Complainant

Respondent

Anonymised Parties

A Cash Analyst

A Professional Services Company

Representatives

Orazio Grosso, Grosso & Maldonado Solicitors

Rosemary Mallon B.L. instructed by Mason Hayes & Curran Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00019575-001

05/06/2018

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

CA-00019373-001

23/05/2018

The complainant was employed by the respondent as an analysis on the 18th of July 2016 and her employment was terminated on the 4th of May 2018. She was paid €2,374.17 per month and she worked 37 and a half hour week. She's claiming that she was unfairly dismissed by reason of redundancy. 

The complainant was employed by the respondent as a country controllership analysis in the CMS cash applications team. In early 2018 the respondent began to consider removing this function and the entire team to another jurisdiction around May 2018. The complainant was absent on sick leave at the time and she was informed by email on the 5th of March 2018 about the proposed changes which would affect her team. On the 7th of March 2018, the complaints team was informed that the work would be transitioned to Prague in early May 2018 and they were therefore in line for redundancy. The complainant was informed of this development by email as this was her preferred method of communication.

As part of the redundancy consultation process, the respondents HR team met with the complainant on the 13th of March 2018 on a one-to-one basis to discuss the changes and the proposed redundancy.  A number of matters were covered during this meeting including the business rationale for the move, redeployment opportunities and the support that would be made available to the complainant between that date and the proposed transition date. She was also provided with details of the enhanced redundancy package that would be offered to the employees on the team in the event they were made redundant. The respondent also sent the complainant a copy of all the vacant roles within the company and encouraged her to apply for a comparable role. The complainant was also provided with access to training on CV and interview skills. She attended the training on the 27th of March 2018. The complainant applied for two open finance roles. She did a first round interview for one of the roles, but the application did not progress because the hiring manager felt that she did not have the required technical accounting knowledge for the role. The complainant's second application did not progress beyond the CV screening stage because she did not have the relevant experience required for the role. Both roles were filled by candidates with more technical accounting experience than the complainant.

The complainant’s role transferred to another jurisdiction in early May. The complainant, who was still on sick leave, did not apply for any further roles and for this reason her employment was terminated by reason of redundancy on the 4th of May 2018. The complainant was not entitled to a statutory redundancy payment because she did not have two years’ service on the date her employment terminated. The complainant did not avail of the enhanced redundancy package on offer.  The respondent, as a goodwill gesture, paid the complainant an amount equivalent to what she would have received if she was entitled to the statutory redundancy payment.

The head of the overall team Manager, Mr A, stated that there were 200 people in the team. It is a shared services centre and the complainant was in one of the finance teams namely the cash receiver team. The complainant's role was a receiver analysis manager looking after the Italian market. The company developed a strategy to implement cost saving measures and to relocate some of the services outside Ireland. There were 10 people in the complainant’s team and a decision was made to relocate the whole team to a location outside Ireland because it was cheaper. All the work for the Italian market was moved to three locations Manila, Buenos Aires and Prague. The staff including the complainant who was out sick was notified in March. The work was transferred on the on the 11th of April 2018 and the complainant employment ended on the 4th of May 2018. Some of the team were kept on for a short time longer until all the work transitioned. Some of the team were successful in getting internal jobs and were not made redundant. The complainant’s work was fully transitioned by the 4th of May and that was the reason she was made redundant on that date.

The HR manager said that the company followed the normal redundancy procedures and that in such situations they always try to redeploy people before making the role redundant. The company’s careers marketplace internal portal for vacancies was brought to the attention of the complainant and they sent an email to her advising her about it. The company was proactive with employees during the redundancy notification period and the complainant was advised of interview training and the employee assistance programme. The complainant was out sick, and all communication with her was by email at the complainant’s request. The complainant was notified of internal vacancies and she was interviewed for two vacancies, but she was unsuccessful.

The complainant was made redundant on the 4th of May together with 3 other employees. Some of the team were kept on until the end of May to complete the transition of the work and 5 of them were successful in interviews for internal roles. The HR manager denied the complainant was dismissed because she was out sick.

It was submitted that the complainant’s employment was terminated fairly and wholly and mainly on the basis of the redundancy. The complainant has not been replaced and her position remains redundant. She was one of a number of employees who had their employment terminated by reason of redundancy.

