Complainant

Respondent

Parties

Wim Naude

University College Cork

Representatives

Mr. Cillian McGovern BL instructed by   Crushell & Co. Solicitors

Mr. Tom Mallon BL instructed by Arthur Cox LLP

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-00053152-001

07/10/2022

In attendance for the Complainant:

-      Mr. Wim Naude – the Complainant

-      Mr. Cillian McGovern BL

-      Ms. Lara Kennedy Jones, of Crushell & Co. Solicitors

In attendance for the Respondent:

-      Mr. Tom Mallon BL

-      Ms. Melissa O’Sullivan, of Arthur Cox Solicitors LLP

-      Professor Ursula Kilkelly – witness

-      Mr. Barry O’Brien - witness

This case involves a complaint of unfair dismissal. The Complainant, a Professor of Economics, submits that he was dismissed out of the blue, without cause, by email, by the University’s Director of Human Resources, and in the absence of the application of the Respondent University’s own internal procedures, fair procedures or natural justice and without being offered recourse to an appeal.

The Respondent denies the Complainant’s claim. It submits that the Complainant was dismissed because he had not moved to Cork. It submits that there was no issue with the Complainant’s performance and no issue with the Complainant’s conduct, that the only issue was his failure to relocate to Cork. It acknowledges that it did not initiate a disciplinary process, in those circumstances, but maintains that the dismissal was fair, submitting that it was “appropriate and necessary”, “in the interests of the University and its students” and that the Complainant’s contribution to his dismissal “was huge - 100%.” For completeness, the Respondent University did not advance any argument in relation to frustration of contract.

As per the complaint form:

“I was dismissed without any investigation, without any of the UCC procedures stipulated in UCC’s own handbook, without any opportunity to put my own case, nor any indication whether I have any method of appealing the decision. At no time during my appointment since 2021 has there been any complaints about my performance or adherence to my contract.”

Opening Statement by Counsel for the Complainant:

Mr. Cilian McGovern BL set out the position as follows:

The Complainant joined UCC when teaching in person was not a realistic prospect, during the Covid-19 pandemic. As a result, courses were taught online. The Complainant’s output during his course of employment was exceptional. It was always Mr. Naude’s intention to relocate, and UCC had a duty to support a facilitative relocation and it fell down in its duty of care. He characterised the support offered by the University in relation to relocation as “tokenistic” in nature, at best. He specifically highlighted the crisis in the Irish housing market as a significant factor, and submitted that UCC needed to facilitate that move a lot sooner than the start of the academic year, as at that point, there is a surge in application for housing. He contrasted the support the Complainant had received with the support the mentor assigned to him had received when he had moved previously to take up his position.

He emphasised that no issue was raised with the academic contributions or output during the Complainant’s tenure, which he characterised as “exceptional.” He said that the Complainant’s relationship with students was excellent as well, and that was also reflected in their grades.

He said that on Monday, August 8th, 2022, dismissal came five (5) working days after the Complainant submitted a proposal outlining two possible approaches in terms of the academic year 2022/2023. He said neither of those options were addressed.

Counsel for the Complainant said that there is governance in the printable statute of UCC around relocation of staff – that’s not in dispute.

He said in relation to UCC’s internal disciplinary procedure, there are six (6) internal steps in the statute, and Mr. O’Brien went straight to 6 - dismissal. He also said that no appeal was offered to the Complainant – the right to an appeal is set out in the Respondent’s internal governance.

He said that the Complainant had held a very senior position, at the highest paid grade, permanent in the Respondent organisation. That the dismissal had a massive impact on the Complainant and his family. He highlighted the factors producing difficulty in relocation, which precipitated the Complainant’s request – in relation to the two pathways for 2022/2023 – circumstances pertaining to his family in the Netherlands, Covid, the housing crisis in Ireland, and that there was very little support from the University of the nature which had been offered to staff members who had previously located.

He suggested the matter could have been cured or remedied through discussions. He said that there was very little communication from Mr. Barry O’Brien. In 2020, the Complainant received the job offer and then did not hear from him again until twenty (20) months later when he received an email dismissing him.

He said that the remedy being sought was compensation.

Wim Naude, Complainant

Mr. Naude  took the affirmation, and gave evidence on his own behalf.

He outlined his educational background, that he had a Ph.D. and a M.Sc. He outlined that he had worked for 30 years in academia, that he had been a full professor at 28, head of department at 29, head of research at 30, that he had worked with Oxford University and with the United Nations.

He outlined his personal circumstances – that he is married and has four sons, the three older children are adults and are out of the house and working in the Netherlands. His youngest son has autism and is attending a special educational programme. He explained that his wife has diabetes type II and was very ill during Covid, that she had surgery on her legs, that she has suffered from  neuropathy for about 10 years. He explained that his wife is the primary caregiver of his autistic son.

He said that it was always his intention until he was fired to find a place to stay and live in Cork. He said that he was very happy to be appointed to the role at UCC, that the University had very good ambitions and that he saw a lot of opportunities for himself, within that.

He said that the Covid-19 crisis happened and everyone had to contend with that, that things were very uncertain at that time.

He said that after the interview, he raised the issue about Covid, and that the response he received was very good, that the Dean and Mr. O Brien were “very flexible” and would keep everything “in review.”

On November 19th, he sent an email, seeking to be facilitated, to Professor Don Ross who was his mentor, in relation to housing. The University was keen to attract top international talent. In his own case (the mentor’s), coming from abroad, he had been offered accommodation in St. Kilda’s by the University. The Complainant outlined that this was not his experience, that support was non-existent for him.

He said that during that time, Professor Kilkelly’s own assistant could not find accommodation and Professor Kilkelly sent around an email asking if anyone could help.

He said that the University was attracting top talent. He said that he was the top ranked scientist. He was the top-ranked scientist in economics and finance in Ireland.

He was asked whether he was provided with any informational materials – about schools, property etc. He said that he was not provided with anything.

He was asked about his experience with HR. He said: “virtually none.”

He said that he received his employment contract from Barry O’Brien. He said: “Then, the only correspondence I got was firing me, on the spot.”

An email from Professor Thia Hennessy sent to all CUBS staff in September 2021, which included the phrase “understand the need for the school to be flexible and responsive to people’s individual circumstances” was put to him. He said that in September 2021, things were still very abnormal. He said that the University managed the situation with Covid very well and he emphasised “at no point in time was I treated differently to anybody else”, explaining that lots of employees were working remotely/in a blended format during the Covid phase.

He said that he came to Ireland in June/July 2021, as soon as the first Covid restrictions eased. He said that he came frequently, that he was chasing houses which was not easy. He explained that he would make appointments with agents to view properties, sometimes only being told on the day, that the viewing was cancelled (having travelled from the Netherlands).

He said that it came at the end of 2021 to talk with the Dean and Head of Department, Professor Ed. Shinnock. He said that Professor Shinnick was a very good Head of Department, that his relationship with him has always been very cordial, and that he was very supportive and asked what he could do to support more, in April 2022. The Complainant outlined how he could teach in a blended format, that he would come for one week a month and do in person teaching; the rest of the courses he would do remotely on Canvas. He said he attended monthly department meetings. He said that most of the department were not residing in Cork and were using Teams to join the meetings online. He said they discussed the teaching obligations.

He was asked about the headship role. He said: “That surprised me. That was not in my contract. This was mooted. This was something that could or could not happen to a senior academic.” He said that he “could understand it”, that he has “extremely large networks internationally.”

The Complainant said that in January 2022, he was on campus for accreditation. He said that at the end of July, he had a personal meeting with Professor Thia Hennessey who sympathised with his situation. She suggested to him that the staff manual set out that he had the right to ask for a reduction in his time. He said that this is what he subsequently did.

He expressed the view that the University’s behaviour and treatment of him was at odds with its suggestion that he was so appreciated as a leading academic in his field, and how much it valued him.

He expressed the view that the University was “very much keen, above all, to get rid of me.”

He said that the next correspondence he had from the University was from Barry O’Brien, HR dismissing him.

