Complainant

Respondent

Anonymised Parties

A Worker

Accountancy Practise

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-00022253-001

29/09/2018

The Respondent submits that the Claimant’s herein contract of employment was fairly

terminated with notice. These submissions on behalf of the Respondent/ Employer are to be

taken together with oral evidence and oral submissions given on behalf of the Respondent at

the hearing of the claim.

Background to the Claim:

1. The Respondent is a small accountancy practice comprising one accountant, a tax

technician, trainee accountant and other bookkeeping and office administration staff.

(current total staff level is 7, this varies dependent on the type of requirements we

require depending on our clients we provide outsourcing for bookkeeping and payroll

related tasks)

2. The Claimant commenced employment with the Respondent/Employer in and around

25th November 2016. The Claimant was employed as an tntern pursuant to JobBridge

the National lnternship Scheme administered by FAS on behalf of the Department of

Social Protection. A signed copy of the JobBridge Standard Agreement is exhibited

hereto .

3. The finish date for the internship was the 24th May 2Ot7

4. On the understanding that the Respondent's application to the JobPlus Unit of the

Department of Social Protection for the Claimant's inclusion in the incentive scheme

would be successful, in or around the 23rd May 2Ol7 the Claimant executed a 2 year

fixed term contract dated the 23rd May 2O17 being the period of the incentive scheme,

The parties entered into the Contract of Employment on the understanding that it was

for a fixed term for the period of the incentive scheme. The Contract of Employment

specifically excludes the Unfair Dismissals Acts and allows for early termination. A

signed copy of the Contract of Employment is exhibited hereto.

5. ln and around the 6th of June, 2017 the Respondent received an email from the JobPlus

Unit of the Department of Social Protection confirming their participation in the

JobPlus Incentive Scheme in respect of the Claimant for a period of 24 months (2

years). A copy of the email from JobsPlus Unit is exhibited hereto .

6. ln and around the 14th June 2018 the Respondent met the Claimant and explained

that because of an adverse change in business conditions they could not retain her as

they were continuing with a fewer number of employees. They explained they were

terminating her employment and paying her 4 weeks' notice in lieu in accordance with

her contract. The Claimant subsequently received the letter of reference that she

requested. A copy of the minutes of the meeting is exhibited hereto .

7. A letter addressed to the Claimant dated the 14th June 2018 was delivered to the

Claimant following the meeting of the L4th June 2018 confirming the Respondent's

position and a copy was signed by the Claimant. A copy of the letter is exhibited

hereto (EXHIBIT 5)

8. By letter dated the 19th June 2018, a Mr J.K described as "JK .B.E."

purporting to represent the Claimant wrote to the Respondent and described his

letter as a "foct finding" effort. Through her representative the Claimant accepted she

was employed on a 2 year fixed term contract. A copy of the letter is exhibited hereto

9. ln reply the Respondent's then Solicitors by letter dated the

2nd July 2018 wrote to JK.BE and confirmed that her role as Accounting

Technician/Bookeeper was no longer required due to a change in business conditions

and that the Claimant was not entitled to claim redundancy. A copy of the letter is

exhibited hereto .

10. By letter dated the 10th July 2018, Mr.J.K. described as "JK BE"

again wrote to the Respondent and alleging unfair dismissal and claiming this was not

a genuine redundancy situation. A copy of the letter is exhibited hereto (EXHIBIT 8)

11. For the avoidance of doubt, the Respondent denies any suggestion the Claimant was

unfairly dismissed and submits the Claimant's position was terminated with notice

because of an adverse change in business conditions.

The Law:

Section 6(1) of the Unfair Dismissals Act of 1977 states:

Subject to the provisions of this section, the dismissal of on 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.

Section 6(4) further states that:

Without prejudice to the generality of subsection (1) of this section, the dismissal of

on employee shall be deemed, for the purposes of this Act, not to be on unfair

dismissal, if it results wholly or mainly from one or more of the following:

(a) the 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) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he

held without contravention (by him or by his employer) of a duty or restriction imposed

by or under any statute or instrument mode under statute.

The Respondent relies on the provisions of Section 6(4)(c)of the Act in deeming the

termination of the contract is fair.

Section 7 (2)(c)of the Redundancy Payments Act 1967 (as amended by Section 4 of the

Redundancy Payments Act 1971) states

'an employee who is dismissed shall be taken to be dismissed by reason of redundancy if

the dismissal is attributable or wholly or mainly to:...

...(c) the fact thot 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 in accordance with her contract and to be done by

other employees ;.....'

The Respondent relies on the provisions of Section 7(2)(c) of the Act in deeming the

termination of the contract is fair.

