ADJ-00022029

Complainant

Respondent

Anonymised Parties

{An Administrative Assistant}

{A Charity}

Representatives

Nicola Coleman Nicola Coleman

Sarah Fagan Adare Human Resource Management

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-00028850-001

05/06/2019

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

CA-00028862-001

06/06/2019

The Complainant was employed by the Respondent from 23rd April 2007 to 21st January 2019.

CA-00028850-001

The Complainant was invited to a meeting on 19th September 2018 for a chat about the future of the office. She was told it was a preliminary and exploratory meeting. She was told there was no need for representation and her union representation was not available. At the meeting she was informed the office was closing, her role is redundant and there are no redeployment opportunities. No selection criteria were forthcoming.

The Complainant was requested to sign a form agreeing to the transfer in her role to the new office on 7th November 2018 to be signed within 2 days. She was concerned as there was already a centre administrator in the new office. She was informed there would be no change to her terms and conditions but no job description was given to her. Parking would not be available for her and it was a considerable distance from her current workplace, involving a 2 hour bus journey one way. There were no discussions regarding the commute or flexible working, which was unreasonable.

On 20th November 2018 the Complainant was notified of her formal redundancy and a statutory redundancy payment only. The atmosphere was bad at the following meeting on 27th November 2018. The HR Manager confirmed money was allocated by their main funder to keep the Complainant’s office open, but all staff would be transferred to the new office. The Complainant was told she could not remain based in the office nor would she be rostered there as other staff. The Complainant felt blamed for the negative press coverage.

The HSE informed a service user on 4th December 2018 the office would not be closed and services would be unaffected as staff will be rotated and a press release issued saying the office would not close. The decision to keep the office open changed the goalposts and removed the reason for the Complainant’s redundancy.

The Complainant did not receive legal advice or advice from her Trade Union official on the agreement. She received the agreement on 3rd December 2018 and signed this under duress from the HR Manager with a deadline to return of 5th December 2018, with the threat the ex-gratia payment would be withdrawn.

The Complainant was the only member of staff who did not have a mobility clause in her contract of employment. The deadline was subsequently extended until 6th December 2018.

She did not have adequate time to obtain legal advice or advice from her trade union, and felt pressurised to sign the agreement on 6th December 2018 as she could not afford to lose the ex-gratia payment. She did not understand the nature and effect of the Agreement. The Complainant was under psychological distress and could not give informed consent. The Complainant relies on Cullinan v Reagecon Diagnostics Ltd (UD458/2105), and Rynn v Reagecon Diagnostics Ltd (459/2015). In Conneely & Anor v DHL Supply Chain (Ireland) Ltd (359/2013) the Employment Appeals Tribunal were not satisfied the requirement for informed consent was met by the Agreement stating the employee “was given the opportunity to take independent legal advice”. The statement in the Agreement that she received legal advice from her union official is incorrect and the criteria in Hurley v Royal Yacht Club [1997] 8 ELR 225 has not been met.

The office remains open. New staff have been hired in the interim. The services are still not being provided from the office where the Complainant worked. Some other staff are still based in the office and are not being rotated. 

CA-00028850-001

The Respondent denies the complaint of unfair dismissal. The Respondent says the Complainant was dismissed due to redundancy which is a genuine dismissal and the procedures used were correct.

The Respondent relies on the Compromise Agreement signed by the Complainant on 7th December 2018 which waives future claims and says the Workplace Relations Commission does not have jurisdiction to inquire into the complaint.

The Agreement provides:

“The Employee confirms that they have had the opportunity to receive independent legal advice with regard to both the meaning and effect of entering into this agreement and signing this document and has taken advice from their trade union. The Employee further understands and accepts the contents of this document in full”.

The Respondent relies on Hurley v Royal Yacht Club [1997] 8 ELR 225 which requires the agreement must specifically state the legislation the employee agrees to waive claims under and the employee is adequately advised. The Respondent disputes the Complainant was coerced into signing the Compromise Agreement and says her Trade Union official was involved in the consultation process from its commencement on 17th September 2018. On the basis the Complainant sought to avail of voluntary redundancy the Respondent provided the Compromise Agreement and the Complainant procured a solicitor to understand the meaning and effect of the agreement in accordance with clause 7.

The Respondent reviewed services in 2017 in the context of a challenging funding situation. The Respondent rationalised premises and costs and merged 2 services to a new centre. A consultation process took place from 19th September 2018, with 3 further meetings taking place in October and November.

The Respondent relies on Sunday Newspapers v Kinsella & Anor that the appropriate legislation to be taken into account by the employee is listed and it was not necessary that appropriate advice is professional legal advice in writing. The Complainant was notified that she was entitled to bring a work colleague or union representative to the meetings. In nearly all meetings the Complainant’s union official was present. The Respondent engaged in a transparent manner and examined all alternatives to redundancy including an offer of redeployment to another office and voluntary redundancy. Formal notice of redundancy was given on 20th November 2018.          