He was asked what his reaction to that email was. He said: “I was extremely shocked. I thought as Director of HR, that he would be ofay with the statute of the University. This is an attempt to end a 30 year career.” He said that he was “never disciplined”, “rapidly promoted”, “rapidly given bonuses to be promoted.” He said that he knows what the statutes [of the University] are and that “I know how to behave as a constructive colleague.”

He was asked about leadership. He said that “You lead from behind.” He emphasised encouragement and he said that “real leadership is informal.” He said that he was still mentoring a junior colleague of the Department, of UCC. He said that “yesterday, we got our book approved – it will come out soon." He said that: “It’s not the power of a particular position”, that “leading academics is like herding cats.” He outlined that he had extensive experience saying: “I’ve supervised 22 PhD students.” He said that “they are all in very high positions; in government, directors of research, deans…”

It was put to him that there was no correspondence between August 1st, 2022, and August 8th, 2022. He was asked about the process. He said: “What process?” He expressed the view that if UCC had followed the statutes, none of this would have happened. He said that the emphasis was on “not re-employing [him] at all costs.”

The Complainant said that he had taken his career very seriously, that he came from a very poor background, that he was the first person in his family to advance through education, that he worked very late nights. He said that he had held very senior positions, which he listed, including at the UN.

He said that his dismissal was decided “ad hoc” by the Director of HR. He said that Barry O’Brien was “judge, jury and executioner”, adding “my career is finished.”

He said that since the dismissal, he had applied to more than fifty (50) jobs at universities. He said that he had applied for unemployment insurance in Netherlands and that it was his understanding that it was sabotaged by UCC.

He said that the mitigation actions he had taken had been criticised by the University. He took two – that he was very fast to ask for a letter of reference so that he apply for jobs. (He submitted a list of all the roles to which he had applied.)

He said that he had also set up a website so he could “market myself and find a good job.”

On Cross-examination: Mr. Mallon BL

The Complainant was asked if when he applied for the job, he believed that it was going to be necessary to relocate; and whether he had carried out any research in relation to housing, schools, etc. to see whether it would even be appropriate for him to apply for the job.

He said: “I think it would have been much easier if it had not been for Covid.”

When you were offered the job, did you accept, that it was a requirement of the post to relocate to Cork?

 “Yes.”

Did you accept that you would have to be involved in the leadership of the department and the school?

“Informal yes. Formal – happens on a bilateral basis. Nobody is forced to be a head of department.”

“I have worked in 5/6 countries in the world. I have always re-located.” He said that he had previously re-located to Ethiopia.

He was asked about the headship of the department and whether it was discussed with him as part of his interview for the job. He said that it was. He said: “It was coloured in for me, as a way to make it more attractive – if you do well, this could also become part of the contract.” He was questioned as to whether it was now his evidence that the headship was “merely a possibility.” He said that it “never came up”, that it is “not in any of the documents.”

Counsel for the Respondent made a submission that there is a significant difference between the evidence of the Complainant that this was a “mere possibility” and what was put to Professor Kilkelly on cross-examination, that this was something that may happen down the line, but had not happened yet. [Adjudication Officer’s Note: I do not accept this. I accept the Complainant’s evidence in this regard that this was something ‘coloured in for him’ at interview, to make the job more attractive, and that it was contingent on how things went, and that no-one is ‘forced’ to be Head of department, and that it is not in his contract. As Professor Kilkelly submitted, it never is.]

The Complainant was asked whether he would accept that it would be virtually impossible for someone to be the head of the department of economics, unless they were physically present for a substantial proportion of their time. The Complainant disagreed with that, saying it had actually been done, and that empirically, it had been demonstrated during Covid. He was asked whether he was saying that he did not have to be on campus all the time. He said it was a “moot point. I’m not the head of the department.”

He said that he was head of a department for two years, from the age of 27 and that he had not held a headship since. He was asked whether he had any objection or dislike of being a head, whether he regarded it as less than appropriate. He said that he did not, stating that he had been more than a head, he had been a dean of a business school for six years.

He was asked what role he had held immediately prior to his appointment to this role in UCC. He said that he was a Professor in Maastricht immediately before he was appointed to UCC.

He was asked when he first came to Cork. He said that he came in June 2020 for about two weeks. There was no teaching then. He met Professor Hennessey and Professor Shinnick for a couple of hours each – important meetings. He spent his time in Cork looking for houses.

He said that on that trip there were administrative matters that had to be dealt with face to face – he said that was bringing all his certificates, and he had to get his ID card so he could access the University. He said that his teaching obligations were also discussed on that trip, no teaching carried out - there was no teaching on the campus at that time [due to Covid-19].

He said that he came again in September 2021, for two weeks. He said that there was no teaching on campus still, that teaching was still remote [due to Covid-19]. He said that colleagues were also not on the campus, that there were no students on campus at all. He said on that trip [in September 2021], he did move into his office. He said that he discussed his function with the head of the department (Professor Shinnick). He said that that he spent two or three days on campus, and the remainder of the time looking for housing etc.

He said that he came again in January 2022.

He said that from September 2021 to December 2021, he did everything remotely; and from January 2022 onwards, he did everything in a blended format – one week on campus and the rest remotely.

He said that he was in campus for:-

-      One week in February

-      One week in March

-      One week in April

-      For the Exams in April and May

-      For the Graduation in April and May

He said that in July 2022, he met with Professor Hennessy to touch base with her. He said that every month they had an online meeting  but also had a face-to-face meeting once in a while.

It was put to him that: “You told Professor Hennessey that you would not be in a position to come to the campus for the following academic year. She suggested you put that in writing.” He said: “It was a proactive proposal from my side, long before teaching had to start – it was a request (in terms of the staff manual).” He said: “The University could have responded by saying ‘No’, the request is unacceptable. What I think is utterly incomprehensible is getting fired seven (7) days later [by email].” He described the firing as “a bolt from the blue” and at odds with the University’s position the Complainant is a “valued international scholar” that the University wanted. He said: “I still have no response to my fair request, to my pro-active request.”

It was put to him that he had spent nine (9) weeks in Cork over his twenty (20) months of employment, and two (2) to three (3) weeks of that was spent house-hunting. The Complainant said: “The University could have declined that and made a different proposal.” It was put to him that he had offered the University two options. He said: “That was my request. It was not an ultimatum.”

It was put to him that the truth was he was not in a position to attend. He said: “I was in a position to fulfil all my professional obligations.”  He said that he “always finds a solution” in his “30 year career”, “so that nobody would be in a worse position.” He said that he “could have stayed in a hotel.” He said that he “would simply have had to make a decision.” He said: “Every time the university asked me to do something, I did it.” It was put to him that what he was proposing was “no teaching”, that the University wanted him “to teach, to research, and to contribute” and that if he was not going to teach, it would have to hire somebody to do it. He said that his proposal was “very reasonable.” He said that he had been in universities where he had seen similar arrangements previously. He said “the University invested in me for the long run” and that the proposal was for one (1) year, it was a “temporary measure.”

He said: “What I think is unreasonable is rejecting that without communicating to me.”

He said that: “Immediately at the end of August, access to my email was cut off.”

It was put to him that he had called the financial comptroller and requested he be paid his three months’ notice pay in the September payroll. He said that he had emailed, not called, the financial comptroller and confirmed that he received the three months’ pay in September. He explained that when he realised his email had been cut off, “don’t expect me to sit on my thumbs.”

He outlined his attempts at mitigation saying that he had submitted a detailed spreadsheet of all the dates he had applied for roles, and which roles, and the responses received.

It was put to him that 24/08/2022 was the first date of job application. He said that “within two (2) weeks of getting fired, I tried to mitigate my position.”

He was asked why he had not contacted his mentor or HR.

He said that Barry O’Brien, the Director of HR said that the contract is null and void [in his email of dismissal]. He said that Barry O’Brien said that he was trying to negotiate a new contract. He was queried as to why he did not contact anyone else, Professor Kilkelly, for example? He said that “Professor Kilkelly didn’t even know who was making the recommendation that I be fired.” [as per her evidence]

It was put to him that he then initiated these WRC proceedings. He concurred.

The issue of the complaint he made not being processed was raised with him.

