Complainant

Respondent

Parties

Margaret  Spain

Scoil Naisiunta Chill Ruadhain

Representatives

  The claimant represented hersellf

Paul McDonald AJP McDonald Solicitors

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-00043848-001

03/05/2021

The claimant was employed as a cleaner with the respondent since the 9Th.Sept. 2006 and submitted that she was unfairly dismissed when she was made redundant on the 3rd.May 2021.The cleaning service was outsourced to an external contractor in response to what the school maintains was increasing demand for the provision and management of cleaning services arising from the impact of Covid 19 as well as the additional services required for Special Classes. The respondent vehemently refuted the complaint of unfair dismissal and submitted that the claimant ‘s redundancy was a valid redundancy within the meaning of the Redundancy Payments Act 1967 as amended.

1. It was submitted that this complaint concerns the termination of the Complainant’s contract of

employment with the Respondent by reason of redundancy. The Complainant

was employed by the Respondent as a cleaner in the Respondent’s school

Respondent has outsourced the cleaning of the school and as a result the

Complainant’s position became redundant. The Complainant was given notice of

redundancy by letter dated 17 November 2020 and her contract of employment

was terminated as of 31 December 2020.

2. The Complainant asserts that the reasons given for the redundancy do not

constitute a valid redundancy as the work she was doing is still there and will now

be done by someone else.

3. It was submitted that the Respondent contests the entirety of the claim and the assertions made by the Complainant.” The Respondent's position is set out below but failure to address in

this submission any particular allegation of fact or law by the Complainant should

not be taken as the Respondent accepting same. It was submitted that for the avoidance of doubt, the respondent takes issue with the entirety of the assertions of fact and law made

by the Complainant save to the extent that same are admitted herein and/or

consistent with matters set out on behalf of the Respondent”.

II. BACKGROUND

4. The Complainant was employed by the Board of Management as a cleaner from

September 2006 until her contract was terminated on 31 December 2020.

Initially the Complainant was employed to work three hours per day for three

days per week.

5. It is accepted that over the years the hours that she was required to work

changed from time to time as a result of the prevailing circumstances. Her hours

had been reduced to 2 days per week due to a reduction in DES funding during

the recession. In 2018 the school put in place two temporary prefab classrooms

and opened an ASD unit. For the 2019/2020 school year the school put in place

a third temporary prefab classroom and opened a second ASD unit. As a result

the Chairperson spoke with the Complainant in mid-August 2019 and offered her

a third day per week. It was agreed that she would work for three days per week

(Monday, Wednesday and Friday) for 6.5 hours per day giving a total of 19.5

hours per week.

6. It was also accepted that the Complainant’s husband would regularly accompany

her to the school and assist her in cleaning the school. The Complainant’s

husband was never employed by the Board of Management nor was he ever paid

by the Board. It was submitted that this was something the Board sought to regularise.

7. In March 2020 all schools were closed as a result of the Covid-19 pandemic.

Schools did not reopen until September 2020. In preparation for the reopening of

schools’ specific health and safety measures were put in place as instructed by the

Department of Education. It was important that schools be cleaned regularly and

that specific cleaning duties be carried out to include the sanitising of touch

points.

8. Prior to the school reopening the Chairperson and Principal met with the

Complainant on 31 July 2020 to outline the new requirements for cleaning to

include the Covid-19 specific duties and the requirement for cleaning to be carried

out five days a week. The Chairperson advised the Complainant that the school

would require six hours cleaning per day for five days per week amounting to 30

hours per week. The Chairperson also noted that the Complainant’s husband was

accompanying her to clean the school on a regular basis. The Chairperson

advised that this was unsatisfactory as he was not an employee of the school. It

was put to the Complainant that the Board would have no difficulty in formally

employing her husband and that the six hours per day could be achieved by both

the Complainant and her husband working for three hours each. Initially the

Complainant indicated that she would be willing to work five days per week. She

said she would confirm the position regarding her husband becoming an

employee of the Board.

