ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001516

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 13/09/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following 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.

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

The complainant’s employment was terminated by reason of redundancy.

The complainant was offered alternative employment on reduced hours but he turned it down.

The complainant had been employed under JobBridge scheme and then moved to a fixed-term contract to cover Maternity Leave.

When the respondent became aware that another period of Maternity Leave was imminent it was decided to retain the complainant for the purpose of covering that leave.

When that period of leave finished the complainant was on sick-leave. When he returned to work in January 2016 and rejected the alternative employment the respondent had no choice but to make the complainant redundant.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Issues for Decision:

Was there a genuine redundancy situation in the respondent’s business?

Was the complainant unfairly selected for redundancy?

Legislation involved and requirements of legislation:

Section 6(1) of the Unfair Dismissal Act 1977 states:

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.

Section 6(4) of the Act states:

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:

1. the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

2. the conduct of the employee,

3. the redundancy of the employee, and

4. the employee being unable to continue to work in the position he held without contravention (by him or his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Decision:

The complainant had previously been employed by the respondent but resigned voluntarily from his position in 2007. In April 2012 he successfully applied for a position with the respondent under the JobBridge scheme commencing on 16 April 2012 and due to finish on 11 January 2013. The complainant was retained at the completion of the internship as the respondent was aware that one of their employees was going on Maternity Leave. He was issued with and signed a Temporary Contract which stated that employment under this contract commenced on 4 February 2013 and had an expected duration of 12 months. This allowed for training prior to commencement of the actual maternity leave. His rate of pay was €410.00 per week gross for a 40 hour week.

The employee returned from maternity leave on 7 January 2014 on a part-time basis and then resumed full-time employment on 17 February 2014. The complainant was kept on as the business was busy at that time. As time progressed the respondent was advised that the same employee would be going on a second period of Maternity Leave commencing about December 2014 and decided to retain the complainant to cover that leave. In the meantime the complainant was given alternative responsibilities of reorganising certain stores and assisting the purchaser with any excess work load / duties. Towards the end of that year the work reduced and the complainant worked a 2 day week.

In the meantime in September 2014 the respondent employed a graduate engineer and it was decided to assign some of the maternity leave work to this person as part of their training. In early January 2015 the maternity leave commenced and the complainant returned to full-time working.  In May 2015 the complainant was out sick for two weeks and at the end of June 2015 the complainant commenced a 7 week sick-leave absence. An employee, who was a management- trainee and related to the respondent’s Managing Director, was assigned to cover work that the complainant had been doing. In August 2015 the complainant returned to work but in early September went out sick again and advised the respondent of the seriousness of his illness and of the fact that he would be absent for “the foreseeable future”. At about this time the graduate engineer left the employment. The employee on Maternity Leave returned in September and resumed full-time working in October 2015.

In November (according to the complainant) or early December (according to the respondent) there was a discussion between the parties regarding the complainant’s return to work. There was as yet no definite date for this and the respondent advised that there was now not enough work for full-time employment. The possibility of a 2 day week was mentioned. The parties met again on 6 January 2016 and the complainant advised that he was certified as fit to return to work on 11 January. The respondent again advised that there was not a full-time position for the complainant but that they would look into the possibility of a 2 day week. The complainant sent an email that evening stating that he was not in a position to reduce his working hours. Two days later the respondent confirmed that the only position available was providing cover in the hardware store on reduced hours. This was not acceptable to the complainant and arrangements were then made to contact the Social Welfare Office and to forward the P45 form to the complainant.

The complainant in his submission stated that following the ending of the first maternity leave in February 2014 he was verbally advised that he was being appointed to a full-tome position as storeman. No contract was produced but he was asked to sign an Employee Code of Practice Form and was given a document in relation to Storeman Job Description / Duties. There were further conversations with members of management regarding developing his role in the company. In addition, whilst on sick leave, he received and answered queries in relation to work issues. The complainant also submitted that the M.D.’s relation and another person with less service than him were now performing his duties.

It is accepted that the only contract ever issued to the complainant (apart from the JobBridge documentation) was the Temporary Contract with a commencement date of 4 February 2013 with the words “Maternity Cover” in it and with an expected duration of 12 months. The complainant was kept on when the employee concerned returned to full-time employment in February 2014. The issue of a second period of maternity leave did not arise at that time. Indeed the respondent has stated that the complainant was retained because the company was busy. Furthermore when, some time later, the issue of the second maternity leave arose there was no attempt to issue a specific contract in that regard.  

Having regard to all of the above the situation was that following the expiry of the temporary contract on 4 February 2014 the complainant was then employed on a contract of indefinite duration. In deciding to make the complainant redundant in January 2016 the respondent could not contend that the complainant was covering maternity leave and that his employment finished as a result of the return to work of the person on that leave. Consideration has to be given as to the basis by which the respondent chose to make the complainant alone redundant out of a workforce of about 30 members of staff. In Case No. UD206 / 2011 the Employment Appeals Tribunal stated:

“When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner.”

The EAT went on to list some of the deficiencies in that particular case:

“There was no serious or worthwhile consultation with the claimant prior to making her redundant. The consultation should be real and substantial.

No suitable or substantial consideration was given to alternatives to dismissing the claimant by reason of redundancy.

There was no worthwhile discussion in relation to the criteria used for selecting the claimant. The selection criteria should apply to all employees working in the same area as the claimant but should also consider other positions which the claimant is capable of doing.”

There was no evidence presented as regards any objective and transparent selection criteria being utilised prior to deciding that the complainant be made redundant nor of the financial considerations faced by the respondent that required a reduction in staff levels. The offer of a 2 day week could not be considered as suitable alternative employment as it constituted a 60% reduction in working time / earnings. I also note that the complainant was not advised of any process by which he could appeal the decision on the termination of his employment.

Finally I note that there was confusion with regard to the redundancy payment with the respondent providing evidence that the calculations had been done around the time of the redundancy but the complainant stating that he had had no knowledge of this until July 2016 and that he had rejected the payment.

Having considered all matters put before me I find that the respondent was unfairly selected for redundancy and therefore was unfairly dismissed under the Unfair Dismissals Act 1977. I note that compensation is the preferred form of redress and I award compensation of €21,750.00 in respect of same.

Dated:   6^th December 2016