Complainant

Respondent

Parties

Aoife Murphy

The Sims Clinic Ltd

Representatives

Not represented

Graham Bailey , IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00043206-001

23/03/2021

The respondent’s clinic provides fertility services and reproductive medical care and the complainant commenced employment there in June 2014.  When her employment was terminated in November 2020, her annual salary was €42,200.  The complainant coordinated the clinic’s egg donation programme which was suspended following the outbreak of the Covid 19 pandemic.  In October 2020, she was given notice that her job was redundant.  It is the respondent’s case that the complainant was dismissed because the work she was employed to do was reduced to such an extent that a coordinator was no longer required.  The complainant claims that her dismissal was unfair and that she could have been offered an alternative role. 

Th respondent’s case is that the complainant’s job as the coordinator of the egg donation programme was a standalone role and that it became redundant following the restrictions imposed on foreign travel due to Covid 19.  When clients were prevented from travelling, the clinic was not able to arrange for egg donation procedures to be carried out and the service was suspended.  As a result, patient throughput was reduced by 83%.  In documents submitted in evidence, the respondent said that revenue would reduce by €1.5m in 2020 and by up to €3.5m in 2021.

In September 2020, the egg donation unit was staffed by a manager, the complainant as coordinator, 3.5 full-time equivalent nurses and a half time administrator, comprising a total of seven employees.  By December 2020, the unit was staffed by just two nurses, one working five days and the second working four days a week.

On September 29th 2020, the complainant was notified that her job was at risk of redundancy.  On October 21st, she was informed that her employment would terminate on November 30th 2020.  She received a statutory redundancy payment of €8,340 and €3,517 in lieu of four weeks’ notice.

Referring to section 6(4)(c) of the Unfair Dismissals Act 1977 (“the Act”), Mr Bailey submitted that dismissal on the ground of redundancy is not an unfair dismissal.   In support of the respondent’s position, he referred to the following precedents:

Brigid Burns v Component Distributors (CD Ireland) Limited[1]

Mr Bailey said that the onus is on an employee to establish that the circumstances constituting redundancy applied equally to one or more employees in similar employment who have not been made redundant.  In the Brigid Burns case, the Employment Appeals Tribunal held that employees in a singular or unique position cannot claim that they have been unfairly selected for redundancy. 

Barton v Newsfast Freight Limited[2]

Here, the Tribunal found that Mr Barton, a van driver, was the only one based in Dublin and there were no employees in similar employment.  In the case under consideration here, the complainant, was the egg donation coordinator; she was the only person employed in that role and her job was not the same or similar to the job of any other employee in the clinic.  This role does not currently exist in the clinic and there are no plans to reinstate it.

Referring to section 6(7) of the Act, and the requirement for an employer to act reasonably with regard to the dismissal of an employee, Mr Bailey said that the respondent behaved reasonably by inviting the complainant to meetings, by engaging in consultation with her and by seeking suitable alternative roles before the decision to terminate her employment was finalised on October 21st 2021. 

In summary, the respondent’s position is that the dismissal of the complainant due to redundancy cannot be considered to be unfair due to the singular nature of her job which has not been replaced.

Mr Bailey informed me that the complainant was permitted to extend her notice for one month and to remain on the payroll so that she could complete a Skillnets course in project management.

Evidence of the Human Resources Manager

In her evidence, the HR manager said that, in addition to the travel restrictions imposed by the Covid pandemic, the closure of a clinic in the Ukraine with whom they had collaborated led to huge difficulties for their business.  At the end of August 2020, the management were informed that the clinic in Ukraine had been subject to a management takeover.  It stopped taking new patients from Dublin and gave notice that the contract between the two businesses wouldn’t be renewed.  Management in Dublin started negotiating with a new clinic in the UK.  This clinic agreed to provide services to between five and seven clients per month, whereas the Ukraine clinic had treated up to 25 per month.  Because of this, the egg donation team was restructured and the staff reduced from seven to two.  The job of the egg donation coordinator programme was made redundant. 

The HR manager said that after the complainant was notified that her job was at risk of redundancy, a Zoom meeting took place on October 8th 2020.  The HR manager said that “there was nothing we could offer,” but that the complainant was asked to suggest a suitable role that she could move to. 

Later in her evidence, the HR manager said that a vacancy for a junior position was available in Swords at the time that the complainant was made redundant.  She said that this was a temporary position and the salary was €28,000.  She said that she didn’t offer this job to the complainant.  She said that there were two clinical vacancies in the clinic in Clonskeagh where the complainant worked.  Referring to another employee, “SS,” the HR manager said that this person moved into a new role as services and facilities coordinator, and that this happened after the complainant was made redundant.

The complainant went on maternity leave in September 2019 and, by September 2020, when she was informed that her job was at risk of redundancy, she had not returned to work.  She had been diagnosed as unfit for work due to a back injury she suffered in a car accident.  In her submission in advance of the hearing of this complaint, the complainant said that her doctor advised her that she was fit to return to work on October 1st 2020.

