ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002590
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-00003598-001 | 30/03/2016 |
Date of Adjudication Hearing: 05/09/2016
Workplace Relations Commission Adjudication Officer: Peter O'Brien
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 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 employed from 1990 to March 25th 2016 as an Assistant production Controller. She was called into an office on January 29th 2016 and told her position was redundant. There was no genuine redundancy, no consultation about alternative options, no right to representation and was effectively dismissed that day and paid her notice. She had 26 years unblemished service. Statutory redundancy was paid and in other redundancy circumstances the company have paid an ex gratia redundancy payment. The same day the company announced on its notice board that another person had been appointed to the position of Operations Planning Co-Ordinator, a post the Complainant was not informed about or considered for the role. There was also a positon of Charge Hand advertised that day. The core issue is that this was not a genuine redundancy, no consultation took place and the process of selection for redundancy was totally unfair. The company posted substantial profits on their web site for 2015. The Complainant was not allowed back into the company to collect her personal belongings thus demeaning her further after her long and exemplary service. The Complainant has got a few weeks work for two and a half hours a day and is commencing a short term work contract in the near future. She earned 851 Euro per week. |
Respondent’s Submission and Presentation:
The Company has been operational for over 40 years. 90 staff are employed on a 5:1 direct to indirect ratio. In 2015 the company suffered a loss of sales volume of 12.3%. Every staff position was analysed for value add on to the business and it was determined that the Complainants position was primarily composed of tasks related to administrative, data entry and filing paperwork. Other activities included expediting and launching work orders. These activities did not add value and could be easily dispersed to other direct and indirect workers with no negative impact. The position was stand alone and there was no other suitable vacancy existing within the company. The Complainant was given the right to appeal the decision which she did.
Decision:
Section 41of 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.
It is not disputed that the Complainant’s employment terminated by notice at the end of the working day on January 29th 2016 and was paid the statutory redundancy payment. It is the Respondent’s case that the Complainant’s employment was terminated by reason of redundancy and she was paid the appropriate monies in discharge of her employment with the Company. While I accept that the Respondent was entitled to restructure its business and reduce its workforce if necessary, however, no evidence was adduced to show that any or adequate consideration was given to whether or not the Complainant’s selection for redundancy was fair or whether there were alternative roles she could be redeployed to. While I accept that the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain her employment, especially given the long unblemished service, should also have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved. The Respondent has not proffered any credible evidence of having done so. In my decision I am also influenced by the manner in which the Complainant was dismissed. This was a person with 26 years unblemished service to the company. She was given no prior warning of what was in contemplation. She was not given any opportunity to try and influence the Respondent on her own behalf prior to the decision being acted upon in one day. Her employment was terminated in a most insensitive manner. She was given no opportunity to seek representation or advice. In particular, the posting of the new appointment of an Operations Planning Co-Ordinator, on the date the Complaint was dismissed is highly significant. While I accept that in practice the roles may be different, the titles bare a remarking similarity, and the fact that the Complainant was not given a reasonable chance to be considered and fairly evaluated for that role is substantial in terms of fair procedure relating to a selection for redundancy. On the evidence as a whole, I have concluded that the Respondent has not proved that the Complainant’s selection for redundancy was fair and particularly the process used by the Respondent was not fair to the Complainant . In these circumstances, I have concluded that the dismissal was unfair. From the evidence presented I am satisfied that the Complainant discharged her duty to mitigate her loss. Taking into account monies already paid to the Complainant by the Respondent, I measure the financial loss suffered by the Complainant, both retrospectively and prospectively, at €25,000.00. The Complainant is awarded compensation in that amount. For the avoidance of doubt this award is in addition to all payments already received by her in connection with the termination of her employment including a redundancy payment. This amount to be paid within four weeks of the date of this decision.
Dated: 26/10/2016