FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : SNC LAVALIN ENGINEERING & CONSTRUCTION IRELAND LTD (REPRESENTED BY EVERSHEDS SUTHERLAND) - AND - MS ELAINE BALL (REPRESENTED BY MARK KILLILEA SOLICITORS) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision no.ADJ-00012648, CA-00016548-002. This is an appeal by Ms Elaine Ball (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00012648/CA-00016548-002, dated 15 August 2019) under the Unfair Dismissals Act 1977 (‘the Act’). The Complainant’s Notice of Appeal was received by the Court on 24 September 2019. The Court heard the appeal in a virtual courtroom on 3 March 2021. Factual Matrix The Complainant was employed by MF Kentz Ireland Limited (a part of the SNC-Lavalin Group since 2014) as its Financial Controller for approximately seventeen years from 16 October 2000. Her role included overall responsibility for her employer’s payroll process. The Complainant’s annual salary in 2017, the material time, was €64,000.00. She was also in receipt of a car allowance of €6,999.96 and had access to the Respondent’s health insurance scheme and occupational pension scheme. The Court notes that the Complainant initiated her complaint against ‘Kentz Ireland Limited’. However, SNC-Lavalin Engineering & Construction Ireland Limited is named as the Respondent in the written decision issued by the Adjudication Officer and from which decision the Complainant appealed to this Court. The latter entity is, therefore, referred to as the Respondent in the within determination. It is common case that a meeting took place on 14 June 2017 at the Complainant’s place of work in Clonmel at which the Respondent’s Senior Vice President (Finance) – Mr James Clarke – advised all employees working in the finance section in Clonmel that their positions were at risk of redundancy. A second meeting took place on 22 June 2017 by teleconference. During this meeting, Mr Clarke notified the staff present that there would be an ongoing requirement for three staff in the finance section and it was open to all existing staff to apply for those positions. On 27 June 2017, the Complainant attended a meeting with Ms Elaine O’Connor (HR Manager, Europe), Mr Michael Naughton (Senior Director Financial Controls and Reporting) and Mr Mark Shakespeare (Director Tax and Treasury). At the meeting, the Complainant was informed that her position was to be made redundant. The Complainant told the Court that she was handed a sheet of paper entitled ‘Employee Information’ (a copy of which was exhibited) that outlined her statutory redundancy sum entitlement as of 31 December 2017 and the amount she was to receive by way of payment in lieu of notice. The total amount of the payments listed was €31,930.67. Ms O’Connor sent an email on 30 June 2017 to the Complainant by way of follow-up from the meeting of the 27th. Attached to that email was a letter which stated as follows:
The Complainant was informed in early October 2017 that the matter would be the subject of a formal investigation. The Complainant went on certified, stress-related sick leave with effect from 24 October 2017. She did not return to the workplace thereafter. On 15 November 2017, the Respondent sent a registered letter to the Complainant setting out allegations against her arising from her apparent failure to make the aforementioned deductions for AVCs and health insurance from her salary. In that letter she was advised that a disciplinary hearing would take place on 24 November 2017, in accordance with the company’s written disciplinary procedure, a copy of which was also enclosed in the letter. The disciplinary hearing scheduled for 24 November 2017 was postponed at the request of the Complainant’s then solicitors and rescheduled for 30 November 2017. On 28 November 2017, the Complainant’s solicitors requested a further postponement until the New Year as the Complainant’s doctor had certified her unfit to attend a disciplinary hearing at that time. On 1 December 2017, the Respondent wrote again to the Complainant (letter copied to her solicitors) requesting the Complainant to register with the Department of Social Welfare to claim illness benefit from 18 December 2017 and confirming that the Respondent would continue to pay her the difference between illness benefit and her normal salary and that the matter would be reviewed again in February 2018. The Complainant duly registered for illness benefit. The Respondent’s letter of 1 December 2017 also advised the Complainant that it had retained the services of an occupational health specialist and requested her to attend for a consultation with him, at the company’s expense, for the purpose of understanding “what support and adjustments may be needed during the illness to aid recovery, to advise as to when [she] may reasonably be expected to return to work, and otherwise to consider what adjustments to the ongoing disciplinary process may reasonably be made to enable [her] to participate in same.” The Complainant never attended for a consultation with the occupational health specialist retained by the Respondent. The Complainant signed and submitted a hardcopy complaint form to the Workplace Relations Commission on 18 December 2017. The form was received by the Commission on 21 December 2017. In a typed note attached to the form, in which reference is made to the meeting which Ms O’Connor’s letter dated 30 March 2017 to the Complainant indicated would take place by 15 September 2017. The note states:
The Complainant, somewhat belatedly, exercised her right of appeal against the decision to dismiss her. An appeal hearing, at which the Complainant was accompanied by her solicitor, was conducted on 29 March 2018. The Respondent undertook further enquiries on foot of the defence to the allegations against her offered by the Complainant at the appeal hearing. The Respondent wrote to the Complainant’s solicitors on 12 June 2018 seeking additional clarification on a number of issues from the Complainant. No reply was received from the Complainant’s solicitors by 22 June 2018 when the Respondent issued a letter outlining the outcome of the appeal upholding the decision to summarily dismiss the Complainant. The Complainant’s Submission The kernel of the Complainant’s submission is that she regards the ‘Employee Information’ document she received at the meeting on 27 March 2017 together with the letter dated 30 March 2017 from Ms O’Connor as constituting definitive notice of termination of her employment by way of redundancy on 31 December 2017. She told the Court, “As far as I was concerned, it was in