Complainant

Respondent

Parties

Joseph  Fitzpatrick

Monkstown Educate Together National School

Representatives

 Fórsa Trade Union

 Talbot Pierce HR Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00041824-001

06/01/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041824-002

06/01/2021

The complainant was employed by the respondent as a caretaker from 2008 until his redundancy in July 2020. The complaints relate to an alleged unfair dismissal and a breach of the Minimum Notice and Terms of Employment Act, 1973.

The matter was first heard on 24th June 2021 and was adjourned to allow the complainant to give evidence at a reconvened hearing. The matter was reconvened on 24th February 2022.

The respondent contends that the complainant was not unfairly dismissed. The respondent stated that continued expansion at the school required a review of its caretaking function. The respondent contends that it sought engagement with the complainant in relation to the required changes to the role in the hope that the complainant would be in a position, with some additional training, to undertake the changes going forward. The respondent stated that the complainant was not willing to increase his hours as required or to take on additional training in respect of the expanded caretaker role.

The respondent outlined that the complainant was notified by letter dated 15th April 2020 of the additional requirements of the role and was invited to engage with the respondent on the additional tasks required. The respondent stated that due to covid 19 restrictions a face-to-face meeting was not possible at the time but the matter was progressed by way of written correspondence and a submission from the complainant’s Trade Union representative was received in relation to the complainant’s position.

The respondent stated that the Union’s submission outlined that the changes were not acceptable to the complainant and that he was not willing to carry out the functions of the expanded role or increase his hours of attendance. The respondent noted a number of tasks that the complainant was unwilling and/or insufficiently trained to undertake.

On the basis of the complainant’s refusal to undertake the required tasks and unwillingness to attend additional training, the respondent stated that the complainant was notified of his redundancy which would take effect on 13th July 2020. The respondent confirmed that the complainant appealed the decision to make him redundant, but the decision was upheld on appeal.

It is the respondent’s position that the complainant was dismissed by reason of redundancy in line with Section 6(4)(c) of the Unfair Dismissals Act, 1977 and in circumstances that comply with Section 7(2)(d) of the Redundancy Payments Act, 1967.

The complainant stated that he was not informed of any review of the caretaking function at the school, nor given any opportunity to partake in same and was unaware that the position was at risk of redundancy. The complainant’s position is that the role of caretaker at the school did not become redundant and that his removal from his position constitutes an unfair dismissal in contravention of the Unfair Dismissals Act, 1977.

The complainant stated that his contractual hours are five hours per day, five days per week. Prior to a return from a period of certified sick leave in advance of the 2019/2020 school year, the complainant stated that he was requested to increase his attendance to 35 hours per week, which he was unable to facilitate. The complainant stated that he was notified by letter dated 15th April 2020 that a review of the caretaking function had taken place and of the changes that were required of him going forward. The complainant stated that he was invited to discuss the required changes, but a meeting was not possible due to covid 19 restrictions, and the matter was dealt with by way of submission from the Trade Union. The complainant stated that despite his requests for face to face meetings and/or a video call to further discuss the issues raised in the respondents letters of the 15th April, 2020 and 15th May 2020, no meeting or video call was arranged and the respondent issued its decision to dismiss on the basis of the submission of the Union dated 28th May 2020 which was in the complainant’s view a document which should have formed the basis of further discussion before any final decision was made.

Summary of the complainant’s evidence

At the initial hearing of the complaint in June 2021, it was not envisaged by the parties that evidence would be required as it appeared there was no dispute in relation to the facts of the case. However, as the hearing progressed, the complainant indicated that he wished to give evidence relating to his ability to carry out the expanded role and on issues relating to the additional training required. The hearing was then adjourned to facilitate the complainant’s evidence at a reconvened hearing.

The complainant gave evidence at the reconvened hearing on 24th February 2022. The complainant stated in evidence that in September 2019, he was requested to increase his attendance from five hours per day to seven hours per day. The complainant said he could not do this as he had childminding responsibilities and could not work beyond 12pm. The complainant stated that difficulties arose in relation to being offered training as training was cancelled on occasion and while other locations were offered to him, he was told he would not be paid his travel expenses.

In cross examination, it was put to the witness that he had been offered training on many occasions, but he had refused to attend on 18th February 2020 as it was taking place during the mid-term break and had also refused to attend training on 4th March 2020 and 8th April 2020 in Limerick and Cork respectively despite being assured expenses would be paid.

It was further put to the complainant that he had refused several tasks that he said he was insufficiently trained for and/or not prepared to undertake. In January 2020, the complainant was requested to install some shelving which he refused. On this point the complainant said he was asked to make shelves which was outside the role of caretaker but if the shelves had been bought, he would have put them up.  In February 2020, it was put to the complainant that he had refused to fix a door handle. The complainant stated that this was a specialist job as some of the wood surrounding the handle was broken. In March 2020, the complainant refused to paint internal walls, stating that this job was more appropriate to a painting contractor. It was also put to the complainant that he had refused to sweep the paths or to do any weeding on the school premises. The complainant stated that this was also outside the role of a caretaker. As the complainant was allergic to bark mulch, he was not in apposition to carry out any mulching on the premises and stated that he was not willing to cut the hedges as he said he did not know how to use the hedge strimmer. The complainant stated that he did empty the bins and separate the green waste but would not bring the green waster for recycling as he would not be paid his mileage for doing so.

