UDD1635

This is an appeal by Barnacarroll Area Development Company Limited (the Appellant) against the Recommendation of an Adjudication Officer in a claim by Ms Mary Kirrane (the Respondent) that she had been unfairly dismissed by the Appellant.

In a decision dated 21^stJune 2016 the Adjudication Officer found that the Respondent had been unfairly dismissed and awarded compensation in the amount of €30,000 which was to be in addition to the sum of €15,964.80 previously paid to the Respondent as a Redundancy payment.

The Fact of dismissal

The fact of dismissal is in dispute.

The Facts

The Respondent commenced employment with the Appellant in April 1999. She ultimately discharged three roles in the employment – Child care Manager, Breakfast Club leader and Pre-School Leader. The Appellant worked a total of 40 hours per week in the discharge of her three roles and her rate of pay was €12.00 per hour.

The Appellant convened a meeting of the staff of the organisation on 12^thFebruary 2015 wherein the Appellant advised staff of financial difficulties being experienced by the Appellant. The Appellant invited all staff to apply for voluntary redundancy.

The Respondent met with the Appellant in late February 2015 wherein the Respondent raised some questions of detail as regards the matter of redundancy. Included in the issues raised was the Respondent’s concern that the redundancy matter was targeted specifically at her.

The Appellant responded to that meeting by mail dated 26^thFebruary 2015 setting out responses to certain matters. In particular the Appellant clarified that

• ‘this process is not targeted at an individual this is only an expression of interest in voluntary redundancy this is due to the fact on examining our financial situation as you are aware we will be approx. 10000 down this year so we need to restructure the service going forward in order to sustain the service in the long term, we have been advised it would be unfair not to offer voluntary redundancy to all employees regardless of length of service’

• ‘If I showed an interest in accepting the offer of voluntary redundancy, could I stay until the end of this academic year’

The Respondent wrote to the Appellant on 11^thMarch 2015 applying for voluntary redundancy and requesting that she remain in employment until the end of the academic year and that she be afforded a week’s wages per year in addition to statutory entitlement.

The Appellant replied by letter dated 19^thMarch 2015 confirming that the Appellant could not agree to the Respondent remaining in employment until the end of the academic year and confirming that the Appellant could not make any payment above statutory entitlements. The amount of statutory redundancy entitlement was specified in that letter.

The Respondent wrote to the Appellant on 23^rdMarch 2015 stating that she was upset at being chosen for redundancy and stating that she could see no alternative but to accept the Appellant’s offer of redundancy.

The Appellant wrote to the Respondent on 2^ndApril 2015 advising the Respondent that it appeared to the Appellant that the Respondent felt she had no option but to take voluntary redundancy and assuring her this was not the case. The Appellant advised the Respondent that if she wished to retract her request for voluntary redundancy the Appellant would respect her wishes.

The Respondent wrote to the Appellant on 13^thApril 2015 re-iterating her view that she had no alternative but to accept redundancy and stating that she had been advised by the Appellant that her position would be advertised when she was gone. She stated that she would finish up work on 15^thMay 2015 ‘as you have asked me to do so’.

The Respondent again wrote to the Appellant on 16^thApril 2015 confirming that she was accepting the redundancy package and that her last day of work would be 15^thMay 2015.

The Appellant wrote to the Respondent on 16^thApril 2015 stating that as it appeared to the Appellant that the Respondent felt that she had no option but to take redundancy the Appellant would not be accepting the respondent’s original request for redundancy. The Appellant also refuted the contention that the Respondent had been informed that her position would be replaced when she was gone.

A meeting took place on 21^stApril 2014 attended by three representatives of the Appellant and the Respondent wherein the matter of redundancy was discussed.

The Appellant wrote to the Respondent on 28^thApril 2015 acknowledging a verbal request for voluntary redundancy and asking the Respondent to put that request in writing confirming her wish to apply for voluntary redundancy of her own volition.

The Respondent wrote to the Appellant on 30^thApril 2015 applying for voluntary redundancy and stating that she was doing so of her own volition.

The Appellant wrote to the Respondent on 12^thMay 2015 confirming acceptance of the request for voluntary redundancy and confirming that the redundancy would take effect immediately.

The Respondent’s employment with the Appellant terminated on 15^thMay 2015.

Summary of the position of the Respondent

The Respondent contended to the Court that she had been constructively dismissed. She contended that events had occurred at an AGM of the Company approximately two years prior to the events at issue in the within case and that relationships had deteriorated subsequently.

The Respondent contended that albeit the issue of redundancy was raised with all staff at a meeting on 12^thFebruary 2015 no fundraising ideas were considered as an alternative.

The Respondent stated that she felt that the redundancy was targeted at her and that one of the two Board members with involvement in the running of the facility and who had direct dealings with the Respondent, Mr J, had stated that it was the management side of things that were the issue. The Respondent asserted that she was the only manager employed by the Appellant.

