ADJ-00034816

Complainant

Respondent

Parties

Jeanne  Mc Carthy

Student Campus Ltd.

Representatives

Siobhan Lydon C.W.Ashe & Co. Solicitors

Martin Moloney M.P. Moloney Solicitors

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-00045926-001

02/09/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00045926-002

02/09/2021

The Complainant commenced her employment with the Respondent on 21st January 2019 as an English language teacher. The date of termination was in dispute.

The Complainant referred her complaints to the Director General of the WRC on 2nd September 2021.

A preliminary matter of the correct name of the Respondent was raised by the Respondent. The Respondent informed the hearing that the correct name is Student Campus Ltd., and it does not contain ‘Icot Cork & Dublin’, as included on the Complainant’s complaint form. There was no objection to amending the name of the Respondent accordingly.

The Respondent submits as follows.

The application before the WRC is for unfair dismissal only. The Respondent does not propose to deal with matters of pay, holiday, sick leave or maternity leave entitlements raised in the complaint.

The Complainant commenced employment with the Respondent on the 21st January 2019 as an English Teacher. The Respondent operates an English Language School.

On 12th July 2019 the Complainant signed a contract for a fixed term of one year that backdated to the date of commencement of her employment to the 21st January 2019. The Complainant was typically assigned classes of 15 hours per week.

The Complainant commenced a period of sick leave in August 2019 and remained on sick leave until the commencement of her maternity leave in or about 13th October 2019. The Complainant was due to complete her maternity leave on the 13th July 2020.

In March 2020, the Respondent closed in accordance with the Government mandated lockdown in response to the Covid-19 pandemic. Face-to-face education did not resume until November 2020 and then on a limited basis. Face-to-face education was then closed following the surge in Covid-19 cases over the Christmas 2020 period. During this period of 2020 to late 2021 the sales of courses reduced significantly, and the college faced significant financial hardship in the midst of ongoing disruption to normal business. As part of the financial survival strategy, contracts were renewed with teachers given the option to conduct their classes online. New temporary contracts were introduced in April 2020. The Complainant was on maternity leave at this point. The Complainant was due to return to work on the 13th July 2021. By this time the Respondent had organised the delivery of its courses online. The Respondent actively engaged with the Complainant for a return to work and teaching on identical terms of employment as enjoyed by her prior to her departure on maternity leave, apart from the delivery of online teaching via the platform Zoom by necessity.

At 8.45pm on the eve of her scheduled return to work the Complainant submitted a sick leave certificate precluding her from a return to work. This was the only sick leave certificate presented by the Complainant. She did not return to work or propose a return date at this stage.

The Respondent organised a cover teacher at short notice and engaged with the Complainant. The Complainant sought to change her contract of employment to a full-time contract which was not available.

On 29th July 2020 the Respondent emailed the Complainant informing of the details of the government subsidy scheme it was availing of. The Complainant was presented with a temporary contract which she did not sign. The Complainant was given the option of temporary lay-off and securing the PUP social welfare payment in place of executing the new contract.

The Complainant elected by her email of the 31st July 2020 not to execute the contract and to avail of the Government social welfare option. She then sought the payment of her untaken holiday leave entitlement. This was paid in August 2020. There was no further communication from the Complainant. The Respondent submits that it had regarded her email of 31st July 2020 as repudiation of its offer of continuing employment and that the Complainant had decided to resign from her position.

Between the 3rd and 16th March 2021 the Respondent had an opening for an English language teacher and again began a process of engagement with the Complainant with no reply. The position of the Respondent is that the Complainant was unable to return to work when offered a position. The Complainant availed of the Government PUP scheme in circumstances where she surrendered her employment. The Respondent re-engaged with the Complainant in March 2022. The Complainant did not respond until the Respondent deemed her resignation confirmed by 16th March 2021.

At the adjudication hearing, it was contended that emails of the Respondent dated 9th July 2019 represented an attempt to return the Complainant to teaching. The Respondent noted that it was complicated because the Complainant was on maternity leave and because of the lockdown. As a result, the landscape changed, and the Respondent needed to adjust quickly and move to online courses in March/April 2020. The Complainant was still on maternity leave and no contact was made with her until July 2020. The proposed return to work was 13th July 2020. The Complainant submitted a medical certificate and the next engagement took place on 19th July 2020 by email.

