Complainant

Respondent

Parties

Pauline Kurapatika

Home Again

Representatives

Barry Crushell, Solicitor

Barry O’Mahony, BL

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-00043151-001

21/03/2021

The respondent is a voluntary organisation and a company limited by guarantee.  They provide a home to young people in the care of Tusla in two Dublin houses, one in Dalkey and the other in Templeogue.  This residential service is funded by Tusla.  Until February 2021, using its own funds, the organisation provided aftercare support to young adults preparing to leave residential care. 

On July 5th 2016, the complainant commenced working with the respondent as a relief social care worker.  In June 2017, she was appointed to a permanent job as an aftercare support worker.  Her annual salary was €43,451.  Due to a lack of continuing funds for the aftercare service, the respondent stopped providing this service and the complainant’s role was made redundant.  She declined an offer to return to the relief panel of social care workers in the houses, and her employment was terminated on March 5th 2021.  She complains that her dismissal on the ground of redundancy was unfair.

In a written submission provided in advance of the hearing, the respondent said that their residential service is funded by an annual grant from Tusla of €2 million.  No funding was provided for the aftercare service.  Details of the company’s accounts were submitted in evidence and these show that there was a significant deficit in funding from 2017 to 2019. 

Towards the end of 2020, it became clear to the respondent that they could no longer continue to fund the aftercare service.  As the complainant was the only aftercare support worker employed, without continued funding, her role would be redundant.  To avoid this scenario, and to continue the aftercare service, in collaboration with the Director of Services, the complainant drafted a submission for Tusla to argue for funding for the service on an ongoing basis.  A copy of the proposal to Tusla was provided in the respondent’s book of papers at the hearing.

At a meeting with the Director of Services, Mr O’Rourke, (“JOR”) on January 12th 2021, the complainant was informed that, in the event of Tusla not agreeing to provide funding for her role, the aftercare service would cease and her role would become redundant.  This was confirmed in a letter from JOR on the same date.

At a meeting on January 21st 2021, Tusla officials informed JOR that, as they provided an aftercare service from their own resources, they would not provide ongoing funding for this service to be delivered by the respondent.  The following day, JOR confirmed this outcome to the complainant.  Alternative jobs were discussed and the complainant was offered the role of relief social care worker, the job she had occupied from July 2016 until she took on the aftercare support job in June 2017. 

Another meeting took place on February 2nd 2021 and the complainant attended with her partner.  She was again offered a permanent job as a relief social care worker, and this was confirmed in an email from JOR on the same day.  This job does not have fixed hours of work, but the respondent’s submission stated that there was plenty of work available.  JOR confirmed to the complainant that she would be offered a job with a guarantee of 39 hours a week as soon as such a job became available.  The complainant was offered the relief job on her existing rate of pay, which is higher than the actual rate of pay for the job of relief social care worker.  JOR also confirmed that the complainant would be paid a redundancy lump sum before she transferred to the alternative job and that there would be no break in her service.

On February 8th, the complainant wrote to JOR declining the offer, due to the fact that the hours were not guaranteed.  She also complained that confidentiality had been compromised when another employee remarked that she heard that her job was redundant. 

A third meeting took place on February 12th 2021 and, with the complainant rejecting the offer of an alternative role, she was notified that her employment would terminate on March 5th.  This was confirmed in a letter from JOR on February 16th, in which the complainant was informed that, based on her service of 4.7 years, she was entitled to a statutory redundancy payment of €6,202.

On February 19th, the complainant sent a letter to the Chairman of the Board of Directors, appealing the decision to make her job redundant.  She claimed that the decision to select her for redundancy was unfair and contrary to her contract of employment.  She argued that she should have been included in a pool of employees and that one person should have been selected “based on the merits and experience and proficiency of these people.”  Although her letter was intended to be an appeal of the decision to make her job redundant, she said that she felt that “coming back to the organisation is not an option as my position has now been made untenable.”  She asked for a settlement payment of €30,000.

Evidence of the Director of Services

JOR said that the organisation’s core service is the provision of residential care.  They have a service agreement with Tusla to do this work with between eight and ten young people in two houses.  Until February 2021, they provided an aftercare service from funds released from the sale of a property.

