Complainant

Respondent

Parties

Michael  Keohane

Fr.  John Mc Carthy

Representatives

Terence O'Sullivan Solicitors

 Collins, Brooks & Associates

Act

Complaint and Dispute Reference No.

Date of Receipt

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

CA-00040296-001

07/10/2020

This matter was heard by way of Remote Hearings pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings.

Both parties attended the first day of hearing in July 2021. At that Hearing, the Complainants Solicitor experienced connectivity problems which caused an interruption in the flow of hearing. As the Respondent Solicitor had moved to opening her case, I decided that I needed to adjourn the hearing to explore the possibility for a resumption with enhanced connectivity.

In the interlude before resumption, the Complainant Representative wrote to me on July 13, 2021, seeking to defer the resumed hearing to facilitate administration of the oath and the provision for a Face-to-Face Hearing. I have incorporated my response to this request.

I have since read the complainants tabled requests outside of the hearing process and the respondent reply.

I wish to reflect that both parties were provided with time to consider the impact of the Zalewski Supreme Court case on the instant case prior to hearing on 7 July last.

I wish to reflect my records that both parties were satisfied that they were not impeded by an identified serious, direct conflict in evidence, in making their respective cases. Both parties submitted that they had discussed Zalewski with their clients prior to hearing and wished to “press on “in the case.

I did reserve my own position that I could adjourn if I found direct serious conflict in the case.

The issue of adjournment arose wholly from IT connectivity difficulties and our resumption will be supported by IT back up to rectify any issue.

I will resume the case on August 26 as indicated by the WRC and look forward to re-engaging with the parties to bring this case to conclusion. We will resume with Ms Murphy’s outline of the case to include both claims as outlined in the submission.

When the case resumed on August 26, 2021, the earliest possible date, all parties were able to participate fully in the hearing. The Witnesses gave evidence under oath.

At this hearing, the Complainant withdrew his complaint under the Industrial Relations Act, 1969.

My decision in this case will address the claim for Unfair Dismissal, alone.

Both parties were represented in the case.

The Complainant was represented by Terence O’Sullivan and the Respondent by Beibhinn Murphy. Both parties provided comprehensive written submissions and both parties acceded to my request to address a request for further documentation   on the circumstances which prevailed for the parties around the time of the Redundancy.

I received the last written response dated Sept 8, 2021.

The claim for Unfair Dismissal is disputed and contested by the Respondent.

The Respondent operates a Catholic Parish.  The Respondent Solicitor outlined that the Complainant had been associated with the Parish for many years from 1994 and had taken up a 12-hour week flexible employment as Sacristan on January 1, 2009.

 He received €120.00 per week gross pay with a supplementary contribution   to a Pension. The Complainant worked Monday to Friday, with occasional ceremonial work at weekends.

The Respondent Representative reflected an historical “unease “between the Respondent and the Complainant when the Complainant adopted a Partisan approach in response to a previous Religious Figure based at the Parish. She said they may have “got off on the wrong foot “ 

However, the Respondent rejected the complaint of Unfair Dismissal and submitted that the Complainant was made redundant in accordance with Section 7(2)(b) of the Redundancy Payments Acts 1967-2014.The Redundancy was an honest, measured and impartial action in response to the diminution of service and income generation.

The Parish was severely affected by Covid 19 Pandemic. All Masses ceased on 13 March 2020. The Complainant was paid as normal until May 18, 2020, after which he was placed on temporary lay off and advised to claim the PUP payment.

On the conclusion of the case, and on my request, the Respondent submitted details of the financial circumstance for the Parish at the moment of Redundancy.

Historically, the Parish had been extremely busy, but the death of colleague clergy had placed an onerous burden on the Respondent. The Complainant was confined in his work to one specific Church.

 Around May 2020, The Respondent engaged with his Superior and a plan to restructure Parishes into clusters, within the Dioceses unfolded. It was agreed that weekday masses would be cease at the Church, where the Sacristan provided service.

These changes were not borne specifically from the pandemic, but the ongoing pandemic had “caused a significant reduction in the income of the Parish “as Church Collections provided the lions share of income and these stood diminished.

The Diocesan Accountant had also flagged a warning on expenditure on Salary and Pension.

