Complainant

Respondent

Anonymised Parties

Administrator

Charity

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-00013880-001

13/09/2017

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00013880-002

13/09/2017

The claimant worked as an Administrator for the charity with effect from May 20th, 2009 until August 4th, 2017 (part thereof under a Community Employment Scheme (C.E.)). Her weekly gross pay was €236.15. In June 2017 the claimant was invited to a meeting with management where she was (allegedly) offered statutory redundancy or a reduced role on 8 hours (from 21) per week. It is alleged that this reduction was necessitated by the closure of a number of the charity’s day care centres.

The claimant commenced employment with the respondent in May, 2009, under a CE scheme. She sought a pay rise in 2015, which was refused. She was subsequently invited to take on a more senior role (on more favourable terms). However, this role was then taken up by another staff member, and the promotion offer was withdrawn. The claimant continued to pursue a pay rise and attended a meeting with management (in June 2015) for this purpose. However, at this meeting the claimant (without explanation\justification) was offered statutory redundancy or a new job on reduced hours (from 21 to 8). The redundancy payment did not include a calculation for the C.E. service with the respondent. Accordingly the claimant is alleging unfair dismissal and an increased redundancy payment.

The claimant’s role based on 21 hours per week became redundant after an operational review was carried out by the respondent in May 2017.   From the review it was found that there was no longer a requirement for an Administrator for 21 hours per week. There was enough work to keep the role in existence based only on 8 hours per week, as 3 of the respondent’s services had closed. The claimant was informed that this was the reason why her role based on 21 hours per week was being made redundant at a meeting on the 21st June 2017.   It was also confirmed to her in correspondence sent on the 5th July 2017. She was also invited to make contact with us if she had any queries in relation to her redundancy, but she never did. She engaged the services of a solicitor who sent us correspondence stating that she was refusing to accept that her role based on 21 hours per week was being made redundant. She was even offered to get involved with other projects by her new line manager but she wasn’t interested in taking up this offer.

A new Coordinator commenced employment with the respondent in April 2017. It is important to note here that this role was advertised internally as well as externally to allow for other employee’s to apply if they had an interest in the position. The complainant did not submit an application for the role.

The complainant was given time to think about whether she wanted to take the 8 hours per week role or take redundancy based on her 21 hours per week role (as it was a fundamental change to her terms and conditions of employment). After the meeting with management she went out on sick leave citing work related stress (w.e.f. June 2017) and would not engage with the respondent thereafter. Phone calls were not returned on the 28th, 30th June and 3rd July nor did she respond to an email sent on the 30th June, asking her to make contact to let us know her decision. She engaged the services of a solicitor with whom we corresponded with on the 12th July to inform that we had not heard from the claimant as to her decision. Therefore, the respondent had no choice but to come to the conclusion that she did not want to accept the 8 hours per week role and we had to proceed ahead and serve her with formal notice on the 5th July of her 21 hours per week role being declared redundant as of the 4th August.   From reading the claimant’s statement she also seems to believe that her role based on 21 hours per week was being made redundant because she was looking for a pay increase. This is not the case. This situation was certainly not a dismissal on the grounds of an ‘alleged’ redundancy’.

With regard to the redundancy calculation, the claimant started working with respondent of through the Department of Social Protection (DSP) CE scheme as an administrative assistant, approximately around May/June 2009. A direct role became available which she was offered and she became a direct employee of the respondent’s in 2012. Her start date of employment as a direct employee was the 07th August 2012. Her time spent working as a DSP CE worker is not accruable for the purposes of inclusion in calculating her redundancy payment as it is a government employment initiative. The respondent believes that the complainant has been paid her correct statutory redundancy payment entitlement.

CA-00013880-001 With regard to the unfair dismissal claim, there is extensive case precedent underlining the importance of fair procedure when selecting staff for redundancy. Case law confirms that in any move to make staff redundant clear communication is crucial. That is, in defending a claim for unfair dismissal in respect of a redundancy situation, an employer should be able to prove that the employee facing redundancy was kept fully appraised of developments. Related thereto, staff should be encouraged to come forward with their own ideas as to how the business can be run more efficiently. For example, (at least) two Employment Appeals Tribunal cases reinforce the relevance of this approach. In the 2008 Park Developments case (UD 950/2008), the Tribunal noted that ‘no consideration was given to temporary layoff or short week options’. At around the same time, the Vintners Federation of Ireland was cautioned by the Tribunal, as it ‘did not give any genuine consideration to the proposals put forward by one of the claimants to reduce costs’(UD 787/2007). That is, some consideration of suitable alternative employment or redundancy avoidance measures is appropriate. The respondent did produce supporting evidence that such consideration was applied (e.g. reduced working week, opportunity to deliver training).

There is also case law precedent which holds that employees should be selected for redundancy using objective, fair and reasonable criteria. Section 5 of the Redundancy Payments Act 2003 states that the ‘objective’ nature of redundancy should arise ‘for one or more reasons not related to the employee concerned’ (i.e. the ‘impersonality’ factor). In the absence of such ‘objectivity’, employees may successfully claim that they were ‘singled-out’ when other positions might have been deemed to be equally at risk, or that the criteria applied in the selection process were unfairly biased against them. In such scenarios, the importance of fair procedures and of selecting employees for redundancy based on objective criteria - which should be communicated to the employees concerned – are of importance. Whilst it may be possible to use different criteria for different areas of a business, the onus is on the employer to show that there were objective reasons for doing so. The respondent did produce supporting evidence in respect of the claim that alternate job offers and a consultation process was applied in this case.

CA-00013880-002 With regard to the redundancy calculation claim, and the Community Employment Procedures Manual (which was submitted by the claimant’s representative post-hearing) it is notable that it is (arguably understandably) silent on the matter of redundancy. It is also dated July 2016, by which time ‘sponsors are advised that since all engagements are limited to one year, subject to re-engagements on new contracts for additional periods of one year maximum, the provisions of Unfair Dismissals Act 1977 and the Unfair Dismissals (Amendment) Act, 1993 legislation, does not apply’.

Turning to precedent on this matter, in the case concerning employers (based in North Cork, where there were 10 CE schemes employing 300 people in place) an appeal of a Rights Commissioner’s decision was successful because of: ‘the nature of the payments and their relativity and clear connection with the level of the participant’s Social Welfare (and) the fact that all funding is provided by central government’ Hence,‘the Tribunal could not find in favour of the employees’claims’. (PW286-PW312/2011).

CA-00013880-001: The complainant’s (unfair dismissal) claim is not upheld.

CA-00013880-002: The complainant’s (redundancy) claim is not upheld.

Unfair dismissal; redundancy calculation