When he was appointed as the Director of Services in March 2020, JOR said that his first job was to review the organisation’s finances, which had been in deficit since 2017.  As the service provided under the Tusla agreement was highly prescribed, he recognised that the aftercare service depended on the organisation’s reserves, which had become depleted.  Throughout the second half of 2020, he and the complainant tried to get funding for the aftercare service.  They put together a proposal for Tusla, but in January 2020, it became evident that Tusla would not entertain their proposal and that they were satisfied with their own aftercare service.

JOR described the complainant as very professional and experienced and he said that they wanted to “hold on to  her.”  He offered her a role as a relief social care worker until a 39 hour job position became available.  JOR said that, while the hours are not fixed or guaranteed in this job, “our relief staff are in demand.”  For their core team, he said that there is a requirement for 500 days of annual leave to be covered, apart from other leave such as sick leave.  In addition, two social care workers were on maternity leave, and their rosters had to be covered.  He said that in any week, there are 195 relief hours available.  There is no shortage of hours and some relief staff find that the role offers them a degree of flexibility because they can select the shifts that they want to work, across days and nights.

JOR said, “in an effort to hold on to Pauline, I offered her the job on her existing rate of pay.”  The offer was unacceptable.  He said that the difference between the permanent role and the relief job was the shift work, and the complainant wasn’t willing to work shifts.

JOR said that a social care worker job with fixed hours became vacant in April 2021, just a few weeks after the complainant was made redundant. 

Cross-examining of the Director of Services

Mr Crushell asked JOR about the funding of the job of aftercare support worker.  He said that the funds were from the sale of a property.  Mr Crushell said that the complainant was concerned that there wouldn’t be ongoing funds for the aftercare job and that she understood that, in the event of funds drying up, she was to be offered an alternative.  JOR said that the complainant was to be offered a vacancy as one arises.  He said that the “best way I could do this was to provide the relief option until a job comes up.”  He said that there are 20 social care workers employed in the organisation.

Mr Crushell asked if the complainant should not have been included in a broader pool of employees whose jobs were at risk of redundancy.  JOR replied that the complainant was a relief social care worker when she was assigned to the job of aftercare support worker.  He said that she would have been eligible for the next permanent position that came up.

JOR said that the service level agreement with Tusla applied to the 20 social care worker jobs.  The only role not funded by Tusla was the complainant’s job.

Mr Crushell said that it is the complainant’s position that the job of relief social care worker was not a suitable alternative job.  “On paper,” he said that she was going from a safe job with guaranteed hours and income to a role that depended on the needs of the organisation.  JOR replied that he had worked to mitigate any loss and that a permanent job came up in April 2021.

Mr Crushell asked why the complainant should have had to take the risk by moving to the relief job.  JOR said that the aftercare service had to close.  The complainant could have taken the relief job on her current rate of pay, with the prospect of a permanent job in the future.  She also had her redundancy pay.  JOR said that he and the Chairman of the Board of Directors “tried to impress on Pauline the benefits of the relief role.”  They told her that they wanted her to remain working in the organisation.

Mr Crushell said that the offer of the relief role was on inferior terms.   JOR replied that, when she worked in the aftercare service, the complainant did the work of a social care worker.  She would have done the same work as a relief social care worker in one of the houses.  This is the role she was offered in her contract of employment.

JOR described the offer of the relief job as a “win-win” for the complainant.  She had an offer of hours as a relief worker.  She was being paid a redundancy lump sum of €6,202, plus an “ex gratia” amount of €2,500 and she was in line for the next permanent job.  He said that it is apparent that the complainant was unwilling to go back to work in the residential programme, as she sought a settlement of €30,000.

In response to questions from me, JOR said that they were unambiguous in their discussions with the complainant.  He said that she would be offered a job, but that she would have to indicate that she was interested.  In 2017, the complainant decided to remain working with the aftercare programme in the knowledge that the job came with some degree of risk.  Between 2017 and 2021, the complainant never expressed an interest in a more secure position.  When the aftercare service closed, they proposed that the complainant move back to the post she was in in 2016.

