Complainant

Respondent

Parties

Colette  Walsh

T.U.D.

Complainant

Respondent

Anonymised Parties

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Representatives

  N/A

Niamh Ní Cheallaigh, IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00048206-001

19/01/2022

The Complainant commenced her employment as a part-time lecturer with the Respondent on 1 October 2004. She stated that she was dismissed on the grounds of redundancy on 6 September 2021 and did not receive the redundancy payment to which she was entitled.

The Complainant commenced her employment as a part-time hourly paid assistant lecturer with the Respondent on 1 October 2004. She lectured on the Respondent’s Certificate in Personnel Practice and typically gave lectures on two evenings per week over the course of the academic year. On 6 September 2021, without any forewarning whatsoever, she stated that she received a phone call from the Head of Department, Christine Nangle, informing her that the course which had been due to start that evening had been cancelled due to a lack of numbers. The Complainant asserted that the Respondent was aware before this that the numbers were too low and should have contacted her well in advance of the day it was due to begin, especially as all her preparatory work had been done at the time of cancellation.

Having had no contact from the Respondent after 6 September 2021, the Complainant contacted the Head of Department and was advised by reply the following day that she had contacted the Human Resources Department to see if there were other hours that could have been offered to her. The Complainant stated that she was subsequently contacted by the Human Resources Manager who offered her lecturing hours on other courses but she asserted that these were not suitable as they did not match her skillset and were unlike the courses she had lectured in on the CIPD diploma.

The Complainant commenced employment with the Respondent on 1 October 2004 as an hourly paid Assistant Lecturer. Arising from changes in process by the CIPD, management became aware that there might be difficulty running the part time CIPD Diploma course in August 2021. It was the Respondent’s understanding that the Programme Course Co-Ordinator was keeping relevant staff advised of this issue. On 31 August 2021, the decision was taken not to proceed with offering the programme. On 6 September 2021 due to a lack of registrations for the CIPD Diploma course, the Complainant was advised by Christine Nangle, Head of Department that the course would not be proceeding. The Complainant wrote to Ms Nangle on 22 September 2021 making a claim for a redundancy payment.

On 23 September 2021 the Head of Department Ms Christine Nangle wrote to the Complainant explaining that there were alternative hours available in the second semester 2021/22 in the module of “Professional Communications and Work Placement Preparation”.

On 6 October 2021, Ms Nangle emailed the Complainant to offer hours on a different programme in the school of engineering in modules which would be appropriate to her skill set for the first semester. In addition, the Head of School of Engineering also followed up to find out if the Complainant wished to take up those hours.

On 12 October 2021, the Complainant forwarded a claim for redundancy to Mr Michael Quinlan, HR Manager. On the same day, Ms Nangle emailed the Complainant to ask if she had considered the modules which had been sent on to her. Mr Quinlan also contacted the Complainant on 12 and 14 October 2021 to explain that although the CIPD course was not running, she had been offered teaching hours in other HR type modules in other departments and asked her to contact him in this matter. Mr Quinlan also emailed the Complainant again seeking to speak with her to discuss the available teaching hours on 21 October.

On 15 November 2021, the Complainant submitted an RP9 form to Mr Quinlan alleging that she had been placed on a period of lay-off since 6 September 2021 and was therefore claiming a redundancy payment. Mr Quinlan responded the same day to advise the Complainant that she had not been placed on lay-off, that teaching hours had been offered to her and that therefore a redundancy situation had not arisen.

On 7 December 2021, Mr Quinlan emailed the Complainant to again offer teaching hours to her and followed up with another email on 8 December to ensure that she was receiving the correspondence as she had not responded to previous email correspondence. The Complainant responded on 11 January 2022 advising that she deemed she had been laid off. Mr Quinlan responded on 13 January again clarifying to the Complainant that there was a sudden collapse in the requirement for the CIPD programme, but once Ms Nangle became aware that of the Complainant’s interest in continuing with teaching hours, alternative teaching hours were proposed to her. Although they were not on the CIPD programme – and were on accounting and management programmes, the modules were HR type modules and therefore within her skills area.

