ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00029712

Parties:

	Complainant	Respondent
Parties	Karina Bicz	Dwell works Relocation Services Ireland Ltd ( amended on consent at hearing)

	Complainant	Respondent

Representatives

Michael Meegan/ Amanda Kane Mandate Trade Union

Owen Keany BL instructed by LK Shields Solicitors LLP

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-00039944-001	21/09/2020

Date of Adjudication Hearing: 30 November 2021. 10 and 31 January 2022

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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 3 Remote Hearings 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.

This case centres a complaint of unfair dismissal lodged by the Complainants Union on 21 September 2020. The Complainant in the case is an Accounts Assistant.

The claim is denied by the Respondent, which operates a Relocation Services Business.

The case was set for hearing on 30 November 2021. On 23 November 2021, I wrote to the parties seeking outline submissions in the case. Both parties submitted written submissions.

At the conclusion of the first day of hearing, I explained that the case would be reconvened at the earliest possible date.

On January 10, 2022, the case resumed. The Complainant and original representative were not in attendance and the Union sought a postponement on the basis of the Representatives sick leave and of submitted delayed notification of resumption set at 7 January 2022. The Union told me that the complainant was not reachable.

The Respondent was aggrieved by this approach and opposed the application to adjourn.

I requested to hear from the Complainant at that point as I was concerned that the Complainant had abandoned a part heard case.

The Complainant joined the web ex and confirmed that she had both received the notification of hearing on December 7, 2021, and had confirmed her attendance on January 10, 2022.

The Complainant went on to explain in joint session that she had acquired the covid 19 virus and had been compelled to quarantine for 16 days. She said that she did not feel well and accepted that she had not made this fact clear before now.

I noted that the complainant was flushed and did not look well and thought the most humane course of action was to adjourn and await an improvement.

The Respondent reluctantly agreed to a short postponement. I requested medical evidence of a covid 19 diagnosis and a demonstration of a 16- day quarantine period. I explained that this was the sole basis of my granting a brief adjournment. The Complainant agreed to these conditions and gave an undertaking to deliver all within 36 hours. She confirmed that she continued working in the new work found.

I asked the Union Representative if he was available to continue in the case? He agreed to this, but unfortunately had a personal bereavement on the resumed day of hearing.

Unfortunately, the complainant did not deliver on that undertaking as she submitted two polish documents, which were not translated and did not confirm the presence of covid 19.

On 12 January 2022, I wrote to the parties setting out the seriousness of the issue and I extended the time period for another 24 hours; However, I did not receive the requested documents in an easily understood and approved format.

The Hearing was reconvened to hear the Complainant and Respondent evidence on 31 January 2022. All parties were in attendance.

I addressed the complainant on the notable absence of a mention of covid 19 condition on her submitted documentation. On this occasion, the Union submitted that the complainant had not been allowed to obtain a covid 19 certificate. The Complainant apologised and confirmed that she had been involved in a mandatory quarantine.

The Respondent registered an acute disappointment in the manner the complainant had departed from the assurances given on January 10, 2022 and registered the contention that the Complainant had misrepresented her condition live at hearing. In the interim, they had obtained a translation of the submitted documents and had identified a defined shortfall in the complainants’ confirmed undertakings.

I registered my own disappointment on foot of the lack of adherence to the undertaking furnished by the Complainant in Union presence on January 10, 2022. Valuable hearing time had been lost.

Mindful that I had witnesses waiting in two different time zones, I proceeded with the hearing and completed that part of the case.

The Union made a brief post hearing submission in response to my request for details of the job advertised by the Respondent in July 2020. The Union confirmed that the complainant had recorded sight of this on July 16 but a copy of same was not available for submission.

The last remaining document was received from the respondent on March 9, 2022. This had been prior copied to the Union but did illicit a response.

Summary of Respondents ’s Case:

Counsel for the Respondent outlined that the claim for unfair dismissal was denied and without foundation.

The Respondent operated a relocation business within the corporate sector. It is an international business which provides specialist services to support relocations. The global headquarters is in Ohio, US and Irish operations are managed primarily between Kildare and Truro, Cornwall. There are 400 employees globally,

The Complainant, an accounting specialist, commenced employment with Irish Relocation Services ltd on 17 February 2014 and transferred to the respondent employment, following acquisition in accordance with EC (Protection of Employees on Transfer of Undertakings) Regulations, 2003 in January 2020. She earned €2989.58 per month. she was one of two members of the finance dept based in Ireland, both of whom were made redundant around the same time.

The Complainant reported to Mr TH, based in the UK, who, in turn reported to Ms B, CFO based in the US.

The Respondent raised preliminary issue surrounding an inaccuracy in the respondent entity listed by the complainant in the WRC complaint form. Following some discussion and re-affirmations, the Respondent agreed to amend the name on consent, amidst raising some concern that the complainant should have been aware of the correct title. The case proceeded on that basis.

