Complainant

Respondent

Anonymised Parties

A Senior Sales Assistant

A Retail Store

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00030726-001

09/09/2019

The Complainant commenced employment with the Respondent on 24 February 2011 as a Sales Assistant. She was promoted to Senior Sales Assistant following two periods of temporary cover of the position in or around 2013.

In September 2019 the Complainant was made redundant. It is her claim that she was unfairly selected for redundancy and the Respondent’s case that fair procedures were applied throughout the process resulting in a fair dismissal.

The dismissal was not at issue between the parties. Both parties agreed that it was team work well together and there was no performance related issues with the Complainant.

The Complainant commenced employed on 24 February 2011 as a Sales Assistant and gave evidence that she carried out duties such as accepting deliveries, sales on till, fill out of stock on the shop floor, merchandise etc. All duties that her two other full-time colleagues were undertaking. She was promoted in 2013/201 to Senior Sales Assistant initially to cover a maternity leave for 8 months and then to cover a second maternity leave and was eventually promoted to the position permanently. The Complainant gave evidence that she took on some extra duties such as attending to emails and answering phones. She stated that she work where she was required and was trained in all areas.

In June 2019, the staff at the Respondent’s store were advised by the Store Manager that it was in financial difficult and sought to reduce hours or if that was not possible, someone would have to be made redundant. Each staff member met with the Store Manager and discussed the possibility of a reduction of hours. The Complainant gave evidence that she was willing to reduce her hours to 22.5 hours per week.

During this time, one full time Sales Assistant volunteered for redundancy and was advised of her redundancy payment. The Complainant was not advised of the total redundancy payment sum she would have been entitled to. The Complaint submitted that she was of the understanding that when this Sales Assistant volunteered this would be the end matter.

However, by letter dated, 29 July 2019, the Complainant’s was advised her role was at risk and by letter dated, 2 August 2019, she was told that her position was being made redundant. It was submitted that there was no reason why the Complainant was selected for redundancy in the letter.

On 12 August 2019, the Complainant’s solicitors wrote to the Respondent requesting an appeal to the decision to make her redundant. An appeal took place via conference call with a decision letter dated on 2 September 2019 confirming the decision to make her redundant.

It was submitted that the Complainant was not given a fair right to representation as the Respondent only allowed a work colleague to attend meetings. In the circumstances, where all staff members were alleged to be at risk, there was no reality to this.

The Complainant stated that she received her redundancy payment by cheque and returned it on the basis she was unfairly dismissed from her employment.

Cross Examination

During cross examination the Complainant was asked as to the basis she felt she was unfairly selected to which she replied, that when someone volunteer’s there was no reason why the Respondent would not go with them. The Complainant accepted that there was more detail in the 2 September 2019 letter as to the reason for her redundancy but noted this only came after the appeal.

Financial Loss

Both parties confirmed at the hearing that the Complainant worked with the Respondent on a 37.5 hours per week full time contract and received a gross hourly rate of €11.75.

The Complainant gave evidence that she applied for two positions since the termination of employment and secured a one-year fixed term contract of employment on 6 October 2019. It is noted that the contract states her hours of work as “ad hoc” with a 6-month probation period. The rate of pay is €11.00 and Sunday Premium of €0.02c per hour. The Complainant gave evidence and provided a payslip that she was worked 25 hours a week since commencing apart from the school holidays where she was given full time hours. She stated that she expected that these hours of work would continue but there was no guarantee as per the nature of the contract.

It was submitted on behalf of the Complainant that she was at a loss of €0.75 c per hour for every hour she worked and apart from school holidays she was employed on a part time basis.

The Complainant submitted that she had to make two separate requests for a reference from the Respondent, which she received on 15 October 2019.

The Complainant was also asked about her efforts to mitigate her loss and accepted that while her contract was on an “ad hoc” basis as Manager she would be required to work full time during school holidays.

It was noted that the Store Manager was the only witness from the Respondent to attend the hearing. The redundancy decision maker, the Payroll and HR Manager, was not was not in attendance nor was the Group Retail Manager who heard the appeal.  

The Respondent submitted evidence of a downturn in sales in the store during the period 2018/2019, which prompted a review of operations. HR Costs were identified as one of the biggest overheads of the business.

