Complainant

Respondent

Anonymised Parties

A Maps Data Analyst

A Tech Company

Representatives

David Cowhey, Solicitors

Sophie Crosbie, IBEC Executive .

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00007481-001

06/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969

CA-00007481-002

06/10/2016

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00007481-003

06/10/2016

CA-00007481 Terms of Employment ( Information ) Act 1994

Complainant Position :

The complainant submitted that she was entitled to be furnished with a written statement of her terms and conditions of employment reflecting her true employment status pursuant to Section 3 of the Act .She contended that the written statement of the Independent Contractor agreement did not reflect the relationship between the parties and the document should be amended pursuant to Section 7 of the Act.

Respondent Position :

The respondent rejected the claim and sought that it be dismissed. The complainant was deemed to be a self employed independent contractor and the contract issued by the respondent reflected this.

The respondent submitted that the complainant had not been disadvantaged or prejudiced due to an absence of knowledge of any terms and conditions of the contract she entered into .The terms and conditions were made known within 8 weeks, the time specified by legislation.

Decision:

Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the complaint before me.

I have considered the parties positions on this claim.

Section 1 of the Act defines an employee as having a contract of service and defines and employer as

“ employer”, in relation to an employee, means the person with whom the employee has entered into or for whom the employee works under (or, where the employment has ceased, entered into or worked under) a contract of employment subject to the qualification that the person who under a contract of employment referred to in paragraph (b) of the definition of “ contract of employment” is liable to pay the wages of the individual concerned in respect of the work or service concerned shall be deemed to be the individual’s employer.

Section3 of the Act sets out an employers statutory obligations under the Act :

 Written statement of terms of employment.

3

3. — (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment, that is to say—

During the period of 8 weeks into the complainants engagement , she did not fulfil the criteria of employee in possession of a contract of service in the eyes of the respondent .The company saw no reason to deviate from the self employed contract as they were not challenged on it .

However, I have found that the complainant was miscast in that role and I have recognised her service as that of an employee.

Therefore, it must follow that I find a continuous breach of Section 3 from March 2, 2015 .The complainant was not provided with a statement in writing containing particulars of her employee status within the 2 month window.

Given that the complainant no longer works for the respondent, I find that compensation of €500 to be a just and equitable remedy.

Respondent Position :

The respondent submitted, that not withstanding their position on the complainants employee status, that the complainant was dismissed in accordance with Section 6(4) of the Unfair Dismissals Act.

Section 6(4) (c ) of the Act expressly provides that the dismissal of an employee shall be deemed ….not to be an unfair dismissal if it results wholly or mainly from one or more of the following

(c ) the redundancy of the employee

The respondent submitted that the dismissal was wholly related to the decision of the client to dispense with the requirement of a number of specific teams servicing particular markets including the Venezuelan team .It was a genuine redundancy situation and applied equally to each member of the team .The respondent contended that there was very limited scope to redeploy any of the Venezuelan team to any other markets.

The respondent contended that there was no issue on group selection in accordance with section 6(3), as her colleagues had all been selected to perform services for particular markets based on their local knowledge of the language and experience of living in the particular market.

The complainant was not due to finish in September 2016.She did not raise any issues at the time of her dismissal, nor did she appeal .She had insufficient service to qualify for a lump sum redundancy payment.

The Project Manager gave evidence that there were 30 markets in operation .There was insufficient work in the Venezuelan market and in order to fill the idle time , the complainant worked on another Spanish speaking market .She worked on the Mexican market .He explained the “ native country “ rule necessary for working on markets .

The Site Liaison Manager gave evidence that recruitment for the MAPS team in 2015 had ramped up   to 200 participants from a base of 60 -70 . There was less emphasis on language being a requisite for the position and now the “native residency “was necessary. The Spanish markets covered the European and South/Central America, some of whom were serviced from the US .She told the hearing that the respondent was not party to the decisions of the associate company.

The respondent confirmed that the current number on the project stands at 120.