Evidence of the Chairman of the Board of Directors

The Chairman of the Board of Directors, Mr O’Leary (“SOL”) said that he has been a board member for a number of years and the Chairman since 2017.  On February 19th 2021, the complainant wrote to him appealing the decision to make her job redundant. 

SOL said that he didn’t want to lose the complainant, but that they couldn’t keep the job going.  He said that he was aware that they always needed relief workers and he tried to ascertain what level of work was available.  He said that there is no set annual salary for relief staff.  SOL said that he asked JOR to review the wages of relief staff over the previous six months.  They found that most of the relief staff earned around €2,500 per month after tax.  He said that they decided to pay the complainant the redundancy lump sum of €6,202 if she transferred to the relief job.  He said that the reason for this was because they needed relief workers and they didn’t want to lose the complainant.  They agreed that, when the next permanent job came up, she would be given that job. 

Cross-examining of the Chairman of the Board of Directors

Mr Crushell asked SOL if he considered placing the complainant on lay-off, in the expectation that better times may be coming.  He replied that there was no prospect of the organisation’s funding situation improving.

Evidence of the Board Member

The Board Member, Mr Semple, (“MS”) who heard the appeal of the decision to make the complainant’s role redundant said that he was formerly the Chairman and that he has been on the board for a number of years.  He said that he was not involved in the decision to make the job of aftercare support worker redundant. 

At the appeal, MS said that he told the complainant that she was held in extremely high regard and that they wanted to keep her in the organisation.  He said that he explained about the availability of the relief job.  During his conversation with the complainant, MS said that it became clear to him that the problem the complainant had with the relief job was that the income wasn’t guaranteed.  He said that he counselled her that if she took the relief job, she would become permanent.  He also advised her that she had a better chance of getting a job if she was in a job.  In their discussion, MS said that the complainant asked if her wages could be guaranteed if she accepted the relief job.  He said that he spoke to JOR and SOL about the possibility of a guaranteed income.  They said that, while the wages couldn’t be guaranteed, if she accepted the relief job, in all likelihood, the complainant would be regularly employed.  Ms said that he highlighted to the complainant the fact that an opportunity would come up for a 39 hour job.

Regarding the cessation of the aftercare service, MS said that they had hoped that it they set up the service, that Tusla would fund it.  He said that they were upset when they wouldn’t agree.

Mr Crushell did not cross-examine MS.

Summary of the Respondent’s Position

Summarising the respondent’s case, Mr O’Mahony said that section 6(3) of the Unfair Dismissals Act does not apply to the selection of the complainant’s job for redundancy, because no other employees were available for selection.  He said that this redundancy falls into the definition at section 7(2)(a) of the Redundancy Payments Act, as the employer no longer carries on the work for which the complainant was employed.  Mr O’Mahony referred to the decisions of the Employment Appeals Tribunal in Hayes v O’Kelly Brothers Civil Engineering Limited[2] and McNally v Westwood[3] to demonstrate that redundancy is a substantial ground for dismissal, thereby satisfying section 6(1) of the UD Act.

It is the respondent’s case that the complainant’s refusal to accept what was a suitable alternative role was unreasonable, and disentitles her to claim unfair dismissal.  Mr O’Mahony referred to the objective test to determine the suitability of an alternative role, while the reasonableness or otherwise of the employee’s decision to accept or reject a role is subjective.  In this regard, he referred to the decision of the Labour Court in the case of Garrett Brown and Isabella Di Simo[4] where the Court set out the relevant test as follows:

“In determining the within appeal, the Court is required to consider firstly the suitability of the offer of alternative employment made by the Respondent in writing on 21st November 2018 to the Complainant, and, secondly, whether or not the Complainant’s decision to refuse the offer was reasonable in all the circumstances.  In Cambridge & District Co-operative Society Limited v Ruse [1993] I.R.L.R. 156, the English EAT, when considering the similarly worded provisions of the British legislation, said that the question of

‘the suitability of the employment is an objective matter, whereas the reasonableness of the employee’s refusal depends on factors personal to him and is a subjective matter to be considered from the employee’s point of view.’”

