Complainant

Respondent

Anonymised Parties

Hotel Manager

Hotel

Representatives

Mr Paul Hegarty BL instructed by Gill Allen Solicitors

Not Represented

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-00034721-001

19/02/2020

The Complainant commenced employment with the Respondent on 10th December 2017. Throughout the currency of her employment her role was described as “hotel manager”. The Complainant’s rate of pay equated to €961.60 per week. On 30th August 2019 the Complainant’s employment was terminated by the Respondent on the grounds of redundancy. The Complainant lodged a complaint under the Unfair Dismissals Acts only with the Commission on 19th February 2020. A hearing in relation to the same was convened and finalised on 16th October 2020.

It is the position of the Complainant that this dismissal was unfair for the purposes of the Acts. In particular, she alleged that the purported redundancy was motivated by personal factors, rendering same unfair. She further alleged that the process by which she was made redundant did not respect her natural and contractual rights. The Complainant issued a written submission and provided direct evidence in support of her position, no other witnesses were called on her behalf.

On the morning of the hearing, a representative for the Respondent requested an adjournment of the hearing. They stated that as a consequence of the restrictions arising from the Covid-19 pandemic, the business was forced to close on a temporary basis. In light of this situation and given that all relevant staff members were on lay-off, the Respondent requested an adjournment of the hearing. No agent or representative of the Respondent attended the hearing to make this application in person or otherwise offer any defence of the claim.

Following careful consideration, I did not grant this application. In so doing, I noted that the Respondent had been on notice of the hearing from 11th September 2020, some four weeks prior to same. I also note that the restrictions resulting from the Covid-10 pandemic cited by the Respondent in support of their application came into force on 18th September 2020, some three weeks prior to the hearing. In these circumstances, the Respondent had ample time to request an adjournment of the hearing in good time. No reason or explanation was offered to account for the Respondent’s failure to make the application on a timely basis. The Respondent’s failure to do so resulted in the Complainant attending the hearing with her legal team in the expectation that the matter would proceed on that date. Having regard to these circumstances I did not grant the application and the matter proceeded in the Respondent’s absence.

No issues as to my jurisdiction to hear the present case were raised either prior to or during the hearing.

As set out above, the Respondent did not attend the hearing. They also did not provide any written submission or any other form of defence of the present claim. As a consequence, the Complainant’s evidence was accepted on an uncontested basis.

The Complainant submitted that she was unfairly dismissed by means of a false and incorrectly applied redundancy process.

After being approached by an agent of the Respondent, the Complainant resigned her previous role and commenced employment with the Respondent on 11th December 2017. At this point the hotel was not open and it fell to the Complainant, as general manager, to advertise for and hire all relevant staff. Following the successful opening of the premises on 27th December 2017, the Complainant worked to establish the business and improve the reputation of the hotel. Throughout 2018 the Complainant was charged with almost all management functions within the hotel, including sales and human resources. As the business had expanded considerably at that point, the Respondent sought to hire additional managers. It was envisioned that these managers would also cover the Respondent’s anticipated growth into other hotel premises. In May 2018 a Project Operations Managers was hired, later that year a Sales and Marketing Manager was hired. In December 2018 a Head of Operations and Finance was hired, with a Human Resource Manager being appointed in February 2019.

In April 2019, it appeared the Respondent’s business encountered some difficulties, particularly relating to another hotel within the group closing and the apparent loss of the anticipated new premises. As a consequence of the same, the Respondent was placed in a situation whereby the single hotel that was operating was over-supplied with managers. The Complainant stated that she began to feel that she was being “pushed out” at this stage.

On 17th July 2019, the Complainant was invited to meeting described as the “first individual consultation”. This meeting was chaired by the Projects Operations Manager, one of the managers hired the previous year. In the course of this meeting, the Complainant was informed that her job was at risk and that she was in danger of being made redundant. The next day, the Complainant was invited to a further meeting, cumulating with the Complainant being informed that her position was to be made redundant on 28th August 2019. During this process, the Complainant advised that she was willing to undertake alternative roles within the Respondent as a means to avoid redundancy. This suggestion was not accepted by the Respondent, with the Complainant submitting that it was not seriously considered during the consultation period.

