Complainant

Respondent

Anonymised Parties

Receptionist Administrator

 A Medical/Dental Practice

Representatives

Cathy McGrady BL instructed by Farrell McElwee Solicitors

Barry O ’Mahony BL instructed by ARAG Legal Protection

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-00027069-001

14/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00027069-002

14/03/2019

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

CA-00027070-001

14/03/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00027070-002

14/03/2019

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

CA-00029475-001

04/07/2019

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00029475-002

04/07/2019

The issues in contention concern the alleged Unfair Dismissal of the Complainant on the grounds of Redundancy.  The employment commenced on the 13/03/2017 and ended on the 13/03/2020 or the 22/03/2020 (a disputed fact).

A significant opening legal argument took place on this point.  The proper jurisdiction of the AO to hear the case, as the Complaint was first lodged with the WRC on the 14/03/2020, allegedly before the date of the dismissal, was strongly contested.

1:1       UD Act, 1977 Complaints CA - 00027069-001 & CA - 00029475-001

A comprehensive Written submission was made and supported by Oral Evidence.

The essence of these Complaints is that the Dismissal of the Complainant, which is not denied, was based on a spurious Redundancy ground. No Redundancy situation, as properly understood in Law or Practice, existed. It was a convenient cover story to justify an Unfair Dismissal.

The Complainant was asked to attend a meeting on the 13th March 2020 where she was informed that her position was being made Redundant. She was denied Fair Process, was not informed in advance of the nature of the meeting, was not informed of any Representation Rights and there was no attempt at discussions regarding alternatives/options in regard to her alleged Redundancy.

Additional Employees have been hired since her Departure in Receptionist roles which she was eminently qualified for. In addition, she was not informed of any avenue in which she could formally Appeal her Redundancy Dismissal.

Her Legal representative noted, among others, the case of Pansi v JVC Europe Ltd [2012] ELR 70 where she quoted Charleton J and his comments regarding the need for “Impersonality and the dangers of “Vagueness” where Redundancy is being cited as a defence in an Unfair Dismissals case.

1:2      Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00027069-002; CA-00027070-00; CA-00029475-002

The Complainant alleged that she did not receive her correct period of Statutory Notice.

2:1      UD Act, 1977 Complaints CA - 00027069-001 & CA - 00029475-001

A comprehensive Written submission was made and supported by Oral Evidence.

Taking the Opening Arguments, on time Limits, as discussed above, the Respondent’s Substantive case was that the Ending of the Complainant’s employment was a clear case of Redundancy.

The Complainant had been engaged to provide “Lunch Time” Reception cover for the Medical Practices concerned. Due to pressure on the finances of the Respondent it became clear that the position/role occupied by the Complainant was a “luxury” the Company could no longer afford. It was accordingly declared Redundant.  Respondent Financial Records / Balance Sheets were submitted in supporting evidence.

The Respondent had examined all other options but could not find suitable alternative employment for the Complainant.

Employees recruited post the Complainants ending of employment were for specific roles, including a fulltime receptionist role, that the Complainant would not have been able to fulfil. The Complainant had made it clear, on numerous occasions, to the Respondent that she was unable, due to her personal circumstances, to fulfil a full-time role.

 2:2        Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00027069-002; CA-00027070-00; CA-00029475-002

Detailed Pay Slips were submitted in evidence to demonstrate that all proper payments, including Statutory Notice, were made to the date of the 22nd March 2020. The final pay was adjusted downwards to reflect an over payment of Holiday Pay.

3:1      UD Act, 1977 Complaints CA - 00027069-001 & CA - 00029475-001

The relevant Law.

In this case the relevant Law is The Unfair Dismissals Act ,1977 and specifically Section 6 with particular reference to Sub sections 1, 3 ,4 and 7.  and S.I. No. 146/2000 - Industrial Relations Act, 1990 (Code of Practice on Grievance and Disciplinary Procedures) (Declaration) Order, 2000 is also relevant.

Unfair Dismissal Act ,1977 Section 6

6

6.— (1) 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 were substantial grounds justifying the dismissal.

(3) 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.

(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.

 (7) 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 F48[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 omission) of the employer in relation to the dismissal, and

( b ) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.]

3:2      The evidence presented

Respondent Oral evidence was given by the Principal Medical Practitioner, Dr A, and the Office Manager, Ms. B. The Complainant gave Oral Evidence. Both sides were supported by considerable documentary evidence and were subject to full oral cross examination from the respective Legal Representatives. Covid 19 restrictions possibly abbreviated matters but the key issues were adequately covered. The Oral evidence was heartfelt and credible albeit somewhat contradictory between the Parties.

In summary it was clear that the Respondent business was experiencing some financial strains in early 2020. These were challenging but not especially of a potentially business closure situation.

The “Lunch Time “cover role occupied by the Complainant was clearly a “nice to have “in an ideal situation but was not business critical. The question of the Complainants flexibility and availability for other work, especially a role involving greater attendance hours, was strongly contested by the parties.

