ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00021244
Barry Crushell Tully Rinckey Solicitors
Sinead Morgan DWF Solicitors
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 09/09/2019
Workplace Relations Commission Adjudication Officer: Michael Ramsey
In accordance Section 8 of the Unfair Dismissals Acts, 1977 – 2015following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 and has submitted that he was unfairly dismissed (CA-00027996)
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on the 9th February 2004, in a lecturing and research management role. His primary duties were lecturing and managing the dissertation and MBA students in the Graduate Business School and this role evolved overtime.
In or about November 2004 the working hours of the Complainant were extended to 4.5 days per week, as he took over the management of 3 business modules in various campuses. However,
in or about September 2015, due to ongoing issues the Complainants role changed but he continued to work 2 days per week for the Respondent, attending to, inter alia, Business Studies programme. The Respondent continued to pay the Complainant for a 4.5 day week.
In or about mid 2016, the Head of Faculty (HF) raised a number of issues with the Complainant regarding the management and supervision of various lecturers. The Complainant voluntarily offered to be reassigned if the HF was unhappy with his performance. This led to the Complainant working on a number of other projects. The Complainant sought further instruction from the HF as to how he could be utilized, but was informed that he should seek direction from the Director of Academic Programmes (DAP) but no such directions were forthcoming, and the Complainant engaged himself in a number of supporting tasks and functions.
From September 2017 onwards it became apparent to the Complainant that there was an
unwillingness by the Respondent to afford him with reasonable work commensurate with his expertise and experience. Given this, the Complainant took the proactive steps of engaging with the Respondent in order to seek an amicable termination of the employment relationship. On the 13th December 2017 the DAP made a proposal to the Complainant to begin some work in specific areas and the Complainant agreed and actioned on each of these projects.
On the 11 January 2018, the DAP contacted the Complainant asking for his assistance with the review of certain dissertations. The Complainant was uncomfortable with this proposal given that they had already been reviewed by four markers and had raised certain red flags with the ratings previously given. The Complainant submitted that the Respondent continually attempted to compel him into types of work for which he was entirely unsuitable. Despite these concerns the Complainant eventually undertook this requested work and completed same.
On or about February 2018 the Respondent suggested to the Complainant that they engage in a
mediation process however, the Complainant pointed out that he felt mediation was unnecessary as the root cause of the grievances between the parties was clearly identified which related to the unwillingness and/or inability of the Respondent to provide the Complainant with adequate work, as originally envisaged under the original employment relationship.
On or about October 2018, the Complainant was asked to take over the complete management of a Graduate Business School’s 5 year programmatic review. This work was outside of the Complainant’s typical expertise and experience. Furthermore, there was no project management document to assist the Complainant with this endeavour. The Complainant was given a particular time frame in which to complete this review which he regarded as unrealistic. The Complainant submitted that the attempt to assign him these duties was a deliberate ploy to result in his resignation or to present grounds for dismissal following the inevitable failure of this project.
On or about January 2019, the Complainant sought a resolution of his unsatisfactory employment arrangements and sought a meeting with the DAP. On the 25th January 2019 the DAP requested that the Complainant become involved in research and dissertation preparation meetings with the students. The Complainant outlined the unworkability of this proposal and these concerns were not adequately addressed by the Respondent. This request by the Respondent was considered by the Complainant to be yet another deliberate attempt to force him to resign in advance of the project, or providing possible ground for termination after inevitable failure.
On or about February 2019, the DAP emailed the Complainant, requesting a meeting with him and the new HR manager. All parties met on 18 February 2019. The DAP presented the Complainant with a full working schedule, proposing that the Complainant meet with masters-degree students to discuss their proposal topics. The Complainant highlighted concerns surrounding the unworkability of the proposal and followed-up this meeting with a subsequent email to HR on 20 February 2019. HR replied to this email on 26 February 2019, asserting that the Respondent would revert with a fuller response but did not.
The Respondent wrote to the Complainant on 1 April 2019, notifying him that, should he not accept the type of work offered, his salary would cease to be paid with effect from 12 April 2019, and that he would be considered to have ‘abandoned’ his position with the Respondent.
Solicitors on behalf of the Complainant wrote to the Respondent on 11 April 2019, noting that the proposed changes to the work type and routine, that the Complainant was expected to undertake, would have dramatically altered the type and volume of work the Claimant had hereto, previously performed, while also affirming that the Complainant had no intention of ‘abandoning’ his post’.
Accordingly, on the 12 April 2019, the Respondent ceased salary payments to the Complainant.
It is the contention of the Claimant that the initial and ongoing failure of the Respondent to pay the Claimant his wages, amounts to a repudiatory breach of the employment agreement, amounting to an unfair dismissal under Unfair Dismissals Act, 1977.
The Complainant explained that his working life was approximately 90% with the Respondent herein and 10% with another academic institution.
This Complaint was received by the Workplace Relations Commission on the 26th April 2019.
Summary of Respondent’s Case:
The Respondent outlined the timeline in relation to the Complainant’s employment from the 9th February 2004 until the 12th April 2019 as follows.
