Complainant

Respondent

Parties

Sandra  Ward

Rockabill Seafood Limited

Representatives

N/A 

Pat Collier Collier Broderick

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-00039544-001

02/09/2020

The Complainant was employed as a Production Administrator with the Respondent since 7 March 2017, having initially been engaged via an agency from 7 March 2016. She earned an average of €500 per week. She claimed that her dismissal was unfair because it was not a genuine redundancy situation as the Respondent alleged.

The Complainant stated that she was originally employed by the Respondent as a Production Administrator, to work 20 hours per week, reporting to the Factory Manager.  She highlighted that she often worked in excess of these hours and worked on average 30-35 hours per week depending on the factory’s requirements.

She stated that a consultancy firm was invited into the Respondent in early 2019 to conduct an assessment of various roles and that their final report highlighted areas in respect of which she had requested training. No further action was taken by the Respondent following receipt of this report however.

The Complainant also highlighted the difficult relationship she had with the Financial Controller (FC) and claimed that she had a conversation with the Factory Manager on several occasions regarding the FC’s attitude towards her. She also spoke with the Respondent’s owner on July 10th 2019 about her difficulties with the FC and informed him that she had no option but to resign. As a result of a follow up meeting with the owner, where he agreed to investigate the matter, the Complainant decided to rescind her resignation but the issues were not addressed or resolved. She stated that around Christmas 2019 the Financial Controller invited all of the admin staff for lunch with the exception of her despite the fact that she had been invited in previous years.

On 19th June 2020, the Managing Director requested a meeting with the Complainant and informed her that she was being dismissed on the grounds of redundancy. Specifically, she was informed that her position was being made redundant due to the impact of the pandemic as well as a reduction in sales volumes and the departure from the Respondent of the Factory Manager who had hired her.

The Complainant claimed that she could not understand this as the Respondent was mid recruitment drive for production staff and was in full production. She also stated that she had the longest length of service among all of the administrative staff and that she was the only one in the production hall. In addition, she expressed her disappointment that at no point was a conversation or any form of communication by any manager had with her regarding her role and responsibilities to try to find an alternative solution. 

She highlighted that she asked the Managing Director how he came to his selection decision but claimed that he did not respond.  Ultimately, she believed that she had no choice but to accept the redundancy and leave on 26 June as it was very clear that a decision rather than proposal of redundancy was being offered.

She stated that after her meeting with the MD, she spoke with the Production Manager and asked him if he was aware how decision had been reached. She stated that he explained that her face didn’t fit anymore and that the Financial Controller had forced the decision. The Production Manager also suggested that an error on a packaging order contributed to her dismissal, even though packaging was not the Complainant’s responsibility.

Further to this on, 23rd June 2020, a number of applicants were interviewed for General Operative positions and the Production Manager asked the Complainant if she would take one of the applicants into the office and train her in on her role. When he realised that she would be unable to fulfil the Complainant’s duties due to a language barrier, he asked the Complainant if her daughter would be interested in the role. The Complainant subsequently learned that her role was ultimately filled by a new staff member on 31 August 2020.  

The Respondent highlighted that in May 2019, a consultancy firm was engaged to assess the administrative process on the production floor.

Their report found that the scope of the Complainant’s role was subject to change on a daily basis and that her time was divided between product administration, data input and HR administration. It was also found that there was a strategic risk within the business arising from the quality of data being provided to the Directors and that there was a duplication of data entry and data processing. In addition, it was noted that there was a significant risk to the business that there was nobody qualified to advise on matters relating to human resources.

The report recommended that the Respondent implement a Robotic Process Automation to give quicker turnaround time and eliminate human error and also establish a HR structure in the business which entailed among other things the appointment of a full time HR Director.

The Respondent also highlighted that profits in 2020 decreased by over 50% and that key markets including exports to China were seizing up due to the severity of the corona virus outbreak with no comeback in sight. As a result of this, ways of working were reviewed and vacant positions which arose as a result of staff departures were often not filled, such as the production manager role that the Complainant was recruited to report to. This resulted in staff numbers being reduced by 60% across various sections of the business.

The Respondent highlighted that the company did not wish to have to make redundancies but were left with no other option. In March 2020 discussions took place within the senior management team to rethink and review roles and positions on the factory floor. At this stage of the process, all members of staff were informed that there would be structural changes being made that may affect them.

Following on from these discussions, two roles were identified as being at risk of redundancy. While it was decided ultimately to retain one colleague, the second employee placed at risk was the Complainant who was employed in a stand-alone role as production administrator. The Respondent stated that the company also took into account the aforementioned strategic review by the consultancy firm as it clearly suggested that the absence of a HR function in the business was a strategic risk and there was a need to employ qualified and experienced HR staff.

The Managing Director then met with the Complainant on 19 June 2020 to make her aware of the beginning of her consultation period for redundancy. Specifically, he advised her that there were no other vacant roles that were suitable for her due to the pandemic and that she would be at risk of redundancy. Four days later, the Complainant, having reflected on her situation and outlook, decided that her position was not viable and that she was agreeable to taking the redundancy and would leave on 26 June which the Respondent agreed to.

The Respondent acknowledged that, in line with the recommendations from the consultancy firm, they decided to recruit a qualified HR professional around the time of the Complainant’s departure and asserted that the Complainant was not suitable because she  did not have the relevant qualifications or experience in HR. Specifically, the new role combined previous roles and responsibilities into one full-time role with an emphasis on HR and procurement. It required a person qualified and experienced in HR at managerial level who was able to cover wide range of roles including parts of the admin role. The new role was also a salary paid position with managerial status.