Mr O’Mahony submitted that the job offered to the complainant in writing on February 2nd 2021 was “a suitable job for the complainant, in that it maintained the same rate of pay, the same location, and the same terms and conditions, other than a change in the allocation of hours.”

Regarding the issue of the mitigation of losses, Mr O’Mahony referred to the absence of any evidence that the complainant attempted to mitigate her loss, when there is an abundance of positions available in the residential care sector.  He argued that it was unreasonable for the complainant not to take up the relief job.

Summary of the Complainant’s Written Submission

In her written submission, the complainant said that she commenced work with the respondent on July 5th 2016 as a relief social care worker.  At the end of three months’ probation, she was placed on the panel of permanent relief staff.  She was seventh on the panel in line for a 39 hour job.

In June 2017, the complainant said that she was offered a temporary position covering the maternity leave of the aftercare support worker.  This employee didn’t return to work at the end of her leave and the complainant continued in that role.  By 2020, I understand that the six people who were on the panel ahead of the complainant were all appointed to 39 hour jobs, plus three others.

The complainant’s submission refers to her contract of employment which was submitted in evidence.  Clause 4.2 provides as follows:

“The employee will hold her position on the panel for full-time permanent positions on the Social Care Worker Staff Teams while performing this role and will be offered a position when the appropriate vacancy occurs, and will resume her role in the care teams in the event of the Aftercare role closing.”

The complainant questions why people who came after her were given full-time positions and why redundancy wasn’t offered to anyone else.  She said that she took the role of aftercare worker on the assumption that she “would be ok whatever happens.”

In her submission, the complainant said that she was surprised that she was offered a relief social care worker’s job with “no hours” when people who came after her were given fixed hours.  She said that on January 8th 2021, a cleaner commented, “they are going to get rid of you.”  She said that she didn’t take this seriously, because she thought that the cleaner hadn’t seen her because she was working from home.  Then, on January 12th, the complainant said that she got a phone call to discuss the fact that her job was redundant.

The complainant said she was offered redundancy or the opportunity to work on the relief panel.  She said, “they kept emphasising that you will get a full-time position but we can’t guarantee it to you or give it to you…”  She said that she spoke to two members of the Board of Directors and they offered her €2,500 plus her relief contract.  She said that the only offer she got was her relief contract which had no hours and her redundancy lump sum of €6,202.

As a result of this, the complainant said that she was very disappointed.  She said that she thought that the organisation was going to buy land and expand and that she had put a lot of research into this.  She said that she got depressed and went to a counsellor.  She said that she had to move out of Dublin to find cheaper accommodation.

From the perspective of mitigation, the complainant said that she has applied for jobs and done interviews, but she has not started work yet since she finished up with the respondent.  She said that she went from earning €2,700 net per month to €1,400 on the Pandemic Unemployment Payment (PUP) and that she couldn’t make ends meet.

In conclusion, the complainant said that after she left, she heard that a permanent social care worker left.  She said that she wasn’t called back and she thinks that she should have been offered that job.  She said that she feels that if she went back “my position there won’t be good.”

Legal Submission

In a comprehensive submission, Mr Crushell set out the legal arguments to demonstrate that the dismissal of the complainant by reason of redundancy was unfair.  He supported these arguments with 38 legal precedents.  I have reviewed closely this 25-page document and I have taken account of the sections that are relevant to the complainant’s circumstances.

Evidence of the Complainant

In her direct evidence, the complainant said that she joined the respondent’s organisation in 2016, as a relief social care worker, having worked for the Peter McVerry Trust and for Focus Point.  She started off in the house in Dalkey, working on a one-to-one basis with young people, assisting them with their daily living.  She then moved to the aftercare service, helping boys who were preparing to leave care and others who had already left.

When she started in the job in 2016, the complainant said that she worked a 39 hour week on the relief panel.  She said that the panel was created “so that we have guaranteed hours.”  When the person who was the aftercare support worker went on maternity leave, the complainant was in seventh place on the panel for a job with fixed hours,

Mr Crushell referred to clause 2.1 of the contract of employment issued to the complainant when she was appointed to the role of Aftercare Support Worker in June 2017:

“Save as may be otherwise authorised by the Society in writing, during the continuance of this Agreement, the Employee shall devote her whole time, attention and personal skill to the business of the Society.”   

