Complainant

Respondent

Parties

Aisling  Ryan

Pharmacy O'Riain Limited

Representatives

  Self- represented.

 McCormack Solicitors. Mr. Frank Crean, B.L.

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00039047-001

06/08/2020

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00039078-001

07/08/2020

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

CA-00039078-002

07/08/2020

The complainant has submitted three complaints. She contends that she was discriminated against on the grounds of family status contrary to the provisions of the Employments Equality Acts; the respondent contravened section 9 and 10 of the Protection of Employment Act, 1977, as amended; and the respondent unfairly dismissed her in using an unfair selection process for redundancy.

She commenced employment as a pharmacy sales assistant in the respondent’s pharmacy on 26 November 2005. She was dismissed on 29 June 2020.

She worked 15 hours per week and earned €171 gross per week.

She submitted her complaint to the WRC on 7 August 2020.

CA-00039047-001. Complaint under section 77 of the Employment Equality Act, 1998

The complainant maintains that she was discriminated against on family status grounds and contrary to section 6(2)(c) of the Employment Equality Acts 1998-2015 after the birth of her first child in 2016. The most recent act of discrimination occurred on 11 February 2020 when she was denied access to training opportunities.

The discriminatory acts manifested themselves in

failure to offer her promotional opportunities,

the absence of any pay rises to her,

no training opportunities were provided to her,

her selection for redundancy,

Witness 1. Evidence of complainant.

The complainant had been employed as a sales assistant with the respondent since 2005

Promotional posts were not advertised.

The respondent promoted Ms. P a number of years previously to the position of Assistant Manager without advertising the existence of this promotional opportunity. She would have liked to have been offered the chance to compete for promotional posts.

Absence of Pay rises

She was discriminated against in terms of pay increases. Nobody except those who were promoted got pay increases. She was told that she would have to change her arrangements in order to ger a pay rise.

She was never asked if she would increase her days or work on Mondays.

Failure to offer training opportunities.

From 2018 onwards, when she worked a two-day week, she was offered no training opportunities. She requested training in computers in November 2019. The General Manager told her that training was for full time staff. The most recent act of discrimination occurred on the 11 February 2020 when she was denied training in promoting Vichy products. The General Manager told her that she would have to cover the shop in the absence of those who were going on the training course.  She requested key code access training in February 2020 but was denied this opportunity because she was part-time.

The Senior Supervising Pharmacist who was also the General Manager decided who went on training courses.

The complainant was not given the opportunity to update her knowledge and skills in skincare at various times; nor  to enhance her experience. She was refused the opportunity to place orders for products.

Discrimination in terms of her selection for redundancy.

She was selected for redundancy based on her part-time status and family status.

Cross examination of the complainant.

The complainant confirmed that she had requested different working arrangements upon returning from maternity leave in October 2017. She stated that she changed her hours in 2015 to accommodate the respondent. She agreed that she specified the 2 days on which she would work, and the respondent again agreed to her requests in 2019. Each Christmas she changed her working days to suit the respondent’s needs and at other times as the occasion demanded. She was never asked to go full time.

In response to a question, it was confirmed that the Manager had children, works full time and was not made redundant. The Assistant Manager is full time and was not made redundant. Ms. M, part-time, on maternity leave, was not made redundant. Ms. G, part-time, has children, was offered a new position and was not made redundant.

Alleged discrimination on the basis that she was denied training opportunities.

Concerning the Vichy training course in Feb 2020, the complainant accepted that the Vichy manager was sent on training. She accepted that all staff are female, bar the General Manager and the driver. She accepted that there were different managers for different sections of the business and that they were sent on the relevant training courses.

Promotion.

She accepted that Ms P who was promoted, works 5 days a week and is the Assistant Manager. She accepted that she never asked to work a five day week.

CA-00039078-001. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

The complainant states the respondent’s lack of certainty about the number of staff employed in Edenderry affected the consultative process.

