ADJ-00022899

Complainant

Respondent

Anonymised Parties

Search Quality Moderator

A Company

Representatives

  Self

IBEC

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-00029538-001

08/07/2019

The Complainant commenced her employment with the Respondent on 18^th June 2018. She was dismissed on 7^th July 2019. She claims that the dismissal was unfair.

The Respondent submits that the Complainant commenced employment on 18^th June 2018 and at the time she commenced employment she signed a contract of employment and received a copy of the employee handbook. The Complainant's contract of employment was for 39 hours per week (5 over 7). The Complainant was employed in the role of a Search Quality Moderator and worked with a team of six employees.

On 8^th May 2019, RT, HR Manager and RB, Site Lead met with the Complainant to advise that her role was at risk as the current line operations where she was working may no longer be operating from the [named location].

On 19^th June 2019 the Respondent made the announcement to the team that due to client requirements the line of business that they were currently working on was no longer going to operate from the [named location] office. The Respondent advised that they were looking at other alternative roles within the business for them and there was a risk of redundancy. At this point, the Respondent advised that there were two roles within another area of the business and the Respondent had developed a skills matrix to determine the two people who would first be offered these opportunities. The employees were advised that each would be met on an individual basis to discuss the metrics and the outcome. They were scored on the basis of: 1. Attendance, 2. Quality, 3. Tenure, 4. Lateness.

Regretfully the Complainant was on annual leave on that day, however RT of HR and MP, Supervisor made contact with her to update her on what had taken place with the team. It was agreed that they would meet face to face upon her return the following day to the company.

The Complainant met on the next day with both RT and MP. They went through her scores on the matrix and advised that she was not in the top two. The offers were being made to the top two scorers and in the event that they declined the offer if would be offered to next on the list. Unfortunately, the Complainant had the second lowest score in the group. The Complainant was not surprised by the results on the metrics as she had been aware of work issues.

The challenge was that the Complainant only had one language namely English and for the other opportunities within the Respondent company they required multilingual support and therefore the Complainant was restricted. As a result of this, she was advised that her role would cease on 7^th July 2019.

The Complainant was not eligible for statutory redundancy as she did not have the requisite two years, however, the Respondent indicated that they were finalising the details of an ex-gratia payment and that this would be communicated to her once available.

On 27^th June 2019, a meeting was arranged for 2^nd July 2019 to discuss the final payslip, holiday balances etc. This meeting did not take place until the following day, 3^rd July 2019 and in attendance was RT and the Complainant. At the meeting, the Complainant was supplied with a letter confirming her redundancy notice and payment. RT went through the letter confirming that the Complainant’s notice of redundancy took effect on 19^th June 2019 at the meeting which was attended by both parties and that she would receive all outstanding monies due to her on 19^th July 2019. The Complainant signed a copy of this letter acknowledging her acceptance of this.

On 5^th July 2019, the Complainant met with RT and they went through the Severance Agreement. She was given a copy of the Severance Agreement to review and to take away prior to signing in order to take independent advice should she wish to do so. 

RT sent an email to the Complainant on 8^th July 2019 requesting that she return the signed Severance Agreement by Monday, 15^th July so that the payment could be processed in the final payroll. The Complainant responded on the same day seeking clarification as she believed that the payment was to be goodwill gesture from the company and could not understand why she would not receive it unless she signed the Severance Agreement. RT responded that, as was stated in the Agreement, the ex-gratia payment was subject to the signing of the agreement and that it would need to be returned by 15^th in order to be processed on 19^th July.

A further email was sent to the Complainant on the 15^th July as the agreement would need to be returned no later than 10am on the 16^th in order to make the payroll run. The Complainant responded on the 17^th July advising that she would not make the deadline as she was in the process of receiving legal advice. The Respondent responded and advised that they would extend the deadline until Tuesday, 18^th July at 10am for the signed agreement. The Complainant responded on 18^th July advising that she had been in contact with the WRC and was waiting on a reply.

The Complainant has lodged her complaint to the WRC on 8^th July and it was received by the company on the 22^nd July 2019.

Respondent's Arguments

The Respondent believes that the Complainant was fairly selected for redundancy. In May 2019, the Respondent were aware that the client whose lines they were operating may move the operations out of [named location] and made the team aware of this. The Complainant was one of four people who were made redundant at that time and this was based on the selection matrix that had been completed. Two other employees remained within the company.

The selection matrix that was used was openly transparent in its makeup. It was based on the four-key metrics of the Respondent namely Quality, Attendance, Tenure and Lateness which were measurements that employees of the business are acutely aware of and are measures employees are consistently marked against.

The Respondent had at all times been closely engaged with the Complainant through the redundancy processes. Regretfully, as the other opportunities required candidates with multilingual experience the Complainant could not be considered. However, in an effort to assist her the Complainant was provided with a company contact with the [named] Recruitment Agency by RT on 3^rd July 2019.

There were objective business reasons for implementing the redundancies. The fact that the redundancies were genuine and the selection criteria were all discussed with the team involved and this was down to the client moving its operation out of the [named location] office of the company.

