Complainant

Respondent

Parties

Kevin  Conboy

Board of Management -Coláiste Muire Máthair

Representatives

Forsa Trade Union

Clare Bruton BL instructed by Mason Hayes & Curran Solicitor

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-00051059-001

08/06/2022

The complainant claims that he was unfairly dismissed.  The respondent denies the complaint and submits the complainant was made redundant.

The respondent submitted that the name of the respondent should be amended which the complainant agreed to.  It was submitted that the complainant’s employment was terminated by way of redundancy due to the amalgamation of two schools in September 2021.  This resulted in budget constraints and no longer a need for three school caretakers. The Respondent followed natural justice and fair procedures in relation to the Complainant’s redundancy and engaged in a consultation process with the Complainant. The Complainant was also offered to consider reduced hours and further part-time hours but declined.

The respondent is a new secondary school that came into existence as a result of the amalgamation of two secondary schools, formerly, St. Mary’s College and Our Lady’s College in September 2021. Coláiste Muire Máthair now employs approximately 100 people with two of them holding the positions of caretaker/cleaner and a part-time cleaner.  The Complainant commenced employment with the Respondent on 12 June 2017 and, at the date of his redundancy, held the position of School Caretaker/Cleaner, a role shared by two other persons employed by the Respondent. By letter dated 6th July 2021 the Respondent wrote to the Complainant confirming that the amalgamation of the two schools amounted to the transfer of undertakings in accordance with Transfer Regulations and that the date of the transfer would be 1 September 2021.   The complainant was informed that his employment would transfer to the Interim Board of Management of the new school with the existing terms and conditions to ensure that they were preserved by the Interim Board of Management. The letter further stated that the respondent would review its staffing requirements in light of the amalgamation of the two schools, having regard to the organisational needs and the financial circumstances of the new school and that reductions in staffing might arise.

The Respondent, a single entity after the amalgamation, receives separate grants to fund the position of secretary, caretaker as well as the capitation grant for capital expenditure. The two previously existing schools would have each received separate grants. However, post amalgamation the school only received grant funding for the position of one caretaker to the value of €19,075 and any additional funding for the role of School Caretaker/Cleaner would have to be taken out of the capitation fund causing a deficit.  The Respondent noted that there was a shortfall of € 35,380 between the grant funding received from the Department of Education and the salary costs of three caretakers employed in the school. Furthermore, there was no funding transferred over from the other two school accounts. The Respondent had no option but to conclude that the Board of Management needed to ensure that expenditure did not exceed income. Difficult decisions were needed, and the Respondent was determined to accommodate all three Caretakers/Cleaners.  A decision was made that an at-risk redundancy consultation process would be entered into with potentially impacted individuals.

The Complainant was invited to an “at risk” discussion to be held on 24 September 2021 with the Respondent to discuss the budget.  By text message on 29 September 2021, the Complainant wrote to Ms. Hernon stating, “Betty not interested in cutting my hours.” The Complainant continued to carry out the duties assigned to him by the Respondent and maintained a cordial relationship with Ms. Hernon.  A second consultation meeting was held on 5 October 2021 when the respondent met all three caretakers/cleaners to look at and consider any way in which to avoid a redundancy scenario and explore all possible alternatives to redundancy. The Respondent put forward solutions to include that all caretakers would agree to the reduction of hours. This was not accepted by all three caretakers.  By letter of 12 October 2021 Fórsa noted that their members had been engaged by the Respondent in a process whereby voluntary reduction in contracted hours of work had been sought by the school and employees had not voluntarily agreed to reduce their hours and requested information regarding the proposed redundancy process.  The correspondence also sought the reason for redundancy, alternative work within the employment, selection criteria and redundancy pay.  The Respondent replied in detail on 22 October outlying the shortfall, the need for costs to be cut and that there was no alternative work within the school and that TUPE obligations had been met and as voluntary redundancy was not considered by the three caretakers, the criterion of ‘last in, first out’ would apply and statutory redundancy would be paid. The Respondent wrote to the Complainant citing the previous offers for reduced contract hours which had been rejected by the caretakers. The Respondent noted that the Board of Management had to nominate a caretaker for redundancy using the Last In First Out (LIFO) selection criteria. Lastly, the Respondent set out the notice period and the statutory entitlement. By letter dated 10 December 2021, Fórsa wrote querying the Complainant’s compulsory redundancy and sought financial information from the Respondent.  The Respondent respectfully submits that they had supplied all necessary information in relation to shortfall.  On 3 December 2021 the Respondent wrote to the Complainant setting out his notice period of two weeks, that his last day of employment would be 17 December 2021 and statutory entitlements. The Respondent wrote to the Complainant by email on 15 December 2021 seeking to set up a meeting to discuss the schedule of the present tasks the Complainant was undertaking. The Respondent received no response from the Complainant.  By email on 20 December 2021, the Respondent wrote to the Complainant informing him that the school had received a Covid Cleaning grant and that the money could be used to employ a part-time cleaner for 18 hours per week. The text also stated the proposed hours of work and asked the Complainant to let the Respondent know if he was interested. The Complainant did not respond to the Respondent’s message.  On 14 January 2022, the Respondent wrote a response to the letter from Fórsa, the delay had been caused by the letter landing in the Respondent’s junk mail folder. The letter stated that the Complainant had been notified of his redundancy and paid his statutory redundancy entitlement in December. Furthermore, the Respondent addressed fully the questions raised by Fórsa.   However, their letter had been superseded by the redundancy.  An email was sent to the Complainant on 14 January 2022 offering him the temporary cleaning hours as the Respondent did not have the Complainant’s address on file. The Complainant again did not respond to the email. By text message on 24 January 2022, the Complainant responded to Ms. Hernon saying, “Betty I am awaiting advice from my union rep regarding hours and will respond when she advises me. Thank you. Kevin”.  The Complainant sent a text message on 15 February 2022 refusing the offer of part-time cleaning hours facilitated by the Covid grant the school had received.

