ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00001475
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-00002060-001 |
20/01/2016 |
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003) |
CA-00002060-002 |
20/01/2016 |
Date of Adjudication Hearing: 24/05/2016
Workplace Relations Commission Adjudication Officer: Emer O'Shea
Procedure:
In accordance with Section 41(4) of the Workplace Relations Act, 2015 [and/or Section 8(1B) of the Unfair Dismissals Act, 1977, and/or Section 9 of the Protection of Employees (Employers’ Insolvency) Act, 1984, and/or Section 79 of the Employment Equality Act, 1998, and/or Section 25 of the Equal Status Act, 2000] 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).
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 10 of the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003 (S.I. No. 131 of 2003)
Complainant’s Submission and Presentation:
The claimant had been employed at the cinema for 17 years. On 15th May 2015 the claimant received a letter from the directors of her employer company informing her of a proposed acquisition of the cinema by a new company . In the lead up to the date, the claimant had worked a massive amount of unpaid overtime in her capacity as Financial Controller to pave the way for the acquisition. No measures such as redundancies were purportedly envisaged which would have legally obliged both companies to engage in consultations with employee representatives with a view to reaching agreement and so on. All staff including the claimant, received both verbal and written confirmation that no measures were envisaged. However redundancies were in fact envisaged and claiming the contrary was a device used to evade basic legal obligations that otherwise would have arisen: on 26th May 2015 the claimant met with the Director of the transferee, and was advised that she would made redundant as all of the cinema’s Financial Control systems would cease once the business was transferred cinema and would be managed exclusively from Dublin (the only other option the Director presented to the claimant was that she move to Dublin, but there was no contractual entitlement therefor). In June 2015 the Director sent two further letters to the claimant (via her solicitors) confirming that she was in no way at risk of redundancy and that measures weren’t being envisaged. Again, these letters were devices used to evade basic legal obligations which he knew would otherwise arise. On or about 1st July 2015, the completion of the purchase of the cinema occurred and the trnasferee paid a reported consideration of in the region of €10,000,000 (ten million euro) on completion. Some weeks later the claimant was advised that the cinema’s Financial Control systems would cease in her location , and would be managed exclusively from Dublin. Note that this is exactly what both she and her solicitors had been assured by the trnasferee was not to happen. Subsequently, written confirmation thereof was received on 20th November 2015 - with no explanation or justification for the duplicity that was in evidence. Given what transpired, it is clear that none of the legal requirements for redundancy were complied with. The EU transfer of undertakings legislation was also breached in brazen fashion at the claimant’s expense. This chronology of events makes a mockery of fair procedures, of reasonableness and of basic and fundamental Irish employee rights. There is no doubt but that the claimant was unfairly dismissed, and that there was a blatant breach of a host of Transfer of Undertakings legal requirements. |
The claimant had been employed at the cinema for 17 years. On 15th May 2015 the claimant received a letter from the directors of her employer company informing her of a proposed acquisition of the cinema by a new company -. In the lead up to the date, the claimant had worked a massive amount of unpaid overtime in her capacity as Financial Controller to pave the way for the acquisition. No measures such as redundancies were purportedly envisaged which would have legally obliged both companies to engage in consultations with employee representatives with a view to reaching agreement and so on. All staff, including the claimant, received both verbal and written confirmation that no measures were envisaged. However redundancies were in fact envisaged and claiming the contrary was a device used to evade basic legal obligations that otherwise would have arisen: on 26th May 2015 the claimant met with a Director of the transferree, and was advised that she would be made redundant as all of the cinema’s Financial Control systems would cease in her area once the transferee bought the cinema, and would be managed exclusively from Dublin (the only other option the Director presented to the claimant was that she move to Dublin, but there was no contractual entitlement therefor). In June 2015 the Director sent two further letters to the claimant (via her solicitors) confirming that the claimant was in no way at risk of redundancy and that measures weren’t being envisaged. Again, these letters were devices used to evade basic legal obligations which he knew would otherwise arise. On or about 1st July 2015, the completion of the purchase of the cinema occurred and the transferee paid a reported consideration of in the region of €10,000,000 (ten million euro) on completion. Some weeks later the claimant was advised that the cinema’s Financial Control systems would cease in her location , and would be managed exclusively from Dublin. Note that this is exactly what both she and her solicitors had been assured by the transferee was not to happen. Subsequently, written confirmation thereof was received on 20th November 2015 - with no explanation or justification for the duplicity that was in evidence. Given what transpired, it is clear that none of the legal requirements for redundancy were complied with. The EU transfer of undertakings legislation was also breached in brazen fashion at the claimant’s expense. This chronology of events makes a mockery of fair procedures, of reasonableness and of basic and fundamental Irish employee rights. There is no doubt but that the claimant was unfairly dismissed, and that there was a blatant breach of a host of Transfer of Undertakings legal requirements. |
Respondent’s Submission and Presentation:
The respondent denied that there had been any breach of the Regulations and set out a chronological account of the exchanges that took place with the claimant in the run up to the transfer and during the ensuing month and submitted that the claimant was properly consulted with in November 2015 regarding the decision to centralise the administrative functions to Dublin.
