ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00006893
Parties:
| Complainant | Respondent |
Anonymised Parties | An Advocate | A Community Training Centre |
Representatives | O`Shaughnessy Bairèad Solicitors | Reidy Stafford Solicitors |
Complaint:
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-00009337-001 | 26/01/2017 |
Date of Adjudication Hearing: 25/07/2017 and 18/10/2017
Workplace Relations Commission Adjudication Officer: Enda Murphy
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
Background:
The Complainant was employed by the Respondent as an Advocate from December, 2010 until July, 2016 when his employment was terminated. The Complainant claims that he 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. |
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent as an Advocate in or about December, 2010. He was employed pursuant to a one year fixed term contract. The Complainant’s employment was made permanent in or about August, 2011 and it was submitted that he was a most diligent and loyal of employees with an entirely unblemished work record and history. In or about 8th July, 2016, the Complainant received a letter from the Respondent dismissing him for his permanent employment with effect from 8th August, 2016. The reason given by the Respondent for this dismissal was that a former employee of the Respondent organisation, being a close friend of the Complainant’s boss, wanted to return to work after an absence of some six years and the Respondent felt it appropriate to terminate the Complainant’s employment in the circumstances. The Complainant was informed that his full-time position was no longer available and that there was no position available to him and he would be unemployed at the end of the term in August, 2016. The Complainant was not offered any other explanation other than the above and no offer of redundancy was provided to him at that time. The Complainant was shocked and distressed at the manner in which he was treated and felt he was treated very poorly in circumstances where he had provided the Respondent with loyal and diligent service for over 6 years. The Complainant was not subject to any disciplinary procedure and had done nothing wrong to deserve dismissal and the only reason provided to him was the return of a former employee to the organisation. The Complainant was of the belief and had been provided with assurances that his position was a full-time permanent position and that after 5 years in the role on a full-time basis had formed the reasonable belief that the position was permanent and that he could not be dismissed from his position in such circumstances. The Complainant contends that he was unfairly dismissed and that there were no lawful or substantial grounds or any grounds whatever to justify his dismissal. The Complainant was not on a fixed term contract but rather a permanent contract of employment and was employer for a period of over six years on a permanent and full-time basis. The Complainant submits that the Respondent advanced no lawful basis upon which to terminate his permanent employment. The Complainant submits that having regard to the entirety of the Unfair Dismissals Acts and in particular to the provisions of Section 6(4) that there is no lawful basis that entitled an employer to terminate a permanent employee’s employment so as to replace that permanent employee with another person. In summary, the Complainant submits that there were no grounds for dismissal pursuant to Section 6(4) of the Unfair Dismissals Acts justifying dismissal or n the alternative “substantial grounds” justifying dismissal. |
Summary of Respondent’s Case:
The Complainant was initially employed by the Respondent on 1st December, 2010 for a period of twelve months and entered into a temporary contract of employment at that time. The Complainant’s contract was renewed and he became a full-time temporary employee in August, 2011. The Complainant’s employment was always subject to the following conditions, namely continuing to receive funding for the position of Advocate from FAS; and continuing to receive funding from the HSE in respect of the Real Deal Programme to which another employee, Ms. A, was temporarily transferred in 2010. The Complainant was therefore a full-time temporary employee from 2011 subject to the foregoing conditions. The Respondent submits that Ms. A is, and always has been a full-time and permanent employee of the Company. Her role within the Company was changed temporarily from Advocate to implementing the Real Deal Programme, so long as the HSE continued to fund same. This was initially on a part-time basis, and consequently, the Complainant was employed on a part-time basis to fulfil the hours Ms. A had done previously as an Advocate. On appropriate funding being put in place, Ms. A became a full-time co-ordinator of the Real Deal Programme and accordingly, the Complainant became a full-time temporary substitute, substituting for Ms. A whilst her function changed to the Real Deal Programme. This programme was renewed from year to year with the Complainant always being advised of the temporary nature of his employment and the fact that his contract would be renewed for a further year. The Respondent refutes the Complainant’s contention that Ms. A is a close friend of the Complainant’s boss and submits that any suggestion that M. A was chosen to return to her original position on the basis of friendship is disingenuous and untrue. In or about February, 2016, the Respondent was notified by the HSE that funding in respect of the Real Deal Programme would no longer be provided after April, 2016 which was subsequently extended to the 31st July, 2016. As the Complainant’s employment was subject to the foregoing funding being available, the Respondent was no longer be in a position to continue to employ the Complainant as temporary substitute for Ms. A, and accordingly, the Complainant was advised that his employment would be terminated as soon as his employers became aware of the lack of future funding. The Respondent submits that whilst there was some initial confusion and a belief that the Complainant was not entitled to redundancy by reason of the temporary nature of his position, on taking advice the Respondent proffered a cheque to him for the appropriate redundancy payment, which the Complainant rejected. |
