Complainant

Respondent

Anonymised Parties

Television Editor

A Media Organisation

Representatives

Richard Grogan,  Richard Grogan & Associates

none 

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00036080-003

08/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00036080-004

08/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00036080-005

08/05/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00036080-001

08/05/2020

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

CA-00036080-002

08/05/2020

The complainant was employed as a Television Editor with the respondent.  He commenced employment on 16/06/2014.  On 28/02/2020 the complainant was invited to a meeting while he was on holidays in the UK.  He was advised of the importance of this meeting and when he returned to Ireland later that day he attended a meeting.  At this meeting he was told that the company was in a very challenging situation and that the position he held was been made redundant.  He was advised that this was not a reflection on his work and the decision was due to the financial situation that the company was in.  This redundancy was to take effect from 28/02/2020.  He was subsequently provided with written details of his statutory redundancy and final payments from the company.  The complainant was paid €37,500 gross per annum.  He submitted his complaints to the Workplace Relations Commission on 08/05/2020.

The complainant commended employment on 16/06/2014 as a Television Editor with the respondent.  While on annual leave in the UK he received a telephone call from a senior manager on 28/02/2020 and was asked to attend a meeting.  He was told that his attendance was important and, on his return, later that evening he met at 9.30pm.  There were two people along with the complainant at the meeting.  The respondent agreed that he could take written notes and ask questions.  He was told that his position as Television Editor was made redundant.  This was due to the difficult financial situation in the company and the wage bill was the largest financial overhead.  There were nine people made redundant in January 2020 and employees were told that this would alleviate the financial difficulties and no more redundancies were planned.

The complainant had no formal notice of redundancy and when he asked what the selection criteria were he was told that it was simply a matter of wages and that because his wage was too high his position was going to be made redundant.  There were other selection criteria mentioned to the complainant.  When the complainant asked why those earning more than him were not being made redundant he was told that salaries of individuals are confidential.

The complainant was not provided with any documentation at the meeting but was informed that statutory redundancy was on offer and that he would be paid for all outstanding annual leave, expenses due and any days in lieu which had accrued.   Later on, 28/02/2020 he received a letter confirming the decision and setting out details of his statutory redundancy package and details of his final payments which he would receive on 10/03/2020.

The complainant on receipt of legal advice wrote to the respondent and outlined several substantive grounds on which he challenged the basis for making his post redundant.  He noted that there was no consultation with him as required by the Redundancy Payments Act 1967.  When he asked if the respondent would consider his offer of a pay cut he was informed that this was not an option nor were any other cost saving measures such a lay-off or other arrangements.  The complainant noted that he was told at the meeting on 28/02/2020 that the decision to terminate his employment was made on 27/02/2020.  The complainant also notified the respondent that he had concerns about the selection process and that the only reason his post was being made redundant was that his salary was too high.  The complainant also notified the respondent that he did not get the proper notice of redundancy as outlined in the Redundancy Payments Act 1967 and in his case as he had the required service he was entitled to notice in writing of the proposed dismissal two weeks before the date of dismissal.  What he received was a termination letter setting out details of his final payments.  The complainant invited the respondent to respond to the points raised.

The legal representative of the complainant subsequently requested details of why he did not receive a document which complied with Section 3 of the Terms of Employment (Information) Act, 1994 and why he did not receive notice of the proposed redundancy or have any consultation as per the provisions of Section 17 of the Redundancy Payments Act, 1967.  The respondent was also asked to provide details of the reason for dismissal under the provisions of Section 14 of the Unfair Dismissals Act 1977-2015.

The complainant did not receive any replies to any of these requests and lodged his complaints with the Workplace Relations Commission on 8th May 2020.

The respondent did not connect with the virtual hearing.  I am satisfied that the respondent was given adequate notice of the date and time of the hearing. 

The respondent provided the WRC with a written document from its Chief Executive Officer setting out their response to the complainant’s claims.  A further document was received from an Examiner who advised that the company was placed under the protection of the High Court on 15/05/2019.  The Examiner undertook to “consult with Company management so that they can be adequately prepared for the hearing”.  The initial hearing due to take place on 19/10/2019 was rescheduled to facilitate this.

The respondent did not make any further contact with the WRC in relation to this matter.

