Complainant

Respondent

Anonymised Parties

A Worker

Hospital

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-00019417-001

25/05/2018

Introduction:

1.1. The case before you is taken by SIPTU on behalf of our member Ms.SG

1.2. Ms G was dismissed from her job on 10 April 2018 based on the employer’s assertion that there was no work for her.

1.3. She believes that the decision to terminate her employment, on the pretext of Redundancy, was unjustified and was based on her pursuance of her rights and entitlements over the previous two years.

1.4. Consequently this constitutes unfair dismissal.

1.5. She is seeking to have this addressed through the Workplace Relations Commission and believes that while she should not have lost her job - a return would not be feasible in the circumstances.

1.6. She has now found other work so she is seeking redress in the form of compensation.

1.7. The claimant had been employed with the respondent - Previously under different ownership - since 23 April 2007. P8-10

1.8. The claimant was classified as a Health Care Assistant and initially carried out the duties of this role but this changed in 2010 (following return from sick leave) when she moved to the Out-Patients Department, carrying out general stocking of consultation rooms and associated duties. P11-12

1.9. At the time of her dismissal she worked 4 hours per week and was paid €214.25g per month. (€15.87ph Approx) P13

Background

2. History of the Complaint: 2.1. Between 2016 and 2017, the claimant had reason to raise internal grievances relating to her conditions of employment and these progressed to Adjudication Hearings under the Workplace Relations Commission, and on both occasions the claimant’s complaints were upheld. P14-21

2.2. The initial case (Industrial Relations Act) related to hours of work. Ms Gallagher had a historical working arrangement which resulted in a reduction in hours of work (from 39 to 3-5 per week) following a return from a period of sick leave in 2010.

2.3. However over time the number of hours required of her increased to approximately 12-15 per week and the claimant sought to have these become her normal contracted hours.

2.4. The recommendation that issued (08 May 2017) accepted that the claimant had increased her hours sufficiently over a period of time to warrant a change from 3-5 per

week and that she should be guaranteed an average minimum of 8 working hours per week calculated over a 4-8 week cycle.(p17)

2.5. The employer did not appeal but failed to comply with this recommendation and instead applied a further cut in hours bringing this down to 3 per week, from at least 6.7 [ref ADJ-00006125] P17

2.6. The second case (Industrial Relations Act) arose when Ms Gallagher was prohibited from utilising the final stage in the Company Grievance procedure (referral to external Independent third party) when she had lodged a complaint against her Supervisor.

2.7. The recommendation in this case, also favourable, provided that the parties engage with a view to having the complaint examined by an agreed external third party.

2.8. The employer appealed this decision to the Labour Court and subsequently withdrew this Appeal in May 2018 following the claimant’s dismissal on 10 April 2018.

2.9. Following on from the first case taken by the claimant she began to experience a reduction in what had now become her usual hours of work.

2.10. She had been working between 12 and 15 hours per week on an ongoing basis and while this was disputed by the employer, their own evidence to that WRC hearing clearly showed that the claimant’s ’s hours of work were increasing up to the date she raised issues around her contracted hours in 2016. (p17)

2.11. While following up with the employer on the implementation of this Recommendation, [16.11.2017] management stated that they intended to carry out a review of the claimant’s duties.

2.12. SIPTU emailed on this proposed review on the 30.11.2017. We raised questions around the justification for this given that the clalimant had, only two weeks earlier, received a new job description and referenced the recent cut imposed.

2.13. However it was agreed that the claimant would co-operate with this review but that there remained concerns around the cut in hours already imposed. P22

2.14. Following this a letter issued- from Ms H H Group Human Resources Manager- dated 16 January 2018 - in which she is invited to a consultation meeting with Ms HH and S McM on the 24 January 2018

2.15. A copy of what was termed the “report from the review” was to be made available to the claimant at this meeting.

2.16. This letter talked about “changes in business needs” “restructure” “impact on current role”. The claimant saw this as the start of a process which would one way or another would likely conclude in her dismissal. P24

2.17. The meeting took place on 31 January 2018 and a report from the review was provided at this time, this suggested that there were only 1.5 x 2 (3hrs) work for the claimant per week. P25-30

2.18. This document mentioned a time in motion study that was carried out on 7 December 2017 but the claimant was not told in advance of her agreeing to this review that this was a time in motion study.