Section 7 of the Redundancy Payments Acts states that am employee is dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to

'..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…’

It is the Respondent’s position that the Respondent had no option due to a client decision but to make the changes to the team who were dedicated to that client. The roles no longer existed and the Respondent had ceased the roles where the Complainant has worked. As the Complainant was dismissed by reason of redundancy her claim under the Unfair Dismissals Act must fail.

It is the Respondent’s position that the claim is opportunistic and completely without basis. The Complainant at no stage queried the redundancy or the selection criteria at the time nor did she raise a grievance in line with the Respondent’s Grievance Procedure.

The Complainant was given a settlement agreement to review and sign within a reasonable time frame and advised that she had the right to take advise on the document. She refused to sign the agreement despite receiving numerous extensions to allow her more time to consider its contents.

Conclusion

In light of the above arguments, the company respectfully asks the adjudicator to find that the Respondent's decision to make the Complainant redundant was fair and reasonable, and accordingly the claim under the Unfair Dismissals Acts 1977-2015 should fail.

In response to the Complainant’s submission at the hearing, the Respondent argued that at the meeting on 8^th May 2019, the Respondent told the staff that it wanted to protect all jobs but there were no guarantees as that particular client has moved part of their business and what was left required multilingual skills.

In respect of the alleged promotion, the Respondent claimed that the move was not seen as a promotion. Rather, it was a move to a different role based on skillset and experience.

In relation to the matrix, the Respondent argued that there was no surprise there in terms of attendance etc. as this would have been always discussed.

In terms of the deadline, the Respondent argued that RT was clear that 15^th July 2019 was the latest the agreement could have been returned for the payroll to process the payment. It was extended up until 12pm on Thursday, which was the latest for the payroll purposes.

In terms of the consultation process, the Respondent claims that any other alternative roles required multilingual skills and the Complainant was restricted in that regard.

Evidence of RB, Site Lead

RB said that he called all six employees who might have been impacted individually to tell them that the Respondent would do all to protect the employees. He said that the named department the Complainant referred to was growing but had only 2 jobs available for English speaking employees. The remaining positions (6-7) required multilingual skills.

The Complainant submits that on 18^th of June 2019 she was officially working for the Respondent for 1 year. She booked the following day, 19^th June off as a holiday to celebrate being in the company for one year.

On 19^th June 2019 she received a phone call from HR and her supervisor advising her that her role within the company would no longer exist. She claims that she was advised on the phone call that four out of the six English agents within the company were being made redundant, the other two agents were being moved to a different role within the company.

On 20^th June 2019 she had a meeting with HR and her Supervisor regarding the call from the day before. The same information was given, but they also informed her that she was not one of the two agents considered for the role change. She was advised by the Supervisor that if she had a second language that there might be something that they could do within the company but because she didn't have a second language there was nothing they could do as there was no role for English agents within the company anymore. HR and her Supervisor advised the Complainant during this meeting that she was not eligible for redundancy as she was not in the company 2 years. She was also informed that the choice was down to metrics which the Complainant found ridiculous as the employees had different job roles within the company.

The Complainant submits that she had only accepted a promotion to a tier 2 agent (she was previously a tier 1 agent) and due to achieving her targets consistently she was offered this promotion with the same rate of pay. The Complainant submits that at the time of this promotion all staff members were advised that they would all be moving to a new team later on in the year.

The Complainant claims that she was advised numerous times on different occasions by management that her place within the company was safe and there would always be another role for her to move to in the case of her role ceasing.

The Complainant submits that a week later she received no further information regarding the matter. She took it upon herself to request some documentation. On 27^th June 2019, she emailed HR at 8:01am and asked for confirmation that she was being made redundant and some further information. She didn't receive an e-mail back from HR all day despite sending the e-mail at the same time that HR started working. She didn't get a reply until after she had finished her shift. The email stated that she would have a meeting on 2^nd July 2019 to go over her final payslips, holiday balance amongst other things. She was then advised on 2^nd July by e-mail at 1:19pm (one hour before her shift was due to end) that she would not be having the meeting. She was advised then that the meeting would be held the following day 3^rd July 2019.

On 3^rd July 2019, the Complainant had the meeting with HR. She was provided with documentation/letter of her redundancy, she was advised of final pay, holiday balance etc. The Complainant claims that she asked HR if it was not protocol for them to have given her two weeks written notice, she was advised that legally the company did not have to provide her with this. HR advised then that they would meet with her again on Friday 5^th July 2019 (the Complainant’s final day with the Respondent) to again, go through final pay, among other things.

On 5^th July 2019, the Complainant met with HR again. In this meeting she was provided with a Severance Agreement letter, again noting final payments etc. She was advised by HR that if she was to sign this Severance Agreement that she would lose the right to pursue a claim against the Respondent. The Complainant questioned this, and HR advised her that there would be no reason for her to pursue a claim against the Respondent as they followed all the correct procedures throughout. It is the Complainant’s view that HR were unprofessional. HR then continued to be unprofessional and spoke about their own personal life comparing it to the Complainant’s situation. She was advised that she did not have to sign this letter and could take it with her out of the office and return it when possible.

