Complainant

Respondent

Anonymised Parties

A Receptionist

A Tourism Company

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-00025247-001

24/01/2019

The complainant began her employment with the respondent in April 2015 as a part time receptionist for that tourist season. She worked eight hours per week.

She was re-engaged the following year and in November 2017 she says she was offered a permanent position on the basis that she would work three days per week in the tourist season and one in the winter, and that her pay would be increased from €10.50 to €11.00 per hour.

This was on the basis of conversations with the respondent’s Operations Manager in November 2017.

As part of the staff needs planning for the upcoming year the foreman at her base, and her line manager prepared his proposals, and these were sent to the Operations Manager for approval. The proposals were agreed in the course of a phone call around November 2nd. The complainant has the paperwork on which the amendments made by the Operations Manager can be seen and she sent an email on November 4th confirming her acceptance.

In that first winter of the new contract she did, in fact work one day per week as agreed and three days when the season began.

However, when it came to reverting to the winter arrangement in October 2018 she was told that she would not be retained in employment and the agreement of the previous year was set aside.

When she raised the matter, the reason given was that there was no budgeted provision for her position.

The complainant sent a copy of what she considered to be the agreement on October 11th 2017 to her newly appointed Regional Manager in October 11th 2018 who replied only to reiterate that her employment would end at the end of November.

The respondent stated on October 23rd that there was no ‘evidence’ of an agreement. It insisted that the agreement made the previous year had been a ‘one off’ for the purposes of that winter only.

She was offered a continuation of her winter one day a week arrangement but on the basis that this was a temporary arrangement and did not represent a continuation of any permanent contract.

On November 16th she was offered a fixed term contract and told that if she did not accept it she would be made redundant. The complainant rejected this, relying on the agreement of November 2017.

The respondent repeated the option of accepting a fixed term contract or redundancy and then, On December 5th notified the complainant that she was ‘at risk of redundancy’.

She was again offered a temporary contract to run until March 2019 but in due course, on December 18th was given notice of redundancy.

No proper procedure was followed by the respondent.

The respondent did not attend the hearing and did not submit any explanation for its failure to do so.

However, it did submit a response to the complaint by way of correspondence from its HR department but is stated to have been sent ‘on behalf of the Managing Director’.

The respondent complains that the complainant had not processed her grievance in accordance with its grievance procedure.

The respondent stated that it was aware of the claim made by the complainant that her position had been made a permanent one as a result of the arrangement with the Operations Manager in November 2018 but states that there is not evidence to this effect. Indeed, in May 2018 the complainant received a ‘chasing’ email seeking a return of her contract (i.s. for that season). She did not reply.

The correspondence recites the various contacts that took place which are as set out above in the complainant’s submission, and the options that were offered to the complainant.

As te complainant refused the options that were offered the respondent was left with no choice but to make the role redundant.

The respondent says it did not dismiss the complainant unfairly and offered all available options to resolve the matter.

This case hinges initially on what exactly happened towards the end of 2017 in respect of the complainant’s employment status.

She claims that she was offered a new contract as set out above, indeed it was varied somewhat at some stage in the process and before it was agreed in respect of both the salary to be paid and the number of days she would work during the winter.

Significantly for the complainant’s case these proposals were implemented; admittedly in a diluted form, but they nonetheless included an increase in her wages of €0.50 per hour.

There is a distinct lack of documentation relating to the complainant’s case and indeed this was the position adopted by the respondent in late 2018 when the complainant drew attention to what she said was her new status. The complainant was asked for evidence of it and provide what she could.

She points out that even in respect of her previous, short term contract positions she was never given any written version of her contract of employment.

However, while there is a dearth of written evidence it may be helpful to look at the circumstantial evidence surrounding the complainant’s assertion regarding the arrangement made in October/ November 2017.

The complainant says that the proposal which went forward had three new elements; that she would work two days per week during the winter, would get a pay rise from €10.50 to €11.50 per hour and would be given a contract of indefinite duration (CID).

In the event what was implemented was one day per week during the winter, where previously she had not worked at all and a pay increase of €0.50 per hour.

This leaves the final issue of the CID.

