Complainant

Respondent

Anonymised Parties

IT Tutor

Community Training Organisation

Representatives

Neil j Breheny & Co.

Mr Brian Kearney BL

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-00025347-001

28/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under Schedule 2 of the Protected Disclosures Act, 2014

CA-00025347-002

28/01/2019

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00025347-003

28/01/2019

The Complainant was employed as an IT Tutor with a Community Training Organisation. She worked 19.5 hours per week for a net wage of €186.00. She claims she was summarily dismissed for no reason and furthermore that the act of dismissal was a penalisation for raising an employment equality complaint. She also claimed that the original grievance she raised, regarding rostering, was a protected disclosure and that she was not afforded the lawful protections for doing so.

The respondent conceded that no proper procedures were utilised in the termination of the Complainant’s employment but that it was a genuine redundancy situation. The Respondent completely rejects the claims that there was any victimisation in breach of the Employment Equality Acts 1998 – 2011, or that the grievance raised by the Complainant attracts the protections of the Protected Disclosures Act, 2014.

Unfair Dismissal

The Respondent conceded at the outset that no proper procedures were utilised in the termination of the Complainant’s employment. The Respondent also submitted that there was a genuine redundancy situation due to reduced footfall and funding. A redundancy sum of €1666.08 was paid to the Complainant.

The Respondent rejects the contention of the Complainant that she was dismissed because of a complaint she had made on a rostering change. The Respondent submits that an email containing a complaint about a manager and another work colleague, indicated a belligerent attitude to her line manager and work colleague, and therefore trust and confidence had broken down.

Witness Ms D, the Complainant’s line manager, gave details of the precarious financial position of the centre where footfall was substantially down. She gave further detail on the rostering complaint that the Complainant had made whereby the Complainant had alleged that a male colleague got preferential treatment on a specific day. Ms. D stated that she had put the change in the diary in advance and that the male colleague was facilitated in a different duty on the day, not because he was male, but because he did not possess the requisite skills for handling children, which the Complainant had. Ms D said she was very upset at being accused of having lied, as alluded to in the Complainant’s email. She stated she was not the person who terminated the Complainant’s contract as she was out sick at the time.

In cross examination Ms D. admitted that she had sent an email previously to management where she had threatened to resign if issues with two unnamed staff members were not sorted. She accepted that one of them was the Complainant. She accepted also that there was a detailed investigation of her complaints by a barrister at that time and that the Complainant was exonerated in that process.  

Mr W, Chairman of the Board of Management, gave an outline of the precarious nature of the organisation and said there was an existential threat to the organisation because of the unacceptable state of employment relations. He said the centre depended on goodwill and cooperation between staff and this seemed to be lacking. Mr W. in cross examination admitted that he had no knowledge of how fair redundancy procedures are given effect. He also confirmed that an employee was taken on after the Complainant’s termination of employment but said that different duties were allocated to that person.

Redress

On the issue of Redress, should it be found in the alternative that there is a finding of unfair dismissal, the Respondent argues against the award of reinstatement on the basis that there had been a breakdown of trust and confidence with the Complainant.

On the issue of mitigation of loss, the Respondent said evidence suggests that the Complainant had not been diligent in seeking alternative employment since her dismissal in September 2018. Documents opened to the hearing suggest that it was only in the immediate months before the hearing that the Complainant had applied herself to seeking alternative employment. Furthermore, the Respondent submitted that the Adjudicator should be mindful of the fact that the Respondent had received €1666.08 in Redundancy payment.

Victimisation

The Respondent argues that for victimisation under the Employment Equality Acts, 1998-2011 to exist, there must initially be an equality related complaint or grievance lodged by the Complainant which attracts a victimisation claim under the Acts. The rostering complaint raised by the Complainant did not mention equality. Furthermore, the reason a male colleague was taken off a contested roster was because he did not possess the child handling skills that the Complainant possessed, and not for any reason relating to the fact that he was a male.

Protected Disclosure

The Respondent submits that the submission of an employment grievance regarding rostering can never be classed as a protected disclosure under the Protected Disclosures Act, 2014 and is therefore misconceived.

Unfair Dismissal

The Complainant started her employment with the Respondent on 1st October 2014 as an Information Technology Tutor. Her job was to teach computer skills in the community particularly to people over 55 years of age and those with disabilities.

In July 2018 she had made a complaint to management about the behaviour of certain

persons in the organisation. She maintains that it is this complaint which triggered her instant dismissal on 6th September. She submits that in her letter of dismissal there is a heading of ‘Redundancy’ but there is no other mention of redundancy in the letter. Instead she is admonished in the letter for making the complaint. No investigation of the complaint had been carried out. The reason for redundancy was not stated, nor was any reference made to the proper procedures for selecting and implementing a redundancy.