[Adjudication Officer’s note: Mr. Cillian McGovern BL indicated at the outset of the hearing, that this aspect of the case, which is set out in the narrative of the complaint form, was not being pursued at hearing – that what was being run at the hearing was an unfair dismissal case simpliciter, on procedural grounds. As those allegations are not properly before me, they do not form part of the case herein. The people against whom the allegations were made were not called as witnesses, nor given an opportunity to respond to those allegations, as they do not form part of this case.]

The Complainant said that he was ridden roughshod over, that the motivation of why that was done to him – that is something that the University really has to ask. He submitted that he “did everything perfectly in terms of my job, despite covid, despite personal challenges…”

He outlined the impact of his dismissal on him. He said that he cannot use the title ‘Professor’, that he has an honourary position at Aachen University. He explained that was an unpaid position.

He said that he was a visiting Professor at the University of Johannesburg but explained that was “just a nameplate”, that he mentored students and did a bit of research, most recently, in July 2022.

He explained that he is also a shareholder in a start-up in the Artificial Intelligence space. He said that the business was set up in February 2021, that the company was dormant – just a registration – at that point. He said that he started it up since in a way to mitigate his losses. The organisation is not making any money.

He said that “since I’ve been fired from UCC, I’ve worked harder than I ever have, to make sure that I am not destitute, that I don’t lose my house, as a result of the actions of UCC which seems to be blaming the victim now.”

He said that he had been spending eight (8) hours per day on the consultancy business. He said: “I have been full time trying to save my skin.”

He said that there were a number of people who were shareholders in the business, potentially helping, one is an academic, one is an entrepreneur.

He said that he had “no other career options.” He said: “My career options have been ruined by UCC.”

He was asked when he thought that business will ‘turn a corner?’ He said: “I’ll give it another two years.”

He was asked whether he previously did consultancy work in addition to his professorship in the past. He confirmed he did. It was put to him that that would not be unusual for someone with his skills and experience.  The Complainant agreed. He said: “I tried to offer those services as well.” He said: “It was much more difficult if you are not associated with a University.” He gave the example of doing consultancy previously for the UN, stating that the UN prefers their consultants to be associated with a State University. He said: “I am still trying. I am trying everything I can.” He said that he had had “no success in getting that consultancy-type work.”

He also outlined that he had applied to the unemployment insurance in the Netherlands, that he submitted his employment details. He explained that they indicated to him that until the WRC decision is taken, they cannot award him anything. He said they then requested that information from UCC and UCC did not respond. He was asked: “You don’t know who in UCC was contacted?” He said: “No.” It was put to him by Mr. Mallon BL: “My instructions are: ‘We know nothing about that.’”

The Adjudication Officer sought a figure as to the Complainant’s losses. The Complainant submitted that since August 2022 (excluding the notice payment by UCC), he had earned €17,000, comprising €10,000 in relation to a module he taught in the University of Aachen. He said this was an exception. He said that he had received €7,000 for an advisory role he had undertaken.

In relation to closing remarks, Counsel for the Complainant relied on the Complainant’s evidence.

Opening Statement – Mr. Tom Mallon BL

Professor Naude was recruited by the University at the time of Covid as a full Professor of Economics, which is a critical position. Economics is part of the College of Business and Law in UCC. He emphasised the very important role of leadership role of the area in which he is working - leadership in the wider school, college and University.

The University states that there are three elements to the role - teaching, research and contribution, and that they are equally important. He submitted that the teaching element was obvious, that research was dependent on the person’s own skills etc. and that the third element “contribution” was a very important part of leadership, that it was important to the students and their experience of college. He said that the role also involved being part of the senior management team (SMT) and that those elements require a physical presence.

He said that UCC is a ‘physical presence’ University, that Professor Naude was hired during Covid, and at that stage, people were not attending fully on the premises - in essence, there was an agreement that he would work remotely. He joined UCC in early January 2021. It was expected that he would be present for the next academic year – August/September 2021, but that drifted out. His relocation drifted out. Then, he was due to arrive in January the following year (2022). He did not – he made a number of short visits to the University. Professor Kilkelly said that she never met him – his boss’s boss so to speak – that is very unusual (Head of College of Business and Law).

By August 2022 – twenty (20) months into his employment, it became clear and there were communications whereby he sought agreement that he would deliver his workload on a blended basis/remote basis. This was not acceptable to the University. The contract was brought to an end by dismissal. It is submitted that that was appropriate and necessary, that it was in the interests of the University and its students. It is submitted that Professor Naude’s contribution to that dismissal is huge – 100%. It is very clear that to perform the duties requires a physical presence.

Mr. Barry O’Brien – 1st witness for the Respondent

Mr. Barry O’Brien took the oath and gave evidence on behalf of the Respondent. He was the Director of HR for UCC at the relevant time. He has since retired, on March 5th 2023.

He outlined that he was involved in the recruitment campaign for the role, that he ran the competition, and answered any queries raised in consultation with the academic lead, in the area. He said that the post was a Professorship, that it was a huge project, that UCC had a brand new business school (between South Terrace and Coffey Street, in Cork city), that it was seeking to attract ‘the brightest and the best’ from the widest international field. He said that there are two salary scales - Professor Scale 2 and Professor scale 1, and that he advertised for both scales. He said they received applications from exceptional candidates of international recognition. He said that a recommendation was made to the President of the University for the Complainant to be appointed at the maximum point on the salary scale – that it was a five point scale, and that he was appointed at point five. He said that was the clearest signal, that this was an internationally recognised candidate, that the University was pleased he had applied, and was pleased to offer him a contract and the candidate was going to come and join UCC.

He said that there is a principal statute and regulations regarding the recruitment of professors, that a professor is the most senior academic in the university, that there is a specific list set out in respect of the role of professors, and it also states that “the above list should not be regarded as being exhaustive.” He explained that the requirement under a recruitment process is that you must meet a minimum standard in each of the three areas.

He said that in the new business school, leadership was going to be one of the outstanding criteria, and that he would not underestimate the significance of that. He emphasised the need for significant collegiality – developing lecturers on the ground, enhancing the student experience on the ground. He spoke of the role involving research and the requirement to seek research grants – internationally, from the EU and maybe from Science Research Ireland. He spoke of the requirement to have a leader on the ground from the University – that was one of the key things required.

He was asked whether it would be possible to do that role without a physical presence, while still working essentially full-time, that people travel etc.?  He said that the University recruits professors as part of an overall strategy, and that it needs them on the ground, in particular to “press the flesh” with businesses in Cork, Munster, and nationally. He said the University wanted that person to have a good international reputation to attract good international students; and a strong, personal presence on campus.

He spoke of a double-accreditation successfully achieved and what a huge achievement it was.

It was put to him that there was “no disputing the Complainant’s calibre, suitability etc?” He said: “It would be the exception rather than the rule that we would offer full Professor[ship] on the top of the scale. There is no issue about the quality of the candidate.” [The Complainant’s salary started at just over €150,000 and had increased to more than €166,000 by the following year.]

He said that recruitment continued in the second half of 2020. He said that UCC receives 50% State funding and 50% self-generated funding “so, we needed to continue with our strategic plan and we needed to recruit.”

He said that every university in Ireland, including UCC took a very pragmatic approach as to how to navigate Covid, within the challenges that Covid presented. He said that UCC was quite successful about maintaining the business models. He said that it did not change its recruitment strategy during that time.

He explained that interview board were convened on Microsoft Teams. He gave an example of a recruitment campaign where the first candidate was based in Australia, the second candidate was based in Los Angeles and the third candidate was based in Europe, and all were interviewed by the Board on Teams.

He was asked whether people relocated to Ireland within the immediate time-frame. He said that when an academic was recruited that HR initially engaged with them, and wanted to make sure everything was “proper” and “correct”, “but you then hand them over to the Head of [their] Department.” He said that “there was no instance that I can recall where an issue arose where people weren’t taking a pragmatic approach as to how to get back on our feet.”

He said that the University was “flooded with students” when Covid was over. He said that the campus reopened for the academic year 2021/2022, that “when the Irish government decided it was safe to do so, we reopened.” He said that people working in education were considered to be essential workers, and said that he himself had a letter to show the Gardai if stopped at a checkpoint, which allowed him to travel to and from work.