The complainant states that there were 22 staff employed in Edenderry and not 19 as claimed by the respondent. Five redundancies were proposed, and one was retracted.

She had no employee representation.

She received a letter on 11 June notifying her of risk of redundancy. She should have had a thirty-day notification period between the first consultation and the date of the dismissal on the 29 June. Consultations were via a telephone call with the Managing Director. She had hoped for a zoom call rather than a telephone call. She struggled to understand the process. She only received a copy of the matrix after the redundancy was effected.

Cross examination,

The complainant confirmed that 5 had originally been identified for redundancy in Edenderry but that one employee had been withdrawn from the list leaving four who were made redundant in Edenderry and one in the Rathangan Pharmacy.

She could not confirm if some of the staff worked in more than one of the respondent’s five pharmacies which were spread across Co Kildare and Co Offaly. She did not accept that 19 were based in Edenderry; twenty-two staff worked there. The complainant accepted that there were 70 employees in the five pharmacies. The complainant stated that she could not get a representative to accompany her to the meeting with the respondent. Concerning the telephone consultation, she accepted that the House of Eden was closed as was the pharmacy on June 20.

CA-00039078-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The complainant maintains that she was unfairly selected for redundancy. She was targeted for redundancy because she was part time. No full-time staff were made redundant. Three jobs were advertised for Christmas 2020 and a further position was advertised in August 2021.She was not aware of her scoring under the matrix until eighteen days following her dismissal.

There was no meaningful consultation with her

Regarding the actual marks awarded to her under the different criteria, it is not clear who decided on the marks. The complainant contends that the Over the Counter Manager (OCM)who had worked with the complainant should have done the scoring under the matrix. The complainant states that the scoring awarded to her under the matrix was very unfair and unintelligible. There was no evidence presented to back up the respondent’s assessment. The General Manager doesn’t know who scored the lowest on the matrix.  Apparently, the scores went from ‘good’ to’ fine’.

While she was grateful that the respondent gave her reduced hours, the matrix used by the employer held this against her in that part time hours were deemed to be evidence, in the respondent’s mind, of inflexibility. She was awarded two marks out of five under this heading. She was never provided with an opportunity to revert to full time work.

The complainant referred to the fact that she only got two marks out of five for punctuality, yet no one had ever raised the matter of her timekeeping with her.

The complainant raised the two marks out of five awarded to her under Maintaining the Department to a High Standard and fails to understand why a two-day working week – her roster- impeded her from maintaining the department to a high standard.

She never had a performance review while employed with the respondent, nor had she even been notified of any concerns about her standard of work. She requested all documents pertaining to her career with the employer; she was presented with all pay slips. No other items or issues were put to her.

Cross examination

The complainant accepts that there was a case to make some staff redundant. She questions the number of redundancies. She confirmed that the same process applied to everybody but that it was unfair. No full -time staff were made redundant.

She disputes the marks awarded under the matrix.

In relation to the deployment of Ms Z to the Rhode pharmacy, the complainant found it curious that over-the-counter training was necessary in Edenderry but not in Rhode in the job into which Ms Z was slotted without the qualifications which she, the complainant, had to acquire to do the same job in Edenderry. She could have filled the vacancy in the Rhode pharmacy.

Witness 2.  Ms. Z, Colleague.

The witness confirmed that she had been offered a position as a sales assistant in the respondent’s Rhode pharmacy for two days a week doing the same job as she had done in Edenderry prior to her return from maternity leave. She was not provided with over-the-counter training.

Cross examination of witness 2.

The witness confirmed that the Pandemic was in force when she was offered the job in Rhode. She was never informed that the position was temporary or that the vacancy had arisen due to the health concerns of the holder of the position.

Mitigation.

The complainant made 23 applications for jobs over the period June 2020 to August 2021.She got another job on 1 September 2021. She is paid €13 an hour. She works 17 hours a week over two days.

She asks the adjudicator to uphold her complaints.