The Complainant submits that there was not even the semblance of an enquiry nor was time given to the Complainant to defend her position. The Complainant asserts that she was effectively frog marched from the building under a cloud of suspicion. The Complainant asserts that the letter of dismissal speaks for itself and no further submissions need be made in relation to it.

On a legal point, the Complainant submits that there has been the most fundamental breach of the legislation. It falls squarely under

section 6(1) 9f the Unfair Dismissals Act which states: -

“the dismissal of an employee shall be deemed, for the purposes of the Act, to

be an unfair dismissal unless, having regard to all the circumstances, there

were substantial grounds justifying the dismissal”

The Complainant asserts that the Respondent completely disregarded its own employee handbook on discipline and termination of contract. The Complainant had no disciplinary or performance issues marked against her and the redundancy was just a veil for getting rid of her. The Complainant argues strongly for an award of reinstatement. The Complainant submits that there could not be a charge of a breach of trust and confidence levelled against her as she was completely blameless.

In direct evidence the Complainant gave a detailed account of the complaint she had made about her line manager and a colleague whom she claimed was unduly favoured in a rostering arrangement on a given day. She stated that she had sent an email seeking an update on the investigation but the only correspondence she received in reply was a letter titled ‘Redundancy’ which contained criticisms of her action of complaining about her colleagues. It finished by saying that her employment had been terminated.

On the day of her dismissal she gave evidence of arriving for work as normal. She was told by management that she should go home immediately as there was a registered letter awaiting her at her home address. She had to go to the local post office to collect this letter. She was shocked upon reading the contents and returned to her place of work to discuss the dismissal but was told to leave the premises upon her return, or risk having the Gardai called.

She gave evidence of having applied for work but stated that her reputation had been affected in the community sector because of the termination of her contract. She found that all applications for work, thus far, had been unsuccessful.

In cross examination she was asked as to whether she had trust and confidence in the management. In reply, she said that any breakdown in trust and confidence felt by her was a natural reaction to the manner of her dismissal, after the fact. She did not deny that her complaint against her manager and other work colleague could be classed as belligerent in language and tone.

Ms C, a recent work colleague of the Complainant, but who was no longer in the employ of the Respondent, gave evidence of how well respected the Complainant was amongst the clients and fellow workers of the Respondent and how her commitment to the job was second to none.

Victimisation:

The Complainant withdrew the complaint of victimisation under the Employment Equality Acts 1998 - 2011 at the hearing and requested that the Adjudicator would proceed to investigate the Unfair Dismissal complaint only

Protected Disclosure

The Complainant withdrew the complaint under the Protected Disclosures Act, 2014 at the hearing and requested that the Adjudicator would investigate the Unfair Dismissal complaint only.

Because of the withdrawal of the Equality and Protected Disclosure complaints in this action, the only decision left open to me to adjudicate on is the complaint of Unfair Dismissal. There is a statutory onus on the Respondent to show that the dismissal of the Complainant was fair. In this case it means the Respondent must firstly show that there was a genuine redundancy situation and then, if this burden is discharged, to show that the procedures it used in making the Complainant redundant were fair, reasonable and transparent. The Complainant’s position is that no genuine redundancy existed and that she was dismissed summarily for no reason, and without the opportunity to invoke procedures.

Section 6(1) of the Unfair Dismissals Act 1977, as amended provides that: -

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section6(4)(c) of the Unfair Dismissals Act provides that: -

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…

…(c)the redundancy of the employee…

The entitlement of a defined procedure is provided at s.6(3) of the Unfair Dismissals Act 1977: -

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

( b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

Furthermore, I need to be mindful of the requirement for an employer to act reasonably when carrying out a dismissal. Guidance is given at section 6(7):

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, the adjudication officer or the Labour Court, as the case may be, 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…

The evidence of the Respondent was inconsistent and not credible on the matter of whether a genuine redundancy situation had existed. The initial evidence of Ms D suggested that the finances were in a precarious position. She provided no evidence of a decision having been made to terminate the employment of the Complainant on this basis. Mr W spoke of an existential crisis but qualified this by saying that the crisis was that of unsatisfactory employment relationships. He also stated in his original evidence that the Complainant had been replaced but subsequently retracted that to say that another staff member had been recruited but had been assigned different duties. He also admitted that he had no knowledge or experience of the obligations of an employer when it comes to making staff redundant, though he had a central role to play in the matter as chairman of the board of management.

