Complainant

Respondent

Anonymised Parties

Complainant

A Hotel

Representatives

Stephen Brittain, BL instructed by James Mc Guinness, Keans Solicitors

Former General Manager

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-00033190-001

17/12/2019

The Complainant commenced employment with the Respondent on 27/10/2015. Her role was “Accounts/HR Administrator”. On 26/04/17 her role changed to “PA to General Manager/HR Assistant”. Her gross weekly pay was €634.62. She reported to the General Manager with whom she had a good working relationship.   The Complainant detailed a number of incidents involving alleged sexual harassment and the sending of inappropriate text messages by the General Manager which commenced in November 2018 and continued into January 2018. Following this there were several payroll errors made by the General Manager in relation to the Complainant. It is the Complainant’s position that this is the context which led to her dismissal by redundancy on 11th October 2019. She received a redundancy payment of €5,353 and €1,704.84 in relation to pay in lieu of notice and other money due to her. The Complainant submitted her complaint to the WRC on 17/12/2019.

The Respondent denies the allegations but accepts that the language used in the text messages was “coarse”. The Respondent believes that the redundancy was genuine and arose when the General Manager left and there was no requirement for the role of PA to the General Manager. There were significant impacts on the hotel business at that time and following a review it was a number of business decisions were made including making the Complainant’s role redundant.

On 27/09/2019 the Complainant attended a meeting with the Managing Director and the Hotel Accountant. At that meeting she was informed that she was to be made redundant. She was six months pregnant at that time.   She commenced employment at the hotel on 27/10/2015 as “Accounts/HR Administrator”. On 26/04/17 her role changed to “PA to General Manager/HR Assistant”.   Prior to the dismissal the Complainant alleges that she was subjected to sexual harassment and other forms of mistreatment by the General Manager . Details of these incidents were provided at hearing along with copies of text messages sent by Mr A, the General Manager. Due to the nature of these text messages the Complainant informed the General Manager that “my personal business is none of your business….”   Shortly after this a series of payroll omissions were made by the General Manager in relation to the Complainant’s wages.   She was not paid for a day and on another occasion, she was left short two and a half days pay. The Complainant was not paid for a week of annual leave which was signed off by the General Manager. It was submitted on behalf of the Complainant that this context is evidence of personal hostility towards the Complainant and is “inextricably linked” in making her role redundant. It was also submitted on behalf of the Complainant that the role of General Manager did not disappear when the General Manager  resigned in July 2019 another person took on the role.   There is a Linkedin profile of “Mr X” who describes his role as General Manager with the Respondent.   This indicates that the role of General Manager still exists.

The Complainant also provided evidence of two jobs which were advertised on a website on September 2019. One of these was for a role of junior accounts assistant at the hotel. Such a role would have been consistent with that of the Complainant’s contract of employment.

It was also submitted on behalf of the Complainant that even if there was a genuine redundancy situation the manner of its application fell short of what might be seen as reasonable and fair. The Complainant was not provided with any documentation in relation to the financial position which deemed the dismissal was necessary. There was no consultation with the Complainant about the prospect of her role becoming redundant. In addition, the Complainant was not given any opportunity to respond to the proposal or given any opportunity to look at other positions including those referred to in her contract of employment of Accounts/HR assistant.

As the Complainant was the only person made redundant at the time of her dismissal there was no analysis or matrix provided to indicate why she was selected.

The Respondent was aware of the Complainant’s pregnancy and their decision to recruit an “accounts assistant” while purporting to make the Complainant’s role redundant “strengthens the prima facia case that the dismissal was on the grounds of pregnancy.”

The Respondent did not behave reasonably in the manner in which the Complainant was dismissed due to: (a) the failure to engage in any consultation process; (b) failure to provide an opportunity to make representations (c) failure to provide any appeal mechanism (d) recruitment of persons to equivalent roles along with her difficult relationship with her manager and pregnancy. Therefore, the dismissal did not arise out of a genuine redundancy.

It was submitted on behalf of the Complainant that the decision of the Respondent to appoint the former General Manager as their representative at the hearing was disturbing and difficult to understand as they were aware of the allegations outlined in the Complainant’s complaint form.

