Complainant

Respondent

Parties

Christian  Mulhall

Dublin Citas College Dublin

Representatives

SIPTU

 ESA Consultants

Act

Complaint Reference No.

Date of Receipt

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

CA-00038990-001

31/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00038990-002

31/07/2020

The respondent is a language school and is dependent on foreign students. When the Covid-19 related lockdown occurred, the school witnessed a substantial decline with the possibility of a return to normal being unlikely for some time.

The school tried to find new ways of operating, and engaged with its entire staff on this; essentially   it would operate on a remote and limited basis and this was done.  All staff, including the complainant were informed of the plans and with the exception of than the complainant they engaged fully.

Regarding the unfair dismissal (complaint CA-00038990-001), this was a redundancy situation; the complainant’s position was no longer viable, and the business made substantial cost saving reductions across the board, including redundancies.

The complainant was invited to take on one of the alternative roles but refused.

The respondent’s only option was to split the hours available and divide them among the staff.   This did not require a Director of Studies, (“DOS”) which was the complainant’s role.

The maximum number of hours available was approximately fifteen per week, by way of e-learning, which did not require any supervision      and even if it did, the hours would also be limited to no less than five per week.

The complainant refused this option, and this left only the option of redundancy. The respondent proceeded to give effect to redundancy.

It should also be known that several other staff, who also refused the offer as the hours were insufficient or they did not have good IT connectivity were made redundant. Those who did accept, had the hours divided among them.

Subsequently, a number of remaining employees have now been made redundant as the new working arrangement did not achieve what was needed to retain them as hours continued to reduce.

It is not disputed that there were inter-personal difficulties with the complainant; the relationship between the parties was not as it should have been, but that was not only due to the conduct of the respondent.

Complaints were made by other staff against the complainant which somehow were represented as allegations against the respondent owner. 

An independent investigation was conducted but not concluded as the finding of the first complaint by a staff member was appealed by that employee, and others fell due to the complainant not engaging.

In any event, the impact of the business and the subsequent redundancies was not of the respondent’s       making. The complainant’s post has not been not replaced, nor will it be.

The complainant did not have the service to qualify for a redundancy payment, and the parties engaged in discussion on same. He appealed the decision and his appeal was heard. He objected to every aspect of the process, and claimed the process was stressful.

To date the school has not opened for business nor will it open before June 2022. Over 60% of the staff are now redundant from the school.

On the matter of selection, the complainant was the only one holding the office of Director of Studies, notwithstanding this, the school offered him the same alternative roles as they offered others, but he refused.

In summary the respondent says, there was a genuine redundancy situation, there was no unfair selection, and, in the circumstances, the employer did everything possible to avoid the termination.

The statutory definition of Redundancy is found in the Redundancy Payments Act, 1967 as amended. The relevant section(s) provides:

“….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 ceased or intends to cease, to carry on 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 that 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 has been employed (or had been doing before his dismissal) 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 henceforth

be done in a different manner for which the employee is not sufficiently qualified or trained.”

Redundancy has two essential features. The first feature being “impersonality” and the second being “change”, as per the determination of the EAT in St. Ledger v Frontline  Distributors Ireland Ltd [1995] ELR 160:

i.     …”impersonality runs through the five definitions in the Acts. Redundancy impacts on the job and only as a consequence of redundancy does the person involved lose his job.”

ii.     “Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete closedown. Change may also mean a reduction in the need for employees, or a reduction in number. Definition (d) and (e) involve change in the way work is done is also another form of change in the nature of the job. Under these two definitions change in the job must mean qualitive change. Definition € must involve, partly, at least, work of a different kind, and that is the only meeting we can put on the words “other work”. More work or less work of the same kind does not mean “other work” and is only quantitative change”

In conclusion, the complaint of unfair dismissal is not well founded.

Notice Pay: CA-00038990-002

On the matter of notice pay, the parties entered into a without prejudice process, wherein matters related to notice pay and passwords among other things were meant to resolve this part of the case.

The respondent does not deny notice pay is due and has sought without success the passwords to its systems to which the complainant hasrefusedtogive,resultinginthelossofsubstantialdataanddisruptiontotheschool.

The complainant was notified that he was at risk of redundancy on May 18th, 2020 and that his position as Director of studies was at risk.  This is despite the fact that his position was a requirement for regulatory purposes. 

The functions are now being performed by a newly promoted teacher with fewer qualifications and experience, including of e-Learning.

This new position was never offered to the complainant in the context of the “business restructuring” but he was told of a substantial change to the nature of provision at the school.

Although there had been provision for online learning by CITAS, there had been no change in the functions of the business or the nature of the customers who are attending the college. All rules remain in place, one of which is that the position of the Director of Studies is necessary to the regulatory environment of the college.

On May 20th, 2020, the complainant sought access to work email and heard nothing back.  He says that his position was being ‘dismantled’ before the redundancy situation arose.

Between May 18th, 2020 and June 22nd, 2020 there was no information given on the restructuring process or why as Director of Studies he was not included in this process, since he was certified fit from March 13th.

There was no explanation why he had not been considered for new roles in the restructuring, and he was refused information as to what roles currently exist in the school. He was asked to make a submission on alternative roles without any information being given on the structure or roles in the business. 

He asked for information about the consultation and received no information until May 27th, 2020, when he was told in writing that his role was gone before any consultation had happened.

He was refused sound files for the consultation process although he made an official data request for them.

He was given no acknowledgement of the grievances he submitted until after the termination of his employment when he was told vaguely that a colleague would chair the adjudication of the grievance against the MD.

