RPD247

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00039208 (CA-00049953-001)

BACKGROUND:

The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 23 January 2024 in accordance with the Redundancy Payments Acts 1967 to 2014. A Labour Court hearing took place on 1 May 2024. The following is the Decision of the Court:

DECISION:

This is an appeal on behalf of Ballymun Regional Youth Resource (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00039208/CA-00049953-001, dated 13 December 2023 under the Redundancy Payments Act 1967 (‘the Act’). The Adjudication Officer held that Ms Catherine Duncan’s (‘the Complainant’) employment with the Respondent had terminated by reason of redundancy on 21 December 2021 and that she was, accordingly, entitled to a lump sum payment under the Act. Notice of Appeal was received in the Court on 23 January 2024. The Court heard the appeal in Dublin on 1 May 2024. Sworn evidence was given by the Complainant herself. Ms Angie Birch and Ms Katy McAndrew were called as witnesses for the Complainant. The Respondent did not call any witness.

The Factual Matrix

The Complainant was employed by the Respondent as a youth outreach worker between 13 November 2003 and 21 December 2021, on which date she resigned her employment. Her monthly gross salary as of the date of termination was €4,044.58. The Complainant’s position with the Respondent was funded at all material times by the City of Dublin Youth Training Board.

The Complainant worked as a member of an outreach team comprised – at the material time – of six staff. The team leader was Ms Anjie Birch. Ms Birch’s position was also funded by the City of Dublin Youth Training Board (‘CDYTB’). Funding for the positions of the four other team members was sourced from the HSE. It is common case that between mid-May and late November 2021 the issue of whether the outreach team should be retained within the Respondent organisation or located elsewhere, either as a standalone service or within another larger organisation, was actively under consideration by the Respondent’s management and its board.

It appears that the HSE was strongly in favour of a refocusing of the work being undertaking by the outreach team and a transfer of the team to an alternative organisation by means of a transfer of undertaking. The following is an extract from a letter dated 30 September 2021 from Mr Hugh Greaves of the HSE to Ms Comerford setting out the views of the HSE in this regard:

“Therefore, we are recommending that the Outreach/Easy Street Team (including the Youth Drugs Support Worker) should be re-organised as a stand-alone team. This team would work out of its own premises and the staff would be employed by a separate employer (following a Transfer of Undertaking agreement with BRYR and the staff involved). HSE has committed to providing the resources for the premises required and continuing its support of the four staff identified as Ballymun DATF funded (including Youth Drugs Worker which, up to this year, funding has been channelled for through the CDYSB).

…..

To sum up, what we are recommending to the BRYR Board of Management is:

• The four Team members currently funded through the DATF budget (3 outreach team and youth-drugs support worker) be reassigned through a Transfer of Undertaking agreement to a new specialised team with a new employer.
• The two remaining Team members (including the Team Leader) who are employed through mainstream CDYSB UBU funding are transferred or seconded to the Team also for an initial pilot period of one year which would be renewable for a further three years, following a review by all stakeholders. UBU objectives can be maintained by these Team members in the context of the high needs groups targeted.
• The new Team would continue to link in and support the work of BRYR and have access to BRYR resources (such as room/hall facilities, mini-buses, sports/arts equipment, etc).
• BRYR continues to participate as a valued member of our structures and in particular, the Ballymun Network.

…….”

There appears to have been a degree of vacillation on the part of the Respondent as to whether a decision to move the outreach team to another organisation would give rise to a transfer of undertakings within the meaning of the EC (Protection of Employees on Transfer of Undertakings) Regulations 2003. Ultimately, the Respondent took the view that such a transfer of undertaking would not occur and proceeded to give notice of dismissal to the four members of the team whose positions were funded by the HSE by letter dated 26 November 2021, the dismissals to take effect on 31 December 2021. The four team members who had received letters of dismissal, along with Ms Birch and the Complainant, were contacted by Ms Katy McAndrew, the Manager of the Star Project in Ballymun, in or around mid-December and offered employment with Star commencing 1 January 2022. They were advised by Ms McAndrew that their employment with Star would be on a Day 1 basis and there would not be regarded as giving rise to a transfer of undertakings. All six members of the former outreach team, including the Complainant, commenced employment on that basis with Star and at the salary that he been in receipt of from the Respondent.

