UDD2530

PARTIES:

DIVISION:

SUBJECT:

Appeal of Adjudication Officer Decision No's: ADJ-00036824 (CA-00048149-001)

BACKGROUND:

The Worker appealed the Decision of the Adjudication Officer to the Labour Court on 14 December 2023 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 9 April 2025.

The following is the Decision of the Court.

DECISION:

This is an appeal by Martin Corboy (‘the Complainant’) of a decision of an Adjudication Officer (ADJ-00036824, CA-00048149-001, dated 11 December 2023) under the Unfair Dismissals Act 1977 (‘the Act’).

The Adjudication Officer held that the Complainant’s complaint of unfair dismissal against his former employer, City Colleges Education Ltd (“the Respondent”), was well-founded. The Adjudication Officer directed the Respondent to pay the Complainant the sum of €1,060 in compensation.

The Complainant lodged an appeal of that decision to the Labour Court. A hearing of the appeal scheduled on 12 December 2024 was adjourned to allow the parties to lodge further submissions. The Court heard the appeal on 9 April 2025. The Court heard evidence from the Complainant and Phillip Burke, CEO of the Respondent company.

1. Background

The Complainant worked as a part-time lecturer delivering professional accountancy training courses for the Respondent. In March 2020, he was placed on lay-off when all classroom-based courses were suspended due to the global Covid 19 pandemic.

In September 2020, the Respondent outlined changes to the delivery of modules for the December 2020 sitting of exams, which would result in fewer lectures delivered. The Complainant sought a redundancy payment for the termination of his employment on foot of the proposed changes.

The Complainant lodged several complaints to the WRC on 9 October 2020. His claim for statutory redundancy payment under the Redundancy Payments Act 1967 was later rejected and the Adjudication Officer (in ADJ-00030495, dated 5 October 2021) held that the Complainant was an “employee” on “long term lay-off” due to the exceptional circumstances of the Covid 19 pandemic. Both parties appealed the decision made under the Redundancy Payments Act 1967 to the Labour Court. The Respondent withdrew its appeal in January 2022. The Labour Court dismissed the Complainant’s appeal, on the grounds that it was lodged outside the statutory time limits for lodging an appeal to the Court. 

On 13 January 2022 the Complainant resigned his position by letter citing constructive dismissal. The Respondent rejects that the Complainant was unfairly dismissed.

2. Summary of Complainant’s Position

The Respondent’s refusal to engage with the Complainant about his employment situation indicated that it was intent on denying any liability or responsibility in respect of his employment rights.

On 10 September 2020, the Respondent outlined a proposal to deliver significantly fewer modules for the December 2020 sitting of exams. The Complainant did not accept the major changes proposed to his conditions of employment, which would have reduced his earnings by approximately 83%. The Respondent accepted that the proposal was a major revision of his previous terms. He sought a redundancy settlement as he felt that his employment was terminated by reason of redundancy. The Respondent rejected that claim by email on 28 September 2020. 

The only further communication was an email from the CEO on 6 October 2020 telling him to address any correspondence to their legal adviser.

The Adjudication Officer held that the Complainant’s position was not redundant and that he was an employee on a “long term lay-off basis” due to the exceptional circumstances of the Covid 19 pandemic. The Respondent did not engage with the Complainant in any way after the WRC decision issued.

The Complainant sought the intervention of the WRC Enforcement Unit to enforce awards for unpaid holiday pay and the Respondent’s failure to provide a contract of employment.

Having heard nothing further from the Respondent, the Complainant resigned his position on 13 January 2022 due to the Respondent’s failure to provide him with employment in line with his previous terms of employment. There was no legal impediment to claiming constructive dismissal, whilst an appeal to the Labour Court was still pending.

The Complainant had no option but to resign given the factual situation; he was an employee with no work and no pay. The Complainant was not provided with a contract of employment, nor given access to an employee handbook or grievance procedure. He was not assigned a company email address, and all correspondence went to and from his personal email address.

The Respondent’s proposed reduction of 83% of his previous earnings amount to a repudiation of his contract. He received no communication whatsoever from the Respondent. The Respondent was aware since 14 September 2020, that the Complainant would not accept the “significant and unilateral” changes to his terms of employment.  The Complainant disputes that an implied term of his contract of employment was that lecturing hours were always contingent on the number of modules being offered. His earnings were consistent from year to year, around €36,000.

3. Summary Position of the Respondent

The Complainant was laid-off arising from the consequences brought about by the Covid-19 pandemic. He was provided with a letter to ensure that he could avail of the Pandemic Unemployment Payment, a payment which he availed of until the end of May 2021.