The claimant commenced employment with the transferor on the 11th.January 1999 and following a transfer of undertakings , transferred to the respondent, on the 18th.June 2015.It was submitted that she left the employment through redundancy and her last day of employment was the 3rd.Dec.2015.The Director of the respondent met with the staff on the 26th.May 2015 and issued them with written notice of the transfer – the letter advised that no measures were envisaged by reason of the transfer that would affect her employment.Further reassurances were given to the claimant ‘s representative on the 11th.Jne 2015 confirming that all contractual rights and entitlements would be observed.It was submitted that the claimant’s duties continued as normal following the transfer.The company chairman met with the claimant on the 6th.November to ascertain her view on how the administrative office was working in locally.On the 7th.Nov. a decision was taken to move the local admin functions to Dublin to improve administrative efficiencies.A consultation meeting took place with the claimant on the 19th.Nov. where it was submitted that the claimant stated that her duties had been diminishing for some time and felt that there was nothing left for her to do that would justify her position in the Company.Alternatives to redundancy were discussed and it was concluded that there was no other option to redundancy.The ensuing documentation relating to the calculation of her redundancy was submitted in evidence.The claimant was paid her redundancy payment on the 8th.Dec.2015.Her solicitors corresponded the following day alleging that no procedures were followed.The company responded on the 16th.Dec. rejecting the allegations and confirming that payment was made directly to the claimant’s bank account.
It was submitted that the respondent had met their obligations under Regulation 8.It was submitted that no measures with respect to the restructuring of the company’s administrative functions were envisaged prior to or at the time of the transfer.It was submitted that at the time of the acquisition in June 2015, the administration of the cinema was being carried out locally with the administration for all other cinemas being carried out in Dublin.It was submitted that the respondent only made the decision having first met with the claimant to ascertain her views on the efficiency of the administrative function locally.Consultation and engagement took place on alternative employment but because the claimant was unable to work unsocial hours there were no alternative options for remaining in the company and it was submitted that this was accepted by the claimant.
Preliminary Matter of Jurisdiction
The claimant’s complaint was received by the Commission on the 20th.Jan 2016.The transfer of undertaking took place on the 18th.June 2015.The respondent submitted the complaint was out of time as it was received over 6 months after the transfer of undertaking took place.It was submitted that the claimant was in receipt of legal advice throughout this period and that consequently there was no reason why the claimant could not have submitted the complaint in time.
The claimant’s representative submitted that the complaint was in time as the relevant date for time frame calculation purposes was the 9th.November 2015 when the claimant was first advised at a meeting that her job was in jeopardy.It was submitted that if an extension of time was required the claimant could rely on the veil of secrecy under which the respondent operated and failed to reveal their intentions to reassign the claimant’s work to Dublin and leave her in the position of either moving to Dublin or being made redundant.