Findings and Conclusions:
Position of parties on Jurisdictional Issue The Complainant made an application pursuant to Section 39 of the Organisation of Working Time Act 1997 to amend the name of the employer in the instant proceedings. The Complainant submits that the identity of his employer has never been very clear. Therefore, owing to inadvertence, the Complaint Referral Form which the Complainant submitted to the WRC in respect of this matter on 26th January, 2017 identified his employer as Ms. B (i.e. his Manager)/ XXX (YY Limited) t/a ABC Centre. The Complainant submits that the following facts are relevant to the inadvertent mistake in relation to the identification of the correct legal entity of his employer on the Complaint Referral Form: · The employment contract furnished to the Complainant on commencement of his employment was from ABC Centre. · The letter of Termination of the Complainant’s employment dated 8th July, 2016 referenced the employer as being “ABC Centre”. · Payment slips stated the employer to be “XXX CTW”. · A Redundancy offer from the Employer referred to itself as XXX YYY Limited. · The Complainant was not aware if his employment was with Ms. B operating as an entity known as ABC Centre or whether his employment was with XXX YYY Limited. · No contract of employment has been produced between “XXX YYY CLG” and the Complainant. · In seeking to record the Respondent employer’s name in the relevant claim form, the Complainant’s solicitor through inadvertence stated the name as “XXX (YY Limited)” instead of the name “XXX YYY CLG” as is the correct name of the legal entity of the Respondent. The mistake arose simply because of the letter “X” is in its appearance so similar to that of a bracket “(” in its appearance in handwritten notation. The Complainant relies on the decision of the EAT in Rahman -v- Munster Joinery[1] where it was held that inadvertence by a claimant in respect of the recording of an employer’s name incorrectly does not operate to prevent a claim where it would be an injustice not to allow the claimant to proceed with their claim. The facts relied upon in respect of the inadvertent mistake in the recording of the employer respondent name are identical in the present case to those which pertained in Rahman. The Complainant submits that the EAT decision in Rahman relies on the decision of the Supreme Court in Halal Meatpackers -v- Employment Appeals Tribunal[2] which indicated that the procedures around the EAT were designed to be informal and not to be bound by the undue technicalities of a Court. It was submitted that by extension the reasoning in the Halal case and the decision in Rahman is applicable to the determination of matters at the WRC under the Unfair Dismissals Acts. The Respondent objects to the Complainant’s application to amend the name of the employer pursuant to Section 39 of the Organisation of Working Time Act 1997. Firstly, the Respondent submits that there was no ambiguity in relation to the correct name of the legal entity which employed the Complainant. Secondly, the Respondent submits that the Complainant has sought to rely upon the provisions of Section 39(2) of the Organisation of Working Time Act 1997 in order to amend the name of the employer. The Respondent submits that the only jurisdiction contained in Section 39(2) of the Act is to amend a decision, and therefore, does not apply to the amendment of any mistake in the complaint form. The Respondent submits that the provisions of Section 39(2) are similar to the provisions of Section 41(16) of the Workplace Relations Act which confer the power upon an Adjudication Officer to correct any mistake of a clerical nature in a decision. The Respondent submits that, in any event, the Complainant cannot seek to rely upon the provisions of subsections (2) and/or (4) of Section 39 of the Act in order to amend the name of the employer in the circumstances of the instant case. The provisions of Section 39 confer power on a “relevant authority” to grant leave to an employee to institute proceedings against a proposed respondent or to amend the name of an employer, as the case may be. The Respondent submits that the definition of “relevant authority” for the purpose of these provisions means a rights commissioner, the Employment Appeals Tribunal or the Labour Court and does not include an Adjudication Officer of the WRC. The Respondent submits therefore, that an Adjudication Officer does not have any power to invoke the aforementioned provisions within Section 39 of the Act. Without prejudice to the foregoing, the Respondent submits that if the Adjudication Officer were to consider there is jurisdiction to amend the Claim Form in the instant case, then the Complainant must present a complaint to the Director General of the WRC in accordance with the provisions of Section 41(1) of the Workplace Relations Act 2015. It was further submitted that in those circumstances, even if liberty were granted to amend the title on the Complaint Form, then the Complainant is obliged to present a complaint to the Director General and have the complaint dealt with in accordance with Section 41(1) and Section 41(9) of the Workplace Relations Act.