Counsel for the Respondent outlined that the Complainant was dismissed through a redundancy, following a number of years of trading difficulties, exacerbated by the impact of Covid 19 pandemic. The Respondent closed the finance dept in the Irish business. Mr TH, Lean Account ~Manager and line manager made the decision on the redundancy fo0llowing a full and fair consultation process. Mr TH had since left the business.

Since July 2018, the Respondent had experienced a significant reduction in demand for services in Ireland

Q 3 2019 revenue reduced 17% on previous quarter

Q 4 2019 revenue reduced 32% on the previous quarter

By January 2020, revenue was down to 50 % of 2018 peak.

The Respondent submitted that they were forced to consider cost cutting and streamlining operations. The Respondent exhibited a graph for the purpose of the hearing to demonstrate a reported reduction in revenue January 2018 – June 2020. The Company moved to a unitary banking system with Bank of America in early 2020, which consolidated banking and led to the decision to close the finance dept in Ireland, thus arriving at a centralised, accounting hub model at Truro, where Mr TH was based.

Counsel set out the chronology which prefaced the redundancy in July 2020.

On June 2, 2020, the Respondent hosted a meeting with the complainant and her colleague, where the commercial reality was described by Mr TH and Ms A. This took the form of information sharing that the future of the finance dept was uncertain and there was a possibility of it being relocated to offices at Truro and the US to be absorbed by an existing workforce. The Complainant was placed at risk of redundancy and a consultation commenced. The Complainant was advised that she would be canvassed for her views on “obviating the need for redundancies “The Complainant presented as accepting what she heard as a fatalistic outcome.

The Respondent sought cost savings ideas top the value of accounting staff salaries and possibility for improvements on efficiencies to streamline/relocate that function.

A follow up meeting was agreed for 8 June 2020.

At this meeting, the Complainant indicated that she was not surprised by developments as discussion had occurred on “drop in turnover “The Complainant lamented the turnover loss. The Complainant did not counter the at-risk redundancy with any ideas or proposals of her own.

The Complainant was advised that it was “business as usual “and another meeting was fixed for 12 June 2020. Ms A outlined what a statutory redundancy payment might resemble is redundancy materialised. Minutes of this meeting were shared with the complainant.

The parties regrouped on 12 June 2020; the complainant confirmed that she had no suggestions on avoiding redundancy.

Mr TH went on to confirm redundancy on one months’ notice with an assurance of back up support during the conclusion of her employment on July 10, 2020. The complainants start date was amended to reflect accuracy.

This announcement was committed to writing and the complainant was provided with the opportunity to appeal, which she did not avail of.

The Company reduced headcount in Ireland as follows:

1 September 2020 3 out of 7 roles at Destination services

2 September 2020 1 Co-Ordinator

3 November 2020 2 out of 4 roles at Destination Services

Head count was also reduced in Northern Ireland by 12 March to May 2020, inclusive of the sole finance role. Operations ceased there at that time

Evidence of Ms A, Director of Human Resources EU, and Asia

Ms A outlined the operational structure of the business across business support and finance teams. She outlined that there were two finance roles in Ireland. An acquisition of the Irish business had occurred by the Respondent.

Ms A gave evidence on the reconfiguration of the staff at the business in summer 2018 when over 20 staff worked at the Irish base in Kildare. That fell to 15 Field Consultants by June 2020 and now stands at 7 through a blend of redundancies, resignations. These positions have not been replaced as orders were much fewer.

She stressed that she was not decisionmaker on redundancy but attended the meetings online to ensure the correct process was followed. She told the hearing that she joined the process when Mr TH informed her on 27 May 2020 that the Company wanted to start a dialogue on redundancy. Revenue was reduced and a proposal was a foot to centralise financial teams. Mr TH led the process and the company’s objectives were directed towards seeking efficiencies, considering alternatives to redundancy, and thus preserving jobs and was receptive to any ideas.

The proposal centred on the two finance roles and opportunities for redeployments to vacancies were considered. That was not viable

In referring to a retained note of the meeting titled June 3 but occurred on June 2, Ms A recalled that the complainant had acknowledged revenue reduction at this meeting. she disputed that the complainant was hugely surprised when informed that her position was at risk of redundancy, as she said that she was “not surprised “knew that it was coming by the June 8 meeting. Ms A stood over the accuracy of her notes retained at this meeting, which were shared with the complainant.

Ms A confirmed that Mr TH no longer worked at the business. Mr G was involved in a separate process across three countries, Ireland, Germany, and UK, and while the company was actively reviewing operations, not all of these processes resulted in redundancies. The Complainant was assigned to the Irish division.