The Respondent considered the Complainants role as the sole employee within the Parish. The cessation of weekday masses had determined that the Complainant was no longer required in his role, and he was deemed redundant. Volunteers, who had always co-existed with the Complainant continued to support the operation of the Church. It was prohibited by Contract and Legislation to allow the Complainant to continue in a voluntary capacity.

The Respondent believed that he was obligated to honourably bring the complainants employment to an end by Redundancy. He wrote and confirmed this on 26 June 2020.

The Complainant was paid €9,568 in a Lump Sum Redundancy Payment. This exceeded two years nett salary.

The Respondent submitted that the Organisational structure of the Parish placed the Respondents Superior as his sole Report. The Complainant had made direct contact with this Report structure and was advised to address matters with the Respondent.

The Respondent Representative reflected the tight knit community from whence this claim emerged and concluded that the circumstances of the case were regrettable.

The Respondent had no other course of action outside Redundancy. She argued that the Complainant was dismissed by means of a genuine redundancy and there were just no alternatives open to the Respondent, short of that decision. The work engaged in by the Complainant was no longer there, as the weekday Masses had not recommenced, and the preparatory care of the Church was absorbed by unpaid Volunteers. The National restriction on numbers of attendees at Church or Masses hosted through social media, did not enjoy the allocation of any Sacristan, Helper, or Volunteer. The sole ancillary support for the Church was provided through Supervision of Collections at Mass.

Cases cited:

An Administrative Assistant v A Charity ADJ 22029

A Special Needs Assistant v A School ADJ 25023 

Evidence of the Respondent:

The Respondent outlined that he had suggested that the complainant apply for PUP during his period of Lay Off. He did not have a working knowledge of the Temporary Wage Subsidy. The Complainant did not come to him about TWSS.

He confirmed that Masses were a casualty of the pandemic at the Parish by 13 March 2020.

During this period, he engaged in some deliberation with both his Senior and the Accountant, which led to a consideration of the evolution of a new operational model of Ministry through a “cluster “or a” Family of Parishes “.

The Respondent decided that he could absorb the Complainants role himself with the support of the volunteer group who had traditionally supported the upkeep of the Church.

 He decided that as he would have less Masses during the week, this   would in effect prompt more opportunity for him to cover other parishes. The Complainant was not replaced.

He had received feedback from a Consultation with the Diocesan Accountant, that income was significantly reduced (60%). He was advised to review expenditure. He saw Redundancy as an honest and responsible means to reducing costs at the Parish. He had not discussed the prospect of Redundancy with the Parish Committee as it fell outside their remit.

He confirmed that the decision was his alone and was made for financial reasons.

He confirmed that the complainant was the sole employee of the Parish. He recalled discussing the issue with his Superior in April 2020.

 He then met the Complainant and explained that he was being placed on temporary layoff. The Complainant understood what was happening. He understood that the Complainant was flexible and had other commitments. He understood that he had already contacted his Senior at that point.

The Respondent confirmed that the Complainant had previously organised a Protest at the Church and he confirmed that some interpersonal conflict had emerged between them as a result.

During cross examination, the Respondent confirmed that the 2009   contract submitted was the first on file. He denied that 92% of the Complainants   role remained at the Church in the aftermath of the Redundancy.

He reaffirmed that he could not identify another alternative role for the complainant and was not aware of TWSS. He said that he felt it would be disingenuous to draw money down from the State when the position had gone at the church.

He confirmed that he had not looked to other Parishes for how they had managed their Sacristan   roles during the Pandemic.

The Respondent recalled that the Complainant had walked away from a meeting in 2016, which sought to address minor changes in his working hours.

He confirmed that he phoned the complainant to inform him of his temporary layoff, but the complainant had not been co-operative, as he had wanted to speak to a Higher Authority. The Respondent felt that the complainant wasn’t anxious to speak to him as he hadn’t requested to meet him.

The Volunteers are present in the Church at weekends only. The Church did not need the complainant in a volunteer capacity.

The Respondent denied personal enmity against the Complainant. He recalled that the Complainant had walked out of the Sacristy once, while he was saying Mass. He submitted that he had not shown “much love “for the Church when he protested at the Church Rails. He was surprised the Complainant had not apologised, but he, himself had let it go. He knew that the Complainant was not happy with him.

