Complainant

Respondent

Anonymised Parties

A Training Co-Ordinator

A Healthcare Trainer

Act

Complaint   Reference No.

Date of Receipt

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

CA-00018629-001

20/04/2018

The Complainant was employed by the Respondent on the 1st November 2016, as a Training Co-ordinator and her employment ended on the 30th November 2017. She worked 35 hours per week and was paid €420 gross and €379.99 net per week. She is claiming that she was dismissed because of her pregnancy.

The Complainant said that she commenced working for the Respondent on work experience in April 2016 and on 1st November 2016, she was offered the role of Training Co-ordinator which she accepted. In April 2017, her co-worker (Ms. A) went on maternity leave and another person (Mr. B) was employed to replace her. In September 2017, the Complainant advised her employer of her pregnancy. She suffered complications with her pregnancy in October 2017 and was out sick from work for 3 weeks. She returned to work from sick leave on the 1st November 2017 and she learned that the person employed for maternity cover was offered a permanent position. He accepted the post and shortly thereafter the Complainant said that she was called to a meeting and told that because there was a downturn in sales, the company could not afford to retain her.

Mr. B was retained in the employment and the Complainant said that when she questioned this decision she was told that this employee was carrying out different duties. She said that she understands that when Mr. B, who was covering for maternity leave for Ms A, indicated that he was going to take up an alternative role on better terms with another company, and this was the reason he was offered a permanent contract. The Complainant said that she did about 7 months work experience in reception, and shortly before she was let go the receptionist resigned, but she was not offered that role either. She said that she learned later that Ms. A who was on maternity leave was not offered that role. The Complainant said that she was longer working in the company and had more experience in reception work than Ms A who was appointed to the role when she returned from maternity leave in January 2018. The Complainant said that she was never made aware that her position was in danger of being made redundant.

It was submitted that the Respondent failed to seek out an alternative position for the Complainant. Her solicitor submitted that the role now occupied by Mr. B and the Complainant’s role were administrative in nature and were interchangeable. There was also a vacant position in reception and the Complainant was best placed to take up that position as she had worked there when she started with the company.

The company provides health care training and have offices in the northeast as well as Dublin. The Respondent submitted that the Complainant was on a back to work course with the company and she applied for the role of Training Co-ordinator and was successful and she took up the role on the 1st November 2016.   The training area was headed up by an Occupational and Healthcare Training Specialist (TM) and she had 2 staff. The training was separated into two areas (i) training which includes both public and private training in health care to individuals, (ii) occupational healthcare which provides occupational healthcare service for employees to private business.

In November 2016, in an effort to increase revenue from the public training side, it was determined that a new position of Training Co-ordinator would be created assist the training manager, and the Complainant was appointed to it. The role held by the Complainant was clerical in nature with responsibility for scheduling training courses, organising instructors and venues as well as ordering materials for courses and looking after bookings and payments.

In February 2017, the Training Manager met with the Complainant for a routine 1 to 1 in which the Complainant's performance and the department was discussed. In March 2017 the Training Manager had s quarterly review with the Complainant and at this meeting the Complainant was commended on her performance. It was discussed with her that the revenue was poor and the public training sales were still not covering cost.

On the 12th of July 2017, TM met with the Complainant to review revenue in the previous quarter and to discuss ways in which revenue could be boosted in training to improve the efficiency and the sustainability of that area as it was still loss making.

On the 7th of November 2017, TM met with the Complainant again to discuss the previous meeting and explained that there had been no improvement in the performance of the public training area since the first meeting in July and sales have not been covering costs, although they had been working on making improvements. She advised the Complainant that she would be meeting with the CEO in 2 weeks to review the future of the Training Co-ordinator role and she would revert to her with the outcome of that meeting. The Complainant, it was submitted, was on notice that her role was at risk and that she could, if she wished, propose any alternative measures in advance of the TM's meeting with the CEO. The Complainant was invited to a meeting with the Training Manager on the 23rd of November 2017, during which it was explained to her that regrettably due to the loss-making situation in the public training area was in for the last 5 months that her position was no longer viable as has been flagged to her a previous meeting.

The Training and Occupational Health Manager (TM) said that she was the Manager over the Training Sales & Business Development and Occupational Healthcare. The Complainant was assigned to a new role of Training Co-Ordinator in public training upon finishing her work experience. TR said that she was responsible for the private training and the Complainant was responsible for the public training.   Ms A was recruited in August 2016 to the role of Occupational Healthcare Co-Ordinator. This was a new role created in January 2016. TM said that this was a completely different to the role the Complainant occupied. The OH Co-ordinator role involved going out selling health care to clients and developing new business. Ms. A was a fitness instructor before she joined so her skills were appropriate as she was knowledgeable in health and fitness.

