ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00005197

Complaint for Resolution:

Date of Adjudication Hearing: 01/03/2017

Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Complainant’s submissions:

The complainant alleges that when on maternity leave she was unfairly dismissed.

She started working for the previous company on 3rd of March, 2014 as Sr. Design Engineer in Dublin office. On 30th of September, 2015 there was transfer of part of the business to the respondent. The complainant and one other were in the Dublin office.

She commenced her maternity leave on 5th of October , 2015 and was to return from maternity leave on 15th of August, 2016. It was during this period her employment was terminated.

20th of June, 2016 - while on maternity leave she received a call the Sr. HR Manager about her employment relocation offer.

27th of June, 2016 - She received an email from the HR Manager asking if there are any questions about the relocation offer.

1st of July, 2016 - She sent an e-mail to the HR Manager stating her surprise about relocation offer and asking for more information about it. She also informed her that she was out of the jurisdiction for the month of July and would not be reachable all the times.

13th of July, 2016 – She received a response from the HR Manager stating the reasons for relocation. She did not give any details about the actual relocation. She merely stated that she would be moved to Cork. The HR manager gave her until the 20th of July to reply.

She did not have a chance to read this e-mail and to respond to her because she was traveling. She had put the HR manager on notice of this fact on the 1^st July, 2016.

29th of July, 2016 she received an e-mail from the HR Manager stating that because she had not received a reply to her offer on or before the deadline her employment was being terminated.

The letter of termination stated that she confirmed on the 1st of July that she was not accepting the relocation offer, which is not true. Her e-mail of the 1^st July actually requested details of the offer and the reasons why her location was being changed. She never had a chance to accept or reject the relocation offer. She believes that her employer used the information that she was travelling to their advantage.

The complainant started a new part time role lecturing in September, 2016. She also has a second part time role as a University researcher. Together her salary now is equivalent to that when she was working with the respondent.  

Respondent’s Submission and Presentation:

The respondent agreed with the complainant’s evidence and stated that the decision was made to close the Dublin office as there was only one employee left there, the complainant. It was originally thought that she could work from home but upon reflection the company decided that the role would be moved to Cork. The respondent stated that the role was not made redundant and that is why the complainant was not offered a redundancy payment. It was the respondent’s view that she was not going to move to Cork and therefore they had no option but to let her go. The respondent accepts that all of the correspondence took place while the complainant was on maternity leave.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Following the hearing of this matter correspondence was received from the HR Manager, who was not present at the hearing. I have not read or considered this correspondence as it was inappropriate for the HR manager to correspondent with me following the hearing of the matter other than to inform me that the matter had been resolved.

I find that the respondent’s communications with the complainant during her period of protected leave to be inappropriate. Furthermore, the respondent did not correspondent with the complainant in a meaningful way. The complainant requested some information in relation to the re-location offer but none was forthcoming. The respondent, by giving her a short deadline was forcing her to make a decision, while on maternity leave and without any information about the offer of re-location. No proper procedure/s were followed by the respondent.

The complainant started a new part time role lecturing in September, 2016. She also has a second part time role as a University researcher. Together her salary now is equivalent to that when she was working with the respondent.  

Section 7.—(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and

(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay

In all of the circumstances I find that the complainant’s claim pursuant to Section 8 Unfair Dismissals Act, 1977 succeeds. As the complainant has secured employment elsewhere, I find that the most appropriate remedy is that of compensation pursuant to Section 7(1)(c) above.

I award the complainant the sum of € 6,500.00.

Dated:   24^th May 2017