It appears that the Respondent changed its position yet again by March 2022 and advised by email dated 11 March 2022 to the SIPTU official who had been supporting the Complainant and her colleagues that the Respondent had now accepted that a transfer of undertakings within the meaning of the Regulations had occurred on 1 January 2022. The position of Star appears not to have altered, however. This was confirmed by Ms McAndrew to the Court.

The Complainant’s Letter of Resignation

It is appropriate to quote at some length from the Complainant’s letter of resignation, dated 21 December 2021, at this point in the submission in anticipation of the Court’s consideration of the legal submission made by Counsel on her behalf. The Complainant wrote, inter alia:

“Having served BRYR [the Respondent] faithfully for over 18 years as an Outreach worker, I feel I have been left with little choice and it is with a heavy heart that I must write this letter of resignation. It has unfortunately been made painfully clear by senior staff that while the work of myself and the Outreach team has been exemplary and widely recognised throughout the community, the organisation has decided that our model of work no longer fits the ethos or the direction they wish to take in the future. While no satisfactory explanation has been offered or made to me detailing why this might be, I have to accept the position of management, which was all the more necessary by the unceremonious manner in which the other members of my team were dismissed.

……

While I have waited for a promised further meeting with members of the board, to discuss matters and to address the duty of care of the organisation, it failed to materialise and the rest of my team who had also been invited to attend were let go, thus extinguishing any hope that the model of work I was employed to carry out would continue, I therefore have little choice but to resign my position an Outreach youth worker with BRYR.

Sincerely,

Catherine Duncan”

Ms Birch’s Evidence

The witness first outlined the history of her employment with the Respondent, including her work as an outreach worker, commencing in 2000. She gave a detailed description of the Respondent’s mission, its activities in the community and the resources available to it. Her evidence then moved to her interaction as Team Leader with the Respondent’s management from May 2021 onwards in relation to the future of the outreach team. The witness said that Ms Geraldine Comerford, her line manager, had first suggested in May 2021 that the team may be better placed elsewhere other than in the Respondent’s organisation and that such a move would give the team an opportunity to rebrand itself and find new ways of fulfilling its work. The witness referred to a second meeting which she attended in July 2021 with a number of members of management at which the new UBU framework adopted by the Respondent was discussed and the possibility of the outreach team moving out of the Respondent’s premises was again raised. In the alternative, she said, it was suggested that they could be seconded to another organisation. The witness described this meeting as having been ‘very mixed up’ but nevertheless, she said, following the meeting she believed that the team would be transferred elsewhere, the members’ terms and conditions of employment would be preserved and good relations could be maintained between the team and the Respondent.

The witness told the Court that she met again with Ms Comerford on 4 October 2021 and that Ms Comerford expressed her annoyance at that meeting in response to the HSE’s request that the funding for the outreach team members would be transferred from the Respondent elsewhere (as outlined in Mr Greaves’ letter of 30 September 2021, and quoted from above). The witness said that Ms Comerford raised a number of questions about the HSE proposal which she (the witness) had no answers for.

The witness said she had a one-to-one meeting with Ms Fiona Gallagher, the chair of the Respondent’s board, on 26 October 2021 during which she was asked whether she would be happy to transfer to a new employer. Her evidence is that she replied that she would be happy to do so and that her understanding on leaving the meeting was that there would be a further meeting with a sub-group of the Board to facilitate a transfer of the outreach team to a new (as yet unidentified) employer.