At the end of the day before the Complainant’s final shift ended HR spoke with her about signing the form and handing it back to the Respondent. The Complainant asked if HR would like her badge and key back as she forgot to ask about it all day. Only when the Complainant mentioned the badge and key did they ask for it to be returned.

In response to the Respondent’s submission, the Complainant argued that at the meeting on 8^th May 2019 she was told that there was no worry about her job and she was assured that her position was secure.  The Complainant said that she knew that some business was moved from the specific location but she was guaranteed that she would work on a project or in another named department.

The Complainant argues that an email she received from the Respondent on 13^th May 2019 outlined the details of the meeting and stated that RB and RT would speak  to her about the restructuring of the task within the Respondent and that the Complainant mentioned that she was not worried about the changes and she would be fine to move to a named department if necessary.

In respect of the matrix used, the Complainant argued that she was promoted in March/ April 2019 and therefore, even though everyone had some issues, there were no major issues in her case.

The Complainant rejected the Respondent’s assertion that it had at all time been closely engaged with her throughout the process. She claims that she had to email the Respondent on 27^th June 2019 seeking an update.

The Complainant also argued that there was no official deadline given to return the severance agreement. She never got an answer to her query in that regard and there was no deadline in the agreement itself.

The fact of dismissal was not in dispute. The Complainant argues that she was unfairly dismissed. The Respondent contends that the dismissal of the Complainant was a redundancy necessitated by challenges facing the business.

The burden of proof rests with the Respondent to establish that the dismissal was wholly redundancy connected and must justify the selection process whereby the Complainant was selected for redundancy.

I have considered in detail the written and oral submissions of the parties.

The Redundancy Payments Act, 1967, Section 7(2) as amended, provides that:

“…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—

(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 where 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 henceforward 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 henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.

”

The Unfair Dismissals Act, 1977 as amended

Section 6 (1)

“Subject to the provisions of this section, the dismissal of an 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 (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.”

In reaching my decision I am guided by the Labour Court determinations Students Union Commercial Services Ltd. v Traynor UDD1726 and Tolerance Technologies Limited v Foran UDD1638.

I am required, in the first instance to consider whether a genuine redundancy was at issue. I am satisfied based on the evidence of the Respondent, that a redundancy situation did exist within the Respondent entity at the material time. It is clear that when a client made a decision to move its operation from the location in question the Respondent was faced with having to make the decision to make four employees redundant and the decision was taken for economic reasons.

The evidence before me shows that the manner in which the Complainant was dismissed involved the minimum, if any consultation. The Respondent put a decision rather than a proposal to the Complainant. It seems that any discussions, and these related to mainly to the outstanding payments and severance agreement, came after the decision to make the Complainant redundant had been made. There was no engagement with the Complainant as regards alternatives which might exist. The Complainant was not given the opportunity to make suggestions as to why she should be retained and on any alternatives that might be considered.

While the Respondent said that it had reviewed the possible alternatives within the Respondent entity, there was no evidence proffered in that regard. The Respondent merely stated that all other alternatives bar two available at the relevant time were multilingual and the Complainant did not have any other languages. I accept that, having carried out such an exercise, the Respondent may have come to the same conclusion. Nevertheless, I was not presented with information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options.

It is clear that there was no avenue of appeal available to the Complainant in the situation where she was dissatisfied with the decision to terminate her employment.

I accept the evidence of the Respondent that the position of the Complainant was not replaced by recruitment or by any other means. I note the Complainant’s email received post the hearing on 24^th October 2019 alleging that she has come across an advertisement for the same position she had been made redundant from. In that regard, I accept the Respondent’s clarification that the position in question became vacant when the employee who was in the role since 2017 resigned on 20^th October 2019 and it was not for any additional roles created within the Respondent company.

I note the provisions of Section 6(7) of the Unfair Dismissals Act:

“(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 rights commissioner, the Tribunal or the Circuit 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, …”

I accept that the position of the Complainant became redundant in July 2019. However, by reference to Section 6(7)(a) of the Act, I also find that the manner of the Complainant’s dismissal as a result was procedurally unfair. She was not consulted adequately, she was not afforded representation and she was denied the opportunity to appeal the decision to dismiss her. I find that, notwithstanding the fact of the redundancy of the position of the Complainant, the conduct of the Respondent in relation to the dismissal cannot be held to have been reasonable. For this reason, I find that the Complainant was unfairly dismissed.

The Complainant provided extensive evidence of her attempts to mitigate her loss. She secured new employment from 6^th August 2019 on a temporary basis with the finish date of 31^st January 2020. While the salary is comparable, the new position requires commuting at the cost of approximately €44 a week.

I declare the complaint well-founded.

I require the Respondent to pay the Complainant the sum of €3,000 being the amount I consider just and equitable in all of the circumstances.

Unfair dismissal - redundancy