EMPLOYMENT APPEALS TRIBUNAL
APPEAL(S) OF: CASE NO.
Brendan Fitzsimons -appellant RP71/2014
MN65/2014
against
Institute Of Technology Carlow -respondent
under
REDUNDANCY PAYMENTS ACTS 1967 TO 2007
MINIMUM NOTICE AND TERMS OF EMPLOYMENT ACTS, 1973 TO 2005
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. N. Russell
Members: Mr. J. Horan
Ms. S. Kelly
heard this appeal at Carlow on 20th August 2015 and 19th October 2015
Representation:
Appellant: In person
Respondent: Ms. Claire Bruton B.L. instructed by Ms. Alexandra Moore, Beauchamps, Solicitors, Riverside Two, Sir John Rogerson Quay, Dublin2
Summary of evidence:
The appellant’s case:
In 2007 the appellant was approached by an entity (IAA) to teach a number of modules on its aviation programme. A daily rate and travel and subsistence rates were agreed. The appellant was paid through another entity (C.A.).
In 2010, the respondent and IAA entered into a collaborative arrangement to develop the programme which the appellant had part-delivered since 2007. The appellant’s name was included in a submission to HETAC. In May 2011, the appellant was requested to provide a copy of his curriculum vitae. The respondent needed to select and improve staff on the programme; however assurances were given that IAA lecturers would have continuity of service.
It was the appellant’s case that ultimately a transfer of undertaking occurred from the IAA to the respondent, thus giving the appellant continuity of service. The appellant stated that he enjoyed the same terms and conditions with the respondent as he had with IAA. The appellant lectured six modules between 2007 and 2013 and at all times continued to lecture in the same venue and location. He gave evidence of attending training days and one staff induction day.
At the training day in March 2012 the issue of tenure was also raised and it was the appellant’s evidence that the then Head of Lifelong Learning gave assurances to IAA lecturers that their roles would continue; despite the fact the respondent was advertising for lecturing positions.
The appellant applied for the lecturing panel but was not shortlisted nor interviewed. However, when the lecture programme later issued for the academic year 2012/2013, the appellant’s name appeared on it. He continued to lecture without any change to his terms and conditions during that academic year and his work was under the respondent’s control at all times.
In December 2012 he received a letter asking him to provide his banking details. The appellant subsequently received a telephone call from an entity (LFS&S) who informed him that it would be making payment to him for his lecturing.
From 2007 to the end of June 2012 the appellant was paid by IAA through the entity C.A. The appellant was paid a daily rate and tax and PRSI were deducted by C.A. A P60 and payslip from C.A. were opened to the Tribunal. LFS&S then informed the appellant that it would be making payment to him until the end of the academic year 2012/2013. The appellant invoiced LFS&S as requested and received a gross figure from LFS&S and did not receive payslips. The appellant thought it was a way for the respondent to “get around” the recruitment embargo. The appellant also completed employee expense forms and received payment for these claims from LFS&S. In reply to questions from the Tribunal, the appellant confirmed that he was not searched for and selected by LFS&S nor did LFS&S introduce him to the respondent.
In March 2013, the appellant became aware that the respondent was once again advertising the lecturing positions on the aviation programme. The appellant applied and was placed on the panel for one module only- a module which he had not previously taught. He was informed that he had not placed high enough on the panel to receive an offer of work from the respondent. Following a number of months without an offer of work for the academic year 2013/2014, the appellant submitted an RP77 form to the respondent in January 2014. It was the appellant’s belief that the recruitment panel was used to cull IAA lecturers and that a transfer of undertakings had occurred from IAA to the respondent.
During cross-examination it was put to the appellant that he did not raise the issue of a transfer of undertakings until January 2014 and that a transfer had not in fact occurred as only 12 of the 48 IAA lecturers were employed by the respondent. It was the appellant’s case that there was a gradual transfer of administration and collaboration period, at the end of which the IAA lecturers transferred. The appellant stated that he was under the control of the respondent and received his allocation of work from the respondent
The appellant confirmed that the first time he lectured for the respondent and not IAA was the 1st November 2012. He also raised issue with the recruitment and selection process utilised by the respondent.
The appellant concluded his case by submitting that he was unfairly dismissed and made redundant. He accepted that someone else was now carrying out his work.