The Respondent stated that she offered verbally to Mr J on up to six occasions between February 2015 and May 2015 to forfeit her management hours but that the Appellant had rejected this approach.

The Respondent contended that, notwithstanding the correspondence between the parties, Mr J orally asked the respondent for her position on numerous occasions.

The Respondent in her submission asserted that at a meeting on 21^stApril 2015 the Appellant would not accept the Respondent’s redundancy application, as she had stated numerous times that she had no other choice. She asserted in her submission that she offered at that meeting to re-write her letter.

The Respondent stated in evidence that she signed minutes of that meeting under duress. The Respondent in evidence to the Court asserted that the minutes of the meeting were inaccurate and in particular the clause of the minutes recording her offer to rewrite her letter of application was inaccurate.

The Respondent asserted to the Court that her position was advertised following the termination of her employment and that no other employee was made redundant.

The Respondent submitted reference to authorities to the Court. The cases ofSt Ledger v Frontline Distribution Ireland Ltd (1995) – ELR160andPonisi v JVC Europe [2010] 21 ELR320,Roche v Richmond Earthworks UD329 (1997)andSheehan and O’Brien v VFI (UD787/2008)related to situations of compulsory redundancy where the fact of redundancy was in dispute or where in a compulsory redundancy situation the employer’s willingness to look at alternatives was considered. In addition the Respondent submitted reference toShortt v Data Packaging Limited (1996) ELR 7where the issue of duress in signing a severance agreement was considered.

The Respondent submitted reference toAllen v Independent Newspapers UD641/2000where the matter of bullying in the context of termination of employment was considered.

The Respondent submitted that she was unable to access stage two of the Appellant’s grievance procedure (which involved approaching an external mechanism) ‘as she was out of a job’. The Respondent in evidence also contended that her inability to avail of the grievance procedure at stage two was because she could not afford the cost of an external consultant as provided for in the procedure.

The Respondent confirmed in evidence that she had never raised her concern with the Appellant as regards issues of difficulty she might be experiencing in employment. She stated in evidence that she had requested voluntary redundancy in 2014. She stated in evidence that, notwithstanding she had, after February 2015, sought information from the Appellant as to whether she would be allowed to remain until the end of the academic year if she was intending to avail of redundancy and as to whether she would be afforded an additional week’s wages per year of service in those circumstances, she might not have accepted redundancy if those requests for information had been responded to positively.

The Respondent confirmed that she had spoken to a HR Consultant during the material time but that this conversation was not a professional consultation.

The Respondent contended that she had been replaced by the Appellant following the termination of her employment. The Respondent named the person who she contended had been employed by the Appellant to replace her.

Summary of the position of the Appellant.

The Appellant contended that it had, in consequence of financial difficulties, called a meeting of all of its’ staff on 12^thFebruary 2015. At that meeting it contends that it invited all staff members to apply for voluntary redundancy. It stated to the Court that staff were invited to apply for voluntary redundancy in expressions of interest to be made to the Board of Directors by 27^thFebruary 2015.

The Appellant contends that the Respondent approached Mr J subsequently with a number of queries. The Appellant contends that at that time she indicated to Mr J that she felt the redundancy matter was ‘targeted at her’.

The Appellant wrote to the Respondent on 26^thFebruary 2015 setting out responses to a range of matters and also clarified in that written correspondence that the redundancy offer was not targeted at any one individual but rather was a response to the financial situation of the Appellant.

The Appellant submitted that the Respondent on 5^thMarch 2015 raised a query as to whether she could remain in employment until the end of the academic year if she expressed an interest in redundancy. The Appellant responded in writing on 10^thMarch 2015 to the effect that she could not.

The Appellant received a letter dated 11^thMarch 2015 wherein the Respondent advised that she wished to avail of the offer of redundancy on the basis that she remained in employment until the end of the academic year and that she receive an ex-gratia payment of an additional week’s pay per year of service.

The Appellant replied to both requests in writing on 19^thMarch in the negative.

The Respondent wrote to the Appellant on 23^rdMarch 205 advising that she saw no alternative but to accept the offer of redundancy. The Appellant responded in writing assuring the Respondent that it was not the case that she had no option but to take the voluntary redundancy. The Appellant indicated in writing that if she wished to retract her request for voluntary redundancy that the Appellant would respect her wishes.

The Appellant, in evidence from Mr J, contended that the Respondent had not offered verbally on six occasions between February and May 2015 to forego her management hours.

Ultimately on 16^thApril following further correspondence the Appellant wrote to the Respondent advising that her request for voluntary redundancy would not be accepted because it was clear that she felt that she had no option but to take redundancy.