CA-00039047-001. Complaint under section 77 of the Employment Equality Act, 1998

The respondent denies that they discriminated against the complainant on family status. The complainant has not presented a comparator. The complainant cites the fact that she was made redundant because she was part time worker but that is not a proscribed ground under the Acts. All her colleagues had the same family status.

Witness 3. Managing Director.

The witness is the Managing Director and founder of the company which incorporates five pharmacies spread over Co. Kildare and Co. Offaly. Edenderry was the largest and the flagship pharmacy and hence the most vulnerable to redundancies when a downturn occurred which was then followed by Covid 19.

Failure to offer the complainant promotional opportunities.

Ms.  P was promoted to the position of Assistant Manager in H of E because she helped the manager hugely and was doing so much more that her sales assistant role specified. She wanted to go full time and wanted a wage increase. The witness gave her responsibility and promoted her to assistant manager.

 Absence of pay rises.

Only staff who were promoted received pay rises. The complainant was not singled out.

Denial of training opportunities.

She never asked to go on training courses, nor did she ever advise him that she was unhappy about the absence of training opportunities.

Concerning the key code training which the complainant identifies as an opportunity withheld from her in February 2020, only three staff members went on this course; the Business Development Manager, who has 3 young children, the Manager of House of Eden who has a child and Ms. S who has no children. It was training in the software to be used for the pricing of products and it was better if only a few staff had access to enable price changes. Perhaps another section manager received the training. Pricing was too important to be devolved as a function to all staff.

Discrimination in terms of selection for redundancy.

The witness rejects her very serious allegation that because she has children she has been selected. He has always accommodated female staff in the workplace. He never fired anyone or made anyone redundant in 25 years.

Witness 4. Senior Supervising Pharmacist in Edenderry and General Manager in Edenderry for 20 years.

Complaint of discrimination on family status grounds.

Absence of promotion.

Because she was working two days a week, her capacity to manage a section of the pharmacy was compromised. Her family status had nothing to do with the fact that she was not promoted.

Absence of training opportunities.

The staff who were sent for training were those would be on site to impart their training to others. The person in charge of the Vichy section was trained. The complainant worked mainly in tanning and beauty products

CA-00039078-001. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

The respondent states that the redundancies implemented in the two pharmacies do not constitute a collective redundancy and do not come within the ambit of the Regulation.

In Edenderry there were five redundancies proposed initially, one was retracted, leaving four out of a staff of twenty. One sales assistant was made redundant in Rathangan.

The respondent met its statutory requirements.

There are seventy staff employed across the respondent’s five pharmacies and five, in total, were made redundant.

Evidence of witness 3.  Managing Director.

The witness stated that he cannot be sure if there are 19 or 20 staff in Edenderry. He is relying on his accountant.

CA-00039078-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

The respondent denies that the complainant was unfairly dismissed.

She was dismissed due to a genuine redundancy. The respondent has three fewer employees in Edenderry than was the case prior to the redundancies in June 2020.

The complainant was employed in the non-dispensary section of the pharmacy in Edenderry, selling gifts and beauty products, both operated by the respondent. Twenty employees worked in Edenderry. The respondent closed its non-dispensary section of the pharmacy after March 2020 in accordance with government guidelines. The dispensary operated out of a porch at the front of the shop selling prescription medicines. They reopened in July 2020.

The respondent laid off twelve sales assistants in 13 April 2020. They were identified as the pool at risk of redundancy. The respondent’s solicitor drew up a selection matrix. The respondent contemplated making five redundant but ended up only making four redundant in Edenderry and one in the Rathangan pharmacy.

Witness 3. Managing Director.

In January 2020, the respondent had seventy employees in the company, twenty employees in Edenderry, twelve of whom are floor assistants.

In April 2020, turnover was way down, but wages remained the same. His accountant advised him to cut his wage bill.

