FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : PARKGATE LOUNGE LIMITED (REPRESENTED BY KATE CONNEELY B.L., INSTRUCTED BY MILEY & MILEY LLP, SOLICITORS. - AND - NOEL JOYCE DIVISION :
SUBJECT: 1.An appeal of an Adjudication Officer's Decision No ADJ-00017090. The Appellant was employed as a weekend receptionist from 2012 until the termination of his employment on 5thAugust 2018. He worked for 16 hours each week and received payment in the amount of €10.00 per hour. The Respondent operates a guesthouse. Summary of the Respondent’s Position The Respondent submitted that redundancies were required in the Company for operational restructuring reasons and four roles were made redundant at the same time in August 2018 in addition to the role of the Appellant. The Respondent entered into a contract with Dublin City Council to rent all rooms to Dublin City Council in July 2018. Consequent on its entry into this contract, the Respondent no longer had a requirement for a receptionist because the residents would thereafter be long term residents and the requirement of the Respondent was for a role involving a security dimension at the front desk. The receptionist role occupied by the Appellant therefore became redundant. The Respondent met with the Appellant on 24thJune 2018 and at that meeting offered the Appellant a role in another guest house which was not under the ownership of the Respondent. This offer was not accepted by the Appellant. At that meeting also the Appellant was offered a role carrying a security function. This offer was also declined by the Appellant. On 6thJuly 2018 the Respondent wrote to the Appellant informing him that his role would no longer be required and setting out his entitlement to statutory redundancy pay and payment in respect of outstanding holidays. The Appellant did not reject the content of that letter. The Appellant was made redundant on 5thAugust 2018 and all statutory entitlements were paid to him. The Respondent was entitled to make the Appellant redundant on the basis that that his role was surplus to the requirements of the Respondent. The Respondent, in putting forward that contention, relied upon Sections 7(2)(a) and &7(2)(b) of the Redundancy Payments Act, 1977 which provide as follows:
Summary of testimony on behalf of the Respondent Mr Brian Moloney gave evidence on behalf of the Respondent. He stated that he was the owner of the Respondent business. He said that he had normal interactions with the Appellant but that there was a manager also. Approximately 95% of the Respondent’s business related to foreign tourism in 2012 and the role of receptionist involved checking guests in and out, changing prices on an hourly basis, advising guests and responding to guest queries etc. In 2018 Dublin City Council asked the Respondent to make the Respondent’s accommodation exclusively available for homeless persons on a long-term basis. While the Respondent had previously provided accommodation for homeless persons referred by the Council, the proportion in the years before 2018 would have ranged from approximately 10% to 40% of available accommodation. Having entered into an arrangement with the Council in 2018 such that the entire business would be dedicated to providing accommodation to homeless persons, the Respondent terminated its internet booking facility and other arrangements for receiving bookings from tourists. The witness confirmed that no contract had been entered into with Dublin City Council as such but that relevant Council personnel had undertaken that the Council would refer individuals to the guesthouse on a long-term basis into the future in greater numbers than heretofore. At that point, the requirement of the business changed from needing a receptionist who would advise tourists, check people in and out and change prices to needing to have a security related presence at the front desk. The role of the security related presence at the front desk was to monitor a series of cameras, walk the building on a half hourly basis and generally ‘keep an eye’ on security. The new role also required the person at the front desk to provide toiletries to residents when required. The role did involve the checking in of guests but on a less frequent basis than previously. The new role did not require licensing by relevant authorities regulating the security industry. There was, in the opinion of the witness, some overlap between the role made redundant and occupied by the Appellant and the new role at the reception desk. He estimated the overlap at approximately 10%. He stated that the differences included the reduced need for check in of guests and the provision of tourist type assistance as well as the elimination of a need for the pricing of rooms on an hourly basis. He stated that the new role also involved ‘walk arounds’ of the premises on approximately a half hourly basis in order to view those parts of the common areas not covered by security cameras. The witness stated that he offered the Appellant employment in the new role at a meeting on 24thJune 2018 but the Appellant refused that offer of alternative employment. At that meeting the witness also offered the Appellant a role in another guesthouse which was not in the ownership of the Respondent but rather in the ownership of a ‘sister’ company. He stated that the other business was not open for business on 24thJune but was expected to be so before the end of that year. The Appellant refused that offer of alternative employment also. The witness gave a letter to the Appellant on 6thJuly 2018 informing him that his role was to be made redundant and advising him of his statutory entitlements. No objection was made by the Appellant to the content of that letter and the witness had no knowledge of any issue in relation to the matter until contacted by the Workplace Relations Commission in relation to the within complaint. Other staff of the Respondent remained in the employment to take up the new roles. The witness confirmed that three other staff were made redundant at that time. Those staff had been involved in providing breakfast to guests, which was not a facility made available to guests referred on a long-term basis by the Council. The witness stated that he had no wish to see the Appellant leave the business. He acknowledged that a ‘hearsay’ complaint had been received about the Appellant from a resident, but he had not regarded that complaint as being of a serious nature. He had, as a result of that assessment, not even mentioned the matter to the Appellant. Summary of the Appellant’s Position The Appellant submitted that his role had not been made redundant. He referred to the Redundancy Payments Act, 1967 at Section 7(2) and asserted that the business of the Respondent did not change in 2018 and remained a guesthouse. The employees at reception remained doing the same job as they had done previously. The requirement of the Respondent for a 24-hour reception facility remained after the entry by the Respondent into a new arrangement with Dublin City Council. He submitted that he had been replaced in his role as a receptionist. He also submitted that an allegation which had been made against him by a guest to the Respondent had played a part in the termination of his employment. The Appellant submitted that no meeting had taken place between himself and the Respondent on 24thJune 2018 and he had not been offered employment in a security related role as described by the Respondent on that date. He submitted that on some date following the 8thJuly 2018, which was the date he received a letter from the Respondent advising him of the redundancy of his position, he was offered a role at the reception in another business which was not yet open. This offer related to a role which would become available a number of months later and was in a business not in the ownership of the Respondent. Summary testimony on behalf of the Appellant Mr Hossain, a receptionist with the Respondent whose employment was terminated at the same time as the Appellant, gave evidence to the Court. He stated that the Respondent began to accommodate homeless persons referred by Dublin City Council in 2015. The process of check in of homeless persons was a requirement at that time and since and remained a requirement in the new arrangement entered into with the Council in 2018. He stated that it was not the role of receptionist with the Respondent to change prices on an hourly basis. That function was a function of the manager at all times. Relevant Law The Redundancy Payments Act, 1967 at Section 7 defines redundancy as follows:
The Unfair Dismissals Act, 1977 at Section 6 in relevant part states as follows:
Discussion and conclusion The Respondent relies upon the Act at Section 6(4)(c) to contend that the dismissal of the Appellant was fair having regard to its submission that the dismissal arose from the redundancy of the role discharged by the Appellant prior to 5thAugust 2018. The Respondent relies upon the Redundancy Payments Act, 1967 at sections 6(4)(a) and (b) in asserting that a redundancy has taken place. The Appellant relies upon the same sections of the Act of 1967 to assert that no redundancy took place. He submits that the business did not change, is still a guest house and continues to employ people to do the same job as he had previously performed. This matter therefore, on the basis of the submissions of the parties, will turn on whether the Respondent ceased to carry on the business for the purposes of which the Appellant was employed by him or the requirement of the Respondent for employees to carry out work of the kind performed by the Appellant ceased or diminished in August 2018 as a result of the arrangement entered into by the Respondent with Dublin City Council. The parties are agreed that a front desk role remained at the premises of the Respondent following the termination of the Appellant’s employment and that this was a 24 hour / seven day requirement. It is also common case that no special qualifications are required of the persons employed to discharge that role following the termination of the Appellant’s employment. In other words, the Appellant was qualified to carry out the role and indeed the Respondent asserted that he had offered the role to the Appellant. The evidence and submissions before the Court are to the effect that the role carried out by the Appellant and the front desk role carried out following the entering into the arrangement with Dublin City Council carried many similar characteristics. The Respondent identified the differences between the roles