I have reviewed the evidence presented at the hearing and noted the respective positions of the parties.I do not accept the claimants representatives contention that the relevant date for calculating the 6 month time limit is the 9th.Nov.2015.The relevant date is the date of the transfer i.e. the 18th.June 2015.However, in light of the chronology of correspondence submitted into evidence , I accept the claimant’s contention that she only became aware of the threat to her employment some months later- i.e. November having received assurances to the contrary at the time of the transfer and consequently I am prepared to accept that there was reasonable cause for the delay in making the complaint.
DECISION
Alleged Breach of Regulation 8
It was submitted that local job losses were envisaged as a result of the transfer of undertaking and that consequently the respondent had failed to meet their obligations under Regulation 8 (c) and Regulation 8 (d) by engaging with employee representatives and informing them of the proposed job losses.It was submitted that not only was there an absence of information , the respondent had engaged in misinformation.The respondent was adamant that no measures in relation to the restructuring of the company’s administrative functions were envisaged prior to or at the time of the transfer.
I found the evidence of the claimant that from the outset – immediately following the transfer , her work and functions were progressively diverted to Dublin- to be credible and compelling Consequently , I reject the respondent’s contention that no measures were envisaged prior to or at the time of the transfer and accordingly I am upholding the complaint of a breach of Regulation 8.I find that meaningful consultation did not take place with the claimant at this point in time and I require the respondent to pay the claimant 4 weeks remuneration within 4 weeks of the date of this decision.
Complaint under the Unfair Dismissals Acts 1977
Complainant’s Submission and Presentation:
The claimant had been employed at the cinema for 17 years. On 15th May 2015 the claimant received a letter from the directors of her employer company informing her of a proposed acquisition of the cinema by a new company . In the lead up to the date, the claimant had worked a massive amount of unpaid overtime in her capacity as Financial Controller to pave the way for the acquisition. No measures such as redundancies were purportedly envisaged which would have legally obliged both companies to engage in consultations with employee representatives with a view to reaching agreement and so on. All staff including the claimant, received both verbal and written confirmation that no measures were envisaged. However redundancies were in fact envisaged and claiming the contrary was a device used to evade basic legal obligations that otherwise would have arisen: on 26th May 2015 the claimant met with the Director of the transferee, and was advised that she would made redundant as all of the cinema’s Financial Control systems would cease once the business was transferred cinema and would be managed exclusively from Dublin (the only other option the respondent presented to the claimant was that she move to Dublin, but there was no contractual entitlement therefor). In June 2015 the Director sent two further letters to the claimant (via her solicitors) confirming that she was in no way at risk of redundancy and that measures weren’t being envisaged. Again, these letters were devices used to evade basic legal obligations which he knew would otherwise arise. On or about 1st July 2015, the completion of the purchase of the cinema occurred and the trnasferee paid a reported consideration of in the region of €10,000,000 (ten million euro) on completion. Some weeks later the claimant was advised that the cinema’s Financial Control systems would cease in her location , and would be managed exclusively from Dublin. Note that this is exactly what both she and her solicitors had been assured by the trnasferee was not to happen. Subsequently, written confirmation thereof was received on 20th November 2015 - with no explanation or justification for the duplicity that was in evidence. Given what transpired, it is clear that none of the legal requirements for redundancy were complied with. The EU transfer of undertakings legislation was also breached in brazen fashion at the claimant’s expense. This chronology of events makes a mockery of fair procedures, of reasonableness and of basic and fundamental Irish employee rights. There is no doubt but that the claimant was unfairly dismissed, and that there was a blatant breach of a host of Transfer of Undertakings legal requirements. |