The complainant provided a comprehensive submission in relation to his complaints.  He also furnished supporting documentation in relation to the various complaints.  Arising from the submissions and evidence provided at the hearing there is no dispute in relation to the complainant’s employment dates and salary.  It is also not disputed that he was dismissed by reason of redundancy with effect from 28/02/2020.

CA-00036080-001:  This is a complaint pursuant to the Terms of Employment (Information) Act, 1994.   The complainant submits that he did not receive a document which complies with Section 3 of the Act.  At the time the complainant commenced employment with the respondent Section 3 of the Act requires an employer to provide the employee with a statement containing the following information:

(a)    “The full names of the employer and employee,

(b)    The address of the employer in the state or, where appropriate, the address of the principal place of the relevant business of the employer in the State or the registered office (within the meaning of the Companies Act, 2014),

(c)     The place of work or, where there is no fixed or main place of work, a statement specifying that the employee is required or permitted to work at various places,

(d)    The title of the job or nature of the work for which the employee is employed,

(e)    The date of commencement of the employee’s contract of employment,

(f)      In the case of a temporary contract of employment, the expected duration thereof or, if the contract of employment is for a fixed term, the date on which the contract expires,

(g)    The rate or method of calculation of the employee’s remuneration,

(h)    the length of intervals between the times at which remuneration is paid, whether a week, a month or any other interval,

(i)      Any terms or conditions relating to hours of work (including overtime),

(j)      Any terms or conditions relating to paid leave (other than paid sick leave),

(k)     Any terms or conditions relating to- (i) incapacity for work due to sickness or injury and paid sick leave, and (ii) pensions and pension schemes,

(l)      The period of notice which the employee is required to give and entitled to receive (whether by or under statute or under the terms of the employee’s contract of employment) to determine the employee’s contract of employment or, where this cannot be indicated when the information is given, the method for determining such periods of notice,

(m)  A reference to any collective agreements which directly affect the terms and conditions of the employee’s employment including, where the employer is not a party to such agreements, particulars of the bodies or institutions by whom they were made.”

The Terms of Employment (information) Act, 1994 implements an EU directive and applies to all persons working under a contract of employment or apprenticeship (whether on a fulltime or part time basis).  It includes persons working through an employment agency where the party remunerating is responsible for the provision of the said statement of terms.  The Act also provides that an employer must notify the employee of any changes in the particulars already detailed in the statement of terms.  The complaint was made on 8th May 2020.  The contravention must have occurred within the six-month period prior to that date. 

Based on the uncontested evidence provided there was a contravention of the Act during the relevant period.  In circumstances where I consider the complaint to be well founded, I may require a statement to be provided.  In addition, I am entitled to direct a payment of compensation up to the value of four weeks remuneration such that is just and equitable in all the circumstances.  Given the circumstances of this case there is no longer a requirement to provide the terms.  I am guided by the Labour Court in Morehampton Foods Ltd v Gibbons TED 18/2017, where the Court confirmed that a failure to comply with s.2 of the Act “constitutes a single contravention of the Act” and that it was not the case that every omission from a statement mandated by s.3 constituted a stand-alone infringement to which the statutory limit on compensation should be separately applied.  Having considered the evidence in this case I believe that the full compensatory limit under section 7(2) should be applied.  I therefore order that the respondent pay the complainant the sum of €1,442.30 representing two week’s remuneration which I consider to be a just and equitable sum having regard to all the circumstances in this case.

CA-00036080-002: This is a complaint seeking adjudication by the WRC under section 8 of the Unfair Dismissals Act, 1977.  The fact of dismissal is not in dispute.  It is also not disputed that the complainant was dismissed by reason of redundancy.  The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant.  The written statement from the respondent provides a chronology of the company’s financial situation and the challenging impact this had on their dealings.  The turnover fell by 75% and there were no funds to pay staff wages.  Despite resignations and a reduction in headcount of 16 these challenges continued. At the end of February 2020, a total of nine employees were let go.  Five were on short term service and four employees were made redundant and were “paid their full legal entitlement.”