He argued that that this “exclusivity of service” clause meant that the complainant was a permanent employee.  He said that the offer to move to the relief panel was not the same as her original job. 

The complainant said that she thought that she would go back to her job on the relief panel when the original aftercare support worker returned from maternity leave. 

Mr Crushell asked the complainant why she was perturbed when hers was the only job considered for redundancy.  She said that when she heard from JOR that her job might be redundant, she laughed, because she had heard this news first from the cleaner and she thought it was just idle gossip.  She said that she thought that she would go back to her old job as a social care worker, but then she was offered a relief position.  She said that the hours were not guaranteed and she thought that she wouldn’t be financially stable in the relief job.  The complainant said that “much was made about the availability of work.”  She said that her redundancy could have been avoided if redundancy had been offered to someone else. 

Since she finished up with the respondent in March 2021, the complainant said that she has applied for about 150 jobs, but the pay is around €10 - €12 per hour and this is not acceptable to her.

Cross-examining of the Complainant

Mr O’Mahony argued that there is no evidence that the complainant had a contract of employment on the permanent panel.  The complainant said that, before she moved to the job in aftercare, she had a guarantee of 39 hours a week.  She then agreed that these hours were not guaranteed.

Clause 4.2 of the complainant’s contract of June 2017 provides as follows:

“The Employee will hold her place on the panel for full-time permanent positions on the Social Care Worker staff teams while performing this role and will be offered a position when the appropriate vacancy occurs, and will resume her role in the Care Teams in the event of the Aftercare role closing.”

Mr O’Mahony said that this clause was inserted into the contract to confirm that the complainant would return to the relief panel if the aftercare job came to an end.  The complainant replied that she was offered a relief job with no guarantee of hours.  She agreed that she was advised that her net income would be around €2,500 per month.

Mr O’Mahony referred to the complainant’s evidence that she was concerned that the job would not be financially stable, yet she declined this offer of a job with the prospect of a monthly income of €2,500.  The complainant denied that she was informed that she would be offered the next permanent job, saying she was told that she would have to apply.  She said that she thought she would have to be interviewed. 

The complainant said that, having finished up with the respondent on March 5th 2021, at the end of that month, she moved from Dublin to Portarlington.  She said that she refused a job as a care assistant and she has been claiming the PUP.

Conclusion

Summarising the complainant’s position, Mr Crushell said that the organisation continued on after she was dismissed and that its requirements did not change.  He argued that the selection of the complainant for redundancy on the basis that funding for her role had dried up was unreasonable.  He said that the complainant was prepared to undertake other work but the offer was unsuitable. 

Mr Crushell referred to clause 1.1 of the complainant’s contract:

“The Employee will initially be employed as a permanent Aftercare Worker reporting to the Director of Care.  This arrangement may be subject to change in the future as the Society requires maximum flexibility from all staff while endeavouring to give a broad range of experience and exposure to staff.”

Based on this clause, Mr Crushell asked if the complainant was entitled to consider herself a full-time worker.  He said that it’s up to the respondent to clarify this.  He argued that, as a permanent employee, she should have been offered a permanent job on the relief panel. 

The Relevant Law

This complaint is grounded on the complainant’s allegation that, when the job of Aftercare Support Worker was made redundant, she should have been redeployed to a full-time, 39 hour job as a Social Care Worker.  Her complaint falls to be considered under the Unfair Dismissals Acts 1977 - 2015 and the Redundancy Payments Acts 1967 - 2014.

The Unfair Dismissals Acts 1977 - 2015

Section 6(1) of the Unfair Dismissals Acts (“the UD Act”) provides that a dismissal is unfair, “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.”  The burden of proof rests with the respondent to provide evidence of the “substantial ground justifying the dismissal” of the complainant.  Their case is that the “substantial ground” was the complainant’s rejection of the role of relief social care worker as an alternative to the job of Aftercare Support Worker which came to an end in February 2021.

Section 6(3) of the UD Act provides that a dismissal will be unfair where an employer acts unfairly in the selection of an employee for redundancy or, where an agreed procedure for implementing redundancies is not followed:

“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, 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.”

