PTD1212

Material facts

The material facts, as admitted or as found by the Court can be summarised as follows:

The Respondent is a firm of solicitors carrying on a general practice in Waterford. Each of the Claimants were employed by the Respondent as legal secretaries and worked in a part-time capacity. The first named Claimant worked 20 hours per week and the second named Claimant worked 17.5 hours per week. A substantial portion of the Respondent fee income was derived from conveyance and property related work. Due to the collapse of the property market the Respondent experienced severe financial difficulties from 2008 onwards.

In order to address the difficulties in which it found itself the Respondent undertook a number of cost saving measures. In 2009 pay cuts were put into effect. In or about April 2010 the partners of the firm came to a decision that major restructuring within the office was necessary. One solicitor and the office receptionist, both of whom worked full-time were made redundant. Both of the Claimants were also made redundant at this time. The circumstances in which the Claimants came to be made redundant is very much in controversy and is at the centre of the within claims.

Mr Newell, a partner with the Respondent, told the Court in evidence that he and the other partners had concluded that the hours worked by the Claimants no longer suited the practice. He met with the Claimants on 6^thApril 2010 and informed them that they would have to adjust their hours of attendance so as to provide cover over the normal opening hours of the office between them. At that time neither of the Claimants worked on Friday. The first named Claimant did not work after 2.15 on any day. Apart from Mondays, on which she worked a full day, the second named Claimant also finished at 2.15 on Tuesdays and Wednesdays. The second named Claimant did not work on Thursdays. Also, their working pattern included 11.5 hours per week outside the opening hours of the office.

According to Mr Newell, he assured the Claimants that they were not being made redundant but that they would have to adjust their hours of attendance so as to ensure that at least one of them was working during the full opening hours of the office. He said that he left it to the Claimants to come to whatever arrangement suited them so as to provide that level of cover. It was Mr Newell’s evidence that on the following day both of the Claimants approached him and said that they were not prepared to make the adjustments sought and that they wished to opt for redundancy. Mr Newell told the Court that while making the Claimants redundant was not the solution favoured by the practice he acceded to their request. The Court was told that some months later the practice employed a receptionist in a part-time capacity and that the office manager is assigned to cover the reception duties when this part-time employee is not working.

The Claimants’ version of events was that they were called into a meeting with Mr Newell on 6^thApril 2010 and told that their positions were being amalgamated into a single full-time job and it was up to them to make arrangements to share that job. They said that this would involve reduced hours, from a combined 37.5 per week to 33.5 per week. They also said that it would involve difficulties in covering each other for holidays. They said that they had sought to discuss the practicalities of the proposed arrangement with Mr Newell but he refused to address any of their concerns. According to the Claimants, they were told that if they did not agree to what was proposed they would be made redundant.

It was the Claimants’ evidence that having reflected on the situation in which they found themselves they decided not to make the adjustments sought and so informed Mr Newell on the following day. They say that they were then made redundant and finished working with the Respondent on the 8^thApril 2010.

Having considered the evidence tendered in the course of the appeal the Court is satisfied that the Claimants told Mr Newell that they wished to opt for redundancy as an alternative to changing their hours of attendance.

A dispute subsequently arose between the parties concerning the calculation of the redundancy payments which they received from the practice. The Claimants contended that their redundancy lump sum should have been calculated on their salary prior to the introduction of wage cuts in 2009. The Respondent had calculated the lump sums on the basis of the salaries pertaining at the time of the redundancy. The first named Claimant wrote to Mr Newell by letter dated 17^thApril to the effect that having taken advice in the matter she believed that her redundancy payment was wrongly calculated and setting out her grievance in that regard. Significantly, this letter made no mention of the circumstances in which the Claimants came to be made redundant and did not dispute the facts surrounding the termination of their employment. A claim in respect of the calculation of their redundancy payment was subsequently pursued under the Redundancy Payments Acts 1967-2007. A claim was also pursued under the Payment of Wages Act 1991 in this matter.

The present claims

The present claims are now grounded on section 9 and 15 of the Act. In relation to the claim under s.9 of the Act the Claimants contend that they were selected for redundancy because of their status as part-time employees and that this constituted less favourable treatment than that afforded to full-time employees. In relation to the claim founded on s.15 of the Act, the Claimants contend that they were dismissed for refusing to accede to a request to change from part-time to full-time working contrary to s.15(1)(c) of the Act.
Conclusion of the Court

On the facts disclosed in evidence the Court has concluded that the within claims cannot succeed. The fairness or otherwise of the manner in which the Claimants were treated is not in issue in this case. Rather, the only issue of relevance is whether or not the Claimants were selected for redundancy because of their part-time status or whether they were dismissed in contravention of s.15(1)(c) of the Act.

The Court is satisfied on the evidence that the Claimants’ employment came to an end in circumstances in which they asked to be made redundant. The question of whether or not the Respondent was contractually entitled to ask the Claimants to adjust their attendance hours is not in issue in this case. Had they believed that the Respondent was not so entitled they could have refused the request and awaited the Respondent’s response. The Court cannot speculate on what that response might have been. Rather than doing so they informed the Respondent than they wished to be made redundant and the Respondent acceded to this request. Accordingly the Court cannot hold that the Respondent selected the Claimants for redundancy because of their status as part-time employees.

With regard to the claim grounded on s.15 of the Act, it is clear that the Claimants were never asked to convert to full-time working. Consequently this claim cannot succeed.

Determination

For all of the reasons set out herein the decision of the Rights Commissioner cannot stand. The Respondents appeal is allowed and the decision of the Rights Commissioner is set aside.



Signed on behalf of the Labour Court



Kevin Duffy
9th October 2012______________________
AHChairman



NOTE

Enquiries concerning this Determination should be addressed to Andrew Heavey, Court Secretary.