On September 28th 2020, the complainant said that she received a telephone call from the director of nursing who told her that the egg donation programme was being suspended and that her job as coordinator of that programme would be made redundant.  The following day, she received a letter by email advising her that her job was at risk of redundancy and that the clinic would be “working with you to review as many options as we can.”

On October 8th, the complainant said she invited to a meeting on Zoom that day at which she was informed that her job was redundant and that there were no other options.  She received confirmation in writing to this effect on October 21st, with details of her statutory redundancy payment and pay in lieu of one month’s notice.  She said that her final communication from her former employer was on November 27th 2020, when these payments, plus pay for her outstanding holidays, was transferred to her bank account.

In her submission in advance of the hearing, the complainant said that she finds it difficult to accept that the egg donation unit could operate with just two nurses, because the nurses have no experience of using Excel spreadsheets, and not much computer experience.

The complainant said that, at the time that her role was made redundant, job opportunities were available in the clinic, but they were not offered to her.  She said that she was informed that a new job of patient coordinator was being created and she waited to see if this role would be discussed with her, but nothing was said about it at the Zoom meeting on  October 8th or at any time before she was dismissed.  The complainant said that the job-holder left the clinic shortly after she started in the job and it has been filled by a new person. 

Before she went on maternity leave, the complainant said that she trained one of her colleagues, “SS,” to do her job.  SS had been part-time, but she went full-time when the complainant went on maternity leave.  On November 18th 2019, the complainant said that SS handed in her notice to take up a job with a competitor clinic and she was due to leave on November 27th 2020, three days before the complainant’s employment terminated on November 30th.  The complainant said that SS was offered a new job as services support coordinator and that she ended up not leaving.

The complainant said that, despite the statement of the HR manager on September 29th that the company would “review as many options as we can,” no one engaged with her to discuss possibilities other than redundancy.  She said that she was confused about whether she was at risk of redundancy or whether her job was in fact, redundant.  She feels that she was made redundant “based on my 5 months’ sick leave directly after my 6 months’ maternity leave.”  She said that, unlike SS, she wasn’t offered any alternative position, despite positions becoming available and “the fact that the company was growing massively and had bought a new facility…”  She identified four possible jobs that she could have been offered which would have avoided her dismissal:

1.              Patient coordinator role; Power said short-term / casual

2.              Services and facilities coordinator role; done by SS as well as her own job

3.              An employee was about to go on maternity leave, and she claims that she could have been offered that role, even on a temporary basis; Job was shared out

4.              The administrator in the quality department handed in her notice at the end of November 2020, and she could have been offered that role.  Power said she couldn’t do this job – not qualified – she said she is

In response to a question from me, the complainant said that she didn’t contact anyone in the company to say that she would like one of these jobs.

The complainant’s perspective on the effect of the Covid pandemic on the clinic’s business is different to that of the respondent.  She said that, because people can’t travel abroad for fertility services, the clinic “has been reaping the benefits of patients choosing Irish clinics for their fertility needs.”

The Relevant Law

It is the complainant’s case that, by failing to offer her an alternative job when the job of egg donation programme coordinator was redundant, her employer acted unreasonably and unfairly.  My task is to consider if, in terminating her employment, the respondent breached section 6(1) of the Unfair Dismissals Acts 1977 – 2015, (“the Act”) which provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The burden of proof rests with the respondent to set out the substantial grounds justifying the dismissal of the complainant.  Their position is that her job was made redundant because the egg donation programme was suspended, with the result that services were reduced by more than 80%, and revenue was reduced by €1.5m in 2020.  Of the seven jobs in the programme, only two nurses remained when the complainant was made redundant.  The complainant’s case is that she was suitably qualified and experienced to be appointed to an alternative job in the clinic outside the egg donation programme.

Section 6(3) of the Act states:

“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.”

Section 6(2) which is referred to above as “subsection (2)” addresses the termination of employment for reasons related to trade union membership, religious or political opinions or for having made a protected disclosure and other matters that are not relevant to the complainant in this case.

In the case under consideration, “the circumstances constituting the redundancy” was the suspension of the egg donation service.  There was only one egg donation coordinator role and that job was redundant due to the suspension of the programme.

Section 6(7) of the Act provides that, in considering a complaint of unfair dismissal, as the adjudicator, I may have regard,

“(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.”

In the case of this former employee, she was not a member of a trade union and no evidence was submitted regarding an agreed procedure for how redundancies are to be implemented.  From a procedural perspective, the respondent followed the recommended stages and advised the complainant that her job was at risk, before confirming that her job was redundant and issuing her with the required notice to this effect.  From the perspective of the reasonableness of the decision to dismiss her, I have some concerns.

Was the Complainant’s Job Redundant?

The definition of redundancy, as set out at section 7 of the Redundancy Payments Acts 1967 – 2014 is the starting point for a consideration of the respondent’s position.  Section 7(2) sets out five definitions of redundancy.  For our purpose here, we need to concern ourselves with subsection 7(2)(a) and (b):

“…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 in the place where he was so employed have ceased or diminished or are expected to cease or diminish[.]”

