Complainant

Respondent

Parties

Valerie O'Reilly

University College Dublin

Representatives

John Curran BL instructed by Ruth O’Neill Patrick Donaghy Co Solicitors

Rachel Barry Arthur Cox

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-00043427-001

06/04/2021

The complainant’s employment began with the respondent university in 1993 or 1995 (the start date is disputed) and ended on her resignation on the 9th October 2020. The complainant asserts that she was constructively unfairly dismissed and the respondent disputes this.

The complainant gave evidence that she resigned her employment because of the circumstances she found herself in her employment with the respondent and because of her loss of trust. She said that she was ‘blue in the face’ in raising her concerns and that she had hit a ‘wall’.  The complainant outlined that she taught French and did module enhancement. She started in 1993 but was never given a contract of employment or a statement of terms. A 2009 quality review process had recommended that her position be amended to ‘module coordinator assistant’. The head of the language centre appointed her to this role. This was recognised in her job title, photograph and bio placed on the respondent website. This was taken down in 2016.

The complainant outlined that she was first provided a draft contract in 2015. This was not acceptable as it did not provide a job description and reduced her hours. There was no provision for sick pay and pension. It was also a fixed-term contract when she already had a CID. She and Dr Nunan took cases to the Labour Relations Commission and the Rights Commissioner recommended that the respondent address their contractual positions. The complainant withdrew from the collective process engaged by the respondent and the union.

The complainant outlined that she was promoted to a coordinator role, but then demoted to ‘tutor’. She developed the staged level of teaching of the language centre, and she did high-level teaching, i.e. to students with a high level of French.

The complainant said that in 2020, the respondent had accepted the principle that she would be made redundant. There was discussion whether her start date was 1993 or 1995. The complainant stated that she was never informed of the redundancy offer with the 1995 date, which she would have accepted.

Professor Mary Gallagher gave evidence on behalf of the complainant. She outlined that the complainant had been very unfairly treated. The complainant’s work and level of responsibility were not recognised. The removal of the complainant’s photograph from the website was never explained. Professor Gallagher outlined that the complainant’s modular input was never adequately recognised by the respondent. In cross-examination, Professor Gallagher said that she was made aware of contractual issues in the language centre prior to her meeting the complainant for the first time.

The respondent submitted that there was no unfair dismissal, constructive or otherwise. The complainant resigned to take up employment with another university. It referred to the complainant’s course of dealing with that university. It submitted that the complainant’s employment commenced in March 1995 and there was insufficient evidence of an earlier start date. The respondent did not accept that there was any change to the complainant’s job title and that the ‘coordinator’ title was not approved by HR.

The respondent outlined that the complainant rejected the two contracts she was offered in 2016. The respondent engaged in a complex collective process in respect of the language centre. It offered the complainant favourable terms with the 0.7 contract and placing her at the top of the pay scale.

The respondent submitted that the complainant’s case was that she resigned for events years before. She could not rely on the ‘last straw’ case law, and she had affirmed her contract of employment. There was no act or omission of the respondent that could be said to trigger the dismissal. The respondent understood that the complainant was encompassed by the collective process engaged with the language centre employees.

The respondent submitted that the complainant had asked for a review, rather than a regularisation. The complainant was to be added to the administrative pay scale so that she was entitled to increments and admission to the pension scheme.

Enda Bennett gave evidence. He was aware of the existing difficulties on the handover to him in 2016. He said that the respondent had not approved changes to the complainant’s status. They consulted with the complainant and her union representative. The complainant was offered a temporary contract as a way to procuring a CID. The wording regarding the post being dependant on student demand was standard.

Mr Bennett said that the only way to recognise the complainant’s service was with the point on the scale. The respondent could not back date contracts but could provide letters of comfort. There were no pay records for 1993 and 1994. The complainant had not accepted the contract and the others now had CIDs. In cross-examination, it was put to Mr Bennett that the respondent was required to keep working time records and records of terms of employment. He could not speak to the any breaches of statute. Mr Bennett acknowledged the letter of the Department stating that the complainant started in 1993 and was a coordinator, but this had not been approved by HR. It was put to Mr Bennett that the discussions over the complainant’s redundancy occurred before her application to the other university.

In evidence, Dr Nunan outlined that she had been a part-time teacher with module enhancement in the language centre. Since then, she was a lecturer and then Assistant Director of the language centre. Dr Nunan stated that the complainant’s long service was recognised in her placement on the pay scale. She said that the contract recognised her module enhancement work.  She accepted that the complainant was clearly unhappy at the April 2020 meeting. She had sympathy for the lack of recognition of the complainant’s 27 years of service. She was surprised by the complainant’s resignation.

