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-00011564-001

25/05/2017

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

CA-00011564-002

25/05/2017

The Complainant commenced employment as a receptionist in a housing project with the Respondent in July 2002. The Respondent is a charity which supports and provides accommodation for people experiencing homelessness. At the date of her termination, 25th April 2017, the Complainant was working a 29-hour week and was paid €1,936 per month. A complaint was lodged with the WRC on 25th May 2017.

The Respondent provided a detailed written submission.

The Respondent rejects the claim that an unfair dismissal took place.   It is the Respondent's case that the Complainant's post was made redundant in April 2017. The Complainant was unsuccessful in an application for an altered role in her existing location. Another, part-time role was offered to the Complainant but negotiations regarding this other role broke down, leaving the Respondent with no alternative other than to terminate the Complainant's employment by way of redundancy.

Following serious incident in October 2016, in which aggressive behaviour by a client resulted in damage to the reception area where the Complainant worked, a review took place. Following the review, it was decided to take the reception staff off work at weekends and increase the security at weekends by out-sourcing.   As the reception area was now only going to function on a Monday to Friday basis it meant that there would only be one full-time receptionist role, at this location, though an option to transfer to a pert-time role in another location was put to the two receptionists.

Through November and December 2016 discussions took place between management and the Complainant, represented by her IMPACT union official, regarding the issue.  The Complainant was reticent about applying for other roles until the matter of loss of earnings was finalised.

In February 2017 both the Complainant and her receptionist colleague applied for the full-time role in their original workplace and interviews were held on 15th February 2017. The Complainant was unsuccessful in her application for the role.

On March 1st, the Complainant was offered the part-time role in another location. On 4th March the Complainant wrote to the Respondent declining the offer of the part-time role stating that such a role would mean a huge loss of income for her.

On 13th March, the Respondent wrote to the Complainant setting out the terms of the redundancy payment, i.e. €14,453 statutory redundancy payment in addition to €6,990 ex-gratia lump sum.   On receipt of this letter the Complainant left her workplace.

The Complainant remained out from work. A meeting took place between the parties on 3rd April 2017. During this meeting the Complainant stated that she was unhappy with the redundancy package and would not sign any waiver. No agreement was reached.

On 18th April, the Complainant's union representative emailed the Respondent stating that as no agreement had been reached on a joint referral to conciliation in the WRC, the Complainant would not be returning to work. He also confirmed that the Complainant was not willing to accept the redundancy package that she had been offered.

On 26th April 2017, the Respondent wrote to the Complainant confirming that she was being made redundant and would only be getting the statutory element of the package.

Concluding, the Respondent put forward that a genuine redundancy situation existed. That there was serious consultation with both the Complainant and the other receptionist prior to making any decision to alter their roles.   That the Complainant was offered another role and that it was the Complainant who never followed up the offer to negotiate on compensation for loss of earnings to do with this alternative role.   That she was treated fairly in the circumstances.

The Complainant provided a detailed written submission.

The Complainant submits that in response to challenging behaviour within the project a series of meetings were held locally to review the safety plan and the position of the receptionists.

IMPACT, on behalf of the two receptionists, raised concerns about the mooted changes to the system and a meeting with management took place on 5th December 2016. At this meeting, management held that the proposed changes arose from concerns regarding safety, and a wish to provide a contract worker based service. This notion was refuted by the receptionists as they had always carried out a social care function as part of their role and had the required skill set. The Complainant has completed a B.A. in Social Care.

The union objected to the out-sourcing of this work to security contractors which would result in the two posts being reduced to one receptionist position, 9am to 5pm, Monday to Friday, with a subsequent loss of income and redundancy.

The Complainant and her receptionist colleague were invited to apply for the new 9-5 receptionist role or consider redeployment to another location.

At a meeting on 11th January 2017, IMPACT again objected to the abolition of the existing roles, and sought clarification regarding compensation for loss of earnings and details of the proposed redeployment.

The Complainant accepted an invitation to apply for the new receptionist role, which she did, while maintaining her position in relation to her then existing role.

On 1st March 2017, the Complainant was informed that she was unsuccessful in her interview and was offered redeployment to a 19.5 hours’ position in another location. She declined this offer, by email on 4th March 2017, due to the less favourable terms and conditions and additional commuting time required.

There followed a series of communications and a meeting at which the Complainant declined the voluntary severance offer as she believed that her role was improperly being made redundant and that the ex-gratia payment was inadequate in the circumstances.

On 26th April 2017, the Respondent wrote to the Complainant confirming that she had been made redundant and that, as she had declined the voluntary severance package, statutory redundancy only would be paid.

In concluding, the Complainant believes she has been unfairly dismissed as she was qualified and experienced in carrying out the duties required by the Respondent resulting from the proposed restructuring on the roles where she worked. The Complainant also submits that the stated reason of concerns about client and staff safety within the centre were spurious, as she was fully trained and qualified in the social care element of her role and had many years' experience in this area.

The Complainant, contends that her replacement by contracted security staff or inexperienced care staff would appear to be based on financial reasons rather than her capacity to carry out the duties required.

The Complainant also believes that alternative post offered was part-time and would have involved an unacceptable loss of income and inconvenience due to its location and the working hours.

With regard to the level of one week per year ex-gratia payment offered in voluntary redundancy, the Complainant believes this to be inadequate, the Complainant cites a Labour Court Recommendation, which recommended the same Respondent to pay two weeks' pay per year of service, in a redundancy situation. The Complainant also cited a letter from the Respondent dated 2011 regarding redundancy terms offered during a previous restructuring exercise which allowed an ex-gratia payment of two weeks' pay per year of service, which according to the Complainant, was in the context of more severe financial constraints than applying now. It is the Complainant's contention that as the within case was not driven by financial requirements, a higher ex-gratia payment of four weeks per year would be more appropriate.

Section 6(4)(c) of the Unfair Dismissals Act states:

(4) Without prejudice to the generality of subsection (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 the employee, and

From the evidence adduced I believe this was a genuine redundancy as allowed under the Act.

It would seem to me that the real issue of contention in this case was not the existence or otherwise of a redundancy situation, but that the ex-gratia element of the redundancy package offered by the Respondent did not satisfy the Complaint's expectations.

The merits or otherwise of an ex-gratia redundancy payment do not fall within the scope of the Unfair Dismissals Act.

Redundancy, alternative employment, ex-gratia payment