MsA exhibited her notes retained of June 8 meeting and reflected that the complainant had not countered the proposal by suggestions of her own

“Liz re-iterated that this time is for Karina to share her thoughts /ideas/ suggestions with us, does she want to use this time for any of that? “

She said the complainant asked for the next step in the process. Ms A denied that the redundancy was “sham “but did recall that the complainant indicated that she had felt the redundancy to be pre-determined to which both Mr TH and she had said “no “The Complainant had not raised conflict with Mr TH as an issue of concern at these meetings.

Mr A recalled that she was acting as Advisor to Mr TH on a pathway which led to redundancy.

The Complainant had reviewed the June 12 letter on projected lump sum redundancy figures and had submitted an earlier start date to 17 February 2014, which had been honoured. The Complainant had not raised the perceived erosion of her role in this consultation and “at risk “of redundancy meetings.

She did recall Mr TH asking for her advice in March on how to move forward positively in relation to the conflict and she presumed the matter had been resolved.

Ms A recalled that the interpersonal conflict had arisen from Mr TH desire to obtain advice on how to handle the complainant who was “flat out refusing to do tasks “As far as Ms A was aware, Mr TH worked with the complainant on the best way forward.

Ms A had not seen March 23 email before it was sent and was not aware of the context. There was no specific finance dept in Ireland and both the complainant and her colleague were made redundant. The Complainant had been refused force majeure leave.

During cross examination, Ms A stated that she was unsure if she had forwarded the notes titled June 3 to the complainant

. When challenged by the Union on why write “catch up “as meeting purpose rather than the eventual purpose, Ms A replied that her best recollection was of not wanting to distress by writing “at risk “she understood Mr TH sent the invitation to meet.

She accepted that the level of financial trading detail was not discussed at the meetings. She said the notes were not a verbatim transcript. Ms A contended that the proposed pathway of consultation was set out at the first meeting., where the financial status was mentioned but not expanded on.

Ms A stressed that the 8 June meeting was structured to consult and served as a “continuum “to potentially avoid redundancy.

Ms A stated that the redundancy did not arise from the period of sick leave in March 2020.

She understood that the state wage subsidies were starting to wind up at that time and were expected to formally wind up over the following one to two months

Selection criteria did not apply as the finance dept closed and both staff were made redundant.

The Union referred Ms A to the email thread 23 March to 14 May 2020, Ms A confirmed that she had offered to assist the complainant following her absence on sick leave but could not recall clear advice given or notes retained of that time.

During redirect, Ms A reaffirmed that the complainant had not raised specific issues regarding Mr TH during the redundancy process. she clarified that she had assembled the graph exhibited at hearing for the purpose of hearing to support oral evidence.

Ms A clarified that the Town Hall meetings had hosted discussions by the Vice President EU on financial challenges at the company prior to the June meetings, but not mention redundancy. She clarified the impact of the Net suite accounting system was felt early in 2020. The acquisition had occurred early 2020 and had not generated a job description for the complainant.

She stated that the complaint had not contacted her on the earlier email thread after May 12, 2020, and she had not exercised her opportunity to appeal the dismissal to a named Manager

Evidence of Ms B, Karen Black, by affirmation

Ms B was the Chief Financial Officer and outlined that the function of relocation assistance had been divested at the business in 2020.

She said that 2018 had been a good trading year, but there had been a stark decline in revenue in 2019, which amounted to a 32% reduction on a comparative Q 4, 2018. This manifested in work shrinkage through a reduction in transactions, invoices, and bills to pay.

This prompted an active consideration of staffing levels and efficiencies.

There were more individuals in the UK office which supported the optimal target of “consistent practice “where better governance was secured through a 3-role model of 1 doing, I am reviewing and 1 approving. An independent finance office made it hard to manage the business within a centralised finance dept. The same bank was used across the company. The UK served as the financial reporting hub and the finance dept was relocated there as the Manager was based there.

Subsequently a major outsourcing opportunity emerged there, and it endorsed the centralised model.

Ms B discounted the relevance of the TWWS scheme as its duration was unknown and she said that no business wanted to sustain on government supports.

Ms B was aware of the context of the March 23 email but had not seen the email.

She recalled that during her earlier meeting with the complainant in 2018, she was concerned about the corporate housing division, and this remained her concern.

The Business was reviews by Mr G, the Tenancy Manager and an inter country operational disparity was identified between Germany, UK, and Ireland.

Ms B confirmed that the redundancy applied to the complainant’s role arose from a “dip in revenue “and was not a reflection ion her work. She stated that from her recollection, Mr TH had expressed a likeness for both the complainant and the team and there was no personal vendetta.

Ms B denied that the complainants work was usurped by the new hire.

During cross examination, Ms B in commenting on Mr THs apology of 23 March said that measures were put in place to stabilise the operations and was not aimed at unsettling what was agreed on March 23.

