ADJUDICATION OFFICER DECISION
CORRECTION ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision issued on 15/09/21 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00027918
Parties:
| Complainant | Respondent |
Parties | Caroline McNeill | Galway Civic Trust |
| ||
Representatives | Jessica Bielenberg, Mason Hayes & Curran Solicitors | Kieran Hoare, Chairperson of the Board |
Complaint:
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-00035710-001 | 15/04/2020 |
Date of Adjudication Hearing: 27/07/2021
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Procedure:
In accordance with 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.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings. At the outset of the hearing the parties’ attention was drawn to the judgment from the Supreme Court in the case of Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 and the key points were set out to the parties. The parties were informed of the procedural changes applicable to the hearing of all complaints post the judgment. The parties were invited to present their views in that regard. The Complainant advised the due to the failure of the Respondent to file submissions, she was not in a position to comment on whether there would be a conflict of evidence. The Respondent stated it agreed with the outline provided by the Complainant in her Complaint Form. On that basis it was agreed that the hearing would proceed, and should a conflict arise it would be adjourned. No serious and direct conflict of evidence emerged during the the course of the hearing and consequently, there was no requirement for me to adjourn the hearing to await the amendment of the Workplace Relations Act, 2015 and related enactments to grant Adjudication Officers the power to administer an oath or affirmation. The Complainant was employed as a Supervisor with the Respondent until the date of her redundancy on 24 January 2021. Following unanswered letters from her solicitor to the Respondent, she submitted her Complaint Form to the WRC on 15 April 2020. The Complainant earned a gross monthly salary of €3,347.50 and worked a 39 hour week. |
Summary of Complainant’s Case:
The Complainant was employed from September 2012 to 24 January 2020 as a Supervisor with a FÁS Community Employment Scheme (the “Scheme”). She stated she had a clean disciplinary record and worked diligently on behalf of her employer. She described the Scheme she managed as being very successful achieving well above the national average of placing participants in employment or education. The Complainant stated the Scheme was audited twice a year and she was regularly complimented by the auditor on the success of the Scheme. On 9 December 2019, she was asked by the Secretary of the Board, Mr Tom Quinlan, to organise a staff meeting for 12 December 2019. At 8am on 12 December 2019, she received an email from Mr Quinlan that the Respondent would no longer act as sponsor to the Scheme. He further stated in the email that he had asked the Department of Social Protection to attend the meeting “to discuss placement options with other sponsors”. The meeting with Mr Quinlan, the Department and the Scheme staff took place at 10.30am on 12 December 2019. At the meeting, staff were told that their jobs were safe and they would be redeployed to other schemes. When the Complainant asked about her role she was told , in front of the entire staff, that she was to be made redundant. The Complainant was sent an email on 16 December 2019 from Mr Quinlan stating; “Regrettably Galway Civic Trust are hereby formally giving you notice of today Dec 16th 2019 that your employment with the Galway Civic Trust will terminate on 24 January 2020 at the end of the current CE contract. The reasons for this were outlined in my email of December 12th and our general meeting of the same day. We are currently in process of identifying your redundancy entitlement.” Her employment was subsequently terminated on 24 January 2020. The Complainant described the meeting of 12 December 2019 as “humiliating” to be told she was being made redundant in front of her colleagues. She made attempts to contact her employer between December 2019 and January 2020 which remain unanswered. The Complainant submitted that the Respondent made no effort to go through the redundancy process with her prior to terminating her employment. There was no consultation as to alternatives to redundancy nor was she offered alternative employment like her colleagues. The Complainant was not afforded the opportunity to appeal the redundancy decision. The Complainant referred to the Community Employment Procedures Manual and in particular section 3.5 which outlines the Responsibilities of the Sponsor. The Complainant referred to the Community Employment Procedures Manual and in particular section 3.5 which outlines the Responsibilities of the Sponsor. The opening lines of section 3.5 states; “The Sponsor organisation is the legal employer of the CE Supervisor and the participants. As the employer, the Sponsor should be fully aware of all