Complainant

Respondent

Parties

Jacinta  Doyle

River Island Clothing Co. (Ireland) Ltd.

Representatives

  Ms. R. Doyle

 Ms. L. O’ Byrne of Arthur Cox supported by Company Managers. 

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-00039898-001

17/09/2020

The case concerns the alleged Unfair Dismissal of a Retail Floor Manager by a Retail Clothing Chain.

The employment commenced on the 1st October 2013 and ended on the 10th September 2019.

The rate of pay was €1,874 Gross for a 37.5-hour week.

Evidence was given verbally by the Complainant and supported by documentation/ copies of texts and emails. The Complainant was subject to cross examination by the Respondent.

On the 10th August 2020 the Complainant was informed by letter that she was at Risk of Redundancy. The Carlow store was being reduced from Two (2) Floor Managers to One. (1). Selection of which Floor Manager would be retained would be by means of competitive interview to be conducted by a Store Manager.

The Complainant was informed that the Interviews/reviews would be carried out by Store Manager, Ms.M, not the local Carlow Manager. This was done to avoid issues as there was an alleged “Bad Blood” between the Carlow Manager, Ms. D, and the other Floor Manager, Ms.AM.

On the 16th August 2002 the Complainant contacted the Regional Manager, Ms. E, to query this arrangement as the Complainant feared that there was a close “affinity” between Interviewing Manager, Ms.M and Ms. AM. The Regional Manager, Ms. E, did not agree to change the line up as she believed that Manager Ms.M would conduct the interviews fairly and professionally. The interviews took place on the 21st August. On the 27th August the Complainant learned from her Carlow Manager, Ms. D, that she had been unsuccessful in the interviews. Ms. AM, had scored higher, by one point, on a PMG issue. The Complainant was requested to remain silent on the Interview issue as Ms.AM had not been notified at that stage. On the 7th of September Ms. M was in the Carlow Store and offered the Complainant a lower grade position in Carlow. The Complainant stated that she could make no response as she did not know “Officially” the interview outcome. The results should have been communicated, it appeared, by Ms. D, the previous week. On the 9th September the Complainant found this out, informally, from the Manager of the Arklow Store The date for the final Consultation Meeting was arranged for the 10th September. The interview notes/feedback were gone through with the Complainant by Ms.M on the 9th. The Complainant challenged the issue where she had lost points and alleged that the other candidate had not given the full picture. The Complainant challenged the interview Process, there was only one interviewer (there should have been at least two persons) and she, Ms.M, was not sufficiently independent.  Ms. M informed the Complainant that she had the right of Appeal. On the 10th September a conversation took place with Ms. E, the Regional Manager. The Regional Manager discussed the possibility of an Appeal and offered a position in another Store or a lower level position in Carlow. The Complainant declined to work in Carlow as she would not report to Ms.AM, her former colleague.

In final summary she felt the Interview process was unfair and had not been conducted professionally.

Proper notes of answers were not taken, the staff management issue/question was not properly addressed, and this had cost her job in a very tight competition. In addition, the general mix up in notifications had been very upsetting on a personal basis.

Post the 10th September 2020, the Complainant’s last day physically at work, the Carlow Store Manager, Ms. D, resigned. The Complainant was keen to interview for the vacancy but was informed that as she was effectively serving out her notice of Redundancy, Company rules did not allow her to make an application. This was a final example of the unfair way she had been treated.

The Respondent presented a full written submission and full oral evidence was given by Ms. M, a Store Manager and by Ms. E, the Regional Manager. Ms. B, the HR Colleague based in the UK Head Office also gave brief procedural evidence.

In summary the Respondent, a major retail chain in the UK and Ireland, identified that by 2020 a widespread change to On Line Shopping and the impact of Covid 19 required a fundamental reorganisation of the business across the UK and Ireland. Store and Head Office Management structures had to be reduced significantly. Eventually some 375 Managers were made redundant. Likely impacted Staff were informed of their “At Risk” Status by the 7th August 2020 and invited to individual consultation meetings. This took place, for the Complainant, on the 10th August 2020.

The Carlow Store had two Floor Managers. The future plan had only a vacancy for one Floor Manager. An experienced Store Manager from another area, Ms. M, carried out interviews with both staff. A very detailed and most professional Interview process was employed. Ms. M was a most competent Manager and had the full confidence of the Regional Manager Ms. E, to carry out the process. The Complainant was informed of the outcome, verbally, by the Carlow Manager, Ms D, on the 27th August 2020.

A final Consultations meeting was scheduled and took place on the 10th September 2020. The Complainant was informed of her Right of Appeal. She decided not to Appeal.

The Respondent summarised their position as one where

The Employment was ended legitimately due to a companywide Redundancy process involving ultimately some 375 Managers.

The selection of the Complainant had taken place by means of an exemplary professional interview process carried out by a Store Manager, very well qualified and of sufficient seniority, to carry out the interviews completely independently and impartially.

The Complainant was offered the opportunity to Appeal which she declined.

The Complaint was a very good colleague that the Respondent was sorry to lose and had offered other positions in the Chain, albeit some at a lower level. However, when actual wages were compared, some of the offered positions were financially on par with the existing redundant position.

Case Law precedent was quoted to support the Respondent position.

In extensive Oral evidence the Interviewing Manager, Ms. M, described the interview process and extensive notes, to a set template, were presented in evidence. It had been a close call, but the Complainant had certain shortcomings that had mitigated against her.

THE Regional Manager, Ms. E, gave detailed evidence regarding her professional choice of and confidence in Ms. M, to conduct the Interviews and why she had declined to change the interview line up when initially request by the Complainant.