2.19. The review in which the claimant participated consisted of two members of management (Ms McM and Ms M) accompanying her for a period as she carried out her normal evening duties on 7 December 2017.

2.20. She had no in-depth discussion on the work or the duties-although the report that issued would lead one to believe otherwise - and much of the so called review took place in the claimant’s absence.

2.21. The claimant was unaware of any system of measurement being used by her managers or what process had been employed to measure the times that were ascribed to each of the duties undertaken.

2.22. This was not a time in motion study in the normal sense as there were no ground rules or guidelines made known to our member in advance of this process.

2.23. Pictures were taken of a particular Consulting Room after it was vacated by the Consultant and we can only assume that this was done to counter our members stated view that this room is often a mess when she gets to it.

2.24. This would suggest that the purpose of this review was not as the claimant understood a means to address her claim for additional hours in line with the WRC Recommendation but instead it was a means to bring about her dismissal under the pretext of Redundancy.

2.25. Correspondence issued dated 6 February 2018. The 31 .01.2018 meeting was now deemed to have been an INITIAL Consultation meeting (p34) - as per the management minutes which were attached.

2.26. Management now talked about the claimant’s “proposed redundancy” and a further “consultation” meeting was scheduled for 22 February 2018. P31-34

2.27. SIPTU responded on 8 February 2018 outlining our member’s rejection of the suggestion that her role was redundant and raising concerns over what was deemed a “Time in Motion” study and proposing the 7 March 2018 instead of 22 February 2018 for next meeting. P35-36

2.28. 12th February 2018, the claimant wrote a response to the “review” in an attempt to show that her job was viable. However this received no obvious consideration. P37-43

2.29. The next (consultation) meeting took place on 7 March 2018.

2.30. On 7 March 2018 SIPTU followed up with another email addressing issues around the minutes from 31 January 2018 meeting.P45

2.31. Ms H responded on 16 March 2018 confirming that there were no other redundancies or potential redundancies at the hospital. She also argued that her NON presence at a meeting did not prevent her signing off on the minute’s/ letter. P46

2.32. Later on that same day Ms H sent out a further letter with management minutes from the 7 March 2018 meeting. P47-53

2.33. This letter advised of a further meeting which was to take place on 28 March 2018.This was to inform the claimant of the outcome of the Consultation Process.

2.34. This next meeting could not take place until the 10 April 2018, as M’s father the claimant’s father was in hospital. However in her email of 23 March 2018 Ms H advised that in the

event that the 10 April 2018 was not suitable she would send out written notification of the outcome of the consultation.P56-57

2.35. The meeting went ahead on 10 April 2018 at which time the claimant was dismissed and a letter to this effect was issued to her at the meeting. Calculations of the amount due were included and this was to include payment (in lieu) of 6 weeks’ notice. (P59)

2.36. An appeal was lodged on that same date 10.04.2018 and grounds (p61) were detailed in the email sent to Ms HH. P 58-63

2.37. Minutes of 10 April 2018, dismissal, meeting issued on 20 April 2018. P65-68

2.38. The appeal was heard on the 19 April 2018 by Ms J McL but was rejected. P69-71

2.39. The matter was referred to the Workplace Relations Commission on 25 May 2018.(p72)

2.40. The claimant’s Redundancy -based on 4 hours per week (instead of the 8 as per WRC) together with Holiday Pay and Minimum Notice were also issued on that date, with a deduction, from the overall sum, of €706 which related to an amount overpaid to the claimant some time previous and which, up to this point, she was paying back each month by instalment.(ref: Loan p13)

2.41. The claimant was a good worker with substantial service in the various roles assigned to her over her time employed at this Hospital.

