ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032482
Tottoria Trading Limited, trading as
The Institute of Education
Edel Kennedy, Mason Hayes & Curran Solicitors
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 21/07/2021
Workplace Relations Commission Adjudication Officer: Catherine Byrne
This complaint was submitted to the WRC on March 12th 2021 and, in accordance with section 8 of the Unfair Dismissals Acts 1977 - 2015, it was assigned to me by the Director General. I conducted a remote hearing on July 21st 2021, in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. At the hearing, I made enquiries and gave the parties an opportunity to be heard and to present evidence relevant to the complaint. The respondent was represented by Ms Edel Kennedy of Mason, Hayes and Curran, Solicitors. Mr John Savage from Mason Hayes and Curran also attended. The respondent’s main witness was the Institute’s principal, Ms Yvonne O’Toole. She was accompanied at the hearing by the human resources (HR) manager, Ms Wendy Monaghan. The complainant represented himself, and was accompanied by his wife, Ms Sarah Timmons.
At the opening of the hearing, I alerted the parties to the judgement of the Supreme Court in the case of Zalewski v Adjudication Officer and WRC  IESC 24 which was delivered on 6th April, 2021 with a further ruling on 15th April 2021. I informed them that, from April 6th 2021, hearings at the WRC may be held in public and that it is likely that the parties will be named in the published decisions. I also informed them that evidence may be heard under oath. On the date of this hearing, the legislation had not been amended to provide for prosecution for the giving of false evidence. The parties confirmed that they were willing to proceed in these circumstances.
The Institute of Education is a private secondary Institute in Dublin and, on September 1st 2019, the complainant commenced on a fixed-term contract in the role of assistant to the operations manager. This contract was due to expire at the end of June 2020, but in February 2020, he was appointed to a permanent position. In December 2020, his days at work were changed from Monday to Friday to Monday to Saturday, with Wednesday off. The complainant said that he generally worked 40 hours a week and his annual salary was €35,000. In an outline of his responsibilities, he said that he supervised between eight and 10 operatives and had oversight of the work of the Institute’s print room. When the Covid-19 pandemic erupted, he was made the lead worker representative and he helped to draft the Institute’s Covid-19 response strategy.
When the operations manager was made redundant in October 2020, the complainant said that he and his colleagues were informed that their jobs were safe. Three months later however, on January 11th 2021, the complainant was informed that his job was redundant and his employment was terminated on January 13th. He received one month’s pay in lieu of notice.
It is the respondent’s case that a genuine redundancy situation existed and that the decision to make the complainant’s job redundant was fair and reasonable. The complainant claims that his dismissal was unfair and he is seeking reinstatement.
Summary of Respondent’s Case:
The Role of the Operations Assistant
The job of operations assistant was to support all the general operatives, administration and other staff to ensure the smooth, day-to-day functioning of the Institute. The complainant managed a team of general operatives on weekends and for special events. A summary of the responsibilities of the role were included in the respondent’s submission at the hearing and they included managing the operatives’ roster, general administration, production of printing requirements, mailing, organising classrooms, student ID cards, support for the health and safety manager and opening up and closing the building. In their submission, the respondent notes that, during his employment, there were no concerns about the complainant from the perspective of performance or discipline.
The Impact of Covid-19
Due to the closure of the Institute arising from the Covid-19 pandemic, courses were delivered online. The closure of the Saturday part-time classes and the move to online courses resulted in the loss of significant revenue. Students were refunded for some courses. Due to the cancellation of the Junior Certificate examination, the Easter course bookings were significantly down on previous years and the Leaving Certificate programme moved online. Several other programmes didn’t go ahead resulting in considerable financial loss.
In March 2020, with the school closed and classes moved online, the complainant and a number of other employees were temporarily laid off. He came back to work that summer and, although the school opened in September 2020, there was a significant reduction in both part-time and full-time students.
The complainant’s line manager was the head of operations and she was made redundant in October 2020. The responsibilities of the job were distributed between the principal, the financial controller, the HR manager and others. The head of international was also made redundant.