He denied that interpersonal conflict had informed the circumstance of Redundancy as the Complainant was entitled to be paid for his Redundancy. He denied leaving the Complainant out of planned activities and confirmed that on one occasion a family had expressed a desire not to have the Complainant in the Sacristy during their wedding. He was charged with the task of communicating that to the Complainant directly.

He confirmed that the Complainant “was impeccable “in his work.

He had consulted with the Diocesan Accountant when redundancy was considered. The Parish Council were an administrative body and were not decision makers at the Parish.

The Respondent confirmed that he had often deputised for the Complainant in his role.

He contended that there was no way that the complainant could be re-instated. The Respondent couldn’t accept him back as there was a gap between them.

The Respondent acknowledged that it was his first encounter with managing a Redundancy. He did not know whether the Complainant had claimed PUP or not.

The material changes in the operation of the parish amounted to a Diocesan move to a “Family of 6 parishes “

The Respondent confirmed that the Parish accounts are submitted and audited at a Central Office. The Parish budget feeds into the Diocese.

The Complainant had not raised a grievance at any time.

He confirmed that he had not provided an opportunity to appeal his decision as he didn’t want to give “false hope” to the Complainant.

The Respondent concluded by confirmation that dismissal was wholly / mainly due to Redundancy in accordance with Section 6 (4) (b) of the Unfair Dismissals Act 1977. The decision was made in the context of a financial crisis and was not linked to any grudge against the complainant. The Complainant was a lone employee and there were no alternatives available, outside of redundancy.

Income had severely diminished at the Parish. Weekday Masses had ceased. There had been a re-organisation of services and the respondent had taken on the duties previously undertaken by the complainant.

The Respondent could not entertain the complainants return.

The Respondent submitted confidential documents to explain the context and background to the financial basis for Redundancy. These were shared with the Complainant.

The Complainants Representative outlined that he commenced the role of Sacristan in 1994, when he was 20 years old. His family had also served in the role before him. He worked alongside a named Parish Priest, 1994-2008 and had remained close friends.

It was the Complainants case that work, either paid or unpaid existed at the Church and there was no basis to the Redundancy in June 2020.

When the Respondent took over in 2009 and on return from the complainant’s sick leave, he was   provided with a contract of employment, which set out his duties as a Sacristan.

The Complainant was paid €120 gross per week to co -exist with a Disability Pension. A Pension payment of €1, 260 per annum was put in place in 2002 which had risen through CPI increases to €2,916.70 per annum by 2020.

The Complainant applied himself to his work which he loved and frequently attended the Church outside his contractual terms.

The Representative outlined that the Respondent had taken an immense and personal dislike to the complainant when he joined in 2008.

He outlined that the complainant was not the subject of a genuine redundancy, but rather that the respondent had taken an opportunity from the economic backdrop to the national pandemic and acted on the poor interpersonal relationship between the two parties and moved to dismissal through a feigned redundancy. The topic of clustering parish work was not raised by the respondent with the Complainant.

The Representative submitted that the process of redundancy was accompanied by a vacuum in communication as the Respondent had merely informed the complainant of his move to temporary lay off in April 2020. He refused all attempts to meet with the complainant or explore alternatives to his dismissal.

The Complainants Solicitor set out some examples of discord between the parties which emanated in June 2008, 2016, which covered his introduction to the complainant, an attempt to radically revise the complainants working pattern in 2016 and the complainant’s exclusion from fund raising activities.

The Representative outlined that the complainant was reminded that the respondent had power to dismiss him from his position.

The contractual provision of weekly meetings was never realised, and the complainant began to feel marginalised and not directly consulted on parish events by 2020.

In April 2020, the Complainant was placed on temporary lay off following a telephone call with the respondent. The Complainant was informed this was prompted by financial reasons and requested the confirmation in writing, which arrived by letter dated May 1, 2020.

The Respondent did not reciprocate the practice of TWSS which was being paid in a neighbouring parish. He was advised to claim PUP.

The Complainant had no further interaction with the complainant until he received a letter of termination on June 26, 2020. The Respondent announced that he would “fulfil the duties me and seek voluntary assistance when necessary “

The Respondent refused to engage or mediate with the Complainant.

The Terms and Conditions of Employment dated 16 September 2009 were exhibited and the Representative argued that most of the listed duties continued to prevail at the Church which conflict with the decision to make the Complainant redundant.

