ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00013620

Parties:

Complaint(s):

Date of Adjudication Hearing: 05/10/2018

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant was employed as a Business Coordinator from 18th July 2016 until 18th January 2018, on an annual salary of €35,700. The Complainant maintained she was unfairly selected for redundancy when she was not the last in first out, and as such her dismissal was unfair. She maintained the basis of her dismissal was due to her unwillingness to accept unreasonable behaviour from her manager, and not due to the financial circumstances of the company. She was seeking redress under Section 8 of the Unfair Dismissal Acts 1977 (the Act) on the basis the Respondent is in breach of S6(4) of the Act.

The Respondent denied the Complainant was unfairly dismissed and submitted the basis of her termination of employment was due to a genuine redundancy.

Neither party was represented at the hearing.

Summary of Respondent’s Case:

The Respondent acknowledged that the Complainant’s job was terminated on 18th January 2018 and submitted that this was due to the role being made redundant in light of the economic circumstances of the business.

The Respondent outlined that it had designed a software monitoring system for the area of business it operated in and that the Complainant had been employed along with other staff to help grow this area of the business. The Complainant’s role related to the commercial administration of the product. However, following significant investment in the product, the Respondent was finding it difficult to meet its sales expectancy. This was in part due to Brexit and also due to project overrun in developing the product. The Respondent maintained it had a dependency on sales to the UK.

As a consequence of these challenges the company was losing money and had accrued losses of over €550k. The respondent therefore was forced to review all aspects of its business including staffing. The Respondent submitted a statement from its auditors outlining the financial difficulty the company was in, and where its auditors had recommended a review of staffing levels.

The Respondent contended that it had kept all staff appraised of the situation during 2016 and 2017. One employee resigned by the end of 2017, and the Complainants position as made redundant in January 2018. The Respondent submitted that it regretted that it had to make this decision.

The Respondent advised that the Complainant did not have the minimum two years’ service to qualify for statutory redundancy. It therefore paid her two month’s wages which was in excess of her entitlement for payment in lieu of notice.

The Respondent submitted that the trading situation still remained difficult.

Summary of Complainant’s Case:

The Complainant submitted that when she was initially appointed everything was fine, however overtime there was a change within the employment relationship and work was sometimes unpleasant. She maintained this unpleasantness emanated from the behaviour of her Manager. The Complainant submitted that in all her years in employment she had never encountered a manager like the manager she reported to when working for the Respondent.

The Complainant described the manager as being rude, leery, impatient, and difficult to work for. The Complainant maintained she was not the only employee who felt this way.

The Complainant was appointed as a Business Co-ordinator where her duties referred to Job description, but she never received the job description. She advised the jobs she was asked to do, such as build morale in Technical Support were different to what was mentioned at her job interview which included being involved in expansion to the U.S.

When dealing with her Manager the Complainant advised that at all times she strove to behave in a professional manner despite the fact that the manager could be difficult to work for. She described that he would make verbal comments to her; tell her in front of everyone in the office that she was privileged to have a job in the company; that she was told she needed to go out and get herself a man; and that he shouted at her and to others. The Complainant also advised that she had concerns with the Manager’s social interactions, where for example in January 2017 he insisted on showing her a sexually explicit photo on his phone which she found offensive and inappropriate within an employment relationship.

The Complainant advised that from January 2017 the employment relationship deteriorated where the Manager seemed to be in very bad form, and where he did not respond to an email regarding her work. The Complainant submitted that the Manger was gone from the office for about two months. The Complainant also submitted that in 9th May 2017 when she was on a business trip with colleagues, her Manager started texting her late at night asking her about an earlier incident with another colleague, and asking her what room number she was in. The Complainant explained she had a bad feeling about her Manager wanting her room number.

The Complainant maintained when she returned to the office after this trip she then experienced being isolated in work and she was not given work to do. She submitted that on 23th August 2017 the Manager shouted at her and to another colleague in his office for not doing their work. The Complainant refused to let the comments go and tried to reason with her Manager and he tried to shout at her. Her colleague was asked to leave the room and the Manager then “ranted” at her for a while; told her that she had an attitude; told her she was not doing her job correctly; and told her that the technical support team were making a fool out of her.

The Complainant submitted that in September 2017 the Managing Director called all staff in to the office to inform them that her Manager had handed in his notice and was leaving the company. However, she explained the Manager continued to work in the Company.

The Complainant submitted that she was advised by the Manager by email on 15th November 2017 that she had to take all outstanding annual leave before end December 2017, despite the fact that company policy allowed staff to carry over five days. At this point the Complainant sought to meet with the Managing Director where she raised a grievance about how her Manager was treating her, and that she felt that she was being bullied by her Manager. She maintained that she was told by the Managing Director that he would talk to her Manager.

