Complainant

Respondent

Parties

Grainne Loonam

Element Six Limited

Representatives

David O’Regan BL instructed by Kate McInerney MHP Solicitors

David McCarroll Ronan Daly Jermyn Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00040852-001

06/11/2020

In this period of employment, the complainant worked for the respondent between May 2014 and the 28th May 2020. Including pay, bonus and contributions, the complainant’s remuneration was €29,083.41 per year. She worked in an administrative role. The complainant asserts that she was unfairly dismissed at the time she was to return from maternity leave. The respondent denies the claim and states that the complainant’s employment was ended on grounds of redundancy.

It is not in dispute in this case that, pursuant to section 13 of the Unfair Dismissals (Amendment) Act, 1993 the respondent is the correct respondent to this unfair dismissal claim.

The respondent submitted that the complainant’s employment ended lawfully on grounds of redundancy, in particular the restrictions on travel ensuing from the Covid-19 pandemic. Mr McCarroll submitted that a full and fair consultation process took place.

Ms McKenna gave evidence under oath and was cross-examined. She denied telling the complainant she was redundant on the 8th May 2020. She said that the complainant’s role was redundant because of pandemic-related travel restrictions and that the respondent departments indicated that there were no vacancies.

Ms Sheehan gave evidence under oath and was cross-examined. She addressed the impact of the pandemic on the respondent business and the lack of alternatives in May 2020.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and reasoning section of this decision.

The complainant gave evidence under affirmation of her roles at the respondent and her efforts to find alternative employment after her dismissal. In cross-examination, it was put to the complainant that a full and fair consultation process had taken place.

Mr O’Regan BL made submissions on the complainant’s behalf, referring, inter alia, to JVC Europe v Panisi [2011] IEHC 279.

I took a comprehensive note of the evidence and submissions, and they are cited as appropriate in the findings and reasoning section of this decision.

This is a complaint of unfair dismissal.

The respondent is a specialist manufacturer and the agency places operatives in the facility, as well as several administrative staff, which included the complainant. The respondent maintained a ‘Lodge’, accommodation for staff visiting the facility from overseas. This was not utilised during the pandemic. It was accepted that during the pandemic one Lodge staff member and several operatives were made redundant, as well as that the complainant was the only office staff member to be made redundant.

The complainant was on maternity leave in the first part of 2020 and due to return to work in May 2020. She described that her previous employment with the respondent ended in 2015, also at the end of a period of maternity leave. She feared that this would re-occur in 2020 and in fact, her employment did end on the 28th May 2020. While there is this similarity, no inference can be drawn and the 2020 process must be assessed in isolation.

The complainant’s contract refers to her being an administrator and significantly, does not refer to the management of travel as her key role. What is striking about the complainant’s career at the respondent is the breadth of her roles. She was re-employed as personal assistant to a senior manager and also did finance, accounting, administrative and human resource roles. The complainant had many strings to her bow. She worked part-time hours but was clear in May 2020 that she could work longer hours.

There is a conflict in evidence regarding whether the complainant was required to take accrued annual leave on the ending of her maternity leave. The complainant asserted that the respondent had required her to take the annual leave, which she did not want to. The respondent denied this and stated that it merely requested the complainant to take the leave. It is not necessary for me to resolve this conflict in evidence in assessing the fairness of the dismissal.

There was a conflict in evidence regarding the phone calls of the 7th and 8th May 2020. The complainant outlined that she was warned on the 7th May that her role could be redundant, and this was confirmed to her on the 8th May. The respondent denies this and states that the process commenced per the email on the 8th May. I would be inclined to find that the complainant’s account is correct, that she was informed on the 8th May that she was redundant and that the process which commenced per the email started because the complainant was clear that she would ‘fight this’. It is not necessary for me to definitively resolve this conflict, as I find that the complainant was unfairly dismissed even taking the respondent and the agency’s evidence as correct.

The complainant was employed by the agency and placed with the respondent, the ‘third person’ per section 13 of the Unfair Dismissals (Amendment) Act. While she was on maternity leave, the complainant was replaced by a named person, who left permanent employment to take up this maternity leave cover. The complainant specifically raised what was going to happen to this named person in the context of her pending redundancy. The complainant was informed that this person’s employment would end at the expiry of the fixed purpose. This did not transpire to be the case as the replacement commenced another role on the 11th May 2020. On the same date that the email was sent to the department leads about whether there was an alternative to save the complainant’s employment, this person was offered a contract for a new role, a role for which the complainant was never considered. This new role was as cover for a maternity leave of a family member of the agency principal. Even if the complainant’s existing role had to change because of the pandemic, there was clearly an alternative available for her and for which she was never considered.

I find that the complainant’s dismissal was unfair because the redundancy was not genuine and did not comply with fair procedures. While the travel element obviously diminished, the complainant had a proven track record across many functions. The redundancy dismissal was completed in a very short period of time, and it is not clear what the urgency was. Most significantly, there was a vacancy which the complainant was well suited for but for which she was never considered. The replacement obtained further employment with the respondent and the agency while the complainant was manoeuvred out of her employment. It follows that the dismissal was unfair.

Section 7 of the Unfair Dismissals Act defines ‘financial loss’ as including ‘… 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.’ The complainant received the statutory lump sum award, so no award is made for ‘the value of any loss or diminution of her rights under the Redundancy Payments Act’. I make an award for actual and prospective loss, which are separate heads of loss.

The complainant gave evidence of impressive efforts to secure alternative employment and enclosed documentation to support this. The complainant did not contribute to the dismissal and sought to mitigate her loss in every way. She did not find alternative employment. The complainant’s total remuneration was €29,083.41. I award redress that is just and equitable compensation of €43,625, equivalent to 18 months’ pay.

CA-00040852-001

I decide that the complainant was unfairly dismissed, and I order that the respondent pay to the complainant compensation of €43,625.

Unfair Dismissals Act / maternity leave / genuine redundancy