The next event that the witness’s evidence turned to was a meeting that took place between the witness and Ms Comerford in the latter’s office on 26 November 2021 during the course of which the witness was handed a letter of dismissal for each of the HSE-funded members of her team and was told that there would be no transfer of undertakings and no secondment. The witness told the Court that Ms Comerford advised her that both she and Ms Duncan would have to resign their employment with the Respondent if they wished to remain part of the outreach team. The witness spoke individually with the members of her team over the weekend, she said, but did not pass their dismissal letters to them but, on the advice of her trade union representative, returned the letters to Ms Comerford.

The witness’s evidence is that she subsequently – on 16 December 2021 – received a call from Ms Katy McAndrew, manager of Star, to advise that Star would take on the outreach team with effect from 1 January 2022. The witness then gave a detailed account of the nature of the work undertaken by Star. She placed some emphasis on how that work differs from the work that had been undertaken by the outreach team while part of the Respondent’s organisation.

Evidence of Katy McAndrews

The witness said that she is the manager of Star which offers a drug rehabilitation service in the Ballymun area. She confirmed to the Court that the Complainant (along with her five colleagues) had commenced employment with Star on 1 January 2022 on a Day 1 basis although Star had been open to acquiring them under a transfer of undertaking but had been advised that an agreement between the Respondent, the employees and Star was a prerequisite to there being a transfer of undertaking . According to the witness, the first contact she had with the Complainant and her colleagues regarding their future employment with Star took place on 16 December 2021 when she telephoned each of them, commencing with Ms Birch. The witness told the Court that one member of the outreach team, Mr Davis (who also initiated a claim under the Act, the subject of a separate appeal before the Court), was a member of Star’s board of directors but had been asked to step out whenever the issue of the potential employment of the then BRYR outreach team came up for discussion. The witness said that she met each of the team members following the commencement of their employment with Star, over the course of January and February 2022, to discuss their contract of employment and the employee handbook.

The witness gave evidence in relation to the differences in the work currently undertaken by the Complainant and her colleagues compared to work they had been doing. She said that Star takes a ‘health-led approach’ whereas the approach of the Respondent is ‘youth-based’. Also, it is now the case that all six members of the team are involved in drug rehabilitation work whereas when employed by the Respondent only one member of the team was focused on that type of work. Finally, the witness confirmed that all six members of the group are now funded by the HSE.

The Complainant’s Evidence

The Complainant told the Court that she had commenced her employment with the Respondent in November 2003 and that her position has been funded at all times by CDYSB. Counsel then asked her about her recollection of the meeting that took place on 17 May 2021. The Complainant’s evidence was that the meeting was with Ms Comerford and that it took place off-site and that Ms Comerford informed the team at that meeting that it no longer was a good fit with the Respondent’s ethos.

The evidence then moved to the events of autumn 2021. The Complainant told the Court that she had a meeting with the Chair of the Respondent’s board on 26 October 2021 during which they discussed the possibility of the Complainant’s secondment. The Complainant spoke briefly of her reaction to hearing that four of her colleagues in the outreach team had received notice of dismissal on 26 November 2021 and her subsequent decision to resign her employment with the Respondent on 21 December 2021. The Complainant’s evidence was that she first learned of Star becoming her employer on 16 December 2021 when she received a phone call from Ms McAndrew telling her that Star was willing to employ her with effect from 1 January 2022.

In cross-examination it was put to the Complainant that the funding from CDYSB for her position whilst employed by the Respondent did not follow her to Star. She replied that she had been unaware of that. Counsel for the Respondent also put it to her that the Respondent had advertised a youth worker position in 2022. The Complainant agreed with Counsel that the job description in the advertisement substantially reflected the role she had fulfilled when employed by the Respondent.

Submission on behalf of the Complainant

Counsel submits that the termination of the Complainant’s employment – albeit as a consequence of her resignation on 21 December 2021 – constitutes a dismissal by reason of redundancy within the meaning of the Act. Counsel’s submission relies principally on section 9(1)(c) of the Act.

