PTD171

• a.“The claimant’s dismissal by way of redundancy can be justified on objective grounds in the instant case and therefore I find that the complaint is not well founded.”

3. The case came before the Court 31 January 2017. In the interim one member of the original Division of the Court before whom it was listed had retired and been replaced under statute. The Court raised this matter with the parties and they both agreed to proceed with the case before the reconstituted division.

• 
  Facts

5. While the Company had emerged from Examinership it was trading in what was still a very difficult and competitive market. It was engaged in the process of generating internal efficiencies and of taking steps to grow the business.

6. The Complainant had been, since 9 September 2003, employed by the Respondent as an assistant credit controller. She worked 27 hours per week until the company got into difficulties at which time she agreed to reduce her hours to 24 per week. In addition she agreed to a request from the Company to alter her working pattern from five days per week to three days per week.

7. Around this time, by agreement, her pay was reduced in order to assist the Respondent company weather the financial storm it was navigating.

8. On 30 April 2014 the Complainant met with the Financial Controller Mr Dominic Poole who indicated to her that the Company was replacing its four part time assistant credit controllers with two full time staff.

9. Both Mr Poole and Ms Leydon give different accounts of that meeting. The Court will return to this point later. Suffice at this point to say that there were no minutes of the meeting kept by either side.

10. On 15 May 2014 the HR Manager, Mr Flor O’Donoghue,wrote to Ms Leydon in the following terms

• “Following a detailed review of of the business and your meeting with Dominic Poole on the 30^thApril 2014, we are reorganising our Finance Function and will be reducing our four part time commercial credit control positions to two full time positions.

  Unfortunately, as a result of this reorganisation your position will be redundant from 30^thJune 2014.

  At this stage we envisage that we will require two full time Credit Control Administrators and we are asking our current part time credit control administrators who are interested to apply for the position.”

• • “I would like to follow up on our conversation of earlier today and make two points inrelation to the proposed Redundancy scheme:

    I do not accept that my position here is redundant

    I believe that the process you are now engaged in, in relation to proposed redundancy is discriminatory to me, because I am a part time worker.

  12. A meeting was subsequently arranged for the 22^ndMay 2014. Mr O’Donoghue replied later that day stating
  • “Further to our conversation this morning, I wish to confirm the following.

    This is a reorganisation of the credit control function to respond to the needs of our commercial customers. As a result there will be two full time roles.

    You are welcome to apply for the full time roles. If your are not interested in the full time roles then redundancy is the option.

    We are currently preparing a job description and we will make this available to you on Wednesday of next week.”

  13. Ms Leydon reiterated her original position and the parties agreed to meet the following week.

  14.After the meeting Mr O’Donoghue made the following note.22^ndMay, 2014. Meeting with Carmel Leydon and Flor O’Donoghue 8.30 am approx..

  • At this meeting, Carmel again state that we were discriminating against her because she was a part timer. She stated that she didn’t believe her job was redundant. She held that the company was discriminating against her. I again stated that this is an organisation change where the Credit Control function was being moved into the Sales Unit with a very different job content. There would be two full time roles and the major part of the role was going to be sales. Credit control would be part of the role but a small part. The major part was selling further services. Carmel was very adamant that we couldn’t do this. Her role was a part time role and we were discriminating against her. The meeting ended there.”

• 
  15. On 3 June 2014 Mr O’Donoghue sent Ms Leydon a job description for a job entitled “Commercial Customer Care Executive. The is the title that was now being applied to the “Credit Control Administrator” post referred to in the letter of 15 May referred to above.

  16. The Complainant submits that she was already carrying out these duties and questioned why she had to apply for her own role.

  17. The Respondent submits that the Commercial Customer Care Executive role was a different role that involved 70% sales and 30% credit control and had a different reporting line into Sales.

  18. The complainant questioned why the role could not be carried out on a three day week basis and submitted that none of her allocated customers had suffered any service shortcomings based on her three day week working. She indicated that she wished to apply for the position on a part time basis.

  19. The Respondent advised that it had reached a decision that to give maximum service to customers the new position needed to be filled on a full time basis and so could not be filled on a part time basis.