The Respondent noted that all communication was by way of the same work email address.

Evidence of Mr Abdul Kalam Azad, Operations Manager

Mr Azad, in his sworn evidence, said that the school closed in March 2020 and, after the lockdown it commenced online classes. Mr Azad said that all employees got new contracts in 2019. In March 2020, those contracts that were due to be renewed, including the Complainant’s, were terminated as the college was in lockdown. When prompted, Mr Azad confirmed that only one teacher’s contract was terminated and said that “she had already left”. He said that the Complainant was on maternity leave and the Respondent did not want to bother her. The Respondent sent a new contract to the Complainant on 29th July 2020 but the Complainant did not sign it. Mr Azad said that the Director of Studies (DOS) tried to contact the Complainant in March 2021 but got no response. He then said that the Complainant’s contract expired in March 2020 and in July the Respondent tried to get her a new contract.

The Complainant submits as follows.

The Complainant commenced her employment with the Respondent in January 2019. Soon after, the Complainant found out she was pregnant and told the then Director of Studies (DOS) at about 8 weeks pregnant (February 2019).

In March 2019, all staff were issued with new contracts. Some aspects of the new contracts required an explanation and staff asked the then DOS, to get clarification from management. The Complainant submits that the DOS’s employment was terminated at that stage.  A new Director of Studies, Ms A, joined the school on 4th June 2019.

On 21st June 2019, the employees were given new contracts with amendments the Respondent wanted to make.

The Complainant was on sick leave after 22nd August 2019 and then commenced her maternity leave. The Complainant submits that the Respondent refused to pay her for the day she had her first hospital appointment and for her last maternity appointment until the Complainant drew the attention to the Citizens Information advise website and Maternity Act.

On 10th January 2020 the Complainant met with the then DOS to discuss the Complainant’s return to work in July, and whether the Complainant would like full-time hours. Previously the Complainant worked 15 hours a week. The Complainant was the longest serving member of staff and most senior, so this was not seen as an issue as the Respondent operated a next in line policy when allocating teachers to the afternoon classes. At this meeting the Complainant was also informed that the Respondent was not willing to accrue holidays for her during her time off on illness and maternity leave as she wasn't seen as ‘working’. Once again, the Complainant was required to find the appropriate legislation and send it to the Respondent. The situation was eventually resolved.

The DOS left the Respondent shortly after this in February 2020 and was replaced by another person at the end of March 2020.

On 11th March 2020, the Complainant emailed the senior teacher outlining the conversation she had with the former DOS about coming back full-time when her maternity leave was complete. This was a week prior to the Coronavirus crisis hitting the country but the Complainant wanted to be sure of where she stood and that everyone was on the same page.

On 27th and 30th March the new DOS sent emails to staff requesting them to attend a remote meeting a couple of hours later. An email of 27th March 2020 was sent at 14.47 for a 4.30pm meeting, the email of 20th March 2020 was sent at 10.51 for a 2pm meeting.

On 2nd April 2020 staff received an email requesting them to teach '45 min lesson a day on a voluntary basis’. The email said that 'this will in no way affect your right to claim financial support for this period' and to 'please consider this as a way to keep our foot in the door'.

The following day, 3rd April 2020 employees were told in an email that it was acceptable to say no to the proposal but to 'leave the past where it belongs - to yesterday'. The mood of the emails became somewhat abrupt after this. An email of 6th April 2020 stated 'in light of your response I can only hope that you will consider your attitude during the closure and take a mature decision to work with me to resolve these issues, I have'.

On 7th May 2020, the Complainant sent an email to the Operations Manager, Mr Abdul Kalem Azad and the Director of Studies looking to cancel her extended maternity leave and return to work ASAP. This email was never acknowledged and so the Complainant followed up again on 14th May 2020 requesting an update. After some back-and-forth emails it was made clear to the Complainant that the Respondent considered her coming back as a 'fresh start' and not a continuation of her employment.

On 18th May 2020, the DOS wrote to the Complainant asking why she hasn’t called her to discuss that matter and also that the Complainant failed to attend the CPD meeting. The Complainant had responded to the DOS upon seeing the schedule that she may not be able to attend due to childcare issues. At the time the Complainant was still on maternity leave until the Respondent made a decision about her request to cancel it. The Complainant also explained that she wanted everything in writing, and she didn't feel comfortable phoning her.

