Complainant

Respondent

Parties

Kaye  McDonnell

Sodexo

Representatives

 N/A

Niamh Ní Cheallaigh, IBEC

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-00042561-001

17/02/2021

The Complainant commenced employment in September 1999 and was engaged by the Respondent as a Supervisor at a client site in Ovens where she was paid €525 per week. Her employment was terminated on the grounds of redundancy in September 2020.

The Complainant stated that the decision by the Respondent to make all of the workers on the night shift redundant was unfair and asserted that they were deliberately targeted because they were on better rates of pay as a result of them having previously worked with Aramark.

She also stated that the consultation process did not facilitate counter proposals from the workers and that further to her redundancy, other colleagues who were retained by the Respondent were given additional hours. It was also highlighted that one colleague who had been made redundant was subsequently re-hired.

The Complainant commenced employment with Aramark Catering as a Supervisor in September 1999 and on 1 October 2010 transferred to the Respondent under the Transfer of Undertakings Regulations.

In July 2020, the Respondent’s client advised that as a result of the Covid-19 pandemic they would no longer be requiring the night shift on their Ovens site. Headcount had dropped from an average of 1200 people on site per day to 300. Cash Sales in 2019 v 2020 were down 61% and the Respondent’s profit dropped by 65% (2019 v 2020). In relation to the night shift, in 2019 there were 110 client personnel on site working the night shift. In March/ April/May / June 2020, the client reduced that number from 110 people to 20 & therefore did not require a catering service any more due to the cost of that service.

From March 2020 to August 2020 the Respondent paid all employees their full wages using the initial Government covid support scheme. In September 2020 the Government changed the rules around the Covid support payment which meant that the Respondent no longer qualified for the scheme. As a result, and due to the Respondent’s client’s desire to continue with home working for the foreseeable future, the decision was made to restructure and rightsize the onsite catering team as it was clear at that stage that home working and less people on site was going to be a permanent situation/position and the catering team had

to be restructured.

On 4 August 2020 the client confirmed in writing that the Respondent should proceed with the necessary restructuring. A town hall meeting was held virtually and all employees who were at risk were invited to the meeting on that day. Any parties who did not dial in were contacted after the meeting on a one-to-one basis.

The Complainant was subsequently invited to attend a consultation meeting to take place on 10 August 2020. Ms Brenda Flaherty, Account manager, advised the Complainant that due to the client’s desire to permanently remove the night shift on their Ovens site, her role was at risk of redundancy. Ms Flaherty stated that should no suitable alternative roles be identified the Complainant’s role would be made redundant, that the client wished to cease the night shift as of 31 August, but the consultation process would continue for the 30 days set out and that it was company policy to conduct individual consultation meetings rather than meeting with the night shift team collectively.

The second consultation meeting took place on 17 August 2020 and was conducted by Mr John Kidney, Catering Manager. Mr Kidney reiterated the reason for the consultation process and the format of it. He asked the Complainant if she had identified any suitable alternative roles to which she responded no. Mr Kidney then explained that should no suitable alternative role be identified, the Complainant’s role would be made redundant, and he explained how the redundancy payment would be calculated. The Complainant highlighted her disappointment with the redundancy ex-gratia payment, i.e. that

it would be capped at a year’s salary and Mr Kidney advised that the calculation was in line with the company Policy applicable to all employees being consulted with.

A third consultation meeting took place on 7 September 2020 and was again conducted by Mr Kidney. In summary, Mr Kidney noted that no suitable alternative roles had been identified by the Respondent and the Complainant confirmed that she had not identified any either. Mr Kidney advised the Complainant that unfortunately, as no redeployment options were available the Complainant was being issued with notice of redundancy and he explained what entitlements and payments she would receive. The Complainant again expressed her disappointment with the redundancy ex-gratia figure and was advised that the payment was in line with the redundancy policy. The Complainant was also advised that she would have the right to appeal her redundancy and was thanked for her service and wished well for their future. She was issued with a letter on 8 September 2020 confirming the redundancy of her role, her entitlements and right to appeal.

On 11 September 2020, the Complainant appealed her ex-gratia payment. The HR team advised the Complainant that the appeal process related to the redundancy process and not their redundancy payment. She was asked if she wished to appeal her selection for redundancy but she failed to respond.

The Law

Section 6 of the Unfair Dismissal Act states inter alia

 (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.”

Section 7 of the Redundancy Payments Act, 1967, as amended, states:

“(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.”

Findings

While the Respondent asserted that the redundancy of the Complainant’s position was in accordance with Section 7 (2) above, it is clear from a review of the relevant case law that where redundancy is presented as the reason for termination of employment, it must not only meet the definition of the term but it must also be shown that the Complainant was fairly dismissed.

In the seminal 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.”

 In Panisi it was also held:

“It may be prudent, and a mark of genuine redundancy, that alternatives to letting an employee go should be examined….”