A lunch in June 2018 between the Office Manager, Ms B, and the Complainant, was the subject of considerable contested discussion.  The Respondent clearly believed that the Complainant’s flexibility, especially regarding full time work or more extended hours, was limited and was influenced by the Hours she could work while in receipt of a Carers Allowance, for her child, from the Dept of Social Protection. The Complainant denied this and indicted that she was open to all work scheduling suggestions.  It was argued by the Complainant’s Legal Representative that a Lunch in the Summer of 2018 was an informal affair and could not be the basis of an employment decision almost a year later.

Various other loose conversations and office banter regarding permanency/hours of work were cited by the Parties.

Reviewing the oral evidence and the cross examination of same I had to come to the view that the Employment relationship was characterised by a lot of easy personal informality. It was clear, however, that the Complainant was limited in her work availability and flexibility while on Carer’s Allowance. This did have a negative impact on the Respondents’ view of the situation.

A further complication arose with a disagreement in March 2019 over a Respondent proposal for 30 minutes - unpaid it appeared – “Hand over” “Buffer Times” period before the start/end of a shift.  The Parties had engaged in some e mail correspondence on or around the 6 and 7th of March 2019. The Complainant had declined to sign a new Contract of Employment which provided for the “Buffer Times.”

The chief Medical Practitioner, Dr. A, indicated orally that the decision to make the Complainant redundant had been made, after considerable reflection, over the days immediately preceding the 13th and following on from the 7th March. It was accepted that the views of the Complainant had not been sought, in this period, as the Respondent already felt she knew these. It was my view that the meeting of the 13th March was to “inform” rather than “consult”

Regarding the meeting of the 13th March there was a degree of disagreement as to whether or not MB, the Office Manager or Mr. C, The HR Consultant, had taken the lead Respondent role. None the less it was clear that the Complainant had not been notified in advance of the critical subject matter and no opportunity for Representation had arisen. In such a situation and without prior warning the opportunity for the Complainant to offer alternative suggestions, as would be required by good HR practice, had to be severely limited.

The Respondent letter of the 14th March confirming the ending of employment did not make any suggestion of an Appeal route open to the Complainant although it was pointed out that such an avenue exists in the standard Terms and Conditions of Employment of the Respondent. The Complainant clearly felt that she had been dismissed on the 13th and her WRC reference on the 14th, prior to getting Legal advice, was an adequate Appeal.

The issue I had, as Adjudicator, was the fact that the Respondent had excellent and well set out procedures in their Contracts /T &Cs but seemed to have neglected to utilise or properly advise the Complaint of these.

In this context the question, raised by the Respondent Legal Advisor, as to why the Complainant did not lodge a Formal Appeal utilising Respondent procedures has to be considered. All reports of the meeting of the 13th March indicated that it was strained. The Complainant mentioned the WRC or NERA. The Respondent did not take, it appeared, the opportunity to advise the Internal route. The question of the full utilisation of Internal Procedures in Unfair Dismissal cases has often been considered by the Labour Court and the Higher Courts. The landmark case is Allen v Independent Newspapers (Ireland)Ltd (UD641/2000) [2002] ELR 84

It is safe to conclude that the circumstances of each case decide the issue. In this instance I came to the view that the failure to lodge an Internal Appeal was, in the circumstances of the meeting of the 13th March 2020, was not fatal to the complaint.

The hiring of additional staff post the Complainant’s exit was also disputed as was the choice of the Complainant as the person to be made Redundant when a LIFO principal was applied. Other staff with shorter service were retained.

The Respondent argued that these other persons, all named, filled specific roles, that the Complainant did not and effectively could not due to her personal circumstances. I took the view that in a case of selecting a position to be made Redundant the Respondent had chosen the position, that at first face, made the most obvious business sense.

In final summary having hear all the Oral and read the written evidence I came to the view that the Complainant filled a specific “Lunch time” cover role.

 I had to agree with the Respondent employer that, at first instance without any Complainant input, the Company finances no longer supported this role and in addition the job flexibility of the Complainant was questionable at best.

Nonetheless, I also came to the view that the decision regarding the Redundancy was made by the Respondent, unilaterally, over the days preceding the 13th, there was no adequate prior notice of the serious subject matter of the meeting or advice as to representation (despite being in the Company T & Cs document|) or efforts to consider any alternatives the Complainant might have put forward. The question of a Full-Time role and availability for same was ambiguous and required to be clarified by the Complainant before a final Redundancy decision was taken.

In a Redundancy it is a vital requirement for an Employee’s input to be considered before a decision is taken. This did not happen in this case.

3:3       Final Conclusion

Accordingly, having considered all the evidence I had to come to the conclusion that procedurally the Dismissal on grounds of Redundancy and under the Unfair Dismissals Act,1977, contained a number of procedural short comings, (listed above in the preceding paragraph) and has to be seen as Unfair.

An Unfair Dismissal took palce.

3:4       Section 12 of the Minimum Notice & Terms of Employment Act, 1973 CA-00027069-002; CA-00027070-00; CA-00029475-002

Having studied the relevant Pay Slips submitted I was satisfied that all monies properly due to the date of the 22nd March 2020 had been paid.

The complaint is not well founded and has to be set aside.