writing; it’s clear cut.” In evidence, the Complainant told the Court that the issue of her proposed redundancy had not been raised on behalf of the Respondent with her on any date after she had been notified of the allegations against her and the consequent disciplinary process. She herself didn’t raise it either, she submits, because of her fragile mental state at the time. In fact, she told the Court that she had left all legal matters fully in the hands of her then solicitors. The Complainant confirmed that she had signed and dated the Workplace Relations Commission complaint form on 18 December 2017. She also confirmed that she continued to received payment of her salary up until 19 January 2018. The Complainant said she had not attended at the disciplinary meeting on 17 January 2018 because of the state of her mental health at the time. However, she felt sufficiently well to appeal against the Respondent’s decision to summarily dismiss her and was motivated by a desire to restore her good name. Under cross-examination, the Complainant confirmed that she, at no stage, raised with the Respondent the issue of the termination payment of €31,930.67 she had anticipated as of 31 December 2017. In answer to questions from the Court, the Complainant also confirmed that she did not make an application pursuant to the Redundancy Payments Act 1967 to seek payment of the statutory redundancy payment that would have been due to her as and from 31 December 2017 in accordance with her understanding of the circumstances in which her employment terminated. The Respondent’s Submission Ms Guinness BL submits that the position of Financial Controller held by the Complainant was indeed identified as a position which would be made redundant as part of the reorganisation of the Respondent’s finance unit in Clonmel. However, the reorganisation was a complex and protracted process and, for example, the creation of three new finance positions was planned as part of that process. It was open to the Complainant to apply for those positions. It was not obvious to the Respondent, therefore, in March 2017 when any individual member of the finance team would in fact be made redundant. Ms Guinness told the Court that the Respondent regarded the ‘Employee Information’ document Ms O’Connor furnished to the Complainant on 30 March 2017 as indicative only of the payments that the Complainant would be entitled to should she still be in service as of 31 December 2017. The core of the Respondent’s submission to the Court, as outlined by Ms Guinness BL, is that the Complainant was never informed that her employment would be terminated by reason of redundancy on 31 December 2017 or on any other date. The Complainant’s proposed redundancy was overtaken by events: the discovery of discrepancies in relation to her salary payments set in train a disciplinary process that culminated in her termination not by reason of redundancy but on grounds of gross misconduct on 19 January 2018. Discussion and Decision It is clear to the Court that the Complainant holds very strong views in relation to the import she has attached to the meetings that she had with members of the Respondent’s senior management in March 2017 regarding the Respondent’s decision to make her position redundant and the documentation she received at that time. However, no credible explanation has been offered to the Court for the Complainant’s decision to sign and submit a complaint form to the Workplace Relations Commission on 18 December 2017 – some two weeks prior to the date on which she asserts her employment terminated by reason of redundancy. The strong views held by the Complainant appear to the Court to be inconsistent with a number of key facts and events outlined in the factual matrix above. The Court was presented with no evidence that the Complainant received any further communication from the Respondent after 30 March 2017 to confirm that fact of her redundancy and, more importantly, the date of her redundancy. It is not disputed that the Complainant, for example, never received written notice of redundancy, as required by the Redundancy Payments Act 1967. In her own evidence, the Complainant confirmed that the meeting that Ms O’Connor had informed her would take place before 15 September 2017 to confirm the details of the Complainant’s redundancy never took place. Likewise, the Complainant confirmed in evidence that she continued to receive her salary in the normal way until 19 January 2018. Very significantly, in the Court’s view, the Complainant at no time requested the Respondent to pay her statutory redundancy or pay in lieu of notice. Neither did the Complainant ever make an application to the Workplace Relations Commission under the Redundancy Payments Act 1967. Having regard to all of the foregoing, the Court concludes that the Complainant’s position was not, in fact, made redundant on 31 December 2017 as she claims, or at all. Events, commencing with the discovery of apparent under-deductions from her salary for pension and health insurance contributions and culminating with her summary dismissal for gross misconduct on 19 January 2018 overtook the Respondent’s plans to make the position of Financial Controller in Clonmel, held by the Complainant, redundant. The Complainant’s referral of the within Complainant under the Act to the Workplace Relations Commission on 18 December 2017 (received by the Commission on 21 December 2017) would, on the face of it, have been premature even had the Complainant’s position been made redundant on 31 December 2017. In light of the Court’s finding that the Complainant’s employment was not, in fact, terminated by reason of redundancy on 31 December 2017, but was terminated for gross misconduct on 19 January 2018, the referral by the Complainant of her complaint to the Commission on 18 December 2017 appears ipso facto to be grossly premature. At the commencement of the hearing of the within appeal, counsel for the Complainant/Appellant acknowledged that the Court has seisin of the entire case as section 44 of the Workplace Relations Act 2015 provides for a de novo appeal from a decision of an Adjudication Officer. Counsel further confirmed that he had explained this to his client. It follows from the de novo nature of the appeal and the Court’s finding in this case that the Complainant was not dismissed by reason of redundancy on 31 December 2017, that her appeal to this Court fails and the decision of the Adjudication Officer is set aside in its entirety. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Heather Murray, Court Secretary. |