He outlined that the interview board consisted, inter alia, of a nominee of the President of the University, the Head of College, a number of senior Professors in the college, a number of overseas external assessors. He explained that HR is not in a position to assess the work of a candidate applying for an academic post, such as in this case – that it is other people working in the field who are in a position to do that, and that the interview board reflects that. He explained that the role of HR is to “facilitate”. He said that his role was to do the “leg-work.”

His email of November 19th 2020 to the Complainant was read into the record. Included within it is the sentence: “Normal working arrangements require you to be resident in Cork and be in a position to attend on campus. The University will facilitate your relocation in 2021 on the basis that you are permanently based in Cork for the academic year 2021/2022 which commences on 1st September 2021.” It was put to him that “So, even before the contract was offered, these issues were being flagged.” He was asked why he sent the email, which was characterised as “unusual”? He said that the this was a regular agenda item for the University management team, that it was on the radar of all the heads of college. He referred to making sure that all of their academic staff were Revenue compliant, not entering into arrangements that could cause a difficulty down the line (from a tax perspective) and viewed this approach as good practice and prudent.

He said UCC viewed itself as an “employer of choice”, which he said is a higher bar than a reasonable employer, that it wanted the Complainant to join the team, it was very clear as to what the terms were and UCC showed its flexibility in its approach. The interview board were very clear as to the quality of the candidate. He said that he was “of the personal understanding that Professor Naude had come as he had confirmed.” He said that he was “surprised to be contacted and to be advised that there had been no move to Cork, despite reassurances given.”

The Complainant’s response, by email, also on November 19th, 2020 was also read into the record. It included the phrase: “Thank you for your email….and moreover the flexibility of UCC is much appreciated.”

He said that he understood that his proposal, as Director of HR, was acceptable and that Professor Naude would be here, when the new semester was starting, in the first week of January.

He said that when he was briefed that Professor Naude had not moved, he needed to discuss that with Professor Kilkelly, as the Head of College. It had been his understanding that the Complainant had moved to Cork. The email which was drawn to his attention raised a number of personal matters, raised the cost of housing in Cork and raised the issue of some family illness that had to be managed. He said that the college manages the academic business, and that they came to seek his HR advice, that what was being requested was not reasonable. He said that it did not serve the interests of the University, particularly for the critical post of Professor of Economics. He said that Professor Naude started in January 2021 and the dismissal took place in August 2022. He said that his understanding was that the Complainant had relocated, during the second half of the academic year, and that all was good.

The Complainant’s letter of August 1st 2022 to Professor Thia Hennessey was read into the record in full (not edited, personal matters included).

Two potential options were suggested in the letter for the academic year 2022/2023 – one was “blended format” and the alternative option was a 33% reduction (unpaid leave).

-      It was explained that the reference to St. Kilda’s referred to subsidised housing owned by the University sometimes made available to visiting academics or for specific research purposes, which had been previously available to academics relocating but was now booked up two years in advance, owing at least in part to the housing crisis.

-      The Complainant outlined personal family matters in his letter, explaining his personal circumstances and the motivation for his request, in particular pertaining to his wife’s health and his son’s special educational needs schooling, and the requirement to sell his house to relocate.

This letter was brought to the attention of Mr. Barry O’Brien. He said that it was not acceptable from the academic point of view. He said that he would have expected that by that point, Professor Naude would have been well-settled in Cork, well-settled on campus and contributing. He said that Universities are complex, that there are lots of committees, that leadership was not just capable of happening. He said that it was a critical time for CUBS (Cork University Business School), that there was a new way of doing business, it was a new project for the international students, Irish students, European students. He said that he appreciated the personal challenges that Professor Naude had.

He said that he took a very balanced approach, that what was suggested did not meet the requirements of the University. He said that past behaviour is a good indication of what you are going to do in the future. He said his initial email was warm and welcoming and that there was a further extension granted.

He said that what Professor Naude suggested – that he could still do 67% of his work with a research focus was not acceptable to UCC, that it was not what they came to the market for, that it was not why they offered him the top point on the salary scale. He said that he “acted in the best interests of UCC.”

Mr. O’Brien was asked in relation to a complaint the Complainant had raised against another staff member and whether it formed any part of the decision to dismiss. He clarified that not only had it not formed part of his consideration, it could not have formed part of his consideration because he was unaware of it. He went on to explain that UCC has a dedicated Research Integrity Officer, and that HR are not notified of complaints made to that person, unless and until there is an adverse finding made. He said that he “had no knowledge” of the complaint that the Complainant had made, that the “research integrity officer brought nothing to me.” He was asked whether he was influenced to any degree whatsoever. He said: “I need to be categoric about this. The University behaved appropriately, correctly and in good faith at all times.” He added that the Complainant was given three (3) months’ notice. He said: “There was only one issue in this year – Professor Naude was now confirming that he could not relocate to Cork for at least one more academic year.” He said Universities have to make decisions in their best interests.

Mr. O’Brien’s email of August 8th 2022 dismissing the Complainant was put to him. He was asked about the email he sent dismissing the Complainant in which he used the phrase “frustrating the contract.” It was put to him that that had a very specific legal meaning, and he was asked whether that was the sense in which he was using that phrase. He clarified that it was not. He said that the HR meaning of the phrase – what he meant by it – was that “despite showing maximum flexibility, despite making every effort to accommodate the individual, they still come back and say thanks but no thanks.” He said: “That’s a huge frustration for the HR professional. That’s the HR frustration.”

He said that on foot of the email, that the Complainant’s notice would expire on November 30th and that he mentioned relocating to Cork on three occasions in his email. He said: “Professor Naude is a distinguished individual – surely he could have figured out what the corrective action is.” He said: “Surely, he could figure out, ‘If I emailed Barry back on August 9th and said I’ll see you in Cork on the 9th of September, there wouldn’t be an issue.’”

The Complainant’s email of 6th September 2022 was put to the witness. It was put to him that it did not ask how he [the Complainant] could remedy this? The witness concurred: “No.” He was asked whether the Complainant had rung him. He said he had not. In terms of the Complainant’s request for a reference, it was put to him: “To be fair, the academic attributes and achievements were confirmed by Professor Kilkelly? What he had requested was checked and confirmed, and then sent on headed paper?” The witness confirmed that that was “correct.”

On Cross-examination by Mr. Cillian McGovern BL

The witness was asked whether other than the two emails, at the start and end of the Complainant’s employment, whether he had any involvement with the Complainant? He said that he had never met him personally.

He was asked if it was the HRBP overseeing his relocation to Ireland? He said that there was original dedicated support in the original team – answering queries etc. He said that he set a detailed job description after discussions with Professor Hennessy.

He was asked about the leadership aspect and the requirement to be present in UCC. He said that being present in UCC is a minimum requirement. He said that the University continued recruiting as normal. He said that the “duty of residence” is set out in the principle statute and regulation. He said that the duty of residence required the Complainant to live within “a reasonable distance” of the University but it does not have to be Co. Cork. He said that “full professors are a rare individual” and typically they live in proximity to the University. He said that there was a huge international teaching community in UCC. He said that Department of Public Expenditure was very clear, at the time, when it was giving guidance notes. He said that made it very clear that if you were living abroad, you were not available for work. In the context of the Covid-19 pandemic, Universities had to take quite a pragmatic approach. He said that there was a strong awareness that this could pose difficulties – in relation to Revenue compliance, and not being eligible for certain things.

He was asked if he was suggesting that the Complainant was “fired for tax purposes?” It was put to him that the requirement to be tax compliant was on Professor Naude, that it had nothing to do with HR. He said that “99.99% of full professors reside in Ireland – it’s to meet the full requirements of the job.” He said that he was not aware of any who did not live within the State.

The Adjudication Officer enquired as to who made the decision to dismiss. Mr. O’Brien said that it was him. He made the decision.

Counsel for the Complainant took the witness through the section entitled “Duties of Academic Staff” [Page 33] of UCC’s Charter.

He was asked if the Charter is binding. He said that “you are fully comprehended” by it, and that the duty of residence is set out at page 34.