In closing, the respondent submitted that the complainant must show that she had no option but to resign. It was submitted that delay was fatal to a claim of constructive dismissal. It was submitted that any ‘final straw’ had to be a significant event and sufficient to warrant a resignation. The respondent relied on the questions posed by the UK Court of Appeal in Kaur v Leeds Teaching Hospital NHS Trust [2018] EWCA Civ 978 in respect of the most recent date of contravention and whether the employee had affirmed the contract of employment by agreeing her hours for the forthcoming year, without caveat.

This is a complaint of unfair dismissal. The complainant asserts that she was constructively dismissed from her employment; the respondent denies the claim.

There are several unique and unusual features in this case, which distinguish it from the many constructive dismissal claims the Workplace Relations Commission hears.

The first unusual feature is that the parties do not agree when the complainant’s employment commenced. Yes, it was over 25 years ago, but one would expect some documentary record in the respondent’s documentation. The complainant initially produced Revenue records and a letter from a senior manager as evidence of a 1993 start date. She latterly produced social welfare records. The respondent’s position was that there were insufficient records of a 1993 start.

The second unusual feature is that it was many years before the complainant was offered a statement of the terms of her employment. If her employment commenced in 1993, she ought to have been provided a statement of terms pursuant to section 9 of the Minimum Notice and Terms of Employment Act 1973. Section 9(1)(a) provides that the employee be notified of the commencement of their employment. If the date of commencement was 1995, the respondent was additionally required to provide of statement of terms per section 3 of the Terms of Employment Act. Section 3(1)(e) refers to date of commencement.

The third unusual feature is that the respondent offered the complainant redundancy terms during discussions in 2020, but this offer was not relayed to the complainant by the relevant trade union official. While the complainant and respondent differed over the start date, it was clear that the complainant would have accepted the redundancy terms offered to her (even with a 1995 start date). The fact of the offer being made but not relayed arose during the hearing of this case. It is a matter of great concern that such an offer could be made but not relayed by an intermediary. This goes against good industrial relations. While I appreciate that there was a parallel collective process, an offer that addressed many of the complainant’s concerns ought to have been relayed to her.

This constellation of unusual features distinguishes this constructive dismissal from the usual course. It is clear that the complainant and her colleagues in the language centre were right to be disaffected by their terms and conditions over many years. A 2009 review process made recommendations, and some were acted upon locally (the creation of coordinator positions). The respondent stated that these were never approved by HR as required. It did not deny that the respondent website listed the complainant as a module coordinator for some years. Dr Nunan attended as a witness for the respondent and is now a senior manager of the language centre. In 2015, Dr Nunan had her own claim before a Right Commissioner hearing, along with the complainant’s claim, to address their longstanding contractual issues. The Rights Commissioner recommended that the respondent address these issues. This highlights the longstanding and serious nature of these issues both for Dr Nunan and the complainant. The complainant’s account was bolstered by strong evidence given by Professor Gallagher. The respondent’s direct evidence related to efforts to address these longstanding matters, including via a collective process.

I do not find that Omilaju v Waltham Forest London Borough Council [2004] EWCA Civ 1493 is persuasive; this related to a serial litigant who resigned for being docked a day’s pay while attending a hearing of his latest defeat without taking leave. This is far removed from the circumstances of this case. In respect of Kaur v Leeds Teaching Hospital, I answer the fourth question in the affirmative, that this was a cumulative course of conduct that amounted to a repudiatory breach of the contract of employment in respect of trust and confidence. The complainant has met the test set out by the Supreme Court in Berber v Dunnes Stores (12th February 2009). 

I, therefore, find that the complainant was unfairly dismissed. In respect of redress, I note that the definition of ‘financial loss’ in section 7 states: ‘… any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation.’  The complainant has no prospective loss as she commenced new employment the Monday after her employment ended with the respondent. The words ‘the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973’ are an important part of the effectiveness of the Unfair Dismissals Act in combatting unfair dismissals especially for longstanding employees. Awarding for such accrued rights is required by section 7 and not to apply this statutory provision makes it cheap to unfairly dismiss longstanding employees.

I am satisfied that the complainant’s employment with the respondent commenced on the 1st September 1993. This accords with the complainant’s evidence (the only direct evidence on the question) and bolstered by the letter from a former manager as well as the Revenue and, latterly, the social welfare records. The complainant’s evidence was that she taught for 12 hours per week and did module enhancement for 8 hours per week at the time her employment ended. According to the respondent’s contract, this was paid at hourly rates of €41 and €17.22 respectively.

Taking account of the complainant’s working pattern, I award compensation that is just and equitable of €18,000. The parties will appreciate that this is the outcome offered by the respondent to the complainant in 2020 (albeit with a 1995 start) but this offer was never conveyed to the complainant.

CA-00043427-001

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant just and equitable compensation of €18,000.

Unfair Dismissals Act