On 10 September 2020, the Respondent emailed the Complainant to outline a New Working Proposal. The Complainant had taught 3 modules at a rate of €100 per hour. Under the New Working Proposal, he was offered one module at a rate of €50 per hour, involving a total of 55 teaching hours.

The Respondent accepts that the proposal entailed a significant and unilateral change to the Complainant’s previous contract terms.  The proposal was entirely predicated on the impact of the Covid-19 pandemic, as the College could not offer the Accountancy course in its former guise anymore.

When the Complainant sought a redundancy payment, the Respondent replied to say that there was no redundancy situation in being and that it was hoped that there would be more work for the Complainant in the future. Rather than engage with the Respondent in any meaningful way regarding possible working arrangements, the Complainant referred the matter to the WRC on 9 October 2020.

During this time, the Respondent was of the view that the Complainant was an independent contractor, not an employee, and argued that position at the WRC hearing. Notwithstanding that fact, the Respondent accepts the decision of the Adjudication Officer in the First WRC Case (ADJ-00030495, dated 5 October 2021), that a contract of employment existed between the Respondent and the Complainant. 

The Respondent did not contact the Complainant to discuss a return to work thereafter, as the Complainant had issued an appeal of the first WRC decision. It was not unreasonable of the Respondent not to discuss a return to work with the Complainant as he had a live claim for a redundancy payment against the Respondent.

Furthermore, the Complainant had indicated that his intention was to return to teaching in secondary school on a full-time basis and had sought a character reference to realise that intention.

The Complainant submitted a letter of resignation on 13 January 2022. The claim of constructive dismissal should be dismissed as vexatious and an abuse of process. The Complainant formed the impression in September 2020 that his employment had ended. It was incumbent on him at that point to elect between pursuing a redundancy payment (on the basis that he was made redundant) or pursue a constructive dismissal claim (on the basis that he had been constructively dismissed).

The Complainant’s appeal of the First WRC Case was not yet determined when he lodged the within claim of constructive dismissal with the WRC on 14 January 2022. The Complainant is not permitted to use the WRC to agitate two different claims, arising out of the same facts, describing two different dates of dismissal (a) that he was dismissed by way of redundancy in September 2020 and (b) that his resignation on 13 January 2022 constituted a constructive dismissal.

Notwithstanding the above, the Respondent rejects the claim that the Complaint was constructively dismissed. The changes proposed to his lecturing hours were significant, but no repudiatory breach of the Complainant’s contract took place such as to ground a claim for constructive dismissal based on the “contract test”.  While there was no written contract in being between the parties, it was an implied term of the Complainant’s contract of employment that his lecturing hours were always contingent on the number of modules being offered by the Respondent. If this were not the case, an absurd situation would exist whereby the Complainant could pursue a claim for a breach of contract against the Respondent for the very ordinary scenario of a particular module being dropped in each semester.

The Respondent’s conduct was not unreasonable considering the situation it faced following the Covid-19 pandemic. The Complainant’s conduct was unreasonable. He made no attempt to engage the Respondent’s grievance procedure, which was issued to all members of staff on its payroll system in 2019.

4. Testimony of the Complainant

The Complainant’s request for a redundancy settlement was refused after he rejected the new contract terms proposed in September 2020. The Complainant wrote to the Respondent on 23 September 2020 as he understood that his employment was terminated at that time on foot of a redundancy situation.

The only communication subsequently received was an e-mail from the CEO on 6 October 2020 telling him not to communicate with him any further and to address any further correspondence to their legal advisor. He was placed in an intolerable position, as at that point he was an employee with no hours of work and no pay. He had no contract of employment.

The Complainant felt it was inappropriate to meet Mr. Burke when he suggested they meet for a coffee in January 2022, as the redundancy appeal was still pending. Mr. Burke replied to say “Best of luck with that, we will reinstate our appeal so” or words to that effect. When the Complainant wrote to suggest a settlement proposal, the Respondent did not revert with any proposals. Any delay in concluding matters was not due to any inaction on the part of the Complainant.

Under cross examination, the Complainant accepted that he wrote a letter to the Respondent dated 1 October 2020 in which he stated that the issues he raised were best determined by the experts. In his view, the WRC was best placed to advise whether he had been made redundant or not. He did not think his approach was unreasonable in circumstances where Mr Burke informed him to communicate only through the Respondent solicitors. He thought the Respondent was being totally unreasonable.

He was aware that he could have pursued a complaint of unfair dismissal in 2020. He did not go down that route and pursued a redundancy claim instead. He was wrong about that matter. He submitted his complaint of unfair dismissal when the Adjudication Officer found that he was an employee on a contract of employment and that he continued to be employed by the Respondent.