In December 2020 and January 2021, as a result of the downturn in business, a further review of staff requirements was carried out. The complainant’s duties were related to the operation of the Institute building which had been closed for much of 2020. In January 2021, the Institute was closed again and the majority of the work associated with the role of operations assistant had ceased.
The Redundancy Process
The respondent’s submission described the complainant’s job as a “standalone role” and that there was no logic in placing him in a pool of at-risk employees. In any event, if he had been considered alongside other employees, this would have placed him in a pool with two print-room operatives, both of whom had longer service than him and therefore, entitled to greater protection from the risk of redundancy.
In their consideration of an alternative to making the complainant’s job redundant, the principal and the HR manager took into account the fact that teaching would continue online for much of 2021, the Saturday school was closed and courses that were scheduled for the summer of 2021 were cancelled. Operations duties had ceased for prolonged periods during 2020 and, from a public health perspective, the situation appeared unlikely to change for the foreseeable future.
On Monday, January 11th 2021, the complainant was requested to attend a meeting with the principal and the HR manager. He was informed that his job was at risk of redundancy and that another meeting would take place on Wednesday, January 13th. At that meeting, the complainant was informed that, because he was the only operations assistant, there was no requirement for a scoring process or a matrix to consider the selection of his job for redundancy. He was told that his duties would be carried out by existing staff. The respondent’s submission notes that the meeting on January 13th concluded “without any alternatives to redundancy being identified by either the respondent or the complainant.” On that day, the principal wrote to the complainant to confirm that “today your role will become redundant.” She informed him that he was not required to come to work the next day, and that he would received a month’s pay in lieu of notice.
The respondent said that the complainant was not replaced and, on the date of the hearing, July 21st 2021, “there is no role being occupied by an Operations Assistant as there is simply no work to justify such a role.”
The Respondent’s Legal Submission
It is the respondent’s case that the redundancy of the complainant’s job falls within the definition of redundancy at section 7(2)(c) of the Redundancy Payments Act 1967 which provides that,
“…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to—
(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise[.]”
Following the worst trading year in the history of the Institute, the delivery of education was “completely overhauled” and the respondent was working to prevent a “double-up” of losses in 2021. During 2020, the business was carried out with fewer employees and, by the end of the year, as classes moved online, the requirement for the complainant to carry out certain work had ceased and his remaining work was assigned to other employees.
Highlighting section 6(7) of the Unfair Dismissals Act 1977, and the requirement for an employer to act reasonably in relation to the dismissal of an employee, it is the respondent’s case that they acted reasonably at all times. In her submission, Ms Kennedy noted that there is no statutory procedure which an employer is obliged to adhere to when it comes to the redundancy of one job. Despite this, she said that the employer “discussed the risk of redundancy with the complainant, held meetings with him to explore alternatives and allowed him to raise any questions in relation to the redundancy.” She submitted that the respondent acted fairly at al times and paid him what he was legally entitled to.
In summary, Ms Kennedy said that any redundancy is regretted. She said that the complainant’s fixed-term contract was converted to a permanent position in early 2020 and his employer had no issue with his work. His application for a mortgage was supported by the Institute. She said that the decision to make his job redundant was impersonal and any allegation of latent bias or dislike is refuted. It is the respondent’s case that, following a reorganisation of its business, changes were made, including the redundancy of the complainant’s role. Ms Kennedy concluded her submission by asserting that the dismissal of the complainant by reason of redundancy was “fair in all the circumstances and does not amount to an unfair dismissal in accordance with the Unfair Dismissals Act 1977 – 2015 or at all.”
Evidence of the Human Resources Manager
I asked the respondent’s representatives if any consideration was given to the possibility of laying-off the complainant until things returned to normal. Ms Monaghan said that the Institute will never go back to the way it was and that there will be no requirement for an operations assistant. She said that everything changed with the closure of the Saturday Institute and it is not envisaged that the role of operations assistant will exist in the future. She said that a lot of courses have been cancelled entirely and the Easter programmes have been cut by 70%. She said that the possibility of opening in September 2021 remains uncertain. Ms Monaghan said that the Institute does not employ a facilities manager. They have an electrician who is on site from Monday to Friday and he looks after electrical issues and the boiler and waste management.