He was asked about latitude given to staff during Covid. He said that the University was employing people on a continuous basis, and that everybody was aware [of the requirement to move to take up positions], that people were always seeking to move, that the University was very facilitating.

He was asked about the email he sent at the time of hiring, and whether he had put conditions on the Complainant’s employment, in a separate email. He said he thought it was self-explanatory, that his email was an additional clarification, and that the contract would issue on November 22nd.

He was asked whether he told him what the consequences would be if he breached any of the conditions? He had not.

Again, it was put to him that he was suggesting that the emails had become binding terms of employment. He said that UCC was being flexible, that he made a proposal, that that proposal was “fully acceptable” as per the Complainant’s responding email. The Complainant was sent an information pack including names of auctioneers etc. He said that the University is a collegial world.

Page 44 of the Universities Act 1997, UCC, NUI (Cork), Principal Statute was put to the witness. F.7.c. entitled “Sanctions. The disciplinary sanctions available to the University may include one or a combination of the following.” [The six sanctions are as follows: Verbal Warning, Written Warning, Final Written Warning, Disciplinary Suspension, Demotion, Dismissal.] It was put to him that he said he had acted “appropriately, correctly, and in good faith”, that the Complainant was not fulfilling the terms of his contract, that it was “nullified”, that he had acted in “the best interests of the University.” However, it was put to him that he “did it all in four [working] days”, that there was “no investigation” and that the facts did not allow the witness to depart from the Respondent’s own practice and procedures. He said that “the most fundamental requirement of the job, which was to be based in Cork, was not going to be met.” He was asked as to whether he had applied fair procedure, in his view. He said that “what we were being told by the employee was – I’m giving you an ultimatum.”

It was put to him that he was suggesting that the Complainant is telling him crystal clearly that he is not coming to Cork. However, the Complainant is telling him that he is trying to sell his house. The witness disputed this. There followed a disagreement as to the meaning of the phrase “I cannot sell my house.” It was put to the witness that the Complainant was just encountering difficulties. The witness said: “I disagree.”

The witness was asked what gave him the authority to depart from the formal statutes of UCC. He said that he was satisfied, in all the circumstances, with the approach that he took. He said that he consulted appropriately in coming to his decision. He said that he consulted with Professor Kilkelly. He said that it was “a unique set of circumstances”, that they “recruited a full professor on a clear understanding”, that Professor Naude was “trying to re-write the rules of the game.” He said that “employers need to make decisions to safe-guard their interests and to safe-guard their investments.” He said that he believed that the process that he adopted was a fair process. He said that was a “shared view.”

He was asked whether the people he consulted told him that he could depart from the statutes, and whether they said: “forget s. 7(c) and just go to no. 6 [Dismissal]”? He said that he consulted the relevant people and he is satisfied that could be waived by somebody in UCC. He said that the decision which they took which was in measure of response and setting out a rationale [in the email].

He said that “the fundamental issue for us as an employer was that Professor Naude accepted the job and acknowledged the flexibility offered” and then had not moved, and had written citing a number of things including, for example, house-prices in Waterford being excessive as a reason he was not in a position to move as required. He said that in his view “there was going to be no outcome.” He expressed the view that Professor Naude is a highly intelligent man who could figure out the required response from him. He said that he could have flown to Cork.

F. 7(d) – page 45 of the Principal Statute, entitled “Right of employee to present case, and to notice” was put to the witness. He was asked whether he did any of that for the Complainant. It was put to him that he had never once mentioned “gross misconduct” at any point. He was asked whether he followed any of that process? He said: “I am satisfied outside of the disciplinary procedure, Professor Naude and the University were very clear as to their positions.” He said that there was “no issue of performance, no issue of bad behaviour, no issue of an issue with students.” He said: “There was a singular issue of: ‘Please relocate to Cork immediately.’” He expressed the view that it was not reasonable to suggest that the University needed to engage with the disciplinary procedure, when it was trying to resolve the matter by having Professor Naude relocate.

It was put to him that it was pretty clear that the only power he had was to suspend someone, that he did not have the power to dismiss the Complainant. It was also put to him that “working remotely”, the Complainant’s output was massive.

It was put to him that the Complainant “was not in Cork, the only issue was that he was not in Cork and you fired him even though he was trying to get there.”

Email dated August 1st, 2022, received by Barry O’Brien on August 2nd 2022

The witness explained that he consulted with other people, with the head of school and head of college. He said that it is not the Director of HR’s role. He said that the Complainant “is an academic, he does not report to me in any way shape or form. He reports to the head of school and the head of college. It does not fall within my remit. It is not for me to tell Professor Kilkelly how to run the college from an academic perspective.”

He said that he wrote the letter of August 8th. He said his expectation was that he or Professor Kilkelly would receive an email (or other contact). He said that the Complainant rang the Director of Finance requesting the three (3) months’ notice pay be paid in September in a lump sum, and not over three (3) months’ payroll. He said “that’s an indication that he accepted my decision.”

He said: “I’m satisfied that the sequence of correspondence – although they were limited – set out that we met out duty of care to him.”

F.9.r Determination by Director of Human Resources [at Page 54 of the Principal Statute] was put to him. It was put to him that, as per that section, there is meant to be a disciplinary hearing. The witness said: “No.” It was put to him, there is meant to be a report. The witness said that he was satisfied that his email of August 8th was absolutely clear, that they had been given “absolute assurances” [by the Complainant].

F.10: Disciplinary procedure: Appeals from disciplinary hearings [Page 55 of the Principal Statute] setting out the right to appeal was put to him.

He was asked whether he had informed the Complainant of his right to appeal. It was put to him that the witness’s email of August 8th offered no right to appeal. He was asked whether he expected the Complainant to appeal. He said that the email gave the Complainant three months’ notice (almost four) that that would give him ample time to appeal.

The witness suggested that the sentence in the email starting “By your actions, you continue to frustrate…” represented an invitation to Professor Naude to pick up the phone to Barry O’Brien or Professor Hennessy or Professor Kilkelly. It was put to him that that could only be the case if the balance of that email was ignored.

It was put to him that, rather, what the email set out was that he was hugely frustrated that the Complainant had yet to move to Cork and declared his contract to be ‘null and void.’ It was put to him that he was now suggesting this meant: “Okay, I’m fired but if I pick up the phone, I may be unfired?” The witness said that what he was clearly saying was that there was no personality issue here, no issue about competence or professionalism, that “we, as an absolute minimum, require Professor Naude to be resident in Cork/Ireland” and that the University did not get that, that this was the context in which all of this occurred, adding: “I never saw Professor Naude before today.” He said: “It was a requirement for the job. If we said blended/hybrid working, we would have advertised it as such.” He said that he did not receive a phone call about flexibility,

He said that once Professor Naude was appointed, (after the initial contact with HR re: issuing the contract etc.), everything else was through his academic colleagues.

He was asked if he had dismissed many people from UCC in his time? He said: “Very few.”

He was asked whether he had followed the statute or departed from it, in those cases. He said: “I’d have to check.”

The Adjudication Officer, at the hearing, asked the Complainant to clarify the structure of recruitment. She said to him that it was striking that his evidence was that he did not have the authority to hire the Complainant – that that decision was made by an eminent board and HR facilitated the logistics and practicalities surrounding the decision – and, that his evidence was that it was his decision to dismiss the Complainant; and she wished to give him an opportunity to comment on that. The Complainant said that in fact for a role like this the appointment is signed off on by the President of the University, so in fact it is not even the board who hires. The Adjudication Officer enquired as to whether the same is true for dismissal. The witness said: “Well, that’s the burning issue here.”

He emphasised that he “consulted with the relevant people.”

Ursula Kilkelly – 2nd witness for the Respondent. She took the affirmation.

Professor Kilkelly outlined that at the material time, she was the head of the College of Business and Law, with responsibility for both the business and law school in the context of University strategy. She said that Professor Thia Hennessy was head of the Business school.

