Complainant

Respondent

Anonymised Parties

An Administrator

A Social Welfare Office

Representatives

Robert O Keeffe, Coakley Maloney Solicitors

Frank Nyhan, Frank Nyhan & Associates

Act

Complaint Reference No.

Date of Receipt

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

CA-00006860-001

07/09/2016

This is a Claim for Unfair Dismissal on the grounds of Unfair Selection for Redundancy.

The Respondent disputes that the Complainant had been unfairly dismissed and was instead dismissed by reason of redundancy.

The Respondent operates a Branch Office under contract with the Department of Social Protection (DSP) on a Contract for Service basis. The Respondents capacity to remunerate the staff employed at the Office is governed by the number of persons on the live register.

From February 2014 to May 2016, there was a percentage reduction of 27.683% in the number of persons on the Towns’ live unemployed register.

On 27 May, 2016,The Respondent was informed that the Department of Social Protection was unwilling to stabilise pay at January 2016 levels .That being the case , the Respondent submitted that they were left with no option but to attempt to carry out the business with fewer employees.

This was the first Redundancy process at the Respondent business and they applied the principle of “last in, first out “(LIFO) as the selection process .The Complainant was the last person employed and was placed on notice of redundancy on 31 May, 2016.

The Respondent submitted that the complainant indicated a wish to leave immediately and was issued with a termination date of Friday, 17 June, 2016. The Complainant chose to leave employment on 3 June, 2016. She received a Redundancy Payment of € 2,122.50, which was not recoupable from DSP.

Evidence of Mr A .( Joint Owner of the Business )

Mr A told the hearing that he had hoped to preserve the income received from DSP on 2016 levels and had received some level of assurance that this would be the case .Income was less than outgoings and he had informed the complainant that she ought to look for something else as the Office was quieter .He understood that she held qualifications in Accounting and would have no problem in getting other work.

The Complainant requested part time work, but there was none available .She had worked well at the Centre. He explained that LIFO would apply to the complainant and she was being selected for Redundancy .The Complainant was not given a specific end date and it was left open ended .The Complainant was not provided with an appeal.

During cross examination, Mr A confirmed that there had not been a lead in period and he had known about the impending Redundancy 10 minutes before the complainant. He knew the Complainants circumstances and that she had children at school. He was not in a position to tease out options and there was nothing else to do outside redundancy. He gave a listing on the National Live Unemployed figures

2014 398,069

2016 307,059

2017 263,417

He confirmed that the business did not have a policy on redundancy. There had not been an option for Voluntary Redundancy.

The Respondent submitted a list of nine employees inclusive of the complainant.

This consisted of 1 Deputy manager, 7 Clerical Officers and 1 Maintenance worker, not based in the Office. Two of the Clerical Officers were family members, one of whom had worked part time in the past, but were now full time.

The Complainant had been employed as a Administrator at the Respondent business since 19 February, 2014 .She worked a 35 hour week. The Complainant ran a small accountancy business in tandem with her job.

The Complainants Representative submitted that the Office was as busy as ever coming up to the time of May 2016 .It was the only DSP office in the town. The Complainant submitted that there had been a lack of consultation prior to the decision taken to make the complainant redundant and the complainant had been unfairly selected for Redundancy.

Evidence of The Complainant :

Ms C had arranged to take a half day off on Friday May 27, 2016 When Mr A called her in and told her that she was to made redundant .She sought part time work as she had lost some clients in her business in the months running up to May, who were proving hard to replace .Mr A told her to start looking for work straight away. She thought she might have until September. Ms C told the hearing that things had changed at the Office from February 2016 but Redundancies had not been discussed. She was the only staff member not trained on the two day training programme in the “green card” system. She submitted that she had been checked on sick leave in March 2016, despite always submitting a Drs certificate. This troubled her.

Ms C told the hearing that things had got quieter but “we weren’t standing around “She had concerns regarding her potential for reemployment in the open job market, given her age and experience of other large scale redundancies in the town. Ms C thought she would get a job in Job Path .She found a bad atmosphere in the office when she returned to work on the following Tuesday and she pursued the Job Path application.

The Complainant submitted that she genuinely believe that the number of service users would be back up as it had always been transient figure .The complainant gave evidence of loss and mitigation and submitted that she had been sick since March 2017 .

During cross examination, she confirmed that she had left on June 3, 2016 because of her expectation of being employed as a recruiter on Job Path , but this did not work out .She had also seen an opening for part time at the Office , but could not persuade Mr A to explore this proposal .