The overall Company situation regarding Redundancies and the pressures to have all completed in a reasonable time frame were the subject of Ms. B’s evidence. The fact that the interview was conducted by one interviewer, as opposed to two or more persons, was largely a result of the business pressure the organisation’s Management was under at the time.

As regards the post redundancy vacancies the Respondent had a clear policy in his regard. Staff made redundant were not eligible to apply for vacancies occurring while they were effectively on Employment Exit Notice as was the case here.

The Respondent was sorry to lose the Complainant and had things been handled differently, especially as regards the Appeal process, other suitable vacancies might well have been come under consideration.

In final summary, a professional redundancy process had been carried out and the Complainant has no sustainable grounds for her Unfair Dismissal case.

3:1          The Legal position.

In this case the Legal position is as set out in the Unfair Dismissals Act, 1977 specifically Section 6 (4)

Section 6 of UD Act,1977.

(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.

The definition of Redundancy is accepted as that in the Redundancy Payments Act, 1967.

Redundancy is defined in Section 7(2) of the Redundancy Payments Act 1967 - 2014, as being a dismissal 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. 

However, all Legal precedents emphasise that any Redundancy decision, especially where single individuals are concerned, has to be scrupulously fair.

In its determination in Gillian Free v Oxygen Environmental UD 206/2011, the Employment Appeals Tribunal noted that

“when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy…. where there is no agreed procedure in relation to selection for redundancy….then the employer must act fairly and reasonably”.

This reference was noted with approval by the Labour Court in Kohinoor v AliUDD1629. However, the overall context has always to be looked at in any particular case.

Ryan in Redmond on Dismissal Law, Bloomsbury, 2017, Page 395 Section 17.24 is interesting

17>24 The question arises whether, if a genuine redundancy exists, fairness may be raised. It would be difficult to deny fairness a role in any dismissal under an Act the intention of which is to provide redress for employees unfairly dismissed from their employment. --- The WRC should adopt a balanced assessment of the overall interactions between the parties surrounding the redundancy process. Thus, even where the employer can be criticised for some elements of its interactions with the individual whose role is ultimately made redundant, the redundancy when looked at in its totality may not necessarily amount to an unfair dismissal.

Ryan further cites at 17.26 Farrell v Newmans Athboy Ltd UD 613/1966 where the Court referred to Section 6(70\ of the UD Act,1977 which permits the WRC to have regard “if appropriate to do so” to the reasonableness or other wise of the conduct (whether by act or omission) of the employer in relation to the dismissal.

Accordingly, taking in mind the provisos as regards Fairness, all cases rests on their own facts and evidence and we must review these now.

3:2       Review of Evidence presented and Cross Examined.

Oral witness evidence and the cross examination of same was crucial in this case. Supporting documentation referred to in evidence was also comprehensive.

The three Respondent Managers were most professional and explained in great detail how the Redundancy process had taken place. The Interviewing Manager, Ms. M set out a professional template supported by very detailed notes. The Regional Manager, Ms. E, explained how she had full professional confidence in Ms.M.

The Complainant professional representative queried in her cross examination why the Interviews had been carried out by one Manager on her own, no matter how professional she was. This was particularly so when the Complainant had raised serious reservations, in advance of the interviews about what she perceived as the links between the other Candidate Ms.AM and Ms.M.

Ms. M. refuted any close or inappropriate links with Ms.AM. The Regional Manager also expressed great confidence in the process as carried out by Ms.M. On reply to an Adjudication officer query Ms. B, Head Office HR, explained that single Manager interviews were not unusual in the Respondent Company especially in the middle of a very extensive redundancy Consultation programme. The Respondent organisation, where 376 Managers were being made Redundant did not have the Senior Personnel bandwidth to allow Managers double up on Interviews.

The Complainant was extremely competent in her evidence but explained how unfair she felt the process had been especially as it came down to a most narrow margin. A single topic had divided the Candidates and she felt that a complete picture had not been obtained by the single Interviewer.

As a result, the Complainant had an interpersonal issue with the successful Candidate Ms. AM. She had refused to work again in the Carlow store, albeit in a lower grade, as it would mean reporting to Ms. AM. Likewise the Complainant declined to lodge an Appeal as she felt so personally aggrieved.

Standing back and reflecting on the Legal precedents regarding “fairness” it is very hard to see how the Respondent employer, not an insignificant Organisation, was not more aware of the potential hazards that a Single person/Manager Interview process could give rise to. It has to be remembered that this was not a simple Disciplinary Interview but an Interview on which a long-standing Manager’s livelihood depended.

Codes of Practice from organisations such as the CIPD all clearly highlight the dangers of one Person/Manager interviews.

The argument that the Organisation was under pressure and had Management Personnel capacity issues does not really have sufficient weight to counter the Complainant’s arguments. It may well have been the case that a multi Manager interview panel would have come up with the same selection answer, but this will always remain conjecture.

The evidence points to an interview process where due to a single Manager only being involved the question of perceived unfairness from the Complainant can never be satisfactorily answered. 

The Legal provisos regarding Fairness and indeed Natural Justice for the Complainant have to be reflected upon by an Adjudication Officer.

However, the refusal of the Complainant to engage in the Appeals process has also to be considered. In terms of a standard Unfair Dismissal case this refusal is very detrimental to the Complainant. There is extensive Legal case law to support this point.

In relation to events/vacancies post the 10th September these are outside the remit of an Unfair Dismissal Act hearing. However, it might be observed that if an Appeal had been lodged the situation could have possibly offered some flexibility.

Accordingly, and in final summary, on these procedural grounds of the single Manager Interview the Dismissal has to be seen as Unfair but with a significant offsetting Complainant contribution.

Unfair Dismissal, Redundancy Selection, Right of Appeal, Refusal to Appeal.