Complainant

Respondent

Anonymised Parties

Assistant Head Grower

A Horticultural business

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-00023672-001

30/11/2018

The Complainant commenced employment as an assistant head grower with the Respondent in June 2015 on a 9-month Internship and worked as an intern under the JobBridge programme. She progressed into a permanent position from 6 March 2016 until she was dismissed by way of redundancy on 27 September 2018. The Complainant was paid €25,000 annually.

The Complainant tells of the important role she played in the development of the business in the period that she was there. She provided a full suite of duties that she undertook on behalf of the Respondent outside the core role of food growing activities along with the head grower. The Complainant explained how the food produced in the garden is used by the Respondent’s café and she noted with satisfaction how the business went from strength to strength at the time she was working there from humble beginnings.

The Complainant said that the Respondent has two sites for growing vegetables, and she worked between the two sites. She said that it had a 65-seater café and had three full time and two part time staff in addition to a head chef and two assistants. The Respondent also provided growing courses, cooking courses and other horticultural courses.

The Complainant said that on 13 September 2018 she was invited into a meeting with Ms. A, the Centre Manager, and Mr. B, the Financial Manager, where she was informed that she was being let go. The Complainant said the Respondent cited bad weather conditions earlier in the year, which resulted in the harvest being half of what was anticipated, and that the Respondent had its finances reduced and that they could not sustain two Gardeners any longer.

The Complainant maintains that she pointed out that the café was still thriving and but for the poor weather the business would recover. She said that Ms. A said that the reduction in income from the growing area meant her employment was not sustainable any longer. The Complainant said that she was told she did not have to work her notice if she so wished and all money owing would be paid to her. She was also informed that the Respondent would be doing some Horticultural courses in the future and would be in contact with her.

The Complainant said that she could have been kept on and if not in the garden in one of the other roles in the Respondent’s organisation, including the café.

The Complainant claims that the circumstances that existed were unfair in particular in relation to her selection for redundancy under Section 6(3) of the Unfair Dismissal Act, 1977. The Complainant said that there is an onus on the employer to show that a redundancy situation existed and that a reasonable process was adhered to with the guiding principles of natural justice.

The Complainant cited a number of precedent cases from the Employment Appeals Tribunal and the Labour Court in support of her application. Including UD1255/2009 where it was found that there was no proper consultation with regard to financial difficulties and the other alternatives considered or canvassed. In UD193/2015 where there were no notices of the Respondent’s intention to make the Complainant redundant, there was no opportunity to avail of a presentation or right of appeal. In UD949/08 the process was unfair and failed to include the employee in the process or consider alternative employment.

In conclusion and summary, the Complainant said that she was not advised of the precarious situation her role was in or the possibility of redundancy until she was summoned to the meeting on 13 September 2018. There was no consultation, she was simply made redundant there and then. She was not afforded to bring representation. No alternative employment options were considered. She claims that her redundancy was directly due to poor crop return following bad weather, the Respondent failed to consider putting her on short time or any other alternatives. She was not given an opportunity to appeal.

The Complainant claims that her losses on foot on the dismissal are in the region of €8,800.

The Respondent is a small not-for-profit organisation established in 2008 that supports people to grow healthier food for a sustainable life. It said that its growing headquarters opened in October 2016 and is the showcase of its business. It said that its garden is the critical part of its operation and is used as a training base for people to demonstrate how to grow food and it in turn provides fresh fruit and vegetables for its café.

The Respondent said that as a non-for-profit social enterprise it does not have an operating surplus to draw from and everything, particularly income, needs to be carefully balanced year to year. The Respondent said that in 2018 it came under significant pressure due to the higher than expected costs related to the construction and landscaping of its growing headquarters.

It said that the management team and voluntary board discussed cost saving measures to avoid making a loss in that year and to ensure its financial sustainability. It said that it carried out a number of cost saving measures including disposing of a warehouse facility and surrendering a lease on office space. It was decided that several redundancies, including the Complainant’s role, was necessary. The Respondent said that prior to that decision, it considered the possibility of putting the holders of the roles on short time. However, from its calculations it determined that that would not achieve the necessary cost savings required.

The Respondent said that once its headquarters opened in 2016 the following one and half years was spent developing and landscaping those gardens. It said that during that time it required two gardening roles, a head grower and the Complainant who was assistant head grower, who supported the head grower along with other responsibilities. The Respondent said that the produce from the gardens in turn supplemented the cost of those working in the garden. The Respondent said that following the financial pressure in 2018 and the reduced workload in the gardens, as much of the work was completed, it decided that it could not support two gardeners. It said that the head grower role within the organisation is mission critical and the holder has over 30 years’ experience in organic horticulture production and education. It said that the role of assistant head grower has not been replaced.

