SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015
TRINITY COLLEGE DUBLIN
(REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION)
- AND -
MR IFTIKHAR AHMAD
(REPRESENTED BY RICHARD GROGAN & ASSOCIATES)
1.Appeal of Adjudication Officer Decision No: ADJ-00022427 CA-00029070-002
The Complainant was employed as a Research Fellow/Post Doc Researcher from 18thOctober 2013 until 31stDecember 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.
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:-
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
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 hasrelied 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 23rdNovember 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 20thDecember 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 ofTolerance Technologies Ltd and Joe ForanUDD 1638 where the Court found:
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.
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:
Subsection (4) of Section 6 states:
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 inGillian Free v Oxigen EnvironmentalUD 206/2011, the Employment Appeals Tribunal noted that
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 23rdNovember 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 20thDecember 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 thathis dismissal by virtue of fair selection for redundancy had been discharged by the Respondent and consequently finds that the Complainant was unfairly dismissed.
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.
Enquiries concerning this Determination should be addressed to Mary Kehoe, Court Secretary.