The Complainant did not have a contract of employment and was denied employee status. He was not aware of the grievance procedure and never saw a copy of the handbook. He never received an e-mail advising how to access the Internet site as he did not have an e-mail address with the Respondent. He had no way of knowing how the employee handbook was available. The Complainant was aware of the Brightpay system through which he accessed his pay slip. He never accessed that system for any other matter.

The Complainant resigned his position by letter dated 13 of January 2022. In the letter he said it is impossible to remain as an employee based on the terms and conditions outlined in September 2020. He had not worked with the college since 10 March 2020. Given the Respondent’s failure to formally make him redundant, he was left with no option other than resign based on constructive dismissal.

5. Testimony of Mr Burke. CEO

Everyone, including those on contracts for service, were laid off when the COVID crisis hit in March 2020. The College moved some courses online. Later, a decision was made to keep the accountancy lecturers together but reduce their hours of work. As the lecturers no longer had to commute to work, the hope was that they would accept a significant reduction in pay as a quid pro quo.

The new terms proposed in September 2020 were not acceptable to the Complainant. He had every right to reject the offer. When the Complainant subsequently sought a reference for a secondary school position, they presumed he was going down that route.

No employee, other than the Complainant, claimed statutory redundancy. No other employees resigned.

When the Complainant indicated his intention to go to the WRC and to sue the company, he told him to communicate via the company solicitor, given his past experiences; it was not a sign that the Respondent was pulling down the shutters.

All employees are issued with a company e-mail address; however, not all employees use them. It was possible that the Complainant did not have an internal e-mail address, but communications were sent to everyone, including those using private addresses.

The Complainant had access to the company handbook via the Respondent’s BrightPay system, which does not differentiate between employees and independent contractors. It was impossible not to see the handbook when you logged onto BrightPay. Records show the Complainant accessing the system on specific dates but not what documents he accessed.

Mr Burke said he was unclear about the Complainant's employment status for his redundancy claim. His view changed over time.

6. Relevant Law

Section 1(b) of the Act defines a constructive dismissal for the purposes of the Act as follows: -

“(b) the termination by the employee of his contract of employment with his employer, whether prior notice of the termination was or was not given to the employer, in circumstances in which, because of the conduct of the employer, the employee was or would have been entitled, or it was or would have been reasonable for the employee, to terminate the contract of employment without giving prior notice of the termination to the employer”.

Section 6(1) of the Act states:

“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”

7. Deliberations – Preliminary Matter

The Respondent raises preliminary objections to the Court’s jurisdiction to hear the appeal.

It contends that the Complainant is seeking “a second bite of a different cherry” in the within proceedings, in circumstances where he is dissatisfied with the outcome of a previous complaint brought under the Redundancy Payments Acts, 1967. It submits that the complaint of constructive dismissal is time barred, an abuse of process and vexatious.

The Respondent submits that the complaint is out of time as, by the Complainant’s his own construction, his employment ended in September 2020 at which point he faced a fork in road. It contends that the Complainant cannot return to the fork in the road to pursue a claim, after the fact, having failed in his redundancy claim and that he cannot be permitted to agitate two different claims, arising out of the same facts, describing two different dates of dismissal.

The unfair dismissal complaint was lodged with the WRC on 14 January 2022. Accordingly, the relevant period for the Court to consider that complaint, having regard to the time limits at s.8(2)(a) of the 1977 Act,is the six-month period prior to that date, i.e. 15 July 2021 to 14 January 2022.

In contending that the employment relationship ended in September 2020, the Respondent relies on Cladagh Ring Ltd v Amjadi UDD 2223 where the Labour Court determined that it was reasonable for an employee to understand that his employment was terminated when he was issued with a notice of layoff on foot of the Covid pandemic. The Court concluded that the employer in Claddagh, intended to dismiss the employee on the date that he was placed on lay-off, on the balance of probabilities.

The Respondent further relies on Stokes v Christian Brothers High School & Ors [2015] 2 IR 509 to assert that the Court does not have jurisdiction to extend the time limits for considering a contravention of the Act beyond the statutory 12-month limitation period in circumstances where no application was made by the Complainant to extend the six-month timeframe for assessing a contravention of the 1977 Act.

For his part, the Complainant accepts that he could have pursued an unfair dismissal complaint in 2020, but instead opted to pursue a claim for statutory redundancy. He submits that there was no legal impediment to pursuing a complaint for constructive dismissal in circumstances where an Adjudication Officer decided (ADJ-00030495, dated 5 October 2021) that he remained an employee on a “long term lay-off basis” due to the exceptional circumstances of the Covid 19 pandemic and that he was not entitled to statutory redundancy payments.

