Complainant

Respondent

Parties

Damien  McLellan

Carlow College, St. Patrick’s

Representatives

Self-represented

Peninsula

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-00063164-001

26/04/2024

The complainant, Mr. McLellan, was employed as a Lecturer with the College from 1999 up to 30th June 2023. He submitted a constructive dismissal complaint to the WRC received on 26th April 2024. As the date of his employment ended on 30th June 2023, the WRC requested him to clarify the time limit as the complaint appeared to be out of time. The complainant clarified in subsequent correspondence that he was still involved with the College up to 24th November 2023.

The respondent representative submitted that the complaint was out of time as per section 8 (2) of the Unfair Dismissals Act 1977. I proceeded to hear evidence from both sides on jurisdiction.

Summary of Complainant’s Evidence (under affirmation)

Mr McLellan outlined his work history. He was part-time for 6 years, before he secured tenure of a half-term contract. He was approached in 2021 by the College on succession plans for the Social Care Course that he had developed and led. In December 2022, at a meeting with HR Manager and Programme Director, it was agreed that he would assist with the induction of a new lecturer prior to his contract ending on 30th June 2023. The position was then filled, although not with the successor he expected. This successor then went on leave so there was no course leader. The complainant continued to assist the College and students. Efforts were made to ensure the course had sufficient students. In September 2023, the College decided that the course would not proceed.

As the Course was not proceeding, his expectation of obtaining some part-time hours did not arise. He said he had already surrendered his contract on the basis that there would be a successor and the course would continue.

He put into evidence his continued communication with students and involvement with the Course after 30th June 2023 and specifically up to 24th November 2023.

Under cross-examination from the respondent representative, he was questioned on the agreed minutes of the meeting with the HR Manager and Programme Director in December 2022 on succession arrangements. He clarified that the work undertaken after 30th June 2023 was not paid work other than a lecture he delivered on 12th September 2023. He outlined that there was work to be carried out on behalf of the College and students and he was the only one positioned to do this. He confirmed that this was pro-bono work, and it needed to be done.

He was asked about the Fostering Course, and he confirmed that this ended in June 2023.

He clarified that the lecture delivered on 12th September 2023 was a standalone consultancy day on ‘The Professional Use of Self on Placement’. This was unrelated to his previous work on the Course.

He confirmed that his last pay slip was up to 30th June 2023 although he expected to be re-employed as necessary when the Course continued. He accepted that the course did not run once the decision was made by the College in September 2023. It was put to him that as the course did not go ahead, he could not have expected further work, and he never got another employment contract. He called Ms Sheehy Barry as a witness.

Summary of Ms Sheehy Barry Evidence (under affirmation)

Ms Sheehy Barry gave evidence of her study with the College and that she had applied to be the complainant’s successor on the Course. She was aware of the complainant’s involvement in the succession plan. Even though he was stepping down as leader of the Course, she expected he would still be involved in some capacity. 

There was some upset when a decision was made not to run the Course, although it was still expected that the Course could run the following year.

Up to the spring of 2024, it was still possible that the Course would continue although this did not happen.

Under cross-examination by the respondent representative, she confirmed that the complainant had resigned from his position. She confirmed that it was an expectation that further work would arise for the complainant but only if the Course continued.

Closing Submission of Complainant

Mr McLellan submitted that there was work to be carried out after June 2023. It needed to be done, and the College were aware that it needed to be done. He submitted that whether the work was paid or not was irrelevant, and this work should be recognised.

The respondent representative outlined that even though there was an expectation that the Course would continue, it did not. The complainant’s employment contract ended on 30th June 2023. It was acknowledged the complainant carried out his work in a professional way in clarifying student queries over email and assisting the College prior to graduation. It was submitted that this was all voluntary work, and he was not paid, nor did he seek payment. There was no employment relationship after 30th June 2023, other than the one day in September 2023 and he was paid separately as a guest lecturer for this.

I clarified for both parties that a decision on the jurisdiction issue was required in the first instance. If the decision was that I had jurisdiction, I would proceed to hear the substantive complaint of constructive dismissal. If the decision was that I had no jurisdiction, I would issue a decision to this effect.

Jurisdiction

Section 8(2) of the Unfair Dismissals Acts, 1977 states:

“(2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015) to the Director General—

(a) within the period of 6 months beginning on the date of the relevant dismissal, or

(b) within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause”.

Under (a) above, the complaint was received by the WRC on 26th April 2024. Therefore, the dismissal should have arisen from 27th October 2023 onwards. The date the formal employment ended was 30th June 2023. The complainant submits that he continued to be employed after 30th June 2023 up to 24th November 2023.

I have reviewed the testimony and documentation available from 30th June 2023 to 24th November 2023. It is apparent that the nature of the duties were queries from students ahead of graduation, promoting the Course, and seeking students to sign up so the Course could proceed. The complainant was in the best position to do this work, and he did so in a professional way. He confirmed during evidence that this was pro bono work. He did work one day and was paid although this was a standalone guest lecture not related to the Course and his previous contract.

According to the Act, “employee” means an individual who has entered into or works under (or, where the employment has ceased, worked under) a contract of employment and……..

It was established in evidence that the complainant was not working under a contract of employment after the 30th June 2023.

The date of the alleged constructive dismissal (30th June 2023) did not arise within the previous 6-months from when the complaint was received by the WRC. Therefore, the complaint was not made within 6-months of the alleged constructive dismissal.

Under (b) above, the complainant did not make representations that he was prevented from making the complaint due to reasonable cause. Therefore, there is no requirement to consider whether the period could be extended from 6-months to 12-months.

I decide that I have no jurisdiction to hear the complaint as per the Act.  

I decide that I have no jurisdiction to hear the complaint as it is out of time.  

Constructive dismissal, Jurisdiction