ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00032966
Parties:
| Complainant | Respondent |
Parties | Raquel Cristina Dias Ferreira | Frosch /CTM Ltd (amended at hearing on consent) |
Representatives | Appeared In Person, accompanied by Partner for support | Jim Reaney , Kells Consulting |
Complaint:
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-00043639-001 | 17/04/2021 |
Date of Adjudication Hearing: 18/02/2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This matter was heard by way of Remote Hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. On 17 April 2021, the Complainant, a Senior Travel consultant submitted a claim for Unfair Dismissal to the WRC. She submitted that she would present her own case as a lay litigant. On 2 July 2021, the complainant added an outline submission in support of her case. On July 5, 2021, the Respondent Representative, Mr James Reaney came on record. He submitted a written submission which conveyed a rejection of the claim for unfair dismissal. On 20 December 2021, the WRC proposed to relist the case as a de Novo hearing as a previous Adjudicator was absent on sick leave. This was accepted as an agreed course of action. The case proceeded to a joint hearing on the Remote Platform on 18 February 2022 |
Summary of Respondent’s Case:
The Respondent operates a Corporate Travel Business, whose parent company is co-head quartered in New York and Houston in the US. The Respondent has denied the claim for unfair dismissal. instead, they have submitted that the complainant’s dismissal was attributed wholly to the redundancy, which arose from re-organisation By means of an opening written submission, the Respondent representative confirmed that the complainant commenced work as a Travel consultant in May 2015. She moved into the role of trainer in October / November 2019. The Respondent experienced a severe impact on business as a result of the covid 19 Pandemic. Twenty staff were placed on lay off and received PUP payment when the offices closed on March 19,2020. The Business was decimated the skies were silent. The Business did avail of Government supports, while staff were furloughed. This left a skeleton staff of five, plus senior management. Eleven staff remained on lay off and another 7 departed the business via attrition and redundancy. The Respondent contended that the travel industry was the last industry to bounce back from an unanticipated three lock downs in Ireland. In quoting from Travel Weekly, March 25, 2021 “The global travel and tourism sector suffered a loss of almost 44.5 trillion last year due to the devastating impact of COVID 19. More than 62 million jobs were lost, representing a year on year drop of 18.5% leaving just 272 million employed across the industry globally. International spending was down 69.4% on 2019 levels “ The Respondent was in loss making mode from March 2020 and turnover down 98% of €18 million.to June 2021 A strategic review of Ireland business occurred in Quarter 4, 2020 in preparation for a return to and relaunch of international travel. Headcount reduced by 7 between March 2020 and date of hearing. · December 2020, the Commercial Director, Dublin was made redundant · February 3, 2021, the complainant was advised that her role as trainer was at risk of redundancy · Three consultation meeting followed over 30-day period During these meetings, the complainant registered her contention that she was a consultant and not a trainer · On 10 March 2021, the complainant was formally notified of redundancy with termination date of April 10, 2021 · She received a statutory lump sum payment in redundancy. The Respondent fundamentally disagreed with the Complainants self-casting as a consultant. The Respondent contends that she became a trainer in late 2019 and went on to support the business in that role. The Respondent contended that the topic of unfair selection did not arise from the stand alone post of trainer Barton v Newsfast Freight UD 1269/2005, reflecting a sole van driver The Respondent was satisfied that they had approached the difficult topic of redundancy as a re-organisation of the business, necessary for survival and denied that the complainant was targeted personally. They took time to consider the alternatives of redeployment, pay cuts and re-alignment to travel consultant, but these options were not viable. The redundancy was a dismissal permitted within the provisions of section 6(4) (c) of the Act and rejected that the action taken was an unfair dismissal. The role of Trainer was made redundant as the Respondent decided to return that function to the US with some Irish input. The Complainant received a redundancy payment of €7, 704.00