The respondent submits that the Complainant was dismissed wholly or mainly due to redundancy which, constitutes a substantial reason to justify the termination of his employment and is a full defence to unfair dismissal. It is submitted the factual matrix in place at the time of the Complainant’s redundancy fits squarely within the Act.  The Respondent had cogent and genuine reasons for the eradication of the Complainant’s role. The decision to proceed with the redundancy of the Complainant in December 2021 was wholly connected with eradication of his role and his functions being carried out by the other caretakers. His role has been subsumed and no person has replaced the Complainant. There was a clear need for cost reduction/including headcount reduction within the Respondent, all which was clearly explained to the Complainant and no funding for his role. The reason for the Complainant’s position being eradicated was due to objective and transparent factors. The Respondent behaved fairly, transparently and reasonably towards the Complainant and a fair selection process-including the use of last in, first out as a selection criteria, was applied. The Complainant was not unfairly selected for redundancy and redundancy is a fair reason for dismissal.

The Respondent requests the claim be dismissed on the basis that the dismissal of the Complainant was for redundancy which was genuine and legitimate, there was no unfair selection for redundancy and the decision to dismiss was effected fairly.  It was further submitted that the complainant did not make appropriate efforts to mitigate loss.

The evidence of Ms Betty Hernon, Principal was that it is a co-ed school and the complainant had the shortest service of all 3 caretakers.  She said there was a shortfall in the budget and that the shortfall impacted other areas as some staff who left were not replaced.  Ms Hernon said she asked the 3 caretakers to consider reduction in hours which they declined, she asked them to also consider voluntary redundancy which was declined and the only alternative available was to make the complainant with the least service redundant.  She said that the 3 caretakers were advised to speak to whoever they needed to speak to and that the complainant was aware that he had least amount of service. 

Under cross examination Ms Hernon said that correspondence of 6 July was left in the office for the complainant to pick up but it was also emailed.  She confirmed that the minutes for the meeting were for her purpose and were not circulated.  She could not recall if the budget document had been given to the complainant.

Case law cited included Jeffers v DDC Ireland Ltd UD 169-2000, Cutin v Mallow Golf Club UD964-2014, McNally v Westwood [2010]21 ELR 328, JVC Europe Ireland Ltd v Poinsi [2012] 23 ELR.

The complainant agreed to the respondent’s submission to amend the name of the respondent.

It was submitted that the complainant was made redundant because of the amalgamation of two schools.  The complainant was employed by the school as a caretaker/cleaner since June 2017 and service was then transferred to the new employer in August 2021.   The respondent failed to advise transferring employees of the right to have union representation regarding restructuring that might arise and failed to fully appraise employees as to the purpose of a meeting on 21 September 2021.  Staff were advised at this meeting that the school were looking for voluntary reduction of hours.  No notes or minutes were circulated following that meeting.  The school failed to give more than 48 hours notice of a second meeting where employees were advised that there were no volunteers to reduce working hours and therefore the school were looking to seek voluntary redundancy and if there were none then the respondent would make the most junior person redundant.  Once again no minutes or notes of this meeting were taken or circulated.  The school failed to provide adequate proof of an economic reason justifying the reduction.  No evidence was provided that the complainant was the most junior. 