The effect of the pandemic meant that after St Patrick’s day he had to get porches built at the front of the shop to dispense prescription medicines so as to protect customers and staff. Half of the pharmacy’s square footage is occupied by the House of Eden and half by the dispensary/ pharmacy. There are two separate entrances to the respective sections. He had to reduce staff because while people could shop for prescription medicines, they could not shop for inessential items. Dispensary sales were down by 10%. The House of Eden closed mid-March, reopened mid -July and its sales dropped by 80-90% as soon as the porches went up. The witness had to rearrange all the pharmacies and had to have alternate / separate teams working. One half would work one half of the week and the other half of the staff would work the second half of the week so if they became infected, the other team could jump in and work. They were trying to keep numbers down so the respondent MD did the driving.

In May 2020, his accountant advised him that it was imperative to cut the wage bill. He gave a weekly update to staff. It was clear that certain positions would have to be made redundant. He took legal advice. He never had to make redundancies previously. The House of Eden where the complainant worked – the gift and non – prescription section of the shop was the obvious starting point. He laid off twelve employees across 5 pharmacies. The employees cooperated with the changes. Most of the respondent’s employees are women with children so it suited them, and they felt safer.

He chose to discuss the matter with the complainant over the phone on the 18 June because that was the safer option. He allowed for representation. He advised her of the matrix on that date. The complainant stated that she wished to remain in the respondent’s employment; she had been there fifteen years. He told her that if she had any queries, she should contact him or the General Manager.

The matrix was applied to all staff and to the best of the respondent’s ability. The General Manager did the scores as the witness does not work in Edenderry.

The witness considered alternatives but that was not feasible as he had to cut the wage bill.

The complainant appealed the decision to make her redundant, but her appeal was not upheld.

Concerning Ms Z who was redeployed to Rhode, because of her scoring on the matrix she had not been identified for redundancy. She was returning from maternity leave. There was no work for her in Edenderry, During the lock down period he needed someone in Rhode to cover. It was a temporary arrangement. She did not have over the counter sales training.

Concerning the advertisements for staff occurring after the complainant’s redundancy, and to which the complainant referred, the witness needed three staff to cover for Christmas 2020: all three finished in January 2021. The complainant did not apply for these positions.

Concerning the advertisement for a shop assistant in September 2021, two full time staff had left. He replaced one of them. It was a pharmacy technician’s role. The complainant did not have the qualifications for that role. The complainant did not apply for the position.

Cross examination of Witness.

The complainant asked why the Over-the-Counter Manager was made redundant and the Assistant Manager retained. The respondent stated that the OCM role was split, and the Assistant Manager did the staff rota; the Assistant Manager was a full-time member of staff. Orders were coming in; the Assistant Manager who was on -site could deal with these and place them correctly. The witness replied that he needed to retain the Floor manager and H of E Manager.

He does not believe that he must record the written rationale for each score.

The witness confirmed that there was a tiny cosmetics section in Rhode into which Ms. Z was slotted. She was able to handle the till. Over the counter training was not essential for the role occupied by Ms. Z in Rhode. To the question as to why the position in Rhode was not offered to the complainant, the witness stated that the pharmacist did the scoring.

The respondent stated that there was nothing wrong with the complainant, but the scoring was on a comparative basis.

The respondent stated that Edenderry was the largest, flagship store with the greatest number of employees, hence four redundancies were made there with one in Rathangan, a smaller store. The respondent confirmed that the complainant’s contract allows for her to be redeployed to another of the four pharmacies though most of the time, contracts are for a specific pharmacy.

Evidence of Witness 3. Senior Supervising Pharmacist in Edenderry and General Manager in Edenderry for 20 years.

In early April 2020, the witness realised that redundancies were inevitable.

He was not informed of who was at risk of redundancy in Edenderry. The respondent decided to make four staff redundant.

He did not score the candidates at risk on the matrix. Initially the Floor Manager applied the matrix to the twelve candidates at risk and thereafter she consulted with him. He oversaw the scoring. He was not involved in the completion of the selection matrix in the sense of identifying who would or would not survive redundancy. The matrix applied to everyone.

