In the recently published case, Wim Naude v UCC, a Dutch economics scholar, who was hired as a Professor of Economics by University College Cork ('UCC') during the Covid-19 pandemic, was awarded €300,000 by the Workplace Relations Commission ('WRC') after it held that he had been dismissed unfairly and without warning for failing to relocate to Cork.
Background
The Complainant was hired in January 2021 and, because of the Covid-19 pandemic, initially taught fully remotely while residing in the Netherlands. Throughout the 2021/2022 academic year, the Complainant encountered difficulties securing suitable accommodation in Cork for him and his family and so he attended UCC on campus for one week each month but continued to reside in the Netherlands for that academic year.
In July 2022, the Complainant had a personal meeting with the Head of the Business School, and he discussed his ongoing difficulties with relocating to Cork. It was suggested to him that he should put that in writing and that he had the right to ask for a reduction in his time in accordance with the staff manual. He then wrote to UCC on 1 August 2022 in which he suggested two options in respect of his work for the upcoming academic year 2022/2023 – one being a continuation of his full workload in the 'blended format' and the other, a 33% reduction of hours (unpaid leave).
In response to his proposal, and without any warning or further discussion from anyone in UCC, the Complainant received an email from UCC's HR Director, Mr Barry O'Brien, dismissing him.
Mr O'Brien's email stated that 'on a number of occasions since you commenced employment you have given absolute assurances that you would relocate to Cork to give full regard to your contract of employment ...... by your actions you continue to frustrate the requirements of your contract of employment to such extent that UCC has no confidence that you will be in a position to meet the conditions of your employment on an ongoing basis. Accordingly, UCC now deems your contract of employment to be null and void and will proceed to give you three months' pay in lieu of notice'.
The Complainant brought a claim of unfair dismissal to the WRC.
Arguments
The Complainant argued that he was dismissed out of the blue and without cause by UCC, in the absence its own internal procedures, fair procedures or natural justice, and without being offered recourse to an appeal. He submitted that it was always his intention to relocate to Cork and alleged that UCC had failed in their duty to support a facilitative relocation, despite offering such support to other staff members who had previously relocated to Cork. The Complainant, in his evidence, said that he was 'chasing houses' and the process of finding a house was very difficult. He specifically highlighted the Irish housing crisis as a significant factor in his failure to secure accommodation.
UCC's defence was that the dismissal was compliant with the requirements of the Unfair Dismissals Acts 1977 – 2015. It submitted that 20 months into the Complainant's employment, he sought agreement that he would deliver his workload on a blended /remote basis but that this was not acceptable to the University and consequently, his contract was terminated.
UCC argued that the Complainant was entirely responsible for the dismissal because it was clear that to perform his duties required a physical presence. It argued that the Complainant had committed a fundamental breach of contract and that he was dismissed because he refused to move to Cork. It made it clear there was no issue with the Complainant's performance and no issue with his conduct and said that it did not initiate a disciplinary process in those circumstances, but maintained that the dismissal was nonetheless fair, submitting that it was 'appropriate and necessary', 'in the interests of the University and its students' and that the Complainant had fully contributed to his dismissal. UCC was effectively seeking to rely upon the Complainant's fundamental breach of his contract, as falling within the catch-all provision of 'other substantial grounds' in the Unfair Dismissals Acts.
Decision
The Adjudication Officer, ('AO') rejected UCC's defence and remarked that it's unilateral decision to dismiss the Complainant outside of any procedure or process was "astonishing". The AO also held that Mr O'Brien had no authority of any kind to dismiss the Complainant.
The AO noted that it was entirely unclear why UCC doubled down on its position at the hearing, which demonstrated that it was "wholly oblivious" to the requirements of the legislative framework in this area, the most basic requirements of fair procedure and natural justice, as well as the content of its own internal rules.
In her decision, the AO explained that, if an employee is at risk of any disciplinary sanction, including dismissal, then they are entitled to the benefit of fair procedures and natural justice, the minimum standards of which are set out in Code of Practice on Grievance and Disciplinary Procedures. She pointed out her difficulty with UCC's "other substantial grounds" argument was that, even taking that defence at its height, the Complainant would still have been entitled to the full benefit of a disciplinary process and the rights and protections afforded to him under it, none of which were provided to him. In particular, she found that the failure to provide an appeal was fatal to UCC's approach and was in clear breach of the minimum requirements set out in the Code of Practice.
Notably, the AO said that the losses suffered by the Complainant far exceeded the maximum jurisdiction of the Act and in consideration of the appropriate award, the AO placed emphasis on the fact that the Complainant could no longer use the title 'Professor', and the knock-on impact on his ability to source consultancy work as he was no longer attached to a State university due to his dismissal.
Implications for Employers
The AO held that the Complainant had been unfairly dismissed and directed UCC to pay him €300,000 which represents the maximum monetary award that can be made under the Unfair Dismissals Acts.
This is the third highest award ever made by the WRC to an individual employee.
While many employers continue to struggle with trying to get employees back to the office, it is clear from this case that relying on an argument that an employee's failure to relocate or return to the workplace amounts to a fundamental breach of contract does not come without risk. Each situation must obviously be considered on its own individual facts, but this case certainly emphasises, in the starkest way, the fundamental importance of engaging with employees and, more importantly, adopting some of form of process before taking any steps to discipline employees for their failure to return to the workplace.
This case acts as a reminder to all employers of the need to always maintain careful disciplinary processes, taking account of fair procedures and the principles of natural justice. It also illustrates the potentially disastrous consequences for employers where they fail to adhere to their own internal processes, while also reminding employers of the importance of adhering to the Code of Practice on Grievance and Disciplinary Procedures which, although not legally binding, the WRC continue to place significant weight on.
ADJ-00042625 - Wim Naude v University College Cork – link to WRC decision available here.
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