Findings of Adjudication Officer on jurisdictional issue The Complainant made an application pursuant to Section 39 of the Organisation of Working Time Act 1997 to amend the name of the Respondent to the correct legal entity that employed him. The relevant provisions in Section 39 of the Organisation of Working Time Act 1997 are set out hereunder: “39. — (1) In this section "relevant authority" means a rights commissioner, the Employment Appeals Tribunal or the Labour Court. (2) A decision (by whatever name called) of a relevant authority under this Act or an enactment referred to in the Table to this subsection that does not state correctly the name of the employer concerned or any other material particular may, on application being made in that behalf to the authority by any party concerned, be amended by the authority so as to state correctly the name of the employer concerned or the other material particular. (3) The power of a relevant authority under subsection (2) shall not be exercised if it would result in a person who was not given an opportunity to be heard in the proceedings on foot of which the decision concerned was given becoming the subject of any requirement or direction contained in the decision. (4) If an employee wishes to pursue against a person a claim for relief in respect of any matter under an enactment referred to in subsection (2), or the Table thereto, and has already instituted proceedings under that enactment in respect of that matter, being proceedings in which the said person has not been given an opportunity to be heard and— (a) the fact of the said person not having been given an opportunity to be heard in those proceedings was due to the respondent's name in those proceedings or any other particular necessary to identify the respondent having been incorrectly stated in the notice or other process by which the proceedings were instituted, and (b) the said misstatement was due to inadvertence, then the employee may apply to whichever relevant authority would hear such proceedings in the first instance for leave to institute proceedings against the said person ("the proposed respondent") in respect of the matter concerned under the said enactment and that relevant authority may grant such leave to the employee notwithstanding that the time specified under the said enactment within which such proceedings may be instituted has expired: Provided that that relevant authority shall not grant such leave to that employee if it is of opinion that to do so would result in an injustice being done to the proposed respondent.” Firstly, I wish to indicate that I concur the Respondent’s argument that the powers conferred upon a relevant authority under subsection (2) of Section 39 to amend the name of an employer apply only in circumstances where a decision has been made by the authority under one of the enactments specified in the Table within that subsection (which includes the Unfair Dismissals Acts). I am therefore satisfied that this provision is of no avail to the Complainant in the circumstances of the present case. Subsection (4) of Section 39 of the Act confers power upon a relevant authority to allow an employee to make an application to that authority to amend the name of the employer in circumstances where a person has already initiated proceedings under a relevant enactment. I note the Respondent’s contention that the definition of “relevant authority” in Section 39 of the Act only applies to a rights commissioner, the Employment Appeal Tribunal and the Labour Court and not to an Adjudication Officer. However, this is an inaccurate interpretation of this provision and I would point out that the powers vested in a “relevant authority” within the meaning of Section 39 also apply to an Adjudication Officer of the WRC by virtue of the provisions of Section 40(9) of the Workplace Relations Act 2015 which provides that: “A reference in any enactment to a rights commissioner shall be construed as including a reference to an adjudication officer”. I am therefore satisfied that I have the authority to consider the Complainant’s application to amend the name of the employer in accordance with the provisions of Section 39(4) of the Act in the instant case. In the case of Jeevanhan Al Tambraga -v- Orna Morrissey and Killarney Avenue Hotel[3] the Employment Appeals Tribunal stated when commenting on the scope of Section 39 of the Act that: “The majority acknowledge that s.39 of the Organisation of Working Time Act 1997 gives certain scope to the Tribunal to allow for an application to be made to the Tribunal for amendment of the name of the employer. Such power is qualified quite significantly in s.39(4)(b) of such section noting that there must be inadvertence on the part of the relying party, to justify the making of an amendment. The word inadvertence is the qualifier in these circumstances, meaning an accident or oversight. It is therefore clear that in order for an Adjudication Officer to grant leave to invoke this provision it must be