The Store Manager gave evidence that was never met the HR Team in the UK she did receive instructions over the phone as to how to carry out the redundancy consultation process.

The Respondent submitted that having consulted with the staff that the option of a reduction in hours was not viable and instead looked at the option of redundancy. It was submitted that the retention of three full time employees occupying managerial positions where there were only 2.72 full time positions was identified as positions for redundancy. On this basis the role of the Senior Sales Assistant was identified as the role to be made redundant.

The Store Manager gave evidence that the team of staff always worked well together. In her evidence as to the various roles, she stated, the Sales Assistants floated between the men and women’s sections, which differed from the Senior Sales Assistant who remained in the men’s section. She stated that the Senior Sales Assistant would cover the duties of the Store Manager and Store Supervisor while they were on leave / days off. She accepted that all employees, not just management, could process refunds and there was no extra training given to the Senior Sales Assistants over the Sales Assistants.

In relation to the offer of voluntary redundancy made by a Sales Assistant on 1 July 2019 and it was submitted on behalf of the Respondent that it did not request but did consider it. It was submitted that it made commercial logic for the Respondent to retain its’ full time Sales Assistants and reduce its management team by one full time employee. The Store Manager stated she wanted to keep everyone’s hours.

The Store Manager met with the Complainant on 1 August 2019 for a short meeting there it was recorded that the Complainant stated that she could not take a reduction in her hours.

There was a one to one telephone call between the Payroll and HR Manager and the Complainant and Sales Assistant regarding the risk of redundancy.

The Store Manager gave evidence that since the redundancy one part-time staff member left and she has not been replaced. She stated that the team works together to ensure standards are maintained. The Complainant’s role has not been replaced. The business continues to face financial difficulties.

It was submitted on behalf of the Respondent that from organisational chart it was clear that the Complainant was the only one in that position and fair procedures were applied. It was submitted that the role of Senior Sales Assistant and Sales Assistant were separate and distinct roles.

It was also submitted that the Complainant’s solicitor was present for the appeal and presented a robust case on behalf of the Complainant.

Cross Examination

During cross examination from the Complainant’s solicitor the Store Manager gave evidence that the Sales Assistant was paid €1 less per hour than the Senior Sales Assistant. An email of 1 July 2019 between the Store Manager and the Payroll and HR Manager advising of voluntary redundancy and the agreement by two staff members, including the Complainant to reduced hours, was presented to the Store Manager. The Store Manager accepted that if there had been a reduction in hours of the Senior Sales Assistant together with the voluntary redundancy of the Sales Assistant it would have achieved in excess of the 40 hours that was set as a commercial target to reduce HR costs. It was also accepted in cross examination that by making the Complainant redundant over the Sales Assistant resulted in a saving of €32.50 per week.

The Store Manager could not give an explanation as to why the Complainant was provided with a new contract dated 6 February 2019 when the Respondent was in financial difficulty. She stated it was between the Complainant and Head Office and all the staff were given a new contract.

The Store Manager accepted that the Complainant was not offered a position of Sales Assistant over redundancy.

The Respondent relied on the Labour Court decision in Tolerance Technologies v Joe Foran UDD1638 and EAT decision in St Ledger v Frontline Distributors Ireland Ltd [1995] ELR 160 on procedural fairness.

Sheehan v Continental Administration CP Limited (UD858/1999) and Caod v Eurobase (UD1138/2013) were relied upon by the Respondent in relation to efforts to mitigate financial loss.

In summary, the Respondent submitted that there were grounds for dismissal pursuant to Section 6(4) of the Unfair Dismissals Acts justifying dismissal “if it relates to wholly or mainly from …the redundancy of an employee.”

Section 7(2) of the Redundancy Payments Acts 1967–2014 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) not relevant, or

(e) not relevant.”

There is no dispute between the parties that a redundancy situation arose. However, the dispute relates to the Complainant’s assertion that she was unfairly selected for redundancy.

In deciding whether the Complainant was unfairly selected for redundancy, there is a requirement to take cognisance of the contractual entitlement to a defined procedure in terms of the selection of candidates for redundancy is provided for in Section 6(3) of the Unfair Dismissals Act 1977 which states:

“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 considering the fairness or otherwise of the Complainant’s selection for redundancy, Section 6(7) of the Unfair Dismissals Act 1977 (as substituted by s.5(b)(a) and (b) of the Unfair Dismissals (Amendment) Act 1993) must be considered:

“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 mission) of the employer in relation to the dismissal”.