The Court did not find the authorities cited by the Respondent helpful to its considerations in this case, as in the within appeal, there is no submission that the Respondent intended to terminate the Complainant’s employment in September 2020. In fact, the evidence of Mr Burke was that he was unclear about the Complainant's employment status when the Complainant sought a statutory redundancy payment, and that his view changed over time. 

The Court heard that on 29 July 2021, at the WRC hearing into the redundancy complaint, the Respondent maintained the position that the Complainant was an independent contractor. The Adjudication Officer decided (ADJ-00030495, dated 5 October 2021) that the Complainant was not an independent contractor and was an “employee” on “long term lay-off”. Both parties lodged an appeal of that decision to the Labour Court. However, on 5 January 2022 the Respondent withdrew that appeal and accepted the finding that a contract of employment existed between the parties for the purpose of the 1967 Act.

While the Respondent contends that the Complainant’s letter of resignation on 13 January 2022 was a procedural ploy to re-engage the timeline limitation, the Court fails to see how the complaint is out of time when, by Mr Burke’s own evidence, he belatedly accepted that the Complainant’s status was an employee on long term lay-off, when in January 2022 it withdrew the appeal of the Adjudication Officer decision (ADJ-00030495). At that point, the Respondent clearly accepted that the Complainant was an employee and not an independent contractor.

Accordingly, the Court finds that there is no legal impediment - having regard to the statutory time limits for making a complaint under the 1977 Act - to the Complainant resigning his position on 13 January 2022 and lodging a complaint to the WRC on 14 January 2022 of constructive dismissal.

On 17 January 2022, the Complainant lodged an appeal of Adjudication Officer decision (ADJ-00030495). The Respondent contends that the constructive dismissal complaint is an abuse of process asthe Complainant clearly maintained the view that his employment ended in September 2020, as evidenced by that fact that he lodged an appeal of the first WRC decision. That appeal was heard 20 April 2022 and dismissed by the Labour Court (RPD226, dated 22 April 2022) on the ground that no exceptional circumstances existed to prevent the appeal being lodged within time.

The Court finds that there is no legal impediment to the pursuing a complaint for constructive dismissal, whilst an appeal to the Labour Court under the Redundancy Payments Acts, 1967, was still pending. The Court has no basis or jurisdiction for dismissing the complaint as an abuse of process.

8. Deliberations - Substantive Matter

To succeed in a claim of constructive dismissal, the Complainant must show that his decision to resign resulted from either a repudiatory breach of his contract of employment (the “contract test”), or such unreasonable behaviour by the Respondent that he was justified in believing that he could not continue any longer in that employment (the “reasonableness test”). Furthermore, the Complainant is required to allow an employer an opportunity to rectify any workplace problems before resigning.

The question for the Court to assess is whether the Complainant was entitled to terminate his employment on 13 January 2022 because of the actions of the Respondent in this case.

The Complainant resigned his position by letter dated 13 January 2022 citing constructive dismissal. The letter of resignation addressed to the CEO, Philip Burke, stated as follows:

“It is impossible for me to remain as an employee with City Colleges, based on the terms and conditions outlined in your email to me dated 10th September 2020.

As I have no work with the college since 10th March 2020 and given the failure of City Colleges to formally make me redundant, I feel that I am left with no option other than to resign. I consider this to be a case of constructive dismissal”.

The Complainant asserts that he resigned his employment because of a repudiatory breach of his contract of employment by the Respondent. The test by which a repudiatory breach of contract can be identified was set out by Lord Denning MR in Western Excavating (ECC) Ltd v Sharp25 as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of thecontract, then the employee is entitled to treat himself discharged from any further performance”

Having considered the evidence and documentation adduced in this case, the Court finds that the Complainant was entitled to consider himself constructively dismissed for the following reasons:-

Notwithstanding the fact that the Respondent originally held the view that the Complainant was an independent contractor, the Respondent subsequently accepted that he was employed under a contract of employment. While there was no written contract of employment in being between the parties, it is accepted that the Complainant was paid an hourly rate of €100 per hour.

In September 2020, when the Complainant was laid off from his employment, the Respondent proposed to alter the Complainant’s terms and conditions by reducing the number of lectures he would deliver and his hourly rate of pay from €100 per hour to €50 per hour. The Complainant expressly rejected the Respondent’s proposed changes to his terms and conditions of employment. The Respondent does not contest the fact that the proposal entailed a significant reduction of the hours formerly worked by the Complainant prior to the pandemic.