Evidence of Ms Z, Managing Director, Oath. Ms Z confirmed that the complainant had been hired as a Travel consultant. she was good at her job. She demonstrated an aptitude for training, and this stood out in her company. The Company made a Policy decision to undertake training in house and the complainant was selected to lead this initiative. The transition was gradual She recalled asking the complainant, if she were moved to training, could she guarantee that her replacement on the account could be handled? The Complainant said yes. The Complainant was engaged in training until she was placed on lay off. Ms Z recalled the financial challenges faced by the company on re-launching within the pandemic. The Company had commissioned an external Consultant to guide on the relaunch. She told the hearing that that she had called the complainant to inform her of risk of redundancy. the complainant told her that she understood and that she had expected it. Ten minutes later, she received “an upsetting onslaught from the complainant’s partner “She asked him to refrain from “a load of legal jargon” She re-affirmed that consultation would follow, where alternatives to redundancy would be considered. During cross examination, Ms Z accepted that the company made one redundancy as the Commercial Director had less than 12 months service. Ms Z accepted that the Complainant was sharing her knowledge at the business. She was not provided with a job description. She was not aware of the transition date to Trainer. The complainant did not have any alteration in her salary on assuming the training role. Ms Z confirmed that the Complainant was placed in a different space to work in, which was quieter and located separately to the agents. The Company had scaled down from to 22 employees by June 2021 through redundancy and attrition rate. Evidence of Ms X, Operations Director Ms X confirmed that the complainant became a trainer in September – October 2019. She confirmed that two other staff had taken over the accounts as the complainant had moved into her new role and commenced work on what was referred to as the “bible “She was located in a separate part of the office. She had a strong understanding of the system as it was a different process to the US. Ms X said that she was the only person who understood the complexities of the IT system. She was very effective in finding solutions. She was tasked with building the training manual in the IT system Ms X confirmed that the Complainant had not been provided with a new contract for the new role. During cross examination, Ms X disputed that the complainant worked as a travel consultant. she said that she was not engaged on work on accounts from October 2019. Ms Z accepted that the complainant held access to dip into a specific named section of the files for training and troubleshooting purposes. Ms X accepted that she worked on a particular file from 25 February to 22 March 2020. Ms X confirmed that the complainant did not wear a uniform in her role. she said she worked on one account alone. of 485 transactions from the team, 31 emanated from the complainant. In conclusion, the respondent representative accepted that the respondent was not in possession of documents which confirmed the complainant’s role as trainer. However, the Respondent requested that consideration be given to the complainants work on the ground as a trainer as reflected in the January 2020 manual. The Complainants dismissal was through a genuine redundancy, for which there was no alternative. the redundancy was a consequence of restructuring. On February 26, 2022, the Respondent submitted commentary on the ADJ 25155 relied on by the Complainant in her closing address. The facts of this case surrounded an Office Manager and a Service Company and a redundancy in 2019 found to be an unfair dismissal. The Respondent submitted that the two cases were not at one as ADJ 25155 reflected an intra -professional strife and contradictory balance sheets. He submitted that the Respondent company in the instant case was loss making. There were no relationship difficulties involving the complainant. The Comprehensive Training Manual constituted proof of the role of trainer. While pay cuts as suggested by the Complainant were considered, they were viewed as not viable when balanced against the catastrophic effects of the Pandemic on the Industry.
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Summary of Complainant ’s Case:
The Complainant worked as a Senior Travel consultant from 13 May 2015 to her dismissal through redundancy on 10 April 2021. She worked full time for a monthly salary of €3083.34. she found new work in August 2021 and on a part time basis in November 2021. She elected for the remedy of compensation in the event of her claim for unfair dismissal succeeding. The Complainant introduced her complaint on her complaint form. She outlined that she was the team leader at a Travel company from March 2015. She described that the Parent company, Frosch acquired a 50% stake in CTM, and a name change followed. Implementation of a new software system followed. Product A was led out by two trainers from the US. The Complainant juggled the role of training, inclusive of compilation of a training manual with team lead on the largest account at the business. She outlined that she had a duty to help colleagues and she made notes to that end. She described the training role as “sitting with Nellie” The Complainant outlined that she was placed on temporary layoff in March 2020, alongside most of the staff. This continued until February 3, 2021, when she learned from the CEO, Ms Z that she was to be made redundant in the role of trainer. She sought to argue that her existence in the company was larger than trainer. she proposed 3 months’ pay cut, which was refused. The Complainant outlined that as the second most senior travel consultant that she was the sole redundancy. The complainant exhibited her contract