Ms B said that the new hire, Ms S, was hired for corporate housing. The Union put it to her that she took the complainant’s job. Ms B said this was not related to the complainant’s job.

Ms B stated that account reconciliation was undertaken by Mr TH and the complainant did not have a European remit, nor did she cover corporate housing. Her role was confined to Ireland.

Ms B disputed the Unions matrix in assessing trading status (feb 2018 and feb 2020) and re-affirmed that revenue was “in a downward trend “and selecting one month comparative was being taken in isolation.

She denied that the complainants work has disappeared during her sick leave. This was not the first absence at the business, and it was not relevant to the? June redundancy.

Ms B conformed that she had not been directly involved in the consultation but contended that it would have been impossible for Mr TH to work in isolation by targeting her.

During clarification, Ms B stated she was unsure when the Mr G review commenced.

The Company had not recovered as yet. Mr TH did not have the ultimate authority to hire or fire.

Conclusion:

Counsel for the Respondent concluded that this was a genuine redundancy as provided for in section 6(4) of the Act. It was categorised in accordance with Section 7(2) (b) where the complainant was no longer needed in Ireland as her role had ceased entirely. The Respondent company had the prerogative of restructuring as they saw fit, and the action was impersonal. St Ledger v Frontline Distributors Ireland ltd UD 56 /1994

Counsel recapped in remarking that the complainant had acknowledged that the company was loss making. He added that economies of scale were necessary to managed centralised banking.

Criteria for selection did not apply in the case where the accounting department closed. He argued that the complainant’s reliance on a background of animus and personal attack should be seen as a red herring in the case.

He summarised that Ms A had provided a clear picture of trading by graph. The process which led to redundancy was underpinned by a meaningful consultation, which was fair, where alternatives were canvassed.

In addressing the topis of TWSS/ EWSS, he said this was not sustainable long term.

He relied on the legal submissions made on the application of Kingswell v Elizabeth Bradley Designs ltd EAT -0661/02) UK

“…. (a redundancy) 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 reorganise his business because he concludes he is overstaffed. Thus, even with the same amount of work and the same amount of income, the decision taken that a lesser number of employees are required to perform the same function. That too is a redundant situation. “

He pointed out that the complainant had found new work within 3 weeks.

As an addendum. Counsel clarified that that the Respondent intended that the finance dept in Truro would absorb the Irish finance work, however, due to staff attrition in the UK, this work is now carried out in the US and Costa Rica. The Complainant in the instant case has not been replaced

The Respondent submitted that the claim for unfair dismissal be dismissed.

I received a post hearing commentary from the Respondent, which had been prior copied to the Union. This document took the form of a submission on the distinguishing features of the complainant’s position and the parallel job advertisement for a Part or Qualified Accountant for the UK wing of the business. The Respondent submitted that this was a separate and distinct position for which the Complainant was not eligible to apply, and it had a pan European ambit vis a vis the Complainants Irelands base. I have considered the contents of this document and note that the Union did not make a response.

Summary of Complainant ’s Case:

The Complainant worked as one of two Accounts Assistants at the Respondent Relocation services business. She commenced this work on 16 February 2014, transferring to the Respondent employment by means of TUPE in February 2020. She received a gross monthly pay of €2989.58 for a 40-hour week. This work was comprised of accounts payable for Europe, Lean accounting and preparation and production of monthly accounts. Her remit was pan European.

The employment was terminated by way of redundancy on 10 July 2020. She found new work on August 4, 2020.

The Union has contended that the Complainant was subjected to a “sham “redundancy and had been unfairly dismissed from her position.

The Union on behalf of Ms Bicz, outlined that she had commenced a two-week period of sick leave following a diagnosis of work-related stress in March 2020. The pre cursor for this was an unsatisfactory meeting with her line Manager, Mr TH. this meeting originally flagged as a “catch up “meeting descended in an accusatory forum where Mr TH became very aggressive towards her in telling her to take responsibility for aspects of the job. An earlier incident occurred in January 2020 and was reported to Human Resources.

On 23 March 2020, Mr TH apologised “I have apologised for my behaviour on Friday, March 6 and look forward to working with you in the future “The Complainant also received details of plans to reduce her stress. It was her case that this email signal a seismic change in her retaining her position at the company.

Shortly after this, the corporate housing part of her role was transferred to the US. This was a further statement that other aspects of her role were under review as a new company was in being.

On June 2, 2020, Mr TH told the Complainant that there was a possibility of the finance dept being placed on notice of redundancy and work relocated to the UK and US.

The Complainant was informed that her role was at risk of redundancy on 8 June 2020, and she was requested to articulate any alternative options.

A follow up meeting occurred on June 12 which indicated that nothing had changed, and the complainant was notified of redundance with pay in lieu of notice and a statutory redundancy payment.

The employment ended on 10 July 2020, by way of redundancy.