as being a lessening of check in duties, a lessening of a requirement to give tourist advice to residents, the removal of a function in changing prices on an hourly basis and the discharge of a security related role along with a requirement to walk around the premises approximately every half an hour while on duty. The Respondent submitted that the Appellant was responsible for room pricing in the historical arrangement but that the role now required no input from the reception staff as regards changing of room pricing in response to the pattern of occupancy. This is disputed by the Appellant and his witness who were both reception staff prior to their redundancy. Both the Appellant and the witness who gave testimony on his behalf, stated that any management of pricing was the responsibility of the manager rather than the reception staff. The Court, on the basis of the evidence of the witness for the Appellant and of his own submission, is not persuaded that responsibility for pricing would fall to a weekend receptionist such as the Appellant in circumstances where the operation of the Respondent’s business was, as is accepted by both parties, overseen by a manager. The Court, on the basis of the submissions made by the parties and evidence tendered by both witnesses, can discern no substantial difference between the role carried out by the Appellant before the termination of his employment and the role requiring to be discharged by the occupant of the front desk role under the new arrangement with Dublin City Council. It is clear that the mix of tasks requiring to be discharged is different as between the historical make-up of the role and the role as existed following the entry into the arrangement with the Council. However, the overlap between the two roles is substantial and no part of the evolved role is contended to require a qualification or particular skill not possessed by the Appellant at the date of termination of his employment. The Respondent submitted that the Appellant was offered a position in the new arrangement at a meeting on 24thJune. The Appellant submitted that no such meeting had taken place and that no such offer was made. The Court, having regard to the submissions of the parties and to the testimony proffered at the hearing, concludes on the balance of probabilities that no meeting of the character contended for by the Respondent took place on 24thJune 2018. The Court is fortified in this conclusion by its earlier conclusion that the job of the Appellant was not, in a meaningful or substantial way, materially different to that which would require to be discharged following the entering into operation of the arrangement with Dublin City Council. The Respondent also submitted and gave evidence to the effect that the Appellant was offered employment in another facility not in the ownership of the Respondent when that facility should open on some date after the termination of the Appellant’s employment. The Appellant acknowledges that this offer was made but submitted that the establishment concerned was not open at the time of termination of his employment. This assertion was not disputed by the employer. The Court does not accept that an offer of a role not in existence at the date of termination of the Appellant’s employment in an entirely different employment not in the ownership of the Respondent amounts to an offer of alternative employment within the meaning of the Act. The Court notes that Respondent carried on the business of a Guest house at all times before and after its entry into a new arrangement with the Council. The substantial change which occurred as a result of that arrangement as outlined to the Court was the means by which guests secured accommodation in the facility. In addition, the service provided ceased to include the provision of breakfast. There is no contention that the Appellant had any role in the provision of breakfast. It is common case that the staff involved in that area of the business were made redundant in 2018. In all the circumstances the Court does not accept that the Respondent ceased to carry on the business for the purposes of which the Appellant was employed by him or the requirement of the Respondent for employees to carry out work of the kind performed by the Appellant ceased or diminished in August 2018 as a result of the arrangement entered into by the Respondent with Dublin City Council. In those circumstances the Court concludes that the Respondent has failed to discharge the burden resting upon it by virtue of the Act at Section 6(6) and the dismissal of the Appellant was consequently unfair. Determination In all the circumstances of this case, the Court finds that the Complainant was unfairly dismissed. Having regard to the earnings of the Complainant at the date of his dismissal, the financial loss he has suffered and his efforts to mitigate that loss, the Court orders the Respondent to pay compensation to him in respect of the loss he has suffered as a result of his dismissal in the amount of €5,200 in addition to the amount already paid to him in purported discharge of his statutory entitlement under the Redundancy Payments Act, 1967. The decision of the Adjudication Officer is accordingly set aside. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary. |