“Subsection (2)” referred to here is subsection 6(2) which addresses the termination of employment for reasons related to trade union membership, religious or political opinions or for having made a protected disclosure and other matters which are not relevant to the complainant in this case.

In the case we are considering, “the circumstances constituting the redundancy” was the ending of the aftercare service because the funds to pay the complainant were fully spent and replacement finance was not available.  

Section 6(4) of the UD Act recognises the right of an employer to dismiss an employee due to redundancy: 

 “…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

(c) the redundancy of the employee.”

Subsections (a), (b) and (d) of this section are not relevant to this complaint.

We know from section 6(3) that this right is predicated on an obligation to select employees for redundancy on the basis of fairness, and to adhere to an agreed procedure or a code of practice regarding dismissals.  Section 6(7) expands further on the issue of reasonableness and provides that, in considering a complaint of unfair dismissal, I may have regard,

“(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.”

The complainant was not a member of a trade union and no formal procedure regarding selection for redundancy was submitted in evidence.  In the absence of an agreed procedure, the respondent was required to ensure that the fair procedures that apply in the case of any dismissal were afforded to the complainant.  These include the right to notice, the right to be represented at meetings and the right of the employee to respond to the employer’s decision to make her job redundant. 

The Redundancy Payments Acts 1967 - 2014

The starting point for a consideration of the respondent’s position is the definition of redundancy at section 7 of the Redundancy Payments Acts (“the RP Act”).  Section 7(2) sets out five definitions of redundancy and, for our purpose here, we need to concern ourselves only with subsection (a):

“…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 [.]”

The case made by the respondent is that the complainant’s job was no longer required when the provision of the aftercare service ended.  It would appear that this explanation falls within the definition of redundancy at section 7(2)(a) of the RP Act, but I will explore this further now.

Was it Reasonable to Make the Complainant’s Job Redundant?

All the work provided by the respondent, apart from the aftercare support service, is funded by Tusla.  I heard from the respondent’s witnesses that, some time prior to 2017, they decided to use the funds from the sale of a property to provide ongoing support to the young people who had to leave residential care at the age of 18.  By 2020, when the funds were spent, Tusla refused to provide the finance for the respondent to continue to offer this service, as they also provided an aftercare programme for young adults leaving care.  It is clear to me that the decision of the respondent to make the job of the Aftercare Support Worker redundant was a reasonable and unavoidable outcome from the fact that their aftercare programme ceased in February 2021.

In his submission, Mr Crushell referred to the decision of the Employment Appeals Tribunal (“EAT”) in St Ledger v Frontline Distributors Ireland Limited[5].  Here, the chairman, Mr Dermot McCarthy remarked that redundancy “has two important characteristics, namely, impersonality and change.”  In 2003, the view of the EAT in this and other cases led to the amendment of section 7(2) of the Redundancy Payments Act and the insertion of the statement underlined above which emphasises that redundancy is impersonal, and “not related to the employee.”  The focus of redundancy must, in the first instance, be on a job.  Its purpose is to eliminate a job or to effect change on a job and not a person. 

It is apparent to me that the complainant’s job was made redundant entirely due to the ending of the provision of the aftercare service by the respondent.  I am satisfied that this decision was in no way related to the job-holder, and that, with the ending of the aftercare service, there was no longer a requirement for an aftercare support worker.  I find therefore, that the decision to make the complainant’s job redundant was reasonable.  I also find that the procedure followed by the respondent that led to the termination of the complainant’s employment was a fair process, although this point is moot, based on the conclusion I am about to set out.

The Offer of a Suitable Alternative Job

At the hearing, the respondent’s representatives clarified that the job of relief social care worker is not a temporary job.  It is a permanent job with flexible hours which are not guaranteed.  This is the job that the complainant had from July 2016 until June 2017, when she was in seventh place on the panel for what was referred to by the Director of Services as a “39 hour model” job.

