ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00025226
Parties:
| Complainant | Respondent |
Anonymised Parties | A Medical Representative | A Pharmaceutical Supplies Company. |
Representatives | Caolan Doyle, Solicitor of Doyle & Company Solicitors | Managing Director |
Complaint(s):
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-00032061-001 | 08/11/2019 |
Date of Adjudication Hearing: 24/02/2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015,following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Background:
The issue in contention concerns the alleged Unfair Dismissal of a Medical Representative by a Pharmaceutical Supplies Company. It was alleged that the Respondent employer was not able to continue the Complainant in her part time role and only offered a Full-Time position as the employment going forward. |
1: Summary of Complainant’s Case:
The Complainant began working for the Respondent on the 2nd April 2018. It was a Pharmaceutical Start Up and things had progressed satisfactorily. She was employed on a 20 Hour week. In late April 2019 the Complainant asked for an Annual review which took place on the 7th May 2019. At this review, which was generally satisfactory regarding Sales Targets etc, the issue of moving to a Full-Time role was raised by the Respondents. A new product line was being introduced by the Respondent. This was an exciting opportunity and needed to be pushed/marketed by a full time Representative. A Part Time role was simply not suitable or commercially viable. The Complainant was unable to change her working situation from Part Time to Full Time and declined, after some consideration, the initial suggestion of moving to full time hours. On the 21st May 2019 the Complainant received a letter from the Respondents effectively ending her part time employment. The letter stated that “I would hope that we can renew a working relationship sometime in the future, when your children are older, and you might have more time available” Various correspondence between the parties followed including some discussions of a Commission based role and some information outlining the nature of the full-time role. However, it came to naught and the end of employment on the 30th June 2019 was confirmed. In Oral evidence the Complainant maintained that she had never actually finally ruled out the Full Time Role but, once the sparse details had been outlined to her in an email, she had a major issue with the proposed salary on offer for full time role. Pro Rata it was considerably less that her Part Time role. In her view discussions were still possible on a range of options and the issuing of the letter of the 21st May and subsequent negative e mail exchanges had been peremptory on the Respondent’s behalf. Realistic discussions had not taken palce. The Legal representative of the Complainant maintained that the Dismissal for effectively refusing to move form a Part Time to a Full Time Role was grossly discriminatory on personal /family Status grounds and as such a completely Unfair Dismissal. |
2: Summary of Respondent’s Case:
The Respondent refuted the suggestion of an Unfair Dismissal. The Complainant had been employed on a part time basis, 20 hours per week, in the first year of the Company’s operations. The Company, during this year, successfully secured the rights to a major medical brand, the XX Patch, in the Irish market. To effectively exploit this major opportunity a full-time role was required. The Complainant was offered this role. She made it clear in her response that a full-time role was not possible for her due to her childcare commitments. In response to her requests the Respondent MD, Mr. XA, undertook to discuss with his fellow Directors, based in the UK, the possibility of allowing her to continue in her Part Time role along side the new Full Time Role. From these discussions with the UK Directors this dual job situation, was not deemed to be commercially viable for a start-up company. The Revenue/Income stream simply was not there. A Commission based role was offered to the Complainant, but this was also declined. Accordingly, as only a full-time role was commercially viable and absolutely necessary for the Company the Respondent exercised their rights under the Complainant’s Contract of Employment and ended the Part Time role. It was not in any way a Discriminatory action. The Company was developing, an exciting new product line was being launched and a Full-Time job was an absolute necessity. The Complainant completely understood this commercial situation and the rationale for the Unfair Dismissal proceedings is purely seeking monetary compensation.
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3: Findings and Conclusions:
3:1 The Relevant Law. The complaint is brought under the Unfair Dismissals Act,1977. Section 6 of the Act is of primary relevance. Roughly twelve grounds for almost automatic Unfair Dismissal are listed. These range from Trade Union membership, Religious Beliefs, Civil Proceedings against an Employer, Race, Colour or Sexual Orientation of the Employee, Protected Disclosures etc. Section 6 (4) is worth quoting as it gives grounds for a “Fair” 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: (a) the capability, competence or qualifications of the employee for performing work of the kind which 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 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 any statute or instrument made under statute.
