UDD1827

FULL RECOMMENDATION

UD/17/98

DETERMINATIONNO.UDD1827

ADJ-00003209 CA-00004785-001

SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015

PARTIES :

SASTA HARDWARE LIMITED

- AND -

EMMA NOACK

DIVISION :

Chairman: Mr Haugh
Employer Member: Ms Connolly
Worker Member: Ms Treacy

SUBJECT:
1. An appeal of an Adjudication Officer's Decision no. ADJ-00003209.

BACKGROUND:

2. The Respondent appealed the Decision of the Adjudication Officerto the Labour Court on 1 June 2017 in accordance with Section 8A of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 25 April 2017. The following is the Determination of the Court:-

DETERMINATION:

Background to the Appeal

This is an appeal brought on behalf of Sasta Hardware Limited (‘the Respondent’) against a decision of an Adjudication Officer (ADJ-00003209, dated 2 May 2017) under the Unfair Dismissals Act 1977 (‘the Act’). The Adjudication Officer upheld Ms Noack’s (‘the Complainant’) claim that she had been unfairly selected for redundancy by the Respondent contrary to the Act. He awarded her compensation of €9,100.00 (the equivalent of 52 weeks’ remuneration) less €2,664.66 which the Complainant had received by way of a statutory redundancy payment on the date of her dismissal. The Respondent’s Notice of Appeal was received by the Court on 1 June 2017. The Court heard the appeal in Waterford on 25 April 2018. The Respondent was represented by Mr John Holland, a director of the Respondent. The Complainant was a litigant in person.

The Factual Matrix

The Complainant was employed by the Respondent from November 2006 until 13 May 2016 when her employment was terminated by reason of redundancy. The Respondent submitted that the business had been accumulating losses for a number of years prior to 2016 but the Respondent had managed to keep it afloat by cutting costs and had thereby avoiding the need for significant job losses. However, in March 2016 it was necessary to reduce staffing levels in order to sustain the business. Consequently, three positions were made redundant which included that of the Warehouse Manager and of an Administration Clerk as well as the Complainant’s position in the Packing Area of the business.
Mr Holland told the Court that the Complainant was selected for redundancy entirely on the basis of her attendance record. A different (unspecified) selection criterion was used to make the other two positions mentioned earlier redundant. Mr Holland explained the Respondent’s reasoning for using attendance as a criterion to make a position in the packing area redundant as follows:

“Making somebody redundant in the packing area was difficult as we had to ensure this area would still run smoothly to ensure customer orders would be fulfilled at all times so the minimum of disruption was required. We had to look at attendance records, because of one person less in the area, we could not cope without full attendance every day by the remaining staff.”

The Complainant submits that she had been transferred into the position from which she was made redundant in or around May 2015 when there was a change of management in the business. Her new position was at the end of the packing line and involved a considerable amount of heavy lifting. She had previously worked in another location on the production line which was less physically demanding. She told the Court that the Respondent had not offered her the option of returning to her previous position as an alternative to terminating her employment. Neither had she been offered an opportunity to appeal the Respondent’s decision to dismiss her. The Complainant did not dispute the Respondent’s submission that the business was experiencing financial difficulties and that it was necessary to reduce headcount.

Application of the Law

The Act deems a dismissal to be unfair until the Respondent in proceedings under the Act demonstrates that it was neither substantively nor procedurally unfair. The Respondent’s submission that the poor trading performance of the business necessitated a reduction in the numbers employed was not contested by the Complainant. Accordingly, the Court has to take the Respondent’s submission in this regard at face value. However, the Respondent failed to adduce any evidence that goes to show that it applied fair procedures in selecting the Complainant for redundancy. Its decision to select the Complainant was based entirely on its view of her attendance record. Mr Holland further stated that a different criterion had been used to select two other employees for redundancy in or around the same time that the Complainant was made redundant. The Complainant was not consulted about the criterion the company chose to apply to her; neither was she afforded the opportunity to appeal against the Respondent’s decision to terminate her employment.
The Court accepts, on balance, that the Respondent’s trading position was such that it had a need to reduce staff numbers. There was, therefore, a redundancy situation. However, the Court cannot accept that selecting an employee for redundancy based on the sole criterion of that employee’s absenteeism record is sufficiently objective and impersonal such as to render the process fair and objective. Accordingly, the Court finds that the Complainant’s dismissal is unfair within the meaning of the Act.

The Court further finds that the Adjudication Officer marked the compensation payable to the Complainant correctly at €9,100.00 (the equivalent of 52 weeks’ remuneration) less €2,664.66 which the Complainant had received by way of a statutory redundancy payment on the date of her dismissal.

The decision of the Adjudication Officer is, therefore, affirmed.

The Court so determines.

Signed on behalf of the Labour Court

Alan Haugh
CR______________________
18 May, 2018Deputy Chairman

NOTE

Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.