The Complainant submits that he is needed at the Church where he had “dedicated over 26 years of his life “He seeks Re-instatement to the role.

The Complainants Representative submitted that the Complainant had been unfairly selected for Redundancy and it could not be explained by application of Section 7(2) of the Redundancy Payments Acts 1967. He argued that instead, the complainant had been dismissed for personal reasons along with a historical animus between the parties. There was no “change “as the complainant’s role could have been accommodated elsewhere.

The Diocesan Accountant had not made an appearance at Hearing

Cases cited

 Edwards v Aerials and Electronics (Irl) ltd UD 236/1985

ODriscoll v Sibel Systems EMEA ltd UD 1257/2003

JVC Europe ltd v Panisi [2011] IEHC 279

Production Manager v Printing Company ADJ 0009028

St Ledger V Frontline Distributors Ireland ltd UD 56/1994

Lyons v Grangemore Landscapes ltd UD 541/2008

The Complainants Representative argued that the Respondents failure to engage with the Complainant in seeking a resolution short of dismissal either via voluntary work or engagement with TWSS goes to the root of the case. He submitted that the Complainant was given to understand that TWSS had formed a bridging arrangement for a fellow Sacristan in a neighbouring parish which was not reciprocated in his position.

He argued that the complainant could have been accommodated on weekend work with the support of TWSS and a Redundancy constituted an unfair dismissal. 

The Complainants Representative addressed the Complainants work undertaken, economic loss and pointed to sensitivities around Mitigation, arguing that his preferred remedy was re-instatement to his role.

Evidence of the Complainant:  

The Complainant had a strong family tradition in the work of Sacristan. He had served in the role from 1994 and had worked with a different Parish Priest then. He gave evidence of having a medical procedure on Christmas Day, 2007 and resumed work over 7 days in March 2008.

The Respondent came to the Parish in June 2008 and in 2009, the Complainant signed a contract of employment covering Monday to Friday. Monday morning masses ceased, and the weekly meeting incorporated into the contract did not occur.

 He gave evidence that his relationship with both Parish Priests differed. He had a stronger relationship with the Respondent’s predecessor but confirmed that he and the respondent had a professional relationship.

He felt unwanted by the Respondent as the Respondent sought to distance himself but confirmed that he was the bigger person and continue to dedicate his time to serving the church.

He denied that he had organised a protest or chained himself to the altar gate. He denied walking away from the Respondent when revised terms of employment were suggested. He confirmed that it was the Respondent who had walked out.

The Complainant submitted that the Respondent had verbally agreed that he should continue his duties, but he got the feeling that the Respondent would prefer that he wasn’t there.

In referring to the Wedding in 2019, where he was informed by the Respondent that a Sacristan was not required, the complainant thought that strange as it constituted a variance in his contract.

He observed that the Respondent was slow to plan things or commit events to notification stage. If he had known about these events, he could have prepared. There were no complaints arising from his work.

He recalled receiving a phone call from the Respondent in April 2020. The accountant had determined that his pay was to cease. He received notification of Temporary Lay Off in writing.

By June 26, he had received a registered letter confirming his dismissal through redundancy. He was shocked and very upset.

He subsequently learned at a Family funeral in August 2020, that his colleague Sacristan in the neighbouring parish had received the TWSS. His cousin   had told him about this.

The Complainant tried to seek the intervention of the Parish Committee lead on 4 July 2020. He received feedback stating that “He is gone “via the Respondent.

He also contacted the Respondents Senior on July 2, suggesting a volunteer role, but this was refused.

The Complainant submitted that his duties continue to exist at the Church. He dismissed the argument made by the respondent on the contended knock-on impact of the loss of two priests as one of whom was 97 years old.  This could not be described as an operational loss as the Parish was designed to be a single priest parish.

The Complainant contended that he had been unfairly dismissed and sought re-instatement. He loved the Church and carried no hard feelings against the Respondent. He had grown up in the Sacristy.

He gave evidence that he had diversified into Football Coaching for 10 hours per week.

During cross examination, he confirmed that alongside his disability pension, he was permitted to work up to 12 hours per week. He did not generate pay from coaching, it was casual work.

He identified two churches which had paid sacristans TWSS and was unaware if smaller churches had paid this.