However, in any case where Dismissal is involved the Rules of Natural Justice have to be applied and a view taken by the Adjudicator of the “Reasonableness” of a Dismissal decision. Si 146 of 2000 Statutory Code of Practice on Grievance and Disciplinary Procedures has also to be looked at. An Adjudication Officer is not to substitute him or herself for an Employer’s decision making but has to be satisfied that “Fairness” applied. Guidance can be sought from other areas of Legislation -in this case The Employment Equality Act of 1998 and the Protection of Employees (Part Time Work) Act 2001. In this context Section 12 of the Protection of Employees (Part-Time Work) Act 2001 is interesting. Objective grounds for less favourable treatment. 12 12.—(1) A ground shall not be regarded as an objective ground for the purposes of any provision of this Part unless it is based on considerations other than the status of the employee concerned as a part-time employee and the less favourable treatment which it involves for that employee is for the purpose of achieving a legitimate objective of the employer and such treatment is appropriate and necessary for that purpose.
However, it has to be clearly stated that the complaint under consideration is taken under the Unfair Dismissals Act, 1977. Legal precedent is strong on the point that Parties or an Adjudicator /EAT cannot adopt a smorgasbord legal approach in Employment matters – the Act pleaded takes precedence. The legal issues above notwithstanding the evidence presented has to be reviewed. The key question has to be firstly did a Dismissal take place and then secondly where there, as per Section 6(4) of the 1977 Act above, substantial grounds, that were fair and reasonable, justifying that decision. 3:2 Review of the evidence The letter of the 21st May 2019 to the Complainant is clearly a Dismissal letter. Are there reasonable grounds to justify this decision? The principal ground advanced by the Respondent employer is an economic one – the business needed a full-time employee and there was no viable business possibility of a part time role. Section 6(4) (a) of the UD Act, 1977 the “capability” of the Employee is the argument that springs to mind. Put somewhat harshly the Complainant was, it could be argued, “Incapable” of the role now offered. However Legal precedent in this area advises extreme caution to an employer utilising this argument especially where Family / Parent on Part Time Work issues are involved, to justify a Dismissal. The first key question, as would also apply if a Redundancy was at issue, is what level of inquiry, of consideration of possible other solutions, possibly suggested by the Employee, took place? The Respondent MD indicated that in or about the end of May he discussed the situation with his fellow albeit UK based Directors and the absolute necessity of a full-time work position was confirmed. A meeting in Costa Coffee, with the Complainant, on the 28th May was raised in evidence. Here, the Complainant indicated in her evidence, that she was not completely ruling out the full-time role but wished to have a job share option or a temporary increase in her hours for the new product launch considered as alternatives. The Complainant indicated some disappointment with the reply of the 9th June which seemed to her to suggest that the new full-time role would be on a lesser salary pro rata that her current role. This was a further ground for a rejection. From reviewing the evidence, it appears that the three Directors (2 UK and 1 Irish) had come to a “Full Time” decision at the end of May but that the Irish based MD still sought to reach some form of compromise with the Complainant. Options were considered. However looking , solely for guidance , to the “Objective Grounds” arguments from Section 12 of the Protection of Employees ( Part Time Work ) Act 2001 I do not really think that sufficient objective grounds were advanced to allow the Respondent employer successfully surmount the Everest of Legal Precedents ranged against him arising from a decision that asked a Lady on a Part Time Contract to transfer to a Full Time role on pain of Dismissal. This is more the province of the Employment Equality Act,1998 which it has to be noted was not claimed under by the Complainant. In summary therefore, the next question has to be in relation to the Reasonableness of the Dismissal decision. Legal precedent indicates that the Adjudicator is not to re run an Employment process or to substitute his/her views for an Employer but to form a view as to whether or not a Reasonable employer, in the same Industrial area would come to a roughly similar decision. Having reviewed all the evidence both Oral and Written presented I came to the view that a Reasonable Employer would likely have been much more cautious of the massive Legal precedents in the Employment Equality/Part Time/Full Time work issues in this case and would have avoided issuing the letter of the 21st May 2019 until at the very least a sustained period of trial of the other possible solutions had taken place. The launch of the very significant new product, the XX Patch, was a mile stone in the Company history and having the Complainant and a full-time colleague cooperating for a period would seem to have made a Legally defensible position – more Reasonable position. Accordingly, I am finding that the Dismissal was Unfair on the “Reasonableness” Grounds. Redress will be considered below.
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4: Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 7 requires a decision that is “just and equitable having regard to all the circumstances”. The Complainant opted for Compensation as opposed to any consideration of Re- Instatement or Re Engagement which, in any event, would not be realistic propositions at this stage. Accordingly, bearing in mind all the evidence and the issues of the Complainant in re-entering the Labour Market I award the sum of € 14,000 (being approximately six months’ pay) as Redress for Unfair Dismissal. Taxation to be considered in conjunction with advice from the Revenue Commissioners.
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Dated: 17/06/2020
Workplace Relations Commission Adjudication Officer: Michael McEntee
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