of employment She argued that her role as consultant remained and disputed that her title had changed to trainer. She contended that she had been made redundant prematurely as she had been wrongly recast in the role of trainer rather than her real role of travel consultant. Evidence of the Complainant: The Complainant submitted that she wanted to re-in force that she was a Travel consultant. She disputed the Respondent reliance on her role as a Trainer. She depicted a very different scenario whereby she stated that she “was good enough to help her colleagues “and this was now being argued against her. She submitted that her role in training emanated from the US training not being clear enough, but that the company was dependent in sales in the business. The Complainant submitted that she had agreed to take notes on the IT system, but this complimented her work as a Travel consultant. She contended that her dismissal was premature. She recalled that she had offered to reduce her salary to avail of the TWSS wage subsidy “just to help “this was rejected, and she was informed that there was no position available for her. The complainant stated that she wanted to keep working and the Respondent refused to “keep her on” During cross examination, the complainant responded to questions from the respondent representative in seeking to clarify and differentiate the roles of trainer and travel consultant. The complainant countered that the allocation of Account A to her was the responsibility of the business and not her fault that she was working solely on that account. She was adamant that she had always been a travel consultant over 35 years and not a trainer. She stated that she had not wanted to be a trainer, and this was not proved in the absence of a letter of appointment to the role of trainer. She confirmed that she had actively shared training notes with her own colleagues over three days, and off-site colleagues on 2 other days of the working week. The Complainant described securing full-time work in August 2021 followed by part time work on the line. She availed of PUP payment April 2021 to August 2021 and undertook some translation work The Complainant stated the circumstances of the redundancy had made her depressed, but did not submit medical evidence She did not submit or adduce evidence on a table of loss or mitigation, outside s reference to applying for positions in hospitality In clarification, the Complainant confirmed that this was her first direct experience of redundancy. She clarified that she did not understand the economic state of the business. She had not received a job description in either of the roles of trainer or travel consultant. In terms of her location in the office, she said that she was on her own. She had not completed training logs. The Complainant contended that alternatives to her dismissal were not considered by the Respondent. The complainant had not appealed the decision to make her redundant
In conclusion, the complainant asked for consideration of the Adjudication decision in ADJ 25155 as she submitted that it applied to the facts of her case. the Complainant submitted that the CEO changed her job title. she was targeted for redundancy as she was expensive. As a result, she lost trust in the company. She concluded by re-affirming that she was a travel consultant who was unfairly dismissed. The Respondent was provided with an opportunity to consider the application of ADJ 25155 in the case.
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Findings and Conclusions:
I have been requested to make a decision with regard to the claim for unfair selection for redundancy. In reaching my decision, I have had regard for written and oral submissions of the parties, in addition to the evidence adduced. The parties have submitted a complex situation for decision. Both parties reflect a solid belief in their respective positions, and both communicated that position clearly and cogently at hearing. I am grateful to the Parties for this presentation of the facts of the case. It now falls to me to make a decision in the case. The Law The Law on Unfair Dismissal is found in Section 6 of the Unfair Dismissals Act, 1977. I will also address the provisions of Section 7(2) of the Redundancy Payments Act, 1967 throughout my decision. The Complainant signalled that in the event of succeeding in her case, she elected for the remedy of compensation. She found new work in August 2021 / part time work. The Complainant has received and retained a statutory lump sum redundancy payment of €7,704.00 Section 6(1) provides: Section 6(1) — (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal. The Respondent on whom the burden of proof rests in this case, has relied on the defence contained in section 6(4) of the Act. (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a) ……. (b)……. (c) the redundancy of the employee, (d) …….. I must consider the facts of this case through the following framework