Summary of the respondent’s case:
It was the respondent’s case that the appellant had incorrectly brought the proceedings against the respondent. LFS&S was the employer as it was the entity liable to pay the wages as per the Redundancy Payments Acts, 1967 to 2007. However, no redundancy situation existed as another person is now carrying out the appellant’s work. A transfer of undertakings did not occur between IAA and the respondent and in any event the appellant did not have the requisite service to qualify for a redundancy payment. Had the appellant been successful at interview he would have become an employee of the respondent in the normal course.
The Head of Lifelong Learning at the time gave evidence that the respondent was approached by IAA to validate the aviation programme when another academic entity withdrew. The respondent altered the course to make it an Honours qualification and additional modules were added in order to do so. The respondent became fully responsible for the course in 2012 but had insufficient lecturers to deliver the course for the 2012/2013 academic year. When this was discovered there was insufficient time to enter into a recruitment process. It became known to the witness that a number of personnel had taught the modules previously for IAA and were paid through LFS&S. The IAA provided the respondent with the name of LFS&S to assist the respondent with the shortage of lecturers. It had been IAA policy to use a third party to make payment. LFS&S came into being when C.A. went out of business.
The appellant was offered a contract for one year to fill the staff shortage but the witness was unaware if it was made clear to the appellant that it was for one year only. LFS&S invoiced the respondent for the work the appellant carried out.
The witness accepted that the appellant attended training days as a part-time Lifelong Learning lecturer and as an IAA lecturer but he attended voluntarily whereas the respondent’s employees are paid to attend training days. The witness recalled holding a smaller breakaway meeting with IAA lecturers and informing them of daily rates. The witness refuted that he had assured the IAA lecturers that the Public Appointments Service (PAS) recruitment competition was a formality and he also refuted that he offered assurances to them about their positions. He believed the appellant knew he would have to apply through PAS as IAA was finished delivering the course. There was a collaboration agreement with IAA but there was no discussion of transferring lecturers to the respondent with the exception of one individual who was seconded for one year. He added that no embargo applied to the Lifelong Learning course as the courses are entirely fee-paying.
Of the 48 IAA lecturers, 12 were ultimately employed by the respondent through the PAS process. When the appellant was placed on the panel in 2013 it did not guarantee him an offer of work. The appellant’s lecturing work is carried out by another person.
During cross-examination it was put to the witness that the appellant did not know in 2012 that he was being asked to deliver the course for one year only. The witness replied that he believed the appellant was aware of that fact and emails received from the appellant suggested he knew that to be the case.
Determination:
The Tribunal heard extensive evidence in this case and was presented with a conflict on fundamental issues pertaining to the relationship between the parties.
The Tribunal is satisfied that the relevant contractual nexus was between the respondent and the appellant and not between the appellant and a third party, LFS&S. The Tribunal believes that LFS&S was simply providing payroll services: it had no contractual obligation with the appellant to pay him. It did not recruit the appellant for the respondent nor did it introduce the appellant to the respondent. He was simply not hired or employed through LFS&S.
Where there is a conflict in evidence the Tribunal must first consider if there are any agreed facts which are common case. It was agreed by both parties that the role fulfilled by the appellant continued beyond his personal involvement with the respondent and indeed, it was the appellant’s contention before the Tribunal that someone had taken his job. Fundamental to the success of a redundancy claim is that a role or position ceases to exist, changes fundamentally or is to be carried out in a different fashion in the context of a reorganisation or restructuring. This did not occur in this instance and there was no redundancy situation.
In his evidence, questioning and submission the appellant strayed into allegations that his position had been unfairly terminated. However, no claim of unfair dismissal was before the Tribunal. Further, the correspondence between the parties suggests that the appellant was aware that his was a fixed term arrangement for the particular academic year. The Tribunal found the Head of Lifelong Learning’s evidence around the basis for this arrangement to be credible.
Having considered the totality of what was presented to it, the Tribunal must find that the appellant has failed to establish his claims under the Redundancy Payments Acts, 1967 to 2007 and the Minimum Notice and Terms of Employment Acts, 1973 to 2005.
Sealed with the Seal of the
Employment Appeals Tribunal
This ________________________
(Sgd.) ________________________
(CHAIRMAN)