Complainant

Respondent

Anonymised Parties

Operations Manager

A Contract Cleaning Company

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-00014034-001

20/Sep/201720/Sep/2017

Section 6(1) of the Unfair Dismissals Act 1977 states that:

“Subject to the provisions of this section the dismissal of an employee shall be deemed, for the purposes of this Act, to be an Unfair Dismissal unless having regard to all the circumstances, there were substantial grounds justifying he dismissal”

The Complainant brings a claim against her former Employer that she was Unfairly Dismissed when her role was purportedly made Redundant while she was out on long term sick leave.

The Respondent resists this claim and argues that the termination of employment is lawful per Section:

6(4) “Without prejudice to the generality of subsection (1) of this section the dismissal of an employee shall be deemed for the purpose of the Act not to be an Unfair Dismissal if it results wholly or mainly from one or more of the following:

..(c) the redundancy of the employee”

The Complainant was represented at the hearing and her position was outlined by submission made by her representative. The Complainant’s position is that she was Unfairly Dismissed when on her return to the workplace after a protracted period of illness she was notified that her position was gone.

The Respondent through written submission and the evidence provided by the CEO stated that the Complainant’s position had been the subject of a genuine Redundancy and that the Respondent had tried to explore possible alternatives albeit at a significant drop in salary and status.

I have carefully considered the evidence adduced by the parties herein. The Complainant had successfully interviewed for the position of Operations Manager with the Respondent Contract Cleaning Company and she commenced in this position in or around October of 2015. The position was a very demanding one and involved overseeing up to 200 Contracts. The salary, per the Contract of Employment was in the region of €50,000.00 with the use of a Company car. It was intended that this would be a permanent position subject only to the Complainant satisfactorily completing her Probationary period.

Unfortunately, the Complainant went out on sick leave after only eleven weeks in the workplace. The Probationary period was never completed. I understand that the Complainant suffered with a pre-existing condition (per medical report of Dr. X) which flared up in the time that she was in the workplace. The Complainant’s condition did not improve and her Doctor categorically states that that the relapse of symptoms was unlikely to have been caused by the workplace.

The Complainant remained out of the workplace for some fourteen months – from January 2016 to March 2017.

The Respondent CEO gave evidence concerning the fortunes of the Employer Company while the Complainant was out on sick leave. The CEO stated that in the course of 2016 the company started to experience an unusually high volume of Complaints from long standing Clients. Out of 190 Contracts held by the Respondent company, 44 walked away from them. This represented a 25% drop in Contracts. The CEO clarified that this had nothing to do with the Complainant, who was out on sick leave at the time. The CEO suggested that one of the difficulties at the time was the re-introduction of a JLC for this sector in early 2016. This meant that Employees in the Contract cleaning sector were given a raise in their basic salaries which was ultimately passed on to the Clients, and consequently some of these clients simply moved away from using the Respondent Service provider.

The Respondent CEO was obliged to stem the loss of Contracts and Revenue associated with such losses. In considering all relevant options the CEO had to look at the Management structure. In her evidence, the CEO says that she identified one of the problems as the failure by her staff to demonstrate attentiveness to individual customers. The CEO said that she believed she needed more managers who would be responsible for meeting with all clients more regularly to ensure that the clients were satisfied with the service being provided.

By the middle of 2016, the Respondent company was therefore re-structuring it’s Management structure. The decision was made to have four Managers instead of three. The new structure identified the need to have three Client Service Managers instead of the two that had existed before hand. More crucially for the Complainant, the position of Operations Manager was identified as being unnecessary with a new position of Industrial Manger being a better option as the Company was setting about competing for larger Industrial Contracts and not just the Office Contracts, which had proven more fickle.

At this time – June 2016 – the Complainant continued to be out on sick leave. There seems to have been unusually little communication between Employer and Employee at this time, and I accept that the Employer was being respectful of the Employees right to privacy and dignity at a time of ill-health. That said, the Employer was well aware of the fact that the changes being made in the workplace were bound to have a profound on the Complainant above all other Employees. The CEO did contact the Complainant on the 15th of June 2016 seeking a meeting with the Complainant regarding her ongoing absence and “…to make a plan for you and the Operations Manager role going forward”. The Complainant in her evidence stated that she had no idea that her role of Operations Manager had come into focus in the way that it had, and she had absolutely had no idea that there was doubt as to it’s being continued. I would accept that the communication of the 15th of June contained little warning though I think the Complainant had to have been on Notice that her Employer wanted to talk to her about the Operations Manager role going forward.