Submissions:

1. lt is respectfully submitted that at all times, the Claimant was afforded fair procedures

and natural justice with regard to meetings.

2. lt is submitted that the Claimant admits to being employed on a 2 year fixed term

contract.

3. The Respondent contends that the Claimant was fairly dismissed in the circumstances

were her contract was terminated with the appropriate contractual notice.

4. The Respondent contends that the Claimant was fairly dismissed in the circumstances

were her contract was terminated because of an adverse change in business

circumstances that compelled the Respondent to carry on the business with fewer

employees.

The respondent submitted as follows in a replying submission to a written submission by the claimant :

The written questions numbered 1-8 delivered by the Claimant were previously raised

during the course of the oral hearing and addressed by the Respondent's representative

and witnesses namely Mr G.R. , Shareholder and Director and Ms.H S,

Director and Office Manager. The Respondent objects to the reiteration of questions as it

is an unfalr attempt to reopen matters that were comprehensively addressed at the oral

hearing and the Respondent relies on its written submissions and the oral evidence offered

at the hearing.

The Claimant delivered her P45 with a commencement date of the 13th September 2018

and a cessation date of the 1st October 2018 (details of the employer are not provided).

The Claimant delivered a second P45 which states she commenced employment on the 15th

October 2018 and ceased employment on the 23'd October 2018 (details of the employer

are not provided).

The Claimant delivered her P60 from Sisk Health Care dated the lst February 2019 where it

states her employment commenced on the 5th November 2018 and she has delivered some

pay slips in respect of her employment.

The Claimant's further written submission offers no new additional evidence other than

stating that she continues her studies and is now studying to be a ACCA - Chartered

Accountant, She states she was "...unable to find any job in S and local area”... " but

offers no evidence to support her alleged efforts. The Claimant restates her claim for

losses/expense for working away from home that were first produced at the oral hearing

and are denied.

She states that she volunteered at the K Education Centre, but offers no evidence to

support the alleged voluntary nature of her work.

We note with surprise the Claimant has failed to deliver her 2018 P21 balancing statement

that would provide full details of her entire earnings and taxable employment for the that

year. Delivery of her P21 was promised by the Claimant and directed by the Adjudicator at

the hearing. The Claimant has failed to produce sufficient evidence of mitigation of her

alleged losses.

The Respondent submits there were many opportunities to find alternative work in S….

July, August and September 2018 at the same rate of pay or in excess of what she received

when she was employed by the Respondent. In S…. there are many manufacturing

facilities who are constantly seeking employees at a rate of pay in excess of what was

offered by the Respondent. The Respondent makes this submission without prejudice to

its submission the Claimant is not entitled to recover any alleged loss/expense as claimed.

Pursuant to the Unfair Dismissals Act and without prejudice to the Respondent's position

the Claimant was fairly dismissed, the Respondent submits the Claimant is not entitled to

recover any remuneration. The Respondent submits there is no future loss or financial loss

as defined under section 7 of the Unfair Dismissals Act 1977. We remind the Claimant she

had a duty to mitigate her losses if any and the onus is on the Claimant to show her efforts

to mitigate her alleged loss, if any, which is denied.

The alleged expenses as claimed are denied as there is no basis in law for the recovery of

the expenses as claimed. For the avoidance of any doubt the Claimant ceased employment

on the 15th June 2018 and was paid for one further month until the 15th July 2018. We note

from the records provided the Claimant at the very latest commenced new employment on

the 13th September 2O18.

The Respondent submits the Claimant was fairly dismissed and is not entitled to any relief

pursuant to the Unfair Dismissals Act.

Witnesses for the respondent stated in their direct evidence , that the company had 7 people in employment which was reduced to 6 following the termination of the claimant’s employment.It was submitted that owing to the loss of a large client in 2018 they had to let the claimant go .It was advanced that another employee (Superviser) was let go in April 2018.It was submitted that an additional graduate from the I.T. was recruited and taken on to do administrative work in 2019 , on a 6 month contract.It was submitted that the book keeping side of the business was declining owing to automation of functions.It was advanced that there were 2 work experience staff in the employment at the time the claimant was left go – one of them was not paid for the first 8 weeks .One was let go in January 2019 having commenced on payroll in July 2018.The witnesses asserted that the work experience staff did not take on the claimant’s work and were assigned to general administrative duties.

It was submitted that in some accountancy practises it was not possible to get all the required range of experience .

In her direct evidence Ms.HS confirmed that she had no written record of the meeting of the 13th.June. 2108 – she advised the claimant that she could not facilitate audit experience but she would talk to Mr.GR about her request for additional experience and revert to her.