The Respondent submits that no repudiatory breach of the contract took place, as it was an implied term of the contract that the Complainant’s lecturing hours were contingent on the number of modules on offer by the college and that, in light of the situation it faced following the Covid-19 pandemic, it was forced to change the way if offered educational courses.

While the Court acknowledges that employers and employees faced momentous challenges arising from the impact of the Covid pandemic on Irish society, the fact remains that the Respondent in this case no longer intended to be bound by the core terms of the contract of employment between the parties as they related to the Complainant’s remuneration for hours worked. Where an employer repudiates an essential term which goes to the root of the contract of employment, an employee is entitled to accept the repudiation and consider him or herself dismissed.

Having regard to the facts of this case, the Court finds that the Respondent’s actions in reducing the Complainant’s rate of pay amounted to a repudiation of the contract of employment between the parties and the Complainant was entitled to treat himself as discharged from any further performance of the contract.

For completeness, the Court finds that the Complainant also met the second ‘reasonableness’ limb of the test for constructive dismissal.

While the Respondent contends that the Complainant failed to invoke a grievance in relation to his complaint, the Court accepts the Complainant’s position that he was never issued with a contract of employment or provided with access to a grievance procedure.

It is accepted that after the Complainant rejected the Respondent’s proposed changes to his terms and conditions of employment, he wrote to the CEO, by letter dated 10 October 2020, stating that he was “unclear” about several matters proposed, including if his position was redundant or not. He stated that he would refer that matter to the WRC who was best placed to determine the issue. While the Respondent contends that by lodging a complaint to WRC case in October 2020, the Complainant failed to engage with the Respondent in any meaningful way, the Court finds that the larger failure in communications rests with the Respondent in this case. Matters raised by the Complainant in his letter of 10 October 2020 were never addressed by the Respondent. Instead, Mr Burke instructed the Complainant to send any further correspondence to the college’s firm of solicitors.

The Respondent made no further contact with the Complainant. He was never offered any work when the layoff period arising from the Covid 19 pandemic ceased. The Court does not find that the Respondent’s explanation that it did not engage with the Complainant to discuss a return to work while the appeal of the redundancy claim was in progress, was a reasonable one in circumstances where it’s position was that no redundancy situation arose and where it accepted (albeit at a later point) that the Complainant’s employment status during this period was an employee on lay-off.

The Respondent changed its view and accepted that the Complainant continued to be engaged in a contract of employment. The Respondent made no efforts to contact the Complainant when the period of lay-off arising from the Covid pandemic ended, or when he changed its view about the Complainant’s employment status. Having regards to the facts presented, the Court finds that the Complainant was justified in believing that he could no longer continue in that employment.

Having regard to the facts as presented, the Court finds that the Complainant was entitled to resign his employment. The Court finds the complaint of unfair dismissal is well founded

9. Redress

In determining an appropriate level of compensation, the Court is obliged to have regard to the terms of s.7 of the Unfair Dismissals Act. Section 7(1)(c) of the Act sets out the limit in respect of any award of compensation as follows:

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

The Court heard undisputed evidence that the Complainant worked on average 36 weeks per year with the Respondent and that his average salary was €32,978. The maximum award payable is €65,956. 

The Complainant registered with the Teachers Council of Ireland. Having resigned his position on 13 January 2022, the Complainant was employed as a substitute teacher. His earnings from substitute teaching amounted €27,397 in 2022 and €3,143 in 2023.

A Complainant is required to establish that he made every effort to mitigate losses arising from his dismissal. The Act at section 7 requires the Court, when measuring the amount of compensation which is just and equitable having regard to all of the circumstances, to have regard to the measures made by the Complainant to mitigate his losses. The Complainant in this case failed to provide any evidence of other efforts to mitigate his losses in 2023.

An award of compensation must be in an amount that is ‘just and equitable in all the circumstances”. These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal.  Weighing all of these factors and having regard to all of the circumstances of this case, the Court determines that the appropriate amount of compensation for the Complainant’s ongoing losses to be €18,000 as just and equitable.

10. Decision

For the reasons set out above, the Court finds the complaint is well founded.

The Court directs the Respondent to pay the Complainant redress the sum of €18,000 as compensation for the unfair dismissal.

The decision of the Adjudication Officer is varied, accordingly.

The Court so decides.

	Signed on behalf of the Labour Court
	Katie Connolly
FC	______________________
28 AUGUST 2025	Deputy Chairman

NOTE

Enquiries concerning this Decision should be addressed to Ms Fiona Corcoran, Court Secretary.