In any event, the Complainant did not meet with her Employer per the request made on the 15th of June. The Employer continued to push for a meeting though I would accept that the efforts weren’t vigorous. Ultimately the Employer requested that the Complainant attend a medical appointment for the purpose of assessing the likely return to work date. This assessment was held in July 2016 and the report of the Doctor was to the effect that there was no short-term prospect of the Complainant returning to work and of ongoing ill-health. I accept that with this diagnosis (and a further one in October 2016), the Employer’s position became difficult as it could not be seen to be harassing the complainant whilst out on sick leave.

The Company proceeded to re-structure and the CEO gave evidence that the re-structure worked well as client retention rates and customer satisfaction rates improved. This had been the objective and the objective was achieved

The Company now had four Managers on a rate of €30,000.00 PA each as against three Managers with one on €50,000.00 and two on €30,000.00.

Ultimately, this meant that the Complainant returned to the workplace the following March 2017 not knowing that in the fourteen months since she had last worked, there had been a comprehensive overhaul of management and that her job had effectively been made redundant (though the CEO denies using this language). At a meeting held between the Complainant and the CEO the new Management structure was presented as a Fait Accompli. I accept that the Complainant must have been shocked that her job was gone and she was now being invited to put her name forward for a Service Management and /or Industrial Manager role at a salary reduction of 40%. The real sting was the idea that if she did put her name forward for consideration she might not even get any role as there were potentially five people competing for four jobs. In fact, it seems that the roles had all already been filled and the Employer appeared to be suggesting that the re-engagement of the Complainant would have served to displace someone already appointed.

The Complainant in response requested that she be returned to the workplace under the same terms and conditions that had been operable when she went out sick. The CEO’s reply to the Complainant is an open invitation to enter a process of dialogue to consider all options and potential alternatives. The CEO does not rule out retaining the position of Operations Manager but tasks the Complainant with the job of demonstrating how that position continues to be necessary and/or viable. The Complainant does not engage in this process and nor does the Complainant respond positively to the offer to an increased salary of €38,000.00 for a position in management.

On the 19th of March the Complainant confirms that she will not take a demotion and a cut in salary and the company made her position redundant by letter dated the 21st of March 2017.

The Complainant herein claims she was unfairly dismissed whilst the Employer maintains that the termination of this employment cannot be deemed an Unfair Dismissal where the termination of the employment resulted wholly or mainly by reason of the position being made redundant as is allowed for under Section 6(4) of the Unfair Dismissals Act of 1977.

I did not hear evidence in relation to an Unfair process for selection for Redundancy and in this regard, I believe that the Complainant did not engage with the process of selection initially mooted. I understand that this was because the Complainant did not see the alternative employments as being commensurate with the position she had been engaged to perform.

On balance, I have to find that the Complainant’s position of Operations Manager was made redundant. It is clear that the Company, in reaction to a shifting market, sought to create lower level Managers each of whom would have fewer clients and more opportunity to develop relationships with those clients. The position of Operations Manager was no longer essential to the business. I have no reason to think the outcome of the re-structuring process would have been any different had the Complainant not been out on sick leave. The position of Operations Manager would have been redundant. Even though the Complainant had only recently gone through a recruitment process to get the job, it soon became apparent that the recruitment was badly timed as it did not satisfy the business requirements moving forward. This became apparent within eight or nine months of the Complainant’s appointment. I do not think that the Complainant’s being out on sick leave was a factor one way or another.

I do think that the Employer let the Complainant down by failing to keep her abreast of the changes taking place. That said, I have to recognise that the Employer must weigh the need for full disclosure against the duty of case not to cause stress to an Employee out on long term sick leave. On balance I accept that the Complainant knew or ought to have known that there was some issue with the role of Operations Manager from June of 2016 – per CEO communication.

In light of the foregoing, I find the Complainant not to have been Unfairly Dismissed.

The Complainant was not Unfairly Dismissed.