established, firstly, that there has been inadvertence on the part of the relying party in terms of the failure to identify the correct respondent when the proceedings were instituted, and secondly, that such leave to amend the name of the employer should not result in an injustice to the proposed respondent. In considering this issue, it is clear from the documentation submitted in evidence (including payslips, the Complainant’s contract, the Complainant’s Redundancy Notification Form (RP50) and correspondence exchanged between the parties’ legal representatives) that different variations of the employer’s name were used by or on behalf of the Respondent in the course of interaction with the Complainant. I note that the Complaint Referral Form which was submitted by the Complainant to the WRC on 26th January, 2017 in respect of this matter named the Respondent as Ms. B (i.e. his Manager)/ XXX (YY Limited) t/a ABC Centre. It was confirmed by the Respondent’s legal representative at the initial hearing of this complaint on 25th July, 2017 that Ms. B was not the Complainant’s employer and that the correct legal name of the entity that employed the Complainant was XXX YYY CLG. The letters “CLG” are an acronym for “Company Limited by Guarantee”. I am satisfied that Complainant Referral Form submitted by the Complainant contained a variation of the name of the company name that employed him i.e. XXX (YY Limited). I accept that in seeking to record the legal name of the respondent employer on this form that the Complainant’s solicitor through inadvertence failed to cite the precise legal name of this entity. In my view, this error was of minor significance and I am satisfied that the actual employer was fully aware at all material times of the instant proceedings. I am also satisfied that the granting of leave to amend the name of the employer does not result in an injustice or prejudice to the proposed respondent. In this regard, it should be noted that the notification of the original hearing date was sent by letter dated 14th June, 2017 to “Ms. B XXX (YY Limited)” at the registered address of the legal entity that employed the Complainant. On the date of the hearing, Ms. B and her legal representative were in attendance and it was indicated that she was attending in her personal capacity and not as a representative of the entity that employed the Complainant. In the circumstances, I decided to adjourn the hearing to allow for notification of the hearing to be served both on XXX YYY CLG (being the correct legal name of the employer) and Ms. B and I indicated that I would allow the parties to address this issue of jurisdiction further at the reconvened hearing when all relevant parties were notified and in attendance. The oral hearing was reconvened on 18th October, 2017 and both Ms. B and a representative from XXX YYY CLG were in attendance on this date (both parties were represented by the same legal representative at the hearing). Having regard to the foregoing, I am satisfied that it would be an injustice not to allow the Complainant to proceed with his claim in all the circumstances. Therefore, I find that the misstatement of the Respondent’s name on the Complaint Referral Form was due to inadvertence on behalf of the Complainant. Accordingly, I am prepared to accede to the Complainant’s application to amend the name of the employer pursuant to the provisions of Section 39(4) of the Organisation of Working Time Act 1997. For the sake of clarity, I would also mention that the referral of complaints to the Director General of the WRC under the Unfair Dismissals Acts are governed by the provisions of Section 8 of the Unfair Dismissals Acts and are not subject to the provisions of Section 41 of the Workplace Relations Act, 2015, as has been suggested by the Respondent’s representative. Therefore, the arguments put forward by the Respondent’s representative regarding the requirement for the Complainant to present an amended application to the Director General in accordance with the provisions of Section 41 in the event that leave was granted to amend the title are misconceived and irrelevant to the instant proceedings. Findings of the Adjudication Officer on the substantive issue 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 contends that the Complainant was employed as a full-time temporary substitute for another permanent employee (Ms. A) who had temporarily transferred to a different position within the company which was being funded by the HSE. The Respondent contends that the Complainant was dismissed by reason of redundancy after the funding for Ms. A’s alternative position ceased and she returned to her original position which had been covered by the Complainant since 2011. The Complainant disputes that his position was made redundant and claims that he was unfairly dismissed from his full-time permanent position to facilitate the return of Ms. A, who he claims was a close personal friend of his Manager, to her former position within the company after an absence of nearly six years. 