2.42. Through health concerns she had to reduce her hours of work in 2010 and was at that time accommodated with this reduction.

2.43. However over time her workload dictated that she worked in excess of the 3-5 previously agreed.

2.44. She sought to have this additional work time regularised and it is this that brought her into a process which led to two WRC Hearings and ultimate dismissal from her job.

2.45. The employer claimed that work in the OPD reduced to such an extent that the claimant was no longer required.

2.46. Yet a WRC Decision just a few months earlier (May 2017) found that the claimant had acquired entitlement to at least 8 hours work per week.

2.47. The employers own submission to this WRC Hearing was evidence of the gradual increase over period from 2010 to the point where she made the attempt to have her hours recognised for contract purposes.

2.48. If it is as management claim that the OPD is not as busy as in the past then there would surely have been a knock on effect for other staff. However there were no other staff (cleaning/admin etc.) made redundant.

2.49. No explanation was ever received for the fact that the claimant was the only employee effected by this so called “restructure” based on the number of consultants using the rooms at the Hospital.

2.50. Clearly there were still a high number of Consultants using these facilities and the OPD is still functioning and as a consequence generating work for hospital staff.

2.51. The cost savings from our members’ dismissal is minimal given the small number of hours and it is inconceivable that in a restructuring process in an organisation such as this, that the only employee impacted is one working 8 hours per week.

2.52. The employer failed to honour the WRC recommendation which directed that our member’s hours increase back to 8 per week.

2.53. The claimant continued to seek to have this implemented and in hindsight we see that the process embarked upon in December 2017 was not intended to establish if work could be found to comply with this recommendation.

2.54. Instead this was an exercise undertaken as a means to prove that no work existed for the claimant .

2.55. This process lacked any semblance of transparency and was governed by no accepted rules or standards.

2.56. Management had complete control over the process and they alone determined what work was available and how long each duty required for completion.

2.57. The results from this assessment conflicts with the evidence provided to the WRC Hearing in March 2017.

2.58. The claimant feels that she was singled out and that this was related to her pursuance of her rights and entitlements.

2.59. As a consequence the entire process was tainted and this followed through to the meetings which took place later where members of management not present at the meeting, signed off on meeting minutes.

2.60. There is no evidence of management attempts to find an alternative role for the claimant .

2.61. In their email of 23 March 2018 the claimant was threatened with a decision on her future being issued in her absence if she failed to attend the meeting on the 10 April 2018.

2.62. The claimant was told at this meeting that her employment was terminated with immediate effect and a request to have the claimant retained subject to the outcome of the appeal process was rejected. Consequently she had to leave the premises.

2.63. The Appeal Hearing failed to address the fundamental issues raised in the challenge to the decision to dismiss the claimant .

2.64. Furthermore no response to the offer of further engagement on this matter in advance of a WRC Hearing, was received.

2.65. In the circumstances it’s clear that the claimant was unfairly dismissed.

Conclusion

Redress: Compensation

Mitigation: From 10 April 2018 to 7 August 2018 the claimant made applications for work but was initially unsuccessful. This is a 16 week period and resulted in a loss of approximately €857 based on € 214.25 per month x 4.

[Ms Gallagher is in receipt of Disability Allowance relating back to her injury but she is permitted to work while in receipt of this payment.] P76-78

She has since found work and she commenced in this new job on 7 August 2018. She is paid €9.55 per hour as opposed to €15.87 per hour at the respondent’s Hospital.

Loss: She is at a loss of €6.33 per hour. She is currently working between 15 and 18 hours per week. While she is earning more per month in her new job this is only because she is working more hours. In the initial complaint to the WRC’s   the claimant’s case was based on her claim that she was working between 12-15 hours on a regular basis in 2016. She believes that this would increase and it was only when she sought to formalise this that her hours dramatically reduced.

