Complainant

Respondent

Anonymised Parties

A HR Coordinator

A Services Company

Representatives

Warren Parkes Solicitors

Ciara Fitzgerald B.L.

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00028678-001

27/05/2019

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

CA-00028678-002

27/05/2019

The complainant had initially been employed on a temporary contract to cover maternity leave and was employed on a contract of indefinite duration on November 11th, 2017.

Her employment terminated on April 118th, 2019 on the basis of a redundancy which she is disputing.

The respondent provided a detailed breakdown of the complainant’s role.

Following a company reorganisation in mid-2018 it o proposed to create a new position of ‘Consumer Experience Manager’ (CEM) by early 2019.

There was a delay in making the appointment and a person was appointed to carry out similar work but at a more junior level than that envisaged for the CEM post; a customer experience administrator (CEA).

Evidence was given that part of the function of the CEA post would be to gather data necessary for the higher post.

In response to a query as to whether the complainant could have fulfilled this role the respondent CEO said that upskilling her for the post would have taken too long and the company need someone with the requisite skills immediately.

Other aspects of the reorganisation included making the role of HR and Faculties Coordinator (the complainant’s position) redundant and reorganising her work by distributing it to other employees.

The respondent met the complainant on March 7th and outlined the changes and the process which would follow. The complainant was offered and availed of paid leave to consider the proposal.

A second meeting took place on March 19th at which the complainant gave her response including alternatives to her redundancy which were considered by management that same day.

A further meeting took place two days later, on March 21st at which the complainant was advised of the rejection of her proposals and the reasons why.

She was told that the redundancy would proceed and she was offered an ex gratia payment of €2,500.00 if she signed a severance agreement.

She was given until March 26th to consider the offer and advised to take legal advice.

The complainant declined to sign the severance agreement and was made redundant on the basis of payment of statutory redundancy only, and payment for outstanding annual leave and entitlement to notice.

The complainant was the only person carrying out the role selected for redundancy and therefore was the only person in the selection ‘pool’.

There were other roles for which she could have applies but she did not do so.

The company no longer has a specific function comprising the work formerly undertaken by the complainant.

Approximately eighteen functions formerly part of the complainant’s role have been distributed elsewhere.

It is not correct to say that the new Customer Experience Administrator (the lesser role than that proposed for the CEM) was doing the same work as the complainant. The complainant did undertake some of these responsibilities but did not have the relevant ‘customer success process’ experience which was considered essential.

Some other functions have been automated and a new telephone and CRM system has been installed.

The complainant was made redundant and her work redistributed throughout the company and the termination of her employment was fair.

By way of background, the complainant had raised issues in June 2017 about her treatment at the hands of a senior colleague.

These became the subject of a formal grievance in October and were investigated by an external investigator who upheld the complainant’s grievance in her report (published in December).

At around the same time the respondent announced its restructuring proposals which included the complainant being moved to a new role and given the title ‘HR & Facilities Co-ordinator.

This would be combined with her role as a front of house receptionist and would commence in January 2018.

She did well in her performance review and received a bonus. She was also then allocated to cover a maternity leave absence in the finance department, where she would again be in contact with the subject of her grievance, but it was agreed that she would report to a different manager.

The timetable for the redundancy consultation is as set out above in the respondent’s submission.

The complainant says that she could have undertaken the CEA role as she had worked in data analysis which was a key part of the CEA role, as well as some ‘learning on the job’. The complainant gave evidence that seventy per cent of her role up to March 2017 was order processing; she had only been removed from accounts following the processing of her grievance.

The complainant also said that on being first told of the redundancy she enquired about the position of CEA as an option for her but she was told that ‘there were more [or other] suitable candidates’.

Also, the paid leave which followed this was a result of a request made by her, it was not the company’s initiative.

The second consultation meeting was peremptory and lasted only a few minutes.

The complaint under the Terms of Employment (Information) Act arises from the failure of the respondent to update her terms when she moved to other roles.

The Redundancy Payments Acts 1967 to 2007 provides the legislative basis for assessing redundancies in this jurisdiction.

A valid redundancy situation is deemed to have occurred where a dismissal occurs "wholly or mainly" from one of the following situations:

1.Where an employer has ceased or intends to cease to carry on the business for the purposes for 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.

2.Where the requirements of the business for an employee to carry out work of a particular kind, in the place where he was so employed, ceased or diminished, or are expected to cease or diminish.

3.Where an 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.

4.Where an employer has decided that the work for which the employee has been employed should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained.

5.Where an employer has decided that the work for which the employee has 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

It should be noted that a redundancy will not be a valid defence to a claim for unfair dismissal in circumstances where:

·  The employee was unfairly selected for redundancy or was selected for redundancy in a manner not consistent with his contract of employment or the previous manner in which redundancies had been dealt with in the company provided that there is no special reason such as would justify a deviation from prior standard practice. OR

·  Where the redundancy is not a genuine redundancy situation.

Where an employee alleges that they have been unfairly selected for redundancy the onus of proving fair selection and therefore a fair dismissal rests with the employer.

While there was evidence that developments within the company could be seen to fall within Points 2 or 3 above, there remains an obligation on an employer to apply good standards of fairness in approaching its selection of an employee for redundancy.

In particular this requires application of the principle of ‘impersonality’.

It is, in the first instance a post that is redundant, then that requires as a second stage a person to be selected in accordance with fair procedure.