Evidence of the Principal
In her evidence, Ms O’Toole said that, before the Covid-19 pandemic, the Institute had 1,200 students on site and 250 employees. Around 100 of these were non-teaching staff. As a result of the closure of the school and the cancellation of many courses, the Institute had its worst trading year since it was established. The operations director and the head of international were made redundant in October 2020. Some people on fixed-term contracts were not brought back at the end of their contracts and 16 people were temporarily laid off.
Ms O’Toole referred to the job description for the role of operations assistant which was submitted in the respondent’s book of documents. A list of responsibilities is set out in the job description, the first of which is “overseeing all general operatives” and managing their roster. Ms O’Toole said that the Institute attendance manager is now doing this part of the job. The Institute attendance manager has taken on responsibility for all operations issues including liaising with the health and safety manager on safety and security.
Ms O’Toole said that a significant element of the complainant’s job involved printing and posting notes to students. In 2020, the Institute purchased a new automated system which the teachers used to upload class notes. The notes are then automatically sent to the students. Another task was ensuring roll sheets are distributed to classes, and she said that this is now automated. The layout of classrooms is not required because classes are online. The electrician has been given responsibility for managing the car park. The complainant had been responsible for opening and closing the Institute on Saturdays, but since the Saturday Institute was closed, this was no longer required. The print room staff now do the franking and posting of mail. Because the Institute is closed, other work, such as patrolling and monitoring the physical environment and controlling crowds of students is not required.
Referring to the difficulties experienced by the Institute in 2020 and into 2021, Ms O’Toole said that her objective was to save the business. She said that the environment of the Institute is one of collaboration and that she believes in being respectful and friendly, even in the very challenging circumstances of the Institute during the pandemic. She said that she has no issues with the complainant, but that there is simply no work for an operations assistant.
Summary of Complainant’s Case:
Lead-up to the Discussion about Redundancy
On the e-complaint form which he submitted to the WRC, the complaint set out the timeline from the date of his commencement in the Institute on September 1st 2019, until he was made redundant on January 13th 2021. During the first year of his employment, no issues were raised with the complainant regarding his performance or conduct. Following the outbreak of the Corona virus, in April 2020, he was appointed as the lead worker representative for Covid-19 and he helped to draft the Institute’s Covid response policy. In October 2020, the complainant’s line manager, the operations manager, was made redundant and her role was taken on by the principal. He said that the principal asked him to write out the duties of his role and she assured him and other staff that their jobs were safe.
It appears from the complainant’s submission that, following the departure of the operations manager, his relationship with the principal deteriorated. He noticed that she didn’t greet him when she was in the office that he shared with his colleagues. He said that the principal dismissed his concerns about meeting in her office when she wasn’t wearing a mask.
In January 2021, a colleague was absent due to a Covid positive test result. The complainant said that he was a close contact of this colleague, who hadn’t worn a mask at work. He said that his employer didn’t compile a list of the close contacts for the HSE. He discovered that the Covid-positive person had been waiting for the results of his test since before Christmas, but that he had returned to work before confirmation of the results. The complainant said that he informed the principal that he was concerned about exposure to Covid-19 and the risk to the family members with whom he had spent Christmas. He said that the principal refused to discuss the outbreak, timeline and contact-tracing with him. After the colleague’s Covid test was confirmed as positive, the complainant said that the principal began wearing a mask at work.
On Saturday January 9th 2021, the principal asked the complainant to come to work. He was working alone and didn’t complete the list of printing jobs that he was asked to do and he said that the principal expressed her disappointment. He said that, ordinarily, he would have had help with the amount of printing that was required the next day.