The respondent submitted that the complainants work was not interchangeable with people on the other 29 country specific markets .The US team was also disbanded, which affected the amount of English speaking work available.

In addressing the complainants representations on

1 The absence of a Selection Criteria

2 The absence of consultation and appeal.

The respondent contended that the requirement for selection criteria only exists in Irish law if the circumstances constituting redundancy apply equally to one or more employees in similar employment who have not been dismissed. This did not arise in the instant case.

The respondent submitted that the respondent was subject to the clients decision in terms of cessation of teams .These were the respondent’s first redundancies in 20 years.

The respondent submitted that the Act does not define a statutory obligation to consult about potential redundancies .In referring to considerable body of case law , the respondent cited

JVC Europe Ltd V Jerome Panisi [2011]IEHC 279

Mc Ginn V Murnaghan Bros ltd UD 13/2009 , where ,the employer had shown a substantial ground, namely redundancy , to justify dismissal and the claimant, of 23 years service , had failed to show that he was unfairly selected .This attracted modest compensation of €5,000.

FAI V Eoin Hand FTD/143. Labour Court .where the complainant was classified as a Consultant on a contract for service .

Mugford and Midland Bank [1997]UK EAT 760 96 2301,In this UK case , the respondent asserted that the UK Tribunal recognised that a lack of consultation about redundancy will not make a dismissal unfair if the decision maker finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in the particular circumstances .

Saul V Mahoney Manufactured Signs UD 37/2003, where employees were made redundant where an employer could not get insurance against accidents, no amount of consultation would have put the policy in place.

The respondent drew an analogy on that case with the instant case, on the announcement of cessation of the Venezuelan market and other markets, the respondent sought to change the mind of the associate company and were unsuccessful, no amount of consultation would have altered that.

The absence of consultation was regrettable but would have been an exercise in futility and the respondent submitted that it should not be found fatal to finding of Unfair Dismissal.

The respondent contended that loss was limited to 4 months .The company had acted decently and reasonably, payments in lieu were made, appeals were offered, where appropriate.

The respondent sought an outcome for a Fair Dismissal ,in the absence of this consideration should be given to compensation of nil or minimal proportions ,based on :

1 Short service /4 months loss.

2 Contingency work was given on foot of reduction in home markets

3 Acceptance of the payment in lieu of 4 weeks pay

4 The fact that the respondent and the complainants conduct was directly influenced by the fact that all parties were operating on the basis that these were contracts for service, rather than employment contracts.

Complainants Position ;

The complainant submitted that from the commencement of her employment, in March 2015, she was assigned by the respondent to work at the client base ( the associate company ).She asserted that she was assigned to the Latin American markets of Argentina, Chile, Mexico, and Venezuela. Priority was given to Mexico, Argentina and Venezuela markets .From December 2015, she was specifically assigned to the Mexican market, where she did routing tasks, not permissible on the Venezuelan market. She had agreed to an Independent Contractors agreement to run from March 2015 to the end of September, 2016.

In January 2016,having been aware of the down turn in the Venezuelan market , she approached the respondent with that fact, and sought employee status , believing that there was plenty work available to her on other markets .

She followed this up with a Manager from the associate company who told her that she would not be affected as she had been working for other markets.

The complainant submitted that the Spanish team had a meeting with their counterparts in the US .The Venezuelan team was anticipated to be minimised and new work was expected on the Colombian market.

The complainant followed up her request for permanency, and received positive feedback on her performance. “Working from home” facility was curtailed on 25 April and no clear picture for the time after May followed.

On 5 May, 2016, the complainant received an invitation by email at 6.26 pm to attend a meeting with the respondent the following day on Project Requirements .The complainant was dismissed at this meeting by means of a letter of termination, setting out payment of 4 weeks pay in lieu of notice. The reason for this was stated as “partial termination by the client of resources under our Statement of Work “.The complainant signed the termination letter and was not given an opportunity to take legal advice. The complainant submitted records of her assignments for a number of dates which confirmed her assignment to the Mexican market.