Following the completion of the process, the Complainant noticed an advertisement placed by the Respondent inviting applications for the post of General Manager- the role the Complainant had previously filled, and that had apparently been made redundant a few months previous.

It was the position of the Complainant that the redundancy was flawed as she was the longest serving manager within the Respondent organisation. She stated that of all management staff employed by the Respondent, she was the only one apparently considered for redundancy. Finally, she submitted that the role was not in fact redundant as the hotel would always require a general manager. She submitted that the fact that the role was advertised shortly after her dismissal was evidence of the same.

Section 6(1) of the Acts provides that, “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.” While not submitted by or on behalf of the Respondent, it is clear from the correspondence opened by the Complainant that she was dismissed on the grounds of an alleged redundancy.

In a situation whereby the Respondent can demonstrate that such a redundancy is substantively and procedurally fair, they may rely on the defence afforded by Section 6(4)C of the Act, which expressly lists “redundancy” as a ground of dismissal which shall not be deemed to be unfair. In this regard, it should be noted that Section 6(6) of the Acts provides that the onus of proof in relation to the same lies with the Respondent.

It is clear, and accepted by the Complainant, that a potential redundancy situation arose in mid-2019. From the evidence provided, the Respondent hired a number of managers in the anticipation of the continued growth of the company. When this growth did not materialise, the Respondent was unfortunately presented with situation whereby they had employed too many persons in management positions to cater for the actual needs of the business.

By response, it appears that the Respondent commenced a redundancy procedure as respect the Complainant, and the Complainant only. This decision appears somewhat curious having regard to the Complainant’s evidence that she was one of the most senior, if not the most senior, employees of the Respondent. In such circumstances the general manger would usually be party to all management discussions regarding potential cost saving measures and the methods by which these would be implemented. However, the evidence of the Complainant was that she was invited to a meeting regarding her own redundancy without any prior knowledge of the implementation of the redundancy process of the persons that were likely to be affected.

It is also unclear as to why this process was initiated in respect of the Complainant only. While the Complainant accepted that a redundancy situation arose regarding the management of the Respondent, no evidence was provided as to why the Complainant was the only member of management to be subjected to this process. By the Complainant’s evidence, she effectively ran the premises for a number of months prior to the appointment of the other managers. It would follow that the Complainant possessed a skill set of some value to the Respondent that should have been considered prior to her redundancy. The Complainant also submitted that the role of general manager was not one that could in effect be made redundant, and that the Respondent would always require the position to be filled. I find that the advertisement of the role shortly after the dismissal of the Complainant demonstrates that this is the case, and that the role had not in fact been made redundant. Finally, I note that the Complainant stated that she was willing to accept an alternative role less senior to that of general manager in order to avoid dismissal. I accept the Complainant’s uncontested submission that this was not properly considered as part of the process.

In light of the foregoing, I find that the Respondent has not established that the dismissal of the Complainant arose wholly and mainly due to a redundancy. Consequently, I find that the dismissal of the Complainant was unfair for the purposes of the Acts and her complaint is well-founded.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that the Complainant did not wish for the employment relationship to recommence, I find that compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following her dismissal. In evidence, the Complainant stated that following her dismissal, she was unwell for a period of time and unable to secure alternative employment. Notwithstanding the same, the Complainant did secure alternative employment some months after her dismissal. I also note that the Complainant received an ex-gratia payment from the Respondent, which she accepts she would not be entitled to had she not been dismissed.

Having regard to the foregoing, I award the Complainant the sum of €6,000 in compensation. For the avoidance of doubt, this payment is to be made in excess of the payment already received by the Complainant.

Redundancy, Adjournment.