On 21st May 2020, the DOS told the Complainant that the Respondent was checking with their legal advisors about her request to cancel her leave. The Complainant was due to return on 20th July 2020 but, in error the Complainant’s letter stated 13th August 2020 and this was never questioned until now.

On 10th June 2020, the Complainant received a follow up email informing her that she would be returning on a part-time basis as she didn't want to attend meetings and training that the DOS had scheduled over the past few weeks, and that the Complainant must attend training on how to teach through zoom the following week. This was a month before the Complainant was due to return to work.

The Complainant submits that she met with the DOS the following week at which she was told to ensure she had adequate childcare in place to work full-time.

On 29th June 2020, the DOS contacted the Complainant to offer her part-time classes beginning on 13th August 2020. On 30th June 2020 the DOS corrected the start date to 13th July 2020.

The Complainant submits that at this stage she informed the Respondent that she was seeking legal advice.

On 8th July 2020, the Complainant confirmed that she would be starting work on 13th July. On 10th July 2020, the Complainant requested that the relevant paperwork on Covid-19 that was required to be completed before her return was sent to her and to find out when her back to work meeting has been set for.

On 12th July 2020, the Complainant sent a doctor’s cert for a month, citing stress.

On 23rd July 2020, 10 days into sick leave the Complainant was informed by the DOS that the Respondent was introducing a new pay scheme. She was informed that ‘we have begun a government subsidy scheme by RTE,” she has 'to be allowed decide for yourself if you are willing to accept this', and 'Any teacher who feels they are unable to sign this and the consequence will not result in job loss'.  The temporary contract also stated 'no changes made to your long term contract, except following prior consultation with you' ('We understand that you have to be allowed to decide for yourself if you are willing to accept this and I enclose a temporary contract stating the terms for you to think about and if you agree please sign and return it to me. We will understand any teacher who feels they are unable to sign this and the consequences will not result in job loss. We only ask that you understand we are doing this to protect jobs. If you choose not to sign we will allow you to be temporarily laid off to claim Covid 19 welfare payments and allow you the option of returning to us as soon as we are in a position to resume paying as before. Then we will offer you a class as soon as one is available. In the meantime your class will have to be taught by another teacher.')

After deliberation, on 31st July 2020, the Complainant emailed her response that she would not be choosing the new contract option. The Complainant asked for any holiday pay owed to her to be paid. This is the last correspondence the Complainant had with the Respondent until March 2021.

The Complainant submits that the Respondent let staff go in June 2020 via email blaming the pandemic but wouldn't let her know where she stood. She was told at a meeting in July 2020 that the DOS would find full time hours for the Complainant, then a few days later saying that she didn't have them for the Complainant, that those that had them prior to the pandemic were to get them back first despite the Complainant being the longest serving teacher.

The Complainant submits that she also didn’t get paid her holidays correctly, missing about 6 hrs in total.

The Complainant also submits that a Senior Teacher was appointed, a position that was not advertised and the Complainant was not asked if she would like to be considered for it. This person has since got another promotion to Assistant Director of Studies, and again the post was not advertised nor was the Complainant advised or considered.

The Complainant submits that any contact was only through her work email, and she was never contacted by any other means (phone, letter, personal email) letting her know her job was on the line. Between 3rd and 16th March 2021 the Complainant received 3 emails to her work email address from the DOS about her employment. When the Complainant didn't reply as she hadn't seen them, her contract was terminated.

The Complainant sent an email on 26th March 2021 stating that she wasn't accepting the termination of her contract, especially the way it was handled, and she wanted to be reinstated immediately.

The Complainant submits that on 19th April 2021 the Respondent replied saying it stood by its decision to terminate her employment.

Evidence of Ms McCarthy, the Complainant

The Complainant said, in her sworn evidence, that in January 2020 she talked to the then DOS about her return. In March 2020, the new DOS took over. The Complainant noted that while on maternity leave and sick leave she always engaged with the Respondent via her work email about training and attended meetings with the DOS. Her husband took time off to mind the children so she could attend meetings. She was never led to believe that her contract was not to be renewed. She also received the email regarding the new scheme and the new contract while she was on sick leave on 29th July 2020. The Complainant remained in employment and was offered a lay-off at the time. 

