FULL RECOMMENDATION
PARTIES : DUBLIN TECH SUMMIT F5 DIGITAL MEDIA COMMUNICATIONS LTD DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00026252 CA-00033191-001 The Claimant had been employed by the Respondent from March 2017 until September 2019 when her employment was terminated. Summary position of the Respondent The Respondent submitted that the Claimant had lost her employment by reason of redundancy following a fair and objective process. She had been employed as Marketing and Communications Manager Dublin Tech Summit. Following a meeting in July between the Managing Director and the business owner it was decided that costs would have to be reduced and that there would have to be a reduction in the numbers of staff employed. The Managing Director met with all members of staff on 27thAugust 2019 at which time the Claimant sought to be considered for a pay rise. She was advised that this would not be possible by reason of the fact that the company was under financial pressure due to the under-performance of revenues. A range of positions were not replaced or not renewed and a decision was made to make the position of Marketing and Communications Manager Dublin Tech Summit redundant. The Managing Director met with the Claimant and one other member of staff and discussed their skills and abilities in the context of adapting the marketing approach to be more focussed on PR, social media and active engagement. Based on those conversations it was decided that the Claimant’s role would be made redundant. She was advised that her finishing date would be 13thSeptember 2019 but that she would be paid until 6thOctober 2019. The Respondent has not filled the role of Marketing and Communications Manager Dublin Tech Summit in the period between the date of departure of the Claimant and the date of the hearing of the Court. The Claimant’s role was a PR and Digital Communications role and since the redundancy, the PR role has been undertaken by the Managing Editor while the Digital Communications role was absorbed by the Digital marketing manager. The Respondent retained the other member of staff who had been spoken to in the context of an assessment of skills and abilities because she had established strong relationships with customers and because the Claimant had highlighted that she was unable to carry out that role. In fact, she stated that she had no interest in the client management role. It was in that context that the Claimant’s employment was terminated rather than the employment of the other person who had been spoken to at the time. The Respondent conducted a fair process to consider all roles within the company and the qualifications of staff. In that process, staff were consulted. In response to questions from the Court, the Managing Director confirmed that the Claimant had not been advised prior to or at the meetings convened to consider her skills and abilities that the purpose of such meetings was to make a decision as regards which roles to eliminate in the context of the Respondent’s consideration of all roles within the company and which persons would lose their employment having regard to their skills and abilities. In particular, the Claimant was not advised that the meetings could lead to the loss of her employment through redundancy. The Respondent also confirmed that the Claimant was not invited to make suggestions as to alternatives to the termination of her employment. Summary position of the Claimant The Claimant was employed as Marketing and Communications Manager in March 2017 reporting directly to the CEO. Her work related to a range of events such as the Dublin Tech Summit. After the 2017 event the Claimant was one of fours staff retained in full time employment. The Claimant was the sole person responsible for all aspects of the marketing, communication and press outreach. In the weeks before April 2019 the CEO advised the Claimant that she would be recommended for a pay rise after the 2019 event. Following the 2019 event, the staff of the business were advised that the Respondent company and another company would merge, that the then CEO would be leaving the business and that a new Managing Director would take up duty. At that time the Claimant was asked to take on the role of Speakers Manager while that position was being advertised. Staff were advised over the Summer of 2019 that sales staff were not meeting targets. The subject of redundancy was never mentioned. On 27thAugust 2019 the Claimant met with the MD to discuss marketing plans as was commonplace. At that meeting the Claimant mentioned that she would like to be considered for a pay rise. The MD advised the Claimant that the company was in financial difficulty and advised her that if wanted more money she should find a new job. This assertion was upsetting to the Claimant and the MD stated that the Claimant was a valued member of staff and that the company recognised how much she had done in terms of her role and her efforts to develop the business. The MD asked the Claimant to think about her day to day tasks and arranged for another meeting to discuss how the Claimant could grow in her role and how she and the company could continue a happy working relationship. That second meeting took place on 6thSeptember 2019 whereat the Claimant expected to be given further responsibilities and to discuss how she could grow in her role. The meeting took place at the end of the working day as the rest of the staff were leaving the premises. It was a very short meeting during which the Claimant was advised that she was to be made redundant. The Claimant had