  20. Further discussions followed regarding the level of redundancy pay that would apply to the Complainant.

  21. Finally the Complainant did not apply for the full time position and was made redundant.

  Complainant’s Case

  22. The Complainant submits that she was, contrary to section 9 of the Act, treated less favourably than a full time employee in terms of her terms and conditions of her employment by being selected for redundancy because of her status as a part time worker. She further submits that she resisted efforts by the respondent to force her to transfer from part time to full time work and that, contrary to section 15 of the Act, she was penalised by being unfairly selected for redundancy for resisting by lawful means an unlawful act.

  Respondent's Case

  23. The Respondent submits that the Company was going through an extremely difficult trading and financial period and was left with no choice but to take all reasonable steps to protect the business and with it the maximum number of sustainable jobs. It submits that in order to do that it needed to concentrate on transferring its debtors to direct debit payments and to turn engagements with customers into sales opportunities. It submits that continuity of service was required to effectively grow its business. Accordingly it decided to reduce the size of the credit control department and replace with an account management type function that concentrated on servicing the customers’ needs and increasing the level of services it provided to existing and potential clients. To do that it needed to reduce the level of resources devoted to credit control and increase the resources devoted to customer care and business development. It did so by reducing the size of the credit control department and introducing two full time customer care executive posts. It had concluded for good business reasons that these positions had to be filled on a full time basis.

  The Evidence

  24. Mr O’Donoghue gave evidence to the Court. He said that he was engaged in discussions with other members of management about the need to focus on sales and reduce the focus on credit control. He said that by 15 May Management had decided to eliminate all but one credit control post and to replace those part time posts with full time replacement customer focused positions. He said that he was advised that this had been discussed between the Complainant and Mr Poole at the meeting on 30^thApril. He said that he then prepared the letter of 15 May and issued it to the complainant.

  25. Mr Poole told the Court that he had concluded that the Company needed to develop additional sales and that the credit control department needed to move to direct debit and reduce the level of staff resources devoted to simple debt collection. He said that he told the Complainant of this requirement at the meeting on April 30^thand that the company proceeded to give effect to that plan over the following weeks. He said that the precise details of the new Customer Care Executive position took some time to crystalise but that the direction had been agreed and communicated to the Complainant. He said that he was convinced that the new role required full time staff and that this had been conveyed to him by both other members of staff and customers in addition to his own judgement.

  26. Ms Leydon told the Court that Mr Poole had not conveyed such intentions at the meeting on April 30. She said that he had simply told her all part time credit control department staff were being eliminated and replaced with full time staff. She said that he said that she could apply for a full time position or take redundancy. She said she understood that this amounted to a requirement that she transfer from part time to full time work or be made redundant. She said that she applied for the new post but on a part time basis. She said she was not permitted to do so. She said that she told the Respondent that it was infringing her rights under the 2001 Act and that she was made redundant because she was a part time worker. She said that she did not believe there was any significant difference between the work she was undertaking and the work of the Customer Care Executive.

  The Law

  27. Section 9 of the Act states

  • 9.—(1) Subject to subsection (2) and (4) and section 11 (2), a part-time employee shall not, in respect of his or her conditions of employment, be treated in a less favourable manner than a comparable full-time employee.

    (2) Without prejudice to section 11 (2), if treating a part-time employee, in respect of a particular condition of employment, in a less favourable manner than a comparable full-time employee can be justified on objective grounds then that employee may, notwithstanding subsection (1), be so treated.

    (3) Nothing in subsection (2) shall be construed as affecting the application of a relevant enactment, by virtue of section 8 , to a part-time employee.

15.—(1) An employer shall not penalise an employee—

• • (a) for invoking any right of the employee to be treated, in respect of the employee's conditions of employment, in the manner provided for by this Part, or

    (b) for having in good faith opposed by lawful means an act which is unlawful under this Act, or

    (c) for refusing to accede to a request by the employer to transfer from performing—

    (i) full-time work to performing part-time work, or

    (ii) part-time work to performing full-time work,

    or

    (d) for giving evidence in any proceedings under this Act or giving notice of his or her intention to do so or to do any other thing referred to in paragraph (a), (b) or (c).

    (2) For the purposes of this section, an employee is penalised if he or she—

    (a) is dismissed, suffers any unfavourable change in his or her conditions of employment or any unfair treatment (including selection for redundancy), or

    (b) is the subject of any other action prejudicial to his or her employment,

    but, where any such action with regard to the employee is in respect of the matter referred to in subsection (1)(c), that action shall not constitute a penalisation of the employee if both of the following conditions are complied with—

    (i) having regard to all the circumstances, there were substantial grounds both to justify the employer's making the request concerned and the employer's taking that action consequent on the employee's refusal, and

    (ii) the taking of that action is in accordance with the employee's contract of employment and the provisions of any other enactment of the kind to which section 20 (2) applies.

