ADJ-00031669

Complainant

Respondent

Parties

Carol Ann  Forde

ONC Freight Limited T/A Lynx Transport

Representatives

  Self

 Declan Shaughnessy, Director

Act

Complaint Reference No.

Date of Receipt

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

CA-00042231-001

30/01/2021

The Complainant commenced her employment with the Respondent on 30th April 2018. Her employment was terminated on 5th October 2020. She was paid €480 a week.

The Complainant referred her claim to the Director General of the WRC on 30th January 2021 alleging that she was unfairly dismissed.

At the outset of the adjudication hearing it became apparent that the trading name of the Respondent on the Complainant’s referral form was incorrect as it included “and Logistics”. The Respondent did not object to the amendment of the name to remove these words. The name of the Respondent was therefore amended accordingly.

The Respondent submits as follows:

The Complainant commenced her employment with the Respondent in April 2018 as a data entry clerk on the night shift. Approximately one year later a vacancy became available on the day shift and the Complainant was offered the position. This role was based in the Customers’ Collections team and was a particularly difficult and stressful role that required local knowledge, fast thinking and immediate or very short response times. The Complainant began her role in the position on 10th April 2019. However, on 14th May 2019, the Complainant informed the Respondent that the role was too stressful and she therefore wanted to switch roles with another employee to a standalone docket scanning role. This switch was facilitated, and the Complainant began working in the docket scanning role on 28th May 2018. The Complainant remained in the docket scanning role until she commenced her maternity leave on 29th November 2019.

Ms A was employed on 6th November 2019 to provide cover for the Complainant’s role while she was on maternity leave. However, due to the Covid-19 pandemic and the Government guidelines and restrictions, the docket scanning role became redundant. The Respondent could no longer handle their customers’ paperwork and so the business model had to change with the delivery drivers entering the information into their mobile phone apps rather than having one employee handling documentation from each of the drivers. Ms A was made redundant on 6th July 2020 as there were no other vacancies within the company to which she could have been reassigned and also, given the Covid guidelines, there was no physical space to accommodate more staff.

A vacancy subsequently became available in the Collections team, the role the Complainant held in April 2019. The Respondent did consider the Complainant for the role but believed that the Complainant would have no desire to take up a position in the Collections team due to the fact that she had previously requested to leave the role after only 1 month because she thought it was too stressful. 

Further, the advice the Respondent had received at the time was that maternity protection legislation prevented the Respondent from contacting the Complainant until her maternity leave was finished.

The Respondent therefore offered the role in the Collections team to Ms A who had covered the docket scanning position during the Complainant’s maternity leave before it was made redundant.

The Complainant’s maternity leave ended on 18th September 2020 but she informed the Respondent that she had 14.96 holiday days to take and it was agreed that she would take 10 days holidays and return to work on 5th October 2020. However, on 2nd October 2020 when the Complainant’s maternity leave had officially come to an end, the Respondent informed the Complainant that she was being made redundant and it arranged a meeting on 6th October 2020.

The Complainant attended the meeting on 6th October 2020 where she was informed that her role within the business had become redundant. The Respondent provided the Complainant with a redundancy letter and explained that the position had become redundant due to the role now being completed automatically with drivers signing off on behalf of consignees on delivery in order to minimise the risk of exposing employees to Covid-19. The Respondent explained that it hoped that a suitable vacancy would become available which would enable the Respondent to reassign the Complainant but unfortunately this did not happen.

The Respondent submits that it believed the maternity protection legislation prevented it from informing the Complainant of the redundancy / risk of redundancy any sooner.

The Respondent submits that it provided the Complainant with her payslips for the remaining terms of her employment which included 7 days bank holidays accrued while on maternity leave, the 10 days holidays as requested and her redundancy cheque.

The Complainant received €2,908.880 in redundancy, €1,920 in respect of four weeks’ pay in lieu of notice, €672 for the 7 bank holidays which the Complainant accrued on maternity leave and €4,960 for the 10 days holidays the Complainant took before returning to work after her maternity leave. This came to a total of approximately €6,460.

The Respondent submits that on 20th May 2020 the Complainant emailed the Respondent to ask how much would the Respondent be willing to pay if she didn’t proceed with her application before the WRC. On 28th March 2020 the Complainant asked the Respondent to propose a settlement to which the Respondent replied with the following questions:

A)      How long was the Complainant out of work before recommencing employment?

B)      What the Complainant’s salary was when she recommenced employment?

The Respondent asked these questions to establish what loss, if any, the Complainant incurred as a result of having been made redundant. The Complainant failed to respond to these questions.

The Respondent submits that in the complaint form, the Complainant confirmed that she had recommenced employment. The complaint was filed on 30th January 2021 which means that even if the Complainant only recommenced employment on that day, she would have been out of employment for a maximum of 16 weeks. The Complainant received full pay for the first four weeks. She then received 6 weeks’ redundancy payment and then received a further two weeks’ worth of holiday pay which would mean that the Complainant suffered a loss of, at most, 4 weeks’ worth of pay prior to taking up her new employment.