When I asked the Director of Services to explain the difference between a relief job and a 39 hour model job, he said that all the employees on a 39 hour contract work a shift system.  The relief staff supplement this shift on the same roster.  There is a requirement for 195 relief hours every week, which, in my estimation, is equivalent to almost five 39 hour jobs.  Relief staff can also opt to cover for employees on maternity leave for six months or more.  In June 2017, the complainant opted to provide cover for the aftercare support worker who went on maternity leave.  When this employee resigned, the complainant remained in the role, on a 39 hour, fixed shift of 9.00am to 5.30pm, from Monday to Friday.  When she came to the top of the relief panel, she did not exercise her option to take up a 39 hour job.  With the cessation of the aftercare service, the respondent offered the complainant her old job back, but in first place on the panel for a 39 hour job, and at her current, and higher rate of pay.  The evidence of the respondent is that employees on the relief panel earn around €2,500 per month after deductions, which, by my calculations, amounts to around €38,000 gross per annum.  The complainant’s gross annual salary as an Aftercare Support Worker was €43,451 and she said that her monthly net pay was €2,700.

It is the complainant’s case that, rather than being offered her old job, she should have been appointed to a 39 hour job and that someone else should have been made redundant instead.  It is clear to me however, that this is not in line with clause 4.2 of the contract she signed in June 2017, which provides as follows:

“The employee will hold her position on the panel for full-time permanent positions on the Social Care Worker Staff Teams while performing this role and will be offered a position when the appropriate vacancy occurs, and will resume her role in the care teams in the event of the Aftercare role closing.”

Aside from this contractual provision, it is my view that it would have been unfair to make another employee redundant, whose job was not affected by the ending of the aftercare service.

As an alternative to redundancy, the job offered must be one that the affected employee has the skills to undertake, and the terms and conditions must not be so different from the terms and conditions of their current role, as to make the job unacceptable.  For the respondent, Mr O’Mahony referred to section 15 of the RP Act, which contains an explicit provision regarding redundancy pay and the offer of a suitable alternative job.  Subsection (1) provides that an employee is not entitled redundancy pay if they are offered a  job on the same terms and conditions as their current role.  Subsection (2) provides that an alternative job may be suitable even if the terms and conditions “differ wholly or in part” from the provisions of the previous contract.  For my purpose here, I am concerned specifically with subsection (2):

“(2) An employee shall not be entitled to a redundancy payment if —

(a) his employer has made to him in writing an offer to renew the employee’s contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would differ wholly or in part from the corresponding provisions of his contract in force immediately before the termination of his contract,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of the termination of his contract, and

(e) he has unreasonably refused the offer.”

To avoid the termination of her employment, the complainant was offered a job that she was capable of doing and for which she had the required skills and experience.  In fact, she was offered the same job that she had been doing since 2017, but with clients under the age of 18.  She was required to work in the same place that she had worked in since 2016.  The hours of work may not have been from 9.00am to 5.30pm from Monday to Friday, and she would have had to work a flexible shift.  She was not guaranteed that she would be required to work 39 hours a week, although, it is more than likely that she would have been rostered for 39 hours.  She was in line for the next available 39 hour week job, which happened to arise within six weeks of her termination.  I am satisfied that this alternative job, without an absolute guarantee of 39 hours a week, but with a high probability that 39 hours would be available, was a suitable alternative job, in the circumstances where the job of aftercare support worker was redundant.  Based on the fact that the complainant was first on the panel of relief staff, I am further satisfied that she would have been appointed to a fixed 39 hour job within a short period and any disadvantage arising from the alternative job would have been temporary.  Any temporary loss of earnings would have been offset by her redundancy lump sum of €6,202. 

I note the findings of the Labour Court in the case referred to by Mr O’Mahony, Brown v Di Simo and the reliance of the Court on the objective / subjective tests set out in Cambridge & District Co-operative Society v Ruse.  I accept that a job an employer considers to be a suitable alternative job may be unsuitable from the subjective standpoint of the employee who is asked to take it on.  However, it is clear to me that there was a minor difference between the terms and conditions of job that was redundant and the job offered to the complainant in February 2021, and that this difference would soon be remedied.  I find it difficult to understand why the complainant refused the offer of a job where she could have earned €38,000 a year at a minimum, and decided instead to rely on the PUP, as a result of which she said that she became depressed.