Communication Regarding the Redundancy of the Complainant’s Job
On Monday, January 11th, the complainant was called to a meeting to discuss the redundancy of his job. The principal and the HR manager were in attendance. He attended the meeting on his own and no notes were taken.
Up to the date of this meeting, the complainant said that he had been working overtime for months and he was “shocked because I thought I was the busiest person in the busiest department with a large degree of technical insight and I was in a supervisory role.” The complainant’s wife was expecting their second child and he had previously told the principal this news. He asked if the decision to make him redundant had anything to do with his intention to apply for paternity leave, but the principal replied that she didn’t know anything about his application.
On Wednesday, January 13th, the complainant attended a second meeting with the principal and the HR manager. He took notes at the meeting because, again, there was no note-taker present and he said that he wasn’t permitted to make a recording. Due to the fact that he was taking the notes, the complainant couldn’t focus on making a case for keeping him in his job or pointing out areas where there was a need for his skills. At the meeting, the principal told him that his role would be absorbed into other departments. No explanation was given regarding how this was to be achieved and the complainant was informed that he was not required to come to work during his month’s notice.
When he asked what process was followed that resulted in his job being selected for redundancy, the complainant noted that the principal said that, as a small, private Institute, they don’t have a lot of documents. She said that they were re-structuring within the organisation and that there were no open vacancies that were suitable for him. The complainant commented that it has been so busy in the print room, and it was his understanding that they were hiring a new person. The principal said that there weren’t hiring and that his redundancy was not related to the volume in the print room. The meeting ended when the complainant was issued with a letter confirming his redundancy which was effective from that day.
Communication between the Complainant and the Principal Following his Dismissal
In a letter to the principal and the HR manager the same day, the complainant said that he was shocked to have been unexpectedly called to a meeting two days previously and informed that his job was possibly at risk of redundancy. He said that he was busier than ever before and that the print room supervisor had made it clear that he depended on him, and that sometimes, two people were rostered to assist him. He said that he had been working overtime and through lunchtime for months and that there had been a plan to hire a new person to help with the expanded workload. Interviews had been held a week previously for this vacancy.
In his letter, the complainant said that, an hour before finishing work, he was called to a meeting and told that his job was redundant and that he was not required to come back tomorrow. He said that there was no effort at consultation or finding a mutually agreeable solution. He said that his colleagues and the print room head were completely surprised to hear that there had been a discussion about redundancy. He said that there was no conversation with anyone else about re-structuring. The complainant said that he disagrees that his job is redundant and he said that no genuine effort was made to identify a job somewhere else in the Institute. He said that it is his belief that the general operatives who are on zero hour contracts that he supervised are now doing his printing and mailing duties. He queried why they were not let go before him. Concluding his letter, he said,
“In this pandemic with so many recently out of their jobs, it will be hard to find alternative employment. My wife is in a high risk category and also in late pregnancy and I am due a child in less than 6 weeks. From what I know of the organisation and the current workload, I firmly believe that my termination was an unfair dismissal, handled poorly with not a single kind word or apology…”
The principal replied on January 14th and explained the reason for the redundancy of the complainant’s job:
“As discussed at the meeting on 13 January 2021, the reason for the role of Operations Assistant becoming redundant was due to organisational restructuring within the Institute of Education. A review of roles was carried out throughout the organisation in relation to efficiencies and cost-cutting measures within the organisation (against a backdrop of a global pandemic). The role of operations assistant was reviewed and a decision was made that this role was no longer required within the organisation in its current format and that the tasks and duties associated with this role could be absorbed elsewhere within the organisation. The letter you received after our meeting on the 13 January 2021 outlines this decision to you.
“The Institute of Education is guided by the WRC on the redundancy process when carrying out any redundancies within the organisation. The Institute of Education would never disclose any documents on the restructuring of the organisation with any staff.”
The Complainant’s Response to the Institute’s Position Regarding his Redundancy
In a comprehensive submission sent to the WRC in advance of the hearing on July 21st 2021, the complainant responded to his former employer’s case (submitted on July 16th) that it was necessary to make his job redundant. He said that this statement is the first time he has seen an explanation of the reason for his termination. I will now summarise what I consider to be the most salient points in his response.