The Appellant contended that at a meeting on 21^stApril 2015 the Respondent retracted her earlier correspondence and confirmed her wish to apply for the redundancy package which had been offered. The minutes of that meeting were signed by representatives of Appellant as well as the Respondent. The Appellant asserted in evidence from the secretary of the company that the minutes were written contemporaneously, were accurate and were signed at the conclusion of the meeting on the 21^stApril.

The Respondent subsequently confirmed her application for voluntary redundancy in writing on 30^thApril 2015 and the employment terminated on 15^thMay 2015.

The Appellant submitted to the Court that a grievance procedure was in place at the employment and that the Respondent had access to that procedure at no cost to herself. The Appellant contended that the Respondent had not accessed that procedure to raise concerns either as regards her working environment or any concern she may have had that a redundancy was targeted at her.

The Appellant asserted that a person was engaged following the termination of the Respondent’s employment to undertake a portion of the role and that the management aspect of the role has been undertaken by the voluntary board since that time. The Appellant asserted that the financial effect of these arrangements has been such as to resolve the issues which gave rise to an invitation to staff to apply for voluntary redundancy.

Discussion and conclusions.

The matter before the Court was clarified by the Respondent at the hearing of the Court as relating to her contention that she was constructively dismissed by the Appellant.

The Respondent contended that events at an AGM of the Appellant some two years prior to the events at issue in the within case had contributed to a poor working climate. No submission or evidence was put before the Court to suggest that the grievance procedure had been utilised in the intervening period to raise such issues. The Appellant asserted that it was unaware of any issue as regards a difficult working environment.

The Respondent contended that the Appellant had made clear that the management position in the organisation, of which she was the post holder, was “causing the financial loss to the company’’. The Respondent contended that it was this perception which underpinned her assertions in writing that she saw no alternative to her acceptance of redundancy. The Appellant submitted to the Court that no statement was made to the Respondent which assigned responsibility for the financial challenges faced by the company to the Respondent.

The Respondent contended to the Court that the receipt of correspondence assuring her that it was not the case that she had no alternative to redundancy and further correspondence declining her application because it was grounded on her belief that she had no alternative did nothing to alter her belief.

The parties differed sharply as to the conduct of a meeting on 21^stApril 2015. The Respondent asserted that that while she had signed the contemporaneously written minutes of the meeting they were not an accurate record of the meeting and that she had signed them under duress. The Appellant asserted that the minutes were accurate and that the meeting was conducted without duress.

Where constructive dismissal is contended for it is for the person making that claim to establish that the behaviour of the employer was such as to leave the appellant no alternative but to terminate the employment or that the employer’s behaviour had fundamentally undermined the employment relationship. The person claiming constructive dismissal has an obligation to access available grievance procedures in the course of attempting to deal with whatever situation has led to consideration of termination of the employment.

The Respondent in the within case has argued that she was pressurised into availing of the redundancy offer put forward to all staff by the Appellant. In support of her contention she states that on approximately six occasions between February and May 2015 she offered verbally to forego her management hours and contended that on each occasion the Appellant refused. The Appellant rejects the contention that any such conversation took place.

The Appellant submitted to the Court that the matter at issue for the Appellant in 2015 was an issue of financial difficulty. The Appellant set out to the Court the scale of that challenge and asserted that the redundancy of the Respondent was followed by the assignment of management duties to the voluntary committee at no cost and the replacement of the Respondent in two other aspects of her role. The Appellant contended that this re-structuring has resolved the financial issues faced by the Appellant.

The Court notes the fact of correspondence between the parties at the material time and the fact that information requests were met by written correspondence from the Appellant. The Court notes the divergence of evidence as regards approximately six alleged offers from the Respondent in the period from February to May 2015 and as regards the events of a meeting held on 21^stMay 2015. The Court, on the balance of probability, prefers the evidence of the Appellant in these respects and finds that no verbal offer as regards foregoing management hours occurred in the period and that the minutes of the meeting of 21^stMay 2015 are an accurate record of the meeting.

The Court notes the authorities submitted by the Respondent but distinguishes those authorities from the within case on the basis that those cases, in the main, related to situations of disputed compulsory redundancy.

The Court does not find that the Appellant in the within case behaved so unreasonably as to fatally undermine the employment relationship or to otherwise leave the Respondent with no alternative but to terminate the relationship. It is clear that at any time the Respondent could have accepted the written assertions of the employer and ceased her interest in redundancy. She chose not to do so.

In all of the circumstances the Court does not find that the Respondent was constructively dismissed. The Court finds that the employment relationship terminated by reason of the Respondent’s decision to apply for voluntary redundancy and the Appellant’s ultimate decision to accept that application.

Determination.

The Court determines that the Respondent was not unfairly dismissed by the Appellant. The decision of the Adjudication Officer is set aside and the appeal is upheld.

The Court so determines.

Signed on behalf of the Labour Court



Kevin Foley
23rd January, 2017______________________
CCChairman



NOTE

Enquiries concerning this Determination should be addressed to Ceola Cronin, Court Secretary.