The complainant followed this up on 2 August, 2016 with the respondent, She outlined her attachment to the Mexican market and her shock following her dismissal .She sought re-instatement as an employee.

The respondent wrote back stating that the complainant was appointed to the Venezuelan market and that in order to be assigned to a market on a full time basis ,the prerequisite of being a native of the country stood .

Complainants Evidence :

The complainant submitted that she worked on a number of Central and South American markets. When she was hired, she understood that the priority was Spain, Argentina and Chile .She stated that being a native of a particular country was never mentioned to her .The project required reading in another language not speaking.

The complainant recalled that she was not assigned to work on the Venezuelan market after January 2016 .She had rotated between the Venezuelan, Chilean and Mexican markets before that, on the assignment of a manager from the client company.

She gave evidence of being devastated by the dismissal and believed that she had been treated unfairly by the respondent .She gave evidence of loss and mitigation and secured new employment in February 2017 .She sought the remedy of compensation .

During cross examination, she denied that she was covering a maternity leave locum on the Mexican team for her colleagues who returned on May 6 ,2016 .She said that that there were two places on the Mexican team as the team leader was not counted .She stated that she had worked on the Mexican market in July 2015.

She had responded to the email for the position where a geographical knowledge of Venezuela was required, but had lived in Ireland for 15 years. She understood that knowledge of both countries was required for the position.

The Complainants representative submitted arguments in support of Unfair Dismissal. He submitted that the respondent had not engaged in alternatives to the position they adopted on May 5. She had not been hired for the Venezuelan market and had not worked exclusively on that market. One of the reasons for this was that Venezuela did not allow routing in their country and this had to carried out on other markets .Subsequent to her dismissal, the complainant applied for the position of Maps Data Analyst with Spanish advertised by the respondent .She was unsuccessful .

The complainant argued that the complainant had been actively pursuing her employment with the respondent up to April 27, and had no idea her position was at risk .There was an absence of consultation, selection criteria or a facility for representation .She was first placed on notice of the circumstances of her selection for termination on August 3, 2016.Her contract was not due to expire until September 2016 and she had not recorded a waiver of her rights to pursue her case.

The complainant relied on EAT case law of Employee V Employer UD 206/2011.

I have listened carefully to both parties stated positions in this case; I have considered the extensive written and oral submissions. As stated previously, this case is linked to a number of similar cases in train before the WRC.

I have established that the complainant can be identified as an employee during the course of her employment and the respondent can be identified as an employer in accordance with the Unfair Dismissals Act.

The burden of proof now rests with the respondent to demonstrate that there were substantial grounds justifying the Dismissal as provided for in Section 6(1) of the Act.

Or

Section 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,

Section 6(7) of the Unfair Dismissals Act allows me to take account of the reasonableness of the employers conduct in relation to the dismissal.

I am satisfied from the outset that the conduct or competence of the complainant did not play any role in the course of events. It was common case, that the complainant was a high performer.

The respondent presented the circumstances surrounding the dismissal as arising from a genuine redundancy. I can accept that the respondent actioned the decision to dismiss in accordance with the client directive to reduce head count on the project. I have established was   a redundancy situation in accordance with Section 7(2)(c ) of the Redundancy Payments Acts 1967( as amended)

(c ) The fact that her 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 her dismissal )– to be done by other employees or otherwise

The respondent rested a large part of the justification taken to dismiss the complainant on the “ 5 year residency rule “ determined by the client .I was struck by the complainants own description of her work allocation on the Mexican markets at the end . There was much debate on the locum maternity leave cover undertaken by the complainant. I found no evidence that this had been communicated in writing or by any other means. Therefore, I must accept that the complainant understood she was placed on the Mexican market; a market she described herself was not favoured by the project teams.

In considering the extensive case law submitted by the respondent , I was struck by the common denominator in all but one of the cases ,( Hand ) that all the participants were well established in their respective roles of employee; employer at the time of their causes of action . In Mugford, the complainant had commenced work in 1970, was working in a Unionised employment, had the benefit of a long lead in time following his notification of being placed at risk of redundancy, where collective bargaining had a foothold on the process .Crucially, the arguments were based on whether the consultation that actually occurred was adequate rather than absent.? The case is therefore distinctly different from the instant case.