The employee sent to Rhode after her return from maternity leave scored higher than the complainant under the matrix.

Concerning the scores awarded to the complainant, her low score of one on Flexibility was to do with the fact that she would only work on 2 specific days.

Her ranking of two on ability to Maintain Department to a High Standard was because she would not be available to meet the sales representatives when they came to the pharmacy and, as a consequence, would be limited in learning about new products. Her ability to expand her role was compromised by her working only two days a week.

The complainant was accommodated by agreeing to her specified weekdays and every alternate Saturday or Sunday. It was not easy, but he accommodated her.

Cross examination.

He did not consult with the complainant’s immediate Manager because the MD had assigned himself and the Floor Manager to apply the matrix. The Floor Manager worked with the complainant on Saturdays and had had significant interaction with the OCM to whom the complainant reported. The OCM reported to the Floor Manager.

He confirmed that there was no record of any problem with the complainant’s punctuality. He cannot speak for the two out of five marks awarded to her. The complainant was a good employee. He took his lead from the Floor Manager.

In terms of marks awarded to her under Skills and Experience, (two out of five), it was a comparative analysis applied to all staff. Length of service doesn’t determine one’s skill level; it was not a factor. Experience is not the same as length of service.

The mark of two for Initiative was based on of the amount of feedback which she could bring to improve the business.

In response to questions about the gap in marks between the lowest ranking employee to survive redundancy and the complainant, the witness did not know the difference in marks.  He thought that the marks awarded to the other seven employees identified at risk and who escaped redundancy ranged from the low to high thirties. There may have been another person ranked in the low twenties. The complainant scored 26 out of 55.

The respondent maintains that the selection process was fair and that her complaint should be dismissed.

CA-00039047-001. Complaint under section 77 of the Employment Equality Act, 1998

I am required to establish if the complainant was discriminated against on grounds of family status contrary to section 6 (2) (c) of the Employment Equality Acts.

I must first consider if the complainant has established a prima facie case of discrimination.

Burden of Proof.

Section 85A (1) of the Employment Equality Acts 1998-2015 lays the onus of proof with the complainant to establish a prima face case of discriminatory treatment contrary to the Acts, and states.

 “In any proceedings where facts are established by or on behalf of a complainant from which it may be presumed that discrimination has occurred in relation to him/her, it is for the respondent to prove the contrary”

In the case of Teresa Mitchell v Southern Health Board (Cork University Hospital) AEE/99/8, [2001] 12 E.L.R. 201, the Labour Court concluded that

 “a complainant must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”

The complainant must discharge this evidential burden. If she does, the respondent must prove that she was not discriminated against on grounds of her family status. If she does not establish a prima facie case, her complaint cannot succeed.

In Hallinan v. Moy Valley Resources DEC-S2008-25, a complaint taken under the Equal Status Act, 2000, the equality officer held that in order to establish a prima facie case of discrimination, the following must be established:

(a) The complainant must establish that he or she is covered by the protected ground,

(b) Establish the specific treatment has allegedly taken place,

(c) The treatment was less favourable than was or would be afforded to a person not covered by the relevant discriminatory ground.

The Labour Court further clarified the onus which rests with a complainant in Margetts v Graham Anthony and Company Ltd., which stated that

“The mere fact that the complainant falls within one of the protected grounds is not sufficient to establish a claim of discrimination. The complainant must establish other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred”

Applying the above preconditions for the purposes of establishing if a prima facie case of discrimination has been met, the complainant is covered by the protected ground by virtue of section 6(2) (c)of the Employment Equality Acts 1998-2015.

The primary facts relied upon by the complainant to raise a presumption of discrimination are that she was not promoted, did not receive pay rises, was denied training opportunities in November 2019 and February 2020, and was selected for redundancy in June 2020.

The question for determination is whether this specific treatment amounted to less favourable treatment than that meted out to an employee with a different family status. I will consider the specific treatment as set out in her complaint.

