ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00004966

Complaints for Resolution:

Date of Adjudication Hearing: 28/02/2017

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 part of the Act as may be relevant, 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 as well as submissions tendered in advance.

The Complainant has brought a claim to the attention of the Director General pursuant to Section 77 of the Employment Equality Act of 1998 seeking redress in circumstances where the Complainant says she has been discriminated against by reason of a contravention of the Equality Acts.

Further and in the Alternative, the Complainant herein has referred a matter for dispute resolution under Section 39 of the Redundancy Payments Acts 1967.

The Complaints are brought before the Adjudication Services on foot of a Workplace Relations Complaint Form dated the 14^th of September 2016. The Complainant’s employment terminated (it is alleged) some nine months earlier in and around December of 2015 (being the last date of remuneration). The time limit to lodge a complaint may be extended if reasonable cause is shown.

Parties:   A Trainee Accountant -v- A Convenience store

Complainant’s Submission and Presentation:

It is necessary to summarise the Complainant’s employment history to understand what brings the parties before the WRC at this time. The Complainant commenced with the respondent company in 2006 and was quickly promoted to the Accounts department and singled out for special treatment in that she was provided with funding to further educate herself in the area of Chartered Accountancy. Whilst the funding dries up in and around 2008 (as the company came under financial pressure) the Complainant did continue with her own further education in her free time. The Complainant harbours aspirations to become an Accountant and the office based work that she did at the Respondent’s Head Office on St Stephen’s Green suited he aspirations in this regard.

The Complainant when asked accepted that she knew the Company was experiencing some financial difficulties though this did not necessarily affect her day to day job which was away from the 23 retail/convenience units being operated by the Respondent company.

Things however, came to a head in and around 2014 when in the early Autumn the entire of the Accounts Division was informed that the Accounts function needed to be outsourced as part of a cost saving package being implemented at Management level. The company taking over the Accounts function was Financial Consultancy Firm not too far from the original Head Office in which the complainant had worked, indeed a witness from that company came to give evidence in the course of the hearing.

As it happens, circumstances kept the Complainant out of the workplace for a period of time directly after this announcement had been made. The Complainant was travelling to China as part of her annual leave, and pregnancy related issues kept her out of the country for longer than expected with the complainant returning some 8 weeks later.

The complainant returned to a very different working environment. The building in which she had been working was being put on the market as part of an overall plan to salvage the Respondent company and the Complainant’s work colleagues in the Accounts department had either left the Respondent , or had taken up other positions in the Respondent company or had successfully applied for and obtained positions in the Financial Consultancy Firm that had taken over the Accounts Function.

The Claimant has not made the case that she did not interview for positions within the Financial Consultancy Firm and indeed gave evidence that she interviewed over the phone with her own line Manager and an Individual who was a partner in the Financial consultancy Company. On her return to Dublin at the beginning of December 2015 the Complainant was at a loss to know what it was she was expected to do. However, her own line Manager re-assured her that she was and continued to be an Employee with the Respondent Company . It is noted that the Complainant was on the pay role and had been on the Respondent payrole while she was away – including the extended period.   It seems that an office space on Grafton street was in the process of being prepared and there followed a difficult period of time when the Complainant worked from the offices of the Financial Consultancy Firm but was not an Employee there and her presence was some sort of goodwill gesture on the part of the Consultancy Firm which had by now subsumed most of the Accounts function into it’s daily activity.

The Complainant believed this situation went on for about four months though the Respondent suggested it was more like five weeks. In any event, the Complainant was still doing work largely commensurate with what she had been doing before she’d gone away and this continued after the Complainant moved to the newly prepared office space at Grafton Street.

It is accepted that at the time the Complainant’s go to person was her line manager with whom she had worked before the outsourcing had occurred. It is understood this individual no longer works in the Respondent Company. The complainant says that it was the Line Manager who had initially suggested that the prospect of Redundancy might arise but at the same time re-assured the Complainant that she had a job with the Respondent Company.

In the run up to her Maternity leave in May of 2015 the Complainant says she was reasonably content with the work she was doing as it was similar to the work that she had heretofore been doing in the Accounts Department (in Stephen’s Green) albeit the Complainant now worked alone and away from an Accounts team and only oversaw the Accounts of up to two of the retail units – both units situate in Galway which for strategic reasons had not fallen within the remit of the Consultancy Firm. So it was that when the complainant left to go on her Maternity leave that she believed she had a suitable job to go back to.