At the adjudication hearing the Respondent confirmed that at the relevant time it employed 62 people, approximately 28 drivers, 8 admin staff, 2 staff in accounts and the remaining in the warehouse. There were no other redundancies. The Respondent confirmed that the business is busier now than it was in October 2020.

The Respondent confirmed that the Complainant was not made aware of the possibility of redundancy in advance, she was not invited to make suggestions as to alternatives to redundancy, and there was no avenue of appeal made available to the Complainant. The Respondent confirmed that no lay off or short-time arrangement were considered.

The Respondent confirmed that it did not consider an alternative role for the Complainant in its sister company. However, the Respondent argued that there was no alternative position available in the sister company as there is no requirement for admin staff.

The Respondent clarified that while it switched to electronic dockets in March 2020, Ms A’s employment was not terminated until 6th July 2020 and she was included in the Wage Subsidy Scheme. Ms A was subsequently offered the position in the Collections team in or around the last week of August 2020. She accepted the offer and is still working for the Respondent.

It was put to the Respondent by the Complainant that the Complainant was in communication with the Respondent in August 2020. The Complainant inquired when did the Respondent became aware that there was a possibility of redundancy and that there was an alternative position in Collections team to which the Respondent answered that it had no idea. The Respondent said that it thought that a position would become available.

The Complainant submits as follows:

The Complainant commenced her maternity leave on 30th November 2019, with the view to returning in May 2020 after 6 months. However, in light of the current situation, she liaised with the Respondent and agreed that she could extend her leave using her unpaid maternity leave entitlement with a due date to return on 18th September 2020. The Complainant submits that all was done correctly, and it was agreed that she would be in contact with the Respondent in August 2020 to arrange a return date.

As the Complainant accumulated some annual leave during the year, in August 2020 when the Complainant was arranging a return date, she asked the Respondent if it would suit them for her to take some of her leave before coming back into the office. The Respondent was happy with this and agreed. The agreed return date was Monday 5th October 2020.

The Complainant submits that she received a call on 2nd October 2020 from Mr Shaughnessy informing her that she was being made redundant and that there was no need to come to work on Monday. Mr Shaughnessy wanted to arrange a meeting to sort out redundancy payment, etc. It was agreed that the meeting would take place on 6th October 2020.

The Complainant submits that in attendance at the meeting on 6th October 2020 was her sister Ms F, Mr Shaughnessy, Ms G of the Respondent and the Complainant. Mr Shaughnessy said in the meeting that the Complainant’s position was no longer needed as a result of reorganising of work processes due to Covid-19 and that the person who was brought in to cover the Complainant’s maternity leave was let go in April 2020. The Complainant was told that she was being let go immediately and she was paid in lieu of notice. Mr Shaughnessy also said that while the Complainant was on maternity leave, the other staff members were cross trained into various roles. When the Complainant asked why was the training not available to her, Mr Shaughnessy said that it was because the training was completed when she was on maternity leave and the Respondent was unwilling to carry out any training for the Complainant. The Complainant submits that Mr Shaughnessy reiterated several times that he wasn’t sure what he was doing. When the Complainant asked questions as to why was the notice so short if the Respondent knew in April that there was no place for her, and if the person who replaced the Complainant was still working for the Respondent, Mr Shaughnessy avoided the questions. He advised the Complainant that he did not inform her of her termination as she was still on maternity leave and now, when she was technically on annual leave, it was sufficient. 

The Complainant submits that after the meeting she was informed that the person who covered for her during her maternity leave was rehired prior to the Complainant being made redundant for a role that the Complainant was told was not available to her.

The Complainant argued at the adjudication hearing that she was not the person with the shortest service and should the Respondent apply last in first out approach, she would not have been dismissed. The Complainant argued that she had a good knowledge of the systems, etc. and she could have been moved to another job.

The Complainant noted that it was not appropriate to assume that she would not have accepted the full-time position in the Collections team, she noted that she would have accepted the position. The Complainant explained that the move from the position in Collections team in May 2019 was a result of a direct swap with another employee as the respective hours of work suited them better after the swap. The Complainant noted that she was capable of working in another admin position within the Respondent organisation, she said that while her job was 12pm to 8pm the drivers didn’t come until 4pm and, as a result she would often assist in the admin department.  The Complainant also noted that she is well educated having obtained a Bachelor’s degree and a Higher Diploma. She contended that she is well able to do any job.

The fact of dismissal is not in dispute. Consequently, having regard to the Act at Section 6(1), the burden of establishing that the dismissal was fair rests upon the Respondent. The Complainant argues that she was unfairly dismissed. The Respondent contends that the dismissal of the Complainant was a redundancy necessitated by the change of the business model and the switching from manual scanning to using a mobile phone application.