relevant legislation and be committed to fully implementing its spirit and letter at all times (see www.dbei.gov.ie).” Further reference was Chapter 8: Review of CE schemes / Restructuring and in particular the procedure: It was submitted at the hearing that the Complainant did raise an issue with a Board member in 2018 which was investigated, and her complaints upheld. She felt that there had been a change of attitude towards her since that investigation. It was submitted that there was an absence of her employment rights, fair procedures and natural justice by the Respondent, the decision to terminate the Complainant’s employment was a fait accomplí in breach of trust and confidence. The Complainant outlined her attempts to find alternative work. She undertook a Diploma , a Start your own business course and set up her own business in March 2021. The Complainant is due to undertake further education in July 2021. In the meantime, she continued to search for employment and has been placed on the panel for a public service role. Documentary evidence was furnished by the Complainant. |
Summary of Respondent’s Case:
Mr Hoare outlined that he had held the Chair of the Board since January 2021, but he was on the Board since September 2019. In response to the complaints he stated having read the submissions “the facts are all in order”. He stated that he “agreed with your outline of events”. Mr Hoare made specific reference to the meeting of December 2019 where the Complainant was informed by Tom Quinlan and explained it as having “no choice but to make Caroline redundant”. He agreed that the Complainant asked what her position would be at meeting of the 12 December 2019. The Respondent sought guidance from the Dept of Social Protection about her position and was told her position was between the Complainant and Respondent. As a consequence of the change in structure there as no funding for the Complainant’s position. The Respondent stated that the Board had absolute trust in the Complainant and agreed with everything she said about her positive work. Her work was independently audited by the Dept of Social Protection who complimented her. Her work was held in the highest esteem. |
Findings and Conclusions:
The issue of submission was raised at the outset of the hearing. Despite an initial request on 12 May 2020 from the Workplace Relations Commission and a follow up reminder on 26 August 2020 were sent to the Respondent . No response was received to the request for submissions, but the Respondent did send a letter dated 28 August 2020 advising the Board had received the claim on 17 August 2020. At the outset of the hearing this was highlighted to the Respondent. The Employment Appeals Tribunal in Gerry Fennell v Resources Facilities Support, [2011] 22 E.L.R. 26 held: “When an employer is making an employee redundancy, while retaining other employees, the selection criteria being used should be 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 to be adopted will come under close scrutiny if an employee claims they were unfairly selected for redundancy. The employer must follow the agreed procedure when making the redundancy. Where there are no agreed procedures in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably”. In JVC Europe –v- Panasi 2011, IEHC279 Mr. Justice Charleton stated; “In all cases of dismissal, whether by reason of redundancy or substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of the employment came within a lawful reason”. The Respondent stated having read the facts set out in the Complaint Form they “are all in order” and the Respondent had “no option” but to make the Complainant redundant. Consequently, there was no dispute on the facts of this case from the Respondent. While the Respondent gave an outline for the reasons for the redundancy, no supporting documentary evidence was presented. Neither was the basis of the redundancy challenged by the Complainant. Consequently, I find a redundancy situation did occur. What was challenged was the failure of the Respondent to apply for fair procedures to the redundancy process; failure to consult with her, failure to consider alternatives to redundancy , failure to offer alternatives to redundancy, failure to allow her attend meetings with a representative, failure to offer paid time off to seek alternative employment. Generally, it is clear that there was a failure on behalf of the Respondent to engage at any level with the Complainant in the decision to make her job redundant. This is simply not good enough for an employer. The Employment Appeals Tribunal in Gerry Fennell v Resources Facilities Support, [2011] 22 E.L.R. 26 held: “The Tribunal considered all of the evidence adduced; it is for the respondent to establish (a) that a redundancy situation arose and (b) that they acted reasonably and fairly towards the claimant in addressing that situation. It is found that a redundancy situation arose and that the respondent did not behave reasonably and fairly with the claimant “ |
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.
