Complainant

Respondent

Anonymised Parties

A Hotel Manager

A Hotel and Spa Resort

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-00019734-001

12/06/2018

The issues in contention concern the alleged Unfair Dismissal of a Hotel Manager by a Hotel and Spa.

The Complainant submitted a Written submission which was supported by extensive Oral evidence.

The Complainant began with the hotel complex in May 2003. She was promoted to the position of Holiday Homes Manager shortly afterwards. Matters proceeded without incident until 15th January 2018 when she was informed that she was being made redundant. Various meetings between the parties followed culminating in a final letter of Redundancy on the 30th January 2018.

The entire process during January 2018 was perfunctory and unilateral, the redundancy decision had been taken before the 15th and no realistic efforts were made to consider other roles in the organisation or to take the Complainants’ views into account in any realistic manner. At the time (January 2018) the Complainant was the only employee made redundant. Her age (post 60 y of a) and having a permanent contract were major factors mitigating against her.

Post the Complainants Redundancy other employees have been recruited and the job role of the Complainant has been filled by by these personnel. There was little or no consultation with the Complainant and the Redundancy was clearly a strategy to conceal an Unfair Dismissal.

The Complainant gave a detailed listing of all her duties and responsibilities which was wide ranging. She was always most flexible and co-operative in all duties given to her both in the Holiday Homes Department and the Hotel complex generally.

The Respondent is a large Midlands based Hotel and Spa Centre. The Complainant commenced employment in 2003 as Holiday Homes Manager. It was a single stand alone position responsible for leading a Team of three staff charged with the upkeep of Holiday Homes on the site, At the time of the redundancy some sixteen homes were supported down from a high of some 60 in the past. In January 2018 the Respondent decide that the best operational efficiency to be achieved was to transfer the Holiday Homes operation to the general Accommodation Department of the main Hotel. As a result, the position of Holiday Homes Manager was at risk of Redundancy. This was communicated to the Complainant at a meeting on the 15th January and followed up with a letter of the same date. The Complainant was advised to apply for other positions that might be available within the Complex. A meeting took place with the Complainant on the 18th January attended by the General manger (Ms.Xa) and the HR manger (Ms.Xb). Although advised of her Representational rights the Complainant attended alone. Details were provided of current vacancies and a draft given of her Redundancy Entitlements. Further meetings took place on the 23rd and the 25th January where alternatives were considered. The Complainant did not really engage with this stage of the process and the Respondent issued a letter on the 30th January confirming the Redundancy.

An offer of a formal Appeal against the decision was included in the letter. This was never taken up by the Complainant.

The Respondent maintained that at all times fair procedures had been followed and age was never a factor. The Hotel complex faced may financial challenges and the decision to merge the Holiday Homes with the main Hotel was a necessary financial measure to reduce costs and increase necessary efficiency.

The Holiday Homes Department was much reduced in size from its previous high of some sixty homes and it was clear to all that it was no longer financially viable as a separate division.

As the Holiday Homes Manager job was a stand-alone position there was no formal selection criteria or possible comparison with any other staff member. Consultation was allowed, and Representational rights also offered.

In final summary the decision regarding redundancy was a regrettable business decision brought about by the challenges faced by the overall financial survival needs of the business. There was nothing personal regarding the Complainant or her age. Her claim for unfair Dismissal should be set aside.

3:1       The relevant Law

Key pieces of law in this case are primarily the Unfair Dismissal Act,1977, followed by SI 146 of 2000 -Statutory Code of Practice on Grievance and Disciplinary procedures, the Rules of Natural Justice & Legal Precedents and for guidance the Redundancy Payments Act,1967.

Referencing the Unfair Dismissals Act,1977 first

3:2           Unfair Dismissals Acts 1977 -2007

The lawful reasons for dismissal are set out in Section 6(4) of the Act of 1977.

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed not to be an unfair dismissal, if it results wholly or mainly from one of more of the following:

(a) Capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

(b) The conduct of the employee

(c) Redundancy

………. “

Section 6(7) of the Act permits

It follows that in order for an employer to justify a redundancy, it must show that there was:

1         A genuine Redundancy

2          There was a fair selection.

3         Employer acted reasonably in all the circumstances.

3:3       Fairness and Procedures / Individual Redundancies/ Rights to Consultations

All Legal Precedents and earlier EAT decisions highlight the particular difficulties in cases where, as in this case, only one individual was being made redundant. Most of these Individual cases have involved quite high-ranking officers of Respondent companies and the need to have transparent fairness is critical.

Considering precedents in a number of cases discussed in Meenan, Employment Law ,2nd Edition 2014 the employee had successfully maintained that statutory redundancy as a reason for dismissal was a “sham” or a “cloak”.

One particular case, Edwards v Aerials and Electronics (Ireland) Ltd,UD236/1985 highlights this issue.

Meenan points out that this decision demonstrates that if an employee is made redundant, it must be based on genuine grounds for redundancy and not as a “cloak” for some other reason. In other words, if a company wishes to have a reorganisation, it must show the requirements for same and not use it as a vehicle for dismissal for any other reason, such as incompetence.

In this context the case of St Ledger v Frontline Distribution Ltd, ELR 160/[1995] is often quoted. Here the EAT stated that redundancy is

“impersonal and it involves change … Impersonality runs through the five definitions in the Act … change also runs through the five definitions”.

In other words, a re-organisation must be genuine and directed to the job role not the incumbent staff member.

Further considering questions of fairness in an Unfair Dismissals contextthe learned Author Dr.Desmond Ryan in Redmond on Dismissal Law, 3rd Edition Bloomsbury 2017 states at page 395 that

“The WRC should adopt a balanced assessment of the overall interactions between the parties surrounding the Redundancy process. Thus, even where an employer can be criticised for some elements of its interactions with the individual whose role is ultimately made redundant, the redundancy when looked at in its totality may not necessarily amount to an unfair dismissal.”