9. Following correspondence between the Complainant and the Chairperson the

Complainant advised that she was not prepared to work five days per week nor

was she prepared to carry out any additional Covid-19 duties. She stated in

correspondence dated 17 August 2020 “I would like to wish you well in your

efforts to employ someone else to do the extra work that Covid-19 has brought to

the school this year and we will see you when the school reopens”. She advised

that she would clean the school as she had been doing and that there was no

need to sign off on her jobs. She stated in correspondence “it’s my

understanding that Covid-19 cleaning needs signing off on and this has nothing to

do with me.” She stated that “My current contract is for 6.5 hours pay three

times a week and any change to this is a clear breach of contract”.

10. As a result the Board of Management employed a Contract Cleaning Company to

clean the school every Tuesday and Thursday. In addition the Contract Cleaning

Company attended the school every Monday, Wednesday and Friday after the

Complainant had finished so that they could complete the additional Covid-19

cleaning requirements.

11. The Principal and Board were concerned about the amount of time the

administration and overseeing of the cleaning was taking particularly as the

school now had two sets of cleaners, the Complainant and the Contract Cleaning

Company. The school is in the process of building a large extension and

accordingly the school will require extra cleaning going forward and will require

same five days per week.

12. The Board of Management discussed the issue of cleaning in the school and

decided that it would consider the possibility of outsourcing the cleaning function

to a single Contract Cleaning Company that would be responsible for the

administration and overseeing of the cleaning operation.

13. The Board consulted with the Complainant to appraise her of the Boards thinking

and to give her an opportunity of making any suggestions that she might have

that would lead the Board to reconsider its thinking. Correspondence issued

between the parties and same was contained in the book of correspondence

attached to the respondent’s submission.

14. The Board of Management reviewed the response of the Complainant and noted

that she did not make any suggestion that led it to the view that it should

reconsider its thinking. The Complainant stated that she regarded herself as

having a permanent job as a cleaner in the school and that she was fully

prepared to continue working 19.5 hours per week. She stated that the question

of bringing in outside help to keep the school is a matter for the Board that could

only supplement her efforts as an employee of the Board since 2006.

15. The Board wrote to the Complainant of 17 November 2020 confirming that it did

not consider the suggestion made by the complainant to be feasible as it would

not help the Board in achieving its goal of reducing the daily administration and

overseeing of the cleaning. As a result the Board gave the complainant notice

that her position would be made redundant as of 31 December 2020.

APPLICABLE LAW.

16. Section 6(1) of the Unfair Dismissal’s Act 1977 states that:

“Subject to the provisions of this section, the dismissal of an employee shall

be deemed, for the purposes of this Act, to be an unfair dismissal unless, having

regard to all the circumstances, there were substantial grounds justifying the

dismissal.”

17. Section 6(4) of the Act goes on to state that:

“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.”

18. For the purposes of the Unfair Dismissal’s Act,

““redundancy” means any of the matters referred to in paragraphs (a) to (e) of

section 7 (2) of the Redundancy Payments Act, 1967, as amended by the

Redundancy Payments Act, 1971.”

19. Section 7(2) of the Redundancy Payments Act, 1967 states;

“(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,”

RESPONDENT’S POSITION.

20. The Respondent Board of Management made a decision to reorganise/restructure

the manner in which the cleaning operation in the school would be carried out. It

made a decision to outsource the cleaning operation to a Contract Cleaning

Company that would be responsible for the administration and supervision of the

cleaning in the school. Accordingly, it decided that it would no longer employ any

cleaner directly and that the cleaning in the school would henceforth be done

pursuant to a contract for services.

21. The Board of Management invited tenders for the provision of the cleaning

services in the school and has employed a Contract Cleaning Company to provide

all the cleaning services, five days per week.

22. It is respectfully submitted that the Board of Management lawfully decided to

reorganise the manner in which the cleaning services were provided in the school.

This resulted in the Board deciding to outsource the cleaning services and to

proceed with no employees as far as cleaning services are concerned. It is

submitted that this is a valid redundancy within the meaning of the Redundancy

Payments Act 1967 as amended.

