Complainant

Respondent

Parties

Eileen  Walsh

Sue Ryder Foundation (Ireland) CLG

Representatives

Ger Malone SIPTU

Mary Vaughan,

Mary Vaughan & Associates

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-00043188-001

23/03/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and her representative both gave evidence during the hearing, both providing the evidence under affirmation.  The respondent’s representative also provided evidence during the hearing together with two witnesses for the respondent, all provided their evidence under affirmation.  Both representatives gave evidence under affirmation as they were both present at meetings representing their respective clients and gave first-hand evidence regarding those meetings.  Both parties were offered the opportunity to cross examine the witnesses for the other party.

The respondent runs a number of housing projects and schemes, primarily aimed at assisted living for the elderly.  The complainant was employed from 1 November 2014 until 29 October 2020 on a weekly wage of €434.84.

The complainant submitted that she was subjected to unfair dismissal when she was unfairly chosen for redundancy.

The complainant submitted that there was no consultation prior to the redundancy, no meaningful engagement during the process, that the suggestions that she made through her representative were ignored, not considered and not acted upon.

The complainant submitted that her membership of the union and her role as shop steward played a part in her selection for redundancy.

The complainant appealed her selection for redundancy but only received the result some four months later.  She also stated that the person dealing with the appeal did not ask her any questions and together with the technical difficulties which resulted in a remote appeal hearing without a visual connection with the decision maker, resulting in a very unfair process.

The complainant submitted that as a result of being made redundant, she suffered a financial loss amounting to 61 weeks at her weekly rate of pay and that she sought to mitigate her loss by applying for various positions and by looking into taking on the lease of a local café. 

The respondent submitted that the complainant was not unfairly dismissed in that her termination was by way of redundancy.  The redundancy arose due to restructuring due to Health & Safety concerns for clients brought about by obsolete technology in the workplace together with technology advancements.  The redundancy was also necessitated by the change in financial circumstances for the company as it had to plan for future investment by cutting back on its current expenditure.

The respondent submitted it was an unfortunate time to have to terminate anybody’s employment and that it had identified three positions that it needed to dispense with as it was changing technology.  Arising from this the company made the three people occupying those positions redundant.

The respondent stated that it did not have an anti-union bias in dealing with the complainant or the process for selection for redundancy.

The respondent submitted that it had apologised for the delay in sending out the result of the appeal but held that the appeal was valid.

The complainant suggested that she had been made redundant because of her membership of and role in a Trade Union.  The complainant suggested that this was primarily due to her acting as shop steward but also that the respondent was generally anti-union.  To support this proposition, the argument was advanced that because the respondent did not want to wait for a specific representative to return from annual leave, it was anti-union, and this contributed to the complainant being made redundant.  It was also put forward that one individual who undertook one nightshift but was not a union member was retained and this reflected on the respondent’s anti-union bias.

In response, the respondent denied the suggestions and noted that the person who undertook the single night shift was actually employed as a qualified maintenance person for the majority of their work and that this accounted for his retention.

Having considered this matter I am not satisfied that the complainants’ activities as shop steward account for her selection for redundancy as two other individuals were also chosen for redundancy.  All three individuals occupied the role being made redundant, that of night supervisor.  However, I note that all three individuals selected for redundancy were union members.

I note from the evidence provided at the hearing that the complainant was originally employed as a cook and that this evidence was not challenged.  It was also submitted that apart from the maintenance position, the manager position and the chef position, the remainder of the staff positions required no particular skills and could have been filled by the complainant. 

The respondent confirmed that it had identified three positions for redundancy and had chosen the three people holding those positions for redundancy.  It confirmed that it had not looked beyond the three individuals holding those positions for candidates for redundancy.  It was suggested by the complainant that at least one of her former colleagues would have opted for a voluntary redundancy and that the complainant’s representative had suggested this along with other options that the respondent could pursue.  The respondent confirmed that it had not received any requests for redundancy on a voluntary basis, but it also confirmed that it had not sought such.  The respondent submitted that it had considered but discounted the other options put forward by the union but did not expand upon that consideration other than to mention that the options were considered by the board.