In October 2015, the Complainant returned to the workplace on the expiration of her Maternity Leave. The evidence given by the Respondent is that the two premises in Galway had been moved beyond the Control of the Respondent Company again as part of the series of drastic steps that the Respondent had had to take in response to the prevailing market climate. The Line Manager who had heretofore given some assurances to the Complainant had also moved on and consequently the Complainant dealt directly with Mr. G the Company owner. Mr G. provided the Complainant with alternative work in a position described as “shop Administrator”. The Complainant found this work to be materially different to the position that she had heretofore been working. The Complainant was not used to being on the shop floor and not used to physically dealing with deliveries. The position was seen by the Complainant to be retrograde and not in keeping with her well known ambition to become an Accountant. The Complainant worked this position in Westmoreland Street an O’Connell Street but was not happy to continue.

At this point in time the Complainant started to actively look to be made Redundant. Mr. G was not inclined to acquiesce to this request as his belief was that he was providing suitable alternative employment. There was some email communication between the parties in December 2016 though this did not satisfactorily resolve the situation.

Respondent’s Submission and Presentation:

By way of preliminary point the Respondent has invited me to refuse jurisdiction on the grounds that the claims have been brought outside the specified time limit.

The Respondent refutes that a claim lies under the Employment Equality Acts where no Prima facie case has been established against the Respondent that demonstrates any action or actions on the part of the Respondent have been grounded in an inherent discrimination either based on family status or the Complainant’s status as a woman.

The Respondent’s case was presented by Mr. G who had also prepared a written submission to the WRC in advance of hearing. The Respondent robustly rejects any entitlement to Redundancy and maintained that the Complainant was a valued Employee for whom there was much appropriate work available. On her return to the workplace after her Maternity leave the Complainant met with Mr. G and he offered her a position in Administration in one of the Retail units. Mr. G stated that the Complainant had been an excellent and valued Employee who had had a great work ethic. Mr. G accepted that he knew the Complainant wanted an office job but he was not in a position to offer one in circumstances where his business had gone into free fall in the course of the recession. Mr. G outlined the many difficult decisions he had had to make concerning his business, the assets held by the business and the workforce engaged by the business.

The Accountant who gave evidence was only able to do so in the most abstract way, she herself never having worked alongside the Complainant.

The Complainant never claimed to be an Accountant however she believes that the work she had been doing with this Employer was up to a standard that was capable of being signed off on by an Accountant.

Decision:

I note that the Complainant worked two days in December of 2015. These were her last two days of employment and the parties did not resolve the situation thereafter with the Complainant continuing to be on the Respondent’s books albeit she was not getting a wage. It seems to me quite likely in the circumstances, that the Complainant continued to be an Employee of the Respondent company until she issued the Workplace Relations Complaint Form in September of 2016. At the very least, the position is ambiguous and I cannot state with any certainty that the relationship herein ended in December of 2015 where neither party can point to any evidence to support this contention or intention. In this regard I note the content of Mr. Griffin’s letter in response to the issuing of the claims before the WRC wherein he states that the Complainant “remains an employee of our business”. This letter is undated though I must assume it post dates the 14^th of September 2016.

In the circumstances, I am satisfied that the Complaint form is within time and /or an appropriate extension is given such that the Workplace Relations Complaint Form is valid in all the circumstances.

I do not believe that the Complainant has made out her Prima Facie case under the Employment Equality Acts. This workplace was undergoing calamitous change which had a negative effect on everyone and not just the Complainant There was no Discrimination in the manner as alleged either directly or indirectly.

I am however, satisfied that a Redundancy situation existed herein. This Complainant has pushed herself to get to where she is. Her academic achievements entitle her to believe that she can make more of herself. The alternative suitable employment on offer here was simply not suitable in all the circumstances and the Employer should have acknowledged after ten years good service that it could not provide appropriate work for this Employee and allowed there to be a dignified parting of the way.

I find that the Complainant’s position has been made Redundant with the loss of the Accountant’s Department. I further find that alternative position suggested was not suitable to this particular employee in all the circumstances and in those circumstances the Complainant is entitled to an appropriate Redundancy payment.

Decision:

The Complaint under the Employment Equality Acts fails.

The Complaint under the Redundancy Payments Acts succeeds on the following basis:

The Complainant commenced her employment on : 06/02/2006

The Complainant’s employment with the Respondent terminated on : 06/02/2016

(For reasons of expediency, I have selected the termination date in circumstances where the employment relationship went into a situation of stalemate for a period of time prior to the issuing of the Workplace Relations Complaint Form)

The Complainant’s Gross weekly salary was : €528.84

This Order Is made subject to the Employee having been in insurable employment for the relevant period.

Dated:   09^th June 2017