In this case the respondent stated that the process of reorganisation within the company which affected the complainant began initially in late 2017. Following this she was given the new position of HR and Facilities Co-ordinator and worked in this for over a year before it was made redundant.

While some allowance must be made for the needs of any company being subject to continuing change and review as its business develops, it does strike one as odd that this should happen, and that a newly created position should become redundant in such a short time.

Then there is the process itself.

It commenced on March 7th when the complainant says she was invited to a meeting at which she was told she was ‘at risk’ of redundancy.

She was given a letter which stated;

‘Since you are the only person carrying out the role of HR and Facilities Coordinator you are the only employee selected for redundancy’

The letter also undertook to review and identify alternative positions for the complainant. It also contained details of an enhanced package on offer including an ex gratia payment of €2,500.00 should she be willing to sign a severance agreement.

It proposed meeting a week later but this was deferred until March 19th.

The complainant set out her concerns in an email of March 10th and she got a detailed response to this the following day. While it may only be a detail in the overall scheme of things the complainant asked whether the respondent would be recruiting a front of house receptionist and she was told it would not.

However, when the position of CEA was being announced to the respondent employees on May 29th it contained the following;

The CEA….will meet and greet our customers and visitors at our visitor check in area and look after all inbound overflow calls…’

That is not the only aspect of this announcement that is worth commenting on.

In his direct evidence to the hearing the company CEO stated that one of the reasons the complainant could not be trained into the position was that it would take too long to do so and the company’s need to fill it was immediate.

It seems safe to assume that the decision to make the complainant redundant was taken some time before she was told she was at risk on March 7th.

Yet it was a further two months before the person appointed took up her position. It is not clear precisely what degree of upskilling was necessary but two months (or more) would surely have brought the process a long way. The complainant had suggested that she be given a three-month trial in the position and this was rejected by the respondent.

However, the process itself must be considered and in particular the statement referred to above to the complainant to the effect that;

‘Since you are the only person carrying out the role of HR and Facilities Coordinator you are the only employee selected for redundancy’.

It may be possible in some circumstances (although it should be approached with great caution having regard to the impersonality requirement) to adopt such a position where a role has a highly specialised skill requirement and the incumbent is likewise highly specialised and unlikely to be accommodated in other roles.

That is not the position here.

The complainant initially worked as a Finance Assistant and moved to the newly created position of HR and Facilities Coordinator. She undertook a selection of other roles in the course of providing maternity leave cover.

She had a range of general office or administrative skills, and while there was a dispute at the hearing about the precise degree of intersection of her skills and the requirements of the new position that is not the point.

That is a discussion that should have taken place as part of a selection process and based on a proper evaluation of her skillset.

The advertisement for the CEA role required a ‘degree or diploma in an IT or business-related discipline’.

Apart from that the main skillset outlined there is very general.

There was no other technical requirement that should have automatically excluded the complainant.

It can be easy to write such job specifications to deliberately exclude candidates who, only lacking the specific qualifications may nonetheless possess sufficient skills to discharge the role. While there was no evidence this is what happened in this case the complainant felt it had and said so in her email to the respondent on March 13th. The respondent’s assertion that the complainant could not have been trained for the role was unconvincing.

While there is no guarantee what the outcome of such a process might have been an employer is nonetheless bound to implement a fair process, and not simply target the incumbent of the post which is redundant.

To start off on the basis of a presumption regarding the ‘pool of one’ with its conflation of the post and the person does not meet the requirements of the impersonality principle and suggests a predetermined outcome.

The point is that she was the only person considered for redundancy on the basis of a quite unfounded, and untested assumption regarding the range of options available.

She was given to understand at the first meeting on March 7th that she would not make the qualifications which had been set for the CEA role. Despite that the respondent’s email of March 11th confusingly stated that she could apply for a position for which she did not have a key qualification.

As noted there may, depending on the facts, be valid selection ‘pools of one’ but employers contemplating redundancy must be very wary of the temptation to short circuit the process by relying on the convenience of a pool of one, unless it can be objectively justified.

Otherwise to jump these two hurdles (post and person) at the same time would be to undermine the entire basis of the requirements for a fair selection process.

The complainant gave evidence that the final meeting with the company on March 21st, at which she was accompanied by her sister was a very peremptory affair lasting only a few minutes. Her sister confirmed this in her direct evidence This lends support to the general impression that the complainant had been targeted for redundancy, without the benefit of the required process.

In summary, all of this adds up to a most unsatisfactory picture of failure to meet the requirements of a fair process for selection to the point where it renders the dismissal unfair.

The complainant found employment on August 19th and was therefore out of work for four months which would make her losses in that period €10.000 (her monthly pay was €2,500 per month). She received a redundancy payment of €3749.00

In relation to the complaint under the Terms of Employment (information) Act the respondent submitted that the alleged breach was outside the time limits, as the changes complained of had occurred over twelve months before the submission of the complaint.

This has been addressed in a number of decisions of the WRC in which Adjudicators have found that there is a subsisting contravention where such failure to provide a statement or notice of relevant changes to it arises.   (See ADJ-9820 and ADJ-19368).

Accordingly, that complaint is within jurisdiction and is upheld.

Complaint CA-00028678-001 is well founded and I award the complainant two week’s wages in the amount of €1250.00.

Complaint CA-00028678-002 is well founded and I award the complainant €6250.00.

Selection for redundancy, fair procedure.