1 Was a Redundancy the reason for dismissal in the case? 2 Was the selection fair? 3 Was the conduct of the dismissal undertaken in a reasonable manner by the Respondent in accordance with section 6(7) of the Unfair Dismissals Act, 1977? S.6. (7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so— (a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, In the instant case, the Complainant has argued that her redundancy was not required as she was never cast in the training role either by contract or alignment. She distanced herself from the role of trainer and maintained that she remained a Travel consultant throughout her tenure, only taking on an informal training function to be of support to her colleagues in a “sitting with Nellie capacity” The Respondent had a completely different view of the complainant’s role and relied on a narrative of where the Complainant shone in a training capacity and following an acquisition and new IT system, the Company prepared the way for her to take on a localised training function , which on relaunching the business post covid , was not required as the function moved to the US with limited Irish input . To begin, I will consider the complainants employment status by the first notification of “at risk of redundancy” in February 2021 The Complainant had a contract of employment dated May 13, 2015, where her role was described as a Corporate Travel consultant. She worked continuously until she was placed on temporary layoff in March 2020 in response to the global pandemic. She received the government support of PUP payment. The contract of Employment did not provide for a clause on redundancy. Temporary layoff or furlough as referred to the respondent submission is provided for in Section 11 of the Redundancy Payments Act, 1967 Lay-off and short-time. 11.— (1) Where an employee’s employment ceases by reason of his employer’s being unable to provide the work for which the employee was employed to do, and— (a) it is reasonable in the circumstances for that employer to believe that the cessation of employment will not be permanent, and (b) the employer gives notice to that effect to the employee prior to the cessation, that cessation of employment shall be regarded for the purposes of this Act as lay-off. In March 2020, Emergency Legislation amended the Redundancy Payments Act, 1967 by the insertion of Section 12(1) which placed the opportunity to apply for redundancy within stated time limits outside the range of options to a worker. This provision ceased on September 30, 2021. What this meant, is that an Employer was permitted to make redundancies in law, but the employee was not permitted to elect from redundancy while on temporary layoff during this period. The climate of the pandemic was and remains extremely challenging . On 19 April 2022, the Redundancy Payments Amendment Act , 2022was commenced . This amounted to an announcement of a new payment up to €2, 268 ,( tax free ) to cover all periods of lay-off that were caused by the necessary restrictions introduced by Government to protect public health, that is any lay-offs encompassed by the provisions of Section 12( 1) from 13 March 2020 to 31 January 2022.” Operation of section 12 - emergency period 12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19. The Complainant did not return to work from “lay off “before the topic of her redundancy was raised with her by the CEO in February 2021. During this period, the Respondent submitted that the Company workforce had diminished significantly. 1 Corporate Manager position through redundancy in December 2020 There was also a natural attrition rate of voluntary leavers. 1 First Question. Was a Genuine Redundancy the reason for dismissal in the case? Redundancy by its very name signals change in the working relationship. The EAT in St Ledger v Frontline Distributors Ireland ltd [1995] ELR 160 pointed to two important characteristics in the statutory definition of redundancy “impersonality “ And “change “ The then Chair of the EAT, Dermot Mc Carthy, stressed that the change had to be “qualitative “rather than a mere “quantitively change “ This has been applied by the Labour court in 2016 in Kohinoor ltd v Hussain Ali UDD 1629 To activate a redundancy an employment is brought to an end. This is a major decision in terms of impact and long-lasting consequences both for the existing workforce and the employee themselves. It is vital that the definition of redundancy is considered here by both parties in the case. Section 7(2) of the Redundancy Payments Act, 1967 provides that definition. (2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to— (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained, In JVC Europe Ltd v Jerome Ponisi [2012] 23 ELR 70 at the High Court, Charleton J considered the enormity of a Redundancy situation, when he observed: It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. This is very much the essence of the dispute in this case. The Respondent, on whom the burden of proof rests, has submitted that the redundancy arose from a “reorienting of the enterprise “The Complainant contended that she was selected on a personal basis as she was expensive, and she saw the termination of employment as a dismissal. Both parties were steadfast in their respective views. I would like to draw the party’s attention to some very interesting obiter remarks in the Ponisi case.
This, for me stresses the need to cover a redundancy in practice with fair procedures to avoid any attempt to avoid a redundancy serving as a cover /cloak/ front for releasing a problem worker. There is no evidence of this case of circumstances such as informed Ponisi in the instant case.