The Union submitted that the complainant was faced with a reduction in duties under the guise of health and safety while all along the company was seeking information from her which informed her redundancy. Consultation should have occurred much sooner in the case and the Union contended that the manner of communication surrounding June 8 was dishonest. The Respondent rejected the contention of dishonesty.

The Complainant was denied a genuine consultation period and was subjected to a sham redundancy. She was not provided with reasons for this redundancy and why the position was transferred abroad to the UK and US., when the complainant was available to work from home. In relying on Mc Greehan and or v Park Development UD 950/2008, plasterers were dismissed through redundancy and replaced with sub-contractors

The EAT determined “the onus is on the company to establish that the work was no longer being carried out in the workplace “The Union contended that the Respondent still had work for the complainant to do at the time of her dismissal.

The Respondent has not set out the reason for redundancy and it did not correspond to the provisions of Section 7(2) of the Redundancy Payments Act, 1967.

Evidence of the Complainant:

The Complainant outlined that she was one of two employees based in the Accounting Office. She gave evidence that she had a meeting with Mr TH during a busy time in February 2020. Part of the company was sold He had come over from the UK for a week. The Complainant outlined that she had asked him “if we need to worry about our jobs? “She was dissuaded from that worry by him.

At the conclusion of that week, Mr TH approached her seeking a “final catch up “which lasted 20 minutes. During this time, he berated her work performance and shouted at her, saying that he was not spending enough time with his family because of shortfalls in her work and that it could not go on. The Complainant said that she was not allowed to speak, and Mr TH departed without saying goodbye. This prompted a period of sick leave to address the resultant stress. When she returned, she observed reconfigurations and erosions in her role. 50% of her invoicing role had been removed she attributed these changes to a direct fallout from the interaction with Mr TH.

The Complainant stated that she had not complained about workload but had requested help.

On return from sick leave, she noticed another name, MS S, posted over her work. She wondered why she was working on her workload but did not articulate these concerns. the complainant anticipated losing more work when tenancy management was reassigned.

She recalled April 2020, when Mr G began enquiring about invoicing and was apprehensive of this being the final step.

The complainant recalled the meeting of June 2, which had been presented as a weekly catch up. She had not seen the minutes relied on by the respondent, nor had they been mentioned.

She outlined that she did not see this forum as consultation and no measures were taken by the respondent to avoid redundancy. She felt that the whole responsibility was placed on her to navigate a way forward.

The Respondent had not submitted ideas, options or offered to help. She was not met by a restructuring proposal.

One month before this, she had been asked by Ms A to reduce salary and had explained that she was unable to do this.

She understood that her job was absorbed into Truro and the US. Her colleague had also been on sick leave and both of their files had been worked on in their absence.

The Complainant was clear that money was not mentioned as a factor on their transfer to the company. Nobody had led out on the topic of Income depletion.

The Complainant contended that she had been unfairly dismissed. She anticipated that the Company would take her work following the disagreement with Mr TH. She expressed the view that he did not want to have to come to Ireland in the course of his work. She concluded that she had anticipated this change, where her work would be removed and given to Ms S following the “fall out in February”

She argued that government supports were there to safeguard and avoid situations of redundancy.

She conformed that the IT system had changed.

During cross examination, the Complainant confirmed that Profit and Loss table for Ireland was not visible once the IT system changed. Her awareness came from the SAGE package and not from new software. she confirmed that she observed a drop in turnover. As Head office had said “no need to worry “she had not focussed on it.

She confirmed that she was not privy to the graph exhibited by Ms A on financial status before this case and could not say if it was accurate. She denied mentioning “jobs market “she stated that she had not read the minutes of 8 June, when challenged by counsel that this was implausible response, the complainant responded by saying that she did not recall. Counsel put to the complainant that she had four opportunities to mention falsehoods in minutes prior to the hearing day.

The Complainant re-affirmed that she was shocked by the turn of events at a meeting flagged as a “normal catch-up meeting “

She confirmed that she had not raised the issue of inter party conflict with Mr TH at any of the meetings as she felt the decision to make her redundant was pre-determined and she felt compelled to find another job. She also added that she did not think the first meeting was the correct place to mention it.

The Complainant confirmed that she had not raised issues on corporate housing. she was active on corporate housing and had just asked for training.

She was unaware of Ms A’s email thread or of Mr Gs’ Inquiry review.

This was the complainants first redundancy

She confirmed that she had been refused force majeure leave in March 2020, had not received a new contract or a job description.

She confirmed that her job involved billing and accounts payable. In responding to Counsel, she accepted that there had been a drop in turnover. she accepted that the finance dept closed in Ireland and both she and her colleague had been made redundant.

She argued that Mr TH was part of the reason for relocation of the service.

