ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004428

Date of Adjudication Hearing: 05/01/2017

Workplace Relations Commission Adjudication Officer: Louise Boyle

Procedure:

In accordance with 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.

Respondent’s Submission and Presentation:

The Respondent did not engage with the Workplace Relations Commission in relation to the complaint. I confirmed that a letter had issued notifying the Respondent of the date, time and location of the hearing, and in the circumstances, I find that their non-attendance without any acceptable explanation to be unreasonable in the circumstances.

Complainant’s Submission and Presentation:

The complainant commenced employment approximately 1st July 2013, the exact date was unknown as the complainant never received a contract of employment or a handbook outlying terms and conditions of employment. Her role was that of manager in a shop that sold baking products as well as engaging in baking demonstrations and there was also a small coffee shop contained in the retail outlet. In March 2016 the employee and the three other employees were advised that they were placed on protective notice owing to a downturn in the business and at this meeting they were advised to be aware of the need to reduce costs.

The complainant stated that she had no involvement in this decision and it was the decision of her manager Ms A, a daughter of the director of the company Ms B. When the three month protective notice was due to end, the complainant was advised by both Ms A and Ms B that she was being made redundant effective 24^th June 2016. Initially the incorrect date had been put on her letter but this was later corrected. The complainant was paid her redundancy payment but claims that as the longest serving employee, she should have been offered alternative work as other employees with less service were retained and that there was no consultation with her in relation to what else might have been possible to ensure her employment was sustained. She stated she was unable to raise a grievance as she didn’t know what the grievance procedure was owing to never receiving a contract of employment

She claimed that while herself and Ms A always were very polite to each other, she sensed that her manager Ms A did not like her and cited an example of where she advised Ms A on a previous occasion that she could not offer customers a ‘free’ demonstration yet charge them €5 and that she sensed that her manager did not ‘like’ the complainant for speaking her mind. She therefore, questioned what was the real reason for making her and not one of the other employees redundant who had less service than her. She also wondered why if the company was doing poorly did Ms A state that they were going to hire somebody else in the store at the time employees were on protective notice.

Evidence was provided as to what she has done with regard to seeking other employment but she has been unsuccessful thus far and has enrolled in two courses to increase her chances of securing employment. As a result of losing her employment, she has had to engage with the bank regarding her mortgage and also lost family supplement allowance as she is no longer in employment.

The complainant relied on the following authorities:

Williams & Others v Compair Maxam Ltd [1982] ICR 156 – a UK case highlighting steps to be taken by employee prior to making a position redundant which it was alleged were not followed in this case.

Keogh v Mentroy Ltd (UD209/2009/MN205/2009/WT82/2009) – a case detailing how personal relationships are not a sufficient reason for making somebody redundant.

Boucher v Irish Productivity Centre [1994] ELR 205 details how the onus of proof is on the respondent to prove criteria for selection for redundancy was fair

Cusack v Dejay Royale Alarms [2006]17 ELR51 discusses the need to offer alternative employment and that the employee has a right to make alternative suggestions which the complainant was not given an opportunity to do so in this case.

Daly v Hanson Industries UD719/1986 is a case that examines how there needs to be a genuine redundancy situation and that the complainant did not believe hers was a genuine redundancy

Sheehan v Vintners Federation of Ireland Ltd [2009] 20 ELR 155 discusses how there needs to be consideration to genuine employees proposals in an effort to avoid a redundancy situation and that this was not undertaken.

Barry v Precision Software Ltd [2007] 18 ELR 190 highlights the need to forewarn employees of impending redundancy which the complainant alleged was not done in her case.

Legislation involved and requirements of legislation:

Section 6 of the Unfair Dismissals Act 1977 puts the burden of proof squarely on the Respondent.

6. (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4) goes on to state

6(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Findings:

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the unfair dismissal claim.

Section (7) of the Unfair Dismissals Act 1977 (as amended) reinforces the concept of procedural fairness which requires that the employer establish not only that it had substantial grounds justifying dismissal but also that it followed fair and proper procedures before dismissal.

(7) Without prejudice to the generality of subsection (1) of this section, 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 —

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

The onus is placed on the Respondent to justify the dismissal and where the Respondent seeks to rely on the redundancy defence, the following criteria must be met:

• A genuine redundancy situation must have arisen

• The dismissal resulted wholly or mainly from that redundancy situation and

• The employee made redundant was fairly selected 

   

  It was regrettable that the respondent did not attend the hearing to put forward a defence to the above and therefore, the only evidence I have is that of the complainant. While the employer does not have a statutory obligation under the Unfair Dismissals Acts to consult with employees, decisions from the Employment Appeals Tribunal have clearly detailed the duty for employers to consult in terms of their duty to act reasonably. What this in effect means is that a reasonable employer should:

   

  -        Give as much advanced warning as possible of a proposed redundancy

  -        Set out in writing the objective selection criteria

  -        Apply the selection criteria consistently and

  -        Consult and explore alternatives to the redundancies

   

  The complainant has stated that this did not happen. She claims she was advised that she was placed on protective notice in around March 2016 and it was her who followed up with her employer in June 2016 to ask what was going to happen. While it might have been expected that if an employee is placed on protective notice that they should realise that job losses might become a possibility, the complainant gave evidence that business had in fact increased by 16% and furthermore that her manager had discussed hiring somebody else, therefore, she did not envisage that redundancy was a possibility. She also advised that at no stage was her opinion sought around ways of avoiding a redundancy situation.

   

  It has clearly been set out in the case of UD/993/2009 (names of parties redacted) by the Employment Appeals Tribunal that:

   

  “In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedures may lead to the conclusion that an unfair selection for redundancy had taken place.”

   

   

  The complainant also cited numerous other case law which supports this and which was referenced in their submission. Furthermore, having heard the submission of the complainant and listened to her evidence, I find no evidence of any consultation with the complainant or an objective selection criteria used. The complainant advised that three others were retained in the store and she had greater service than them. While she was on a higher rate of pay than them, she was never offered alternative employment and the decision to make her role redundant was made without any consultation. With a heavy onus on the employer to prove that his act is reasonable and fair towards the employee selected for redundancy I find that the complainant’s dismissal was unfair.

   

  The complainant is under an obligation to mitigate her loss by actively seeking alternative employment. I have reviewed the efforts that the complainant made to seek further employment and I am satisfied that the complainant made some efforts to mitigate her loss and has not been successful thus far.

  In the absence of the respondent’s appearance I deem compensation as the most appropriate remedy.

Decision:

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.

CA-00006490-001

I find that the complainant was unfairly dismissed and the complaint succeeds and I deem compensation as the most appropriate remedy. In accordance with s.7 of the Act, I order the Respondent to pay the Complainant the sum of €8,000 (equivalent of 16 weeks pay), and a further €8,000 (16 weeks pay) which reflects the future loss of earnings of the complainant taking into consideration that despite efforts to secure employment she has been unsuccessful to date. This combined award is therefore €16,000 (the equivalent of 32 weeks’ pay). For the avoidance of doubt this award is in addition to all sums already received in connection with the termination of her employment.

Dated:   25^th April 2017