Therefore we believe the loss of earnings should be based on 15 hours and in that case Ms Gallagher is at a loss of €6.33 per x 15 =€94.95 per week.

From 7 August 2018 to date (8wks) that amounts to a loss of €759.60.

€759.60 + €857.00 =€1616.60

•                     • Minimum Notice and any Statutory Entitlements should be in addition to this.

+Ms Gallagher is also at a loss of the benefit of a Sick Pay Scheme that was in place in at the hospital (12wks full and 12wks half Pay) as there is no such scheme in her current job, consequently should she become ill she will receive no salary.

Chair this case is not about monetary gain but our members view that she was treated unfairly and that this was based on her attempts to exercise her rights and entitlements.

However she should in our view receive maximum compensation based on the employers blatant disregard for all normal and fair procedures.

End.

1.0          INTRODUCTION

Adjudicator, the case before you this afternoon concerns a complaint under the Unfair Dismissals Acts 1977. A copy of the Claimant’s Complaint Form is attached at (Appendix 1) hereof and the Claimant is a member of SIPTU. The Claimant, Ms SG, alleges that her former employer X Private Hospital, the Respondent, unfairly dismissed her on the 10th April 2018. The Respondent submits that the Claimant’s dismissal was not unfair within the meaning of section 6(4)(c) of the Unfair Dismissals Acts 1977 – 2007 as it resulted wholly or mainly from redundancy.

2.0          BACKGROUND TO THE RESPONDENT

The respondent Hospital is a 19-bed, private hospital which offers a wide range of surgical and diagnostic services. The hospital provides excellence in healthcare provision as one of the leading private independent medical providers in the region . Until recently known as X the hospital was acquired in 2015 which was an extremely positive development for the hospital providing an opportunity to expand the services that the hospital provides.

3.0          BACKGROUND TO THE CLAIMANT

3.1       The Claimant commenced employment with the Respondent in April 2007 working as a Health Care Assistant mainly in the Endoscopy Washing Area. She worked 39 hours per week. In June 2009 the Claimant went on an extended period of sick leave and subsequently returned to duty in August 2010. Following a number of Occupational Health Reports, the Claimant was deemed not to be medically fit to return to the role which she previously held.

3.2       At that time the Occupation Health Report recommended that the Claimant could only work between 3 and 5 hours per week. On that basis the Respondent facilitated the Claimant by giving her work in the outpatient department. Following a meeting on 19th November 2010 between the Claimant and the Respondent it was agreed that she would work between 3 and 5 hours per week, Monday to Friday, based on service needs.

3.3       Over the years since 2010 the Claimant’s weekly hours have fluctuated on a weekly basis due to the fact that she was rostered for work when work became available.

4.0          BACKGROUND TO THE CLAIMANT

4.1          The Claimant’s employment ended on 10th April 2018 following an internal review of the efficiencies of the OPD within the hospital and a change in the business needs within that Department. The Respondent’s review of the OPD found that the Claimant’s role could be more efficiently carried out by Clinical staff as part of their existing role with no additional hours required.

4.2          By letter dated 16th January 2018 (Appendix 2) the Claimant was invited to a consultation meeting to discuss changes in business needs within the OPD of the hospital. The Claimant was advised in the said letter that proposals currently under consideration may impact on her role within the company. She was also advised of her right to be represented at the said consultation meeting.

4.3          On the 19th January 2018 the Claimant responded to the letter by e-mail (Appendix 3) informing the Respondent that she and her Union representative would be unable to attend the said meeting. Following further correspondence between the Claimant and the Respondent (Appendix 4) a meeting date was agreed for 31st January 2018.

4.4          On 31st January 2018 the said meeting went ahead and was attended by the Claimant and her Union official and Ms.SMc M, and Ms. GM - Notes from the said meeting are attached at (Appendix 5).

