Complainant

Respondent

Anonymised Parties

An Office Administrator

An Architectural Practice

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-00031254-001

27/09/2019

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

CA-00032427-001

20/11/2019

The complainant was initially employed by the respondent in August 2017, initially om a part-time basis but she was made full-time in October 2017. Her employment ended in March 2019 (the precise date is in dispute) and at that time she was earning €28,000 per annum.

She disputes the validity of the redundancy which was the stated reason for the termination of her employment.

The respondent is an architectural design, planning and engineering practice established in 2014.

In March 2019, the month in which the complainant’s employment was terminated, there were four employees; an architectural technician, two senior architectural technologists and the complainant, who was the office administrator.

The complainant was provided with a contract of employment on August 17th, 2017, which was amended on October 24th, 2017. At no stage did the complainant raise any issues about her contract.

The respondent had reason to raise the complainant’s performance with her in late 2018 following which she submitted a grievance. In the course of discussions on the grievance she said that her workload was excessive and requested a review of her duties, as a result of which there was a distribution of some of her roles to co-workers.

This disposed of the grievance which was fully resolved in December 2018.

The respondent company experienced very significant loss of revenue in the first quarter of 2019 which led to a review of its staffing needs.

The complainant was the only member of the staff who did not have a direct, revenue earning role and in considering redundancy her position was identified as being at risk.

This was communicated to her at a meeting on March 12th with two of the Directors and further set out in a letter on March 29th, 2019.

This gave particulars of loss of contracts equivalent to 20% of the company’s revenue, and further losses which brought this to 30% of revenue. It went on to advise that her position was selected for redundancy.

The complainant had insufficient service to qualify for a statutory redundancy payment but was given an ex gratia payment equivalent to one month’s salary.

The respondent says that the redundancy was objectively justified and procedurally sound.

The complainant says that she was not given the full reason for her redundancy or the basis for her selection, despite asking for these before the termination of her employment and being promised that she would.

In particular she did not see any details of the review that concluded with the decision to outsource the administrative and bookkeeping function.

It was her view that these were vital functions to retain within the company and someone would have to continue to undertake them.

She also notes that the decision to make her redundant followed within two months of her having submitted her grievance. She had raised fresh issues in January 2019 about fire safety to which she received no response.

The failure to provide her with the information she requested made it more difficult for her to find new employment.

Regarding her complaint under the Terms of Employment (Information) Act, 1994 her contract did not contain any disciplinary and grievance procedures or procedures related to termination of employment as required by the Unfair Dismissals Act.

There was other detail missing also, including her hours of work and other requirements of the Act.

Following the hearing the complainant made a further written submission which mainly raised matters not related to the complaints above.

It is clearly not in dispute that the complainant’s employment was terminated. The respondent justifies the termination on the basis that it was a redundancy.

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.

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 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.

In respect of the complaint of unfair dismissal the respondent’s position is as set out above.

I accept the validity of the submissions regarding the financial challenges to the business, and the possibility of redundancy was a clear, if unfortunate consequence in these circumstances.

But it is one which is contemplated in the situations set out above; notably 2 and 3.

The question of the selection process then arises.

In that regard, the size and the nature of the business is a factor, and the number and roles of its employees. The respondent stated essentially that shedding professional staff (the architectural technician or two senior architectural technologists) would be self-defeating in that it would rob the business of the resource most likely to enable it to recover.

It would be quite wrong to say that support staff in such businesses do not contribute to its turnover and profitability by their work and lines occasionally drawn between ‘frontline’ and other workers in an enterprise fail to take account of that reality. This was not disputed by the respondent at the hearing, but it said that it did in fact look at all roles before reaching a decision.

It is doubtful if this was a very extensive exercise as the complainant was always the most likely target, for reasons set out above.

The respondent did engage in a consultation process with the complainant which while brief was proportionate to the circumstances. While the complainant referred to the lack of representation and appeal in the process her main criticism was that she should not have been selected for redundancy at all and that it was some form of retaliation for having raised the earlier grievances.

I reject the former argument on the grounds that the respondent has made out a good case that there was a genuine redundancy situation and in general terms justified her selection.

Likewise, her second argument is without merit for the same reason.

While there was some room for improvement in the way the matter was handled; specifically, in respect of the information requested by the complainant I do not consider it sufficient to render the redundancy selection process unfair.

In that respect her complaint under the Unfair Dismissals Act is not well founded.

In respect of her second complaint she says she did not receive a copy of the various procedures specified in the Unfair Dismissals Acts, and this is borne out by a review of her contract. She alleges other breaches.

I accept her case in this regard. These may be minor details, but the Act requires timely compliance with its provisions and updating when there are changes.

The complaint under the Terms of Employment (Information) Act is well founded.

For the reasons set out above, in respect of complaint CA-00031254-001 I find that the complainant was not unfairly dismissed.

Complaint CA-00032427 is well founded and I award her €750 in compensation for the breach of her rights under the Act.

Unfair Dismissal, Terms of Employment