The most important and pivotal piece of evidence in determining whether this had been a fair dismissal or not is contained in the letter of termination of employment which the Complainant received on September 6th, 2018. Redundancy is mentioned once in the ‘subject’ space of the letter and appears nowhere else. The letter initially starts out as a response to a complaint made by the Complainant, it continues to state the complaint was not upheld, purports to admonish the Complainant for her behaviour and continues to state “ The atmosphere as a result in the organisation has become toxic and unworkable and it is the view of the Board of Directors that changes are required and a restructuring must occur. I regret to inform you that a decision has been made to terminate your employment with notice.”

There is a vague mention of restructuring without any connection being made to the Complainant, and how her role was restructured. Neither is there any reference made to any type of selection process for redundancy. Fundamentally, none of the evidence provided by the Respondent’s witnesses suggested restructuring of any sort. Instead, the letter suggests summary dismissal with an obvious complete disregard for the Respondent’s own investigative and disciplinary procedures in the Respondent’s employee handbook.

I find that this was a ‘sham redundancy’ situation in that none of the evidence I heard shows an indication of a genuine redundancy situation having existed. The termination letter was a clear attempt to legitimise the unfair dismissal of an employee by veiling it in a letter that no reasonable employer would have written. Any rational reading of the letter would leave no one in any doubt that the reason for dismissal is directly linked to the grievance that was raised by the Complainant.

The Complainant came across as a truthful and diligent employee and I preferred her evidence over that of the Respondent. She described how after receiving the letter and returning to her workplace she was unceremoniously escorted off the premises after being threatened that if she did not leave the premises, the Gardai would be called. This was a humiliating experience for the Complainant and undoubtedly damaged her prospects of future employment locally in that sector.

Having considered all the evidence and circumstances above, I have no option but to find that the statutory onus that lies on the Respondent to show that the position was redundant, and therefore a fair dismissal, has not been discharged. Even if there had been a genuine redundancy situation, which there was not, I find that the admitted disregard for proper procedures in carrying out a purported redundancy termination points to unmitigated unreasonableness by the employer.

Consequently, as redundancy was the only grounds presented for dismissal, I find that the Respondent has failed to satisfactorily establish substantial grounds justifying the Complainant’s dismissal. Therefore, I conclude that the Complainant has been unfairly dismissed.

I will now consider the question of redress.

Redress

The preferred redress of the Complainant is reinstatement. Strong evidence was given by a recent employee of the Respondent of the diligence of the work of the Complainant and how she worked well with fellow employees and clients. The Complainant gave cogent evidence of how difficult it was for her to find work in the specialised area in which she works because of the reputational damage attributed to the circumstances surrounding the termination of her employment.

The Respondent argues against awarding the redress of re-instatement on the basis that trust and confidence had broken down and in the alternative that compensation would be awarded, albeit at a very low level because of what the Respondent asserts was not a very diligent effort on the part of the Complainant to find further work.

The Unfair Dismissals Act, 1977 as amended describes reinstatement as follows at section 7(a):

7.— (1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following, the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal…”

The Respondent argues that there is a breakdown in trust and confidence with the Complainant at the centre where she worked. The Complainant’s and Ms C’s evidence suggests otherwise and again I prefer the Complainant’s evidence and corroboration on this point. A breakdown in trust and confidence suggests that there was some sort of contribution by the Complainant to the situation. The Respondent argues that the reason for dismissal was genuine redundancy. This assertion alone negates the argument that there was a breakdown of trust and confidence surrounding the termination of employment.

All the circumstances as outlined above point to a ‘no-fault’ dismissal. Furthermore, the Complainant’s discipline and performance were never called in to question. Her only ‘sin’, so to speak, was to raise a grievance, which every reasonable employer allows, as does the Respondent’s own employee’s handbook.

Having considered all the circumstances and evidence in this case I believe that the appropriate remedy in this case is reinstatement.

Reinstatement means that Complainant should return to her original position with the Respondent and be treated in all respects as if he she had not been dismissed. This should include the payment of all pay and benefits retrospectively to September 10th, 2018 and the retention of her service entitlement. However, the redundancy payment of €1666.08 which the Complainant received should be deducted from the retrospective payments due.

CA-00025347-001: Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977:

I find that the complaint of Unfair Dismissal is well founded, and I have decided that reinstatement is the appropriate remedy.

Reinstatement means that Complainant should return to her original position with the Respondent and be treated in all respects as if he she had not been dismissed. This should include the payment of all pay and benefits retrospectively to September 10th, 2018 and the retention of her service entitlement. However, the redundancy payment of €1666.08 which the Complainant received should be deducted from the retrospective payments due.

CA-00025347 -002: Complaint seeking adjudication by the Workplace Relations Commission under schedule 2 of the Protected Disclosures Act, 2014: This complaint was withdrawn by the Complainant at the hearing.

CA-00025347-003: Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998: This complaint was withdrawn by the Complainant at the hearing.

Unfair dismissal, Sham Redundancy.