It was common case that both parties had a satisfactory working relationship until the circumstances of a proposed redundancy arose. I accept Ms Z evidence when she told the hearing that the Complainant had indicated that she had been expecting the news. This was soon overtaken by a remonstration from the Complainants partner. In a 2010, 7(3) 68-73, Irish Employment Law Journal. Redundancy Law Review, the author, Dermot Casserly remarked: “An employer is perfectly entitled to use redundancy as a way of increasing efficiency in the way it carries out its business and maximising profits provided the employer can clearly establish that they will be carrying on the business with fewer employees. In drawing from the EAT case of Kingwell v Elizabeth Bradley Designs ltd 0661/02 It appears to us that there is a fundamental misunderstanding about the question of redundancy. Redundancy does not only arise where there is a poor financial situation of the employer, although as it happens there was such in this case. It can occur where there is a successful employer with plenty of work, but who perfectly sensibly as far as Commerce and economics is concerned, decides to re-organise his business because he concludes he/she is overstaffed. Thus, even with the same amount of work, the same income, the decision is taken that a lesser number of employees are required to perform the same function. That too is a redundancy situation. I realise that the complainant was on extended lay off during the pandemic and was not party to the respondent initial deliberations on change. The Complainant rebutted that a redundancy had occurred and affirmed that she was dismissed. However, I understand that the re launch process was the result of an external expert report, the Complainant was not on board for this process and was as a result sceptical of the outcome. She raised doubts about the genuine nature of the Redundancy and argued that the re-organisation relied on by the respondent was a consequence rather than a cause. This brings to mind, the case of Edwards v Aerials Technology (Irl) ltd UD 236/1985, where on review of the circumstances of a dismissal, the EAT held that the decision to dismiss the Managing Director was a consequence and not a cause. For me, I found that the Respondent expressed a genuine concern regrading the future trajectory of the business. The external report had recommended a cessation of the training role in Ireland. The Respondent had accepted this report. The Business had lost over 9 workers by the time of the Complainants date of termination. They did not hire anyone during this period. I accept that the business had sustained major loss from the evidence of both respondent witnesses . I have found that a genuine redundancy existed in the training role at the business by the clear application of section 7(2) (c) of the Redundancy Payments Act, 1967. I found that qualitative change was visible to all. 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, I will now move to consider the central aspect of the case, was the Complainant employed in the role of travel consultant or trainer? I am satisfied that the Complainant diversified her position of travel consultant in quarter 4, 2019. she did this by relocating within the office, working to compile a very impressive training manual which is date stamped as January 2020 and each page emboldened with the Complainants name. I read this guidebook as an interpretative manual of the new IT system. It read like a reference point and must be regarded a much more defined training function than “sitting with Nellie “informal approach. While I appreciate that the Complainant was not paid any differential in salary or terms and conditions during this period. I find that an innocent bystander would have recognised her as a trainer rather than a consultant in the final months from October 2019 to her lay off in March 2020 . I note that a considerable period of time was applied to this very topic during the consultative process pre redundancy, where both sides had conflicting views, which did not resolve . For me, I accept once again Ms Z evidence where she couched the offer of trainer status with a pre-condition of whether the complainant could manage to stand back from certain accounts? For me this proved a veritable Rubicon in the narrative and while yes. I accept that the complainant had cause to dip in and out of customer accounts, I must resolve the conflict in favour of the respondent on the work the complainant was undertaking prior to her termination. This is important as Section 7 (2) (c) applies not alone to a contracted post, but also to work an employee was doing prior to their dismissal. I am satisfied that the lions share of the complainant’s role was training focussed and related and the association with customer accounts was linked to that training function. I cannot accept that the Complainant served as a Team Lead during her period spent in the training role. Of course , it would have been beneficial for both parties to have retained some physical record of the change , however , I have established that the complainant did diversify into a training role . she had no way of knowing that this career choice would make her position vulnerable some one year later . I find that there was a genuine redundancy within the meaning of Section 7(2) of the Act. Selection: The Respondent made two standalone positions redundant, one in December from the Management Team. The second was the position of trainer. I am bound to explore the potential for application of Section 6 (3) of the Act, here as other employees remained in employment. (3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either— (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or (b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, 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. I am satisfied that the dismissal did not arise from any of the matters specified in Section 6(2) of the Act. I am also satisfied that the Respondent did not deviate from a company custom and practice or trade union agreement on redundancy. The case of a gym manager redundancy was considered by the EAT in Mc Nally v Westwood Club [2010] ELR 328, where the Tribunal held that the complainant was not unfairly selected for redundancy.