The Respondent said that the redundancy process comprised both informal and formal meetings and written correspondence. The Respondent said that management met with the Complainant on 13 September 2018 and she was told of its decision to make the role of assistant head grower redundant. It said that it then wrote to the Complainant on 20 September 2018 to inform her that the role was made redundant. It said that the position was made redundant on 27 September and she was not required to work out her notice and was paid her redundancy shortly after that.

The Respondent said that the Complainant was offered assistance to help her find new employment, but she ignored/refused that assistance.

The Respondent said that the Complainant never raised any question, concern or grievance about her redundancy during the process and it was not until 7 December 2018 when this complaint was received.  

Section 7 (2) of the Redundancy Payments Act, 1967, defines “dismissal by reason of redundancy” 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—

(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, or 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.

It is clear from the evidence presented at the Hearing that the Respondent, was experiencing significant financial pressure and had to made substantial decisions to redress this. The evidence further indicates that a course of action was put in place to reduce costs and that its decision on staff redundancy was made after prolonged consideration and reflection.

The evidence presented clearly shows that, in order to secure the ongoing viability of the business, the changes considered had to be implemented. The Respondent suggests that it looked at where it deemed to have additional resources and that was deemed to be in the garden, I understand that substantial development had been carried out here in the preceding years to transform the garden/growing area and the same level of resources may not be necessary. Unfortunately, this is where the Complainant worked and as she was assistant head grower, she reported into the head grower, who the Respondent said had an additional strategic function within the organisation and ultimately it needed this position to remain and it decided to make the Complainant’s position redundant instead.

I note the Complainant argued that due to the exceptional poor weather that year, it was obvious there would be a negative consequence on the garden/growing area and yield. However, the Respondent should have looked at other options and could have considered temporary measures to allow for the situation to improve and it cited possibly short-term layoff, or moving the Complainant to work in the café, which was doing good business.

With regard to the case before me, I must have regard to the substantial case law that has arisen in this area, I note the decision of the EAT in St Ledger v Frontline Distributors Ireland Ltd UD 56/1994 [1995] E.L.R. 160 where is said that the statutory definition of “redundancy” has two important characteristics, namely “impersonality” and “change”.

The impersonality element of redundancy was dealt with by Charleton J. in JVC Europe Ltd v Ponisi [2012] E.L.R. 70, where he described it as the “economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner”.

Following on from this I note the EAT decision in Kinga Byrne v Dublin Institute of Technology RP2260/2009 where the EAT found that: “it is clear that “budgetary constraints” involved a cut in staff numbers and would therefore fall within the definition of redundancy. It is also clear that it was this factor that led to the non-renewal of her fixed term contract”.

Having considered the evidence in the case, I note that there was a genuine financial cloud over the Respondent’s operation and the decision regarding redundancy was totally predicated on that fact. Accordingly, based on Subsection 7(2) of the Act, as referenced above, the circumstances would, therefore, in my view, represent a genuine redundancy situation.

Based on the above conclusion, I now proceed to consider the Complainant’s claim of unfair dismissal in the context of a redundancy scenario.  

Section 6(1) of the Unfair Dismissal Act, 1977, states that:  

“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 are substantial grounds justifying the dismissal”.

 Section 6(4)(c) of the Unfair Dismissals Act 1977 further clarifies the situation in relation to redundancy by stating, inter alia, 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 ... the redundancy of the employee…”

 Section 6(7) of the Act states as follows:  

“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, 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….”  

Based on the legal position as set out above, a dismissal is deemed not to be unfair if it results wholly or mainly from redundancy. However, arising from this, the burden of proof rests with the Respondent to establish, the two step test, in the first place, that the dismissal was wholly connected to redundancy and, having done so, to justify the selection process whereby the employee in question was selected for redundancy.  

As already stated above, I am satisfied that this case represents a genuine redundancy situation. Therefore, it is necessary to consider if the process, by which the Complainant was selected for redundancy, was fair, reasonable and objective in its application.  

I note that both parties presented supporting case law in relation to their respective cases. I note in Boucher v Irish Productivity Centre [1994] ELR 205 the EAT discussed the burden on an employer in such circumstances where it said that the Respondent must “establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made”.

In the case before me for consideration, I note the business was not doing as well as was needed generally. I accept that hard decisions were made to make savings and that included possible multiple redundancies across the business. I note that the café was doing reasonably well and was busy, however, it was the garden/growing area what was down, and due to the considerable work undertaken in that area in the past the Respondent felt that this area could survive with a reduction in the workforce.  