He responded to the Respondents Representatives question of whether it was credible for him to contend that the Respondent had waited 12 years in the long grass to terminate his employment? He answered,” I was not his favourite person”

He focussed on the speed of the conclusion of redundancy and argued that he could have been handled better. He confirmed that he was paid by the Church from 13 March- 1 May 2020.

He argued that redundancy was permanent fixture as opposed to everything else happening at that time was of a temporary nature.

He contended that he was entitled to retain his job as it was 90% there. He denied that Employer prerogative prevailed in that regard. He argued that the Church could well afford to retain him.

He confirmed that meaningful conversation with the respondent in the context of Sacristy duties as the Reader was present at 9 am time slot, which prompted a swift departure by the respondent. The weekly meetings, if they had occurred may have assisted communication between him and the respondent.

When asked why he had not requested these meetings, he replied “I am only an employee “  

The Complainant re-affirmed that he believed his re-instatement was possible and denied that the position had disappeared. He proposed that the Respondent could lead by example.

In response to the respondents’ questions, he confirmed that Masses had gone at the Church Tuesday to Friday. There was no collection, other employees or no other paid role.

He added that he had been a Sacristan all his adult life and his allegiance to the job went beyond money.

He rejected that his maintenance on volunteer duty would contravene the National Minimum Wage Legislation. He stated “My duties are still there “He submitted that the Parish Church should have same standing as   other parishes who had retained their Sacristan through the past year.

In response to the Adjudicator, the Complainant clarified that retention as a Volunteer would have kept him connected with the Church. He had not lodged an appeal to the decision to dismiss him as he did not know about it. He had not applied for any other Sacristan positions and had not applied for the PUP payment in Temporary layoff.

When asked to clarify what request he had made of the Respondent’s Senior in July 2020, he clarified saying that he had asked for help, mediation and resolution and the response received directed the parties to resolve the matter themselves.

In Conclusion, the Complainants Representative re-affirmed the Complainants preferred remedy of re-instatement and qualified this by stating that “Priests do move on “The Complainant is unable to relaunch in the greater world of work, due to health grounds and he contends that the bulk of his job remains

He concluded that the Respondent had varied the reasons given in justification of his decision to make the Complainant redundant from changes in operations to that of Finance. He contended that the decision embraced an antagonism against the Complainant.

The Respondent had failed to consider alternatives to Redundancy, engage with the Complainant or to demonstrate an appreciation for the regional trends around the application of TWSS in the Sacristan role.

He sought application of Grange more to the case and argued that Redundancy could have been avoided.

I have been requested to make a decision in this claim for Unfair Dismissal arising from a Redundancy notified on 26 June 2020, effective on 25 August 2020. In reaching my decision I have had regard for both parties written, and oral submissions taken in tandem with the witness evidence under oath during the resumed hearing.

At the conclusion of the hearing, I requested that the Respondent Representative provide further detail on the financial climate which prevailed at the time of Redundancy. I also requested that the Complainant Representative provide copies of the correspondence which he directed to and received from the Respondents Superior.

I am grateful to the parties for receipt of these documents, which were exchanged on receipt and commented upon.

In response to submissions from the Respondent, I clarified at the commencement of the resumed hearing that the Unfair Dismissals Act 1977 -2014 did not contain any exemptions for the category of Clergy, and I was managing this case by taking the parties solely as employee and employer. I will return later to some commentary on the overall umbrella of employment in this case.

The Law on Redundancy is contained in the Redundancy Payments Act, 1967 as amended. For the purposes of this Act and the Unfair Dismissal Acts an employee is dismissed by reason of redundancy if “for one or more reasons not related to the employee concerned “his dismissal is attributable “wholly or mainly “to one of the five situations outlined in S. 7(2) of the Redundancy Payments Act

These changes are characterised by changes in the workplace.

General right to redundancy payment.

7.— (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, 1952 to 1966, 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, 

The Complainant in this case was placed on Temporary Lay Off on May 18, 2020. He was encouraged to contact the DSP to ascertain the levels of support available, resulting from the Covid 19 Pandemic.

Temporary Lay Off is defined in section 11 of the Redundancy Payments Acts, 1967. It serves as a holding position in the world of work to frequently provide an opportunity for a spurt of recovery for the business followed by resumption of work or an eventual acceptance that a position cannot be saved and a pathway to cessation of work via Redundancy.