The Complainant’s role was an administrative role for training courses run by the Respondent and had no business development role. Therefore, the roles were not interchangeable.

Ms A went on maternity leave in April 2017, and a temporary replacement (Mr. B.) was recruited. Ms. A indicated in September 2017, that she was extending her maternity leave and that she did not wish to return to the Occupational Health Co-Ordinator role.   She requested a different role following her maternity leave. The O.H Coordinator position was advertised internally, and Mr. B was successful and appointed permanently in October 2017. The receptionist/office manager role became available in October 2017 and that role was offered to Ms. A in November as she was returning to work following her maternity leave in January and there was an obligation to keep a position for her.

TM said that she knew that the Complainant was pregnant at the time she was made redundant. The Complainant was out sick in October 2017, with pregnancy related illness and returned to work in early November. She said that she was not selected because of her pregnancy, but because there was a decline in revenues at the public training desk. She said that she had discussed the decline in revenue with the Complainant for several months and they also discussed ways to improve the situation. On 6th October 2017, at the monthly meeting the Complainant was made aware that there was a decline in revenue. Ms. B said that she did not make her aware that her job was in jeopardy. At a further meeting on the 7th of November 2017, it was again discussed. She told the Complainant that she was meeting the CEO in 2 weeks and the future of the public training desk would be discussed.

TR said that she spoke with the CEO on 23rd November 2017 and it was decided that the public training desk was no longer viable, and he took a decision to amalgamate the public training role with her role in private training and she agreed to take on both roles. This resulted in the public training role, the Complainants position, being redundant. TR said that at a meeting on the 23rd November 2017, she informed the Complainant of the redundancy. She told her that there were no other suitable positions for her within the company and gave her 1 week’s notice of dismissal.

TR said that the Complainant never applied for any of the vacant positions. She accepted that she never discussed any alternative roles with her or looked for any alternative roles for her.

The HR Manager said that the receptionist and office manager gave notice of leaving and left on the 22nd November 2017. The decided to amalgamate the two positions and it was advertised internally. Ms A, who was on maternity leave had a right to her job after her maternity leave but was not sure that she wished to return to her original position. Her job was then filled by the maternity leave replacement. When the job in reception became vacant Ms. A was informed about the internal advertisement and she applied and was successful. The HR Manager said that the Complainant was not suitable for any of the roles as she had not got the experience. She said that the Complainant had been a hairdresser and was out of work before she joined the Respondent company on work experience, whereas Ms A was a fitness instructor and had more relevant experience. She said that she looked around the company but there were no other suitable roles for her.

The CEO said that there are 50 employees in the company based over 4 different locations. The office the Complainant worked in had 20 employees. He is required to do a monthly report on finances to the parent company. He became aware at the quarterly business review that the public training desk was not performing.   He discussed the fact that the role was set up on a temporary basis and was relatively new, in order to be fair, he decided he would have to give it time before deciding on its future. The Training Manager looked at ways to make it more profitable which did not work. The losses were not sustainable. On the 23rd November he met with TR and he asked her to take on the Complainant’s role as well as her own and she agreed. He said that he wanted to protect the employment of the other employees so the role which was loss making would have to be extinguished. This was the first time in 18 years he had to make a position redundant.

He said that he knew the Complainant and knew she was pregnant, but that was not the reason her position was made redundant. Immediately after informing TR that the position was redundant he spoke to the HR Manager about amalgamating the P/A/ Office Manager Role. He said that there were a number of roles available in terms of the job description, experience and CVs. He said that he was told by HR that there was an obligation to provide work for Ms A on her return from maternity leave and they discussed the suitability of Ms A for this new amalgamated role. He said that the reception role which was also vacant at the time was not discussed with him.

He said that he would have considered the Complainant for any vacancies within the company as he had an interest in seeing her accommodated with a position within the company. He said that he did not ask the Complainant if she was interested in travelling to Dublin for a post as he was aware that she had family commitments. He had asked for a list of the vacancies within the company. He said that he did not instruct TR to tell the Complainant that they were looking for another job for her, but that he intended to discuss it with TR the following week.

He said that he did not instruct TR to dismiss the Complainant on the 23rd November and he asked for a summary of the meeting in early December and he learned at that time the Complainant had been made redundant.

Legal Submission

It is the Respondent’s position that the dismissal of the component was wholly and mainly as a result of her role being made redundant and her dismissal is not unfair within the meaning of section 6(4) of the Unfair Dismissals Acts 1977 to 2015 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,”

In accordance with Section 1 of the UD Acts, “redundancy” is defined as per section 7(2) of the Redundancy Payments Acts 1967 to 2015, as follows:

“(2) For the purposes of subsection (1), 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—

….