She said that it is well accepted, and that it is part of how UCC operates, that there are three core parts to a professorship, which consist of teaching, research and leadership. She outlined that teaching involved teaching both undergraduate students and post-graduate students, curriculum development and the development of pedagogy. She said that research includes the generation of grant income, as well as the development and attraction to the University of Ph.D. students. She outlined that “contribution” refers to the ‘citizen’ part of the role, and that at professorial level – the candidate called out expressly the issue of leadership. She said that it is a really important requirement for professors to lead their disciplines, to mentor and support junior colleagues, including acting as head of department. She added that for professors there is also a management or administrative function.

She said that the structure was that the head of department was the academic and administrative head, that Cork University business school had five academic departments. She outlined that the management of students, and research and development of the discipline then feed into the school leadership, which in turn feeds into the college leadership.

She outlined the strategic approach in UCC was that five departments were brought together in 2014/2015, with the five departments feeding into the school structure; that the University had embarked upon a very significant programme of attracting leading scholars and also bringing along colleagues who might not have been as active up until that point.

She was asked about the requirement for physical presence on site. She said that the role could not be done remotely - teaching allocations, workload models, a whole raft of responsibilities that come with the headship required a physical presence. She said that the requirement for a physical presence in relation to research is less demanding – that some aspects of research can be done from anywhere, that many do travel which is part of the international work of scholarship. They travel to libraries, attendance at research seminars, developmental workshops for colleagues etc.

She outlined that the circumstances surrounding Covid were different. She said that in normal times, these are not activities – other than facilitating scholars from overseas that they would engage with -  on a remote basis.

She explained that due to Covid, UCC - like a lot of places - had to change its system. She said: “We closed our doors in March 2020, along with everybody else” but that “recruitment happened in the eye of that particular storm.” She said “that was present during that whole recruitment process, not something that happened at the end of the process.” She said that “in March 2020, the University closed”, that “teaching had finished (give or take a few weeks) for the academic year” and the “question was whether we could offer anything in-person for the 2020/2021 academic year.” She said that “everyone was trying to engage with that…to see what they could do…knowing that online learning was a poor second choice for all of us.” She said: “We spent 2020/2021 online - online learning.” She said: “Researchers as essential workers could and did come to the University.” She said that had to be “balanced against the needs of students which had to be met online.”

She said that at the beginning of 2020 - that academic year - they were really focused on how they could get back into the classroom and what form that would take. She said that colleagues gave lots of time and care to it. She said that it was a “rolling scenario”, that therefore they could not “decide and then implement.” She said that they “wanted to get students back on campus”, and that “the focus was on that.” She said that “we already had employer feedback that their soft skills weren’t developing.”

She explained that as a head of college, she does not line manage any of the academic staff within the college. She outlined that her role is set out in the statute and it pertains to budget, leadership, the needs of students being met, the strategy of the college being met, contributing at a senior management level etc.

She said that the University was delighted to have attracted such a leading scholar as Professor Naude, that the booklet sets out leadership roles in relation to the head of the department.  She said that the headship of Department of Economics would be held by a full professor, and there was an acute need for development from a senior scholar like Professor Naude to fill what had been a gap. She said “this was the lens that we took to having someone there in person.”

She said that like Mr. Barry O’Brien, she did not have direct involvement, that she knew the matter was being addressed from her engagement with Professor Hennessey.

She said that there had been a meeting between Professor Hennessy and Professor Naude when he was on campus, that there had been a question from Professor Naude about a further semester to be taken online. She said that “we had stated clearly that we were an on-campus University.” She explained that things were different for the students, that there was “flexibility for students.” She said that the context for that was that the students’ world had been turned upside-down, that students had missed out on a social life, that they had given up rolling accommodation, that some families had lost livelihoods etc. She said that the University had rules around concessions and mitigation, that the situation [surrounding Covid] caused huge concern to the University community, that they worked through it day by day. She said that they also had flexibility around accommodating vulnerability. She said that it was not an accommodation of staff, but rather that the University was re-stating its commitment to a campus-based experience for students. She said that there was clear guidance around mentorship and examinations etc. She said that when flexibility was offered to staff, it was around those who were immunocompromised, for whom returning to campus posed particular concerns. She said that all of these matters were discussed in college council, and that Professor Naude as a professor was a member of that council. She said that there were live debates throughout that time, and that those discussions happened in hybrid form. She said: “I would struggle to see how that could not be understood by any staff member.”

It was put to her that there was more flexibility with students than there was with staff, which she confirmed. She also said that the University had piloted a blended working programme in February 2022, that there is a process set out in relation to that, that staff can apply for it. She said that “residence in the jurisdiction is a given.” She said that “blended working – not all remote – would be a dialogue between the staff member and the University.” She emphasised that “campus experience is paramount.” She said that professional staff rather than academic staff took up the blended working pilot programme.

She said “recruitment continued”, “we had to make it work.” She said that she had “never experienced anything other than a person anticipating what employment by UCC meant and coming to Cork, meeting with colleagues, arranging accommodation.” She outlined that during Covid, special arrangements were made in respect of colleagues - a remote working arrangement. She said that they anticipated the academic year 2021/2022 to be different. She said that she did understand from Professor Hennessey that a meeting took place in August which affirmed that. She said that there had been an extension for a semester, that assurance had been provided and then, Professor Naude did not come in the second half of that academic year, the first half of the new year (2022). She said that was brought to her attention by Professor Hennessey, that they had ongoing discussions about all staffing matters. She said that she was aware of the situation, that Professor Naude had flexibility initially, but had undertaken to come to Cork, then that had not materialised. She said that her understanding of that letter [sent by Professor Naude] was that there was a continued reluctance to come to Cork. She said that “we didn’t have provision for blended teaching as an in-campus university.” She said that the alternate proposal, that somebody else would do the teaching “that’s a very particular request.” She said that students and the University would now not be able to avail of that expertise. She also said that there was no reference to the leadership component of the role. She was asked whether the leadership role could be done 100% remotely? She said: “No.” She also said that the residual issue of the headship of the department had not been addressed at that time.

She said that her role as head of college was “high level” and that these issues were not something in which she was directly involved, that it was a matter between the individual and their line manager. She said that “it is at a school level that the matter should be resolved.”

She said that the issue was that they continued to have no certainty or clarity in relation to the fulfilment of the role, that there had been significant investment. She emphasised the vulnerability of the Department of Economics, saying that it was a “critical juncture.” She said that it was “simply not acceptable that a senior member of staff would not be present on campus, to do all aspects of that role.” She said that junior members of staff were on campus.

She was asked: “Could it have worked?” She said: “Well, I had no confidence that we would ever have the full benefit of his expertise.”

It was put to her in relation to Mr. O’Brien, that it was a fairly dramatic decision to be implemented. She said: “My concern was the leadership.” She said that: “I was in the hands of the expertise of Mr. O’Brien as to how the matter would then be addressed.” It was put to her that ‘something had to be done?’ She said: “Yes, I think there was a need. A decisive point would be reached.” She said: “Our preference was that he would come.” She emphasised the significance to the University of having someone of the Complainant’s standing come. She said that the department was “crying out for leadership.”

She was asked how many times she met Professor Naude. She said: “I don’t believe I’ve ever met him.” She said that she sat on the interview panel, which was done remotely.

She outlined that Law shares a building with Economics, so she meets economics colleagues from time to time. She said that she was in her office five (5) days per week.

On Cross-examination by Mr. Cillian McGovern BL

The witness was asked about her comments in relation to “soft skills.” She emphasised the benefits to students of learning to work in physical, in-person workplaces, but acknowledged that there are also soft skills that can be leaned working remotely.

She was asked about the fact that despite the need for ‘leadership’ and ‘something to be done’, yet no-one rang the Complainant. The witness confirmed that she did not ring him.

She was asked whether in her communications with Professor Hennessey, if the idea of a Zoom call was ever brought up, for example. She said that her sense was that the relationship was deteriorating, that promises/assurances that had been given, had not been met. She said that it was a two-way situation, that the expectation on him had been clear but had not been fulfilled, that there appeared to be a reluctance to come to Cork.

She was asked whether anything had been done to clarify that to the Complainant.

She said in relation to the letter, that she operated on the assumption of what was not just in his letter but the sequence of events up until then.

