ADJ-00016780

Complainant

Respondent

Anonymised Parties

Engineer

Consulting Engineering Company

Representatives

Self represented

Tommy Cummins, HR Consultant

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-00021832-001

12/09/2018

The complainant contends that she was unfairly dismissed. The respondent contends that she was dismissed by reason of redundancy.

The complainant was employed by the respondent from September 2016 to 30th April 2018 in the role of Civil/Structural Engineer. She contends that the reason she was given for the termination of her employment as a redundancy situation proved to be false. The respondent advertised for an “Engineer” shortly after her employment was terminated.   She had received a positive performance review and pay rise of 5% in September 2017 and was told by the respondent that he hoped she would be with the firm for many years. Following overhearing what she considered to be inappropriate remarks between the respondent and another staff member about the outcome of the “Belfast Rape Trial”, the complainant made a complaint to the respondent in or around 3rd April 2018. The complainant contends that following her complaint, there was a tense atmosphere in the office. On 6th April 2018, she received an email from the respondent stating that “ a scenario may arise where the company may not have many structural projects in the medium term”, and that he “would review this in the next few months”. Three weeks later on 27th April 2018 the respondent informed her verbally and in writing that she was to be let go. The notified departure date was to be 25th May 2018. The complainant was disappointed and unhappy with this decision, particularly as the respondent had in recent months spoken of expanding the company. The complainant tried to point out to the respondent that she was both qualified and experienced to work in many areas, but he stated that “his mind was made up”.   There was no opportunity given to her to discuss alternatives, such as the possibility of reduced hours. On 30th April 2018 the respondent informed the complainant that her work was to cease that evening. Prior to this, he had informed a local architect that she was “moving on”, and the complainant reminded him that she was being “moved on” by him. She was not allowed to work her notice and was told to leave the employment immediately.   In summary, the complainant believes that had she not made a complaint on 27th March 2018 about comments which she found offensive that she would be in employment in the company to this day. She believes that the respondent was dissatisfied regarding her complaint about his inappropriate behaviour and that his dissatisfaction led to her unfair dismissal. She does not believe that this was a case of genuine redundancy as evidenced by the profitable consultancy work carried out by her in the period before her departure.

The complainant was employed as a Senior Structural Engineer on 17th August 2016.     It was always the intention of the respondent to grow the structural engineering side of the business and this was demonstrated by the recruitment of the complainant. However, the intention of the business to take advantage of whatever growth opportunities existed in structural projects never materialised. There is an important distinction to be made between Structural Projects and Civil/Project Management Projects. The complainant was engaged in the former. Over an eighteen month period a clear picture began to emerge that the Structural Projects were not performing well financially and this concern was expressed to the complainant. The respondent’s cash flow worsened in October 2017 and urgent financing had to be arranged. There were meetings between the respondent and the complainant in October and November to discuss the loss making projects and a review of the business was carried out by the respondent where he realised the full gravity of the situation. Further meetings were held in December, January, February and March in an attempt to stem the cash flow haemorrhage. On the week of 4th April 2018 the respondent reviewed the financial situation and found actual and projected losses in the structural side of the business to be at €94,294. Coming to the conclusion that the Structural Projects were unsustainable, and the clear and obvious impact this was having on the entire business, the respondent was left with no alternative but to exit Structural Projects and make the position of Senior Structural Engineer redundant. There was no alternative employment available for a Senior Engineer in a small practice. The complainant was paid compensation and pay in lieu of notice.

There are a number of critical elements in this case that are not in dispute. These include the fact that the part of the business in question was (1) a serious and persistent loss maker (2) the business in question was formally exited with no additional requirement to that role or indeed any other and (3) the provisions of the Redundancy Acts do not apply in the case of the complainant notwithstanding that a redundancy situation clearly existed. The case here is one of alleged unfair dismissal in the context of unfair selection for redundancy. In that case, the burden of proof lies with the complainant to establish that there was no such redundancy situation or their selection for same was either unwarranted or unfair. The respondent submits that his business was at real risk of collapse if the accepted cash haemorrhage that was the structural engineering element of the business was not addressed. The respondent was patient, fair and reasonable throughout.

The respondent contends that the complainant was dismissed wholly by reason of redundancy.   Section 7 (2) of the Redundancy Payments Act 1967 provides that

“an employee who is dismissed shall be taken to have been 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 –

(a)    The fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease to carry on that business in the place where the employee was so employed, or

(b)    The fact that the requirements of that business for employees to carry out work of a particular kind in the place he was so employed have ceased or diminished or are expected to cease or diminish, or

(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 or

(d)    The fact that his employer has decided that the work for which the employee had been employed, (or had been doing before his dismissal) should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)    The fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

I find that in this instant case, the respondent was concerned with the financial situation in relation to structural projects. However, I am not convinced that this part of the business was being ceased. I note the advertisement, published it seems, after the complainant’s employment was terminated, states that the respondent is a “Civil and Structural Engineering Practice” and it was seeking to recruit “As part of an ongoing expansion”. I note that on 6th April 2018, the complainant received an email from the respondent stating that he “would review (the situation) in the next few months”. I note the ensuing correspondence between the respondent and the complainant had a tense tone, where the complainant took issue with the manner and content of the 6th April email. I note and accept the complainant’s evidence that she had complained to the respondent about what she regarded as wholly inappropriate remarks and attitude shown in the workplace following the outcome of the “Belfast Rape Trial” and that there was tensions then between the parties.    It has long been established that the key characteristics of redundancy must be “impersonality” and “change” (St Ledger v Frontline Distributors Ireland Ltd [1995] E.L.R. 160. That is why the term “one or more reasons not related to the employee concerned”is employed.        

In this instant case, I find that the complainant was dismissed from her employment in circumstances where there was not a genuine redundancy and I find therefore that she was unfairly dismissed.