 Absence of promotional opportunities.

The evidence indicates that a sales assistant, Ms P, was promoted to the position of Assistant Manager in the House of Eden due to her desire to increase to a full-time position and because she had assisted the Manager to a huge extent. It was because of her full-time status that she was promoted.

While there was no advertisement for the post, the failure to allow the complainant to compete for the post was not attributable to her family status as the person who was promoted had the same family status as the complainant.

Absence of pay rise

The uncontested evidence is that the only staff in receipt of pay rises were those who were promoted to more senior positions and who had increased their working hours. The sales assistants did not receive pay rises.

Absence of training opportunities.

The act of discrimination on the basis of family status occurred on the 11 February 2020 when she was denied training opportunities.

Family status of those offered training opportunities in February 2020.

Two of the three staff selected for training in the keycode software programme in February 2020 had the same family status as the complainant. One had no children but was a store manager. In relation to training in Vichy products, it was the manager in charge of that product who was sent for training in February 2020. The complainant accepted that it was the managers of the different sections or products that were sent for training. It is uncontested that the complainant worked more in the tanning and beauty products section of the shop.

I find that the complainant’s family status was not material to the less favourable treatment.

Selection for redundancy.

The question for determination is whether her selection for redundancy constitutes less favourable treatment than would be afforded to a person of a different family status. The family status of three colleague sales assistants, not selected for redundancy in the respondent’s five pharmacies was the same as the complainant’s; they had children. Two of the four were part time employees.

The complainant states that only part time staff were made redundant but that is not a protected ground under the Employment Equality Acts unless a complaint of indirect discrimination on family status grounds was made out which it was not. The case has not been made that only persons with a different family status to that of the complainant escaped redundancy. The entire staff with the exception of the Managing Director and the driver were female. To establish a complaint of discrimination it is necessary to demonstrate that you were treated less favourably than a person of a different family status.

Therefore, it was not the fact of her family status which led to her selection for redundancy.

I find that the complainant has failed to establish a prima facie case of discrimination on the grounds of family status and in contravention of section 6(2)(c) of the Employment Equality Acts.

Her complaint cannot therefore succeed.

CA-00039078-001. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

The complainant maintains that a collective redundancy situation arose in Edenderry with the respondent refuting this assertion.

Relevant Law:

The definition of collective redundancies is found in section 6 (1) of the Protection of Employment Act, 1977, as amended and is as follows:

 “ Meaning of collective redundancies.

 For the purpose of this Act, ‘collective redundancies’ means dismissals effected by an employer for one or more reasons not related to the individual concerned where in any period of 30 consecutive days the number of such dismissals is —

(a) at least 5 in an establishment normally employing more than 20 and less than 50 employees,

(b) at least 10 in an establishment normally employing at least 50 but less than 100 employees,

(c) n/a”

Section 6(3) defines an establishment

“In this section ‘establishment’ means an employer or a company or a subsidiary company or a company within a group of companies which can independently effect redundancies.”

It is accepted that five employees of the “employer “were made redundant. The number of staff in Edenderry is disputed. The Managing Director stated that he could not be sure if there were nineteen or twenty employees in Edenderry, but he was relying on his accountant.  However, the protection under the Act of 1977 kicks in where there are five redundancies in an establishment employing less than 50 employees. It is accepted that the respondent employed seventy employees in his establishment.

I therefore find that the circumstances obtaining in the complainant’s employment do not meet the statutory definition and the opportunity to rely on the regulation does not arise.

Section 11 A of the Protection of Employment Act 1977, as amended, requires me to declare

“that the complaint is or, as the case may be, is not well founded”

For the reasons stated above, I do not find this complaint to be well founded.

CA-00039078-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I must decide if the complainant was unfairly dismissed where the respondent submits that her dismissal was due to redundancy and therefore was not unfair, and where the complainant maintains that she was unfairly selected for redundancy.

