Complainant

Respondent

Anonymised Parties

A Complainant

A Hardware Merchant

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00004785-001

23/05/2016

The Complainant claims that she was unfairly selected for redundancy and accordingly was unfairly dismissed within the meaning of Section 6 of the Unfair Dismissals Acts. The Respondent disputes the claim of unfair dismissal and claims that the Complainant’s employment was terminated by reason of redundancy.

The Respondent operates a retail hardware business. The Complainant was employed by the Respondent as a General Operative in the Packing Area of the business from November, 2006 until 13^th May, 2016 when her employment was terminated by reason of redundancy. The business had been accumulating losses for a number of years up to 2016 but the Respondent managed to keep the business afloat without the requirement for significant job losses. The Respondent was obliged to implement a lot of cost saving measures over the last few years and in March, 2016 it was necessary to reduce staffing levels in order to sustain the business. Consequently, there were three positions made redundant which included the Warehouse Manager, an Administration Clerk and the Complainant’s position within the Packing Area.

The packing process essentially provides a service to meet the Respondent’s customer order requirements and it is essential to the business that the operation of this process runs as smoothly as possible. The Complainant was one of six General Operatives employed in the Packing Area and the decision was made to select the Complainant for redundancy based on her poor record of attendance at work and high levels of absenteeism during the preceding years. The Complainant had a very high level of absenteeism and out of a total of 260 working days in 2015 she was absent for 61 days in addition to 20 days holidays. Fourteen of these days fell on a Friday and thirteen of these fell on a Monday. During 2014 the Complainant was absent on 94 occasions during the course of the year outside of holiday time.

As the Complainant’s attendance record was by far and away the worst of the employees working in the Packing Area the Respondent took the view that she was the appropriate person to be selected for redundancy. The Respondent also submitted that the Complainant had been given a number of warnings including a final written warning in relation to her levels of absenteeism prior to the decision to select her for redundancy.

The Respondent submitted that the company was not bound by any trade union agreement nor was there any custom and practice in operation in relation to the manner in which candidates should be selected for redundancy. The Respondent submitted that in the circumstances work attendance was a reasonable criterion to use in relation to the selection of the person for redundancy having regard to the importance of having an efficient operation to deal with outgoing goods in the Packing Area.

In summary, the Respondent submitted that a genuine redundancy situation existed within the Packing Area where the Complainant was employed and that she was selected for redundancy based on her high levels of absenteeism from work and poor attendance record. The Respondent denies that the Complainant’s selection for redundancy was unfair or that she was unfairly dismissed with the meaning of the Unfair Dismissals Acts.  

The Complainant was employed by the Respondent as a General Operative working in the Packing Area from November, 2006 until 13^th May, 2016 when her employment was terminated. She worked approx. twenty hours per week and did not have a contract of employment.

The Complainant’s brother-in-law owned the business up until May 2015 but when he departed she was allocated a more physically demanding and unrealistic role within the Packing Area. The Complainant had a medical condition (namely Costochondritis, which is an inflammation of the cartilage in the rib cage) for three and a half years prior to the termination of her employment. The Complainant claims that after her brother in law departed the company she was allocated heavy lifting work by the Respondent which exasperated her medical condition and resulted in her having to take periods off work on sick leave. The Complainant raised this issue with management and sought assistance with the lifting of heavy weights but no such assistance was provided by the Respondent.

The Complainant claims that she was subjected to bullying and harassment in the workplace by a member of management (Mr. A) who used inappropriate language towards her and she felt that pressure was being applied on her to resign from her position. The Complainant also referred to another incident on 28^th October, 2015 when she was sent home from work by Mr. A upon her return to work following a period of sick leave. On this occasion she was told to “go home” by Mr. A when she attempted to return to work and that he would be in contact. The Complainant was not given any reason as to why she was being sent home and found the incident very distressing. The Complainant received a telephone call from the Respondent later that evening to inform her that she could return to work the following day but that she was on her “final warning”. The Complainant made a formal grievance complaint in relation to this treatment but the Respondent failed to investigate the matter prior to the termination of her employment.

The Complainant claims that she was unfairly selected for redundancy and she disputes the Respondent’s contention that her selection for redundancy was based exclusively on her levels of absenteeism. The Complainant submitted that the vast majority of her absences from work arose because of her medical condition and were periods of certified sick absence. She also disputes that her levels of absenteeism were anywhere near as high as that which have been put forward by the Respondent. The Complainant refutes the contention that she was given three written warnings and a final written warning by the Respondent about her absenteeism on 21^st January, 2014, 8^th October, 2014 and 23^rd March, 2015. The Complainant claims that she had contested each of the warnings at the material time on the basis that the absences in respect of which they purported to relate had been periods of certified sick leave.

