ADJ-00003048

ADJUDICATION OFFICER DECISION/RECOMMENDATION

 Adjudication Reference: ADJ-00003048

Parties:

Complaint for Resolution:

Date of Adjudication Hearing: 29/03/2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as may be referred to or allowed for within the terms of the operation of the Workplace Relations Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing.

The Complainant herein has referred a matter for hearing under the Unfair Dismissals legislation 1977 to 2005 and in particular by way of Workplace relations complaint form dated the 12^th of May 2016 wherein the claim is one for Unfair Dismissals by reason of unfair selection for Redundancy. I confirm that the claim was brought with in the Statutory time limit and that I have had sight of submissions prepared by both parties and presented on the day.

Background:

The Complainant’s employment was ended with Notice on the 18^th of March 2016. By a workplace Relations Complainant Form dated the 12^th of May 2016 the Complainant has indicated that she believes her selection for Redundancy to have been unfair and in particular has cited a post –termination advertisement by her Employer seeking an operative with abilities that the Complainant says she had or could have had if the option to upskill had been provided. The Respondent denies that there was any Unfairness but in circumstances where the fact of termination is not being denied the burden of proof rested with the Respondent to demonstrate that it has acted fairly and reasonably in all the circumstances. Both parties handed in brief written submissions on the day. Both sides offered oral evidence and an opportunity to challenge such evidence was afforded.

The Complainant’s Case :

It is accepted that the Complainant’s employment with the Respondent company started in 2004. The Complainant appears to have worked in a cinema house initially and at some time thereafter she was moved to the Head Office for the purpose initially of being the Personal Assistant to the then owner of the business. The Complainant worked for 14 years in this office environment. With the passing of the Owner previously mentioned, the Complainant’s job description changed and shifted in line with the changing needs of the office environment. There is no doubt that the Complainant’s work was competent and that she was flexible and willing to taking on any role that fell to her over the years.

There can be no doubt that the entertainment/media industry was changing in line with universally acknowledged advances in technology. By 2016 it has to be recognised that a number of the Complainant’s functions had been stripped back in response to the lessening demand. There was additionally a policy of moving some of the administrative functions to the regional cinema houses.

However, the Complainant’s evidence is that she had no prior warning that her position was targeted for redundancy until she was called into the Board Room by the most senior person in the company on or about the 18^th of March 2016 and told that she was being made Redundant. It is accepted that there was no forewarning and no consultation and no right of Appeal offered. There was no letter or document to confirm the circumstances, reasoning and criteria for the selection and the fact of Redundancy. In fact, the Complainant was invited to take her personal belongings, leave her keys and advised that she need not return to work to see out her Notice period or otherwise.

It is worth mentioning that the Complainant was the longest serving member of staff with the exception of one other. The Complainant was on circa €29,000.00 per annum salary.

In the course of her Notice period, the Complainant spotted an advertisement for a Junior Accounts position with the Respondent company and this advertisement was included in the documents received by me and describes roles and functions which the Complainant was well capable of performing and others which there can be no doubt she could have mastered as had been well demonstrated throughout her Employment.

Summary of Respondent’s Case:

The Respondent’s case was set out by it’s Director (WP) who was in fact the individual who had terminated the employment. The Respondent company owns and operates some 16 cinemas across Northern Ireland and the Republic of Ireland. The turn over of the cinema house to which the Complainant herself was attached had a turnover of circa €3,000.000.00 and there is little doubt that this is a thriving industry with well documented profits. It does seem unusual, therefore, that the Complainant does not appear to have had an identifiable Contract of Employment. A witness representing the HR function was identified though there was little evidence of a HR function being involved in the termination of this employment which is unfortunate.

WP described his desire to streamline the Head Office in line with the changing and increasingly computerised/digitalised workplace. There was some natural attrition. There were also some redundancies in 2013 and indeed there were enhanced Redundancy packages provided to these (SIPTU represented) Employees at that time. WP indicated that he did not know that the Complainant was with a Union.

In and around February of 2016 WP described a meeting he had with his co-Director (his wife) and their son who himself had been working in the workplace since in and around 2013. The reason for this meeting is not clear but the outcome from the Complainant’s point of view was crucial in that at this meeting it was decided that her position was redundant. How this decision was reached and what criteria were applied and what options were considered is not clear and there were no minutes kept.

To his credit, WP’s account of the how he informed the Complainant of the termination of her 14 years of service is largely in line with that of the Complainant. He believed her silence was acquiescence whilst the Complainant had indicated it was shock.

At any rate there was no initial push-back on the 18^th of March and the Complainant left the workplace without demur. WP makes the point that the Complainant took the Statutory Redundancy to which she was entitled but there has long been acceptance that the act of cashing a Redundancy cheque does not render the aggrieved Employee estopped from pursuing Statutory rights. Sometimes the acceptance of Redundancy is a matter of financial expediency.

The Respondent accepts that in the period of time during which the Complainant’s Notice period was running the Respondent was advertising for a Junior Accounts Administrator at a start salary of circa €20,000.00.

Findings and Conclusions:

I have considered the evidence of the parties herein together with their submissions (both written and oral). It is disappointing to note that an Employer operating such a large and profitable enterprise has such little regard for the necessity to operate in accordance with what might be considered reasonable and fair. Having been told that there is a HR department there was little evidence of it’s being in operation. By some unrecognised process of acclaim it was decided at an undocumented meeting that the Complainant had to go. The spectre of a difficulty in the way in which the Complainant had been getting treated by WP’s own son was raised in the course of evidence though not fully explored. If there was such a difficulty, then the manner in which the Complainant came to be selected out of the blue becomes even more unedifying.

On balance, I find WP’s contrived reasoning for the abrupt disposal of this Employee to lack clarity. There was no reasonable or fair process of selection. There was no dialogue with the Complainant and no opportunity to see if she had any ideas for herself. The most telling evidence comes in the form of the advertisement placed within four weeks of the Complainant being invited to pack up her desk.

Decision:

In the circumstances outlined I am finding that the Dismissal herein was Unfair and unreasonable in all the circumstances and that no evidence was adduced such that demonstrated a genuine Redundancy was being effected.

I find that the Complainant has made reasonable efforts to mitigate her losses though there has been little success to date. The prospect of re-engagement is no longer tenable. In the circumstances and in consideration of all the facts I have found, I am awarding the Complainant the sum of €32,225.00. It is noted that a sum of €14,225.00 – making up the purported redundancy payment has already been made and may be off set against this award.

Dated:               12 June 2017

Workplace Relations Commission Adjudication Officer: Penelope McGrath