The Complainant said that she contacted the DOS in June 2020 as people were let go and she led her to believe that her job was safe. In her email of 29th July 2020, the DOS confirmed that accepting the PUP would not result in a job loss. She then contradicted herself in an email to Mr Azad, when she said that “we would only offer her work if we have hours for her. In effect she is losing her rights…”

The Complainant said that the DOS emailed her on 3rd March 2021 giving her 48 hours to respond. The DOS sent very important correspondence on 3rd, 8th and 16th March 2021 to her work address while she was absent. Only on 19th April 2021 an email was sent to the Complainant’s personal address. The Complainant said that the Respondent had her address and phone number and could have contacted her to say that something important was sent to her work email address.

In cross-examination, the Complainant confirmed that she was on leave but checked her email periodically, but she noted that she would not have received a notification on her phone that an email had arrived. She said that she would have checked her email every 2 weeks more less.

The Law

Section 6 of the Unfair Dismissal Act stipulates as follows:-

6. Unfair dismissal

(1) 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.

(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.

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(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.

Section 10(2) of the Maternity Protection Act, 1994 stipulates as follows;-

(2) Where an employee is employed under a contract for a fixed term and that term expires before the day which, apart from this subsection, would be the last day of her maternity leave, then–

(a) notwithstanding any other provision in this Part, the last day of her maternity leave shall be the day on which the term expires; and

(b) nothing in this Part shall affect the termination of the employee's contract of employment on that day.

Section 23 of the Maternity Protection Act, 1994 states that

23. Voidance of certain purported terminations of employment, etc.

Each of the following shall be void:

(a) any purported termination of an employee's employment while the employee is absent from work on protective leave;

(b) any purported termination of an employee's employment during a period of natal care absence;

(bb) any purported termination of an employee's employment during a period of absence from work to attend ante-natal classes in accordance with section 15A;

(bbb) any purported termination of an employee's employment during a period of absence from work for breastfeeding in accordance with section 15B;

(c) any notice of termination of an employee's employment given while the employee is absent from work on protective leave and expiring subsequent to such a period of absence;

(d) any notice of termination of an employee's employment given during a period of natal care absence and expiring subsequent to such a period;

[(dd) any notice of termination of an employee's employment given during a period of absence from work to attend ante-natal classes in accordance with section 15A and expiring subsequent to such a period;

(ddd) any notice of termination of an employee's employment given during a period of absence from work for breastfeeding in accordance with section 15B and expiring subsequent to such a period;

[(e) any purported suspension from an employee's employment imposed while the employee is absent from work on protective leave, during a period of natal care absence or during a period of absence from work to attend ante-natal classes in accordance with section 15A or for breast-feeding in accordance with section 15B. 

In reaching my decision I have taken into consideration all written and verbal submissions of the parties.

The dismissal of the Complainant, as a fact, is not in dispute and therefore, it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Date of dismissal

The parties were in dispute regarding the date of dismissal. The Complainant asserted that she was dismissed on 16th March 2021 by email. The Respondent argued that the termination date was 20th January 2020, the date on which the Complainant’s fixed-term contract expired.

I find the Respondent’s assertions with respect to the termination date totally implausible.  The Respondent submitted that on 12th July 2019 the Complainant was issued with a fixed-term 12 months contract for the period from 21st January 2019 to 20th January 2020. As a result, the Complainant’s contract expired on 20th January 2020.

In that regard, I note that the Maternity Protection Act 1994 applies to female employees working under a fixed-term contract. If the term of the contract expires before the last day of maternity leave, then the last day of maternity leave shall be the last day of the employee’s fixed-term contract. In the within case, the Complainant commenced her maternity leave on 28th September 2019 and was due to return to work from her maternity leave on 13th July 2020. I note that the Respondent was in regular contact with the Complainant until April 2021. I note that in the email of 10th June 2020, the Respondent stated, “I know that you were made aware of us sadly having to let some teachers go.”  The Respondent then went through the changes required due to Covid-19 restrictions. The Respondent went on to say; - “This was the reason for letting teachers go. This brings me to your situation, I am afraid it may be difficult for some time to offer you full-time teaching…”, “It is therefore very likely that when you return it will be as before on a part-time basis. I thought you should be aware of this.” In the same email, the Complainant was requested to attend training on 15th, 16th or 17th of June 2020 while on maternity leave. Thereafter, correspondence ensued as to the Complainant’s return to work on 13th July 2020, including detailed communication regarding login details, students attending the Complainant’s class, materials to be used. There was no suggestion that the Complainant’s contract would terminate on the day of her return from maternity leave. To the contrary, detailed conversations were had via email exchange regarding the Complainant’s return to teaching.

