Complainant

Respondent

Parties

Jessica  Brennan

Imagine Networks Services Limited

Representatives

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-00041090-001

17/11/2020

The Complainant was employed by the Respondent as a marketing executive on the 21st November 2018 until she was made redundant on the 2nd September 2020. She was paid €2,500 per month and she worked 37.5 hours per week. She is claiming that she was unfairly dismissed. The Respondent’s case is that the Complainant was made redundant.

The Complainant said that she was dismissed by reason of redundancy on the 2nd September 2020 and she was not made aware of the reasons for redundancy. She said that that this was not a genuine redundancy. Furthermore, the Company carried out no fair procedure and she said the Company's actions contravene the rules of natural justice.

The Complainant said that she was put on temporary lay-off in April 2020 due to the Covid restrictions. She unexpectedly received notice of termination of her employment by reason of redundancy on September 2nd without any prior consultation or notice. She said she was not provided with a right to appeal and it is her position that the redundancy amounts to unfair dismissal.

 On the 17th April 2020, she said that she got notice that she would be placed on temporary layoff for a minimum of 4 weeks, and that she would be updated regularly in relation to the situation.  She said that she did not receive another update until May 18th and was again told the temporary layoff would continue for a minimum of 4 weeks. The next update she received was on the 30th June. She made requests for an update on June 16th, June 18th and June 24th. She said that she was again notified of a further 4 weeks of temporary layoff.

The Complainant said that she contacted the Respondent multiple times (August 13th, August 20th, August 24th, August 27th and September 1st) between June 30th and September 2nd and she was told each time that she would receive an update shortly in relation to the temporary layoff.

 The Complainant said that on 2nd of September 2020 her Manager telephoned her to tell her that her job was being made redundant. She was sent an email containing written notice of the redundancy and details of any money owed to her by the company.

 She said that at no point during the period 17th April 2020 to the 2nd September was she advised of the potential risk of redundancy. She was not consulted on the redundancy at any stage during this period. She said that she was unfairly selected for redundancy and no due process was followed in making the selection. She said that she was a team director in a team of 8 to 9 and was a team and was the 3rd longest there.  She said that she was a marketing manager for 3 years before she joined the company. She said that a number of the employees on her direct team had come straight from college and some of them were retained.

The Complainant stated that she emailed the Respondent looking for the reasons for the redundancy, the lack of consultation and seeking the selection criteria after she was made redundant and she did not receive a satisfactory response to her queries. She said that she also raised with them the fact that the company was still advertising for staff while making redundancies.

The Respondent is a provider of broadband services largely to regional and rural Ireland. The company is still in the network construction phase and this entails building new base station sites in areas of rural Ireland and following through in these localised areas with targeted marketing activity to sell subscriptions to the service to households within the new coverage footprint. A key element of the sales and marketing is to use ‘Feet-on-the Street’ to effectively go door-to door seeking new customers. This activity is supported by relevant localised marketing activities and includes the use of Facebook and Google advertisements to drive awareness and generate leads.

 This new site construction activity was prohibited during the Covid pandemic as was all localise sales and marketing on the ground.

Like most businesses across Ireland at the time, the Covid-19 pandemic brought about immediate and unprecedented disruption and uncertainty to the business requiring the company to rapidly adopt a significant level of change to meet the immediate challenges faced by the entire business operations. Despite the significant impact Covid had on the business, the company did everything in its power to retain the maximum number of staff on the payroll throughout the Covid pandemic and where possible facilitated the maximum number of staff being redeployed to other areas of the business to retain their employment.

While reduced to a minimum possible, in compliance with government guidelines, with certain activities of the business including the field based Direct Sales and Marketing, Field Operating Teams (FOT’s team) and certain planned new build activities immediately suspended on the 16h of March, on the 16th of April a number of staff were placed on Temporary Layoff. Regrettably with the continuing and unknown impact of Covid likely to continue for the foreseeable future, for some roles this situation could no longer be considered temporary and by September redundancies were unavoidable. The Company did not qualify for the wage subsidy scheme as it required a 30% reduction in turnover.

