ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001197

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

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00001607-001	21/12/2015

Date of Adjudication Hearing: 03/08/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8 of the Unfair Dismissals Act, 1977 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

The complainant was unfairly and exclusively selected for redundancy, there was no proper engagement, there was no agreed objective selection criteria, there was no proper exploration of alternatives. The procedures adopted throughout were seriously flawed. The complainant considers that her disclosure she was a member of a Trade Union, resulted in a very significant change from reducing her hours to making the position redundant. The complainant’s responses were not properly explored or responded to. In February 2015, the complainant was brought to a meeting with the Director, who proposed to reduce her working days from 3 to 2. The complainant informed him that she would not respond immediately as she wanted to speak to her union to avail of advice. Following on from that the complainant received a letter from the other Director in which the position had completely changed and that the traditional role of receptionist was not essential and that Management were considering making the role redundant. The complainant’s union sought to engage in a consultation process and requested all of the appropriate related information. The respondent refused to engage with her representative. The complainant suffered an injury in March and was certified unfit to work. She returned to work in June and was sent an email informing her that she was being made redundant with one month’s notice which she did not have to work. The complainant appealed that and was deprived of an appeal hearing or indeed an objective impartial consideration of the appeal points, with the same Director that had dismissed her just responding in writing. The complainant was deprived repeatedly of representation, the respondent failed to follow fair and proper procedures, there was no exploration of alternatives, the selection criteria was unfair, the work was not gone.

Respondent’s Submission and Presentation:

A bona fide redundancy scenario existed within the respondent and that this was the reason for the complainant’s dismissal.

A trading loss was made in 2013 and this loss increased significantly in 2014 as the audited accounts will prove.

In 2014 the respondent employed 15 people and the number of people now employed is down to 9. Fixed term contracts were not renewed and staff that left were not replaced.

The position of receptionist within the company ceased to exist and on that basis the complainant was dismissed by reason of redundancy.

The position of receptionist has not been filled and the role previously discharged by the complainant has been subsumed by the remaining employees of the respondent.

The complainant was advised in March 2015 that her role of receptionist might have to be made redundant and following a meeting she was invited to advance proposals as alternatives to redundancy.

The complainant was absent through injury from March until early June 2015and the matter was put on hold during that period. A letter received from the complainant’s union was responded to.

As no alternatives had been received from the complainant and as the trading position had deteriorated formal notice of redundancy was issued to the complainant on 8 June 2015.

The complainant appealed the decision and this was addressed by way of letter from the respondent.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) 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 company?

Was the complainant unfairly selected for redundancy?

Legislation involved and requirements of legislation:

The Unfair Dismissals Act, 1977, states that redundancy “means any of the matters referred to in paragraphs (a) to (e) of section 7 (2) of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971.”

This section includes the following:

An employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to –

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee has been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

Section 6(4)(c) of the Unfair Dismissal Act states that the dismissal of an employee shall be deemed not to be an unfair dismissal if it results wholly or mainly from the redundancy of the employee.

Decision:

The complainant was employed as administrative worker with a company that installed self-service vending machines in kiosks nationwide. She commenced employment with the respondent in January 2010 and her employment terminated on 8 July 2015. Her gross pay was €288.46 for 24 hours per week.

In February 2015 the respondent’s directors became aware that trading losses had increased significantly and they sought professional advice in this regard. A number of measures were taken including the non-replacement of staff that left and the non-renewal of fixed term contracts. A meeting was arranged between two of the directors and the complainant and the possibility of the complainant reducing her hours was discussed. The complainant advised that she wished to consult with her trade union before responding.

On 2 March 2015 the third director wrote to the complainant advising that the role of part-time receptionist was no longer considered essential to the company and that it was proposed to make that role redundant. If that proposal was confirmed it would result in the complainant’s redundancy and the letter was formal notice of same. The complainant was asked to indicate if she was interested in voluntary redundancy or to suggest alternative re-deployment. It went on to state “I cannot create a new role for you (or maintain you in your existing role) where this is simply not economically viable.”

On 5 March 2015 that director again wrote to the complainant inviting her to a meeting on the following day and advising that she could be accompanied by a work colleague but stating that the meeting would not take place if she brought either legal or trade union representation. The complainant asked a work colleague to accompany her to the meeting as a witness. There are no agreed minutes of this meeting. The complainant in evidence said that she raised issues of being trained to perform other functions within the company and queried why she was the only member of staff being considered for redundancy. No mention of working reduced hours was made at this meeting. Resulting from this meeting the director wrote to the complainant setting out the respondent’s position. The director denied that the complainant was singled out stating that it was the complainant’s role that was under consideration for redundancy and not the person. The complainant was asked to respond with ideas as to how she might be redeployed within the company. This was followed by a further letter to the complainant a week later requesting a response as otherwise the director “will proceed to consider matters in the absence of any further input from you.”

On 16 March the complainant’s trade union representative wrote to the director protesting at these events and requesting a meeting to discuss same. The respondent’s solicitors replied to this letter on 24 March 2015 stating that it was not the policy of the respondent to engage with or recognise trade unions. The letter also reiterated the respondent’s position that they were awaiting receipt of proposals from the complainant with regard to alternatives as otherwise the respondent would consider the position in the absence of same.

A week later the complainant injured her foot in an accident outside of work and consequently was on certified sick leave until 8 June 2015. When the complainant returned to work she was met by the respondent’s Financial Controller who handed her a letter from the director stating that the requirement for a receptionist no longer existed and that consequently the complainant was being made redundant and was being paid in lieu of notice. The Financial Controller confirmed that her employment ceased with immediate effect. Two days later the complainant wrote to the director appealing the decision to terminate her employment and requesting a prompt hearing. On 19 June the director responded in writing to the issues raised by the complainant in her appeal letter and confirmed the decision to make the complainant redundant.

It is clear that there was a deterioration in the trading position of the respondent particularly in Financial Year 2014. As a result evidence was given that staff members leaving were not replaced and that fixed term contracts were not renewed. The complainant was the only staff member made redundant.

Section 6(7) of the Unfair Dismissals Act states that in determining if a dismissal is an unfair dismissal, “regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so –

to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…”

It is accepted that 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. There was no worthwhile or real discussion with the complainant in relation to the criteria used for her selection. The criteria should have applied to all employees working in the same area. Consideration should have been given to other positions that the complainant may have been capable of filling. In addition no reasonable explanation was put forward by the respondent as to why the subject of a possible reduction in working hours, as discussed with two directors in February, was not part of the agenda at subsequent meetings involving the third director who ultimately made the decision to terminate the complainant’s employment. Finally the appeal process was obviously flawed and not in accordance with the principles of natural justice and fairness as there was no meeting as requested by the complainant and the response came from the same director that took the decision to dismiss.

I therefore find that the complainant was unfairly selected for redundancy and that her complaint under the Unfair Dismissals Act, 1977, (Complaint No. CA-00001607-001) succeeds. I note that she has been endeavouring to obtain employment. I therefore order the respondent to pay to the complainant the sum of €16,000.00 as compensation in this regard.

Dated: 3^rd November 2016