23. The Board of Management consulted with the Complainant who did not offer any

suitable alternative to the Board to help it achieve its objectives. Accordingly the

Board of Management was left with no option but to make the Complainant’s

position redundant.

24. It was is submitted on behalf of the Respondent:

(i) The decision of the Board of Management to outsource the cleaning

services in the school was a lawful decision made in the interests of the

school.

(ii) The decision to outsource the cleaning services resulted in a situation

where the Board of Management will continue to carry on business with no

employees as far as the cleaning services are concerned thereby resulting

in a valid redundancy situation.

(iii) The dismissal of the Complainant resulting from a valid redundancy is in

the circumstances not an unfair dismissal within the meaning of the Unfair

Dismissal is Act 1977.

The respondent asserted that considerable changes had arisen as a result of COVID and it was becoming difficult for the school to manage 2 separate sets of cleaners. There was now a requirement to provide a 5-day cleaning service and the school was obliged to meet that requirement. The school acknowledged that the claimant’s husband had helped her out and had sought to regularise his position by giving him employee status – but this had been declined. A number of extensions had been added to the school over the years including a prefab in 2018 for an ASD class – the workforce had doubled a second ASD class was established. Towards the end of July , the school met with the claimant and it was advanced that the claimant had indicated that she would go along with the school’s proposal of 5 days per week. The Board made clear that cleaning methods would have to change but the preference always was to retain the claimant in employment. The respondent categorically rejected that they wanted to get rid of the claimant in circumstances where they were offering her more work and longer hours.

It was submitted that the Board did give consideration to the claimant’s suggestions but could not agree with them – it was submitted that continuing with different work rotas was not in the school’s interest and the claimant’s assertions regarding the significant increase in workloads was rejected by the Board of Management. The respondent’s witness Ms.K was adamant that the preference was to keep the claimant in employment – she asserted that they valued her imputs about the geography of the school but her solution would not ease the administrative burden of separate rotas. It was maintained that the Board would have considered an increase in hours and/or pay. On balance, the respondent decided to go ahead and outsource the cleaning function when the matter could not be settled with the claimant .They sought tenders and advertised for expressions of interest – currently they engaged the contractor for 21.5 hours – 3X4.5 hour days and 2X 4 hour days. They reviewed the claimant’s workload and compared their figures with other schools of equivalent size- they decided they wanted only one cleaner and proceeded to seek contractors for the service. It was submitted that other schools faced similar problems and many cleaners left their employment as a result of Covid 19.

It was submitted that the school was facing a position of having 2 separate cleaning arrangements ; they consulted the claimant – she was offered a 5 day a week working arrangement but she would only work for 3 days per week. It was submitted that the school had no option but to proceed with a contracting out arrangement – the claimant ‘s employment was terminated by reason of a valid  redundancy .

In her complaint form, the claimant submitted as follows :

 On the 31st December 2020 I was made redundant from my position of cleaner at Scoil Naisiunta Chill Ruadhain, a job I have had since 2006. During those years I have accommodated various changes to my working hours and the frequency of my visits to the school as over the years the school has doubled the number of classrooms. This also included agreeing to a significant decrease in my working hours following the economic recession. At the end of 2020 I was working three evenings a week for six and a half hours each. In Aug 2020 I was offered extra hours to do Covid 19 cleaning but at the time I was unable to accept those hours and the board of management agreed to employ a contract cleaner for Covid. When I queried the reason for my redundancy the explanation given was; “the amount of time the daily administration and overseeing of cleaning at the school is currently taking”.

These issues have not been a problem for the management for the previous 14 years and I do not

understand how a school boosted with a part-time secretary and a walking principal would suddenly struggle to cope. If there is an increase in the amount of overseeing and administration needed this year due to Covid 19 I have to point out that this is only a temporary situation and will revert back to previous levels shortly. I do not see why I should lose my job because of management shortcomings. I have worked to a cleaning schedule agreed with the chairperson of the board of management before the school opens each year and thus need or have received no daily administration. I have my own keys and I have accommodated changes to the schedule (e.g. elections, parent/teacher meetings, etc) and altered my visits to suit the board of management’s needs. All it needed was a text message. At the end of each month, I presented a list of dates and hours worked to the secretary thus minimising any administration work involved with paying me. Since I started work in 2006, I have provided my own cleaning products and PPE with the board of management reimbursing me at the end of the month.