In the instant case, the Complainant was the sole redundancy in 2021. She was in a standalone post. The Training function was relocated “primarily to the US “ I have found that Section 6(3) has no application in this case. The complainant was not unfairly selected for redundancy. 3. Reasonableness of the Conduct of the Respondent in respect of the redundancy. I have given this third aspect of the test a lot of thought. I considered the complainants submission on ADJ 25155 and the Respondent post hearing response. I found that there were no relationship difficulties in the instant case, the suggested pay cut was considered, but not accepted and that case was tainted by inter professional difficulties . I also considered the respondent submission on Barton as the EAT found in favour of the complainant in the case drawing from S 6(7) of the Act, where the Tribunal found that the complainant had been kept in the dark regarding the redundancy, which was handled in a poor manner. I accept that the parties engaged promptly in a consultation period prior to the redundancy. I accept that the complainant put forward a number of suggestions to save her position from redundancy, within these suggestions were a realignment to travel consultant, pay cut and a move the wage subsidy. I noted from the party’s evidence that these matters were discussed but not agreed. The Complainant did not contest these matters through a grievance procedure as permitted under clause 13 of her contract. I found that the complainant was sufficiently senior to contest these matters prior to her redundancy. I have established that a genuine redundancy occurred at the business in April 2021. I have found that the Complainant was not unfairly selected for that redundancy. However, I have developed some unease surrounding the lack of the provision of an appeal of the decision to dismiss the complainant. I accept it may not have changed anything, however, for me, it is a missing chink in the round of fair procedures and a course of action, I would have expected from a reasonable employer who had a very clear restrictive covenant in clause 17 of the contract. For me, a provision of appeal takes centre stage when balanced amongst the suite of fair procedures necessary in this case. the letter of dismissal is silent on the appeal and both parties accepted that the facility was not offered. This is distinguished from the findings of the EAT in David Curtin and Kevin O Keeffe et al and the Trustees of Mallow Golf Club UD 964/2014 Where the Tribunal held that the Complainant was the “manager and had prepared the club handbook and must have been aware of his right of appeal “ The Complainant in the instant case was not a member of management and was not involved in company procedures, outside of the training manual in January 2021. The Labour Court considered the circumstances surrounding a claim for unfair selection for redundancy in Tolerance Technology ltd and Joe Foran UDD 1638, where the Chairman of the Court commented on a number of procedural flaws around consultation and representation during a redundancy process. He also commented on: It is clear to the Court also that the Appellant made no avenue of appeal available to the Respondent in a situation where the Respondent was dissatisfied with the decision to terminate his employment with the Appellant. I found a similarity in this case as it was clear to all parties that the complainant was dissatisfied at the decision to make her redundant. I have found that the Respondent did offer an extensive consultation process and permitted the complainant to be accompanied throughout. I would have preferred to have seen a written response to the reasons why the complainants suggested alternatives to saving her job were “not a fit “for the company. However, I accept that the parties did engage on these topics. It may be a consideration for the parties as they progress to give consideration to marking transitions to new roles with some contemporaneous records. I find that the Complainant was overwhelmed by the prospect of a forthcoming redundancy within a period of pandemic. The complainant was denied an appeal process. this is a significant omission on the Respondent side and has rendered the decision to dismiss unfair on the third leg of the test. In Cuan Tamhnaigh Teoranta (Towney Bay Finishing Co. Limited) (respondent) v Declan McShane (complainant): UDD 224
The Labour Court could not find evidence of the provision of appeal in the case. The Court described other points of unease in the case but fixed on the absence of an appeal. An appeal is the final change within the privacy of the employment to resolve differences. In this case, it has been elevated, unwittingly to an unopened door in the case. I have found that the Complainant has succeeded in her claim, she was unfairly dismissed. I have found that compensation is the only practical remedy in the case. The parties have moved on and I could not see a return to the working relationship of pre-March 2020. I must now have regard for the complainant’s evidence of mitigation and loss, which was very low in detail. The Complainant accepted and retained her full statutory lump sum on redundancy. Section 7 of the Act directs me to have regard to both parties’ positions in this regard. However, I am struck by the limitations contained in the Company restrictive covenant for a period of 12 months. Carry on either on your own behalf or as an employee or agent of any other person, firm or company within a 10-mile radius of the Company, any of the business or businesses in which the Company or any of its affiliates were engaged in the year preceding such termination I can accept that this limited the complainant’s re-employability in an already challenging environment for re-launch.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the Complainant was unfairly dismissed. I order the Respondent to pay €6, 166.68, as just and equitable compensation, which amounts to two months gross pay.
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Dated: 19th July, 2022
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for Unfair Selection for Redundancy |