Complainant

Respondent

Anonymised Parties

An Operations Manager

A Premium Technology Reseller

Representatives

Tara Keane; Mandate Trade Union

Sarah Lawn; Arthur Cox Solicitors

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-00012614-001

18/07/2017

The Complainant works in sales and has worked with the Respondent company since 2013. The Respondent company is a retail and online company specialising in the sale of branded high end software, technology, computers and phones.

The Complainant was made redundant because of economic necessity in April of 2017.

The Complainant believes she was unfairly selected for Redundancy in circumstances that were shrouded in secrecy and never explained or justified. The Complainant further makes the case that this Employer failed to discuss suitable alternative work at a time when the recruitment of Employees was ongoing. The Complainant says she was never given a chance to have some input into salvaging her career with the Respondent company

The Respondent’s s case is one of economic necessity forcing the Respondent to make the Complainant redundant. The Respondent witness believes he did everything that could reasonably be expected of him to try and source alternative work for the Complainant.

I have carefully considered the evidence adduced during this hearing and have considered the submissions prepared by both sides in advance of the hearing date.

The Complainant was made redundant in and around April 2017 (having been put on garden leave for the final month/notice period of her employment). The Complainant does not particularly take issue with the fact of a Redundancy but makes the case that the manner, method and process for selecting and implementing that Redundancy rendered the Redundancy unfair.

Section 6(3) of the 1977 Unfair Dismissals Act governs the law relating to Redundancy and the decision of an employer to select a candidate for Redundancy must be justifiable on objective grounds. Neither party could point to an agreed procedure or custom or practise relating to employment and assuming the redundancy did not result wholly or mainly from one of the grounds deemed automatically to be unfair (Section 6(2)) of the Unfair Dismissals Act (as amended)) I must ask myself whether the Respondent employer has acted reasonably in all the circumstances. This includes the reasonableness of the selection and the reasonableness of the manner of dismissal. I must apply “the objective standard of the way in which a reasonable employer in these circumstances, in this line of business, and at that time, would have behaved” per the EAT Boucher   -v- Irish Productivity Centre UD 1005/1992

At the outset, I would accept that there was no lead up to the announcement of there being a need for the Complainant’s position to be made Redundant. The Employer witness SB stated that the company was making losses and this may well have been the case but with an annual turnover of 8 million this was not a company which seemed in any imminent danger of collapse. It is striking that during the Complainant’s Redundancy the Respondent was advertising and recruiting personnel and I believe this recruitment process continues up to today. The Complainant was therefore first notified at a meeting on the 27th of February 2017 that her specific job was to be made redundant. How this decision was made is unclear, though the evidence from the Respondent witness was that the decision was made at Board level. The implication being that a decision made at Board level was somehow inviolable and beyond scrutiny even where the rationale was not immediately apparent. It is worth noting that the Complainant’s position of Operations Manager was in fact subsumed into that of SB. In any event, there is no transparency on the issue of why only the Complainant’s job came into focus and no attempt was made to explain this to me at the hearing or to the Complainant at the time.

The interaction between the Complainant and SB in the aftermath of this notification amounted to a few meetings and emails. The Complainant says that she pleaded with SB to source alternative employment as she needed employment of some sort. The Complainant states that she was willing to go part time, willing to consider any position and asked SB to work with her in this regard. On reviewing the scarce paperwork, I do not get the sense of the urgency the Complainant speaks of but equally I do not get a sense of the Respondent witness SB doing much to try and source alternative employment. The one job he did come up with was based in Cork and required an IT degree which the complainant simply did not have.

Much of the dispute between the parties centred on the availability of a Leinster sales and development role which had been advertised and was due to be filled imminently. The Complainant accepts she was told about it in the follow up meeting of the 6th of March but that she was not told that the position was on the cusp of being filled and that in order that she might be considered for it she would have to get an application in very quickly. In the follow up letter from SB dated the 6th of March, it is not highlighted that any application would need to be made immediately. It is worth noting that within ten days of that communication, the role had been filled and the new Leinster Business Manager was sitting in the Complainant’s seat – giving rise to the question whether there was any reality to suggesting she apply at all.

I fully accept that the Complainant was right to be disappointed at the lack of support offered by SB or any HR department or function whether in Ireland or in the UK head office. I recognise that no real effort was made by SB to engage in a meaningful way with the Complainant. There were three meetings held. The fact of Redundancy is announced at the first. The promise to help find alternative employment is made at the second. The third time the parties meet is in the presence of someone for interviewing for the totally unsuitable position in Cork. Beyond that there is no communication, no suggestions invited or given and no other meaningful interaction to speak of.

On the 30th of March 2017, the Complainant is advised that her employment is terminating as of that day and for reasons only known to SB the Complainant was orally advised that she was to leave the premises on that day and serve her notice at home on some sort of “garden leave”. There can be no doubt that SB created an impression of wrongdoing on the part of the Complainant herein and that this action was utterly unjustifiable, cruel and unprofessional. Having not assisted in the Redundancy process to then strip the Complainant of her dignity was unreasonable and unfair in all the circumstances. There was, of course, no right to Appeal the Board’s original decision or SB’s decision to implement the Redundancy.

I note in the letter of the 30th of March that the emphasis is placed by SB on all that he had purportedly done during this process and I do not as a matter of fact find the content of this letter to be honest. None of the detail he outlines in this letter is apparent in the email of the 6th of March. This is an obvious attempt on the part of SB to cover his tracks. The letter then goes on to offer the Complainant with a financial pay off if she promises to make no further issue.

In outlining her loss the Complainant indicated she was out of employment for 5 weeks and then found an alternative position that paid as well as the Respondent position had. The Complainant was therefore not at considerable remunerative loss.

I have had sight of the Complainant’s payslip dated the 28th of March 2018. The Complainant’s weekly remuneration was in the sum of circa €866.00 gross. In the circumstances I find it just and equitable that I award compensation in the sum of 4 weeks remuneration pursuant to Section 7 of the Unfair Dismissal Act 1977. I award the sum of €3,462.00.