This does not comply with provisions of the employee handbook regulations which state:

The investigation will be carried out by a designated member of the Management team or, if necessary, in the case of any possible conflict of interest, an agreed external third party. hen either case, the person nominated will have appropriate training and experience and be familiar with the procedures involved. 

.

His attempts to get information he needed were resisted. 

His role was completely undermined though out the course of his employment and there was an attempt to present this as a “business restructuring”. But this did not relieve CITAS of its obligations to educational standards or the regulatory environment.

Appointments were made without his knowledge, and a similar position to his was advertised on in February 2020 shortly after he went on certified sick leave.

He had a number of grievances such as no duty of care was shown throughout the course of his employment confirming his grievance against the MD and the centre manager and was paid less than the full COVID payment of €350 as a senior member of staff. 

He was denied his right to accompaniment by his Union representative and was told he would be given answers to questions regarding the redundancy, but this did not happen, and he was denied a promised second consultation.

He was regularly given information on a Friday which meant he would not be able to seek advice for the weekend. He was told that a consultation was going backwards by a consultant who could not answer even the most basic information about the process itself.

He was also pressurised to accept an alternative role which involved a huge reduction in his salary and pressurised on other occasions.

On June 7th, 2020 a severance draft was offered which could have resolved thingsbut a second draft form of the severance on July 7th, 2020 was retracted and the original offer was reinstated.

He was then accused by the respondent’s representative of not wishing to settle, although he did. The settlement failed when the contract offered on July 7th was revoked, and because it was stated that there was an implication and serious questions must be asked regarding his unwillingness to indemnify his employer in terms that union has felt excessive.

On July 22nd, 2020 he received the outcome of his appeal process and, as he expected it did not succeed but it was based on incorrect information.

The respondent has failed to demonstrate that the termination of employment was justified. Indeed, it was motivated by a desire to retaliate against the complainant for grievances he had raised. This brought the termination into the arena of being personal and it entirely lacked the impersonality required by a redundancy process.

The complainant commenced his employment on September 3rd, 2018.

On February 19th, 2020 he went sick and the respondent made contact on March 3rd seeking further information on the nature of his illness.  Subsequently on March 13th he was told not to do any work even though he had been certified as fit to return to work.

On March 20th he was placed on temporary layoff due to the Covid pandemic and placed on a pandemic unemployment payment.

On May 18th he was told that he was at risk of redundancy and he requested the details of this on the 20th, specifically in relation to what was described as the proposed restructuring.

On May 22nd the respondent confirmed that his position was redundant and no longer required.

Then the process of selection began.

On May 25th the complainant requested representation for the consultation process and was told that this right only applied to disciplinary matters and that the process would begin on May 28th. He also sought ‘terms of reference’ for the process (and again raised this on May 31st).

At one stage there was an offer of reduced working hours, but this was not acceptable to him.

The complainant fought quite a battle against the proposed redundancy, as is only to be expected.

His submissions to the WRC were extensive; his main submission was one hundred and fifteen pages, accompanied by a further four hundred and thirty-three pages of appendices, a twenty-seven page PowerPoint presentation and some other material.

A lot of this recounted various difficulties in the relationship between the parties and various grievances raised by the complainant. There appears to have been a very significant breakdown in the working relationship; indeed, it was about the only thing on which there was agreement between the parties at the hearing.

In assessing whether a dismissal by reason of redundancy has been fair, the core considerations are twofold; first, did a genuine redundancy situation exist, and second was the complainant treated fairly in the selection for redundancy.

There can be no presumption that the material related to various grievances had no bearing on the redundancy and it must be assessed in case it had.

In the event, I have concluded that it was not relevant, and a great deal of the complainant’s submissions display a lack of focus about the substantive complaint he submitted; that of redundancy.  (By way of example, the information on his Payment of Wages complaint was on page 26 of his submission).

He failed to establish a causal link between the various general complaints he has against the respondent and his selection for redundancy.

The implication that had he not been engaged in the prosecution of these various grievances he might have escaped being made redundant is contradicted by the facts of the case.

The background to the issue is the public health Covid-19 pandemic. The respondent is an English language school whose students are largely (possibly totally) drawn from abroad, and therefore badly affected by travel restrictions then coming into force.

The pandemic, and the public health restrictions on movement and especially international travel therefore had an impact on its activities which is easy to understand. Evidence was given of the reduction in the number of teachers from twelve to three and of the attempts to move the delivery of teaching ‘online’.

Against this backdrop the respondent decided to make the complainant’s position redundant.

Thus far the redundancy has the hallmarks of a genuine re-organisation such as is referred to in Section 7 of the Redundancy Payments Act

His was a stand-alone position and therefore in a so-called ‘pool of one’.

I can find no evidence of the termination of the complainant’s employment being an unfair one under the Unfair Dismissals Act, 1977.

The extensive materials submitted by the complainant are not sufficient, or more accurately  sufficiently relevant to displace the impact of the circumstances of the public health crisis on the respondent’s business and the very obvious explanation offered for the termination of his employment.

While he made various criticisms of the process none is sufficient to give rise to a breach of fair procedure.

The dismissal was not unfair.

His complaint under the Payment of Wages Act succeeds however. The respondent’s explanation for its failure to pay him is entirely unacceptable although they may have been caught up in the failed attempts to negotiate a severance arrangement.

The complainant submits that he had a contractual right to a payment of one month’s notice and this was not disputed by the respondent.

His claim for the payment of €2,464.75 succeeds.

For the reasons set out above I do not uphold complaint CA-00038990-001 and the complainant was not unfairly dismissed.

I uphold complaint CA-00038990-002 and award the complainant wages in the amount of €2464.75 gross, subject to statutory deductions.

Unfair Dismissal, Payment of Wages