When it became clear that the Covid situation was not going to resolve itself in the near term, the company took the regrettable decision to restructure our activities to adapt to the new reality. They had scaled up the sales and marketing activities prior to the pandemic and they now had to scale back to a more sustainable level. Failure to do so would have endangered the business and many more staff. In doing so, they shrunk activities and redeployed responsibilities to the most experienced staff and this led to a comparatively small number of redundancies.

The Complainant was employed as a member of the Marketing Team which with the primary sales activity of the field based Direct Sales and Marketing channel team suspended, had been significantly reduced and reorganised. While other members of the marketing team were redeployed to other departments where they had experience and knowledge, with no alternative suitable role available the Complainant was placed on Temporary layoff on the 17th of April 2020.

Rather than making people redundant they choose lay-off so that the jobs would be there when the restructuring of the company because of the Covid pandemic was finished.

By September that the restructuring was going nowhere, and the circumstances arose where the temporary lay-off was no longer justified. In the restructuring, the Sales and Marketing area was scaled back, and they no longer had work for a number of employees and this led to the redundancy situation. They looked at the skill set of the employees and their ability to carry out a broader set of roles and out of a staff of 300 only 12 were made redundant.

Witness

Lee Carroll Head of Sales and Marketing

He said that pre Covid he was responsible for 80 to 90 staff.  In March 2020 they moved all the employees where possible to remote working.  He said that the Complainant was working from the office and was part of the marketing team and she was asked to work from home. They continued to pay the employees even though they had no work for some of them. On the 16th April 2020 the complainant received notice of temporary lay-off.  He said that there were 40 to 50 people temporarily laid-off in the Sales and Marketing department.  They were issued with a notice of lay-off for 4 weeks in April 2020 and this was extended in May and June. He said that the pandemic was having an impact on the business and it was decided that the lay-offs were no longer temporary.  Having reviewed the roles of the Sales and Marketing it was decided to make 12 people redundant.

They did not consult the staff at any time before deciding on making people redundant.  They selected 12 people in Marketing for assessment for redundancy and selected 5 including the Complainant.  The criteria used in making the selection was as follows:

(i)Overall experience in the business based on years of service,

(ii) Specific knowledge of their core role

(iii) Their ability to multitask at interdepartmental level if they took up other roles across the department.

There were 10 marks assigned to (ii) and (iii)

Following the application of the criteria to the to the 12 employees assessed for redundancy, the 5 employees who had scored the lowest were selected. The top score was 32 and the lowest score was 3.5. The Complainant scored 5 1/2. He accepted that there were staff retained who had shorter service than the Complainant.  He said that they scored higher than the Complainant under the criteria, had a greater knowledge of the company and were able to multitask. He said that he did not consult the Complainant or tell her that her role was under consideration for redundancy before notifying her of her redundancy on the 2nd September 2020.

The Complainant said that she was not consulted about redundancy prior to the notification on the 2nd September 2020 and no due process was followed and for this reason she was unfairly selected for redundancy.  The Respondent’s case is that the Complainant was fairly assessed against the criteria and was selected for redundancy on this basis.

 Section 6 of the Unfair Dismissals Act, 1977 provides:

“(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. …

Selection for Redundancy

Sub section (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.

 (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:

……

……

(c) the redundancy of the employee,

……

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph(d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section

Section 7(2) of the Redundancy Payments Act 1967 as amended provides:

 “(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,”

Section 11. Lay-off and short-time:

(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.”