The Complainant submitted that the Respondent did not engage in any prior consultation with her about the redundancy prior to her dismissal. The Complainant was informed on the date of her dismissal that she was being made redundant because of her high levels of absenteeism. The Complainant claims that she was the most senior employee in the Packing Area and that there were other employees with less service who could have been selected for redundancy ahead of her. The Complainant claims that the Respondent engaged up to five new employees following the termination of her employment.

The issue for decision in the present case is whether or not the Complainant was unfairly dismissed contrary to Section 6 of the Unfair Dismissals Acts. The fact of dismissal is not in dispute between the parties and therefore the burden of proof rests with the Respondent to demonstrate that the termination of employment came within a lawful reason. The Respondent claims that the Complainant was dismissed from her employment by reason of redundancy whereas the Complainant has claimed that she was unfairly selected for redundancy. In the circumstances, in order to satisfy the burden of proof it is therefore a matter for the Respondent to establish (1) that a redundancy situation arose and (2) that it acted reasonably and fairly towards the Complainant in addressing that situation in terms of the selection process for the redundancy.

In considering the first point above, I note that the Respondent provided evidence that the company had been accumulating substantial losses over a number of years prior to the Complainant’s dismissal and as a result it was necessary to make three positions redundant, including one position in the Packing Area where the Complainant was employed, in early 2015. The Respondent submitted detailed financial information (including balance sheets) for the period from 2013 to 2015 and it is clear from the evidence adduced that the company was encountering serious financial difficulties. Having regard to the evidence adduced, I accept the Respondent’s evidence that a genuine redundancy situation existed within the Packing Area at the material time of the Complainant’s dismissal.

In terms of considering point number 2) above and deciding whether or not the Complainant was unfairly selected for redundancy I am obliged to take cognisance of the following provisions of the legislation. The contractual entitlement to a defined procedure in terms of the selection of candidates for redundancy is provided for in Section 6(3) of the Unfair Dismissals Act 1977 which states that:

“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure.”

It was not in dispute that there were six employees (including the Complainant) working as General Operatives within the Packing Area at that juncture all of whom were employed to more or less carry out the same duties. However, based on the evidence adduced I am satisfied that there was neither any union agreement nor was there any custom or practice in operation within the company in relation to the manner in which candidates should be selected for redundancy. It was also common case that the Complainant did not have a contract of employment and I am therefore satisfied that the Respondent was not bound to comply with a defined procedure in terms of the redundancy selection process within the meaning of Section 6(3)(b) above. I also find that the selection of the Complainant for redundancy did not result wholly or mainly from any of the matters specified in subsection (2) of Section 6 of the Act.

However, in considering the fairness or otherwise of the Complainant’s selection for redundancy, I am also obliged to take cognisance of the provisions of Section 6(7) of the Unfair Dismissals Act 1977 (as substituted by s.5(b)(a) and (b) of the Unfair Dismissals (Amendment) Act 1993), which provides that:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so:

(a) to the reasonableness or otherwise of the conduct (whether by act or mission) of the employer in relation to the dismissal”.

This provision provides that the reasonableness of the employer’s conduct is an essential factor to be considered in the context of deciding on the fairness or otherwise of a dismissal and it places an obligation on an employer to act reasonably in taking a decision to dismiss an employee on the grounds of redundancy. In this regard, I note that the Employment Appeals Tribunal held in the case of Gillian Free –v- Oxigen Environmental[1]that: “When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy. The employer must follow the agreed procedure when making the selection. Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.”.

The Respondent gave evidence that the criteria which were adopted in terms of the selection process for the redundancy in the Packing Area was based on attendance at work and levels of absenteeism. The Respondent claims that the Complainant was selected for redundancy on the basis of her very high levels of absenteeism when compared to the other five employees in the Packing Area.  