Lay-off and short-time.

11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and—

(a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and

(b) the employer gives notice to that effect to the employee prior to the cessation,

that cessation of employment shall be regarded for the purposes of this Act as lay-off.

Section 12 of the Act historically provided a trigger mechanism for an employee placed on temporary layoff / short time   to access a lump sum payment in Redundancy, providing certain time limits were honoured. This was curtailed during the Pandemic and recently re-instated on September 30, 2021.

The Government had decided to offer activation support Payments of PUP, TWSS and EWSS as holding positions in both lay off and real time work scenarios throughout the Pandemic.

Operation of section 12 - emergency period

12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

This meant that an employee placed on Temporary Lay Off was unable to trigger access to a lump sum Payment until September 30, 2021. No such restriction was placed on an employer.

I did not identify a reason why the Complainant decided not to claim the PUP payment suggested by the Respondent in this case.

The above details constitute a contextual backdrop for this case.

The Complainants Temporary Lay Off was concluded through a Registered Letter dated 26 June 2020. He was made redundant with effect from August 25, 2020, on 8 weeks’ notice and a statutory redundancy lump sum.

The reasons advanced were

“To ensure the safety and wellbeing of all our parishioners, we will need to operate a reduced capacity resulting in a new programme of Masses.

……This coupled with the lack of income to the Church for the last number of months, has compelled me to review cost saving measures within the Church and it has become clear that I can no longer support the role of a paid Sacristan within the Parish.

…. The financial constraints of the Church have left me with no alternative but to fulfil the duties myself and seek voluntary assistance when necessary “

In this case, I must decide 

1 Whether the dismissal resulted from a genuine redundancy in accordance with Section 6(4) (C) of the Act?

2 Whether selection was fair?

3 Whether the approach adopted by the Respondent was fair and reasonable?

I have reflected on both parties’ presentations at hearing.

Throughout this case, I found that the Complainant presented a strong affiliation with the Church. His family had been associated with the role of Sacristan and I accept that this 12-hour contracted position was a strong focal point in his life.

The Respondent equally presented as having a very strong affiliation with the Church for which he had delegated operational responsibility.

It is clear to me that both parties shared and continue to share an ecumenical loyalty that transcends the parameters of this case.

Section 6(4) (C) of the Unfair Dismissals Act 1977 provides a defence to the claim for unfair dismissal in the case of a genuine Redundancy  

I have considered the provisions of Section 7(2) of the Redundancy Payments Act and have applied these provisions to the facts of the case.

1.       The Respondent did not cease or intend to cease to carry on the business for which the complainant was employed, nor did he cease to carry on that business in the place where the complainant was employed.

Instead, the Church was subject to a temporary curtailment of service within the emergency period from March 2020. This period was addressed by way of temporary layoff from mid May 2020. The essence of temporary lay off involves a genuine belief that the position of lay off will not be permanent.

When the temporary lay off was replaced by a notification of Redundancy some 5 weeks later, I was obliged to look closely behind that decision for reason and rationale.

I have considered the evidence of the parties and have considered the financial statements relied on in the case. It is clear to me that the Church is a constituent of a larger geographical Dioceses from where the financial accounts are managed. The accountant, whom I did not meet was referred to by the Respondent as the Diocesan Accountant. I found this to be a material detail of some significance and an illustration of the complexity in the financial management of the employment relationship.

In so doing, I am mindful of Charleton J.   deliberations in of seminal case of JVC Europe Ltd v Panisi [2011] IEHC 279,

I appreciate that this was a case concerning the interactions of several parties within a work setting.  I accept that the complainant in the instant case was the sole employee at the Church and this was the first occasion that the Respondent had actioned a Redundancy.  Nonetheless, I found the following instructive.

 A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act 1977, as amended (“the Act of 1977”), the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law, and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer. 

2.It was interesting to note the contents of the contract of employment signed in 2009 and linked to a named Church.

I accept all of the terms and conditions set out in this contract. I further agree to perform my service under this agreement for the Church or any of its associated Organisations

This constitutes a broad definition of employment.

S. 7(2)(b) concerns dismissal s resulting from a downward change in the business requirements to carry out work of a particular kind. 