Shopping for those products took place at my own time and expense. In the letter I received from the board of management dated 10th December 2020 explaining the reason for my redundancy, reference was made to the school extension and the increase in administration and overseeing of cleaning this would cause. The new extension, when complete, will replace the old “prefabs” with new classrooms and should significantly ease the workload of cleaning them, especially the Special Classes for children with Autism units. This should be less of a burden for administration and overseeing than last year. No alternatives to redundancy were suggested by the board and after 14 years of service I find it very disappointing that I was forced to leave with just statutory redundancy. I feel the reasons given do not constitute a valid redundancy as the work I was doing is still there and will now be done by someone else. The new cleaner will still need to be overseen and administered by the school management and this shows that I was made redundant rather than the position.”

The claimant asserted that the overseeing or administration of her work had never been an issue in the past. Initially her sister would help her out and her husband helped with the cleaning in later years. The claimant stated that she was unable to take on the additional work associated with Covid prevention measures and she asserted that the fresh proposals from the Board of Management trebled her workload. The claimant said there was very little administration required in supervising her work – she asserted that she should have been allowed to remain on her existing terms and conditions of employment – she contended that the new arrangements proposed by the school were designed to get rid of her. She had a simple contract and while she was happy to work to the contract the Board of Management had a big issue with it. The claimant contended that the issue only became problematic and focused on the administrative matters when she rejected the schools proposals. She complained that no alternatives were offered to her and she was never asked if she would like to work with the contractor.

Under cross examination the claimant confirmed that she had been offered additional hours. She did not recall if she had told the respondent that she would not do Covid cleaning. The claimant was not sure of the practises of the second cleaner who had worked with her following Covid – she stated  however that she did clean door handles and light switches and did sign off on those duties. It was put to the claimant when she asserted that she was offered no alternative if she accepted that the Board met to discuss the issue with her and explained their thinking and invited her to come back with alternatives. It was advanced that the claimant had responded to the effect that someone else would have to do the additional hours. The claimant asserted that she was offered 30 hours – the cleaning contractor was now providing a 21 hour a week service – the claimant stated that if she had been offered the 21 hours per week, she may well have considered it.

I have reviewed the evidence presented and noted the respective submissions of the parties. While the claimant was adamant that the school wanted to get rid of her, this was vehemently denied by the respondent and the facts are that the claimant was offered and declined additional hours along with the regularisation of her husband as an employee. The chronology of correspondence between the parties indicates that there were missed opportunities that could have realised a mutually satisfactory settlement for both parties. Notwithstanding this I am obliged to take account of the legal arguments made by the respondent.

Section 6(4) of the Unfair Dismissals Act 1977 Act states that:

“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.”

18. For the purposes of the Unfair Dismissal’s Act,

““redundancy” means any of the matters referred to in paragraphs (a) to (e) of

section 7 (2) of the Redundancy Payments Act, 1967, as amended by the

Redundancy Payments Act, 1971.”

19. Section 7(2) of the Redundancy Payments Act, 1967 states;

“(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,”

In the instant case, I have concluded that the termination of the claimants employment was attributable to  “ 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 …….” As set out in paragraph (c) above. Accordingly, I find the claimant was dismissed by reason of redundancy.

Section 6(4) of the Unfair Dismissals Act 1977   states that:

“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:…….

(c) the redundancy of the employee.

In these circumstances, I find this was a valid redundancy and consequently must be deemed not to be an unfair dismissal.

I find the claimant was dismissed by reason of redundancy and consequently does not constitute an unfair dismissal. Accordingly, I do not uphold the complaint.

Valid Redundancy