Relevant law

 The statutory definition of redundancy found in Section 7 (2) of the Redundancy Payments Act 1967 –2016, as amended, provides that:

“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)n/a

(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” ….   .

Section 6 (4)(c) of the Unfair Dismissals Act 1977 identifies redundancy as a defence to a complaint of unfair dismissal. It provides:

“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) n/a

(b) n/a

(c) the redundancy of the employee,”

However, Section 6(3) of the 1977 Act qualifies this defence and states

“(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) N/A

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

Furthermore, the Unfair Dismissals Act 1977-2015 at section 6.7 provides

 ” 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……

Application of the above statutory provisions to the circumstances of this complaint.

I find that the circumstances obtaining in the complainant’s workplace after the advent of Covid- 19, with a downturn in the business, especially in the sale of non- essential items in the non- dispensary section of the shop match the statutory definition of redundancy found in section 7 (2) of the Redundancy Payments Act 1967 –2016 and cited above. In addition, the respondent had to maintain social distancing regulations in the pharmacy resulting in a need for a reduction in the number of staff on site. 

The defence to a claim of an unfair dismissal is qualified. Where a complainant alleges that they have been unfairly selected for redundancy and therefore unfairly dismissed, the onus of proving fair selection and therefore a fair dismissal lies with the employer.

The respondent’s case is that the universal application of the same matrix, applied to all twelve of the employees identified at risk in the respondent’s five pharmacies, means that the dismissal is not unfair. Eight of the twelve sales assistants identified at risk survived; four were made redundant. The complainant, three additional sales assistants were selected for redundancy based on receiving the five lowest scores. A manager was also made redundant.

The complainant’s case that her redundancy was unfair rests on her belief that there was no meaningful consultation, and that the matrix was designed and applied to target her unfairly. It is uncontested that consultation was by telephone and written details of the matrix to be used were supplied to her on the date of her dismissal, the 29 June 2020.

The first problem with the respondent’s defence of the complaint of unfair dismissal is the lack of clarity about the scope of the person who scored the matrix. The Managing Director in evidence was unclear about the role of the Supervising Pharmacist/ General Manager, stating at the hearing that the General Manager did the scores whereas the General Manage himself stated at the hearing that he did not have any input into the matrix other than to sign off the scores presented to him by the Floor Manager upon completion. The complainant scored 26 out of 55. The complainant reported to the OCM.  The Floor Manager whom the complainant did not report to, other than she worked with her on some Saturdays, awarded her the marks.

Secondly, when asked to identify the difference in the marks between the complainant and the lowest scoring person on the matrix who escaped redundancy, the General Manager did not know. He stated that he thought the marks of those who were not made redundant were in the low to high thirties. He was unsure. There may have been another person ranked in the low 20s

Thirdly, in relation to how the complainant was marked under the criteria, she scored 2 out of 5 on punctuality; two comes within the grading of poor. It was accepted that she had never been advised of punctuality or attendance issues. The respondent witness could not explain this poor grade.  The complainant scored 1 out of five on Flexibility, which is graded as very poor. The General Manager attributed this to her request to work specific days but did not contest her statement that she had not been asked to work different days. Two of the twelve persons who were identified at risk of redundancy were also part time workers who survived the selection process, and it is not clear if and how their working on particular days or fewer days depressed their marks.

The complainant was graded as poor, earning only two marks in respect of

Ability to Maintain Department to High Standard,

Potential to Meet future Needs of the Business,

 Initiative,

General Skills and Experience,

and Ability to Diversify Around the Store.

The General Manager in evidence stated she was a good employee and that it was a comparative analysis relative to other employees at risk. It was not contested that the respondent never raised any concerns with her about her performance. He attributed her low marks to her unavailability to meet representatives / salespersons when they came to the shop and to be up to speed on new products. The low mark for Initiative was based on the amount of feedback which she could bring to improve the business. So, the criteria of being on site was named throughout the hearing though not identified in the matrix.

As stated, the onus is on the respondent to demonstrate that the criteria were applied fairly. I find incongruity in the explanations offered.

