ADJ-00016869

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00016869

Parties:

Complaint:

Date of Adjudication Hearing:  08/03/2019

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 an unfair selection for redundancy where the Complainant maintained she was unfairly dismissed due to the redundancy selection procedures applied by the Respondent.  The Respondent denied the Complainant was unfairly dismissed and contended that selection for redundancy was based on fair procedures.

Summary of Complainant’s Case:

The Complainant submitted that she was employed as a Cleaning Operative from the 13^th March 2017 and where she was promoted to the permanent position of manager in March 2018. In this role she was required to oversee the operation of the cleaning services at a client site.  She also provided cleaning services as part of that role.

The Complainant submitted that her position was subject to a “TUPE” in June 2018. Following the TUPE her position as manager was contested by the new employer (the Respondent) where this complaint was subject to a separate WRC hearing and where it was decided in that hearing that her position was that of a permanent role as a manager.

The Complainant maintained that when she came to work on the 20^th June 2018 she was informed there was no role for her in her role as manager. She advised that she would consider reverting to the role of a Cleaning Assistant but wished to remain on her current rate of pay. She was asked to leave the premises at that point and she went on annual leave for two weeks. When she returned from annual leave as she had not heard from the Respondent regarding her position as manager she found the situation stressful and she went on sick leave and remained on sick leave until the date of her termination, which was 6^th September 2018.

The Complainant maintained that she met with the Respondent on the 10^th August 2018, where redundancies were discussed and she was advised that the redundancies would be based on the “last in first out” criteria. The Complainant advised that she would have received a notification by letter on the 28^th August 2018 from the Respondent that she was being placed on protective notice due to the Respondent considering redundancies from 3^rd September 2018. In this letter the Respondent advised the Complainant that the basis for selection of redundancy would be “last in first out”. As she had longer service than the other employees she felt reassured that her position would not be made redundant. She advised that she heard nothing from the Respondent, and on the 6^th September 2018, she contacted the Respondent who advised her over the phone that her role had been made redundant. She subsequently received a letter to that effect dated 5^th September 2018.

The Complainant maintained that the work was still there and that she understands there is currently negotiations with staff regarding the allocation of work on the site. The Complainant also contended that she had longer service than other persons selected for redundancy and taking all of this into account she was unfairly dismissed by being selected for redundancy.

Summary of Respondent’s Case:

The Respondent advised that following a transfer of undertaking it took ownership of the business in June 2018. The Respondent advised that it followed proper process and notified the employees of the transfer.

Shortly after the transfer it contended that the Complainant’s contract as a manager was only a temporary contract and they sought to revert her to her to what they believed was her substantive role of a General Operative on the basis that the manager’s role she was filling on a temporary basis was now to be refilled by the manager who was returning from a period of sick leave.

The Respondent was not in a position to confirm the nature of the discussions that took place with the Complainant on the 20^th June 2018.  However, it acknowledged that the Complainant had left on annual leave on that date and did not return to work since. The Respondent maintained it had been seeking to reinstate the Complainant in her substantive role as General Operative at that time, however, it acknowledged that based on WRC decision this position was incorrect as the Complainant had in fact a permanent contract as manager at the time of the transfer.

The Respondent had decided there was no role for two managers, and therefore the role of one manager was made redundant. It advised on that basis the Complainant was properly selected for redundancy and that the dismissal was not unfair.  The Respondent also submitted that at the time of the redundancies, and before the decision from the WRC had been issued, it had maintained the Complainant was a General Operative and was dealing with her in that capacity. It maintained that it had less work available, and for economic reasons the redundancies were necessary. In making its decision to terminate the Complainant’s role it advised that it went through a process of “last in first out” which was in accordance with the process advised to the Complainant at the time.

The Respondent maintained that the two roles that were being retained were filled by permanent employees and where these employees had started their employment some years prior to the Complainant. It advised that the longest serving employee started on the 1^st September 2012, and the second longest serving employee started on the 23^rd September 2013. The Complainant commenced her employment on the 13^th March 2017 and as she had less service she would have been deemed to have fallen into the last in first out criteria for selection.

The Respondent acknowledged that the person in the second role who had commenced their employment in 2013 had been on long term sick leave at the time of the redundancy decision, was due to return to work following her sick leave, and that her role was filled by a person who was on temporary contract. Therefore, it decided the Complainant was naturally chosen for redundancy. To date the person in the second role has not returned from sick leave and the role continues to be filled by a person holding a temporary contract.

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 ofdismissing 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 deciding the procedures to be deployed in making employees redundant, the Respondent had informed the Complainant that the “last in first out” criteria would be applied. Although it is acknowledged that the Complainant was in dispute with the Respondent about her grade at the time, the Respondent was maintaining at that stage that the Complainant was a General Operative and not a manager. Even so her work predominantly included cleaning activities associated with a General Operative.   As she had more service than others she should have been provided with the opportunity to be selected for the roles being retained, even if they were on a temporary basis. 

What occurred was the Respondent did not consult with the Complainant, and instead chose her for redundancy ahead of a person with less service who was holding a temporary contract to infill for an employee on long term sick leave.   It is also noted that the Complainant advised that had she been offered this position she would have taken it rather than being made redundant.  It is further noted that if the Complainant took up this position she would still have been at employment at the time of the hearing as the permanent employee remained on long erm sick leave.

Having considered all the evidence presented in front of me I find that the failure of the Respondent to actively engage with and consult with the Complainant with regards to a redeployment to a temporary role before deciding to make her redundant has amounted to an unfair selection of the Complainant for redundancy. I therefore uphold the complaint and find the Complainant was unfairly dismissed by way of her selection for redundancy. 

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.

The Complainant was not available for work following her Redundancy until October 2018.  She found new employment on 2^nd January 2019. As the Complainant has successfully found alternative employment I award her compensation of twelve weeks pay at a rate of €740 per fortnight, amounting to €4,400 for the loss suffered as a consequence of her unfair dismissal.

Dated:   August 6^th 2019

Workplace Relations Commission Adjudication Officer:  Gerry Rooney

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