ADJ-00016866

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00016866

Parties:

Complaint:

Date of Adjudication Hearing:  15/02/2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

This complaint refers to a complaint of Unfair Dismissal by way of unfair selection for redundancy. The Respondent denied the selection for redundancy was unfair.

Summary of Complainant’s Case:

The Complainant commenced employment as a Cleaning Assistant/General Operative on the 28^th August 2017. She worked approximately 20 hours a week. The Complainant maintained that the business was transferred in June 2018 to the Respondent. She advised that at the time of the transfer she signed a transfer starter form that was provided by the Respondent and was informed nothing would be changing regarding her job.

The Complainant advised that on 1^st June 2018 after the transfer she had been asked to sign a new contract and was required to ask two other staff to sign a new contract.  As the Complainant had a permanent contract of employment dated on the 28^th August 2017 (as submitted to the hearing) she did not sign any new contract.

The Complainant advised she was on annual leave and returned from annual leave on the 20^th June 2018, but she went home sick that day due to stress. She advised on the 3^rd August 2018 while on sick leave she received a letter from the Respondent putting her on protected notice with regard to potential redundancies. She submitted that on 10^th August 2018 she met with the Respondent with other staff where they were advised by the Area Manager of possible redundancies. She advised four staff attended that meeting and it was unclear as to who would be made redundant. However, the information provided at that time was that the decision would be based on the last in first out principle. As she believed she had longer service than other employees she did not expect the redundancy to affect her.

The Complainant submitted that she heard nothing more after the meeting of 10^th August 2018 and she remained on sick leave. She sought an update from the Respondent on 6^th September 2018 where she was advised a letter had been sent out to her regarding the redundancy decisions.  The Complainant maintained that she did not receive this letter. She said a further letter was sent to her which she received on 11^th September 2017 advising her that the redundancy was applying to permanent members of staff only, and that temporary members of staff were not being considered for the redundancy. Accordingly, she was advised that her role was being made redundant.

The Complainant submitted that throughout the process it was unclear as to how many roles were being made redundant, and the circumstances changed regarding the selection criteria for the redundancy.  She maintained the criteria had changed from the last in first out principle to permanent staff. As the Complainant maintained she was not covering for any other member of staff and as she had longer service than other members of staff, her selection for redundancy was unfair and the criteria to apply the redundancies to permanent staff only negatively impacted on her.

She therefore submitted that she was unfairly selected for redundancy and was unfairly dismissed. The Complainant maintained if the temporary employees were also considered for redundancy she would not have been selected.

She advised the breakdown of staff was as follows:

• Employee 1 who had been a long-term employee was on sick leave and was being covered by a temporary member of staff who started her work on the 2^nd of February 2018 after the Complainant had been appointed.
• Employee 2 was a manager who had been sick for a period of time and returned from sick leave on the 3^rd of August 2018. She argued that this person was a manager and was not a cleaning operative.
• The third member of staff was employed as a supervisor and had commenced work on the 3^rd of September 2017 and therefor had less service than her.
• The Fourth member of staff was a long serving member of staff who would not have qualified

The Complainant therefore argued that on the basis of last in first out she should not have been made redundant and she should have been offered the role held by the temporary member of staff who had joined after her.

Summary of Respondent’s Case:

The Respondent failed to attend the hearing. I am satisfied the Respondent was informed of the hearing date and location and had made a written submission to the WRC prior to the hearing date.

In its written submission the Respondent maintained that the Complainant had joined the company by way of transfer on the 1^st June 2018 and that she would have completed a TUPE Starter Form on 9^th May 2018 in advance of the transfer. The Respondent submitted that there was confusion during the transfer with regards to the information provided to it by the transferor and it was initially believed that the Complainant was a cover employee who had been appointed to cover for employees on long term sick leave. This issue was what they understood caused the Complainant to go on sick leave on the 20^th June 2018, and that the Complainant was on certified sick leave from the 2^nd July 2018.

