ADJ-00008624

Complainant

Respondent

Anonymised Parties

A Porter

A Hotel

Complaint Reference No.

Date of Receipt

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

12/05/2017

The Complainant was employed by the Respondent as a Porter   from February, 2012 until 25th February, 2017 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.

The Respondent is the owner of a family run hotel business   which has been in operation since 2007. The hotel experienced financial and   trading difficulties and was taken over by a financial institution in July,   2015 and remained in operation as a going concern at that juncture.

The ownership of the hotel was transferred to another   company in August, 2015 and the employment of all employees, including the   Complainant, was transferred to this company by way of a transfer of   undertakings. The Respondent’s Director/Owner, Mr. A, stated that the new   owners of the hotel had indicated that his family would be kept involved in   the running of the hotel after the change of ownership. However, this   situation did not subsequently materialise and Mr. A and his family had to   relinquish control of the hotel at that juncture.

In February, 2017, a company owned by Mr. A and his family   regained control of the hotel from the existing owners following a further   transfer of undertakings. The   employees were informed by the existing owners that their employment would   transfer to the company owned by Mr. A and his family with effect from 7th   February, 2017. Mr. A stated that the level of business had declined when his   family regained control of the hotel and as a result it was necessary to   reorganise the business to achieve efficiencies and reduce costs. The hotel’s main business centred around   the hosting of weddings and it was decided to close the hotel on   Mondays/Tuesdays to achieve further savings. Mr. A indicated that the hotel   had previously employed 50 staff whereas it was decided to retain only 35   staff in employment following the purchase of the hotel in February, 2017.

The Complainant had been initially employed as a Night   Porter but had transferred to the role of Kitchen Porter with effect from   August, 2016 and had been working 7 hours per week since that juncture. The   Respondent contends that it understood the Complainant’s position was   flexible and that he was not guaranteed a set number of hours per week. The   Respondent submitted that the Complainant was made redundant in February,   2017 as there was no work available for him in the role of Kitchen Porter after   Mr. A and his family had acquired the hotel at that juncture.

The Respondent denies the Complainant’s claim that he was   unfairly dismissed from his employment and contends that the hotel was not in   a position to offer him any further work after February, 2017 as a result of   the reorganisation of the business arising from the downturn in business.

The Complainant, who is of Latvian nationality, commenced   employment with the Respondent as a Night Porter in February, 2012. The   Complainant initially worked on Friday and Saturday nights for approx. 16/17   hours per week in this role.

The Complainant submitted that the hotel was owned by Mr.   A and his family during the initial period of his employment with the   Respondent. The Complainant was informed on 25th August, 2015 that his   employment was transferred to another company with immediate effect and that   his terms and conditions would remain the same.

The Complainant continued in his role as a Night Porter   until August, 2016 when he sought a transfer to a different role within the hotel.   The Complainant submitted that Mr. A and his family continued to reside in   the same property where the hotel was located after the change of ownership   in August, 2015. The Complainant contends that this situation resulted in   difficulties for him in the workplace as there was a number of occasions   where members of Mr. A’s family had attempted to obtain service in the bar   but he had been instructed by management not to afford them service.

The Complainant experienced extreme stress as a result of   these difficulties in the workplace and was left with no option but to report   this matter to management in an e-mail dated 3rd August, 2017. The   Complainant was advised to raise a formal grievance in accordance with the   company’s internal grievance procedures and by agreement he was transferred   to work in the kitchen as a Porter in order to alleviate his stress and the   workplace difficulties that had occurred.

The Complainant transferred to the role of Kitchen Porter   with effect from 1st September, 2016 and was guaranteed a minimum of 8 hours   per week by the Respondent in this role. The Complainant continued to work in   this role without any difficulties until he was informed by letter dated 1st   February, 2017 that his employment was being transferred by way of a transfer   of undertakings to the company, owned by Mr. A and his family, with effect   from 7th February, 2017. The Complainant was informed that the reason for the   transfer was the sale of the hotel and that his terms and conditions of   employment would remain the same.

The Complainant contends that he was contacted by the   Respondent’s Duty Manager on 17th February, 2017 and asked if he would report   for work that night and do the night shift. The Complainant agreed to attend   for work at 11 pm when he met Mr. A and welcomed him back to the hotel. The   Complainant received another call the following week on 24th February, 2017 from   the Duty Manager and was requested to work on the Friday/Saturday/Sunday of   that week. The Complainant worked on the Friday night, however, when he   attended for work on the Saturday night he was informed by the Duty Manager   that the hotel had someone else working in his role and he was requested to   leave the premises.

The Complainant subsequently contacted the Respondent’s HR   department to enquire about his position within the hotel and was informed   that his supervisor would be in contact with him in relation to the matter.   The Complainant submitted that he did not receive any further work from the   Respondent despite the fact that he sent a number of further e-mails seeking   clarification in relation to the situation. The Complainant claims that he   was unfairly dismissed from his employment despite the agreement which had   been reached with the previous owners of the hotel in August, 2016 which guaranteed   him at least one full working day per week.

