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UDD2030

FULL RECOMMENDATION


UD/20/28
ADJ-00022427 CA-00029070-002
DETERMINATION NO. UDD2030

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015


PARTIES :
TRINITY COLLEGE DUBLIN
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)

- AND -

MR IFTIKHAR AHMAD
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)


DIVISION :

Chairman: Ms Jenkinson
Employer Member: Ms Connolly
Worker Member: Mr Bell

SUBJECT:

1. Appeal of Adjudication Officer Decision No: ADJ-00022427 CA-00029070-002

BACKGROUND:

2. The Employer appealed the Decision of the Adjudication Officer to the Labour Court on 17 January 2020 in accordance with Section 8(A) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 20 October, 2020. The following is the Determination of the Court:-



DETERMINATION :

This is an appeal by Trinity College Dublin against the decision of an Adjudication Officer ADJ-00022427, CA-00029070-002 under the Unfair Dismissals Acts 1977 – 2015 (the Acts) in a claim of unfair dismissal by Mr. Iftikhar Ahmad against his former employer.

For ease of reference the parties are given the same designation as they had at first instance. Hence Mr. Iftikhar Ahmad will be referred to as “the Complainant” and Trinity College Dublin will be referred to as “the Respondent”.

The Complainant was employed as a Research Fellow/Post Doc Researcher from 18th October 2013 until 31st December 2018 when his employment was terminated by reason of redundancy. He referred his complaint under the Acts to the Workplace Relations Commission on 14th June 2019.

The Adjudication Officer heard the case on 17th October 2019 and issued his Decision on 18th December 2019. He found in favour of the Complainant’s claim and held that the Complainant should be re-engaged by the Respondent (on return of the redundancy payment) in an alternative role without loss of his prior service, within one week of the date of his Decision. The Respondent appealed the Decision on 17th January 2020.

Background

The Complainant commenced employment as a Research Assistant on a fixed-term contract in 2013. The position was wholly externally funded. Thereafter he received successive fixed-term contracts as a Research Fellow, on specified purpose contracts which were funded from external sources. As the funding for the project ceased, the Complainant was made redundant on 31st December 2018 and was paid a statutory redundancy payment of €6,564.

Summary of the Respondent’s Position

Mr Peter Flood, Ibec, on behalf of the Respondent, refuted the allegation that the Complainant had been unfairly dismissed. He contended that as the Complainant was employed to carry out research in posts which were externally funded research posts. He was not protected from compulsory redundancy. Mr Flood stated that on that basis his employment could be terminated in accordance with the Respondent’s existing exit provision in line with Clause 1.6 of the Public Service Agreement 2010-2014 (“the Croke Park Agreement”) which states:

  • “The Government gives a commitment that compulsory redundancies will not apply within the public service, save where existing exit provisions apply”

Mr Flood outlined the events leading to the Complainant’s termination of employment. In May 2018, Prof. Valeria Nicolosi, Principal Investigator, informed the Complainant that there was funding available until 31st December 2018 and that she was applying for further funding. Prof. Nicolosi outlined to the Complainant that there was no guarantee that funding would be granted and advised of the possibility of his contract concluding in December 2018.

In November 2018, Prof. Nicolosi received word that her application for funding was rejected. Prof. Nicolosi informed the Complainant that she would be unable to renew his contract at the end of December 2018 if no funding became available. The Complainant was further informed that a redundancy situation may arise in such circumstances.

In December 2018, the Complainant wrote to his School Administrator to request a contract of indefinite duration. The School responded informing the Complainant that by operation of law he had received a contract of indefinite duration but that such a contract did not protect him from redundancy where funding has ceased for externally funded research projects.

The Complainant was made redundant on 31st December 2018 and was paid a statutory redundancy payment.

Mr Flood said that as with all research colleagues in the University his research position was at all times dependent upon the ability of his Principal Investigator to attract the external, non-core funds to pay his salary.

In support of his position, Mr Flood relied upon the case of Patrick Fournet v NUI Galway, UD1262/2011 where the Employment Appeals Tribunal found in favour of the University in its termination of employment of a Researcher who was on a contract of indefinite duration. The EAT concluded that:-
  • “The university is not obliged to make some other employee redundant in order to give that position to the claimant.

    The claimant made much of the fact that his CV was not sent to every possible source and there were others who should have been selected before him. However, the claimant was very high skilled in a very specific area. He was employed for a specific purpose and that specific purpose was funding dependent.”
Mr Flood said that as with NUIG, it is common practice for research staff in the Respondent to be made redundant after funding for research projects ceases. Similar to the NUIG case, the Complainant was highly skilled in a very specific area. Also similar to the NUIG case, the Complainant was at all times aware that his position was subject to the continuation of funding from external, non-core sources, regardless of CID status or not.