The Respondent submitted that two long term sick employees were due to return to work.  One was due to return the 29^th June 2018, but this employee immediately went back on sick leave. As a consequence, this person’s hours were given to a cover/temporary employee pending the return of the full-time employee. Accordingly, at the time of the redundancies the area manager understood the long-term employee would be back to work within two weeks. The Respondent advised the other employee who was on long term sick leave returned on the 30^th  July 2018.

The Respondent submitted that they were faced with the fact that the return of these permanent cleaning operatives from a long-term sick leave meant they had five permanent cleaning operatives but only two vacancies. No other work was available in the area. The Respondent therefore maintained that on 3^rd August 2018 it informed the Complainant that she was placed on protected notice and that redundancies were a possible at the site from 3^rd September 2018. It maintained that on the 10^th August 2018 it had a consultation meeting with the Complainant about having only two permanent cleaning operative positions available but five permanent cleaning operatives onsite.  The Complainant was advised redundancies would be made and would be based on the last in first out criteria for permanent staff. The Respondent submitted the starting dates of the operatives were as follows:

• Operative 1 started the 1^st October 2012,
• Operative 2 started on the 23^rd September 2013 but her role was being covered by a temporary employee while she was on long term sick leave,
• Operative 3 started 13^th March 2017,
• Operative 4 who was the Complainant started on the 28^th August 2017, and
• Operative 5 started on the 22^nd January 2018.

Accordingly, the Complainant was chosen for redundancy as she had the second shortest time in the job. As she did not have the statutory time served she did not qualify for a redundancy payment. It further advised that as none of the personal selected for redundancy had been working for more than 104 weeks they did not qualify for redundancy payments.

Findings and Conclusions:

In accordance with Sections 7(2)(b) and (c)  of the Redundancy Payments Acts 1967 [A]n employee who is dismissed shall be taken to be dismissed by reason of redundancy if  for one or more reasons not related to the employee concernedthe dismissal is attributable wholly or mainly to the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

On that basis I am satisfied three of the cleaner roles had become redundant, and in that regard the Complainant’s role was under consideration.

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”. S6(4)(c) of the Act states the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if inter alia it results wholly or mainly from the redundancy of the employee. In addition S6(7) of the Act requires that in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer considers it appropriate to do so- (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and (b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure which the employer will observe before and for the purpose of dismissing the employee …or with the provisions of any code of practice.

I must therefore decide whether the selection procedures applied by the Respondent as it related to the decision to make the Complainant’s role redundant were reasonable.

In accordance with the Respondent’s submission, the decision applied to making the Complainant redundant was based on the last in first out criteria. 

Having reviewed the evidence the Complainant has maintained that a temporary member of staff was not considered for redundancy and had the temporary member been considered in the redundancy procedure it would have been the temporary member of staff who should have been the selected for redundancy on the last in first out basis, and not the Complainant.

Having considered the issues it appears that the basis for the decision to make staff redundant had changed a number of times during the protective notice period. Initially the Complainant was advised the redundancy selection criteria was to be based on covering staff.  She was then advised it was to be based on last in first out, and then she was advised that it was only permanent staff that were being considered on the last in first out basis. The Complainant maintained that the application of permanent staff on the last in first out was an unfair basis for selection and the fact that these conditions have changed without her being notified was also unfair.

Having considered this matter I find that on balance the procedures adopted by the Respondent were not sufficiently clear and amounted to an unfair process for selection for redundancy where permanent staff were treated less favourably.

Notwithstanding, based on the evidence in front of me I am satisfied that irrespective of whether the Complainant was a contract or permanent member of staff she would still have been selected for redundancy in light of persons who had more time served than her.

Whilst I acknowledge the process adopted by the Respondent was confusing, and caused anxiety for the Complainant, I find that her role was redundant as people had served longer than were retained, and no body with less service than the Complainant was retained in preference to her.

Accordingly, I do not uphold that she was unfairly selected and therefore I do not find that she was unfairly dismissed.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

For the aforesaid reasons, pursuant to Section 8 of the Unfair Dismissals Act 1977 I find this complaint is not well-founded and conclude that the Complainant was fairly dismissed by the Respondent. The complaint is therefore not upheld.

Dated:   August 6^th 2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

Key Words:

Unfair Dismissal, Selection for Redundancy