In the context of the Corona virus pandemic and the move to online teaching, the complainant said that he is versatile and skilled in the operational and video-graphic aspects of launching online teaching. He said that he worked hard in a multi-disciplinary capacity, particularly during the early days. He said that his technical abilities made him suitable for many tasks and responsibilities and that he and “jumped in to help” in any way he could.
When he returned to the Institute in the summer of 2020 after being laid off, the complainant said that he was provided with a letter from his employer stating that he was an essential worker. He said that there was no slow-down in his work.
While the Institute claims to have had the worst trading year in its history, according to its advertising, €2.5m has been invested in modernising the audio-visual equipment to improve online learning. He said that this permits students from distant locations to attend the school. He said that the Institute has intermittently closed its premises to students and moved classes online. The complainant said that he was required to support this operation and that he worked extra hours and days, printing notes and sending them to the students by post.
If he had been afforded the opportunity to make a case against the selection of his job for redundancy, the complainant said that he would have brought the attention of the principal and the HR manager to his work in the mailroom to implement a more efficient work process which, he said, saved thousands of euros every month in postage costs.
Following the redundancy of the operations manager in October 2020, the complainant provided what he referred to as “a macro-outline” of his responsibilities to the principal. He was then instructed to keep a list of everything he did throughout the day and submit this list to the principal. He said that this “ended up being a wide-ranging list as I was very busy.” Operational duties then started to be assigned to the principal’s assistants and this caused confusion. He said that schedules that he drew up were re-typed and labelled as the responsibility of other employees. CPR training that the complainant was booked to take in January 2020 was cancelled by the principal the day before the training, without any explanation.
The complainant rejected the assertion that the majority of work associated with his job had ceased. He said that he worked overtime trying to keep up with the “giant workload” which the transfer to remote learning had brought upon the printing and mailing departments. He said that his duties were now “so monumental that it required a daily additional two persons to complete.” Up until the day he was dismissed, he said that he was training in new hires and that he “continued to work long, busy days up to the day I was told to go home and not return as I was terminated.”
Referring to the respondent’s assertion that his job was a “standalone” position, he said that it was more of “a multi-faceted position, overlapping printing, mailing, supervision and training, technical work, soft skills and operations.” He claims that this job is not redundant. He said that he was hired as an experienced printer. At the time of his dismissal, the print room head was looking for more staff. He said that, since his dismissal, staff on new or temporary contracts are doing the work that he did, and some have worked through the night to keep pace with the work.
The complainant has no argument with the respondent’s assertion that the Institute was seriously impacted by the Covid-19 pandemic, with courses cancelled and teaching moved online. However, he claims that a job could have been found for him, because he has skills and experience that are useful and from which the school could have benefited.
Outlining the contribution he made, the complainant said that he had an input on formal policies, such as the school’s Risk Assessment Plan. He said that he also got involved in informal procedures, such as the best way to print a document over a network. He established a green label mailing system so that packets could be sent at half the normal cost. He created policies around the mail tracking system to keep track of thousands of shipped parcels. During his last week at work, he was arranging a repair on the franking machine and considering the option of replacing the machine. He said that, while the respondent’s submission suggests that an element of his work was not fit for purpose, he provided what he was asked for and corrected many errors. He said that his work was never criticised or questioned until the remarks in the respondent’s submission to the WRC.
It is the complainant’s case that there is no evidence that any consideration was given to finding an alternative job where he could have made a contribution in the Institute. He said that the process was not open and “simply amounted to the Principal deciding to terminate me and saying the bare minimum to effectuate this decision in a meeting.” He said that, at the meeting on January 13th 2021, there was no discussion of possible jobs in the organisation or the rationale behind the decision to make his job redundant. He said that he asked if he could discuss the matter, and make a business case for keeping him employed, but no discussion was permitted. He asked for a copy of the policy or procedure that led to the decision to make his job redundant, but none was provided. He also asked what department heads were consulted about the possibility of an alternative role, but he got no answer. He wasn’t permitted to take notes at the meeting.