She said that UCC was no closer to having Professor Naude in Cork. She said that she did not think that there was any doubt about that from UCC.

She also said that Professor Naude could have reached out to her, that she received no communication until the final request for a reference.

She was asked about the Complainant’s output. A list outlining his work – as set out in his request for a reference was put to her. She acknowledged that he was very hard-working and productive, but emphasised that she did not think that was the question in this case. She was asked whether any aspect of what he outlined was challenged. She said, that in the reference provided what appears is what UCC was content to stand over – what they could verify.

She was asked about his positive impact on students and mentees. She said that “these are the requirements of a Professor”, and that he was on the top end of the scale.

She was asked whether she accepted that he delivered all of this in a remote capacity? She said that he delivered in terms of research and something of the teaching but that the issue was in the requirement for leadership and headship - a clear gap analysis. She was asked whether headship of the department was in the Complainant’s contract. She said: “No, it wasn’t in his contract.”

She said that the Complainant’s request re: the academic year 2022/2023 was brought to her attention by Professor Hennessey, that they had a discussion about the implications of it given the nature of the communication.

She was questioned as to whether they discussed talking to the Complainant and whether that would have been a prudent thing to do. She said that it would not have been for her to do, and that it was not the normal approach. She said she felt it was fair to say that trust had been eroded that there had been repeated requests not to come to Cork. She acknowledged that communication always helps.

She said that the University was open, that they had recruited staff who had operated in Covid, that this scenario was “quite extraordinary”, that it was a “very unique set of circumstances”, “particularly in the context of a department that desperately needed senior leadership.”

The housing issues in Cork, and a memo the University had issued in relation to it, was put to her - that there have been housing issues in Cork for quite some time. She acknowledged that housing problems in Cork are particularly acute for students, some people could not afford accommodation, some were couch-surfing, some were driving significant distances from their family homes, some had given up. The housing situation had a real impact on their learning. It was put to her, in light of that, whether she accepted the housing problems the Complainant was experiencing in his attempts to move to Cork. She said that she did not see them as “acute”, that he was “a professor appointed at the full professorial salary”, that “the world continued to turn”, that “others were managing to relocate” but that she appreciated that “it’s difficult.” She said that the post was advertised in February 2020 and that the requirement to relocate “could not have come as a surprise.”

She was asked in relation to the Complainant’s dismissal and who suggested it. She said: “I don’t recall.” She did clarify that “[Professor] Ed. Shinnick wasn’t in that meeting.”

She said that despite the real need and the University’s appetite for the Complainant to be in Cork, that “seemed to be something that was being frustrated.” 

She was asked as to what happened next. She was asked whether she knew that the Complainant was going to be dismissed with no fair process. She said that the Director of HR is a specialist. She was asked what she thought when she saw that that email that had been sent on August 8th.  She said: “I appreciated that it was a very grave situation. Very grave.”

She was asked whether she thought that the Complainant would be prompted to ask for his job back or move to Cork. She said: “I hoped he would reach out, yeah.”

She was asked whether she thought the process was fair. She said that she thought the process was within the statute.

She was asked whether she and her colleagues simply deferred everything to Mr. O’Brien. She said: “Yes.”

She was asked whether she had been involved in a dismissal or sanction process previously. She said that she was “new to the process.”

She was asked about the process laid out in the University’s statutes and she said that she was not aware of that process. She said that her understanding was that in engaging with the Director of HR, considerable clarity was being brought to the situation.

She was asked whether the Director of HR told her in that meeting that he would dismiss the Complainant. She said: “Yes.”

On re-direct

The witness confirmed that she was on the interview board which interviewed the Complainant. She said that the issue of headship was discussed with the Complainant at that interview.

In relation to closing remarks, Counsel for the Respondent relied upon his written submissions. The submissions set out that the Respondent is fully defending the case, that it is submitting the dismissal was fair, that it is relying upon the “substantial other grounds” ground for dismissal as the reason underpinning the dismissal, as per the Unfair Dismissals Act 1977; and without prejudice to the foregoing, it is submitting that the Complainant’s contribution to the dismissal was 100%.

This case, by any measure, is quite extraordinary.

In an Unfair Dismissals case, the burden of proof is on the Respondent, i.e. there is a rebuttable presumption that a dismissal is unfair, unless and until the Respondent successfully discharges that presumption, in line with the legislative provisions as set out in the Unfair Dismissals Act 1977, on the balance of probabilities.

1.       It is the Respondent’s case advanced at hearing, and

2.       It was Mr. O’Brien’s evidence, given on behalf of his former employer, at hearing that:-

Mr. O’Brien, then Director of HR for UCC:-

-          who had never met the Complainant, and

-          who had no involvement with the Complainant whatsoever since issuing him with his contract of employment twenty (20) months earlier, and

-          who - until it was brought to his attention by Professor Hennessey early in August 2022 that the Complainant (at the suggestion of Professor Hennessey) had laid out two potential pathways, in line with the University staff manual/bye-laws seeking potential accommodations due to his personal family circumstances in addition to the housing crisis in Cork for a one year period of the upcoming academic year 2022/2023, as he was both entitled and encouraged to do - was unaware that the Complainant was not already based full-time in Cork, or indeed that there was any problem or issue as the Complainant had never come to the attention of HR within his tenure,

was the person who took the decision to dismiss the Complainant and did in fact dismiss the Complainant, in a three-paragraph email dated August 8th 2022, offering him no mechanism of appeal.

I fully accept that Mr. O’Brien was a forthright and truthful witness in relation to the piece of the puzzle of which he has knowledge, and of which he was in a position to give evidence.

However, I find the case run by the Respondent University to be strikingly unconvincing, and it seems to me that it produces more questions than answers.

While Professor Kilkelly was called as a witness, at the hearing, Professor Hennessey was not.

Even more astonishing than Mr. O’Brien’s putative unilateral decision to dismiss the Complainant outside of any procedure or process is that this is the case the Respondent University advanced at hearing.

For clarity, I find that Mr. O’Brien had no authority of any kind to dismiss the Complainant, and it is entirely unclear – based on the evidence and arguments before me - why he thought he did.

It is also entirely unclear why the University is doubling down on that position – a stance which means it is submitting that it is wholly oblivious to the requirements of the legislative framework in this area, the most basic requirements of fair procedure and natural justice, as well as the contents of its own internal statutes. It is a quite incredible position. Of further note, is that no appeal of the putative decision to dismiss was offered in the email of August 8th 2022.

It was Mr. O’Brien’s evidence that there was “no question of performance”, “no question of misconduct/behaviour.” In other words, the Complainant was exemplary at his job, a position he had held and fulfilled over the course of twenty (20) months – and in that time, the Complainant had not had any interaction with Mr. O’Brien, a man he had never met. It is noteworthy that the Complainant had never come to the attention of HR during his tenure, a fact which I note to be testament to the quality and calibre of his work and relationships with students and colleagues.

The only previous correspondence the Complainant had with Mr O’Brien was at the time of his hiring, in 2020, when HR facilitated the logistics and practicalities in relation to the Complainant’s appointment, e.g. issuing a copy of the employment contract to the Complainant, requesting an original birth certificate and original degrees/qualifications be produced for inspection, etc.

For clarity, Mr. O’Brien did not make the appointment and it was his very clear (and correct) evidence that he had no authority to do so - HR merely facilitated the logistics and practicalities, in relation to the appointment which, given its seniority and the nature of the role, was formally made by the President of the University. Equally, he had no authority to dismiss the Complainant – he simply had no decision-making discretion or power, in this regard. It simply did not fall within his purview to:-

1.       Dismiss a permanent, full Professor

2.       By email

3.       On foot of no complaint by any student or staff member

4.       On foot of no allegation of any kind – neither performance nor conduct, and for completeness:-

5.       On foot of no suggestion of “frustration” of contract, in its legal sense.

If an employee is at risk - in jeopardy - of any disciplinary sanction, up to and including dismissal (and for clarity, dismissal is a disciplinary sanction) - he/she is entitled to the benefit of fair procedures and natural justice, the minimums to be met are set out in S.I. 146/2000. In the Respondent’s case, it has a very comprehensive policy which is set out in its internal statutes governing same. It applied none of them.