The Complainant advised that when she returned from her annual leave in January 2018 all the work folders that had been on her desk were gone, and she found out that her Manager had taken them. The Complainant submitted that on 18th January 2018 all the office staff were having performance reviews and at her meeting, which happened at 16:15hrs that day, she was told her job was being made redundant as the company had financial problems. She advised that she was not provided with proof of any financial difficulties and felt this was not the case as there was a lot of foreign business travel happening at the time. She was told to leave the premises by the close of business that day (30 minutes later), to pack up whatever was hers, and get out. Her work email was stopped within one hour. The Complainant advised that she had not been given any prior warning of the redundancy other than she was to have a performance review meeting. She maintained that had she known about the seriousness of the meeting she would have brought someone along with her. She also maintained that she was seen by her work colleagues packing up her belongings and being marched out of the building. As she was in tears at the time she felt they would be thinking she had done wrong. The Complainant advised that as she had done nothing wrong she did not deserve to be treated so unjustly.

The Complainant also submitted that four extra people were hired after she was taken on, and since she has been made redundant there has been three jobs advertised. The Complainant contended that the fundamentals of her case were that she was unfairly selected for redundancy. She maintained that she was not the last in, nor was there any valid reason to terminate her employment by redundancy. She believed that had she not objected to her managers advances in May 2017 that she would still be employed.

The Complaint was seeking compensation for the unfair dismissal. The Complainant submitted that she had applied for other work and found alternative work five months later. She therefore had experienced a loss of income of €14,875, and she now also has to travel a longer distance to work with addition transportation costs of €260 per month.

Respondent’s Response:

In response to the Complainant’s assertion that she was unfairly dismissed due to standing up to her Manager, the Respondent maintained that there was a genuine redundancy and it was never made aware of the issues relating to the Manager that the Complainant had raised in her complaint to the WRC. The Respondent advised that other redundancies had also taken place. The Respondent also maintained further staff would have to be let go due to difficulty in getting customers to buy the product.

The Respondent acknowledged the Complainant raised concerns on 29th November 2017 and the Managing Director met with the Complainant on 1st December 2018. The Respondent contended that it was never advised of the illicit photographs on the Complainant’s Manager’s phone, or about the extent of the behaviour that was now being raised. The Respondent maintained the discussion in December 2017 related to concerns the Complainant had regarding not getting any work to do. The Respondent advised the Complainant to look for another job at that stage and understood she had attended two interviews. The Respondent also contended that from 1st December 2017 to 18th January 2018 it was reviewing all the roles in the company, and after Christmas there was not imminent increase in sales which meant the coordinating role held by the Complainant was not sustainable. The Respondent also maintained that during the year it had advised staff of the difficulties, that it was not in a position to pay bonuses, and instead gave vouchers to staff. Overall the Respondent maintained that the Complainant had not raised the personal difficulties, and the decision to make her role redundant was based on the economic situation of the Company. In making the Respondent’s role redundant it paid her two months wages in lieu of notice.

Findings and Conclusions:

In accordance with Section 6(1) the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

S6(4)(c)of the Act states 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 the redundancy of the employee.

In accordance with Section 7(2)(c) of the Redundancy Payments Act 1967 (as amended) a dismissal by reason of redundancy can occur where 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.

Based on the evidence provided I am satisfied the Respondent was experiencing financial difficulties and where the sales of its product had not materialised to the level it expected. This impacted on the role of the Complainant where the business co-ordinator duties had ceased or diminished. Under these circumstances I find the job was redundant.

In regard to the complaint that the Complainant experienced difficulties from her manager, there was no evidence provided to corroborate that the Complainant had raised specific concerns about her manager’s behaviour regarding the sharing of a sexually explicit photo in January 2017, or that he behaved negatively towards her from May 2017 because she had objected to advances he made towards her. Whilst it may well be these incidents happened, the Complainant never raised them as a concern at the time, nor is there corroborating evidence that she reported them to the Managing Director in December 2017 as alleged. I am satisfied she would have complained in December 2017 about not getting work, and it is plausible that was the reality as there were poor sales of the product. The lack of work is consistent with the Respondent’s position that the Complainant’s role was made redundant due the lack of sales activity.

I find the Respondent’s evidence credible in that it has provided a report from its auditor which clearly outlines the financial difficulties being experienced by the Respondent. This auditor’s letter is dated 10th January 2018, before the Complainant was advised of her redundancy. This letter is consistent with the Respondent assertions that it was reviewing roles from 1st December 2017 to 18th January 2018. I therefore conclude there was a genuine redundancy and I do not uphold the Complainant was unfairly dismissed.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find this complaint of unfair dismissal not to be well-founded and accordingly, dismiss same.

Dated:   26th March 2019

Workplace Relations Commission Adjudication Officer: Gerry Rooney

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