ADJ-00021729

Complainant

Respondent

Anonymised Parties

Visual Merchandiser

Retail Department Store

Representatives

Judy McNamaraIBEC

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-00028392-001

18/04/2019

The Complainant brings a complaint of Unfair Dismissal when he says his employment was unlawfully terminated without regard to fair procedures and

The Complainant had been trained up in the Respondent department store in Donegal and moved with the group to the Dublin store as a full time Visual Merchandiser. The Complainant says that the decision to make him Redundant was Unfair in circumstances where he was personally singled out without being afforded any consideration for alternative positions.

The Respondent’s case is quite simply that the there were unavoidable financial reasons which justified the need for the Complainant’s position to be made redundant.

I have carefully considered the evidence adduced in the course of the hearing of this matter. The complainant had been engaged with the Respondent company initially through a Job bridge scheme in its Donegal operation and eventually as a full-time visual merchandiser and he was placed in the recently opened retail outlet in Dublin. Its flagship outlet.

I fully accept that the Respondent company which has a multi-million euro turn-over was experiencing some negative financial times in the entire company but most particularly in the Dublin based shop which was not pulling its weight and was sustaining losses which could not be allowed to continue unchecked. The Complainant appeared to accept this evidence in principal.

The employer in considering its cost base in Dublin looked at the salary outgoings and it is not surprising that the full-time role of Visual Merchandiser came into focus. Such a role does not generate sales and was therefore considered to be superfluous to requirements in the shop. I do note that the Complainant was on a very basic salary and would speculate that it was never going to be the panacea for the financial woes being experienced.

Eventually it would be decided that the job of Visual Merchandiser would be made redundant and I accept that, in due course, the Complainant’s position was made redundant and was not replaced. What is surprising is that the Complainant, who had trained up with the Respondent company and had worked well in various roles with the Respondent was not considered for retention in any other capacity. Ultimately, no other option of re-deployment was open to him or discussed with him. This is curious as, for example, the Complainant had essential retail and sales skills which with his knowledge and appreciation of the high-end product surely made him a good proposition as a salesperson? I note that the Complainant’s line Manager in her evidence had refused to look beyond his Contracted position. As far as she was concerned, the Complainant was the Visual Merchandiser and if his position was made Redundant, he was made Redundant. She was unwavering on this point.

The Complainant himself gave uncontradicted evidence that he had helped with the training up of four new members of staff to be added to the retail team in the November of 2018 (for part-time, full-time and temporary positions in the run up to Christmas) and I fully accept that this suggests he had acquired all the necessary skills in this field.

In and around early December 2018 the Complainant was told that his Contracted job as Visual Manager was being reduced to a three-day week. The Complainant had previously been advised (in the September) that his job as Visual Merchandiser would be certainly cut back but that he could make up his full working week in retail and sales i.e. 3 days as VM and two days in sales. This offer was dropped in the December discussion and only three days of Visual Merchandiser was on offer. The Employer allowed the Complainant some time to consider this offer and in fact the 5-day VM status quo remined through the Christmas period and it was not until the start of 2019 that the Employer sought a meeting with the Complainant. The initial suggestion was that the meeting take e place in Donegal which I hold to be a bit unreasonable given his workplace is in Dublin. In fact, on reflection, I cannot fathom why the Employer could countenance how bringing the Employee up to Donegal to terminate his employment would ever have sat well? For this is what happened. Over the Christmas/new year period the decision was made at Board level that the Complainant’s position as Visual Merchandiser and employment was going to be terminated without further discussion. This decision was delivered at a meeting in Dublin in February of 2019. The decision came as a bolt from the blue to the Complainant who had no idea he was being let go and he was given no opportunity to make his case for retention in any capacity.

It is not possible for me to ignore the apparent undercurrent of bad feeling between the Respondent witnesses (owners of the company) and the since dismissed Dublin Manager who had clearly had a good relationship with the Complainant. I have to wonder to what extent that the souring of that relationship had had on the precariousness of the Complainant’s position?

It was the Managing Director who came down to Dublin to terminate the employment. Generally, I accept that this termination appears to have been conducted in a vacuum and no one else in the company has to date been made terminated in this way (though some evidence has been suggested that protective Notice has issued somewhere since).  Again, this brings me back to the point of the impact that saving on his small salary would have on the apparently serious ongoing losses. It is hard not to see that from the Complainant’s point of view, he has been singled out without any real explanation.  I am bound to accept the MD evidence that the making of an employee redundant gave him no satisfaction. However, the MD had to agree that the question of re-deployment never arose and was never considered though he was well aware that the Complainant had a skill set singularly suitable to his Company. Nothing further was explored. The decision was made in Donegal and implemented in Dublin.

It is difficult to reconcile these actions with the sense of tradition and pride in a duty of care elaborated by the Board members who gave evidence before me. The blunt dismissal by reason of Redundancy does not sit well with the proposed ethos and I have to accept the Complainant’s argument that he had no foreknowledge of his impending Redundancy and given no opportunity to have other options looked at. It is also worth noting that the complainant was not offered any Appeal against this decision.

However, I must also consider the fact that the Complainant himself expressed no interest in being kept on in any other capacity and I must consider the possibility that the employment relationship was just coming to a natural end. In this regard I note that the Complainant had been on very good terms with the previous Manager who had parted company with the Respondent in difficult circumstances.

In mitigation I note that the Complainant has found alternative employment in another area altogether as there are limited opportunities available in the field of Visual Merchandising.

In the circumstances outlined I find that the Complainant has been Unfairly Dismissed.

CA-00028392-001

 - I find that the Complainant has been Unfairly Dismissed and I award him compensatory remunerative losses of €8,940.00. I note that the Complainant has already been paid a portion of this sum (€4,432.84) by way of a cheque provided for a proposed Redundancy situation. The Complainant is to be paid a further €4,500.00.