4.5          The Claimant was informed at the meeting that a restructuring of how work in the OPD was required and the reasons for such were also outlined. Amongst other things Ms. McM explained to the Claimant that 7-8 consultants that had previously used the rooms in the OPD no longer did so and as a result the structure of the OPD was changing.

4.6          The Claimant was advised that her role may become redundant as a result but that no decisions had been made as any proposals being suggested were still at review stage. The Claimant was advised to put forward any proposals that she may have in respect of alternative work that she may be available to do. The Claimant was provided with a copy of the Report (Appendix 6) into the review of the OPD for her examination and it was agreed that a time and date for a further meeting would follow when the Claimant had an opportunity to put forward any proposals she may have had in respect of the Report and/or any proposals she had to make in respect of the proposed restructuring.

4.7          By letter dated 6th February 2018 (Appendix 7) the Claimant was provided with a summary of the meeting held on 31st January and advised on the next steps in respect of the process under review. The letter provided as follows;

“This letter serves to record the main points of that meeting, which were to outline;

Ÿ  the reasons why a restructure of the OPD is necessary;

Ÿ  why your employment may come to an end;

Ÿ  whether you believe that your employment could be continued and, if so, how – you referred to a list of roles you previously submitted;

Ÿ  that the company may consider any alternative roles available, as an alternative to redundancy;

Ÿ  the consequences for you if your employment cannot be continued.”

The Claimant was again advised in the said letter that no decisions about her future employment would be made until such time as she had a chance to express her views on the situation and also the Respondent had a chance to consider all the available information and possible options or alternatives to any proposed redundancy.

The Claimant was also asked in the said letter to put forward in writing any proposals that she wished to be considered by Thursday 15th February 2018 ahead of a proposed meeting to be held on 22nd February 2018 of which she was again advised of her right to representation.

4.8          On 8th February 2018 the Respondent received an e-mail (Appendix 8) from the Claimant’s Union official advising among other things that the date proposed for the next meeting was not suitable.

4.9          By email dated 12th February 2018 (Appendix 9) the Respondent received a detailed response from the Claimant in respect to the proposal presented to her at the earlier consultation meeting with regard to the proposed restructuring of the OPD.

4.10       By letter dated 13th February 2018 (Appendix 10) the Claimant was invited to a further consultation meeting to he held on 7th March 2018. Again, the Claimant was advised of her right to be represented at the said meeting.

4.11       The said meeting went ahead as scheduled on 7th March 2018. The meeting was attended by the Claimant and her Union official Ms. Weir and Ms. SMCM, and Ms. HH.. Notes from the said meeting are attached at (Appendix 11).

4.12       A further letter dated 16th March 2018 along with the said meeting notes were forwarded to the Claimant by e-mail also on 16th March 2018. Copies of both correspondence are also attached at (Appendix 11).

The said letter provided that Ms McM and Ms HH had considered all of the information available, as follows;

Ÿ  1st Consultation minutes, copy provided to you on 6th February 2018,

Ÿ  2nd Consultation minutes, copy enclosed,

Ÿ  Review of HCA role within the Outpatient Department Report provided to you on 31 January 2018,

Ÿ  Your emailed response to the report of the review of HCA role in the OPD, submitted on Monday 12th February (inclusive of your suggested alternative duties),

Ÿ  Consideration of alternative vacant roles within the Hospital .

By said letter the Claimant was invited to a further meeting on 28th March 2018 to relay the outcome of the process.

4.13       Subsequent to that, the Claimant’s Union official requested a change in the date for the proposed meeting, therefore a further date was arranged for 10th April 2018 and was communicated by the Respondent by letter dated 27th March 2018 (Appendix 12).

4.14       The said meeting went ahead as scheduled on 10th April 2018 and minutes from the said meeting are attached at (Appendix 13). Again, this meeting was attended by the Claimant and her Union official Ms. Weir and Ms. SMcM, and Ms. HH. At this meeting the Claimant was advised that her role was being made redundant and given the reasons why. The Claimant was presented with a letter, also dated 10th April 2018 (Appendix 14), giving her the necessary written notice in accordance with the Redundancy Payments Acts. The meeting was adjourned to allow the Claimant and her Union official time to go through the contents of the letter.