Counsel stated that Ms S had not started work until June 1, 2020. The Complainant disputed this stating that she was in post in March 2020. She was not aware of any other redundancy.

The Complainant gave evidence of finding new work on 3 august 2020 on maternity cover on €28,000 per annum. She admitted that she had been very shocked by this redundancy as she had not seen it coming and felt that “she couldn’t say anything “

She was aware that the finance dept at Northern Ireland was gone and of other redundancies in 2020.

She confirmed that she had not applied for the job advertisement relied on and could not provide a reason for not doing so.

In clarifications, the complainant confirmed that she saw the job advertised on July 10 but did not apply for it. she did not appeal her dismissal as her focus was on the hurt and shock, which were still live.

She was unaware when Mr G phoned her.

She confirmed receiving feedback through performance appraisal that “she was told to temper herself” but was unable to provide a date line for this.

She reaffirmed not raising the issue of someone working on her tasks during her sick leave.

I asked her about the request for pay cut mentioned in her evidence. The complainant clarified that this took the form for a request for her to reduce hours during covid pandemic and it did not go ahead. She said that she had refused as her husband was also affected by covid pandemic.

The Complainant had no idea when the IT software changed. she had received TWSS for two months.

The Complainant contended that she could have done the job remotely, if permitted.

By means of concluding remarks, the Union submitted that the complainant had applied for new work from 15 July 2020

She had taken two weeks sick leave in the course of her work and on return was met with a changed fragmented role which over a short course of time ultimately led to her dismissal, which was unfair.

The Respondent went on to hire another worker in Truro and this role could have been undertaken remotely by the complainant

The Company advertised her role in July 2020, which proved that the redundancy was not warranted.

Findings and Conclusions:

I have been requested to reach a decision in this case. The Union, on behalf of the Complainant has submitted that the complainant was unfairly dismissed through a “sham redundancy “. The Respondent, through Counsel has denied the claim and instead, has argued that Section 6(4)(iii) of the Unfair Dismissals Act 1977 as amended should apply, where a genuine redundancy occurred without motive or personalised target towards the complainant.

In reaching my decision in the case, I have had regard for the evidence adduced and both written submissions tendered by the parties.

I wish to state at the outset that I noted a pronounced disparity in the narrative on the complaint form and what subsequently unfolded at hearing.

Claim for Unfair dismissal.

The Complainant has approached this case already in receipt of a statutory redundancy lump sum payment and has contended that she was unfairly dismissed by the Respondent. This was firmly rejected by the Respondent.

The Law on Unfair Dismissal is contained in Section 6 of the Unfair Dismissals Act, 1977, as amended.

6.— (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.

Section 6(4) permits an exception to this in the event that dismissal results wholly or mainly from a Redundancy as pleaded by the Respondent

Section 6(6) of the Act places a strict burden of proof on the Respondent to prove this.

Redundancy by its very nature is seldom voluntary in nature. It is a mechanism by which an employment is ended through the applications of the provisions of Section 7(2) of the Redundancy Payments Act, 1963

7. (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,]

I have been requested to consider that an unresolved conflict between Mr TH and the Complainant in effect planted the seeds for a redundancy some 5 months later.

I would have liked to have met Mr TH as the “decision maker “he is a central figure in the case. I accept that he has since left the business

The Respondent disputed the Complainants analysis of the antecedence for her redundancy.

This stark contrast in views ran unchanged throughout the case. I have endeavoured to explore those contrasting views through the evidence adduced.

However, before, I begin, I would like to draw from the seminal case of a “cloaked redundancy “where Charleton J in the High Court, explored the facts surrounding a changed economic vista and a “ changing of the guard “ in a company workforce .

I quote with approval his stated distinction between a dismissal and a redundancy. I will return to this later.

JVC Europe Limited v Jerome Panisi [2010] 125 CA

2. A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. 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. Under the Unfair Dismissals Act 1977, as amended (“the Act of 1977”), the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law, and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer. Sections 6(1) and (2) of that Act, in their amended form, provide: -

In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.

The Union has contended that the complainant transitioned to the Respondent company in February 2020 set against a backdrop of “no change anticipated post TUPE”. This was followed some two weeks later by the complainant’s description of a significant argument with Mr TH which caused her to avail of two weeks sick leave following which she sought an insertion in her file of this event and her desire against recurrence. Coming so close in time to the eventual redundancy, this conflict required a closer look. Once again, I missed the input of Mr TH in this aspect of the narrative.I did hear of some reference to Ms A s involvement post sick leave but this did not transcend 12 May , 2020 .

I have established that the complainant sought force majeure in March 2020, which was vetoed. I found that the complainant expressed some annoyance around that refusal at hearing.

I was not satisfied by the framing of the March 23 email relied on by both parties in the case. I note that the parties did not converse on the topic of the argument, and it seems to me that the complainant accepted the contents of the email as a manageable way forward as reflected in her acceptance of the relocation of an aspect of the service in April.