Turnover did not return to near normal levels. In that context further redundancies were considered. In their submission the respondent states that “it was not our objective NOT to make any long serving redundancies.”  Despite this the respondent notes that the complainant “was selected for redundancy as it met the criteria and was no longer a critical job.”  At a meeting on 28th February 2020 the complainant was clearly told that they had to remain financially stable and that reducing wages was they way to reduce overheads.  The complainant was told that he was going to be dismissed by reason of redundancy and that this was due to fact that his wages were deemed to be too high.  It was emphasised to the complainant that his work was outstanding, professional and the decision to dismiss was not a reflection on his work.

The Unfair Dismissals Act, 1977, s.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.”    Section 6(4)(B) provides that where a dismissal arises “wholly or mainly” as a consequence of “the conduct of the employee” such a dismissal “shall be deemed…not to be an unfair dismissal for the purposes of the Acts.  Section 5(6) of the Unfair Dismissals Act provides that:  “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 (6) (4)”.  

Section 6(7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:

(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…with the procedure…or with the provisions of any code of practice…”

S.I. No 146/2000 which is more commonly cited as the “Code of Practice on Grievance and Disciplinary Procedures” sets out the basic procedure which a respondent should follow prior to dismissing an employee.  In simple terms these include; putting any allegations to the complainant in advance of a hearing, allowing the complainant the opportunity to properly defend himself at a hearing, permitting the appropriate right of representation and allowing an internal appeal of any decision to dismiss.  These are not complex principles and while this instant case does not relate to misconduct the respondent is still obliged to adhere to the principles outlined.

While the respondent clearly had financial difficulties, which may have necessitated significant cost saving measures, the obligation to follow basic principles is not abrogated in such circumstances.

In the matter of Back of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following extract:

“the correct test is: was it reasonable for the employers to dismiss him?  If no reasonable employer would have dismissed him, then the dismissal was unfair.  But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair.  It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.”

Having regard to the foregoing points and the totality of the evidence as presented I find that the respondent has not provided any evidence that the dismissal was substantially and procedurally fair. The respondent has not provided evidence of fair selection for redundancy.

I believe that no reasonable employer would have dismissed the complainant.  In the light of this conclusion I find that the dismissal of the complainant by reason of redundancy was unfair for the purposes of the Acts and the complainant’s claim is well-founded.  In relation to redress I believe that compensation is the appropriate redress in this case.  The complainant has provided submissions in relation to his attempts to secure alternative employment.  The complainant has specialised skills and along with the difficulties that arose from the restrictions which arise from the Covid-19 pandemic I accept that it took until October 2020 to secure alternative employment.  This resulted in the complainant having a loss of salary for eight months and his new employment is €3,000 less per annum.

 Section 7(1)c(i), as inserted by the Unfair Dismissals Act 1993 empowers me to award compensation not exceeding 104 weeks remuneration in such circumstances.  Having assessed the submissions and evidence presented I award the Complainant the sum of €28,000.  This sum is in excess of the statutory redundancy payment already paid to the complainant in March 2020.

CA-00036080-003: This is a complaint seeking adjudication by the WRC under section 39 of the Redundancy Payments Acts, 1967.  The complainant provided an authoritative account of the meetings he attended, and the correspondence exchanged with the respondent.  The following is a summary of the sequence of events:

·       28/02/2020: Complainant received phone call from senior manager to attend meeting.  Complainant was in UK on holidays but attended a meeting later that evening on his return.

·       At the meeting he was advised about the “very challenging” financial situation.

·       Complainant told his position was been made redundant and the reason for this was “simply due to finances.”  No other selection criteria presented at the meeting.

·       Complainant wanted to discuss a potential pay cut.  This was rejected by the respondent.

·       Complainant advised that statutory redundancy was on offer and he would receive payment for outstanding annual leave expenses and any days in lieu and these payments would be made on 10/03/2020.

·       Complainant told his last working day would be 28/02/2020.

·       Letter received on 28/2/20 (at 22.07) advising of redundancy and details of payments due.

·       23/03/2020 complainant contacted respondent which outlined his concerns about the decision and process.  The complainant also advised the respondent of its legal obligations in such circumstances and that he received advise that his rights were breached and in particular:

1.        Failure to consult in line with provisions of Redundancy Payment Act

2.       Selection process for redundancy not objective or fair

3.       Notice of redundancy in contravention of the provisions of the Redundancy Payments Act

·       No response was provided to the complainant

·       08/05/2020: Complainant submitted his complaint to WRC.