Having worked his best in a place that no longer valued him, the complainant described his experience as “utterly devastating and disorienting.” He said that “news of my dismissal was actually met with surprised and sorry reactions from other senior staff who would have been spoken with if a true search for a role had been conducted.”
Evidence of the Complainant
In his direct evidence, the complainant described his role in the Institute, as he described it in his written submissions. He said that he was in a multi-faceted job, and that, at the time of his dismissal, he worked mainly in the print room. He said that he supervised a team of eight operatives. He said that when his manager was made redundant, he was busier than ever and also because there was a need for increased printing and mailing during the pandemic. He said that he also took charge of staff scheduling and training and he implemented a tracking system for mailings.
Just before his employment was terminated, the complainant said that he informed the principal that his wife was expecting their second baby, and that he intended to apply for paternity leave.
On January 11th 2021, he attended the meeting at which he was informed that his job was at risk of redundancy. He was not invited to be accompanied and he attended on his own. Two days later, on January 13th, he attended a meeting for which he got hardly any notice and which occurred an hour before his normal finishing time. He said that he asked if he could have someone present on his side, but this was refused. He was also not permitted to record the meeting, so he took notes himself. He said that he was devasted when he opened the letter confirming that his employment ended that day.
Referring to the respondent’s submission to the WRC, the complainant said if the redundancy of his job was a true redundancy, he would have heard these explanations before now. He said that if there wasn’t enough work for him to do, he could have been laid off again. He said that he thinks that his termination “meets the benchmark of an unfair dismissal.”
Findings and Conclusions:
The Relevant Law
This complaint is grounded on the complainant’s allegation that, when his job was made redundant, a redundancy situation did not exist. The complaint falls to be considered under the Unfair Dismissals Acts 1977 - 2015 and the Redundancy Payments Acts 1967 - 2014.
The Unfair Dismissals Acts 1977 - 2015
Section 6(1) of the Unfair Dismissals Acts (“the UD Act”) provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The burden of proof rests with the respondent to provide evidence of the “substantial ground justifying the dismissal” of the complainant. Their case is that the closure of the Institute in March 2020, following by the move to online teaching up to May 2021, resulted in a reduction in the number of students attending classes. The effect of this was a significant fall in revenue, although no details of the financial impact on the Institute was provided. The fall in revenue resulted in a need to conduct a review of the organisation, following which a decision was made that the complainant’s role was no longer required. The explanation for this decision was given by the respondent as follows:
1. The complainant’s duties related to the operation of the physical school building which was closed for long periods in 2020 and again in January 2021;
2. His duties related to the presence of students in the building;
3. The requirement to open and close the building on Saturdays had ceased de to the closure of the Saturday school.
Section 6(3) of the UD Act provides that a dismissal will be unfair where an employer acts unfairly in the selection of an employee for redundancy or, where an agreed procedure for implementing redundancies is not followed:
“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—
“(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or
“(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,
“then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”
“Subsection (2)” referred to here is subsection 6(2) which addresses the termination of employment for reasons related to trade union membership, religious or political opinions or for having made a protected disclosure and other matters that are not relevant to the complainant in this case.
In the case under consideration, “the circumstances constituting the redundancy” was the closure of the Institute because of the Covid-19 pandemic, the cancellation of many programmes in 2020 and 2021 and the fall in student numbers, with a subsequent reduction in revenue.
Section 6(4) of the UD Act recognises the right of an employer to dismiss an employee due to redundancy:
“…the dismissal of an employee shall be deemed, for the purposes of this Act not to be an unfair dismissal if it results wholly or mainly from
(c) the redundancy of the employee.”
Subsections (a), (b) and (d) of this section are not relevant to this complaint.