In the instant case, the profile of the complainant was that of a contractor on a contract for service at the time of her dismissal .I can understand that the respondent interpreted the termination clause in that contract and actioned the release arrangements . I also understand that the handling of the issue was hard on everyone .However, I now have to consider this case through the prism of the overall employer: employee relationship and I have found serious shortfalls in that analysis.

The contract issued to the complainant was silent on a reference to the Venezuelan market or indeed any other market. She was described as a self employed consultant to provide services of Application testing. At face value, that was a generic contract.

I found that the complainant was in contact with the respondent up to a week before her dismissal, with regard to seeking an extension of her contract and working from home. I have found that the respondent was on notice of the projected head count reduction sought by the Client at that time. I considered an email sent from the client on 28 April, 2016 at 14.41 listing the “Locales no longer supported “.The complainants name was on that list.

I was struck by the lack of human engagement between the respondent and the complainant between that email and the email which invited her to a meeting to discuss the project late in the day on May 5. This email also advised that she was not required to return to work before the meeting .I heard evidence from the complainant on her shock at being terminated in such a short notice situation and the effect it had on her family life.

I noted that the complainant did not avail of the 1:1 meeting offered by the respondent in the aftermath of her notification of dismissal.

I found that there was insufficient consideration given by the respondent to the actual work allocation of the complainant. She was assigned to the Mexican market on May 5, the day she received the email to attend the projects meeting. The respondent file note recorded an entry on 6 May at 11.30 am

“Advised no longer requirement for the market being worked on and given paperwork.”

I have established that the respondent accepted the names of the reduction in headcount as outlined by the Client. One market was saved at the 11^th hour .The respondent understood that the Analyst returning from maternity leave on May 6 would stabilise the Mexican market, yet none of this was communicated to the complainant. Both the complainant and the person she covered for commenced work on the same day, i.e 2 March, 2015. This raised the question of selection, which was clearly not considered.

Having considered all the facts of the case and evidence that followed, I find that the procedures used in relation to the redundancy situation were neither fair nor transparent. There was no evidence that the respondent entered into a consultation exercise prior to the dismissal, and given that the complainant was engaged on the Mexican market, there was insufficient regard directed at that distinguishing factor. In short, the complainant was not permitted a place at the table on any aspect of her redundancy .There was no equality of arms, no provision of appeal and simply no dialogue. In the case of Barry Ryan V Car Perfect Ltd [2012]1 JIEC 2401, the EAT set down a comparative analysis of skills sets in the face of a redundancy situation which in turn rendered a redundancy situation as a fair dismissal. This case is distinguished from the instant case.

Furthermore, when Section 14 of the Act was invoked by the complainants representative on December 1, 2016.

14 (4) Where an employee is dismissed, the employer shall, if so requested, furnish to the employee within 14 days of the request, particulars in writing of the principal grounds for dismissal, but, in determining for the purposes of this Act whether, in accordance with the provisions of this Act, the dismissal was an unfair dismissal, there may be taken into account any other grounds which, subject to the provisions of this Act and having regard to all the circumstances, are substantial grounds justifying the dismissal.

This did not achieve a response from the respondent.

In conclusion, I found the facts of this case to be very stark .The complainant gave evidence that she worked hard and wished to make a future in the company. She was pro-active in seeking to address her desire to be an employee and she demonstrated flexibility on her mobility on other markets .She demonstrated that she was negatively affected by the decision to dismiss her in the circumstances that followed. She submitted extensive documentation on her attempts to find work .She commenced a new position in February 2017.

In all the circumstances of the case, I have found that the complainant was unfairly selected for redundancy in contravention of Section .6 (3) and treated unreasonably in terms of S. 6(7) of the Act.

The claim for Unfair Dismissal succeeds.

Unfair Dismissal

Contract For Service