Decision Having considered all the facts of this case, I find that the complaint is well founded. Redress Section 7 of the Unfair Dismissals Act 1977 sets out the limitation of redress: Section 7 (1) (c ) allows for compensation of financial loss: “(c) payment by the employer to the employee of such compensation (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) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to, (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and (d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister. (3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.” The Complainant has demonstrated great efforts to mitigate her financial loss and obtain alternative employment after her dismissal. There is no doubt she faced a difficult time for her industry as a result of the Covid19 global pandemic over the previous 18 months from the date of her dismissal. “I find that the award of compensation of financial loss in the sum of €40,170, one year salary, just and equitable in the circumstances where there was a complete failure on the part of the Respondent to apply fair procedures to the Complainant’s dismissal. Please note this award of compensation for financial loss does notinclude any sum of statutory redundancy made to the Complainant upon termination of her employment. “
|
Dated: 15/09/2021
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
Unfair dismissal- redundancy- Employer’s conduct |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00027918
Parties:
| Complainant | Respondent |
Parties | Caroline McNeill | Galway Civic Trust |
Representatives | Jessica Bielenberg, Mason Hayes & Curran Solicitors | Kieran Hoare, Chairperson of the Board |
Complaint:
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-00035710-001 | 15/04/2020 |
Date of Adjudication Hearing: 27/07/2021
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Procedure:
In accordance with 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.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. 359 of 2020, which designates the WRC as a body empowered to hold remote hearings. At the outset of the hearing the parties’ attention was drawn to the judgment from the Supreme Court in the case of Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 and the key points were set out to the parties. The parties were informed of the procedural changes applicable to the hearing of all complaints post the judgment. The parties were invited to present their views in that regard. The Complainant advised the due to the failure of the Respondent to file submissions, she was not in a position to comment on whether there would be a conflict of evidence. The Respondent stated it agreed with the outline provided by the Complainant in her Complaint Form. On that basis it was agreed that the hearing would proceed, and should a conflict arise it would be adjourned. No serious and direct conflict of evidence emerged during the the course of the hearing and consequently, there was no requirement for me to adjourn the hearing to await the amendment of the Workplace Relations Act, 2015 and related enactments to grant Adjudication Officers the power to administer an oath or affirmation. The Complainant was employed as a Supervisor with the Respondent until the date of her redundancy on 24 January 2021. Following unanswered letters from her solicitor to the Respondent, she submitted her Complaint Form to the WRC on 15 April 2020. The Complainant earned a gross monthly salary of €3,347.50 and worked a 39 hour week. |
Summary of Complainant’s Case:
The Complainant was employed from September 2012 to 24 January 2020 as a Supervisor with a FÁS Community Employment Scheme (the “Scheme”). She stated she had a clean disciplinary record and worked diligently on behalf of her employer. She described the Scheme she managed as being very successful achieving well above the national average of placing participants in employment or education. The Complainant stated the Scheme was audited twice a year and she was regularly complimented by the auditor on the success of the Scheme. On 9 December 2019, she was asked by the Secretary of the Board, Mr Tom Quinlan, to organise a staff meeting for 12 December 2019. At 8am on 12 December 2019, she received an email from Mr Quinlan that the Respondent would no longer act as sponsor to the Scheme. He further stated in the email that he had asked the Department of Social Protection to attend the meeting “to discuss placement options with other sponsors”. The meeting with Mr Quinlan, the Department and the Scheme staff took place at 10.30am on 12 December 2019. At the meeting, staff were told that their jobs were safe and they would be redeployed to other schemes. When the Complainant asked about her role she was told , in front of the entire staff, that she was to be made redundant. The Complainant was sent an email on 16 December 2019 from Mr Quinlan stating; “Regrettably Galway Civic Trust are hereby formally giving you notice of today Dec 16th 2019 that your employment with the Galway Civic Trust will terminate on 24 January 2020 at the end of the current CE contract. The reasons for this were outlined in my email of December 12th and our general meeting of the same day. We are currently in process of identifying your redundancy entitlement.” Her employment was subsequently terminated on 24 January 2020. The Complainant described the meeting of 12 December 2019 as “humiliating” to be told she was being made redundant in front of her colleagues. She made attempts to contact her employer between December 2019 and January 2020 which remain unanswered. The Complainant submitted that the Respondent made no effort to go through the redundancy process with her prior to terminating her employment. There was no consultation as to alternatives to redundancy nor was she offered alternative employment like her colleagues. The Complainant was not afforded the opportunity to appeal the redundancy decision. The Complainant referred to the Community Employment Procedures Manual and in particular section 3.5 which outlines the Responsibilities of the Sponsor. The Complainant referred to the Community Employment Procedures Manual and in particular section 3.5 which outlines the Responsibilities of the Sponsor. The opening lines of section 3.5 states; “The Sponsor organisation is the legal employer of the CE Supervisor and the participants. As the employer, the Sponsor should be fully aware of all relevant legislation