I would have much preferred to have found evidence of a conversation between Mr TH and the Complainant as the email reads as formulaic and partisan and it does not fence off that argument towards resolution. It remained a smoking gun throughout the case from the complainant’s perspective, at least. This required me to look carefully behind the facts adduced by both parties.

I was drawn to the EAT case of John Edwards and Aerials and Electronics Ireland ltd, UD236/85, which had some overlaps in the facts of the instant case. The Complainant was a Managing Director made redundant through economic efficiency by removal of a tier of management. The Complainant had become aware of a change of attitude towards him, and his role was curtailed.

The EAT, by majority found that the complainant had “raised major doubts “as to whether the redundancy was genuine. The EAT found they were faced with the following dilemma:

We recognise that the function of a full time MD no longer exists, but we must direct our minds to the cause-and-effect relationship between redundancy and dismissal. The issue is whether he was dismissed because the employer had decided to re-organise the structure of the company, or whether a decision was taken to dismiss him for some other reason? In other words. Was the reorganisation a cause or a consequence? On balance, we are inclined to the latter view.

The EAT found an unfair dismissal on that occasion.

In this case, I must examine the facts against the following test

1 was there a genuine redundancy?

2 was selection fair?

3 was the manner in which the redundancy conducted fair and reasonable?

The Respondent has led with a comprehensive and cogent account of the financial and chronological pathway which concluded in Redundancy for the complainant and her colleague in July 2020. The Complainant told the hearing that her colleague was to join her in contesting her dismissal but did not do so. It is accepted by both parties, that the finance dept ceased to operate in Ireland.

I had some concerns on the short lead in time to the meeting wrongly classified as a “catch up “meeting of June 2, 2020. I have found that the notes retained by Ms A formed “speaking notes “to assist Mr TH in his address. I agree with the Union that to call a meeting which even mentioned a potential for redundancy, a catch-up meeting, demonstrated a marked insensitivity and a lack of empathy for the process ahead. It is important to remember that words matter in circumstances such as this. This insensitivity was repeated throughout the process and was understandably misleading. It suggested a collegiality when impersonality was called for .

I can appreciate that it had a traumatic impact on the complainant, who had clearly not resolved the earlier argument with Mr TH. For me, the Respondent did not “read the room correctly “on this occasion and would have benefitted from a more empathetic approach .

While I appreciate that there is provision for a dismissal to take place for economic, technical or organisational reasons involving changes in the workforce following TUPE, I am satisfied that the Complainant was not aware of those provisions of Article 5 of the Regulations when she genuinely believed that her dismissal was linked to the “animus “between she and Mr TH

I was also concerned by the speed of the consultation process, June 2 – June 12 is a very narrow time frame. I accept the evidence of Ms A when she stated that efforts had been made to find an opportunity for redeployment or to a vacancy, but this was not viable.

However, by the time June 2 meeting occurred, I can understand that the complainant felt similar to a “turkey being asked to vote for Christmas “when asked if she had any alternatives to redundancy? I can understand that she “froze “a little. However, I note that she was offered time off to look for work but delayed this to July 15. I also note that the Complainant did not submit an alternative to the proposed redundancy.

I accept Ms As evidence when she stated that the complainant did not raise the “animus “or alternatives to redundancy during the consultation meetings. I subsequently learned that she had not tabled a working from home proposal either.

In a recent case before the Labour Court, the Court placed some emphasis on the brevity of meetings purported as consultative.

Cuan Tamhnaigh Teoranta (Towney Bay Fishing Co ltd v Declan Mc Shane [2022]33 ELR 103

Having carefully considered the evidence of the respondent's witnesses, the court finds that the respondent advanced a strong business case in support of its decision to discontinue Shift A. However, the court finds that the respondent's engagement with the complainant over the course of two very brief meetings (at the second of which he was dismissed) was perfunctory and proforma. There was no meaningful effort made, in the court's view, to consider options for alternative employment for the complainant. There was no evidence before the court that he was afforded an opportunity to appeal the respondent's decision to dismiss him for redundancy.

In considering the evidence of Ms B, I found a very plain account of the economic necessity which resulted in the closing and subsequent relocation of the finance dept to UK/ US through a centralised banking and accounting system. I accept this evidence as a true reflection of the backdrop for the business at that time. However, I also have to balance this against reports of the respondent acquiring a loss-making company in February 2020 and the complainant’s evidence that she was assured of a secure future.

I have also reflected on Ms Bs evidence that Mr TH was not delegated to hire/fire and accept that analysis. However, he was cast as the decision maker in the eventual dismissal.

In my consideration of the facts of the case, I accept that there was a genuine redundancy situation in accordance with a blended application of Section 7 (2) (b) and S 7 (2) (d) when the Respondent decided to close the finance dept in Ireland and relocate that aspect of the business resulting in two redundancies.

