ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000512

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

Date of Adjudication Hearing: 3rd March 2016

Workplace Relations Commission Adjudication Officer: Sean Reilly

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/dispute to me by the Director General, I inquired into the complaint/dispute and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint/dispute.

 Also in attendance at the Hearing was the sister of the Complainant and the Managing Director of the Respondent.

The Complainant was employed from 4^th April 1999 to 15^th May 2015 as a Manager by the Respondent, who are a community based provider of childcare services and her weekly rate of pay was €480.00c.   The complaint was presented to the Workplace Relations Commission on 11^th November 2015.

The Complainant was submitting that she had been unfairly dismissed by the Respondent in breach of her rights under the Unfair Dismissals Act 1977 and the Respondent was denying the complaint.

Both parties made detailed submissions supplemented by extensive documentation.

Summary of Complainant’s Submission:

The Complainant said the Respondent was run by a Board of Directors and that she was the Manager.   The Complainant said that no AGM’s of the organisation were held.

The Complainant referred to an Independent Report to the Board of the Respondent (copy presented to Hearing) that was prepared following extensive work and consultation by the authors.

In this Report is stated that the Manager i.e. the Complainant, “has achieved much of what is required of her, however her computer skills remain at a basic level.   The paper work was up to date on my last visit.”   Under Recommendations it states:  

• Communications should take place on an agreed basis between the Manager and the Liaison Person, rather than on an ad hoc basis
• The Manager and the Liaison Person may benefit from some extra training in the area of interpersonal communication.
• Regular Board meetings should take place and be attended by the Manager to facilitate better communications, the Manager will attend only for the portion of the meeting that pertains to the Manager’s Report.
• It may be useful to reread the attached information on governance and review practice as necessary.”

The Complainant said she felt and believed that this Report empowered her.

At the next AGM the Complaint raised issues as she had no other way to raise such issues.   The Complainant said that following this the relationship with the Board became dysfunctional.

The Complainant said that when the financial state of the Organisation and the possibility of redundancy was raised and discussed with staff, she was told by the Board that she was part of the reason they were losing money.  The Complainant said that she upset, hurt and greatly concerned at this statement to her and she believed that she was being targeted by the Respondent for dismissal.

The Complainant said that no alternative to redundancy was discussed or considered by the Respondent.   She said that when she offered to give up her management hours of 15 hours per week, that offer was not seriously considered by the Respondent and was rejected.

In relation to the handwritten note of the Meeting of 21^st April 2015 the Complainant confirmed that she had signed that as she was told by the Managing Director to sign it or we are going down the road of voluntary redundancy (this was denied by the Managing Director who was present at the Hearing) and that she felt obliged to sign.

The Complainant said it was clear that no alternative to the termination of her employment was or would be considered by the Respondent.   She said that plainly the matter of the termination of her employment had been pre-determined and that the process conducted by the Respondent was ‘a sham’, that it was a cloak to cover up the Respondent’s wish or intention to terminate her employment.

The Complainant said that she made every possible effort to retain her job, but all suggestions and proposals from her were rejected by the Respondent.   It was clear to her that the Respondent had decided to terminate her employment and would do so regardless of any proposal or suggestion made by her.   Despite desperately wishing and needing to retain her job she felt pressurised into applying for and accepting a redundancy situation.   The Complainant said that in view of what had occurred her redundancy could not be said to have been ‘voluntary’.

The Complainant said that she had been told by the Respondent that they intended to advertise and fill her job upon the termination of her employment and this is exactly what they did. She said that she was directly replaced very shortly after her employment with the Respondent and she submitted this fact meant that what occurred was not a genuine redundancy as defined.   The Complainant said that in addition it should be noted that no other employee, except her was made redundant and she said this fact supported her contention that she was ‘targeted’.

The Complainant submitted that based on the foregoing and the facts and circumstances of the case she was unfairly dismissed by the Respondent and she submitted that her complaint was well founded and that it should be upheld.

The Complainant gave evidence of her efforts to secure alternative employment and mitigate her losses.

The Complainant confirmed that she received from the Respondent the sum of €15,964.80c in statutory redundancy payments at the termination of her employment.

Summary of Respondent’s Submission:

The Respondent said the Complainant commenced employment with them on 12^th April 1999 and that on 15^th May 2015 her employment terminated by way of voluntary redundancy.

The Respondent said that in early 2015, they were informed by their funder that they faced a reduction in funding for the coming year.   In light of this information the Respondent examined options for the reduction of operating costs.   As staffing costs constituted by far the greater of costs the Respondent was forced to examine options regarding the potential redundancy of some employees.