4.15       The letter provided that the redundancy was as a result of:

Ÿ  a reduction in the number of consultants who use our consulting rooms;

Ÿ  the ongoing cessation of NTPF (National Treatment Purchase Fund) patients requiring Outpatient assessments;

Ÿ  a restructure to utilise nursing staff within the Outpatient Department.

The letter also provided for the Claimant’s right to appeal the decision in relation to her redundancy.

4.16       By e-mail also of 10th April 2018 the claimant’s official informed the Respondent that the Claimant was exercising her right to appeal the decision and outlined in the said correspondence the reasons for such appeal. A copy of the said correspondence is attached herein at (Appendix 15).

4.17       By letter dated 17th April 2018 (Appendix 16) the Responded invited the Claimant to an appeal hearing to be held on 24th April 2018 and again informed her of her right to representation. Mrs. JMcL was appointed to hear the appeal.

4.18       The appeal hearing went ahead as scheduled on 24th April 2018 and a copy of the minutes from the said meeting are attached at (Appendix 17).

4.19       On 30th April 2018 Mrs. McL issued her appeal outcome by letter (Appendix 18). The said letter sets out the reasons for her decision which was ultimately to uphold the decision to make the Claimant’s role redundant.

5.0          COMPANY ARGUMANTS

5.1          It is the Respondent’s position that the dismissal of the claimant was wholly and mainly as a result of her role being redundant. Her dismissal was not unfair within the meaning of Section 6(4) of the Unfair Dismissals Acts, 1977 to 2007 which states:

“[…] 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 one or more of the following:

[…]

( c ) the redundancy of the employee […]”

5.2          The Claimant’s position became redundant within the meaning of Section 7(2) of the Redundancy Payments Acts, 1967 – 2003 on the grounds that the Respondent had decided to carry on the business in the OPD of the hospital with fewer employees because the work for which the Claimant was employed had diminished greatly and the remaining tasks could be done more efficiently by existing staff.

5.3          In accordance with Section 1 of the Unfair Dismissals Acts 1977 to 2007, “redundancy” is defined as per Section 7(2) of the Redundancy Payments Acts 1967 to 2007, as follows:

“[…] an 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 concerned, the dismissal is attributable wholly or mainly to—[…]

( b ) 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 […]

(c) 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 […]”

5.4          Considering that definition, a genuine redundancy situation clearly existed with respect to the Claimant’s position. This is due to a number of factors, including:

Ÿ  the reduction in the number of consultants who were using the rooms in the Outpatient Department;

Ÿ  the cessation of the National Treatment Purchase Fund patients requiring Outpatient assessments;

Ÿ  a restructure for efficiency reasons and efficient utilisation of resources to utilise existing nursing staff to carry out the duties involved as part of their existing role within the Outpatient Department with no additional hours required.

Given that the work had clearly in some cases “ceased or diminished”, it is apparent that the role which the Claimant held was redundant and a genuine redundancy situation existed. In addition, the company decided to “carry on the business with fewer employees”.

5.5          Aside from the above, the method used by the Respondent to identify the issues which led to the question of redundancy were fair and transparent. The company reviewed the roles within the Outpatient Department and sought to identify where roles could be amalgamated and how best to restructure the Department to operate in a more efficient manner.

5.6          The Respondent acted reasonably and fairly at all times. The Respondent wishes to highlight Section 7 of the Unfair Dismissals Acts, 1977 to 2007 which states:

“[…] in determining if a dismissal is an unfair dismissal, regard may be had, if the rights commissioner, the Tribunal or the Circuit 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”

In this instance it is the Respondent’s position that it acted reasonably at all times.

