ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00014794
| Complainant | Respondent |
Anonymised Parties | A Catering Employee. | A Care Home. |
Representatives |
| Graham Bailey IBEC |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00019246-001 | 17/05/2018 |
Complaint seeking adjudication by the Workplace Relations Commission under section 13 of the Industrial Relations Act, 1969 | CA-00019246-002 | 17/05/2018 |
Date of Adjudication Hearing: 22/08/2018
Workplace Relations Commission Adjudication Officer: David Mullis
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, and Section 13 of the Industrial Relations Acts 1969following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant complains that she: (a) Was unfairly dismissed in breach of the terms of Section 6 of the Unfair Dismissals Act 1977 and (b) That she was bullied and Harassed by another employee of the Respondent. |
Summary of Complainant’s Case:
The complainant worked with the Respondent as a kitchen assistant from the 1th November 2015 until her employment was terminated on the 5thMarch 2018. She says that she was unfairly selected for redundancy. There was a programme of redundancy entered into by the Respondent, but she says that as she was being made redundant another person was employed who effectively took up her position, or she could have undertaken the duties of this person. With regard to her complaint of bullying and harassment against her, in particular she says that he shouted at her and undermined her in complaining how long it took her to complete certain tasks for which she was responsible. |
Summary of Respondent’s Case:
The Respondent’s response to these complaints is. Thee Unfair Dismissal/ Redundancy Complaint: They say that It was necessary, in 2018, to reduce the workforce because the service being provided had arrived at a cost level that was not sustainable. They say that the number of people to whom they were providing the care service had also reduced substantially. They believe as a result of both of these circumstances that they could provide the service to their clients at a sustainable cost dividing the work across the staff remaining following the implementation of the redundancies. They say that they entered into discussion with the Complainant on the 5th March 2018 advising her of the redundancy of her role on the 19th March and that she would be paid in lieu of notice. They say that they invited her to a further meeting on the 9th March 2018 for the purpose of answering any queries that she might have. They say that she failed to attend this meeting. They say that they rearranged the meeting again for the 14th March, but again the Complainant did not attend. They say that it is their position that the Complainant’s dismissal “was as a result of the fact that her role, in extant form, was being made redundant. As a result, her dismissal is not unfair within the meaning of Section 6(4) of the Unfair Dismissals Act, 1977, which states: “Without prejudice to the generality of sub-section (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (c) The redundancy of an employee.
They go on to say that the definition of redundancy as set out in the Redundancy Payments Act, Section 7(2) is: For the purposes of sub-section (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 attributable wholly or mainly to— (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.
In relation to the complaint taken under the terms of Section 13 of the Industrial Relations Act, 1969, the Respondent says: (a) That the Complainant must under her contract of employment and the normal rules of industrial relations, raise such grievances with her employer in the first instance and only in the event of failure to resolve the issues, refer them to the WRC. (b) They say that the complaint in question goes back to 2017 and that this gave the Complainant ample time to process the grievance.
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Findings and Conclusions:
I find that a genuine redundancy arose in this situation and that therefore it is not an unfair dismissal within the meaning of Section 6(4) of the Unfair Dismissals Act, 1977. I find that there is not a breach of the Industrial Relations Act, 1969, insofar as the grievance must be processed locally before being referred on to the Labour Relations facilities. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
Section 13 of the Industrial Relations Acts, 1969 requires that I make a recommendation in relation to the dispute.]
I find that both Complaints submitted by the Complainant fail. |
Dated: 12th December 2018
Workplace Relations Commission Adjudication Officer: David Mullis
Key Words:
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