A Meeting with all employees was held on 12^th February 2015.   At this Meeting the financial situation of the Organisation was informed and employees were invited to apply for voluntary redundancy and all such expressions of interest in that respect were to be submitted to the Board by 27^th February 2015.

Following this Meeting the Managing Director was approached by the Complainant with a number of queries regarding the question of redundancy.   She suggested that the offer of voluntary redundancy made to all employees was targeted specifically at her.   The Managing Director informed her that he would consider her questions and reply as soon as possible.   On 26^th February, the Managing Director replied to the Complainant informing her that the offer of voluntary redundancy was not targeted at any individual, but rather was a response to the current financial situation that Organisation faced.

On 10^th March 2015, the Complainant enquired whether she could remain in the employment until the end of the academic year should she avail of voluntary redundancy.   On 5^th March 2015, the Managing Director replied informing that should the Complainant avail of voluntary redundancy it would be effective immediately pending the completion of her notice period.

On 11^th March 2015, the Complainant informed that she wished to avail of voluntary redundancy on the basis that she remained in employment until the end of the academic year and that she would receive an ‘ex-gratia’ payment of an additional weeks pay per year of service.   The Respondent replied to this on 19^th March 2015, stating that they could not accede to the Complainant’s request to remain until the end of the academic year as the redundancy process was put in place to restructure the Organisation as quickly as possible and in addition they informed they were not in a position to offer any ‘ex-gratia’ payment as they simply could not afford to.  

On 23^rd March 2015, the Complainant informed that she “was very upset and disappointed to have been selected for redundancy ….. you have told me it is me that is causing the financial loss to the Company …. I see no alternative but to accept the offer of redundancy”   In response to this the Respondent stated: “It appears from your letter of 23^rd March 2015, that you feel that you have no option but to take the voluntary redundancy and as such I wish to assure you this is not the case.   If you wish to retract your request for voluntary redundancy we will respect your wishes in this regard.” The Complainant replied to this by letter of 13^th April 2014, stating: “In reply to your letter of 2^nd April 2015, I wish to re-iterate my view that I have no alternative but to accept redundancy in the circumstances” and she further stated: “I will regrettably finish up work on 15^th May 2015, as you have asked me to do so”

The Respondent said that on 16^th April the Complainant again wrote to them confirming that she wished to accept the voluntary redundancy.   On the same date, the Respondent replied, stating that they had, at that point, only invited expressions of interest in voluntary redundancy that were strictly voluntary in nature and they stated that: “…as it is clear you feel that you have no option but to take redundancy we will not be accepting your original request for voluntary redundancy.”

The Respondent said that as the parties had reached an impasse, a Meeting was arranged for the 21^st April 2015, to discuss the issues raised in correspondence.   At this Meeting the Managing Director informed the Complainant that the Respondent could not accept the her application for voluntary redundancy in a situation whereby she had stated that she felt that she being forced into this.   In response the Complainant offered to rewrite her letter of application.   The Respondent informed the Complainant that in no way was the Respondent forcing her take redundancy, if she wished to accept redundancy, she would be doing it of her own volition.   In her response the Complainant stated that: “I understand the voluntary package is being offered to all staff.   I wish to retract my previous statement in written correspondence to the Board regarding the redundancy package that has been offered.”   The Respondent said that the minutes of this Meeting were signed by all those present at the Meeting, including the Complainant.

Following this the Respondent wrote to the Complainant on 28^th April 2015. Informing her that: “I acknowledge your verbal request to apply for the voluntary redundancy package.   In order for us to process your application we would now require you to put your request in writing confirming your wish to apply for the redundancy package of your own volition.”   On 30^th April 2015, the Complainant replied stating: “I wish to apply for the voluntary redundancy package of my own volition”.   On 12^th May 2015, the Respondent replied stating: “I acknowledge receipt of your letter dated 30.04.15, in which you have formally applied for voluntary redundancy.   We would like to confirm that you have applied for the voluntary redundancy of your own volition and that you were not selected for compulsory redundancy”.   The Respondent said the Complainant redundancy was duly processed on 15^th May 2015.

The Respondent said that in November 2015, the Complainant lodged a complaint with WRC alleging that: “…following discussions with the Board it was made clear that the management position was the only position to be made redundant and I was the only member of staff affected.   I offered to give up my management hours of 15 hours each week, however my offer was rejected outright.   I felt that this was the boards way of terminating my employment with the service rather than it being a redundancy situation, my role in the service would have to be replaced.   I felt I had no option but to accept the offer.”