Having regard to the totality of the evidence adduced in the present case, I find that the Respondent did not act fairly or reasonably and did not apply fair procedures in terms of the manner in which the Complainant was selected for redundancy. In coming to this conclusion I have taken into consideration the following factors:

• The Respondent’s decision to make the Complainant redundant was taken in the absence of any consultation or engagement with her prior to making her redundant. The Complainant was informed by management without any prior consultation at a meeting in a hotel of the decision to make her redundant and that she had been selected on the basis of her levels of absenteeism.
• There was a dispute between the parties in relation to the actual levels of the Complainant’s absenteeism during her period of employment. The Complainant disputes the Respondent’s contention that she had been issued with three written warnings and a final written warning in relation to her alleged levels of absenteeism from work during her period of employment. In this regard, I note that there was an exchange of correspondence between the parties in late 2015 in relation to the issue of the Complainant’s alleged absenteeism. The Complainant wrote to the Respondent on 10^th November, 2015 in response to an earlier letter from the Respondent concerning the issuing of a final warning to her in relation to her absenteeism. The Complainant indicated clearly in this letter that she was contesting the veracity of the three written warnings which the Respondent claims were issued to her on 21^st January, 2014, 8^th October, 2014 and 23^rd March, 2015. The Respondent replied to the Complainant’s letter on 16^th November, 2015 and indicated that it had not received medical certs in relation to certain periods of sick absence and that she was being issued with a final written warning. Notwithstanding the engagement between the parties at that juncture, I am satisfied that the dispute in relation to the Complainant’s alleged levels of absenteeism had not been resolved between the parties prior to her dismissal. Given the nature of the dispute that still existed between the parties in relation to the alleged absenteeism at the time of her dismissal, I am satisfied that it was totally unreasonable and lacking in fair procedures in the circumstances for the Respondent not to have informed the Complainant that a decision was being contemplated to make her redundant on the basis of her absenteeism.    
• I am satisfied that the Complainant’s alleged high levels of absenteeism was not the only factor which influenced the Respondent’s decision to select her for redundancy ahead of the other workers employed in the Packing Area. The Complainant had raised a formal grievance complaint in relation to alleged bullying and harassment in the workplace and I am satisfied that the investigation of this matter had not been dealt with or brought to a conclusion by the Respondent prior to her dismissal. Having regard to the evidence adduced, it is clear that the working relationship between the Complainant and management had become very strained prior to her dismissal. On balance, I am satisfied that the difficulties in the working relationship and the ongoing matter of the Complainant’s grievance complaint were also factors which influenced the Respondent’s decision to select her for redundancy.
• The Complainant was not afforded any opportunity to appeal the Respondent’s decision to select her for redundancy or the selection criteria upon which the decision was based.
• The Respondent did not afford any consideration to the possibility of accommodating the Complainant in an alternative position within the company.

Having regard to the foregoing, I find that the Respondent did not act reasonably and failed to apply fair procedures in terms of the manner in which the Complainant was selected for redundancy. Accordingly, I find that the Complainant was unfairly selected for redundancy and that this dismissal was unfair within the meaning of Section 6 of the Unfair Dismissals Acts.

I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Act.

In accordance with the provisions of Section 7 of the Act, I consider that the appropriate redress in all the circumstances of the present case is compensation. In assessing the level of compensation to be awarded I note that there was a dispute between the parties in relation to the number of hours per week that the Complainant was normally expected to work. The Complainant did not have a written contract of employment. However, she claims that her normal weekly hours were 20 hours per week whereas the Respondent claims that the Complainant worked an average of 17.5 hours per week. The Respondent submitted copies of relevant extracts from the company’s payroll records and payslips which would appear to corroborate its evidence that the Complainant’s normal working hours were 17.5 hours per week. In the circumstances, I accept the Respondent’s evidence on this issue and I am calculating the amount of compensation to be awarded on the basis of a normal working week of 17.5 hours per week and net hourly rate of pay of €10.00 per hour (i.e. €175.00 remuneration per week).

The Complainant gave evidence that she has been available for work and has been actively seeking to obtain alternative employment following her dismissal but has been unable to secure any alternative gainful employment during the relevant period. Having regard to the foregoing, I deem that an award of €9,100.00 (i.e. the equivalent of 52 week’s pay) to be the appropriate award in the circumstances of this case. This award takes into account the Complainant’s actual financial loss to date and the loss which I deem attributable to future loss of earnings arising from her dismissal. I note that the Complainant was paid a statutory redundancy payment in the amount of €2,664.66 by the Respondent on her dismissal and therefore, this amount should be offset against the aforementioned award. Therefore, in accordance with the provisions of Section 7 of the Unfair Dismissals Acts, I award the Complainant the sum of €6,435.34 by way of compensation under the said legislation.  

Unfair Dismissals Acts 1977 to 2015 – unfair selection for redundancy – complaint upheld – compensation awarded