With reference to Clause 1.6 of the Croke Park Agreement, Mr Flood stated that the provision did not give additional protections on tenure to staff employed in areas of the public service where redundancies have previously taken place. He quoted from a letter dated 6th April 2011, where Mr. Pat Burke, Assistant Secretary, Department of Education and Skills, responded to the Chair of the PSA Education Sector Implementation Group stating
  • “It is important to note that Universities have always made externally funded researchers redundant where funds are not available and where no alternative research vacancies exist, Moreover, this has applied to researchers with CIDs as well as those on fixed term contracts.”

This position was confirmed by the PSA Education Sector Implementation Group in a letter dated 17th May 2012.

Finally, Mr Flood stated that it is a fact that the University has a well-established, generally applied practice of exiting research staff upon the completion of their research work or upon the cessation of the non-core, research funding directly supporting their employment and where no alternative employment opportunities can be identified. In the Complainant’s case, he was confirmed as holding a contract of indefinite duration as a Research Fellow, however, no positions of Research Fellow or Research Assistant were available or have since become available in his specialised area since the cessation of his employment. Mr Flood said that should such opportunity arise in the near future; the Complainant will be offered it.

Summary of the Complainant’s Case

The Complainant was represented by Mr Richard Grogan, Richard Grogan & Associates. Mr Grogan submitted that the Respondent has relied solely on the grounds that research posts are not protected from compulsory redundancy where they are externally funded. However, in doing so he contended that it failed to address the issue of fair procedures, in accordance with its obligations under Section 6 (7)(b) of the Acts.

Mr Grogan referred to the notification sent by the Respondent to the Complainant on 23rd November 2018, when the Respondent informed him that its application for funding had not been successful therefore unless he was successful in his own application, then his contract would not be renewed in December. He further referred to the Respondent’s letter dated 20th December 2018 to the Complainant informing him that he was being made redundant. Mr Grogan submitted that these notifications were not in compliance with fair procedures and held the view that in reality there were no procedures whatsoever adopted. He said the Complainant was not afforded the right of representation, he was not given an opportunity to put forward his view/case, at no stage was he provided with any information relating to alternative posts within the University and was not given the right to appeal his dismissal. He maintained that fair procedure and the principles of natural justice were not applied to the Complainant as set out in the Code of Practice on Grievance and Disciplinary Procedures, S.I. 146.

In support of his position, he quoted from the case of Tolerance Technologies Ltd and Joe Foran UDD 1638 where the Court found:
  • “The Court, while finding that the respondent’s position was redundant also found that the manner of his dismissal as a result was procedurally unfair. The respondent was not consulted adequately, he was not afforded representation and he was denied the opportunity to engage with the company board when he requested the facility in a situation when he was not satisfied with the termination of the employment which had been communicated to him at a meeting on 27th and 28th October 2015.”

Mr Grogan said that the Complainant as an employee on a contract of indefinite duration was of the view that he should not have been made compulsory redundancy without at least a rigorous exercise taken place to find reasonable redeployment options. He did not receive any support/help to find alternative jobs in the university as it had no proper procedures for CID holders to support them to find or be offered alternative jobs.

While Mr Grogan does not dispute that a redundancy situation can arise for employees who become entitled to a contract of indefinite duration, he contended that the burden of proof is fully on an employer to prove that it was a valid redundancy and that appropriate fair procedures were applied, and it must look at alternatives to redundancy. He contended that in this case, none of these processes took place, accordingly he submitted that the dismissal was unfair.

Summary of Witness Testimony

Evidence was given by Professor Valeria Nicolosi, School of Chemistry, on behalf of the Respondent. She told the Court that the Complainant was a highly skilled scientist, a wonderful person and that she would have no hesitation in re-employing him if she had suitable funding for a project appropriate to his skills. She said that when she realised additional funding was not going to become available to continue the Complainant in employment, she tried her best to secure alternative employment for him. She said that she had made a number of applications for funding from different sources to no avail. She had asked her immediate colleagues if there were any possible alternative positions that the Complainant could work in but there were none available. She also made enquiries generally in the School of Chemistry, however as he had no teaching experience, there were no suitable roles for him. However, she admitted that while she had general discussions with the Complainant about the lack of funding, he was never formally notified of her search for alternative roles for him. She said that she had asked him to also make applications for funding, and assisted him in so doing, however, no further funding became available in 2018.