It is apparent that the redundancy of jobs in the egg donation programme are encompassed by these definitions.  By the first week of December 2020, two employees remained out of the seven that had worked there.   These two employees are nurses, one working five days and the other working four days a week.  The jobs of two other nurses, the nurse manager, the part-time administrator and the coordinator were eliminated.  Of these five employees, the complainant and one of the nurses received a redundancy payment.  It appears that two people left of their own accord and the part-time administrator, “SS,” stayed on in a new role of patient services and facilities coordinator.  SS had worked 50% of her time in the egg donation programme and the other 50% in laboratory administration.  There was no dispute at the hearing regarding the complainant’s evidence that, in November 2020, SS handed in her notice to take up a job with a competitor business, but she was offered a new role and, in the end, she stayed working with the clinic.    

In defence of their case that this was not an unfair dismissal, the respondent relies on the fact that the complainant was the only person in the clinic employed as an egg donation coordinator and that, as a “standalone job,” the termination of her employment on the ground of redundancy was not unfair.  I accept that the complainant was in a standalone job, and that that job was redundant as a result of the suspension of the programme.  However, I do not accept that, like the finding in the Brigid Burns case referred to by Mr Bailey, the complainant was in “a singular or unique position.”  While she has a science degree and is very experienced in clinical work, the complainant’s job involved the administration and coordination of the procedures associated with assisted pregnancy.  While she had a “standalone job,” her skills and experience were not confined to one job and, without extensive training, it is apparent to me that she could have done other jobs. 

Findings

In her evidence, the HR manager said that, at their meeting on Zoom on October 8th 2020, the complainant didn’t suggest any alternative option that might be suitable, and that no other jobs were available.  The complainant said that she knew about a vacancy for a patient coordinator job that she could have done, and she waited to see if it would be offered to her.  I find it difficult to understand why she didn’t bring this up at the Zoom meeting.  In any event, as the party with the power to make decisions about the allocation of work, the responsibility for identifying an alternative to redundancy lies with the employer. 

I appreciate that, due to the impact of the Covid travel restrictions on the respondent’s business, it was necessary to re-structure the business and reduce costs.  I also accept that, in September 2020, there wasn’t enough work in the egg donation programme to warrant a highly-paid administrator and that the job of the complainant was redundant.  In terms of reasonableness and fairness however, the evidence presented at the hearing indicates to me that options were available that could have avoided the need to dismiss the complainant:

1.              The complainant has transferable skills and the business of the clinic is such that her skills could have been used in other departments.

2.              The requirement for standard IVF treatment which the clinic provides is increasing due to Covid restrictions.

3.              One employee, a coordinator, resigned in November 2020, but was offered an alternative job to encourage her to stay with the clinic.  This job could have been offered to the complainant.

4.              A short-term, patient coordinator role, created in October 2020, could have been offered to the complainant.

5.              The complainant could have been offered the option of unpaid leave or a career break for a few months, to monitor the business at the end of 2020 and into 2021, with a view to retaining her for a suitable role for her in the future.

6.              She could have been offered a part-time position, supporting a number of departments.

I have not included in this list the possibility of a job covering the maternity leave of an administrator, and the possibility of work in the quality department.  The HR manager was adamant that these jobs were not available to the complainant.  It is apparent to me however, that no problem-solving or creative thinking went into coming up with a proposal to retain the complainant in employment.  This could have involved any one or a combination of the options listed above.  It seems to me that there is some merit in the complainant’s argument that she was dismissed because she was out sick for five months at the end of her maternity leave.  Based on her written submission, I note also that she was ill before she went on maternity leave and that this caused some friction between her and her manager. 

Conclusion

I accept that the respondent was entitled to take measures to address the serious financial impact that the Covid travel restrictions had on its business, including the right to implement redundancies.  Returning to the Brigid Burns decision of the Labour Court, “…its entitlement in that regard is not unfettered” and the right of the complainant to retain her employment must also be considered.  Unlike the finding in that case, it is my view that this employer did not make an adequate attempt to identify an option other than the termination of the complainant’s employment.  I find that this was a serious omission on their part which it does not meet the requirement for reasonableness at section 6(7)(a) of the Act.  In conclusion therefore, I find that the decision to dismiss the complainant on the ground of redundancy was unfair.

Of the redress options available, the complainant selected compensation.  With regard to mitigation, she said that, in the seven months since her dismissal, up to the date of this hearing on June 28th 2021, she applied for about 30 jobs, but she has not been offered anything suitable.  The complainant is highly qualified, and, as she herself asserted, fertility clinics are increasing their business in Ireland and staff are in demand.  With the Covid restrictions easing, I am confident that she will be employed soon.

I decide therefore, that the respondent is to pay the complainant compensation of €23,160.  This is equivalent to nine months’ pay, less €8,340 that she received in statutory redundancy.  As this award is in the form of loss of earnings, it is subject to the normal deductions of tax, PRSI and USC.

Dismissal, redundancy