We know from section 6(3) that this right is predicated on an obligation to select employees for redundancy on the basis of fairness, and to adhere to an agreed procedure or a code of practice regarding dismissals. Section 6(7) expands further on the issue of reasonableness and provides that, in considering a complaint of unfair dismissal, I may have regard,
“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and
“(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”
In the case of this former employee, he was not a member of a trade union and the school principal informed him that they had no documented procedure for how redundancies would be implemented. In the absence of an agreed procedure, the respondent was required to ensure that the fair procedures that apply in the case of any dismissal were afforded to the complainant. These include the right to notice, the right to be represented at meetings and the right of the employee to respond to the employer’s decision to make his job redundant.
The Redundancy Payments Acts 1967 - 2014
The starting point for a consideration of the respondent’s position is the definition of redundancy at section 7 of the Redundancy Payments Acts (“the RP Act”). Section 7(2) sets out five definitions of redundancy and, for our purpose here, we need to concern ourselves only with subsection (c):
“…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not related to the employee concerned, the dismissal is attributable wholly or mainly to—
“(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise[.]”
Considering the case made by the respondent that the work that the complainant was employed to do was not required as a result of the move to online classes and, that the remainder of his work would be done by others, his dismissal would appear to fall within the definition of redundancy at section 7(2)(c) of the RP Act, but I will explore this further now.
Was it Reasonable to Make the Complainant’s Job Redundant?
Across the globe, the Covid-19 pandemic presented managers and owners with enormous challenges; how to stay in business, how to retain customers, how to “pivot” to do business in a radically changed environment. The Institute of Education faced these challenges and more, particularly how to retain “customers;” the students who expected the delivery of high grade tuition from expert teachers. Ultimately, some customers were lost, although the details of the level of losses was not provided at the hearing of this complaint.
Considering the extent of this challenge, some organisational changes were required, and there can be no criticism of the Institute for its efforts to do business more efficiently and to attempt to make savings. The jobs of two senior employees, one of whom was the complainant’s line manager, were made redundant in 2020 and the complainant’s role came up for consideration in January 2021. The respondent’s case is that, with some aspects of his job no longer required due to the school’s closure, the remaining elements were distributed among other employees. The complainant argues that, because the school was closed and teaching went online, he was busier than ever. The respondent’s witnesses did not dispute this, but stated simply that his tasks could be “absorbed within the organisational structure.” While this may align with the definition of redundancy at section 7(2)(c) of the RP Act, having heard the evidence of both parties, it seems to me that this is an incomplete explanation for the complainant’s dismissal.
The school building closed in March 2020. It re-opened that September, but was closed again in January 2021. The effect of this was that the Saturday school and many of the courses scheduled to take place during the Easter holidays were cancelled. Apart from the loss of income, the closure of the building meant that certain aspects of the complainant’s job didn’t need to be done. Of critical importance however, is the fact that the closure of the Institute was never other than temporary and, across the educational sector, it was anticipated that schools would re-open in September 2021. At the hearing, I learned that around 16 employees had been laid off and another took unpaid leave. I find it difficult to understand why the complainant wasn’t simply laid off for a few months until the school re-opened.
The objective of the pandemic unemployment payment (“PUP”) and the employers’ wage subsidy scheme (“EWSS”) was to avoid the risk of job losses during the pandemic, when there was no work for many employees. While the complainant said that there was work for him to do, and that he was busy, if his employer thought that he wasn’t fully occupied, he could have been laid off, rather than dismissed. This was the approach adopted by most employers, and it would have generated savings during a period when revenue was reduced.
The decision of the Labour Court in the case of Component Distributors (CD Ireland) Limited v Brigid (Beatrice) Burns describes the right of an employer to restructure its business as “not unfettered” and balanced against the requirement to act reasonably in relation to a job-holder who is at risk of redundancy. Having examined all the evidence, it is my view that it was unreasonable to select the complainant’s job for redundancy. I make this finding for the following reasons:
The respondent presented no evidence to indicate that the complainant was not hard-working or effective. With the school closed, certain aspects of his job didn’t need to be done. However, the closure of the building generated a significant amount of other work. To support students at home, teachers uploaded notes to a system known as “Switch” and the notes were then copied, packed and posted out. I accept the complainant’s evidence that this was a “monumental” workload for the print room staff. It is apparent that he put his shoulder to the wheel and helped to get that work done. In effect, one set of tasks was replaced with another and I accept the evidence of the complainant that he was busier than he had been when the school was open.