Mr Quinlan also explained that the Respondent anticipated that the modules would continue into subsequent years and that they were just waiting for her to advise of her availability. Mr Quinlan also clarified that the Respondent did not believe that the Complainant was laid off or entitled to a redundancy payment as she had been offered suitable alternative employment, albeit a few days after the initial discussion. There was no engagement from the Complainant to any of the above correspondence from Mr. Quinlan.

The Respondent also stated that the Complainant remains in their employment and that they remain committed to offering relevant hours if she wishes to fulfil these.

Section 7 of the Redundancy Payments Acts 1967 to 2014 states that:

 “(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”

Section 15 of the Redundancy Payments Acts 1967 to 2014 provides as follows:

(1) An employee shall not be entitled to a redundancy payment if —

(a) his employer has offered to renew that employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ from the corresponding provisions of the contract in force immediately before the termination of his contract,

(c) the renewal or re-engagement would take effect on or before the date of the termination of his contract, and

(d) he has unreasonably refused the offer.

(2) An employee shall not be entitled to a redundancy payment if –

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.

Analysis

I find in the first instance that the Complainant was treated appallingly by her line management given that she was not informed that the CIPD course had been cancelled until the day she was due to begin lectures despite having taught for the Respondent since 2004. I also find it ironic that an educational institution providing training and courses in human resources management was so deficient in the treatment of its own employees. Specifically, I noted that the Complainant was not contacted by Christine Nangle, the relevant Head of Department, to inform her that they would not be proceeding with the diploma course until the day it was due to begin, namely 6 September 2021, despite the Respondent having been aware since 31 August 2021 of its cancellation and having  known well before this that there were difficulties with the numbers. In addition, it was notable that the Respondent had no further communication with the Complainant until 23 September 2021 regarding available alternative work and that such contact was only instigated following an email from the Complainant on 22 September 2021.

While I am of the view, in the absence of any direct evidence from the Head of Department, that the Complainant would not have been contacted at all by the Respondent had she not sent the inquiry on 22 September regarding the possibility of alternative work, the Respondent did offer her alternative lecturing courses on two other courses that they had available, albeit very belatedly.

Having reviewed the content of these modules, I am satisfied, despite the Complainant’s assertions to the contrary, that while they were certainly not identical to the modules she had previously lectured on, they were broadly suitable for her skill set and many, if not all, of the classes were very similar to those she had taught on the CIPD Diploma course. Accordingly, I find that they constituted “an offer of suitable employment” in line with section 15 (2) ( c ) of the Act above.

I also noted that the Respondent’s Human Resources Manager, Mr Michael Quinlan who, having only belatedly became aware of the Complainant’s situation, attempted to contact her on numerous occasions to discuss the lecturing possibilities on the two new courses that were offered to her. While I recognise that some of this correspondence was sent to an email address which the Complainant understandably no longer accessed, Mr Quinlan then communicated with her via an alternative email address, also sent a letter via the post to her home address and additionally attempted to contact her on the telephone in what I believe was a genuine attempt to ensure her continued employment.

While the Complainant for understandable personal reasons had more pressing matters to deal with around this time, I am satisfied that the efforts made by Mr Quinlan to consult with her were adequate and reasonable.

Moreover, had the Complainant engaged with him, such a consultation could have allowed her to discuss in greater detail the modules on the two courses which had been offered to her and explore whether it would have been feasible for her to lecture on one, both or even parts of these proposed modules. Specifically, while the Complainant may not have had the skills or the knowledge to lecture on all the modules, such as accounting, she could certainly, given her previous experience, have delivered most of them and Mr Quinlan may have been able to find cover for the minor parts of the modules that she could not do.  In the absence of any engagement from the Complainant however and, based on what she had taught on the CIPD course in the past, it was reasonable for Mr Quinlan to form the view that a significant majority of the modules she was requested to give lectures on were very similar, even if certain elements were not, and that it was a suitable offer of alternative employment.

I find therefore that, notwithstanding the inexcusable delay in informing her that the course was cancelled, the Respondent acted reasonably both by offering a suitable role and in the attempts to engage with the Complainant but that she acted unreasonably by failing to engage in consultation with Mr Quinlan around his offer of alternative employment.

I do not allow the Complainant’s appeal for the reasons set out above.