Reasonableness of the Respondent’s conduct is an essential factor that must be considered in the context of deciding on the fairness or otherwise of a dismissal and it places an obligation on the Respondent to act reasonably in taking a decision to dismiss an employee on the grounds of redundancy. The Employment Appeals Tribunal held Gillian Free –v- Oxigen Environmenta UD206/2011: 

“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.”

It is found that there was a period of consultation between the Respondent and the Complainant. However, this was carried out by the Store Manager who accepted upon investigation, that she did not have any prior experience of the redundancy procedure and she instructed via email and telephone from the UK. At no stage did anyone from HR in the UK attend the store.

It was not until the appeal stage was the Complainant represented. It is accepted that she was uncomfortable bringing her colleague with her when she met the Store Manager on 1 August 2019 nor do the meeting notes reflect that representation was offered.

The letter of 2 August 2019 confirming the Complainant’s redundancy stated, inter alia, that the redundancy could not be avoided, there was no possibility of alternative employment or any way the redundancy could have been avoided This is not accepted as being correct.

The appeal outcome letter of 2 September 2019, the Group Retail Manager stated that all three full time Sales Assistants would have to agree to reduced hours and this was not the case. In response to the question as to why the offer of voluntary redundancy was not accepted, the letter states that the Respondent did not undergo a process of voluntary redundancy. There is reference to taking into “account a number of criteria” and that particular Sales Assistant had “knowledge, skills and experience that are too valuable to the stores to be able to accept her offer.”

Despite this letter, there this was the first-time reference to a selection criterion was made and the Complainant had no further avenue to challenge this before her redundancy was confirmed.

It is noted in the Respondent’s submission that the Sales Assistant role was “a junior role” with “different duties and skills to the Complainant”. This does not sit with the assertions in the letter of 2 September 2019.

There was no direct evidence presented by an appropriate witness of an agreed selection criteria or process nor was there evidence presented as to the considerations given to the offer of voluntary redundancy at the hearing.

The Respondent’s submission simply that the voluntary redundancy was given “due consideration”. The email from the Store Manager to the Payroll and HR Manager is evidence that the offer was communicated only.

Based on the Store Manager’s evidence it is not accepted that the role of Senior Sales Assistant and Sales Assistant were separate and distinct roles.

It is not accepted as stated in the Respondent’s written submission that it determined the role of the Senior Sales Assistant “had the least potential to disrupt the running of the business.”. This assertion did not feature in any of the evidence or the Respondent’s correspondence to the Complainant.

It is found that the Complainant initially did offer to reduce her hours, but this appears to have been retracted as recorded in the signed minutes of the 1 August 2019 meeting with the Store Manager.

Regardless of this, there was no logical reason or evidence presented as to why the offer by the Complainant and/or her colleague to work reduced hours together with the voluntary redundancy of a full time Sales Assistant was not a viable option when it exceeded the target of a reduction of 40 hours per week. It is found the Respondent did not act fairly and reasonably in dismissing the Complainant.

Financial Loss

The Court in Courtaulds Northern Spinning Ltd v Moosa [1984] I.R.L.R. 43 held:

“.it is clear that the new employment has endured log enough to be protected by the unfair dismissal legislation the Industrial Tribunal should treat the loss flowing from the original dismissal as coming to an end at the start of the new employment.”

Courtaulds has been applied in this jurisdiction by the EAT in Susan O’ Kelly and WYG Engineering Limited [2013] 24 E.L.R.279 where it stated re the decision; “it seems to the Tribunal that this is a useful guide when considering the permanence of further employment”.

The Adjudication Officer further considered the application of Courtaulds and O’Kelly in the recent case of A Deputy General Manager v A Hotel, ADJ-00017826 where temporary employment was obtained:

“In the herein case, the further employment was not permanent in nature. Thus, while the amount of earnings from it would be considered in mitigation of loss, it did not stop loss arising from the unfair dismissal.”

Having carefully considered the oral and written submissions and evidence of both parties, I find that the complaint is well founded and make an award in the sum of €8,171.88 for financial loss.

Key Words: Unfair Dismissal – Redundancy – Unfair Selection- Financial Loss