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. Having regard to the evidence adduced, I am satisfied that the following facts have been established in relation to the matter: · The Complainant was employed by the Respondent as an Advocate on 1st December, 2010 on a 12-month fixed-term contract working 17.5 hours per week. · The Complainant initially carried out this role on a job-sharing basis with Ms. A who also worked 17.5 hours per week in this position. Ms. A was initially employed by the Respondent as an Advocate in 1999. · The continued existence of the Advocate position during the period of the Complainant’s employment was subject to ongoing funding from FAS. · The Complainant’s contract was renewed in August, 2011 and he became a full-time Advocate working 35 hours per week. This full-time position of Advocate was made available to the Complainant after Ms. A transferred to another role within the Respondent company to implement the Real Deal Programme. · The continuation of Ms. A’s new role was subject to the Respondent continuing to receive funding from the HSE in respect of the Real Deal Programme. · The Respondent issued the Complainant with a letter on 19th March, 2013 which confirmed that his position was full-time from August, 2011 and that his employment with the Company continued to be subject to the following conditions, namely: (1) continuing to receive funding for the position of Advocate from FAS and (2) continuing to receive funding from the HSE in respect of the Real Deal Programme to which Ms. A was temporarily transferred. · The Complainant accepts that he was informed by Ms. A on a yearly basis (albeit in an informal manner) that his ongoing employment in the position of Advocate was subject to the continuing funding from FAS. · The Complainant was informed verbally by his Manager in February, 2016 that his employment would be terminated with effect from August, 2016 and that Ms. A would be returning to the position as an Advocate. It was confirmed to the Complainant in writing on 8th July, 2016 that his employment would cease with effect from 8th August, 2016 and that his position was no longer available. · Ms. A reverted to the role of Advocate after the Complainant’s employment was terminated.
Section 7(2) of the Redundancy Payments Acts provides: “(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if [for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to— (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or (d) not relevant, or (e) not relevant.” In considering whether or not a redundancy situation arose in the context of the present case, I am satisfied that Ms. A remained in the Respondent’s employment for the duration of the period following her transfer from the position of Advocate to take up the role in relation to the implementation of the Real Deal Programme. Furthermore, I am satisfied that owing to the cessation of funding by the HSE, the position which Ms. A had been carrying out since 2011, no longer existed after July, 2016 with the result that there was a requirement for the Respondent to restructure its operations and carry on the business with fewer employees thereafter. In the circumstances, I find that a genuine redundancy situation existed within the Respondent’s company within the meaning of Section 7(2)(c) of the Acts 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. then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.” It was not in dispute that Ms. A was employed by the Respondent as an Advocate immediately prior to her transfer within the Company in 2011 to take up another role in relation to the implementation of the Real Deal Programme. When the HSE funding for this role ceased, the Respondent took the decision to return Ms. A to the positon of Advocate which had been held by the Complainant since 2010. The Complainant was initially employed as an Advocate on part-time basis in 2010 which was subsequently became a full-time role from August, 2011 following Ms. A’s transfer to another role within the company. In the circumstances, I am satisfied that both the Complainant and Ms. A were employed in similar employment at the material time that the redundancy situation arose. However, I have not been presented with any evidence to suggest that there was either any trade union agreement or any custom or practice in operation within the company in relation to the manner in which candidates should be selected for redundancy. 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. In the circumstances, I find that the Respondent did not act contrary to the provisions of Section 6(3) in terms of the manner in which the Complainant’s redundancy was effected. However, notwithstanding the foregoing, 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[4] 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.”. 