5.7          In this instance it is the Respondent’s position that it acted reasonable at all times. The Respondent had been considering the efficiency of the OPD and had taken all factors into account in assessing the difficulties experienced in the department as well as the efficiency of how the work was being done. The Respondent compiled a report on such matters and discussed the contents of the report and the proposal being put forward with the Claimant in two separate consultation meetings. The Claimant was also afforded the opportunity to put her views forward including the opportunity to express her views in respect of the proposal which she did.

5.8          All alternatives to the redundancy of the Claimant were considered by the Respondent in detail, including proposals put forward by the Claimant in the course of the consultation process, however at that time no suitable or viable alternative employment existed for the Claimant within the company.

5.9          Throughout the redundancy process and in the course of all meetings held the Claimant was represented by her trade union official. This process was fair and reasonable and cannot be seen to have resulted in any element of unfairness in respect of the redundancy.

5.10       Due process and procedure regarding consultation with representatives regarding redundancies was adhered to at all times. The Claimant was afforded all rights and fair opportunities of consultation and the provision of information pertaining to the redundancy situation.

5.11       For a claim of unfair dismissal on grounds of redundancy under the Acts to succeed the Claimant must show that the employer has conflicted with Section 6(3) of the Acts. It is the Respondent’s position, in the context of the foregoing, that no breach of Section 6(3) of the Unfair Dismissal’s Act 1977 occurred in this instance.

5.12       As such the Respondent acted reasonable regarding the redundancy of the Claimant and the Respondent requests that in light of Section 7 of the Unfair Dismissal’s Act, 1977, that the Adjudicator take the reasonableness of the employer into account in reaching a decision.

CONCLUSION

In light of the above arguments, the Respondent respectfully requests that the Adjudication Officer finds that the Claimant was not unfairly dismissed but was otherwise terminated by reason of redundancy, and that this claim under the Unfair Dismissal’s Act 1977 be rejected

I have reviewed the evidence presented at the hearing and noted the polarised positions of the parties with the respondent contending that there were compelling and fair grounds for effecting the claimant’s redundancy and the union contending that the redundancy was triggered by the claimant’s previous   pursuance of grievances against her employer to the WRC in 2017/2018.I have considered all of the evidence and the trail of correspondence exchanged between the parties on the matter.I note that the respondent employs in excess of 60 staff and initially declined to advise the union of how many staff were being made redundant but subsequently confirmed that the claimant was the only member of staff to be made redundant.I further note that the series of minutes submitted by the respondent give credence to the union’s contention that the decision to make the claimant redundant was predetermined arising from the respondent’s review of the OPD which commenced on the 7th.Dec. 2017 and which provided that “ Due to the minimum amount of time required in this task , these hours can be carried out by Clinical Staff as part of their role with no additional hours required”. This review was undertaken by 2 representative of the respondent and the claimant was unaware that she was the subject of some type of adhoc time and motion study during the review process – she was not consulted on the modus operandi and had no imput into the terms of reference for this exercise. I note that no reference was made by the respondent to the imperative for conducting this review in response to the declining numbers of consultants   hiring private rooms in the course of the hearing of ADJ-00006125 and that the respondent did not appeal this recommendation .

In circumstances where one employee is being selected for redundancy from a workforce in excess of 60 staff , there is an onus on the respondent to engage meaningfully with the staff member , to apply a fair and transparent matrix for selection for redundancy and to consider all alternatives to redundancy. I am not satisfied that in this case the respondent presented compelling evidence to demonstrate meaningful engagement with the claimant , to demonstrate that all viable alternatives to redundancy were explored and it is not disputed that no transparent matrix was adopted for selection for redundancy. In these circumstances , I have concluded on the balance of probabilities that the claimant was unfairly selected for redundancy and that her dismissal was unfair.I am satisfied that my reasoning is consistent with the findings of the EAT in Jeffers v DDC Ireland Ltd. UD 169/2000.I require the respondent pay the claimant €2,000 compensation plus her statutory entitlement to notice based on actual hours worked.