The claimant had been employed at the cinema for 17 years. On 15th May 2015 the claimant received a letter from the directors of her employer company informing her of a proposed acquisition of the cinema by a new company -. In the lead up to the date, the claimant had worked a massive amount of unpaid overtime in her capacity as Financial Controller to pave the way for the acquisition. No measures such as redundancies were purportedly envisaged which would have legally obliged both companies to engage in consultations with employee representatives with a view to reaching agreement and so on. All staff, including the claimant , received both verbal and written confirmation that no measures were envisaged. However redundancies were in fact envisaged and claiming the contrary was a device used to evade basic legal obligations that otherwise would have arisen: on 26th May 2015 the claimant met with a Director of the transferree, and was advised that she would be made redundant as all of the cinema’s Financial Control systems would cease in her area once the transferee bought the cinema, and would be managed exclusively from Dublin (the only other option the Director presented to the claimant was that she move to Dublin, but there was no contractual entitlement therefor). In June 2015 the Director sent two further letters to the claimant (via her solicitors) confirming that the claimant was in no way at risk of redundancy and that measures weren’t being envisaged. Again, these letters were devices used to evade basic legal obligations which he knew would otherwise arise. On or about 1st July 2015, the completion of the purchase of the cinema occurred and the transferee paid a reported consideration of in the region of €10,000,000 (ten million euro) on completion. Some weeks later the claimant was advised that the cinema’s Financial Control systems would cease in her location , and would be managed exclusively from Dublin. Note that this is exactly what both she and her solicitors had been assured by the transferee was not to happen. Subsequently, written confirmation thereof was received on 20th November 2015 - with no explanation or justification for the duplicity that was in evidence. Given what transpired, it is clear that none of the legal requirements for redundancy were complied with. The EU transfer of undertakings legislation was also breached in brazen fashion at the claimant’s expense. This chronology of events makes a mockery of fair procedures, of reasonableness and of basic and fundamental Irish employee rights. There is no doubt but that the claimant was unfairly dismissed, and that there was a blatant breach of a host of Transfer of Undertakings legal requirements. |
It was submitted that the respondent’s offer to the claimant to relocate to Dublin was a sham as there was no contractual entitlement in her contract to be moved and the respondent knew her family circumstances would not allow this.It was advanced that nothing could have justified the respondent’s about turn and that objectively there was no reason for implementing redundancies in the relevant time frame.It was submitted that the respondent company had taken on a new recruit shortly after the claimant’s employment was terminated.It was argued that no fair selection procedure took place in effecting the redundancy and that there was no proper discussions or consultation with the employees.It was submitted that the respondent had failed to comply with the 2 weeks notice required by RP 50.It was submitted that the decision to make the claimant redundant was taken prior to the transfer , that the purported redundancy was a sham and that there was no proof that a genuine redundancy existed.It was contended that the respondent had demonstrated disdain for employee rights and that their conduct was unacceptable.
Respondent’s Submission and Presentation
The respondent denied that the dismissal was unfair and set out the chronology of exchanges between the claimant and the claimant’solicitors since the transfer of undertaking.An account of the meetings between the respondent and the claimant was presented and records of these meetings were included in the submission.
It was submitted that a genuine redundancy existed with respect to the claimant’s position.The administrative functions had ceased locally and were now being carried out in Dublin.The claimant’s opinion had been sought before the decision was taken to effect the redundancy, alternative employment options were discussed including the exploration of any interest she might have in a manager’s position , but she had declined alternative options owing to family commitments.The claimant had accepted that a genuine redundancy situation existed and acknowledged that her work had moved to Dublin.She had accepted the redundancy payment and wished the company well.It was advanced that there were valid business reasons for centralising the functions and that the dismissal arose wholly from the redundancy of her role .
Decision
I have reviewed the evidence presented at the hearing and taken account of the records of the meetings that took place with the claimant about the matter of redundancy– the claimant did not dispute the accuracy of said records. I am satisfied that the claimant accepted that there were compelling economic reasons for centralising the administrative functions in Dublin .I am further satisfied that there was meaningful engagement with the claimant from November 2015 onwards in relation to her future role and that alternatives to redundancy were genuinely explored with her.The option of redeployment was available to the claimant but was declined for compelling personal reasons.In all of the circumstances , I find the respondent acted reasonably in effecting the claimant’s redundancy.I am satisfied on the basis of the evidence presented that the dismissal resulted wholly or mainly from the claimant’s redundancy and consequently I find in accordance with the provisions of Section 6(4)(b) of the Act that the dismissal was not unfair.
Dated: 22 September 2016