I have given a lot of thought to the proposed interface of “animus “as the root cause for the redundancy and in particular as to whether Panisi may apply

I note that the Labour Court considered the nexus between status of performance and dismissal in Tanneron ltd v Conolin UDD 2151when they found that the complainant had been unfairly selected for redundancy.

The Court is not satisfied on the facts that the Respondent has met the burden of proof in the instant case. The Court cannot be satisfied on the balance of probabilities that the Complainant was not singled out to be let go because he was deemed to be a poor performer and it cannot be satisfied that that the criteria applied were not applied with that end in mind. Therefore, the Respondent has not established to the satisfaction of the Court that the redundancy was impersonal. The Court has to be extra vigilant, as perPoninsi, to ensure that an employer does not use a redundancy situation to deal with a perceived performance issue and, thereby, avoid meeting the requirements of the Unfair Dismissals Act. In the instant case, the Court does not find it credible that, before the selection criteria were determined, the Respondent was unaware that the Complainant would be among those to be selected. On the balance of probabilities, the Court believes it to be more likely that the management team were fully aware of which consultants would be affected. It is not credible that a management team would not keep a constant close scrutiny of sales and income. The fact that the Respondent stated otherwise raises issues of credibility for the Court regarding this aspect of the Respondent’s case and leads to the belief that a more credible explanation is that the Complainant was identified as a poor performer and criteria for selection for redundancy were chosen, in part at least, with a view to ceasing his employment.

I have found that the conflict between Mr TH and the complainant was unresolved by June 2020 and remained parked. On a careful consideration of the evidence, there were a multitude of clues to financial change within the respondent business from March 2020. There was the evolution of a centralised accounting and banking system. There was a parallel project of invoicing. There was an application of TWSS and a request for a reduction of hours, vetoed by the complainant. For me, these are signs of change in company operations and instances which should have prompted an earlier awareness and caution in the complainant, who told me that she was aware through the Town Hall meetings of financial challenges, but nobody had mentioned the word redundancy to her until June 2. It must have been plain to see that the company was changing direction . I understand the Respondent reliance on Kingswell and accept its persuasive authority .

It struck me that had the complainant made some proposals to avert the redundancy, the respondent was prepared to listen. However, I appreciate that they did not exhibit the financial graph visible at hearing.

This brings me to the argument of the job for part/ qualified accountant who the complainant submitted was in essence her position The Complainant contended that this was her position, however, she told me that she was not a qualified accounting technician and thus from my perspective ineligible to apply. I have reviewed the respondent’s chronology for the position which was filled and subsequently vacated in June 2020. I cannot accept that this was the complainant’s job that she adduced to at hearing. It was marketed at a higher level and had a broader catchment area attached.

I was also struck by the decision to make a redundancy during an active TWSS payment zone. I did not accept Ms A evidence when she stated that the support payment was coming to an end. However, I did accept Ms Bs evidence that the company did not wish to be reliant on state supports long term. It is of crucial significance in this case that the Complainant did not pitch for its continuation or continuation of remote working during the consultation meetings as she was working from home at that time.

In conclusion. I have found that the complainant was party to a genuine redundancy when the respondent decided to close the finance department in Ireland and relocate the function between UK and Ireland. I have recorded some unease with regard to the lack of sensitivity in the handling of the message of redundancy in addition to the speed of the consultation which deviated from best practice .. I have also discounted the nexus relied on by the complainant between the “animus “and the redundancy

I have found that the complainant was provided with an opportunity to counter the proposed redundancy with suggestions of her own but did not feel empowered enough to do so. This followed the respondent efforts which were explained to the complainant .

However, where I have had most difficulty in this case is with the complainant’s visible waiver of the pro-offered right of appeal offered. I probed this position and was not satisfied with the complainant’s response. I cannot accept that she was held back in the manner relied on as during that period she was actively engaged in the administrative detail of the redundancy i.e., altering start date for purposes of the lump sum period.

This appeal may have offered the complainant an earlier consideration of the facts of the case. I have found that it goes to the root of the case that she did not avail of this forum.

While I have identified frailties in the consultation process, I have not found them to be determinative of a failed process.

I have found that the Respondent carried out a genuine redundancy in response to market changes and economies of scale. The selection process covered both employees assigned to the finance dept which then ceased to exist.

I have found that the Respondent operated a reasonable and fair redundancy process. I am unable to apply Panisi with accuracy to the facts of this case. I have not established a “sham redundancy “.

I have found the complainant was dismissed through redundancy, which while shocking and worrying for her at that time did not amount to an unfair dismissal.

The Complainant was not unfairly dismissed.

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 not unfairly dismissed.

Dated: 9th June 2022

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Key Words:

Contested Redundancy