In Wim Naude v University College Cork (ADJ-00042625), the Complainant brought a…

In Wim Naude v University College Cork (ADJ-00042625), the Complainant brought a complaint to the Workplace Relations Commission (the “WRC”) under section 8 of the Unfair Dismissals Act, 1977 against the Respondent university. The Adjudicator, Lefre de Burgh, awarded the Complainant €300,000, the third highest award granted to an individual Complainant by the WRC, for his unfair dismissal without warning by the Respondent.

Facts: The Complainant was hired as a Professor of Economics by the Respondent in January 2021. Due to Covid-19 restrictions, the Complainant began his role teaching remotely from the Netherlands, where he was based at that time. From January 2022, the Complainant worked in a “blended format” – he attended the campus for one week each month and worked remotely for the rest of each month, with a view to relocating to Cork to work on campus full-time in the near future. In July 2022, the Complainant had a meeting with the Head of the Business School in the Respondent university and informed him that he was having difficulties securing suitable accommodation for him and his family in Cork. In an attempt to resolve the issue, the Complainant wrote to the Respondent in July 2022 and suggested that he continue working as normal in the “blended format”, or else take a reduction in hours. On 8th August 2022, the Complainant received a response to this from Mr Barry O’Brien, the Respondent’s HR Director, dismissing him without warning:

“On a number of occasions since you commenced employment you have given absolute assurances that you would relocate to Cork to give full regard for your contract of employment. My initial deadline of September 1, 2021 was extended further by way of agreement and you further agreed that you would be fully located by January 2022. Your most recent correspondence confirms that you have never relocated to Cork and that it is not your intention to do so for the next academic year. By your actions you continue to frustrate the requirements of your contract of employment to such an 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 notice will expire on the 30th of November 2022.”

The Complainant submitted to the WRC that it was always his intention to relocate to Cork and teach from the Respondent campus. He travelled to Cork a number of times when the Covid-19 restrictions started to ease and searched for housing to no avail. He noted the difficulties in the Irish housing market and that the Respondent did not provide him with support in accessing suitable accommodation. The Respondent submitted that the Respondent is a “physical presence” university, and by August 2022, it became clear that the Complainant was seeking to work on a blended/remote basis, in circumstances where the Complainant’s duties required a physical presence. The Respondent’s position was that the Complainant’s dismissal was fair. It submitted that his dismissal was “appropriate and necessary”, “in the interests of the University and its students”.and The Respondent did not advance any argument relating to frustration of contract. It sought to establish that the Complainant committed a fundamental breach of his contract of employment which, it submitted, amounted to “other substantial grounds” in the Unfair Dismissals Acts. It also submitted that the Complainant contributed 100% to his dismissal. The Complainant gave evidence on the significant impact that his dismissal had on his academic career. He told the WRC that his “career options have been ruined by UCC” as it is difficult to find consultancy work without association to a university. The Complainant submitted that since his dismissal (excluding the notice payment by UCC), he had earned €17,000, comprising €10,000 in relation to a module he taught in the University of Aachen. He said that this was an exception. He said that he had received €7,000 for an advisory role.

Decision: The Adjudicator noted that the burden of proof rested with the Respondent to prove that the dismissal was fair. The Adjudicator stated that the case put forward by the Respondent was “strikingly unconvincing” and questioned why the Respondent doubled down on their position in this case, as the Respondent ignored the relevant legislative framework, the fundamental requirements of fair procedures, and its own internal statutes. The Respondent was in clear breach of the Code of Practice on Grievance and Disciplinary Procedures by failing to provide the Complainant with an appeals process. Further, the HR Director, Mr O’Brien, had no authority to dismiss the Complainant from his role. The Complainant had never come to the attention of HR during his tenure and there was no question over the quality of his performance or his conduct.

The Adjudicator described the email sent to the Complainant on 8th August 2022 as “extraordinary”, and an “incomprehensible manner for a University to purport to dismiss a full Professor”. The Adjudicator noted that it is “simply not legally possible, nor procedurally permissible, for the Director of HR to do what he purported to do”.

The Adjudicator stated that the behaviour of the Respondent was so egregious that she would have reinstated the Complainant to his role. However, the Complainant was not seeking re-instatement as a remedy but was seeking compensation. The Adjudicator accepted the Complainant’s evidence regarding the impact of his dismissal on his ability to mitigate his loss. The Adjudicator directed that the Respondent pay the Respondent, €300,000, the maximum compensation under the Unfair Dismissals Acts (two years’ remuneration less the amount of mitigation).

Takeaway for Employers: While this case presents an exceptional set of facts, it is a clear reminder to employers to always follow fair procedures and internal disciplinary policies. Ignoring fundamental principles of fairness and natural justice will make it extremely difficult for an employer to defend an unfair dismissal complaint.. Employers should also be aware of following the Code of Practice in order to follow best practice.

Link – https://www.workplacerelations.ie/en/cases/2024/april/adj-00042625.html

Authors- Jane Holian, Jenny Wakely

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