I accept the Respondent evidence that the Church experienced a downward change in business requirements at the time of temporary layoff in May 2020. However, by June 2020, the Church was preparing to re-open albeit without the commitment of Daily Masses. The Complainants role was to open and close the Church, dressing the altar, preparing the Church for special occasions and counting offertory and shrine collections.

I have listened carefully to the Respondent evidence on the changes he observed in Income generation in early 2020. I also note that he was in talks   with his Superior on a Re-organisation of Church services across a number of parishes around the time that the plan for Redundancy was formulated. This would amount to an upward change in the volume of work and for me, at least did not imply wholly or mainly a Redundancy scenario. It is an important consideration of this case that the planned re-organisation did not feature in any inter party communication prior to the notified Redundancy.

S 7(2) (C) covers dismissals that arise wholly or mainly from the employer deciding to carry on the business with fewer or no employees

In Lillis v Kieran EAT 22 June 2004, the Tribunal held that a Redundancy prevailed in the case where the former General Manager of the Respondent Pig Farming Business was made redundant following a redistribution of functions among the regular managers of the business.

In this case, the Respondent took on the Complainant’s role himself, calling on volunteers for back up.

I find that this constituted a genuine Redundancy and that the Complainant was dismissed mainly due to the reduction of employees to zero at the Church. I have one reservation on this pronouncement, as I have already identified the Church as a subsidiary of the greater Diocese in terms of Financial Management.

The Respondent has satisfied S. 7(2) (C) of the Redundancy Payments Act and I find that a genuine circumstance redundancy existed.

I did not identify an application of the cases suggested by the parties, to the facts of the case.

In David Curtin v Kevin O’Keeffe et al representing the Trustees of Mallow Golf Club UD 9664/2014, the EAT determined that the financial position of the respondent was in “continuing and serious decline “from 2008 onwards. The Board members subsumed his executive functions on a voluntary basis and his administrative duties were taken on by an assistant with longer service, whose hours were increased. The EAT determined that this satisfied S. 7(2) (c) of the Act.

The Tribunal went on to find that complainant in the case had not been unfairly dismissed due to his unique position against a long series of service cuts over 5 years.

I find that the instant case is distinguished from Curtin on a number of grounds.

I have found that the parameters of temporary layoff reflected a “an interim “and not a finality. It is based on an understanding of a supervening event, either that of a spurt of growth generating recovery and resumption of work or a move to an awareness /acceptance that the job cannot be saved and must end. As I said previously, due to the Emergency Measures, which yielded S 12 A of the Act, the call on the duration of temporary lay off was at the sole discretion of the employer, the respondent in this case and this was his first experience of Redundancy.

I appreciate that Section 6(3) of the Act has no application in this case as the complainant was the sole employee at the Church. I was struck by the Respondents declaration that this was his first redundancy.

I found that the Complainant acted to his own detriment when he did not take the Respondent direction to explore his entitlements to a PUP payment.

I have considered whether   the Complainant was fairly selected for Redundancy? I have not arrived at a positive determination.

While I accept that the Complainant was a sole employee at the Church. I am not satisfied with the way he was identified and selected for Redundancy.

The Respondent was obliged to keep the Complainant updated on the status of his temporary lay off status from May 2020. He did not do this, and a registered letter followed on June 26, where dismissal was confirmed.

The Complainant sought to counter this by writing a letter seeking a reconsideration to both the Respondent and his Superior in early July 2020. By 15 July 2020, he had been informed that the Respondent would contact him to explain the situation further.

I could not identify a bone fides consultative framework to this Redundancy. Temporary Lay off morphed into a dismissal without consultation, or more importantly an opportunity to consider measures short of dismissal or alternatives to Redundancy “within the family of parishes cluster model” The Complainant was not permitted a say in the evolution of his job from lay off to redundancy and this was at variance with what the Labour Court has identified in Kohinoor ltd v Ali UDD 1629

I have reflected on the complainant’s evidence of animus in the case and the Respondents partial rejection of same.

I have found that the Complainant was disappointed when he did not replicate the strength of working relationship, he had maintained with a previous parish priest with the respondent. I found that he did not respect the respondents’ efforts to place him within a formalised employment footing as he referenced frequently spending over and above the 12 contracted hours in the Church. I accept that this created some tension   between both parties.

I accept the Complainants representative submissions that neither party triggered   the weekly meetings to address parish objectives outlined in the contract. I must find that the lions share of responsibility for activation of that clause rested with the respondent, however, the complainant was regrettably reticent in relation to that matter.