The union wrote to the school on October 12th requesting inter alia that the school set out the consultation steps they engaged in prior to amalgamation/transfer including a review of caretaking need which would have indicated the potential risk of post reduction. The school responded on October 22nd but did not give clarity as to the TUPE processes undertaken i.e. consultation regarding workforce planning. On December 3rd the school wrote to Mr Conboy to advise him that he was to be made redundant without any engagement with regard to alternative posts within the school that were available, even temporarily.

On December 10th Fórsa again wrote to the school requesting that there be further engagement to ensure that all relevant information was divulged before a redundancy came into effect. The school returned correspondence to the union on January 14th almost one month after effecting Mr Conboy’s redundancy. In late January of 2022 Mr Conboy was offered a temporary contract of 18 hours per week spread over 5 days with the school. Mr Conboy refused this offer on the basis that to take up such a post was not financially viable as to do so would place him at a financial loss.

The union are of the belief that there was not an adequate consultation process regarding the amalgamation/transfer to the new school.  It was submitted that the sole reason for Mr Conboy’s post being made redundant is as a direct result of the transfer, on the basis that the school would not have suffered a financial or economic hardship should they have remained separate.  It was submitted that the school failed to meet the requirement to show economic/technical/organisational need for redundancy.  The school also failed to engage appropriately with the complainant.

Evidence of Mr Conboy was that he was told verbally about the school amalgamation and then received a letter.  He confirmed that there was mention about a possible cut in hours or voluntary redundancies and was then told that one of the three would be selected for redundancy but was never given a list of seniority.  He confirmed that he had applied for a few jobs but had no luck securing any positions.

Under cross examination he said it was his belief that because of the amalgamation there would be need for more caretakers no less.  He said the school was trying to avoid redundancy and that Ms Hernon was a lady and doing her job and that he suspected he had the least service amongst the caretakers.

I note the submission by the respondent to amend the name of the respondent and the complainant’s agreement to same. I have, therefore, amended the name and for completeness I note that parties are not prejudiced by same.

The complainant submits that he was unfairly dismissed and that the respondent did not allow appropriate information and consultation regarding all aspects of the redundancy including providing details regarding additional work that may have been available.  The respondent submits that they were left with no alternative but to make the complainant redundant and applied LIFO when offers of reduced hours and voluntary redundancy were not subscribed to.

Section 6 of the Act provides

“.—(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.

Section 6(3) provides

“ Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

Furthermore, Section 6(4) sets out

“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.

It was not in dispute that two schools amalgamated and the amalgamated school had 3 caretakers.  I note that the complainant was on notice of the possible impact of the amalgamation on employee numbers because of this amalgamation.  Also I note the respondent’s submission regarding the budgetary deficit and it would appear from the credible evidence of Ms Hernon that she saw that the only way this could be managed was either the caretakers reduce their hours or avail of voluntary redundancy and in the absence of that then it would be compulsory redundancy on the basis of Last in First Out.  It was clear from the evidence of both Mr Conboy and Ms Hernon that they had a cordial, professional relationship in their interactions and I also noted this in how they conducted themselves during the hearing. 

In Component Distributors (CD Ireland) Ltd -v- Brigid (Beatrice) Burns UDD1854 the court accepted that “the Respondent was entitled to restructure its business and reduce its workforce if necessary”. In the absence of the caretakers agreeing to reduce hours or take voluntary redundancy, Ms Hernon made the decision that the position that Mr Conboy held would be made redundant as he was last in.  I note that an offer was made to the complainant after the notification of redundancy of available hours which the complainant rejected.  While the respondent could have more of an effort to review potential alternative positions during the information and consultation period, I find, taking into consideration all submissions and evidence, that the reason for the dismissal was redundancy.  This, therefore, does not constitute an unfair dismissal under the Act and I dismiss the complaint and find that the dismissal was not unfair.

I find, taking into consideration all submissions and evidence, that the reason for the dismissal was redundancy.  This, therefore, does not constitute an unfair dismissal under the Act and I dismiss the complaint and find that the dismissal was not unfair.

Redundancy, last in first out, dismissal