Section 6 (4) of the Unfair Dismissals Act provides that:

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 one or more of the following:

……

(c) the redundancy of the employee,

It was submitted that the respondent made a business decision in 2018 to move the functions carried out by the complainant and the team to another jurisdiction. The move occurred in May 2018 and every team member’s role including the complainant’s ceased to exist in Ireland and as a result her employment was terminated by reason of redundancy. 

The complainant states that she was unfairly dismissed because of her sick leave. She said she was out sick from the company with repetitive strain injury because of an injury she suffered at work in 2017. She had been in contact with the company to provide her with a proper ergonomic workstation so that she could get back to work. She was provided with an ergonomic chair and she returned to work on a phased basis. She said her manager put her under a lot of pressure to complete the tasks and she was not able to complete the volume of work because of her arm which did not improve despite a lot of physiotherapy. It was agreed she would be transferred from the cash application team to the receivable team due to her incapacity to develop the high volume of work required because of the pain in her arm.

The complainant said that she had to train for her new job as well as continuing to do her old job and because of this, the pain returned to her arm and she was not able to continue work. On the 18th of January 2018 she went on sick leave. She attended the occupational health doctor on the 13th of February 2018 who suggested that a voice recognition software would assist her. The complainant said she contacted HR and the health advisor to know when the software would be installed but they said they had no updates from management about it.

The complainant said she was informed on the 7th of March 2018 that her role was being transferred to Manila and Prague. On the 13th March 2018, she attended a meeting with the respondent HR who told her that the voice recognition software would only be bought if she got another position in the company before the 4th of May 2018. She said she applied for two roles in finance in the company and was called for interview for one of them and she was unsuccessful. She was told did not have the accounting knowledge required. She was not called for interview for the other finance role. She said the role that was interviewed for was promised to another work colleague since December 2017. She said she checked the company’s market place portal every day, but she did not see any other jobs she could apply for. She said she was made redundant on the 4th of May 2018 along 3 other people. She said five other people were kept on and they got jobs before the 31st of May 2018 and they were not made redundant. She said that her contract should have been extended until the 31st of May and if it had she would not have been made redundant, because she would have been able to get another job within the company.

The complainant claims that claims that she was unfairly selected for redundancy because she was on sick leave. She said that other staff in the team were kept on after the 4th of May, the date she was made redundant, and they were successful in getting other jobs in the company before they were made redundant. The respondent said that the complainant’s work had fully transitioned by the 4th of May and this was the reason she was made redundant on that day. It was further submitted that not all of the functions had fully transitioned and the employees working on these functions were kept on until the 31st of May and they were successful interviews for other jobs within the company.

Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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. …

Selection for Redundancy

Sub section (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.

(4) 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 one or more of the following:

……

(c) the redundancy of the employee,

……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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 section

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

“(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—

(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 first matter I must consider is whether there was a genuine redundancy situation. I note that the work performed by the CMS cash application team was transferred to Prague and the complainant’s job no longer existed in Ireland. I am satisfied therefore that a genuine redundancy situation existed.

Section 6 (3) of the Unfair Dismissals Act cited above sets out the conditions where a dismissal for redundancy purposes may be unfair. The EAT in the case of Employee v Employer UD1451/2010 in considering section 6(3) stated:

“For this section to apply there must be other employees in similar employment to whom the circumstances constituting the redundancy applied equally.”

The complainant submits that she was unfairly selected for redundancy earlier than some of the other employees in the team because she was on sick leave. I note that 3 other employees were made redundant on the same date as the complainant. I also note that all the employees who were in line for redundancy including the complainant had an opportunity to apply for vacancies in the company. The complainant applied for 2 positions, but she was unsuccessful. The complainant submits she should have been retained in the employment like the other employees and she would have been successful in getting a position. However, I note that the complainant failed to apply for any further vacancies after her unsuccessful applications. Furthermore the 5 team members who were successful in getting posts had to do a competitive interview and were not automatically appointed to the posts. For these reasons, I am satisfied that the complainant was given the same opportunities as all the other team members to find another post within the company before she was dismissed. I am satisfied that the Complainant was dismissed for reasons of redundancy and that the selection was not unfair.

I find that the complainant was not unfairly dismissed.

Unfair Dismissal, Redundancy, Unfair Selection