ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference:  ADJ-00028749

Parties:

Complaint(s):

Date of Adjudication Hearing:  03/03/2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint

This matter was heard by way remote hearing pursuant to the Civil law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings.

Background

The complainant was employed by the respondent from the 2nd May 2016 until the 20th January 2020 as a sales specialist. She was paid €2083.33 gross per month (€1821 Net per month) The complaint submitted that she was Unfairly dismissed by reason of unfair selection for redundancy.

Preliminary issue

The Legal representative on behalf of the respondent raised an issue on the complainant’s representative on the basis that he was not known to either legal representatives or the adjudicator and was he familiar with Irish employment law.

The complainant representative gave a very brief outline of his background. He stated that he graduated in law and specialised in employment law and he has been a member of a Trade Union in United Kingdom and Italy.

The Adjudicator decided to reserve his position on the representative and allow the hearing to proceed.

Summary of respondent position

The Complainant commenced employment on the 2nd May 2016 and all times that she was employed in sales in an Italian speaking role. She never worked as an English speaker, she may have done so on an odd occasion.

The complainant employment was terminated by reason of redundancy due the respondent’s client (name supplied) reducing contract staff involved in the chat function project.

At all times, the claimant was given the opportunity to move to another area of the respondent’s business and further suitable alternative employment was offered, which was refused by the claimant. There was full consultation with the complainant.

The dismissal of the claimant was therefore fair and lawful in accordance with section 6(4) of the Unfair dismissal Act 1977, as amended.

The complainant role was as a sales assistant and the duties involved working as part of a chat team encouraging users to the platform.

The respondent provided. inter alia, support to the client in respect of chat and sales support and this was the basis of the complainant’s employment. In 2019 the client reviewed their HCO chat/sales support from time to time to provide the best possible customer support, they made structural changes so that client would cease its outsourcing operations with the respondent in chat/sales support and all 6 employees engaged on this team, including the complainant position were made redundant. This was a decision was entirely out of the control of the Respondent.

All the effected employees, including the complainant, met with the respondent’s senior Operations Manager (G O’S) and Hr (LH). They were informed that redeployment opportunities were being explored within the respondent to avoid termination of employment by reason of redundancy.

 As such employees affected by the cessation of the clients chat support were offered the opportunity to apply for alternative roles. This was due to there being more people available for other sales-based roles than available roles. The six people within the complainant’s team, including the complainant were given the option to select their first and second preference of roles within the vacant sales positions. Two employees expressed an interest in the Italian role an interview was held with the complainant and equally with her colleague but unfortunately, she(complainant)was not successful in her application. The complainant was informed of this outcome on the 13th of December 2020.

The respondent submitted that the complainant alleges that she applied for the English role and the Italian SRD role, this is not correct. She applied for one role the SDER Italian speaking role and raised no concerns with the absence of consideration for the role until after the English-speaking role was filled.

The Respondent stated that there was only one application for the English-speaking role so there was no need for an interview. As the role had already been filled it was not possible to review the filling of the English-speaking ADR role, therefore, the respondent sought to re-deploy the complainant to other suitable and alternative role.

The complainant was offered a position that would attract a slightly lower salary than the position she had.

 The respondent submitted that they were prepared two scheduled payments at 6 months and 12 months pending successful completion of probation milestones to negate the difference in salary at the end of the first year. Similarly. a customer service role would mean the loss of a bonus, bonus payment based on a total of 10% of salary payable in June 2020 and January 2021 was offered.

 The complainant refused the customer service role by email dated 18th December 2019. In response by email dated the 20th December 2019 the respondent urged the complainant to reconsider her decision and offered her a chance to trial the new role for 4 weeks with the option of a redundancy lump sum if deemed unsuitable.

By email dated 28th December 2019 the complainant reverted and refused the offer of the customer service role as she believed it was “a profoundly different role”

 The Respondent spoke with the complainant on the 30th December 2019 and followed up with an email on the 2nd January 2020 setting out the alternative position in customer service position in full and its terms.