Neither party benefitted from that omission. I found evidence from both parties of repeated minor disagreements and a residual silence which did nothing to benefit an effective working relationship. Perhaps both parties would have benefitted from an earlier Mediation to copper fasten role demarcation at the Church.

However, I am most troubled by the lack of visible effort to save the Complainants employment during a National Pandemic vis a vis a clear Public Policy to retain jobs.

I understand that the Respondent acted in what he considered to be the best interests of his Church, but in so doing, I found that he neglected to balance his decision against the best interest of his sole employee or to take account of the umbrella Diocese. I found that he did not give sufficient consideration on the impact dismissal would have on the Complainant. The Complainant was not heard on this key determinant.

The Respondent did not consider the possibility of application for TWSS /EWSS. He told the hearing; he was unaware of their application. I found this to be inconsistent with his clear knowledge of PUP, albeit rejected by the Complainant.

I appreciate that the Complainant did not suggest TWSS or Volunteer work until after his dismissal in July 2020. However, the Respondent did not grant the complainant an appeal of his decision to make him redundant. I note that the Redundancy lump and Pension contribution were paid on 23 September 2020, two weeks before the case came before the WRC and that interim of June 26 to September 23 ought to have contained a mechanism for an appeal in accordance with fair procedures.

I found the letter from the Respondents Superior dated July 15 to be significantly short of best practice.

My attention has been drawn to the persuasive UK case of B Mhindurwa v Loving Angel Care Ltd at the UK Employment Tribunal, case no: 3311636/2020 a case of a Care worker who challenged her Redundancy.

In that case, the complainant had asked to be furloughed. (UK equivalent of TWSS)

The Tribunal held

“Failure to give consideration to the possibility of furlough and failure to offer the claimant a proper appeal renders the claimants dismissal unfair “ 

In the instant case, I accept that a climate of uncertainty and indeed emergency existed from March 2020 in this country through the advancing Pandemic.

I can understand that the Respondent acted and made a Redundancy of his sole employee as a perceived necessary and proportionate measure to how he saw things as an employer.

However, in so doing, I have found that he by passed the need to practice an objective selection process tempered with a reasonable approach.

I have found that the complainant was clearly excluded from the participation in his own Redundancy. I found that he made very cogent arguments for his retention in employment post his dismissal. I have identified these letters to both the Respondent and his Superior as Appeals. He was not heard at those levels, and he deserved much more respect than that.

I found the ongoing tension in the employment relationship to be a factor in his selection for redundancy, but it was not the sole consideration. I have reviewed the financial statements led by the Respondent. These documents reflect a sharp reduction in local income but do not reflect the Diocesan accounts or address the 2019 surplus. I cannot accept that these documents reflect a fairness in the complainant’s selection for redundancy.

I have found that the Respondent presided over a genuine redundancy when he dismissed the complainant. However, he has not succeeded in the remaining two legs of the test on fair selection and reasonable treatment.

I have found that the complainant was unfairly selected for redundancy amidst an attempt to address the diminution of income at the Church. However, his exclusion from the decision-making process or consideration of the pro-offered alternatives or indeed a consultation on the re-organisation of parishes renders this an unfair selection for redundancy.

I find the Complainant was unfairly dismissed

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.

I have found that the Complainant was unfairly dismissed by unfair selection for Redundancy.

I have heard the Respondent on his protestations to re-instatement.

I have heard the Complainant   on his express wish for re-instatement and his stated belief that the parties could work around their differences for the good of the Church.

I have taken some time to consider a practical way forward.

I have found that the way forward in this case may well be best served by and addressed at Diocesan level.

My Jurisdiction in accordance with section 7 (b) allows me to consider re-engagement 

b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, 

I have decided that the justice of the case dictates an order of re-engagement for the Complainant from July 7, 2021.

I order the Respondent to re-engage the Complainant to the role of Sacristan as would be reasonably suitable within the re-organised clusters of the family of parishes.

This order embraces Section 19 of the Unfair Dismissals Act 1977, where on re-engagement, a successful complainant is obliged to repay the Redundancy Lump sum received of €9,568.48 as a simple contract debt.

Claim for Unfair Dismissal through Unfair Selection for Redundancy