The Respondent then argued that the Complainant’s email of 31st July 2020 whereby she elected option 2 of the two offered to her and decided to avail of the lay-off and the PUP was “repudiation of their offer of continuing employment” and that the Complainant “had decided to resign from her position“ and that “she availed of the Government PUP scheme in circumstances where she surrendered her employment”.

I further note that in the email to the Complaint of 19th April 2021 the Respondent said: “In August last year we communicated that the position was terminated and we put forward the temporary contract. You did not agree with our proposals to resume your hours on a temporary contract. Given the uncertainty at the time we agreed to facilitate the Government payment to you.”

I have carefully examined the correspondence between the parties. There has been no email from “August last year” i.e. August 2020 proffered by either side that would communicate that the Complainant’s position was terminated. I note that the email of 29th July 2020 outlines two proposals put to the Complainant:

1. The Respondent’s registration with a “Government Subsidy Scheme supported by RTE” – the Respondent clarified that “teachers will be paid a fixed amount monthly… As a part-time teacher your take home pay will therefore be €850 per month. Once the school is in a position to resume teachers themselves, we will go back to your contract as before. “

2. The email sent went on to say: “We will understand any teacher who feels they are unable to sign this and the consequences will not result in job loss. We only ask that you understand we are doing this to protect jobs. If you choose not to sign we will allow you to be temporarily laid off to claim Covid 19 welfare payments and allow you the option of returning to us as soon as we are in a position to resume paying you as before. Then we will offer you a class as soon as one is available. In the meantime your class will have to be taught by another teacher.”

The Complainant availed of the second option and was in receipt of the Pandemic Unemployment Payment until March 2021 when the Respondent emailed her on 16th March 2021 informing that her employment was terminated.

I further note that the letter dated 7th August 2020 issued by the Respondent states:

“Re: Covid-19 School Closure”

Name of the teacher: Jeanne McCarthy

Please accept this letter as confirmation that as per the Department of Education instruction our school which had been closed from face-to face classed from 13th March 2020 is still unable to offer work to all its staff due to a large fall in student numbers and has therefore to now lay off this employee, who was due to return to work after a combination of maternity leave until July 13th followed by sick leave from 13th July until 10th August 2020, until such time as the situation improves enough to be able to bring her back to work.

I find that there is nothing even remotely suggesting that the Complainant’s employment was terminated on 20th January 2020, 13th of July 2020, 31st July 2020 or any other date until the Respondent’s email of 16th March 2021.

Having considered the submission of the parties and the evidence that was made available to me, I find that the date of termination of the Complainant’s employment with the Respondent was 16th March 2021.

Substantive issue

The Complainant alleged that she was unfairly dismissed on 16th March 2021. The Respondent refutes the claim.

The combined effect of the above provisions of the Unfair Dismissals Act requires me to consider whether or not the Respondent's decision to dismiss the Complainant was reasonable in the circumstances.

Having considered the parties submissions and the evidence put forward, I find that the Respondent has not discharged the presumption that the dismissal was unfair, and I reach this finding for the following reasons. 

The Respondent’s clarification of what had taken place was exceptionally inconsistent. First, the Respondent argued that the Complainant’s contract expired by virtue of the expiration of her initial fixed-term contract on 20th January 2020. The Respondent then argued that the Complainant’s email of 31st July 2020 whereby she decided to avail of the lay-off and the PUP was “repudiation of their offer of continuing employment” and that the Complainant “had decided to resign from her position “and that “she availed of the Government PUP scheme in circumstances where she surrendered her employment”.

The above assertions are disingenuous and appear to be an attempt to portray the Complainant’s dismissal as a fair one in response to the Complainant’s claim.