    (3) If a penalisation of an employee, in contravention of subsection (1), constitutes a dismissal of the employee within the meaning of the Unfair Dismissals Acts, 1977 to 1993, relief may not be granted to the employee in respect of that penalisation both under this Part and under those Acts.

    (4) In this section—

    “full-time work” means work which, if it were performed, would result in the person performing it being regarded as a full-time employee for the purposes of this Act;

    “part-time work” has the same meaning as it has in section 13 .

  
  28. The Court notes the difficult trading and financial history of the Respondent company in the period leading up to the events that give rise the this complaint. While noting those however the Court also finds that such difficulties may justify difficult decisions that affect peoples employment they cannot justify an infringement of the act.

  29. In this case the Court is asked by the Respondent to find that the decision it made to restructure the business and eliminate the four part time credit control positions was a bone fide commercial requirement and not in any way related to the status of the complainant.

  30. However the Court finds that such a finding would require consistency between the contemporaneous documents and the evidence otherwise before it.

  31. In this case the Court finds that the contemporary documents and particularly the letter from Mr O’Donoghue of 15 May 2014 make no mention of “Customer Care Executives”. Instead it refers to a requirement for “two full time Credit Control Administrators.” Indeed this is repeated in Mr O’Donoghue’s email of May 22 to Ms Leydon where he says “this is a reorganisation of the credit control function to respond to the needs of our commercial customers. As a result, there will be two full time roles.” Again no reference to Customer Care Executives or any change in the nature of the roles envisaged.

  32. Accordingly the Court finds that the evidence of Mr Poole regarding the meeting of April 30 and Mr O’Donoghue regarding the state of advancement of the discussions around the future of the Credit Control Department are not credible. Instead the Court prefers the evidence of the Complainant that Mr Poole only discussed a restructuring of the Credit Control Department at the meeting of 30 April. The Court finds that the content of those discussions is set out in the letter of 15 May and that that letter must be read at face value.

  33. The Court further notes that there is no minute of any discussions by management of the claimed introduction of customer care executives before Ms Leydon objects to her selection for redundancy on 15 May. After that date developments are noted. However before that date no record of any such discussion exist.

  34. On this basis the Court finds that the Respondent decided that it did not wish to continue with part time work and decided to terminate that facility.

  35. The question then arises whether this difference in treatment was justified on objective grounds.

  36. The Court finds that no evidence of any substantive nature was given to it on this point. Mr Poole and Mr O’Donoghue stated that was their view and that it was formed following complaints from customers and other staff members. Mr Poole stated that when part-timers were not available work would fall back on others in the group who had complained about additional work. However no evidence of such complaints were put before the Court. Indeed both witnesses told the Court that they did not undertake any systematic assessment of this matter. Rather in evidence they variously told the Court that the decision to favour full time over part time work was either based on complaints from customers or their own assessment of the future needs of the business.

  37. The Court finds that a more likely explanation for the events is that the Respondent decided to discontinue part time work, replace it with full time work and so advised the Complainant in the letter of 15 May 2014. When she objected and raised her rights under the Act, it sought to change the nature of the job in order to retrospectively justify that decision. There was no objective justification for that decision and indeed no real thought went into it until the objections were raised.

  38. On that finding the Court concludes that the Respondent treated the Complainant differently than a comparable full time worker because of her status and for no other reason. It further concludes that the decision was not objectively justified and accordingly constitutes an infringement of Section 9 of the Act.

  39. The Court does not find any evidence in support of the complaint that the Respondent infringed section 15 of the Act. Indeed the Court finds that as the Respondent had decided to dismiss the Complainant because she was part time it could not simultaneously be held to have also only decided to dismiss her in retaliation for and after she had objected to that self -same impugned dismissal.

  • 
    Determination
  
  40. The Court therefore determines that the complaint under section 9 of the Act is well founded, sets aside the decision of the Rights Commissioner and orders the Respondent to pay compensation in the sum of €26,000.

  41. The Court further determines that the complaint under section 15 is not well founded and dismisses that element of the appeal.

  • 
    The Court so determines.