Section 6(1) of the Unfair Dismissals Act, 1977 states that

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.

Section 6(4) of the Act states that:

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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 7(2) of the Redundancy Payments Act, 1967 states that

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,]

The respondent outlined its financial position, the advancements in technology and the regulatory changes that were being introduced in the sector and I am satisfied that a genuine reason to effect redundancies existed in accordance with the legislation. Where dismissal is by way of redundancy, it can be deemed to be a fair dismissal.  However, Section 6(7) of the Unfair Dismissals Act states that

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.

To this end, it is appropriate to consider if the steps taken by the respondent were reasonable in all the circumstances.  The respondent confirmed that it did not explore options relating to making other persons redundant to any great degree but rather concentrated upon the three post holders as their only options from the outset.

The case of Employee vs Employer UD206/2011 is instructive in the instant case.  The Employment Appeal Tribunal held that

Having considered the totality of the evidence the Tribunal is not satisfied that the respondent acted fairly and reasonably when addressing the need to reduce the number of employees. 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. The employer must follow the agreed procedure when making the selection. Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.

I note that this case was also cited in Production Line Lead v Employer (ADJ-00024721), wherein the Adjudicator held that “The questions to be decided are, did a genuine redundancy situation exist, did the circumstances constituting the redundancy apply equally to one or more other employees and if so, was there a fair selection for redundancy and did the respondent act fairly and reasonably.”

The evidence provided by the respondent was that there were 12 or possibly 13 positions in the respondent premises at this location at the time.  It submitted that there were three positions which required particular skills, the Manager, the chef and the maintenance position.  In addition, it suggested that the cook required additional skills.  It submitted that all other positions did not require specific skills.  The union had submitted suggestions as to how the redundancies could be managed including amongst other suggestions, seeking voluntary redundancies, or the redundancy of other staff.  However, the respondent seems not to have explored these suggestions to any great degree.  The respondent confirmed that they did not seek voluntary redundancies.  Having regard to the written and oral evidence provided for the hearing, I find that where there were no agreed procedures in place to consider redundancy, it was not fair and reasonable to discount all other options without some level of substantive consideration.

Arising from this and the lack of any independent matrix or process used in the selection of the employees to be made redundant, it is hard to discount their union membership as being a contributory factor in the selection for redundancy as suggested by the complainant, particularly as the complainant was originally recruited as a cook.

Section 6(2) of the Unfair Dismissals Act, 1977 states that

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

However, while I consider the union membership to have been a contributory factor, I am not satisfied that the redundancy resulted wholly or mainly from that membership. 

Notwithstanding this point, when considering the evidence from both parties in its entirety, I do not consider that conduct of the respondent in its consideration of the redundancies was fair and reasonable.  Accordingly, I find that the respondents approach amounts to unfair selection for redundancy and as such the complainant was unfairly dismissed.

As regards options to mitigate her losses, the complainant gave evidence of her efforts to find alternative employment. The complainant outlined her efforts in applying to one position (unsuccessfully), in trying to take on a lease for a café and finally in gaining employment in a named establishment.  In relation to that position, she outlined how she chose not to keep it (it was in the hospitality sector) as she could see that another lockdown was on the way, and she didn’t want to be out of work.  However, I note that the Government implemented a scheme to cover Covid layoffs.  Considering the mitigation issue, I find that means that she deprived herself of an income.  Accordingly, I find that in considering the mitigation of her losses, the efforts of the complainant are only reckonable up to the point that she withdrew from that position.

The complainant was out of work from the date of her termination 29 October 2020 until she began work with the named establishment at the beginning of August 2021 (45 weeks).  Accordingly, I find that any loss of earnings relates to that period only.

Having considered all the written and oral evidence in relation to this complaint, my decision is that the complainant was unfairly dismissed.

In accordance with Section 7 of the Act, I hereby grant the complainant redress in the form of compensation equal to 45 weeks salary less any amount already paid as redundancy to the complaint (€19,567.80 which amounts to 45 weeks salary, at €434.84, minus €5,644.22 redundancy.  The compensation comes to €13,923.58).

Unfair Dismissal, unfair selection for redundancy, reasonableness of employer consideration of options