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.”

The Labour Court also held in the case of Student Union Commercial Services v Traynor UDD1726  

“In the instant case, the Court is satisfied that the Respondent did follow a consultation process with the Complainant to inform him that his role in the Company was being considered for redundancy. The Complainant was given the opportunity to make suggestions as to why he should be retained and on alternatives that might be considered. However, the Court is not satisfied that the Respondent has demonstrated that it gave due consideration to the suggestions made and/or to the possibility of alternative employment options that may be available. The Court notes that at the consultation meeting held on 13th January 2016, reference was made to consideration of options and/or suggestions being put forward by both sides. At the consultation meeting of 19th January 2016, the Respondent explained to the Complainant that a number of alternatives were under consideration and that the most suitable possible alternatives was redeployment, which may even entail different duties, pay rates, shift patterns and responsibilities. By 27th January 2016 the Complainant was informed that no suitable alternative position was available and he was being made redundant. The Court notes that the Complainant had almost twelve years’ service. The Respondent had a number of business units and had fluctuating numbers of staff employed. The Court was presented with no information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options/suggestions. The Court can accept that had such an exercise being carried out it may not have identified any alternative positions suitable to the Complainant, however, it seems clear that no such exercise was engaged in. On that basis the Court finds that the approach adopted by the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a) of the Act, the dismissal of the Complainant was unfair.”

In the instant case, I noted that while no alternatives to redundancy were presented by the Complainant, the Respondent presented no evidence of any concrete options either, similar to the Respondent in the matter of Student Union Commercial Services v Traynor UDD1726 above. While I noted the Respondent’s evidence that any decision to retain the Complainant would have involved dismissing employees on other shifts, I do not believe that this would necessarily have been the case if a meaningful consultation process had taken place. Specifically, in order to eliminate the need for compulsory redundancies, the workers on both the day and evening shifts could have been spoken to by the Respondent and asked if they wanted to consider voluntary redundancy or perhaps reduce their hours. Moreover, it is incomprehensible that a long serving and valued employee, such as the Complainant, was not asked during the consultation process if she would consider working the day or the evening shift in order to avoid her dismissal.

The absence of any concrete evidence to suggest that the Respondent had meaningfully engaged with the Complainant and explored other options instead of simply deciding to make all of the workers on the night shift redundant leads me to find that the consultation process was lazy as well as wholly inadequate and was essentially a tick box exercise rather than a genuine and considered attempt to avoid dismissing the Complainant.

As well as finding that the consultation process was derisory, I also noted the Respondent’s shocking assertion that they were entitled to dismiss all of the night shift workers but retain some of the evening and day employees because unlike the other workers, the hours of night workers were going to be reduced by more than 50%. Any reasonable employer would have included all of the day, evening and night shift workers in a selection matrix instead of solely using the criterion of what shift the employees worked to assess which employees to dismiss on the grounds of redundancy.

This is consistent with the decision of the Employment Appeals Tribunal in Gillian Free v Oxigen EnvironmentalUD 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”.

While the Respondent’s representative also highlighted that the Complainant failed to appeal her dismissal and I note the decision of the Labour Court in the matter of Aryzta Bakeries and Vilnis Cacs UDD1812, I find on the basis of the evidence presented to me that this was due to erroneous advice she received from her union SIPTU.

In light of the foregoing, I find that the Complainant was unfairly dismissed.

I have found that the Complainant was unfairly dismissed for the reasons set out above.

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (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) 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 financial loss referred to in that subsection was attributable to an act, 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,

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

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.

I note the Complainant’s preference for compensation as a remedy and that she has obtained alternative work elsewhere and consider that this is therefore the appropriate form of redress in this case.

In deciding on what level of compensation to award, I note that the Complainant was paid an ex-gratia lump sum which included inter alia her statutory redundancy entitlements and equated to one year’s pay. In addition, I noted that she found a new role in July 2021, where she now earns less than she did with the Respondent, which I gleaned from a review of the payslips provided to me after the hearing.  

Given the ex-gratia payment she received, which included an amount in excess of her statutory entitlements, and in the absence of any documentation to demonstrate that she was looking for work between the date of termination with the Respondent and when she found her new role, I do not make any award for the period from September 2020 to July 2021. I must recognise however that the weekly gross pay with her new employer is €165 per week less than it was with the Respondent and that she has an ongoing financial loss as a result of her dismissal, although I also noted that she provided no evidence of any attempts to mitigate this ongoing loss by continuing to seek alternative roles.

In light of the foregoing and the extent to which this was attributable to an act and omission by the Respondent, in accordance with section 7(2) (a) above, I have made an estimate of her future prospective loss of income and make an award of €8,580, namely 52 weeks difference between her weekly remuneration with the Respondent and her new employer, in respect of the unfair dismissal.