The Complainant claims that she was carrying out an extensive range of duties in her role as assistant head grower and I accept that evidence that she was more than capable and professional in carrying out her duties. However, it is clear that she reported into the head grower and it was accepted that this role was higher up in the hierarchy within the Respondent and I have heard and accept that it was a strategic position and although the Complainant was a longer serving member of the Respondent’s team, the head grower post was necessary. Accordingly, this is the Respondent’s reason why the Complainant’s position was selected for redundancy. In the circumstance of the case I find it both reasonable and appropriate that the head grower should continue in employment and the Complainant, who is the most junior within the hierarchy, for operation purposes, would be chosen for redundancy.

The Complainant also states that the Respondent had access to two additional workers from a local Community Employment (CE) scheme, and that her redundancy was softened by them being available to work in the garden area. She argued that this was not what was supposed to happen under the conditions of the CE scheme. The Respondent disputes this claim entirely. I would totally agree that workers from a CE scheme should not displace a full-time worker and it would create an unacceptable situation if that was the case. The question that I have to consider here is whether the redundancy situation existed because of the additional workers, via the CE scheme, were available to fill the role where an employee can be let go or, was the redundancy situation existing for a genuine reason, notwithstanding the two CE scheme workers. I have noted above that the redundancy situation was genuine due to financial situations rather that anything else. I note the raft of redundancy, stretched across this very small organisation. I note that the assistance head grower post was not filled, even after the two CE workers stopped working with the Respondent. I therefore do not accept that this situation played into the Respondent’s decision to make the Complainant’s post redundant.

I must now consider whether the selection process was unfair. I must note that the suggested lay-off or reallocation of the Complainant appears to have been considered but that it would not meet the Respondent’s needs. I cannot see that the reallocation of an assistance grower to a completely different role as a café worker would be meritorious when another café worker would then have to be made redundant, when it is clear the café was operating well and it is evident that the position in the garden is the post that is more appropriately suppressed.

Having carefully listened to the evidence and the submissions of both parties and, in the absence of any other credible alternatives available as cost saving measures, it is difficult to see what other options the Respondent had that would have averted the redundancy situation.

When assessing the fairness or otherwise of the Respondent’s decision to make the Complainant redundant, I am of the view that it is both necessary and appropriate to consider the situation and there were few other options available to the Respondent.

In this regard, I note that the Employment Appeals Tribunal held in the case of Gillian Free –v- Oxigen Environmental [UD206/2011] that: “When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy. The employer must follow the agreed procedure when making the selection. Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.”

Taking all of the above into consideration, I find that a genuine redundancy situation existed and that the Respondent’s selection of the Complainant for redundancy was reasonable and objective in all of the circumstances that pertained. On that basis, I am satisfied that the termination of the Complainant’s employment resulted wholly from redundancy. Consequently, I find that the Complainant’s claim for unfair dismissal is not well founded.

The Complainant was critical of the lack of consultation and engagement by the Respondent with the Complainant. The Respondent pointed to the interactions that the parties had and the lack of resistance from the Complainant at the time. I said that it was only after it received the complaint that it realised that the Complainant was not happy with the redundancy situation.

I note the decision in the case of Nigrell v Sandra Graham UD690/2013 the EAT considered the consequence of a failure to consult and stated, in particular, where it was said that,

“The Respondent’s representative accepted that there was a valid redundancy situation and that the Respondent’s complaints related to a failing on the employer’s part in affording fair procedures.

The Tribunal was not persuaded by the Respondent’s arguments that in all instances an employer must

(a) afford the affected employee an opportunity to respond to the proposed redundancy or

(b) facilitate the employee by having a representative present or to have the employee’s views on the redundancy fairly and impartially considered or

(c) have a right to appeal the decision to make the employee redundant.

Such may be good and prudent practice and is probably found in larger enterprises. However, the Tribunal is not persuaded that such prudent practices are mandatory with automatic consequences for employers who do not follow them. Such practices may be negotiated or contractually provided for but in the instant case they are not legally required to be recognised such that a failure to do so recognise would result in a genuine redundancy being considered as an unfair dismissal. For that reason, the Tribunal disagrees with the findings of the Rights Commissioner and determines that the employee was lawfully dismissed by reason of redundancy.”

Applying the above principles from the cited case law to the circumstance of the case that is before me for consideration, I am satisfied that the failure of the employer to consult the Complainant prior to making the decision to make her redundant does not automatically render the dismissal unfair. I am satisfied that in certain situations that a high level of engagement is right and proper, and the Respondent would be remiss, in those type of cases, to avoid that. However, in small ventures with little or no scope and having considered the there was a genuine redundancy situation and no scope to redeploy that the same level of engagement does not deem the dismissal as unfair. For all the above reasons, I am satisfied that the Complainant was dismissed for reasons of redundancy and that the selection was not unfair in the circumstances of the case.        

I find that the complaint is not well founded.

Unfair Dismissals Acts - not well founded