Complainant

Respondent

Parties

Amy  Meredith

Bolway Investments Limited T/A The Odeon Group

Representatives

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-00048737-001

21/02/2022

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00048737-002

21/02/2022

The Complainant commenced her employment as an Accounts Assistant with the Respondent on 19 August 2019. She worked 20 hours per weeks and was paid €15 per hour.  She alleged that the Respondent unfairly dismissed her when they informed her in January 2022 that they had no suitable role available for her.

The Complainant commenced her employment as an Accounts Assistant with the Respondent on 19 August 2019. On 13 March 2020, she was given a notice of temporary -lay off as a result of the pandemic and was told it was temporary until the restrictions eased. She was also informed that she could keep her accrued holidays until she returned to the office which indicated to her that her position was safe.

On 21 April 2021, the Complainant notified the office manager via email that she was pregnant and that if the business reopened before she was due to go on maternity leave she would happily come back and if required work from home whilst on maternity leave. Although the Office Manager replied that she would notify the owner and get back to her, the Complainant did not receive a response. The Complainant subsequently saw on social media that one of restaurants reopened in June 2021, two months before her maternity leave was due to commence, and she contacted the Office Manager again who told her that she would be taking over payroll until 2022.

The Complainant stated that she emailed the Officer Manager again in October 2021 asking if her position would be available at the end of her maternity leave in January 2022. The Office Manager replied that they might be looking for someone for management accounts and payroll full time and the Complainant was asked if this was something she could do. The Complainant informed her that she could do the accounts but not on a full-time basis and also asked for her accrued holiday pay from 2020.

Although she received her accrued holiday pay, the Complainant was not given any indication as to when she would be asked to return to work and emailed the Respondent as to when she would be needed. The Office Manager informed her by reply that they were looking for her contract of employment. When the Complainant subsequently informed her that she had never been given a contract and that she could do up to 30 hours per week, the Respondent informed her on 24 January that there was no contract of employment and that they had no position available for her. Two weeks later however on the jobs.ie website, the Complainant stated that the Respondent was looking for a full time Accounts Assistant/Payroll Administrator and the job description was identical to the position that she was doing, except that it was on a full-time basis.  

The Respondent did not attend on the day to give evidence and did not seek a postponement in advance of the hearing.

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

According to the uncontradicted evidence of the Complainant, the Respondent dismissed her because they had no suitable position available for her. Notwithstanding the inexplicable failure by the Respondent to pay the Complainant her statutory redundancy, I am satisfied this was a redundancy situation given that no other ground of dismissal was presented by the Complainant in evidence.

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 instant case, I noted that no alternatives to redundancy were presented by the Respondent to the Complainant prior to effectively dismissing her on 24 January 2022. 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, such as, in this case, the Complainant’s offer to work thirty hours per week. 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”.

As well as the failure to adequately consult and engage with the Complainant or apply any selection criteria prior to dismissing her, I also note that there was no avenue of appeal provided to her when she was informed on 24 January 2022 that there was no position available for her. Such a process could have given her the opportunity to defend her future employment and highlight her willingness to work in alternative roles. In Mackey v Resource Facilities Support Limited UD56/2009 and Fennell v Resource Support Services Limited UD57/2009, the failure to inform the claimants of their right to appeal the redundancy decision was a relevant factor in the EAT’s finding that the redundancy was implemented in an unreasonable and unfair manner.

Having considered all matters put before me, 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.

CA-00048737-001:

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 consider that this is the appropriate form of redress in this case.

In deciding on what level of compensation to award, I note firstly that the Complainant found a new role in May 2022 where she earned a greater remuneration package than she had with the Respondent. In addition, based on the evidence presented to me at the hearing as well as the documentation submitted to me afterwards, I find that the Complainant made adequate efforts to mitigate her financial loss, in accordance with the requirements of section 7(2) (c) above, in the period from when she was dismissed to when she found her new role.

Considering the foregoing, and also recognising that the Complainant lost her rights under the Redundancy Payments Acts, 1967 to 1973 as set out in section 7 (3) above as a result of the termination of her employment, I make an award of €6,900 in respect of the unfair dismissal.

CA-00048737-002:

As the complaints of unfair dismissal and redundancy are mutually exclusive, and I have included the Complainant’s redundancy entitlements in my award in respect of the unfair dismissal complaint above, I do not allow the Complainant’s appeal in respect of this complaint.