(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,…”

In light of the above definition, it is evident that a genuine redundancy situation clearly existed with respect to the Complainant’s position, as her “employer has decided to carry on the business with fewer employees … requiring the work for which the employee had been employed” to be carried on by the Training Manager after November 2017, following 5 months of a loss making situation in the public training area. This was a necessary cost saving measure to sustain the public training area as costs were outweighing revenue over a prolonged period with no sign of improvement.

Section 6(3) of the act defines the circumstances for consideration in a potential unfair dismissal claim in instances of redundancy. An employer is required not conflict with section 6(3) which states:

“(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

It was submitted that the Complainant alleged in her complaint form that another employee had been engaged and was doing identical work to her. It is the company's position that such a person does not exist as the Complainant held a stand-alone position and there were no other similar or comparable roles within business, thus no selection criteria were appropriate in the circumstances.

Furthermore, if it is the Complainant’s position that she was a fairly selected for redundancy, she must demonstrate that a comparator exists and that “redundancy applied equally to one or more other employees in similar employment with the same and employer who have not been dismissed” against whom she was unfairly selected for redundancy.

Notwithstanding that is entirely unclear from the Complainant’s complaint form who the employee carrying out identical work is alleged to be, the only other role that existed within the division was an Occupational Health Care Coordinator, which is an entirely different role to that of the Training Coordinator.

The Occupational Health Coordinators role is to develop new business around occupational health solutions, i.e. health screening, health & fitness, wellbeing etc, whereas the Training Coordinator managed the organisations training courses for existing customers. They were stand-alone positions and were fundamentally different in terms of duties and functionality.

It was submitted that in the well-established case of Barton v Newsfast Freight Limited, UD1269/ 2005, the Tribunal upheld the common position that it could not find that the Claimant was unfairly selected for redundancy within the meaning of section 6(3) of the Acts, as the claimant was the only van driver based in Dublin and there were no other employees in similar employment. It was submitted that the exact same principle can be applied in the instant case: the Complainant was the only training coordinator engaged by the Respondent and there were no other employees in similar employment. By virtue of this fact, the Complainant cannot have been unfairly dismissed within the meaning of section 6(3) of the Unfair Dismissals Act 1977.

In Curtin v Trustees of Mallow Golf Club, UD964/2014, the Tribunal held that for section 6(3) of the Act to be applied similar employment must exist, and in that case, it was clear that no such similar employment existed, nor was there an agreed or established procedure for selecting employees for redundancy. The Tribunal stated: “The instance case falls in the first hurdle as there was no other employee and summer employment to the claimant… In any event, there are no agreed procedures are established custom in place for a set for selecting employees for redundancy”.

The Respondent was transparent in their discussions with the Complainant from July 2017 onwards that the Training Coordinator position may not be sustainable, and they discussed alternatives to redundancy by working with her on proposed ways of improving revenue in the area. The Respondent reviewed alternative roles within the company around the time of the redundancy however none existed. At the meeting of 23rd of November 2017, where in the Complainant was notified of the redundancy, she was asked if she had any questions or if she required clarification on the decision, but she did not propose any alternative position she wished to apply for.

It was always submitted that the employer acted reasonably and fairly pursuant to Section 7 of the UD Act which states that:

“ 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

- to the reasonableness or otherwise of the conduct (whether by act or by omission) of the employer in relation to the dismissal”.

It was submitted that the Respondent acted reasonably at all times. The Complainant was regularly informed about the financial difficulties faced by the organisation regarding the public training desk and the corresponding need for cost savings.   Furthermore, proposed measures to improve the viability of the training coordinator role were supported by the Respondent for a period of 5 months prior to a decision been reached that the role would be made redundant.

In the aforementioned case of Curtain v Trustees of Mallow Golf Club, the Tribunal found that Section 6(7) of the Act conferred a broad discretion on the Tribunal to consider the actions of the employer leading up to dismissal and held that, as a genuine redundancy situation existed the Complainants position was unique, and the employer made the role redundant as a last resort in a loss making situation, “the Tribunal, in exercising its statutory discretion, finds that the that the Respondent had not acted unreasonably.”

In light of the above arguments, the Respondent submitted that the Complainant was dismissed by way of redundancy and that the dismissal was fair.

The Complainant is claiming that she was unfairly selected for redundancy because of her pregnancy. Section 6(2) of the Unfair Dismissals Acts 1977 to 2015 states:

(2) “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, to be an unfair dismissal

if it results wholly or mainly from one or more of the following: …..

(f) the employee’s pregnancy, attendance at ante-natal classes, giving birth

or breastfeeding or any matters connected therewith,”

Section 6(4) provides

“……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,”

The Complainant said that she was selected for redundancy very shortly after her return to work from sick leave due to a threatened miscarriage. She said that she never had been warned that her position was in jeopardy and submits that the reason she was not considered for the other positions which were available was due to her pregnancy. She said that the Respondent was well aware that she was pregnant.