The Respondent is a four-star hotel the Managing Director who took full control of the day to day management of the company since July 2019.   The hotel employs approximately 100 employees. At that time many important changes took place in response to the challenges facing the business. Examples of these challenges are VAT increases, Brexit, pressure on wages and increased bedroom stock.

The Complainant commenced employment on 27/10/2015 on a part time basis – 28 hours per week – in the position of Accounts/HR Administrator. She was promoted from 01/05/2017 to the role of PA to the General Manager/HR assistant. Her hours increased to full time and in addition to her salary the Complainant received a non-contributory pension contribution, complimentary gym and gym classes as well as reduced prices on hotel goods and services at the discretion of the General Manager.

Following a review by the Managing Director , accountant and their auditors several key decisions had to be made. These were necessary to secure the overall business as a going concern. The General Manager resigned on 8th April 2019 and a decision was made to recruit a junior hotel manager as the General Manager’s duties were now been undertaken by the Managing Director . In that context the position of PA to the General Manager does not exist.

The Respondent is very clear that the role of General Manager was not replaced by a "Mr X”.   No person of that name is known to the Respondent and was not employed by them. On behalf of the Respondent it was stated that he was not aware of these advertisements and confirmed that no such roles were filled by the hotel.

The Respondent submits that they were left with no choice other than to make the Complainant redundant.   The redundancy was handled and managed with full care and consideration towards the Complainant and all monies due were paid. The Complainant was well-liked, respected and an important member of the team.   The decision to make her redundant was very difficult and not easily reached.

The allegations of impropriety by the General Manager are denied in the strongest possible terms.

Any residual issues in relation to the Complainant’s pension contributions will be rectified by the Respondent.

There is agreement between the parties in relation to the relevant dates of employment and employment end date and salary paid to the Complainant. It is not disputed that the Complainant’s employment terminated on 11th October 2019. Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Having carefully considered all the evidence adduced and the respective submissions of the parties, while the Complainant contends that there was no genuine redundancy, the Respondent submitted that the termination of the Complainant’s employment constituted a dismissal by reason of redundancy.

Section 7 (2) of the Redundancy Payments Act, 1967 defines “dismissal by reason of redundancy” as

(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, or for employees to carry our work of a particular kind in the place where he was so employed has ceased or diminished or are expected to cease or diminish.

It is clear from the evidence presented at the hearing that the Respondent initiated a cost and structure review. One of the outcomes of this process was that a decision was made that the post of PA to the General Manager did not align with the future plans of the company. It was also made clear that the basis for this was to facilitate growth plans.

It is also clear from the evidence adduced that the Complainant only became aware of the decision to make her role redundant after the review process concluded. The evidence presented also indicates that the Complainant was not given any opportunity to look at other roles within the hotel. The Respondent did not facilitate any appeals process.

Based on the above conclusions I next proceeded to consider the Complainant’s claim of unfair dismissal in the context of a redundancy scenario.

Section 1 of the Unfair Dismissal Act defines dismissal in the following manner

“dismissal”, in relation to an employee, means—

(a)    the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6(1) of the Unfair Dismissals Act 1977 provides that: -

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.

Section 6(3) of the Unfair Dismissals Act 1977 provides that

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 [as amended by the Industrial Relations Act 1990], 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.

Section 6(4)(c) of the 1977 Act provides that: -

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 ... the redundancy of the employee...

Section 6(7) of the 1977 Act provides that: -

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 rights commissioner, the Tribunal or the Circuit 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...

On the basis of the legal position as set out above, the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. Arising from this, the burden of proof rests with the Respondent to establish, in the first place, that the dismissal was wholly connected to redundancy, and having done so, to justify the selection process whereby the employee in question was selected for redundancy.

Redundancy is defined in Section 7(2) of the Redundancy Payments Act 1967 – 2014. An employee who has been dismissed is taken to be dismissed by reason of redundancy if 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) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should hence forward be done in a different manner for which the employee is not sufficiently qualified or trained, and/or (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of going other work for which the employee is not sufficiently qualified or trained.