In relation to the Complainant’s allegation that “….following discussions with the Board it was made clear that the management position was the only position to be made redundant and I was the only member of staff affected” the Respondent said they absolutely deny this allegation.   On numerous occasions the Complainant was informed that the redundancy being offered was voluntary and that it was open to all employees, this was specifically conveyed to the Complainant by email of 28^th February 2015, by letter of 2^nd and 16^th April 2015 and verbally at the Meeting on 21^st April 2015 and the Complainant stated at that Meeting that she understood that voluntary redundancy was open to all employees.   In light of this the Respondent submitted that this allegation is demonstrably untrue.

In relation to the allegation that “I offered to give up my management hours of 15 hours each week, however my offer was rejected outright” the Respondent said it is denied by them that the offer of reducing her hours was rejected outright.   Rather, they informed that cost saving measures would be considered in the event that the redundancy procedure itself had commenced.   It was further submitted that that this alleged rejection is irrelevant for the purposes of the Complainant’s allegation of unfair dismissal.

In relation to the allegation that: “I felt that this was the Board’s way of terminating my employment with the Service rather than it being a redundancy situation, my role is the Service would have to be replaced.   I felt I had no option but to accept the offer” the Respondent said that this statement is demonstrably untrue.   On each occasion they corresponded with the Complainant they informed that the offer was for applications for voluntary redundancy only.   Indeed they went so far as to initially reject the Complainant’s application for voluntary on the basis that she had alleged that it was compulsory.   The Respondent said that only when the Complainant had expressly informed, on 2 separate occasions verbally and in writing, that she was accepting the voluntary redundancy of her own violation did they accept her application.   It was submitted that they could not have done any more to ensure that the Complainant was accepting the voluntary redundancy without any influence from anyone within the Organisation.   The Complainant was given every possible opportunity to decline the offer for voluntary redundancy and she actively resisted this.

In light of the foregoing submission the Respondent submitted that the Complainant’s complaint under the Unfair Dismissals Act 1977 – 2007 was not well founded and it should be rejected.

Findings and 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.

I have carefully considered the evidence and the submissions made and I have concluded as follows.

I note that the Complainant offered to forgoe or give up her management hours of 15 hours per week in order to avoid any necessity of redundancy.   The reason the Respondent gave for not considering this that it would only be considered when the question of redundancy was concluded does not make sense.   It was being proposed by the Claimant as an alternative to her being made redundant and should have been considered in that context.   I find that it is clear to me that the Respondent was not willing to consider any alternative to the termination of the employment of the Complainant.   I am accepting the submissions of the Complainant in this respect.

It was established at the Hearing that the Complainant was the only employee made redundant, this fact tends to support the submissions of the Complainant that the process was targeted at her and terminating her employment; I find and accept that that was in fact the case.   This fact would mean that what occurred was not a redundancy as defined by the Redundancy Payment Acts, as it was not “objective” and it is well established that for a redundancy to be legitimate the dismissal must be for reasons not related to the employee concerned.   This alone would make the dismissal unfair.

It was established at the Hearing that the Complainant was directly replaced in the job she held before her dismissal.   Again this fact means that what occurred was not a redundancy as defined by the Redundancy Payments Acts.   A dismissal of an employee followed by their direct replacement by a new employee doing the work they had done before their dismissal cannot be redundancy as defined by the Redundancy Payments Acts.   Again this fact would render the dismissal unfair.

I do not find the evidence of the Respondent in these matters to be credible or coherent and they are rejected by me; I find and declare that I prefer the evidence and submissions of the Complainant in these matters

I find and declare that I am satisfied that what occurred was not a redundancy as defined under the Redundancy Payments Acts, I find that rather it was dismissal of the Complainant dressed up as a redundancy.   Accordingly I find that there was no justification for the dismissal of the Complainant and that her dismissal was unfair.

Decision:

Based on the foregoing findings I declare that the Complainant was unfairly dismissed by the Respondent and I declare that the complaint under Section 8 of the Unfair Dismissals Act 1977 is well founded and it is upheld by me.

In considering the appropriate redress available in accordance with the provisions of Section 7 of the Unfair Dismissals Act 1977, I have taken into account all matters, including the views of the parties as expressed at the Hearing and I have concluded that there is an absence of the minimum level of trust necessary to sustain an employer/employee relationship and that accordingly the only appropriate redress is compensation.

In considering the level of compensation appropriate obviously I must take into account that the Complainant has already received the sum of €15,964.80c from the Respondent by way of redundancy payment for the loss of her job.

The Complainant was unfairly dismissed by the Respondent, I require the Respondent to pay her compensation in the sum of €30,000.00c, and this is in addition to €15,964.80c already paid to her in redundancy payments

Dated:   21^st June 2016