The Respondent also highlighted that the Complainant had been fairly treated throughout her employment by the Company and had never at any stage raised any formal grievance.

In reaching my decision on this complaint, I have reviewed the relevant provisions of Section 6 of the Unfair Dismissals Acts 1977 to 2015.

Specifically, Section 6(1) provides that a dismissal is unfair “unless having regard to all the circumstances, there were substantial grounds justifying the dismissal”. It is the Respondent’s case that the Complainant’s position was redundant due to a downturn in revenue as a result of the pandemic and that she was fairly dismissed on these grounds. The definition of redundancy, as set out in Section 7 of the Redundancy Payments Acts is the starting point for a consideration of the Respondent’s position and Section 7 (2) sets out five definitions of redundancy:

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 Respondent’s position is that the redundancy of the Complainant’s position was required due to a lack of sales and a consequent reduction in their operations. Accordingly, I do not consider that there was a breach of Section 6 (1) and that a redundancy situation arose in relation to the specific role in which the Complainant was engaged.

I must also however have regard to the provisions of Section 6(7) of the Act (as amended) in relevant part as follows:

(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 must consider whether, notwithstanding the fact of the redundancy of the Complainant’s position, the conduct of the Respondent in relation to the dismissal was reasonable. In making a decision on this, I have examined firstly the process surrounding the notification of redundancy and whether or not there was a meaningful consultation process.

According to the Complainant’s direct evidence, she was called into the Managing Director’s office on 19 June 2020 and handed a letter stating that her position was redundant due to the pandemic and a lack of sales. While I note that the Respondent stated in their written submission that there was consultation with the Complainant prior to her redundancy, there was no direct evidence presented to me to suggest that this was the case. I also note the Complainant’s undisputed assertion that there was no consultation with her surrounding alternative roles or any discussion with her about her skillset and that she was not presented with any selection criteria as to why she was being dismissed on the grounds of redundancy.

There is a significant body of case law to support the contention that an employee is unfairly dismissed in circumstances where either there was no consultation or it was deemed to be inadequate and where alternative options were not examined. In Dower vs Waterford Star UD 151/2010, the Employment Appeals Tribunal held that any reasonable employer would consult with employees whose employment is potentially affected by redundancy and would invite them to make representations so that alternatives to redundancy could be considered. On the same issue of consultation, in the matter of O’Kelly v Exil Limited UD 1086/2017, the employer was found not to have acted reasonably and fairly as there were no meetings with the Complainant prior to redundancy and no discussion with the employee about suitability for alternative positions.

I also have regard to the Employment Appeals Tribunal in the matter of Gillian Free v Oxigen Environmental UD 206/2011, where it was 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”.

Finally, I find it extraordinary that, despite informing the staff of structural changes in March 2020, there was only one employee in the company whose position was made redundant, namely that of the Complainant, although I recognise there were a number of staff who left the Respondent but were not replaced.

Bearing all of the above in mind, I find that the Complainant was unfairly dismissed in light of the Respondent’s breaches of 6 (7) of the Unfair Dismissals Acts 1977 -2015.

Having decided that the Complainant was unfairly dismissed, I must now examine the appropriate remedy.

Given that she has secured alternative employment elsewhere and her preference for compensation as a remedy, I consider that this is the appropriate form of redress in this case.

In assessing the amount of compensation to award, Section 7 (1) (c) (i) of the Acts states that I may award “any financial loss attributable to the dismissal”.

I note firstly that the Complainant’s hours varied week to week and that based on her income statement from 2019 which was provided to me after the hearing, I am satisfied that she earned approximately €500 per week. I also note that she is in receipt of the same hourly rate in her new position which she commenced in mid-April 2021 and that no evidence was presented to me to suggest that she sought work after starting in this new role. In addition, I note that she was not available for work until September 2020.  Accordingly, I must confine the calculation of financial loss to the period that she was available and looking for work, namely to the period from September 2020 to mid-April 2021.

Although she did not present any documentation in advance of the hearing to show that she was looking for work during the period from September 2020 to April 2021, the Complainant gave credible and cogent evidence of the job applications she made and interviews she had during the time that she was unemployed. While documentary evidence of the efforts she made to mitigate her loss was provided to me after the hearing, I would have preferred to receive such evidence in advance to enable this to be tested. I note however that such evidence was available on the day but that, unlike a face to face hearing, it was not practical for it to be exchanged given that the hearing was being conducted remotely.

Even if I accept all of this evidence, I note that in the period between her dismissal and finding alternative work the Complainant, by her own admission, applied for approximately 20 positions. As has often been noted in case law, including in Sheehan v. Continental Administration Co. Ltd., UD 858/199, ‘time a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’. In that regard, the Complainant falls well short of what is required. As highlighted above, I note that she did find alternative work and I have taken account of that. I also note that money was paid to the Complainant at the time of her dismissal in respect of her purported redundancy.

Taking all factors into account, I find that the Respondent should now pay a sum of €10,000 in compensation to the Complainant in respect of the unfair dismissal. For the avoidance of doubt, this amount is additional to what was paid to her when she was dismissed.

Unfair selection for redundancy; no consultation;