Relevant Law

The dismissal of the Complainant is not in dispute. Consequently, having regard to the Act at Section 6(1), the burden of establishing that the dismissal was fair rests upon the Respondent.

The Act at Section 6(1) provides as follows:

  • 6.(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.
The Respondent has submitted to the Court that the Complainant was dismissed by reason of redundancy. In the event that the Respondent establishes that a redundancy within the meaning of the Act has taken place the Respondent would be entitled to rely upon the defence afforded by Section 6(4)(c) of the Act.

Subsection (4) of Section 6 states:

  • (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
    • (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

      (b) the conduct of the employee,

      (c) the redundancy of the employee, and

      (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

The Act defines the term redundancy within the meaning of the Act at Section 1 as follows:
  • “redundancy” means any of the matters referred to in paragraphs (a) to (e) of section 7 (2) of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971;
The Redundancy Payments Act, 1967 (the Act of 1967) as amended provides at Section 7(2) as follows:
  • (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—
    • (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

      (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

      (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

      (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

      (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

Discussion and Conclusion

The Acts deem a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair. Where redundancy is put forward by the Respondent as the reason for termination of the employment it is necessary for the Respondent to establish that the purported redundancy not only meets the definition of that term but that the Complainant was fairly dismissed by virtue of fair selection for redundancy. The Respondent in the within matter has clarified to the Court that it relies upon Section 7(2)(b) in order to establish that a redundancy within the meaning of the Act has taken place. While it is submitted on behalf of the Complainant that had the fair procedures and the principles of natural justice been adhered to then the outcome may not have been different. However, Mr Grogan contended that as those procedures were not afforded to him, then the dismissal was unfair.

In its determination in Gillian Free v Oxigen Environmental UD 206/2011, the Employment Appeals Tribunal noted that

  • “when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy….where there is no agreed procedure in relation to selection for redundancy….then the employer must act fairly and reasonably”.

The Respondent submitted that, although he was given a contract of indefinite duration, by operation of law, his contract was a specified purpose contract which was entirely dependent on funding for the continuation of the post. It also contended that it had a well-established, generally applied practice of exiting research staff upon the completion of their research work or upon the cessation of non-core, research funding directly supporting their employment and where no alternative employment opportunities can be identified. Therefore, it held that it had the right to make him redundant as there was an “existing exit provision in place” to make researchers redundant, where funding has ceased for externally funded research projects.

The Court notes while the Complainant’s line manager gave evidence that she made strenuous effort to find alternative employment for the Complainant, however, it is not disputed this was not communicated to him. The Court also notes that while he was informed in May 2018 that there may be no further funding available and that his employment may cease at the end of the year, it stated that HR would be notified of the situation. The Respondent accepted that HR did not seek alternative roles for him, when it was accepted at the hearing before the Court that in that regard, it may have “slipped up” as it was of the view that he was in such a narrow specialised area that there would be no alternative roles for him and that his redundancy was within its existing practice for research staff.

Following the email of 23rd November 2018, the Complainant sought to protect his employment status by enquiring if he was entitled to a contract of indefinite duration at that point. On 20th December 2018, he was informed that he was entitled by operation of law to a contract of indefinite duration, however, at the same time he was notified that he was being made redundant, without any reference to efforts made to seek alternative roles for him.

The Court accepts, on balance, that the requirements of the University for the work the Complainant was carrying out had ceased due to the lack of funding for that role and that therefore was the cause of termination of the Complainant’s employment. On that basis the Court finds that there was a redundancy situation. However, the Court notes that he was no longer on a specified purpose contract and was now on a contract of indefinite duration. It is clear to the Court that sufficient efforts were not made to seek alternative roles for him, the Court therefore, cannot accept that his dismissal by virtue of fair selection for redundancy had been discharged by the Respondent and consequently finds that the Complainant was unfairly dismissed.

Determination

The Court determines that, for the reasons set out above, the Complainant was unfairly dismissed.

The Court has considered the remedies available and has decided that reinstatement or re-engagement of the Complainant is not a practical option in this case. The Court instead takes the view that compensation is the appropriate form of redress.

Having assessed all of the information before it, the Court considers that the Complainant has suffered financial loss as a result of his unfair dismissal. The Court considers it just and equitable in all the circumstances of this case to award the Complainant compensation in the sum of €20,000. For the avoidance of any doubt this sum is in excess of the statutory redundancy payment already paid to the Complainant in January 2019.

The Decision of the Adjudication Officer is varied, accordingly.


The Court so Determines.

Signed on behalf of the Labour Court
Caroline Jenkinson
MK ______________________
27 October 2020 Deputy Chairman


NOTE

Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.