actively sought employment following the termination of her employment with little success until, in July 2020, she secured full time employment. Discussion and Conclusions The Court has considered carefully the submissions of the parties. The Respondent submitted that it conducted a fair and transparent process leading to the termination of the Claimants employment by reason of redundancy. The Claimant submits that she had no notice of the Respondent’s decision to terminate the employment. The Court accepts that the Respondent was entitled to restructure its business and to reduce its workforce as it considered appropriate having regard to operational requirements and indeed, as was the case apparently in the employment, financial considerations. It is common case that the role of the Claimant was made redundant at the material time. It is also common case that, whereas the Respondent convened two meetings with the Claimant in late August and early September 2019, the Claimant was not advised that the intent of those meetings was to assess her skills and qualifications to discharge a role in the company following the redundancy of her position. Neither was she aware that the Respondent was, by its own account, engaged in a comparative exercise with another employee wherein the skills and qualifications of that employee were also being assessed. The Court notes the Respondent’s submission that the decision to terminate the employment of the Claimant and to retain the other employee was taken after these meetings. It is common case that the Claimant, not having been advised that the termination of her employment was in contemplation, was not asked to make any submission as regards her suitability to carry out a role in the restructured company. The Court cannot accept that what amounted to a selection process designed to identify as between two employees who should be retained in the business, can be considered fair or transparent in circumstances where, as is accepted by the Respondent, neither employee was made aware that such a process was being conducted. It is the dismissal of the Claimant which is at issue in this appeal. It is not disputed that the role carried out by the Claimant was made redundant and that the various elements of that role were assigned to other staff through a re-alignment of responsibilities in the company. However, the matter before the Court relates to the termination of the Claimant’s employment following on from the redundancy of her role. The Claimant contends that her dismissal was unfair notwithstanding the fact that her role had been made redundant. The Respondent submits that the dismissal of the Claimant was fair within the meaning of the Act. The Act at Section 6(1) provides as follows 6.(1) 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. The Act goes on to provide at Section6(4)(c) as follows 6(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: (c) the redundancy of the employee, and It is clear therefore that, in the present appeal, the Respondent bears the burden of establishing that there were substantial grounds justifying the dismissal of the Claimant. In discharge of that burden the Respondent submits that her dismissal resulted from a redundancy of her role and following the conduct of a process designed to identify as between two employees which employee would be retained in the business as a result of that redundancy. The Respondent has accepted that neither employee whose employment was in jeopardy as a potential consequence of a process to assess the comparative skills of both was aware of that fact. In the view of the Court, this absence of knowledge on the part of the Claimant deprived her of an opportunity to properly address the matters under consideration in the selection process and deprived her of the opportunity to make proposals as regards her future role in the company or to otherwise make a coherent case for her retention in employment. In those circumstances the Court concludes that the procedures adopted by the Respondent to identify as between two employees which employee should be dismissed were so lacking in transparency and fairness as to mean that the Court cannot accept that the dismissal of the Claimant arose through ‘the redundancy of the employee’. This is so because the Respondent has been unable to demonstrate a fair process of decision making leading to the dismissal of the employee as against another employee arising from the redundancy of the Claimant’s previous role. In those circumstances the Court must conclude that the Respondent has failed to discharge the burden resting upon it to establish that the dismissal of the Claimant was fair. Determination For the reasons set out above the Court is satisfied that the Complainant was unfairly dismissed. Taking all of the circumstances of this matter into account the Court determines that the appropriate form of redress in this case is compensation in respect of the financial loss suffered by the Claimant as a result of her dismissal. The Court has noted carefully the earnings of the Claimant prior to her dismissal, the attempts made by her to secure employment following her dismissal and the fact that she secured full time employment in July 2020. The Court, having regard to these matters, orders the Respondent to pay the Complainant compensation in the amount of €7,750, being the amount which the Court considers to be just and equitable in all of the circumstances. The Decision of the Adjudication Officer is varied accordingly. The Court so Determines.
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