the complainant was fulfilling was terminated through a lack of funding. This had been a permanent role held by the Complainant since early 2017 but both parties knew it was subject to continued funding being given from Central Office. I am also satisfied that the Respondent offered the Complainant alternative employment in the guise of the original position she had been engaged to undertake namely as a self-employed Literacy Teacher on a 17.5 weekly Contract for Service. I find that the Complainant knew that this alternative was on offer and I accept that the Complainant did not want that employment as the precariousness of being self-employed was not attractive and not what she wanted. I accept that the Complainant was very upset at this outcome and that she felt - as she says in evidence - that she was the only one to be treated in this way. I am finding as a matter of fact that the parties now agree that the Complainant should be considered to have been engaged on a Contract of Service from the outset. That is to say that from March of 2016 the complainant was an employee who started in a part time capacity and worked up to full time hours. This gives the complainant in excess of two years of Service. At the very least the Complainant should have received a Redundancy. Instead, the Complainant’s position was identified for Redundancy without any input from her and in circumstances where no analysis of why she was identified for termination was made known to her or latterly at this hearting to me. The Complainant was unfairly selected for Redundancy. I note that the complainant remained on sick leave until November 2018 and was back in full time alternative employment within three months of that date.
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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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00023174-001 -The Complainant was Unfairly dismissed, and I award her €5,000.00 Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994 CA-00023174-002 - This Complaint is not well founded. Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00023174-003 This Complaint is withdrawn.
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Dated: 22nd November 2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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