The Complainant disputes the Respondent’s contention that   his employment was terminated by reason of redundancy and that there was not   any further work available for him in February, 2017. The Complainant claims   that his dismissal was connected to the e-mail which he had sent to the then   owners of the hotel on 3rdAugust, 2017 regarding the difficulties   that he had experienced at that time on account of his interaction in the   workplace with members of Mr. A’s family. The Complainant contends that this   e-mail had been brought to Mr. A’s attention prior to his dismissal. However,   the Complainant claims that he was not afforded any opportunity by Mr. A to   explain the circumstances that had prevailed at the material tine which had   resulted in him seeking a transfer to another role within the hotel.

In summary, the complainant claims that he was unfairly   dismissed from his employment by the Respondent contrary to Section 6 of the   Unfair Dismissals Acts.

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 was 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’s employment   was terminated on the basis that there was no further work available for him   in the role of Kitchen Porter following the transfer of the business by way   of a transfer of undertakings in February, 2017. The Complainant disputes   that his position was made redundant and claims that he was unfairly   dismissed from his employment and disputed that there was a genuine   redundancy situation at the material time of his dismissal.

In the circumstances, in order to satisfy the burden of   proof, it is therefore, a matter for the Respondent to establish that the   dismissal was wholly redundancy connected 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 initially employed by the   Respondent in February, 2012 as a Night Porter and normally worked 16/17   hours per week. The Complainant was transferred to the role of Kitchen Porter   with effect from 27th August, 2016 and worked on average 8 hours per week   thereafter until his employment was terminated on 25th February, 2017.
•   The company owned by Mr. A and his family was   the entity that initially employed the Complainant in February, 2012 but this   entity relinquished control of the hotel in July, 2015 after encountering   financial difficulties.
•   In February, 2017, a company owned by Mr. A   and his family regained control of the hotel from the existing owners   following a transfer of undertakings.
•   All of the hotel’s employees, including the   Complainant, were informed by the existing owners that their employment would   transfer to the company owned by Mr. A and his family with effect from 7th   February, 2017.
•   The Complainant’s employment was terminated on   25th February, 2017 and he was not afforded any further work by the   Respondent thereafter.

In considering whether there was a genuine redundancy   situation at the material time of the Complainant’s dismissal, I note that   the Respondent’s evidence that there was a reorganisation of the business   after Mr. A and his family regained control of the hotel in February, 2017   following a transfer of undertakings. I accept Mr. A’s evidence that it was   necessary to reduce the overall staff numbers employed by the hotel at that   juncture and that a number of the part-time staff were made redundant as a   result of the reorganisation within the business. In circumstances where   redundancy is unavoidable, the employer is obliged to establish reasonable   and objective criteria for selection and must apply those criteria fairly.

In considering the fairness or otherwise of the   Complainant’s selection for redundancy, I am 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.”.

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 did not apply any objective or   transparent selection criteria when selecting the Complainant for redundancy.
•   The Respondent failed to engage in any   meaningful process of consultation with the Complainant prior to informing   him that his employment was being terminated.
•   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 February, 2017. This was compounded by the fact that the   Respondent did not make any offer to pay the Complainant his statutory redundancy   entitlement at the material time of his dismissal.
•   There appeared to be no attempt or sufficient   efforts made on the part of the Respondent to consider other alternatives rather   than making the Complainant redundant. The Respondent did not adduce any   evidence to suggest that there was any consideration afforded to the   re-assignment of the Complainant to an alternative role, including the role   of Night Porter, which he had previously carried out for over four years.
•   The Complainant was not afforded any   opportunity to appeal the Respondent’s decision to select him for redundancy.  
•   The Complainant adduced credible evidence in   relation to difficulties that had arisen in the workplace with members of Mr.   A’s family prior to the transfer of undertakings which resulted in the   company which was owned by Mr. A regaining ownership of the hotel. I am   satisfied that these difficulties resulted in the Complainant invoking the   internal grievance procedures and being voluntarily transferred to a   different position within the hotel to alleviate the stress related to the   situation. On balance, I am satisfied that these difficulties which had   arisen in relation to the Complainant’s working conditions and the fact of   him having brought this matter to the attention of the then owners of the   hotel were also factors which influenced the Respondent’s decision to select   him for redundancy.    

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.  

I find that the Complainant was unfairly dismissed by the   Respondent within the meaning of Section 6(7) 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 accept the Complainant’s evidence that he was earning an average gross   weekly wage of €99.10 per week (and working on average 8.74 hour per week)   during the final year of his employment.

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 has been   self-employed since 20thSeptember, 2017 and has been earning €300   per week thereafter. Having regard to the foregoing, I deem that an award of   €4,000.00 (i.e. four thousand euro) to be the appropriate award in the   circumstances of this case arising from his dismissal.  

Unfair Dismissals Acts 1977 to 2015 –   unfair selection for redundancy – Respondent acted unreasonably – unfair   procedures - complaint upheld – compensation awarded