I take into account that the respondent was sent the evidence of the November 2017 agreement on October 11th, 2018 but appears to have ignored it.

The complainant also says that she received a 1.5% pay increase only due to permanent employees of the respondent.

The complainant was a very credible witness and I accept her evidence and the related circumstantial evidence that on the balance of probability part of the package of changes agreed in November 2018 was that she would be placed on a CID.

Two out of three of the elements of the proposed deal were in fact implemented and this seems to both reflect the intention of the parties and confirm, by their performance, the implementation of it.

In one sense, this is academic as in making the complainant redundant the respondent appears somewhat inconsistently to have accepted that her contractual status was one of a CID as there would be no need to make a short term, contract post redundant.

A further inconsistency was the respondent’s assertion that the complainant had ‘misunderstood’ the exchanges of November the previous year.

If the respondent had sufficient information and knowledge of the transaction on which to base such a conclusion it did not provide any justification to the complainant as to how it reached the conclusion that she had ‘misunderstood’ what had been going on.

The respondent has stated that its reason for not wishing to continue with the complainant’s position was that it had ‘no budget’ for the position.

It is odd then, that one of the options offered to the complainant was that she would continue on the basis of a fixed term contract until March 2019.

If there were resources to sustain the position until March there was a budget for it somewhere and the grounds for making it redundant in December 2018 are significantly undermined.

It would have been just as easy for the respondent to make the position redundant in March 2019 if the position regarding its budget remained the same.

It may be the case that the respondent had no budget for the position on the basis that it was unaware of the agreement made with the complainant in November 2017, but it quite clearly had the funding necessary to extend the complainant’s employment for some further months.

Having no budget for a particular expenditure head, is not the same as having no money for it; it may simply reflect the failure to provide properly for the necessary expenditure. That seems the likely explanation in this case.

I turn now to the procedure followed by the respondent in relation to the purported redundancy.

The redundancy can quite clearly be seen as a response to the surprise (to the respondent) news that it now had an employee on a CID that it was not aware of.

It first sought to change the nature of the contract to one of fixed term and failing that said that the position would be made redundant. Despite having received the complainant’s evidence of the change in her contract on October 11th it insisted that there was no evidence of the agreement ( or that the complainant had misunderstood it).

Things moved rapidly then and the ‘At Risk’ meeting took place on December 11th at which the fixed term contract up to March 2019 was again offered and by December 19th she was given final notice of redundancy.

There was, as can be seen very limited discussion of alternatives which would have preserved the complainant’s CID status, such as shorter working week, or some other solution.

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

In most cases a respondent will rely on the first three points above.

It should also be noted that 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.

Normally these redundancy options come onto the table following some adverse trading or financial problems in a business.

In this case the problem was triggered by the fact that the respondent appeared not to have been aware of the position of the complainant and on discovering it moved to find a way to bring her employment to an end, either through immediate redundancy or by converting her contract of employment into a fixed term contract for the rest of the winter and then offering her a seasonal contract as a ‘casual worker’ for the summer. It is hard to understand how the respondent was in a position to fund this expenditure given that it had no budget to honour the complainant’s contractual terms.

Other options such as lay off were discussed at the consultative meetings in December 2018.

It is difficult to find any of the elements identified in points 1-3 above in these options; the business was continuing, the nature of the work requiring to be done was the same, and it was even intended that the work should be performed by the complainant, except that she would do so on a significantly less favourable contract.

This is not the purpose for which the redundancy legislation was designed; it does not exist as a device of convenience and a sort of handy tool to get rid of an inconvenient problem which had suddenly come to light, and which for which no other remedy was at hand.

I have no hesitation in saying that this was not a bona fide redundancy as defined by the statute and that the complainant’s employment was unfairly terminated under the ‘cloak of redundancy’.

In assessing my award of compensation, I have had to discount a brief period when the complainant was not available for work due to illness. However, I consider it just and equitable to take into account some future losses attributable to the dismissal and noting that her earnings in 2018 were just over €12,000.00.

I uphold complaint CA-00025247 and award the complainant €7,500.00.

Unfair Dismissal, Redundancy