ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000245

Complaint for Resolution:

Date of Adjudication Hearing: 21/01/2016

Workplace Relations Commission Adjudication Officer: Pat Brady

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and 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:

The complainant was employed by the respondent providing services on a contract basis mainly at one of the Dublin maternity hospitals, and occasionally at others. She had been employed since 2011.

She was informed by her employer on May 26^th 2015 that due to restructuring her  job as Local Area Manager would no longer exist and that she would have to attend for interview for other roles. She attended two interviews at which she failed to be appointed to a new role. She says that these interviews were not serious and at one of then she was not asked any questions; merely asked to fill out a template form she had been given that morning. No notes were taken.

Her fellow applicant for the first job, who had been successful was one of the interviewers at the second interview.

In the event she says that one of the positons being described as part of the re-structuring was in most material respects the same as the role she had been performing prior to the re-structuring.

At no stage was she told that she was ‘at risk‘ of redundancy.

She also requested, through her solicitor, notes of the interviews with all the candidates and these were refused.

Shortly after this she was told she had been selected for redundancy. She was offered alternative employment within the company which she declined; five positions offered to her were more junior and two were unsuitable on the grounds of their location and geography.

She says that there are ongoing vacancies to fill in for maternity leave which she would have been happy to fill.

In direct evidence she said that there had been no proper redundancy selection process and that she was not involved in any skills assessment steps for the purposes of a fair selection for redundancy. There was no agreed redundancy skills selection matrix and no agreement on scoring or weighting.

She was finally told she was redundant at a meeting on July 13^th 2015 and given the letter of termination.

She sought an appeal. While this was partly delayed over a dispute about her desire to be legally represented the appeal hearing eventually took place on October 7^th. At this meeting she challenged the matrix used and questioned the scoring. ON conclusion of the appeal  she was promised that she would be sent the notes of the meeting for her approval prior to a decision but this did not happen

In summary she says that there was no genuine redundancy situation, she was not given any specific notice that she personally was at risk of redundancy (apart from a general notice on May 26^th), and that no selection process was undertaken by the company.

Respondent’s Submission and Presentation:

The Respondent did not attend the hearing.

Findings

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.

The burden of proof under the Unfair Dismissals Act falls on the employer who in this case did not attend the hearing.

The EAT in several cases, for example Employee v Adrian Lee Services Limited [UD2073/2009]) has followed the decision of the High Court in Panisi v JVC Europe Limited [2011] IEHC 279 which stated that;

 ”it has been made abundantly clear by that legislation (UDA 1977) that, redundancy, while it is a dismissal, is not unfair. A dismissal,. however can be disguised as a redundancy; that is not lawful….Redundancy cannot, therefore be used as a cloak for weeding out those employees who are regarded as less competent than others…if that is the reason for letting an employee go, then it is not a redundancy but a dismissal”.

I find that this was a dismissal under the cloak of redundancy.

It lacks almost totally the characteristics of a redundancy; it fails the impersonality test as the complainant was clearly targeted on a personal basis for dismissal. On the basis of the evidence presented I find that the complainant was unfairly dismissed.

Evidence was given of her efforts to find alternative employment and to mitigate her losses which were stated to be €13,264. She has already been given €5240 in a redundancy payment.

Decision:

I uphold the complaint and find that the complainant was unfairly dismissed. Accordingly I award her €8,000 in compensation for her unfair dismissal.  As this award is made for the breach of her rights under the act and not in lieu of wages it is not taxable.

Dated:   23 March 2016