The Complainant was temporarily laid off on the 20th of April 2020 and on the 18th May and again on the 30th of July she was informed that the lay-off would continue until further notice but for a minimum of a further 4 weeks. I note that the Complainant sought an update on the lay-off during the month of August, but she was not informed that her redundancy was under consideration. In a letter dated the2nd of September she was notified of the redundancy which was effective from that date.   Employees should be notified that they are under consideration for redundancy. The fact that the Complainant was laid-off in April for 4 weeks which was extended in May and June is not notice that the job is at risk of redundancy.

 In Mulligan –v- J2 Global (Ireland) Ltd (UD/993/2009), in respect of redundancy the EAT stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases that may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”

In JVC Europe Ltd v Ponisi [2012] ELR 70 it was highlighted that it might be "prudent and a mark of genuine redundancy that alternatives to letting an employee go should be examined” and that "a fair selection procedure may indicate an honest approach to redundancy by an employer". It went on to state that where "selection procedures for redundancy are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed."

In Boucher v Irish Productivity Centre UD882/1992 a decision on the requirement of consultation, the EAT, in holding the dismissal unfair said: "it is not for the Tribunal to consider whether input would have made any difference, but its denial is a denial of the right of the natural and constitutional right to defend oneself which is not at the gift of the employer or of this Tribunal but is vested in every citizen no less in any enquiry affecting their employment, than when the enquiry might affect their liberty.” 

In the case of Trinity College v Ahmad UDD2030 in relation to selection for redundancy, the Labour Court followed the reasoning of the EAT in the case of Gillian Free v Oxygen Environmental UD 206/2011, and noted:

“when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy….where there is no agreed procedure in relation to selection for redundancy….then the employer must act fairly and reasonably”.

The Labour Court went on to say that:

“It is clear to the Court that sufficient efforts were not made to seek alternative roles for him, the Court therefore, cannot accept that his dismissal by virtue of fair selection for redundancy had been discharged by the Respondent and consequently finds that the Complainant was unfairly dismissed”.

The selection for redundancy was made on the following basis:

(i)   Overall experience in the business based on years of service,

(ii) Specific knowledge of their core role

(iii) Their ability to multitask at interdepartmental level if they took up other roles across the department.

I am not satisfied that the selection criteria were applied in a fair and transparent manner. Eight of the employees retained had shorter service than the Complainant. I note that one employee who was retained had 6 months experience in the business and he scored higher than the Complainant in the selection criteria core knowledge (7) and multitasking (3) The Complainant scored 3 and 1 respectively. The Complainant was not consulted, and she was made redundant without any opportunity to make suggestions and make her case or to have any influence on the decision making and alternatives to redundancy.  The caselaw on this point cited above is very clear. 

I note that the Complainant contacted the Respondent several times during August 2020 seeking an update on the lay-off and when she was clearly under consideration for redundancy, but no opportunity was taken to advise her of this fact.  Furthermore, on the 2nd September 2020, the date she was made redundant, the Complainant emailed the Respondent seeking an answer to a number of questions about the reason for the redundancy and the selection process and she was not given any information about the selection process.  The Respondent did not submit any written documentation to the hearing on the selection matrix and its application to the employees under consideration for redundancy. The oral evidence presented lacked clarity and candour. The lack of consultation and the application of the selection criteria to the Complainant’s experience, skills and the marks awarded to her compared to the employees who scored higher and were retained, were not adequately explained.

For all of the above reasons, I am not satisfied that the Complainant was fairly selected for redundancy. I find therefore that the Complainant was unfairly dismissed contrary to the terms of section 8 of the UD Act.

I find that the Complainant was unfairly dismissed contrary to the terms of section 8 of the UD Act.

The Complainant is seeking Compensation.  She said it was difficult to get work because of the Covid restrictions. She was successful in obtaining employment on the 8th March 2021.  I consider an award of compensation of €8,500 for the financial loss suffered, which is around t 18 weeks’ pay, is just and equitable having regard to all the circumstances.  I order the Respondent to pay the Complainant €8,500 compensation.

Unfair Dismissal Act 1977, unfair selection for redundancy