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 failed to engage in any meaningful process of consultation with the Complainant prior to informing him that his employment was being terminated. I am satisfied that the Complainant was aware that his ongoing employment in the role of Advocate was contingent on the continued funding for this position by FAS. However, as matters transpired it was not the cessation of funding for the position of Advocate which was the catalyst for the termination of the Complainant’s employment but rather the cessation of funding by the HSE for the position held at that juncture by Ms. A. It is clear that the Respondent decided to retain the services of Ms. A at the expense of the Complainant on the basis of her seniority and an alleged pre-existing agreement that she would revert to this position upon the cessation of funding for her existing position. However, the Respondent failed to adduce any documentary evidence to support its contention that there was any such pre-existing agreement in place with Ms. A and I am satisfied that a decision was taken to terminate the Complainant’s employment in the absence of any proper consultation or engagement him. · I note that the Complainant adduced evidence to the effect that the reason for the termination of his employment was attributable to the fact that Ms. A was a close personal friend of his Manager. This contention was vehemently denied by the Respondent at the oral hearing. Whilst I am satisfied, on balance, that this was not a factor which influenced the redundancy selection process, I cannot accept the Respondent’s argument that the Complainant was fully aware throughout the period of his employment that he was a “temporary substitute” for Ms. A for as long as she remained in the alternative role. The Complainant had held the position of Advocate on a full-time basis for approx. six years, and therefore, it was not unreasonable for him to expect that there would be, at the very least, a process of consultation and engagement in the event of a restructuring in the company which would necessitate a reduction in the workforce. · There was a lack of clarity in relation to the reason for the Complainant’s dismissal and the Respondent failed to inform him that he was being dismissed by reason of redundancy at the material time of his dismissal in July, 2016. This was compounded by the fact that it was not until December, 2016 that the Complainant was offered his statutory redundancy entitlements after both parties had engaged legal representation in the matter. · There appeared to be no attempt or sufficient efforts made on the part of the company to consider other alternatives rather than making the Complainant redundant. It was not in dispute that the Complainant and Ms. A had carried out the role of Advocate on a job-sharing basis prior to her transfer to the alternative role to implement the Real Deal Programme. The Respondent failed to consider the possibility of reverting to a similar arrangement following the cessation of funding for Ms. A’s position in 2016. · The Complainant was not afforded any opportunity to appeal the Respondent’s decision to select him for redundancy or the selection criteria upon which the decision was based.
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 dismissed within the meaning of Section 6(7) of the Unfair Dismissals Acts. |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.
I find that the Complainant was unfairly dismissed by the Respondent within the meaning of Section 6 of the Unfair Dismissals Acts. 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 the Complainant was earning a gross annual salary of €48,500. The Complainant gave evidence that he has been available for work and has been actively seeking to obtain alternative employment following his dismissal. The Complainant gave evidence that he obtained part-time temporary employment during the periods from November, 2016 to December, 2016 and from March, 2017 to September, 2017 in respect of which he received remuneration in the amount of €11,052. The Complainant has been unable to secure alternative employment apart from these two periods of temporary part-time employment following his dismissal Having regard to the foregoing, I deem that an award of €36,375 (i.e. the equivalent of 39 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 his dismissal. I note that the Complainant was offered a statutory redundancy payment in the amount of €8,424 by the Respondent following his dismissal but he has declined to accept this payment. Therefore, I have not made any reduction from the award in respect of the amount which was offered to the Complainant by way of statutory redundancy payment. In accordance with the provisions of Section 7 of the Unfair Dismissals Acts, I award the Complainant the sum of €36,375 by way of compensation under the said legislation. |
Dated: 18/12/2017
Workplace Relations Commission Adjudication Officer: Enda Murphy
Key Words:
Unfair Dismissals Acts 1977 to 2015 – unfair selection for redundancy – complaint upheld – compensation awarded |
[1] UD2377/2011
[2] 1990 ILRM 293
[3] [2013] 24 ELR 275
[4] UD206/2011