Specifically, in his putative exercise of a discretion he did not have, Mr. O’Brien did not afford the Complainant any of the following basics:

1.       There was no notification to the Complainant that he was at risk of any sanction, much less dismissal.

2.       The Complainant was not informed that he had any case to meet, much less what it was. Nor was he given an opportunity to remedy any alleged issue.

3.       There was no investigation process.

4.       There was no disciplinary process.

5.       There was no right to representation afforded to the Complainant and no right to present his case – no right of reply (audi alteram partem).

6.       There was no right of appeal afforded to the Complainant.

The email of 8th August 2022 is quite extraordinary, and I have re-produced it in full:-

“Dear Wim

I refer to your employment as the Professor of Economics, Cork University Business School, UCC.  

Prior to you commencing your employment on the 4th of January 2021 I set out by way of email on 19th of November 2020 the special arrangements which the University was putting in place to facilitate you commencing work and recognising the challenges presented by Covid-19.  I informed you at the time that you would be required to be permanently based in Cork for the academic year 21/22 and ongoing thereafter.

Your most recent correspondence to the University has been brought to my attention and I have had the opportunity to discuss in detail with Professor Kilkelly, Head of the College of Business & Law.  

On a number of occasions since you commenced employment you have given absolute assurances that you would relocate to Cork to give full regard for your contract of employment. My initial deadline of September 1, 2021 was extended further by way of agreement and you further agreed that you would be fully located by January 2022. Your most recent correspondence confirms that you have never relocated to Cork and that it is not your intention to do so for the next academic year. By your actions you continue to frustrate the requirements of your contract of employment to such an extent that UCC has no confidence that you will be in a position to meet the conditions of your employment on an ongoing basis. Accordingly UCC now deems your contract of employment to be null and void and will proceed to give you three months’ pay in lieu of notice.  The notice will expire on the 30th of November 2022. 

Yours sincerely,

Barry O’Brien”

I also note that as it is an email, rather than a letter, it is neither on headed notepaper nor signed. It is an incomprehensible manner for a University to purport to dismiss a full Professor. It is simply not legally possible, nor procedurally permissible, for the Director of HR to do what he purported to do. Notably, he defended his actions, as did the Respondent, up to and throughout the hearing.

Re-instatement, re-engagement and compensation are the three potential remedies available under the Act. The maximum jurisdiction, pertaining to compensation, under the Unfair Dismissals Act 1977 refers to two years’ remuneration, and it refers to all of the elements of an employee’s compensation package, not simply salary/wages. The jurisdiction refers to a monetary amount rather than temporal period.

The facts of this case are so egregious that, left to my own devices, I would have re-instated the Complainant back to the date of putative dismissal. Even though I have discretion under the Act as to which remedy to apply, as the wronged party has indicated that the sole remedy he is now seeking is compensation only, I indicated to the parties at the hearing that I would have regard to that. I have had regard to that and am awarding compensation as the remedy in this case.

It is my view that the losses suffered by the Complainant far exceed the maximum jurisdiction of the Act.

I further note his evidence that he is no longer entitled to use the title “Professor”; and his evidence in relation to the knock-on impact on his ability to source consultancy work as he is no longer attached to a State University, due to the dismissal, which has impacted, inter alia, his ability to mitigate his losses. The Complainant also submitted a long list of unsuccessful applications he had made for academic roles – his significant and ongoing attempts to mitigate his losses – starting within two (2) weeks of his job loss.

Under s. 7(3) of the Unfair Dismissals Act:

“financial loss”, in relation to the dismissal of an employee, includes 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 Act, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

In awarding compensation, I am obliged to award a “just and equitable” amount of compensation, in the full circumstances of the case, having had regard to a number of things including the reasonableness of the behaviour of the employer and any mitigation undertaken by the employee, to take account of any losses up to the date of the filing of the WRC complaint as well as future losses.

I find that the dismissal of the Complainant was both procedurally and substantively unfair. I find that his dismissal could not possibly fall within the “band of reasonableness” of potential disciplinary sanctions open to an employer in circumstances where the Respondent has freely conceded that there were no issues whatsoever with the Complainant’s performance or conduct, i.e. there was no basis for initiating a disciplinary process, and it in fact, did not initiate a disciplinary process, in those circumstances.

The Respondent is alleging in its submission that the Complainant has committed a fundamental breach of contract. However, prior to the email putatively dismissing him, there is no correspondence to the Complainant from the Respondent suggesting that he is breaching his contract and/or giving him an opportunity to remedy same. I fully accept the Complainant’s evidence that his dismissal came as a ‘bolt from the blue.’ I note his view that had he been put through a disciplinary process, he believes it would have found in his favour.

It is quite extraordinary, that on foot of an application to either reduce his teaching hours for the academic year 2022/2023 or to continue with a full workload but in a blended format – an application he was entitled to make, and to have it considered and processed, under the University’s own statutes/procedures, and an application he was encouraged to make by Professor Hennesey, that the next correspondence from the University was an email putatively dismissing him from his post. I note, and accept, the Complainant’s submission that he received no response to his proposal. That remained the case at the date of the hearing.

I also fully accept the Complainant’s evidence that it was always his intention to relocate, that he had held positions in six different countries and had always relocated, including to Ethiopia.

I further accept the submission of Counsel for the Complainant that the headship role does not form part of the Complainant’s contract; and I accept the Complainant’s evidence that that was discussed with him at interview “to colour in the picture for me”, i.e. to sweeten the offer being made in terms of the potential trajectories available to him, all going well in the role. For completeness, a Complainant cannot be dismissed from a role which he/she does not currently hold.

I find that the failure to provide an appeal is fatal to the Respondent’s approach, in and of itself; and is in clear breach of the minimum requirements as set out in S.I. 146/2000.  

The suggestion that the Complainant should have recognised the email of August 8th 2022, as a move in a game of brinkmanship, designed to elicit the desired response from him; and that the Complainant should have responded to being unexpectedly putatively fired by email, by ringing up either the Director of HR or Professor Kilkelly to say that he was moving to Cork and that everything would be all right going forward, is a nonsense on its face. It would be, if true, no way for an employer to treat an employee. As an approach by an employer – a University in receipt of public funds, no less - it would lack dignity, decency and reasonability. For clarity, I do not accept that it is true. I believe that the email was intended to dismiss the Complainant, and that he responded correctly and immediately by seeking to mitigate his losses, and by filing a WRC claim for unfair dismissal. I also accept the Complainant’s evidence that he was criticised by the University for the two actions he took in order to mitigate his losses, which he is legally required to do. I further note his evidence in relation to applying for unemployment insurance supports in the Netherlands.

The Respondent has sought to rely upon the catch-all provision of “other substantial grounds” in the Unfair Dismissals Act as the reason justifying the dismissal. It submits that the Complainant committed a fundamental breach of his contract, which it submits constitutes the “other substantial grounds.” The difficulty with that submission is that – even taking the Respondent’s case at its height - the Complainant would still have been entitled to the full benefit of a disciplinary process and the rights and protections afforded to him under it, none of which was provided to him. I find that the Respondent has advanced no ground upon which a finding against the Complainant would put dismissal within the “band of reasonableness” as a potential sanction, especially in the absence of any warning or any process. I am further satisfied that no dismissal can occur in the absence of a reason grounding the dismissal.

For completeness, I find that the emails sent by the Director of HR at the start of the Complainant’s employment do not form part of the terms and conditions of the Complainant’s employment. In particular, the duty of residence set out in the University statute does not require the Complainant to be resident in Cork, it merely requires that he live within a reasonable distance of the University.

I find for the Complainant.

I find that this complaint of unfair dismissal is well-founded.

I direct the Respondent to pay the Complainant €300,000.00 within 42 days of the date of this decision, which represents the maximum monetary jurisdiction under the Act, having deducted the amount of the mitigation the Complainant outlined.

Unfair Dismissal; Dismissed by a person with no authority to dismiss; Substantively unfair; No reason; No procedure; Procedurally unfair; No appeal; Compensation.