This is the context in which the complainant’s job was made redundant. While the definition of redundancy at section 7(2)(c) of the RP Act permits the distribution of the work associated with one person’s job to other employees, this must be balanced by the principle of reasonableness at section 6(7) of the UD Act. It is my view that most reasonable employers in the same circumstances would not have made the complainant’s job redundant. I make this finding because the circumstances of the losses faced by the respondent were temporary and due entirely to the Covid-19 pandemic. Government supports were available to employers so that they could maintain employees in their jobs and the school was scheduled to re-open at the latest by September 2021.
I learned at the hearing that around 100 non-teaching staff are employed in the school. No evidence was presented that there were discussions with other department heads or that consideration was given to inviting other employees to opt for redundancy on a voluntary basis. The decision of the Labour Court concerning the Students Union Commercial Services Limited and Alan Traynor is an important precedent concerning the obligation of an employer to consider an alternative to redundancy. Mr Traynor was a chef and he worked in a bar on a college campus. Accepting that the redundancy of his role was necessary, the Labour Court found that, even in the context of financial losses, the respondent had a duty to identify a role for him in one of its other business units. It is my view that, if the respondent in the case under consideration here had been more positively disposed towards the complainant, they would not have dismissed him but would have assigned him to an alternative job where he could continue to make a useful contribution.
Was the Process Fair?
The respondent’s case is that because the complainant was in “a standalone role,” there was no requirement to expand the pool of workers at risk of redundancy. While I accept that the job of operations assistant was the only one in the Institute, the complainant’s work was not unique, being mainly associated with facilities, printing and posting. Others also did this work. The complainant’s manager was made redundant three months previously, so one could assume that there was already an operations deficit in the school. I accept the evidence of the complainant when he said that part-time employees were brought in to cover the workload in the print room and that the print room manager was looking for additional staff. This makes sense because of the considerable additional printing requirements associated with remote teaching. I am satisfied that, if the respondent had been willing, they could have found an alternative to the dismissal of the complainant.
The process of making the complainant redundant started with a meeting on January 11th and ended on January 13th, when he was called to another meeting and given a letter confirming his dismissal. He was given scant notice of the two meetings and he was not permitted to be accompanied or represented. It is evident that no consultation took place and that his response to the ”at risk” status of his job was not considered. In her letter of January 11th 2021, the principal wrote to the complainant saying that she would “keep him “informed and involved throughout the process.” As the “process” ended two days later, without any exchange of views, I find that the respondent’s treatment of the complainant was disingenuous and entirely unfair.
Having considered the evidence of both sides, I find that there was some reason, not related to the redundancy of his job, that resulted in the dismissal of the complainant. I found his evidence credible, when he said that there was growing friction between him and the principal. The speed of the process that ended with the complainant’s dismissal was disturbing, as was the absence of any concern about his personal circumstances and the impact that the loss of his job was bound to have on him and his family. In contravention of section 6(3) of the UD Act, I find that his dismissal was substantively and procedurally unfair.
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 decided that this complaint is well founded. Of the redress options available, the complainant selected reinstatement. It is my view that it would extremely difficult for him to re-establish himself with any comfort with his former employer and I have decided instead to make an award of compensation.
No evidence was submitted that the complainant made any contribution to his dismissal and, in terms of mitigation of his losses, he said that he immediately started work on a self-employed basis as a videographer, earning small money on an ad hoc basis.
I decide that the respondent is to pay the complainant €35,000 in compensation, equivalent to one year’s gross pay. As this compensation is in the form of loss of earnings, it is subject to the normal statutory deductions.
Workplace Relations Commission Adjudication Officer: Catherine Byrne
Dismissal on the ground of redundancy