It was made clear, that as suitable alternative employment position was available, any rejection of this role would be deemed a resignation from employment.

The complaint rejected this position and she remained in employment until her termination on the 20th January 2020.

The complaint was paid €44511.43 redundancy along with notice and accrued holidays to her.

The complainant, like all her colleagues’ position/roles with the HCO chat/sales support for (Client) ceased on the 13th December 2019.

In evidence the respondent’s stated there was a consultation regarding the reason for their positions ceasing and redeployment opportunities were offered and explored.

 She added that all were offered redeployment to vacant sales positions, subject to availability and based on their individual election for positions including interview if required.

There was no selection process for redundancy as all six members were similarly affected.

Redeployment considerations continued with the complainant post her unsuccessful application for the ASDR Italian speaking role and she was offered the suitable alternative position in another company which she rejected, even not engaging in a four-week trial.

The respondent had dome all in its power to retain the complainant in the organisation and had dealt with all her concerns raised.

There was no unfair dismissal of the complainant and no redundancy as the complainant had refused the offer of a suitable alternative position.

The complainant resigned her position on the 20th January 2020 by reason of her failure to take up suitable alternative employment as per s 15, 20 of the Redundancy Payments Act 1967, as amended

Summary of the complainant position

The complainant submitted that she was employed by the respondent for 3 years and 7 months  as a sales agent in different projects  She stated that she was always been commended  for her work attitude and she  was never reprimanded by the respondent  it was submitted that on the 9th December 2019 a Monday, they were told by the respondent  that there were 2  positions available  one for Italian speakers and one for English speakers, namely the languages  that she had been hired for and been working for.

In addition to those sales positions at HCO sales department for the Client, there were many customer service roles available. However, the terms and conditions for these customer roles were different and the conditions were lower.

The complainant stated that no interview took place for the English role and that while it was expected she did not get the Italian role either.

The complainant failed to understand why the respondent could put an employee into an English-speaking role with no interview and why an interview took place for the Italian position.

Findings

The parties were offered the right of cross examination which they avail of.

Both parties submitted detailed submission along with emails that had been exchanged between them

Evidence was given by the respondent witness and the Complainant

In cross examination the complainant accepted that the respondent had a right to fill position subject to suitability and they made all reasonable attempts to accommodate her

I find that having heard the evidence and read all the documentation that a redundancy situation existed.

I find that the respondent in 2018 asked the employees for the preference in the event of a transfer.

I find that the respondent was using the (job)preferences that each employee had given to them in 2018

I equally find that the complainant should have also made her views known to the respondent that she would like to add the “English role” to her job preference especially when she was informed that the respondent was endeavouring to accommodate all employees in other position. I believe that this would have cleared up any misunderstanding that may have occurred.

The complainant based on the information stated that she opted for the Italian role.

The Respondent based on the information at their disposal had only one employee who had opted for the English role, so no interview was required.

 However, the evidence that there were 2 employees who had indicated the preference for the “Italian role” so an interview process had to take place and the complainant was unsuccessful in that regard.

The respondent did make various attempts to accommodate the complainant with the organisation and they were prepared to allow the complaint to try out a position on a trial basis for 4 weeks and if at the end of the day she (complainant)did not like it she could have her redundancy

I find that the respondent did try to accommodate the complainant however I find that the respondent should update the research in relation to employees’ preferences on an annual basis.

I find that based on all the evidence that the respondent did try to accommodate the complainant even with trial in a different position where her salary was designed in such a way that based on performance she would retain her salary.

Decision:

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.

I find that the respondent should update their records on employee job preferences on an annual basis.

Based on the above findings I have decided that the complaint for Unfair Dismissal is not well founded and falls.

Dated:  18th June 2021

Workplace Relations Commission Adjudication Officer:  Jim O'Connell

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