The Respondent said they knew the Complainant was pregnant, but it was unconnected to the decision to make her redundant. The Respondent submitted that the Complainant’s position was redundant due to a loss-making situation in the public training desk. They said that prior to the redundancy that they considered other positions for the Complainant, but her position and that of the OH Co-ordinator were not interchangeable. The position in reception was amalgamated with the office manager role and it was submitted that the Complainant was not sufficiently experienced for this role and in any event, they were obliged to retain a position for Ms A, who had sought a change in role, on return from maternity leave in January 2018.

The Respondent states that the Complainant should have known that her position was in jeopardy since July onwards and that is was open to her to apply for other roles such as the OH Co-ordinator position as well as the reception/office manager role.

I am not satisfied from the reports of the meetings submitted in evidence that the complainant would have known that her position was in jeopardy.

It is surprising, given the Respondent was concerned about the financial viability of the public training desk, and the possibility of the Complainant’s post being redundant, that Mr. B was appointed in a permanent capacity while Ms. A was still on maternity leave. Furthermore, it is also significant that Ms. A, who requested a change in roles following her maternity leave, was prioritised over the Complainant’s need for an alternative position following her role being made redundant. I note that the reception / office manager position remained vacant following the Complainant’s dismissal. I cannot understand why the Respondent did not appoint her to this role even in a temporary capacity pending the return of Ms. A.

I further note that the decision to dismiss the Complainant was taken in great haste by the Training Manager. I note the evidence of the CEO was that he did not instruct TM to dismiss the Complainant on the 23rd of November. The evidence of the Respondents witnesses in relation to whether an alternative role to redundancy was under consideration was contradictory. I note that TM stated that the Complainant did not apply for any of the roles which were being filled. However, it would have been difficult for her to do so when she did not know she was being dismissed for reasons of redundancy until the 23rd of November 2017.

The Respondents submitted that the Complainant’s position was a stand-alone role and that's similar roles must exist to ground a claim for unfair selection for redundancy in accordance with Section 6(3) of the UD Act cited above.

I was referred to the EAT decisions in Barton v Newsfast and Curtain vs Trustees of Mallow Golf Club cited above, and I was asked to apply the reasoning in these cases. I am satisfied that these cases can be differentiated from the case and hand. I note that in the Barton case the Complainant was the only van driver in Dublin, and in the Curtain case the Complainant was the Secretary manager of the golf club and therefore he was in a senior management role. The Complainant’s position was clerical /administrative in nature and I am satisfied it was interchangeable with other similar positions within the organisation.

It has not been established to my satisfaction that the Complainant’s role and that of the Occupational Health Coordinator where are not interchangeable. I note from the job descriptions that both were administrative in nature and both had a business development role that is a role to increase sales. Even if they were not interchangeable the component was not considered for alternative vacancies such as the one in reception.

The respondent submitted that they acted reasonably and fairly in accordance with section 6(7) of the UD Act. It provides as follows:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour 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, and

(b) to the extent (if any) of the compliance or failure to comply by the employer,

in relation to the employee, with the procedure referred to in section 14 (1)

of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section7 (2) of this Act.

In considering this point I note that the decision by the CEO to make the Complainant's position redundant was only made on the 23rd of November, the same day the Complainant was dismissed with one week’s pay in lieu of notice. I cannot hold that the decision was reasonable given that there were no instructions given by the CEO to dismiss her on the same day that he made the decision to make the post redundant. I note that the Respondent failed to give the Complainant any advance warning about the purpose of the meeting on the 23rd. I further note that no meaningful consultation took place with her beforehand, nor was she given any opportunity to put forward alternatives to redundancy and in fact she was dismissed on the same day as the decision to make the role redundant was made. I am not satisfied that the Respondent acted fairly or reasonably in the circumstances.   For all the above reasons, I am satisfied that the Complainant was unfairly selected for redundancy and that no efforts whatsoever were made to provide her with an alternative role to redundancy, even though there was at least one vacancy available. I have to conclude; given the absence of a credible explanation for the failure of the employer to consider her for alternative roles; together with the unseemly haste of the dismissal without any proper procedures; that the decision to dismiss the Complainant was “wholly or mainly” due to her pregnancy.

I find that the complainant was unfairly dismissed. In considering the financial loss, I note that the complainant did not qualify for maternity benefit due to the dismissal and in awarding compensation for financial loss I have taken this into account. I award the complainant €15,000 nett compensation for the financial loss which includes 22 weeks loss up to her maternity leave and 26 weeks at the appropriate maternity benefit rate.

Unfair Dismissals Act, redundancy, unfair selection for redundancy, pregnancy dismissal.