The respondent’s witnesses confirmed that they took the decision to dismiss the claimant in advance of the meeting with her on the 14th.June 2018.They confirmed that the Work Experience people were put on the books in July 2018 on the minimum wage.They asserted that they considered all alternatives to redundancy.

The claimant submitted that she initially worked for free on the JobBridge Scheme for the respondent for 6 months and was appointed as an Accounting Technician /Bookkeeper from the 23rd.May 2017 to the 15th.June 2018.While employed with the respondent she was continuing in education to obtain a Diploma as an Accounting Technician.The claimant submitted that the contract was for a fixed term for 2 years and without prior notice she was dismissed on the 15th.June 2018.She submitted that she was given no reasons for her dismissal .She asserted that she had a blemish free work record .The claimant submitted that the business was stable and consequently a redundancy situation did not arise.

The claimant confirmed that she was paid 4 weeks notice by the respondent company when her employment was terminated.The claimant’s representative Mr.B.E had sought particulars from the respondent on the 19th.Nov. 2019 including clarification on the functions that were terminated with the claimant’s redundancy , the ongoing functions performed following the claimant’s dismissal and clarity on whether any of the functions still being performed were being performed by employees less qualified than the claimant. Information was also sought on the alleged business downturn and on any replacement workers for the claimant. A profile of the numbers and grades of staff was also requested.The justification   for the redundancy decision was also sought and information on redundancy procedures was requested .

It was submitted that the claimant’s employment was terminated on the spot and that the respondent was unreasonable in failing to follow a reasonable process of consultation and selection for redundancy.It was submitted that there was no genuine redundancy and that alternatives to a purported redundancy were not considered.It was submitted that the exclusion clause in the fixed term contract did not apply as it referred to the non continuation of employment following the expiry of the contract .The provisions of UD206/2011 , Shanley v IT Alliance (2003) and Kathleen Concannon v Robney Ltd. T/A The Whistle Shop (1998) were invoked in support of the claimant’s contention that the dismissal was unfair.

In her direct evidence , the claimant gave evidence of the profile of the other workers in the respondent’s employment- including 2 work experience personnel..The claimant described how she had been awaiting a performance review as per her contract and met with her manager on Wed.13th.June 2018.She brought a form for completion by her manager and asked about getting assistance with particular duties and widening her work experience. The claimant asserted that the manager indicated that she would see – following discussions with Mr.GR .The claimant submitted that she found she was dismissed the following day – the 14th.June 2018.The claimant said that nobody had referred to financial problems .A staff meeting had taken place in Feb/March 2018 and the workers were assured their jobs were safe.The claimant asserted that the minutes of the dismissal meeting did not accurately reflect what happened at the meeting – they omitted the reference to her expectations being far too high and that the respondent could not provide the learning skills the claimant was seeking.The claimant asserted at the meeting that she wanted to stay employed .The claimant asserted that the work experience staff took on her duties when she left.

The claimant stated that she sustained considerable losses by having to take up employment in Dublin, away from her family at considerable expense in terms of travel and rent.The claimant in her post hearing submissions reiterated the queries raised by MR.EB in direct correspondence with the respondent’s representative and asserted that the questions remained unanswered.

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.I have considered all of the authorities relied upon and noted the contention of the employer that the terms of the claimant’s contract permitted the termination of her employment. Having reviewed the claimant’s contract of employment I am satisfied she has locus standi under the Act .

It is common case that the claimant had a performance review meeting on the 13.06.18 and that the decision to terminate the claimant’s employment was made in advance of the meeting between the claimant and the respondent on the 14th.June 2018.While the respondent’s assertions that the redundancy was imperative owing to the loss of large client – no evidence was submitted to support this assertion. I found the evidence of the respondent’s witnesses to the effect that alternatives to redundancy were considered to be unconvincing in circumstances where by their own admission the decision to dismiss the claimant was taken in advance of the meeting at which her employment was terminated.I note there is provision for lay off in the claimant’s contract of employment and no evidence was advanced to demonstrate that the lay-off of the claimant was considered or indeed that consideration was given to any alternative to redundancy such as reduced hours.There was no evidence presented of any redundancy procedure and it was clear at the hearing that the claimant was selected without regard to any procedure or any clear objective and transparent matrix for selection for redundancy.In such circumstances I am upholding the complaint and I find the claimant was unfairly selected for redundancy. I have considered all of the submissions from the parties in relation to loss and mitigation and I am taken account of the conduct of the parties in accordance with Section 7 in determining the quantum of the award. I require the respondent to pay the claimant €4,500 compensation.