Counsel told the Court that it had heard uncontroverted evidence from the Complainant that the team of which she had been a member was disbanded on 26 November 2021 and that she herself had been told by management that if she wished to continue to work with the team she could resign. Counsel also urged the Court to consider the dismissal of the Complainant’s colleagues through the prism of what had been taking place in the Respondent's organisation from mid-May 2021 onwards whereby the Complainant (and her colleagues) had been given assurances that their employment would be transferred to another (unnamed) organisation and that there would be future meetings with management to clarify the details of the proposed transfer but no such meetings took place. Counsel referred the Court to the determination of the Employment Appeals Tribunal in McCann v Vantage Wholesale Ltd (RP 253/2001) in which the Tribunal applied section 9(1)(c) in favour of the applicant employee, finding that he was entitled to resign his employment in response to his former employer’s conduct towards him and confirming his entitlement to a statutory lump sum redundancy payment.

The Respondent’s Submission

Counsel for the Respondent submits that as a matter of law the circumstances applicable to the Complainant and her decision to resign her employment with the Respondent some five days after receiving an offer of employment with Star do not constitute a redundancy situation within the meaning of the Act.

Discussion and Decision

As stated earlier, Counsel for the Complainant has predicated her entitlement to a redundancy payment on section 9(1)(c) of the Act. That section provides as follows:

“(1) For the purposes of this Part an employee shall, subject to this Part, be taken to be dismissed by his employer if but only if—

(a) …..

(b) ……

(c) the employee terminates the contract under which he is employed by the employer in circumstances (not falling within subsection (5)) such that he is entitled so to terminate it by reason of the employer's conduct.”

The provision just quoted bears some similarities with that part of the definition of ‘dismissal’ found in the Unfair Dismissals Act 1977 colloquially referred to as constructive (unfair) dismissal. However, as observed by Anthony Kerr SC in his commentary on it, section 9(1)(c) of the Act “is not as extensive as the equivalent definition in the Unfair Dismissals Act 1977, in that it only applies where the employee is ‘entitled’ to terminate the contact”. In short, the provision under consideration requires that there has been a serious breach of the employee’s contract by the employer which entitles the employee to regard the contract as having been repudiated. Mere unreasonableness on the part of the employee will not be sufficient to ground a ‘constructive dismissal’ for the purposes of section 9(1)(c) of the Act.

The Court finds that the Respondent generally conducted itself in a most unreasonable manner from mid-May 2021 onwards vis-à-vis the outreach team of which the Complainant was a member. However, there was no evidence before it on which the Court can make a finding that the Respondent breached the Complainant’s contract of employment such that she would be entitled to rely on section 9(1)(c) of the Act and regard her contract as having been repudiated. The Complainant – in contrast to her four HSE-funded colleagues in the team – was not served with notice of dismissal by the Respondent on 26 November 2021 (or any other date). She chose to resign her employment on 21 December 2021 having received and accepted an offer of employment from an alternative employer. The reason she gave in her resignation letter for her decision was that, in her view, the Respondent’s conduct from mid-May 2021 onwards had extinguished “any hope that the model of work [she] was employed to carry out would continue”. There is no contractual entitlement to insist that one’s employer maintains the same ‘model of work’ in perpetuity. It is clear from Mr Greaves’s letter of 30 September 2021 that the HSE, the principal funder of the outreach team’s work, was strongly recommending far-reaching changes in the team’s focus and objectives. This is what ultimately led to a parting of the ways between the Respondent and the four HSE-funded members of the outreach team. In the Court’s view, having considered in some detail the Complainant’s own evidence, the Complainant wanted to remain part of that team – notwithstanding that it would be working with a new organisation that had a different focus to that of the Respondent – and she freely chose to accept the offer of employment she received from Star and subsequently freely resigned her employment with the Respondent. The Court finds that the facts do not support the contention that the Complainant was made redundant (constructively or otherwise) by the Respondent.

The appeal, therefore, succeeds and the decision of the Adjudication Officer is set aside.

The Court so decides.

	Signed on behalf of the Labour Court
	Alan Haugh
CC	______________________
09 May 2024	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ceola Cronin, Court Secretary.