Regarding the rights to full consultation the Legal precedents are equally strong here. An employee had the right to be fully informed and fully consulted as regards the rationale for the Redundancy and the right to have a full consideration of possible alternatives. The leading case here would be Pansi v JVC Europe Ltd [2012] ELR 70

However, notwithstanding the legal precedents each case stands on its own merits and individual facts and I will consider these now.

3:4       Consideration of the main evidence presented both Orally and in written format.

The first main point was that the evidence clearly pointed to their being a major retrenchment in the Holiday Home business of the Respondent. The number of Holiday Homes being supported had dropped from a high of approximately 60 to the level of 16 at the time of the alleged Redundancy. In plain financial terms there were sufficient grounds to support a Redundancy decision for the post of full time Holiday Homes Manager.

However, this fact did not absolve the Respondent from giving the Complainant due process including full consultation and consideration of all possible alternatives /redeployments.

The manner in which the Respondent undertook this process was somewhat approximate I felt.

The initial letter to the Complainant of the 15th January 2018 contained the phrases

“your current position of Holiday Homes Manger is being made redundant. You will be entitled to apply for any other suitable in-house vacancy should one arise.”.

At the oral Hearing the Respondent maintained that the use of “is being” was an unfortunate clerical oversight. Unfortunately, the Complainant as much as took this letter to mean that the decision was in effect a fait accompli and consultations would be meaningless. The approach of the Complainant was naturally quite defensive in the various meetings that followed.

The alternative positions that the Respondent offered or suggested - a part time Banqueting or later a Breakfast service Role or Reservationist with Social Media Skills were going to be difficult for the Complainant. The Banqueting /Breakfast positions were a theoretical possibility, but Receptionist with Social Media Skills was a complete non-runner for a person with the Complainant’s previous work experience. The Complainant maintained during the oral hearing that there were other roles she could have been offered or at least explored for her but these were never considered. Various duties taken on by staff who had been recruited close to or before the time of her redundancy were discussed but the Complainant felt she had been excluded from these largely on the basis of her age and permanent status.

The role of Overall Hotel Complex Accommodation Manager which had been filled in late 2017 was a possibility that should have been explored with her she felt. The Respondent pointed to the fact that the overall number of bedrooms in the entire complex was approximately 145. The Complainant’s experience in the Holiday Homes Department would not have made her a suitable candidate and accordingly she was never considered.

The Complainant, who gave oral evidence, was clearly a committed worker who was always prepared to be flexible. The Respondent was at the time of the Redundancy and afterwards continuously hiring part time staff for jobs in the Breakfasts, Banqueting area etc. These were part time positions while the Complainant had a full time Managerial role. It was not clear that the Complainant was prepared to accept a part time role as replacement to her full-time position. Equally it was not clear if the Respondent could accommodate the Complainant in a full-time role but spread across a wide variety of lesser jobs. I felt that more discussion could have taken place here to consider both sides of this argument.

The Complainant displayed a degree of inflexibility in regard to the meetings in January and crucially did not avail of the Appeal offered to her in the final letter of the 29th January 2018. She as at this stage being legally advised as stated in her email to the Respondent of the 30th January 2018.

The question of what level of Representation was being allowed by the Respondent was considered. In this context of the loss of employment the refusal to allow some external non-staff representation to the Complainant was regrettable.

3:5       Final Conclusions

Having considered all the evidence both oral and written I came to the view that there was a genuine Redundancy situation on business grounds regarding a full-time permanent Manager role in the Holiday Homes Department.

The manner this redundancy for the Complainant was handled by the Respondent was somewhat lacking in the areas of full consultation of all other possible roles in the Complex. The Complainant was a long-standing employee with a wide range of possible work skills in areas such as the Kids Club etc.

However, and crucially, she did not avail of the opportunity to Appeal her Redundancy despite having Legal Advice at that time. This was not helpful to her claim.

The handling of the Complainant as the post holder by the Respondent was procedurally lacking but not to such a fatal degree as to render the Redundancy completely invalid.

To quote from Ryan again in Redmond on Dismissal Law, 3rd Edition Bloomsbury 2017

Thus, even where an employer can be criticised for some elements of its interactions with the individual whose role is ultimately made redundant, the redundancy when looked at in its totality may not necessarily amount to an unfair dismissal.”

Accordingly, I have to find that in its overall context I find the claim for Unfair Dismissal here has to be weighed between an overall business context and identified procedural difficulties on both sides.

The conclusion, having considered all the evidence and placing it in context, is that the Claim is well founded, and Unfair Dismissal is allowed on procedural grounds, but the redress must be of a lesser amount.

3:6       Redress awarded.

Under the provision of Section 7 of the Unfair Dismissal act,1977 I may make an award that is “just and equitable”. Regard has also to be taken of efforts by the Complainant to mitigate her loss. The evidence presented post the hearing and at the hearing did not suggest very active efforts to secure alternative work.

Accordingly, I award the sum of €20,000 Gross Pay (approximately 38/39 weeks’ pay) to the Complainant -however as the Complainant has already received some €16,000 in Redundancy pay the final amount payable as a result of this case is €4,000 Gross if the Redundancy payment is allowed to remain with the Complainant.

The proper Taxation of this award is to be considered in consultation with the Revenue Commissioners

Act

Complaint/Dispute Reference No.

Summary Decision /Please refer to Section Three above for detailed reasoning

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00019734-001

On purely procedural grounds the claim for Unfair Dismissal is upheld.

As Redress a sum of €4,000 (being €20,000 less €16,000 already paid as Redundancy) is awarded to the Complainant.