I note that subsequently, on 3rd March 2021, the Respondent emailed the Complainant “to follow up on where the matter left in July last year”. The Respondent notes that it has not heard from the Complainant in the interim and states that “We have had to engage someone for cover for your position. We are presuming that you no longer wish to continue in your position at the school and in this vein I am writing to you to confirm that this is the case. If I do not hear from you to the contrary by the close of business on Friday 5th March 2021 I will organise the necessary paperwork to confirm your resignation from the teaching staff.”

The Respondent then emailed the Complainant on 8th March “allowing a little extra time until this Friday 12th to reply.” On 16th March 2021 the Respondent emailed the Complainant to inform her that the employment was terminated.

I find that the dismissal did not take place until 16th March 2021. In that regard, I find that, in light of some seven months of lack of any communication with the Complainant, it was unreasonable of the Respondent to communicate a message of such importance to the Complainant via work email without following up by phone and/or a letter. I find that the attempt to contact the Complainant was wholly disingenuous. Furthermore, I find that giving the Complainant such a limited timeframe to revert, with the knowledge that it is unlikely that she would check her email on a regular basis after such a long absence, would suggest that the Respondent did so with an expectation that the Complainant would miss the deadline.

I find that the Complainant’s employment was unilaterally terminated by the Respondent and that the dismissal was utterly devoid of any fair procedures. Consequently, the decision to dismiss the Complainant amounts to an unfair dismissal.

Redress / financial loss

The Complainant selected the ‘compensation’ option in the complaint form. I find that, in the circumstances it is the most appropriate form of redress in the instant case.

It was confirmed by the parties that in line with S.I. 287/1977, the Complainant’s average monthly pay was €892.14. Therefore, the average weekly pay for this period would be €208.16.

The Complainant secured new employment from 25th April 2022.

Post-hearing, the Complainant furnished evidence of her attempts to mitigate her loss. The Respondent was given the opportunity to review and comment on same.

The Complainant appears to have made one attempt to secure new employment in or around June 2021. She then had an interview scheduled in December 2021 and some three job applications were made in February 2022.

The Complainant’s child was born in July 2021 and the Complainant availed of some 26 weeks of the State maternity benefit until 24th December 2021. I note that the Respondent did not have a contractual maternity leave scheme in place.

In calculating the redress, I took into account the Complaint’s limited efforts to mitigate her loss and I reduced the award accordingly. I note that at the time of dismissal the Complainant was approximately 24 weeks pregnant. I further note the Respondent’s assertion that the Complainant did not seek employment pending the birth of her second child. However, I also accept the difficulties that existed in relation to obtaining new employment during the Covid 19 pandemic and the circumstances during this period when the Complainant was pregnant.

I declare this complaint to be well founded. I direct the Respondent to pay the Complainant €6,000 in compensation.

The Complainant submits that she was not notified in writing of a change to her terms of employment.

The Complainant submits that during a meeting with the then DOS on 10th January 2020 they discussed the possibility of the Complainant’s return after maternity leave on a full-time basis. The Complainant said that during a meeting with the new DOS in July 2020, the DOS said that she would find full-time hours for the Complainant. Then a few days later the DOS said that she didn't have the hours for the Complainant, that those that had them prior to the pandemic were to get them back first despite the Complainant now being the longest serving teacher and those working full time started after September 2019 when she was on maternity leave.

The Respondent submits that the Complainant sought to change her contract of employment to a full-time contract which was not available.

The relevant law

Section 5 of the Terms of Employment (Information) Act 1994 stipulates as follows;-

“5. Notification of changes

(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than–

(a) 1 month after the change takes effect, or

(b) where the change is consequent on the employee being required to work outside the State for a period of more than 1 month, the time of the employee's departure.” 

The Complainant’s contract of employment provided that she would be allocated a minimum of 15 hours per week. There was no dispute between the parties that these were the hours the Complainant would have worked prior to her sick leave and maternity leave.

The Complainant alleged that both Directors of Studies offered her full-time hours on her return from maternity leave. However, this never materialised and she was due to return on a part-time basis.

Having considered the submissions made by both parties, I conclude that there has been no change to the Complainant’s conditions of employment. I note that the Respondent’s intention to move the Complainant to a full-time position never actually materialised. In all the circumstances of this case I find that there was no breach of section 5 of the Act.

I declare this complaint to be not well founded.

Unfair dismissal – terms of employment – no change