Ms C confirmed that she had not appealed the decision internally as she didn’t think that it would work .She submitted that she had found it difficult on her return to work after the weekend and told Mr A on Tuesday , May 31 that she would leave on June 3 , which she did .

I have given careful consideration to both parties oral and written submissions in this case .There was clear evidence before me that Customers and budget allocation to the Respondent Office for 2016 had been reduced. This was not contested.

Section 7(2) of the Redundancy Payments Act1967, as amended states that :

An Employee shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to-

(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 had been employed to be done by other employees or otherwise.

The Complainant has submitted that she was denied a Consultative process and was unfairly selected for Redundancy.

In order for the Respondent to justify a redundancy, It must be shown that there was a genuine redundancy as set out in S.7 (2) above, that the employee was fairly selected and that the employer acted reasonably in all the circumstances.

I have found that there was cogent evidence adduced at hearing that a genuine redundancy situation prevailed in the employment .The numbers on the live Register had reduced , causing an erosion in the number of attendees at the Office to claim DSP payments . It is regrettable that a delay arose on the communication of the reduced annual budget between the DSP and the Respondent as this in turn added to the element of surprise described by both Mr A and Ms C at the hearing.

Section 6(4) of the Unfair Dismissals Act 1977, provides that redundancy is a fair reason for dismissal .However, Section 6(3) of the Act sets out circumstances where a dismissal on grounds of redundancy may be unfair.

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

( a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

( b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

The Complainant did not have a clause governing Redundancy in her contract of employment, neither was she party to a Collective Agreement which covered this particular scenario .The Respondent confirmed that this was a first Redundancy for the Business and there were no agreed procedures or established custom and practice in place for selecting employees for redundancy.

At the time that Mr A confirmed that he reached a decision on 27 May to move to redundancy, the claimant was one of 6 Clerical Officer Grade engaged in frontline support at the Office. One Clerical Officer had already left on 29 April 2016. The Complainant had the shortest service of those who remained.

Mr A submitted that on May 27, 2016, he had decided to advance the case for one redundancy at the Office and 10 minutes later he told the complainant that she had been selected .I can appreciate that this was a terrible shock for the complainant.

However, I was struck by the evidence submitted by Mr A that he had placed the complainant on notice of Redundancy on an open ended basis. He did not issue actual notice on that date .An RP 50 form was not submitted by the parties and instead, I received a copy of the actual notice of the obligatory period of notice of Redundancy dated 3 June 2016 citing 17 June 2016 as the finish date. The Respondent permitted the complainant to leave within the obligatory notice period, without reliance on compilation of the RP6 form. The Employees anticipatory notice was accepted at 3 June 2016.

However , I found that while the complainant asked for part time hours in response to her being placed on notice of redundancy ,these conversations on possible alternatives were not given an opportunity to develop as the complainant sought to be released   later that week . In addition, I found that while the selection procedure of LIFO for Redundancy could have been explained better to the complainant ,it was clear that she had decided to seek her release and this prevented further exploration of alternatives prior to the issuing of the Obligatory Notice period on June 3.

It is permitted to leave your job before the date specified in a Redundancy Notice and still preserve the lump sum redundancy payment. This is what happened in the instant case .I appreciate that the complainant genuinely believed that she would be hired on job path, but it did not work in her favour.

I found that it was open to the complainant to submit an appeal of the Redundancy notification but she decided that it would not work. I found that the complainant had begun to experience a disassociation with the business by the end of May 2016 and acquiesced to the decision taken by the Respondent to make her position redundant.

It is clear to me that the Respondent could have handled the situation of Redundancy in a much more pro-active manner. However; I have found that there was a genuine Redundancy situation. I have also found that while LIFO is now challenged by the complainant, it did not amount to a breach of Section 6(3) of the Act and the claimant was not unfairly selected for Redundancy.

I have also considered Section 6(7) of the Act on the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal .I have found that the Respondent was faced with a challenging situation in having to manage a deficit in the Office Budget. I found that the Respondent was inexperienced in the process of management of a redundancy situation; however, I found that the Respondent did not act unreasonably. The Respondent introduced the prospect of redundancy on an open ended basis and only issued the obligatory two week notice at the behest of the complainant, for whom the Respondent then permitted a waiver of that period to facilitate an early release.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

I have set out my reasoning in the earlier part of my Findings and Conclusions , for all the above reasons , I find that the dismissal was not unfair and the claim under the Unfair Dismissals Act 1977-2015 has not succeeded .

Unfair Dismissal