Complainant

Respondent

Anonymised Parties

A bar worker

A Golf Club

Representatives

Complainant

Company Secretary

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-00034530-001

07/02/2020

The complainant was issued with a letter advising her that her contract would be terminated as the employer proposed to contract out part of the restaurant and bar service.   The day after the termination date the employer offered an alternative position to the complainant.

There were no notable events leading up to the dismissal, aside from whispers from Golf Club members, and the complainant was not aware that she was to be dismissed before she was handed her notice on the 17th of January 2020. There were no written or verbal warnings nor staff meetings preceding the notice period. The bar staff were all given notice letters. They were made aware in these letters that the Golf Club would be outsourcing the catering services as of the 2nd of March. They were told that the Golf Club would also be outsourcing the bar services making their jobs redundant. However, they were later told by a member of the council that the Golf Club were not outsourcing the bar services, rather they would be paying the contractor a salary to take on the bar services as bar manager, as the club license dictated that the bar could not be outsourced.

The complainant and others requested a meeting with representatives of the golf club in an attempt to retain their jobs. A representative of the club claimed that the contract had been signed, and there was no reversing the decisions. The same representative stated that the council were able to dismiss staff without reason. Detailed notes were taken at the meeting and these were provided to the attendees for verification on Sunday the 19th of January. On the 25th of January, the staff wrote a letter notifying the council members that they were applying for an adjudication on the grounds of Unfair Dismissal. The complainant does not believe that the proper Disciplinary and Grievances Procedures were followed, and still does not understand why she was dismissed

The complainant was employed by the respondent golf club from 13th July 2018 as casual bar staff. The average hours of work were 14 per week from 1st September 2019 until 29 February 2020 with an average gross pay of €139 per week.

Due to the performance of the bar and restaurant it was decided to outsource the restaurant.   Staff were informed of this in November 2019 and on an ongoing basis thereafter. A potential candidate to take over the restaurant was identified and the first  week of March 2020 was the date on which it was anticipated this would happen.

The impacted staff demanded that they be given their notice in writing and this was given to them on 17th January 2020. They were also advised that the respondent would try to redeploy them. The respondent was able to rescind the notices to the 3 longest serving staff. The complainant was next in line should an opportunity arise. On the last day of her employment an opportunity arose in the Golf Shop. This was communicated to her on 2nd March. She was advised that she would not be terminated, and she stated she was happy with the arrangements and would be in touch on her return from holiday.   The respondent was surprised to hear that she had taken up an alternative position on her return from holiday and worked some shifts before the lockdown.

The complainant alleges that she was unfairly selected for redundancy. The Respondent did initiate redundancies due to reorganisation of the bar and restaurant. However, the respondent made efforts to secure redeployment for the impacted employees. At the end of a period of consultation and at the very last minute the respondent secured an alternative role for the complainant at the end of the notice period.   The redundancy notice was accordingly rescinded, and the complainant remained on the payroll until the Covid lockdown.

Section 1 of the Unfair Dismissals Act 1977 defines a dismissal as follows;

“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 (6) of the Act states;

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal

The burden is therefore on the employer to demonstrate that the dismissal is fair.

The Respondent informed the complainant by letter dated 17th January 2020 of the respondent’s intention to terminate the contract with effect from 2nd March 2020. The Complainant’s last day of work was 1st March 2020.The reason given in the letter was that the Club had decided to outsource the catering and bar service.

The Complainant has argued that the Respondent failed to issue any verbal warnings or use a procedure in any way in advance of the dismissal. There were no disciplinary issues and therefore there was no requirement on the respondent to use a disciplinary procedure. There was however, an obligation to consult in relation to the redundancy. There is evidence that this took place on an informal basis and certainly, through its actions in retaining a number of staff, it is clear that the Club was at all times seeking to minimise the number of staff affected by the proposed outsourcing. However, having issued the notice formally, the obligation was on the respondent to ensure that, if the decision was rescinded, the complainant be made fully aware of this decision. There is disputed evidence in this regard.

The text of 2nd March sent by the respondent to the complainant stated;

I was going to leave you on our books for now until you decide what your (sic) doing. We can arrange for you to do training in the shop when your (sic) available.

The response of the complainant to this text stated;

Perfect thanks so much (name). I’ll be back the 11th of March. Thanks for everything.

It is clear from this exchange that the respondent had informed the complainant of the position in the golf shop and, based on the complainant’s response, was entitled to think that this was acceptable to her. It is also of note that the respondent did not remove the complainant from the payroll. However, this exchange took place after the termination date. The Club Manager was herself on holiday when the complainant returned from holiday and was not in a position to contact her further. The draft letter rescinding the termination of contract was never sent. If the respondent needed more time to consider alternatives to making the complainant redundant, they could have extended her contract in order to do so.   However, they did not and therefore the complainant was entitled to consider the contract terminated on the date indicated by letter of 17th January 2020. The respondent had not processed her redundancy at that date and had not rescinded the termination letter. Therefore, the respondent has not discharged the burden of proof and the dismissal is unfair.

Section 7 of the Unfair Dismissals Act states;

“(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

The complainant was on holidays immediately after her dismissal and was not available for work for that period of time. The respondent had offered her a position on her return as is clear from the text message sent on 2nd March 2020. Therefore, the complainant suffered no financial loss attributable to the dismissal. Accordingly, the compensation payable to her is capped at 4 weeks’ pay.

I find that the complainant was unfairly dismissed and, in accordance with s.7 of the Act, I order the Respondent pay the Complainant:

The sum of € 556 in compensation being the equivalent of 4 weeks’ pay.

Unfair dismissal. Redundancy rescinded after the termination date.