·       12/08/20: Respondent provided written statement in response to the complaints.

It was submitted on behalf of the complainant that the entire process in this case were not in line with fair procedures.  In this case no procedure was followed.  The complainant was invited to a meeting while on annual leave and it was at this meeting he was told that he was been made redundant.  The complainant was not afforded the right to representation and was not given an opportunity to put his view on the matter.  He was not given the right to appeal. 

The respondent in their written submission outlined the sequence of financial difficulties.  I accept that the Respondent is entitled to restructure its business model to maintain its position within the specialist area that it operates. 

There is a considerable amount of case law in relation to the reasonableness of the employer in relation to the fair and objective selection of employees for redundancy.  In Boucher v Irish Productivity Centre [1994 EL 205] the Tribunal enunciated the burden on an employer to: “establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made.”

In the within case the proposed restructuring proposed by the respondent would see the complainant’s role removed.  The respondent states that the complainant “had not embraced the new skills he was require to learn, and in some instances resisted attempts to guide him, and as a result his writing contribution became less relevant to the business throughout 2019 and 2020.”

The absence any evidence of discussions or a consultation process is remarkable.  The lack of engagement with employees and in particular the complainant in relation to the serious financial issues which the Respondent was facing undermines the Respondent’s view that they were conducting a fair process.  When redundancy is put forward as the reason for the termination of employment it is necessary for the Respondent to establish that the purported redundancy not only meets the definition of that term but also that the Complainant was fairly dismissed by virtue of fair selection for redundancy.  The Respondent has provided any evidence in support of this. I find that the complaint is upheld.

CA-00036080-004 and CA-00036080-005: Pursuant to Regulation 6 of SI of 488/2000 European communities (Protection of Employment) Regulations, 2000 the Complainant has presented a complaint that the Respondent has contravened Section 9 and/or 10 of the Protection of Employment Act, 1977 wherein certain obligations are imposed on employers in collective redundancy situations.  If the complaint is deemed to be well founded I can require the employer to comply and/or I can direct that the employer pay compensation as is just and equitable having regard to all the circumstances but not exceeding 4 weeks’ remuneration.

The respondent in their written submission stated that they had a total of 88 employees in January 2020 and they needed to reduce this to around 60.  There were 7 resignation and 16 transferred to another part of the business under a new owner.  By the end of January, the headcount had reduced to 56 and there were no redundancies.  In February there were a further 6 resignations and 9 contract terminations.  Redundancies were first considered at the end of February and a total of four redundancies were made.

This provision relates to collective redundancies and has no application to the facts of the complainant’s case.  These complaints are not well founded.

CA-00036080-001:  Section 7 of the Terms of Employment (Information) Act 1994 required that I made a decision on this complaint.  I find that this complaint is well founded, and I order the respondent to pay the complainant compensation of €1,442.30 representing two week’s remuneration.

CA-00036080-002: I find that the complainant was unfairly dismissed within the definition of the Acts and I find that his complaint is well founded.  In relation to redress, Section 7(1) empowers me to order reinstatement, reengagement or a payment of compensation to be made to a successful complaint under the Act.  Having considered the matter I find that compensation is the most appropriate redress in this case.

In calculating such compensation, regard must be had to the complainant’s attempts to mitigate his losses following his dismissal.  I note that the complainant’s skill is specialised and that it the restrictions which arise from the Covid-19 pandemic made it difficult to secure employment.  The complainant provided substantial evidence of his attempts to secure employment.  He eventually secured employment on 20/10/2020.  His actual loss is calculated at eight months and in his new employment his salary is €3,000 less per annum.  Section 7(1)c(i), as inserted by the Unfair Dismissals Act 1993 empowers me to award compensation not exceeding 104 weeks remuneration in such circumstances.  Having regard to the submissions and evidence presented I award the Complainant the sum of €28,000.  This sum is in excess of the statutory redundancy payment already paid to the complainant in March 2020.

CA-00036080-003: Complaint is well-founded.  The Complainant has received statutory redundancy.

CA-00036080-004 and CA-00036080-05:  These complaints are not well-founded.

Unfair dismissal.  Redundancy. Terms of Employment.