The Law

Unfair Dismissal Act

6. Unfair dismissal

(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.…

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971 as amended by the Industrial Relations Act 1990, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(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,  

(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.

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(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 by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

Under the Unfair Dismissals Act, redundancy has the same meaning as it has under Section 7(2) of the Redundancy Payments Act, 1967, as amended:

“(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is 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 henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, 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 henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

The Unfair Dismissals Act deems a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair. Where the redundancy is put forward by the Respondent as the reason for termination of employment it is necessary for the Respondent employer to show that the purported redundancy not only meets the definition of the term but also that the Complainant was fairly dismissed by virtue of fair selection for redundancy.

 In the leading case of Panisi v JVC Europe Ltd. [2012] ELR 70 Charleton J held:

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”

 Further the High Court in Panisi held:

“It may be prudent, and a mark of genuine redundancy, that alternatives to letting an employee go should be examined…Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer.”

The Labour Court held in the case of Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854:

“The Court accepts that the Respondent was entitled to restructure its business and reduce its workforce if necessary. While the Court accepts that the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain her employment must have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved.”

In respect of fair assessment for selection, as set out in the ‘Redundancy’ chapter by Terence McCrann in Murphy & Regan “Employment Law”: ‘For a redundancy selection to be fair, objective selection criteria must be applied to the correct pool of employees. In particular, the pool of selection must be reasonably defined, and the selection criteria employed by the employer must be applied to all employees ‘in similar employment’.

In its determination in Gillian Free v Oxigen 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”.

I accept that, due to the Covid-19 pandemic the Respondent was required to implement certain operational changes as a result of which the role the Complainant carried out no longer existed. However, as per the Respondent’s own evidence the business continued to operate at the same level as pre-Covid-19. The Respondent confirmed that at the time of the dismissal there were no other redundancies.

The Complainant did not receive any notice of the proposed dismissal, as required by the Redundancy Payments Acts and there was no forewarning of any risk to her position. I note the Respondent’s submission that it was prohibited from contacting the Complainant as she was on maternity leave. However, I also note that the parties were in regular contact in August 2020 and that the Complainant’s maternity leave ended on 18th September 2020. She then commenced a period of annual leave and the Respondent waited until the last day of that leave to inform her of the dismissal.

The dismissal involved no consultation of any description. The Respondent asserted at the hearing that there was no longer a requirement for the Complainant’s role. The Respondent did not offer any evidence in respect of the steps taken to identify the Complainant as an employee at risk of redundancy. Neither did the Respondent show what criteria were applied to employees at the risk of redundancy, if any. No advance consultation regarding the selection criteria were held. The Respondent has no redundancy procedure in place and argued that the Complainant’s role was a standalone role. There was no engagement with the Complainant as regards alternatives which might exist. The Complainant was not given the opportunity to make suggestions as to why she should be retained and on any alternatives that might be considered. The absence of knowledge on the part of the Complainant that the termination of her employment was in contemplation deprived her of an opportunity to make proposals as regards her future role in the organisation or to otherwise make a case for her retention in employment.  The Complainant was not given the right to representation.

While the Respondent said that it had reviewed the possible alternatives within the Respondent entity, there was no evidence proffered in that regard. The Respondent merely stated there were no other alternatives for the Complainant’s skillset. I was not presented with information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options. The Respondent confirmed that a position became available and was not offered to the Complainant for consideration. I find that it was not within the Respondent’s gift to decide for her in that regard.

The Respondent confirmed that neither lay off or short-term working arrangements were considered.

The Respondent confirmed that there was no avenue of appeal available to the Complainant in the situation where she was dissatisfied with the decision to terminate her employment.

Having carefully considered all evidence and submissions of the parties I accept, on balance that the requirements for the work the Complainant was carrying out had ceased as a result of the changes implemented due to the Covid-19 pandemic.  On that basis I find that there was a redundancy situation. However, it is clear that sufficient efforts were not made to seek alternative roles for the Complainant. I find that the procedure adopted by the Respondent lacked transparency and fairness. I conclude that the Respondent has failed to discharge the burden resting upon it by virtue of Section 6(6) of the Act and the dismissal of the Complainant was consequently unfair.

Redress and mitigation of loss

The Complainant sought compensation. I have considered the remedies available and I have decided that reinstatement or reengagement is not practical in this case. Given the circumstances I take the view that compensation is the appropriate form of redress.

The Complainant presented evidence in relation to her efforts to mitigate her loss. She secured new temporary employment from 18th January 2021 and subsequently a permanent role on 10th February 2021.

Having assessed all the information before me, I consider that the Complainant has suffered financial loss as a result of her unfair dismissal and I award the Complainant compensation in the sum of €7,200.

For the avoidance of any doubt this sum is in excess of the statutory redundancy payment already made to the Complainant.

Having considered the submissions of both parties and the evidence adduced, I declare that the complaint is well founded and I award the Complainant the sum of €7,200 in compensation for her unfair dismissal.

Dismissal- redundancy-