It was at the Complainant’s request that compulsory redundancy be parked so voluntary redundancy and redeployment be considered. This was agreed. An offer of voluntary redundancy was made on 29th November 2018 and time-line for signing extended to 6th December 2018. The Complainant did not say she did not receive advise on the Compromise Agreement, and the Respondent understood that she was fully informed as to the meaning and effect of the Compromise Agreement. The Complainant sent emails to them regarding legal advice she was receiving on the matter, and the Complainant had informed consent and freely and willingly entered the agreement. The Respondent relies on Healy v Irish Life Assurance (DEC-E2015-002).

The Respondent relies on S6(4) of the Unfair Dismissals Acts 1977-2015 and says the dismissal resulted wholly from redundancy of the Complainant’s role and British Leyland UK (Ltd) v Swift [1981] and the statement by Lord Denning:

“The correct test is was it reasonable for the employer to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonable taking a different view.”

The Respondent submits is it not for the Workplace Relations Commission to establish the guilt or innocence of the Complainant but rather to consider that a reasonable employer would have done in the circumstances.

The Respondent contends that its actions in re-structuring the office where the Complainant worked was contingent on the integration of services in the new office which was to improve the access and reach of the services. All other staff from the office transferred to the new premises. The dismissal was fair and fair procedures were followed in the absence of the employee’s willingness to consider redeployment.

CA-00028850-001

I have heard and considered carefully the oral and written submissions of the parties. The Complainant has confirmed the correct title of the Respondent is set out in CA-00028850-001.

Section 13 of the Unfair Dismissals Acts 1977-2015 provides:

“A provision in an agreement (whether a contract of employment or not and whether made before or after the commencement of this Act) shall be void in so far as it purports to exclude or limit the application of, or is inconsistent with, any provision of this Act.”

Judge Buckley in Hurley v Royal Yacht Club [1997] 8 ELR 225 considered the law in relation to a compromise agreement executed by an employee which did not specifically set out the waiver of his rights in relation to employment protection legislation. The Judge affirmed that employers and employees can compromise claims under the Unfair Dismissals Acts 1977-2015 but this must be in circumstances where the person has an informed consent. The waiver of legal rights must specifically refer to the various Acts applicable, and the employee should be advised in writing that he should take appropriate legal advice as to his rights. This was endorsed by the High Court in Sunday Newspapers Ltd v Kinsella & Anor [2008] 19 ELR 53.

I accept the evidence of the Complainant that she did not receive either legal advice or advice from her trade union on the terms of the Compromise Agreement. In addition, the Complainant was impacted with a relevant medical condition at the time she signed the Agreement. Accordingly, I have jurisdiction to inquire into this complaint.

Section 6 (1) of the Unfair Dismissals Acts 1977 as amended provides that a dismissal of an employee shall be deemed to be an unfair dismissal, unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6 (4) (1) of the Acts provide that without prejudice to the generality of Section 6 (1), the dismissal of an employee shall be deemed for the purpose of the Act not to be an unfair dismissal if it results wholly or mainly from one of the following:

(a)    the capability, competence and qualifications of the employee for performing work of the kind that he was employed by the employer to do:

(b)    the conduct of the employee,

(c)     the redundancy of the employee, and

(d)    the employee being unable to work or to continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under statute or imposed or under any statute or instrument made under statute.

Section 6 (1) (6) of the Act provides in determining whether the dismissal of the 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.

The onus lies on the Respondent to show the dismissal of the Complainant is a genuine redundancy. Against a significant drop in income the Respondent restructured its service. This plan was being put in place over a number of years prior to the Complainant’s dismissal but she was unaware how this would impact her role.

A witness from the Respondent gave evidence that the lease of two existing offices were expiring and the services were being relocated to a new centre for better use of resources. The office where the Complainant was based has moved to appointments, is not a drop in centre and does not provide the same type of service. There is no requirement for a centre administrator to be present. The other two colleagues of the Complainant relocated to the new centre.

The Complainant disputes there was any consultation regarding alternatives to redundancy, and the decision was a fait accompli. There were other options for her that were available which were not considered. Part of her role is being carried out by another worker. The travel was too difficult for her due to the length of the commute. She seeks reinstatement.

I accept the Respondent’s evidence that it was necessary to reorganise the services provided and consequent re-location of staff. Due to the intervention of a funder, the office which the Complainant worked in remains open, but the role of centre administrator is no longer required. The Respondent accepts the consultation process was not perfect, nonetheless all staff were offered redeployment in the new centre. In the circumstances, I find the dismissal of the Complainant was due to redundancy and was not unfair.

CA-0002862-001

A duplicate complaint to CA-00028850-001 was filed by the Complainant against the incorrect title of the Respondent. My decision has already been given in CA-00028850-001 against the correct Respondent and accordingly the complaint of unfair dismissal in CA-0002862-001 is not upheld. 

CA-00028850-001

The dismissal due to redundancy was not unfair and the complaint fails.

CA-0002862-001

My decision has already been given in CA-00028850-001 against the correct Respondent and accordingly the complaint of unfair dismissal in CA-0002862-001 is not upheld.

Preliminary application no jurisdiction, compromise agreement executed,