Findings

In general, aside from the complete closedown of a business, redundancy is not a neat and tidy exercise.  A job may be eliminated, but the employee may capable of doing a different job, or, they may be capable of doing the same job in another part of the organisation.  With some training and support, an employee whose job is redundant may be suitable for a different job altogether.  It seems to me that the objective of section 15 of the RP Act is to avoid the dismissal of an employee, even if the alternative job is not a direct match with the eliminated job.  This is apparent from the (1971 and 1979) insertions at subsections (2A) and (2B) of section 15 which provide for a trial period for the employee to consider if the alternative job is suitable:

“(2A) Where an employee who has been offered suitable employment and has carried out, for a period of not more than four weeks, the duties of that employment, refuses the offer, the temporary acceptance of that employment shall not solely constitute an unreasonable refusal for the purposes of this section.

“(2B) Where -

“(a) an employee's remuneration is reduced substantially but not to less than one-half of his normal weekly remuneration, or his hours of work are reduced substantially but not to less than one-half of his normal weekly hours, and

(b) the employee temporarily accepts the reduction in remuneration or hours of work and indicates his acceptance to his employer, such a temporary acceptance for a period not exceeding 52 weeks shall not be taken to be an acceptance by the employee of an offer of suitable employment in relation to him.”

It is clear from these insertions that the legislature intends that, before reaching a decision on redundancy, an employee should be permitted to try out a different job, even if the wages for that job are substantially less than their normal wages.  It is incumbent on the employer to facilitate the employee to try out the alternative, before giving any consideration to dismissal.  The job offered to the complainant may have resulted in her earning slightly less than what she normally earned, although I am satisfied that, even on reduced earnings, she would have been substantially better off compared to being on the PUP.  It occurs to me also that the complainant may not have been entitled to the PUP, because the Covid-19 pandemic was not the reason that she was unemployed. 

The contract issued to the complainant in June 2017 anticipates the possibility that the aftercare service might close down.  Clause 4.2 provides specifically that she will be,

“…offered a position when the appropriate vacancy occurs, and will resume her role in the care teams in the event of the Aftercare role closing.”

There is no mention here of redundancy; the contract provides that the complainant will resume her old role if the aftercare services closes.  Despite the fact that the respondent had the benefit of legal advice, they failed to adhere to this clause in the complainant’s contract.  They also acted as if redundancy was an option that the complainant could select instead of trying out the alternative job, as provided for at section 15 of the RP Act.  As a result, the complainant was dismissed on the ground of redundancy before it was established that the alternative job was unsuitable.  This pre-emptive action resulted in the complainant becoming unemployed in circumstances where the respondent had a job for which she was eminently suitable; a predicament that simply makes no sense. 

I accept the validity of the argument that could be made that the complainant refused the offer of the alternative job, and that, in one respect, she was the author of her own demise.  I reject this proposition on the basis that it is the responsibility of the employer to provide ongoing secure employment and dismissal, on any grounds, should be a last resort.  It is my view that there should have been no discussion about redundancy with the complainant and she should have been redeployed back to her old job.

Conclusion

Having given this matter very serious consideration, I find that it was incumbent on the respondent to redeploy and not to dismiss the complainant.  I find that, while the job that she held up to February 2021 was redundant, there were no substantial grounds to justify the termination of her employment and I decide therefore that her dismissal was unfair.

Having decided that this was an unfair dismissal, in accordance with section 7 of the Unfair Dismissals Act, I must make an award of redress in the form or reinstatement, re-engagement or compensation, as I consider appropriate.  I note that, in her letter of February 19th 2021, in which she appealed against her dismissal, the complainant said that it would be untenable for her to return to work with the respondent.  I do not agree with this perception, but I must accept the opinion of the complainant on the matter.

I have taken account of the complainant’s decision not to take up the offer of a suitable alternative job.  In the circumstances where it was entirely within the complainant’s control to avoid her dismissal and the financial hardship that she said she suffered, I direct the respondent to pay her compensation of €3,300, equivalent to approximately four weeks’ pay.

Dismissal, redundancy, suitable alternative role