Throughout the course of his employment, the Complainant carried out a number of different roles for the Respondent completing work for various departments and any changes in his employment were by mutual agreement.
The Complainant was initially employed as a senior lecturer from the 9th February 2004 and his time was divided between the Graduate Business School and the Business Faculty. On the 20th June 2016 the Complainant formally requested the HF to be reassigned from the Business Faculty module but was informed that there was no other work for him . The Complainant continued to be given work by the Business Faculty until September 2017. In this period of time The DAP met with the Complainant on numerous occasions suggesting various areas for work including the proposal that he play a lead role in the programmatic review of the graduate business school but the Respondent submits he declined this opportunity.
On or about the 13th December 2017 the DAP, bearing in mind that the Complainant did not wish to be involved in the business plan module, made a proposal to the Complainant that he become involved in various other projects however this opportunity was declined. The Respondent also agreed to facilitate the Complainant in allowing him to work from home as it is submitted he did not wish to attend the college every day. The DAP also sought the Complainants input to the management competency report undertaken by the Graduate Business School but he declined to assist the Respondent.
The Respondent submitted that the Complainant sought a severance project from September 2017 onwards. The DAP contacted the Complainant on the 11th January 2018 requesting his assistance with the review of dissertations but this request was declined. The Respondent suggested mediation as an option to resolve the ongoing issues, as he perceived them, however the Complainant declined same.
On or about the 25th January 2019 the DAP proposed work in relation to a number of different projects for the second semester of 2019. Accordingly, the DAP and HR manager met with the Complainant on the 19th February 2019 to discuss the proposal. The Respondent submits that a timetable of activities was provided that allowed considerable flexibility to the Complainant in working from home however the Complainant refused the proposal and confirmed his position via email dated the 20th February 2019 wherein, inter alia, he sought a severance payment. Previously, the Complainant had stated , via email on the 13th February 2019, that he believed the Respondent had essentially ‘constructively dismissed’ him and he was seeking a severance package.
Following the meeting of the 18th February 2019, the Respondent informed the Complainant by letter dated the 1st April 2019 that in light of his refusal to accept the academic role outlined and his non attendance that his salary and related payments would cease with effect from the 12th April 2019. The Respondent denied that the Complainant had been constructively dismissed and further stated that in consideration of the Complainants partial attendance and engagement at work they had acted in a fair and reasonable manner. However, the Respondent did state that if the Complainant would meaningfully re-engage he would be welcomed and supported in his role but depending on his response and in light of his attendance and engagement to date the Respondent may have to consider that the Complainant had abandoned his position.
Correspondence ensued between the parties and the Respondent sought clarification of the Complainants position via email of the 7th May 2019 and indicated if no response was received by a specified date then they would proceed on the basis that he had left their employment. The Complainant responded via email on the 14th May 2019, inter alia, that he had not resigned and that the Respondent had terminated his employment.
The Respondent submitted that despite their best efforts to facilitate the Complainant, he failed an refused to engage with the process , refused all reasonable instructions and proposals, rarely attended at his place of employment and was obstructive in communications with the Respondent.
It is the Respondents position that the Complainant voluntarily terminated his employment in the circumstances where the Respondent made every attempt to facilitate him. The Respondent denies that the Complainant was dismissed.
Findings and Conclusions:
In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties and have considered the written submissions provided.
Section 6 of the Unfair Dismissals Act 1977 as amended (‘the Act’) provides, inter alia, as follows:
‘(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 lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:
“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.”
Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”
Both parties referenced Redmond on Dismissal wherein it isstated that “in general, a person is dismissed when the employer informs him clearly and unequivocally that contract is at an end or if the circumstances leading to a dismissal was intended or may reasonably be inferred as having been intended .... dismissal requires communication to the employee to be effective”
In the circumstances of this matter, I acknowledge that there was a difficult relationship between the parties and the Respondent endeavoured to facilitate the Complainant in the course of his employment.
However, I accept the position of the Complainant that the unilateral act of the termination of salary payments, as stated per the letter of the 1st April 2019 , clearly and unequivocally conveys the intention of the Respondent that the contract between the Respondent and the Complainant is at an end. I further accept that this letter fulfils the requirement that the communication of the dismissal to the Complainant to be effective as per the aforesaid definition. It is noted that the Complainant did not provide the Respondent with any form of communication indicating he had either resigned or abandoned his position.
Further, even in consideration of the fraught relationship between the parties, I find that having regard to all the circumstances, there were no ‘substantial’ grounds justifying the dismissal of the Complainant. In all of the aforementioned circumstances, I find that the Respondent has failed to justify the dismissal of the Complainant and therefore his claim must succeed.
In relation to the Complaint (CA-00027996), I require the Respondent to pay the Respondent compensation in the amount of €4,500.00. As this award is compensation for loss of earnings, it is subject to the normal statutory deduction.
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I find that the Complaint (CA-00027996-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977, succeeds and find that the Respondent is to pay the sum of €4,500.00 to the Complainant.
Dated: 30th April 2020
Workplace Relations Commission Adjudication Officer: Michael Ramsey