I accept that the Respondent is entitled to restructure its business model to maintain its position within the market that it operates. I also accept the Respondent’s position that the profile from Linkedin website, presented in evidence by the Complainant that a “Mr X” currently undertakes the role of General Manager, is a person unknown to them and “Mr X” is not or has not been employed by the Respondent. In relation to the two posts advertised in the absence of any evidence in relation to where these were advertised I accept the Respondent’s position that they are not aware of such advertisements and that no such roles were filled.

There is a considerable amount of case law in relation to the reasonableness of the employer in relation to the fair and objective selection of employees for redundancy. In Boucher v Irish Productivity Centre [1994 EL 205] the Tribunal enunciated the burden on an employer to: “establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made.”

In the within case the restructuring proposed by the Respondent would see the Complainant’s role removed.

Where an employee is dismissed by reason of redundancy, I must be satisfied that a genuine redundancy situation existed, and that redundancy was the main reason for the dismissal. Having considered the evidence presented to me at the hearing and in written submissions, I am not satisfied that a genuine redundancy situation existed. Having decided that a genuine redundancy did not exist I must now consider if the Complainant was unfairly selected for redundancy.

On the basis of the evidence presented I am satisfied that the manner in which the Complainant was made redundant did not involve even a minimum of consultation. The Respondent at the meeting on 27/09/2020 the Complainant was presented with a final decision rather than a proposal. There was no engagement with the Complainant in relation to what alternatives which might exist. It was confirmed at the hearing by both the Complainant and the Respondent that the Complainant was not given any opportunity to make suggestions as to why she should be retained or as to what alternatives that might be considered.   Finally, the Complainant was not given any opportunity to appeal the decision or advised of any process in that regard.

In relation to selection for redundancy, the case of Boucher v Irish Productivity Centre R92/1992 is instructive. In Boucher, the Tribunal stated that in addition to proving the genuineness of a redundancy, the employer had:

“to establish that he acted fairly in the selection of each individual employee for redundancy and that where assessments are clearly involved and used as a means for selection that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made”.

Generally, selection criteria should not be based on subjective assessments of the employee. The employer must be able to establish that an employee was fairly selected for redundancy based on independent, objective and verifiable criteria. In essence, what is required of the employer in this respect is that it be able to objectively justify why a particular employee was selected for redundancy as opposed to another employee. Specifically, the employer must be able to demonstrate that a particular employee has been compared to others who might have been made redundant. Where redundancy arises, and no agreed procedure or custom is in place, the reasonableness of the selection criteria is usually focused on and tends to be assessed by the objective standard of the way in which a reasonable employer in these circumstances in that line of business, at that time would have behaved.

In Bunyan v United Dominions Trust (Ireland) Ltd [1982] I.L.R.M. 404 the EAT endorsed and applied the following view quoted from NC Watling Co Ltd v Richardson [1978] IRLR 225 EAT (ICR 1049)

“the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

I have considered the evidence both parties presented to me.   I note that the Complainant was never advised of the process that was being undertaken and the business needs for same. The Respondent did not provide any evidence of the objective standards used to inform the decision to make the complainant redundant. In the absence of such evidence I conclude that the Complainant was unfairly selected for redundancy.

The Complainant has not yet secured employment I am accept the Complainant’s position that compensation is the appropriate remedy for her dismissal. In determining the level of this, I am mindful of the need to take account of both the extent, if any, of the loss that is attributable to the ‘act, omission or conduct by or on behalf of the employee’ and the extent of the actions taken to mitigate any loss, Section 7 (2) (c) of the Unfair Dismissals Act 1977.

The evidence presented at the hearing was that the Complainant did not secure any work to date. She was on maternity leave following her dismissal and despite her attempts to mitigate her loss there were no prospects of employment in the hotel sector in recent months. Section 7 (1) (c) refers to the Complainant incurring financial loss attributable to the dismissal as is just and equitable having regard to all the circumstances. Having regard to the financial loss to date and continuing loss attributable to her dismissal I award compensation of €60,000.

I have determined that the complainant’s claim is well founded and that she was unfairly dismissed.   Section 8 of the 1977 Act requires that I made a decision in relation to the claim consisting of an award of redress in accordance with Section 7. I therefore award redress of €60,000 in respect of the financial loss attributable to her unfair dismissal.

Unfair dismissal, redundancy,