and be committed to fully implementing its spirit and letter at all times (see www.dbei.gov.ie).” Further reference was Chapter 8: Review of CE schemes / Restructuring and in particular the procedure: It was submitted at the hearing that the Complainant did raise an issue with a Board member in 2018 which was investigated, and her complaints upheld. She felt that there had been a change of attitude towards her since that investigation. It was submitted that there was an absence of her employment rights, fair procedures and natural justice by the Respondent, the decision to terminate the Complainant’s employment was a fait accomplí in breach of trust and confidence. The Complainant outlined her attempts to find alternative work. She undertook a Diploma , a Start your own business course and set up her own business in March 2021. The Complainant is due to undertake further education in July 2021. In the meantime, she continued to search for employment and has been placed on the panel for a public service role. Documentary evidence was furnished by the Complainant. |
Summary of Respondent’s Case:
Mr Hoare outlined that he had held the Chair of the Board since January 2021, but he was on the Board since September 2019. In response to the complaints he stated having read the submissions “the facts are all in order”. He stated that he “agreed with your outline of events”. Mr Hoare made specific reference to the meeting of December 2019 where the Complainant was informed by Tom Quinlan and explained it as having “no choice but to make Caroline redundant”. He agreed that the Complainant asked what her position would be at meeting of the 12 December 2019. The Respondent sought guidance from the Dept of Social Protection about her position and was told her position was between the Complainant and Respondent. As a consequence of the change in structure there as no funding for the Complainant’s position. The Respondent stated that the Board had absolute trust in the Complainant and agreed with everything she said about her positive work. Her work was independently audited by the Dept of Social Protection who complimented her. Her work was held in the highest esteem. |
Findings and Conclusions:
The issue of submission was raised at the outset of the hearing. Despite an initial request on 12 May 2020 from the Workplace Relations Commission and a follow up reminder on 26 August 2020 were sent to the Respondent . No response was received to the request for submissions, but the Respondent did send a letter dated 28 August 2020 advising the Board had received the claim on 17 August 2020. At the outset of the hearing this was highlighted to the Respondent. The Employment Appeals Tribunal in Gerry Fennell v Resources Facilities Support, [2011] 22 E.L.R. 26 held: “When an employer is making an employee redundancy, while retaining other employees, the selection criteria being used should be 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 to be adopted will come under close scrutiny if an employee claims they were unfairly selected for redundancy. The employer must follow the agreed procedure when making the redundancy. Where there are no agreed procedures in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably”. In JVC Europe –v- Panasi 2011, IEHC279 Mr. Justice Charleton stated; “In all cases of dismissal, whether by reason of redundancy or substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of the employment came within a lawful reason”. The Respondent stated having read the facts set out in the Complaint Form they “are all in order” and the Respondent had “no option” but to make the Complainant redundant. Consequently, there was no dispute on the facts of this case from the Respondent. While the Respondent gave an outline for the reasons for the redundancy, no supporting documentary evidence was presented. Neither was the basis of the redundancy challenged by the Complainant. Consequently, I find a redundancy situation did occur. What was challenged was the failure of the Respondent to apply for fair procedures to the redundancy process; failure to consult with her, failure to consider alternatives to redundancy , failure to offer alternatives to redundancy, failure to allow her attend meetings with a representative, failure to offer paid time off to seek alternative employment. Generally, it is clear that there was a failure on behalf of the Respondent to engage at any level with the Complainant in the decision to make her job redundant. This is simply not good enough for an employer. The Employment Appeals Tribunal in Gerry Fennell v Resources Facilities Support, [2011] 22 E.L.R. 26 held: “The Tribunal considered all of the evidence adduced; it is for the respondent to establish (a) that a redundancy situation arose and (b) that they acted reasonably and fairly towards the claimant in addressing that situation. It is found that a redundancy situation arose and that the respondent did not behave reasonably and fairly with the claimant “ |
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.
Decision Having considered all the facts of this case, I find that the complaint is well founded. Redress Section 7 of the Unfair Dismissals Act 1977 sets out the limitation of redress: Section 7 (1) (c ) allows for compensation of financial loss: “(c) payment by the employer to the employee of such compensation (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) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to, (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and (d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister. (3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.” The Complainant has demonstrated great efforts to mitigate her financial loss and obtain alternative employment after her dismissal. There is no doubt she faced a difficult time for her industry as a result of the Covid19 global pandemic over the previous 18 months from the date of her dismissal. I find that the award of compensation of financial loss in the sum of €40,170, one year salary, just and equitable in the circumstances where there was a complete failure on the part of the Respondent to apply fair procedures to the Complainant’s dismissal. Please note this award of compensation for financial loss includes any sum of statutory redundancy made to the Complainant upon termination of her employment. |
Dated: 15/09/2021
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
Unfair dismissal- redundancy- Employer’s conduct |