Fourthly, in the context of section 6.7 of the Acts of 1977-2016, and the reasonableness or otherwise of the respondent’s behaviour, the more serious flaw in the dismissal procedure was the failure of the respondent to respond to the complainant’s request of the 3 July 2020 to supply her with the marks awarded under the matrix. She did not have these marks to hand when she made her appeal to the respondent’s accountant on 15 July 2020. He makes no mention of the marks in his letter of 27 July rejecting her appeal. An appeal is the final stage in the selection process. She was at a serious disadvantage in that her appeal was created and rejected without her having any knowledge as to her poor grading under six of the of the ten criteria and very poor under one of the ten criteria.

The dismissal of the complainant was not based on the eight grounds contained in section 6(1) of the Unfair Dismissals Acts 1977-2016, therefore the onus is on the employer to prove that the selection process was fair, and that the criteria have been applied fairly and consistently.  I find that there is an absence of transparency in the marking of the complainant. I find that there is also incongruity in some of the explanations offered. The evidence presented in support of the marks awarded does not adequately explain to me why and how the complainant was marked out for redundancy.

In TUS Community Supervisor v Local Development Company, ADJ 20033 the adjudicator relied on Boucher v Irish Productivity Centre R92/1992, where the Tribunal stated that in addition to proving the genuineness of a redundancy, the employer had:

 “to establish that he acted fairly in the selection of each individual employee for redundancy and that where assessments are clearly involved and used as a means for selection that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made”.

The adjudicator upheld that complainant’s complaint of unfair selection for redundancy because amongst other factors, the evidence did not indicate a fair scoring system.

I find that the respondent in the instant complaint has not demonstrated a fair scoring system or selection process.

I find this complaint to be well founded.

Redress.

The complainant has identified compensation as the preferred form of redress.

Mitigation of loss

Section 7(2)(1) of the Act of 1977, as amended, requires that in considering the amount of compensation to be awarded, I must factor in the efforts made by the complainant to mitigate her loss.  The Labour Court set out the test for proof of efforts to mitigate one’s loss in the decision of Philip Smyth V Mark Leddy, UDD1974 as follows:

“The Court expects to see evidence that employees who are dismissed spend a significant portion of each normal working day while they are out of work, engaged actively in the pursuit of alternative employment. In the instant case no such evidence was produced, and the Court has no alternative but to conclude that insufficient effort was made to mitigate the losses incurred as a result of the unfair dismissal. In accordance with the requirements of Section 7 (2) of the Act this must be reflected in the compensation to be awarded”.

The complainant submitted no written evidence of efforts to mitigate loss. The complainant states that she applied for twenty-three positions in the period 29 June 2020 to August 2021.

It is noticeable that she was aware of vacancies in the respondent’s pharmacy in December and she did not apply for them.

While it is the case that the pandemic restricted the number of available positions, the complainant has not met the test set out in the decision of Philip Smyth V Mark Leddy. I have reduced the amount of compensation to reflect this.

In considering her loss, I am guided by the decision of Kieran Murray v Sherry Garden Rooms Limited., ADJ  28766, which did not offset the complainant’s redundancy sum against his actual loss of earnings, with the adjudicator concluding that

“there is no statutory basis to deduct a lump sum redundancy payment made from actual or prospective loss incurred.”

I require the respondent to pay the complainant the sum of €3500, a sum I believe to be just and equitable in all of the circumstances.

CA-00039047-001. Complaint under section 77 of the Employment Equality Act, 1998

The complainant has failed to raise a prima facie case of discrimination on the grounds of family status. Her complaint cannot succeed.

CA-00039078-001. Complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.

I do not find this complaint to be well founded.

CA -00039078-002. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I find this complaint to be well founded.

I require the respondent to pay the complainant redress to the amount of €3,500 in compensation for this breach of the Act.

Discrimination on family status grounds; collective redundancy; Unfair selection for redundancy.