The respondent states that the complainant was fairly dismissed by reason of redundancy. The complainant contends that he was unfairly dismissed.

The Applicable Law

Section 6(4) of the Unfair Dismissals Act,1977 states as follows:

(4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 7(2) of the Redundancy Payments Act, 1967 states as follows:

(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,

Mitigation of Loss

The complainant stated that following his redundancy in July 2020, he did not make an application to the Department of Employment Affairs and Social Protection and was in hospital for two weeks in August 2020. The complainant confirmed that although he was available for work, he did not make any applications for employment since his redundancy, opting instead to return to education during this time. The respondent stated that in relation to mitigation, where no efforts have been made by the complainant to mitigate his losses, the maximum level of compensation payable is limited to four weeks’ pay.

Findings

I have noted the submissions of the parties and the complainant’s evidence in relation to this complaint. It is clear that from the beginning of the discussions relating to the required changes, the complainant was not in a position to increase his hours of work as required. This would undoubtedly have made it impossible for the expanded caretaker role to be carried out as envisaged by the Board of Management of the School. There were also additional tasks required of the complainant and a number of those tasks were either beyond his capabilities at the time or were in his view more appropriate to other workers such as contractors or specialists in particular areas. It is also clear that difficulties arose in relation to the provision of training both in terms of the complainant’s availability on occasion and issues surrounding the payment of travelling expenses to attend training outside of Dublin.

The complainant was represented by his Trade Union during discussions in relation to whether the proposed changes to his terms and conditions of employment were acceptable to him going forward. In response to the respondent’s letter of 12th April 2020, the Union outlined in submissions dated 28th May 2020, that the complainant is “not willing to carry out the functions as set out on the basis set out.” The Union also states in its submissions that the day-to-day maintenance at the school is “solely subject to the limitations of Mr Fitzpatrick’s skills and expertise”.

While this document does state a number of issues that are unacceptable to the complainant, it also seeks to explore matters further via video conferencing on the basis that face-to-face meetings were not possible at the time due to covid 19 restrictions.

No further discussions took place between the parties after the 28thMay 2020 as it was the respondent’s view that the position of the complainant was clear – that he was not willing to carry out the duties requested of him and that all tasks that he was willing to carry out would be subject to the limits of his skills and expertise. On that basis, the respondent made the decision to make the position redundant in circumstances where there was no possibility of the complainant increasing his hours of work and also where the complainant would not be willing to undertake the required training to carry out the expanded role as the respondent had decided it should be carried out going forward.

The school had expanded significantly and for this reason the respondent, in line with the provisions of Section 7(2)(d) of the Redundancy Payments Act, 1967, decided that the caretaking role should be carried out in a different manner for which the complainant was not sufficiently qualified or trained.

In all of the circumstances of the complaint, I find on balance that the respondent acted appropriately and in line with the provisions of the legislation. Accordingly, it is my decision that the complainant was fairly dismissed by reason of redundancy.

The issue of the non-payment of notice entitlement was included in the complaint narrative that was submitted to the WRC on 6th January 2021. The complainant contends that he did not receive his minimum notice entitlements when he was notified of his redundancy with immediate effect on 13th July 2020.

The respondent stated that as the complainant was not “in service” at the time of the notification of his redundancy and contends that the notice period would have expired by the time he would have been due to return to work. In those circumstances the respondent contends that no entitlement to notice arises.

The entitlement to notice entitlements is set out in Section 4(1) of the Minimum Notice and Terms of Employment Act, 1973 as follows:

4(1) An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section.

(2) The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be—

(a) if the employee has been in the continuous service of his employer for less than two years, one week,

(b) if the employee has been in the continuous service of his employer for two years or more, but less than five years, two weeks,

(c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks,

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks,

(e) if the employee has been in the continuous service of his employer for fifteen years or more, eight weeks.

The complainant had 12 years’ service with the respondent at the time of his redundancy. The fact that the complainant was notified of his redundancy during the school summer holidays does not in my view negate his entitlement to notice in accordance with the provisions of the legislation. Accordingly, the complainant is entitled to be paid six weeks gross pay in respect of notice entitlements.

CA-00041824-001 – Unfair Dismissal

Having considered the submissions of both parties, I find that the complaint of unfair dismissal is not well founded.

CA-00041824-002 – Minimum Notice

Having considered the submissions of both parties, I find that the complaint is well founded. The respondent is directed to pay the complainant six week’s gross pay in respect of notice entitlements.

Redundancy entitlements, unfair dismissal, notice entitlements