Complainant

Respondent

Parties

Lorraine  Manton

Palomar Ltd T/A McSwiggans

Complainant

Respondent

Anonymised Parties

Lorraine  Manton

Palomar Ltd T/A McSwiggans

Representatives

Caoimhe Ruigrok BL instructed by O'Carroll & Co Solicitors

Joe Bolger ESA Consultants

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00041357-001

30/11/2020

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

CA-00041357-002

30/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00041357-003

30/11/2020

The Complainant began her employment with the Respondent as an Office Worker on 14 August 2006 and earned a gross weekly wage of €711.53 per week. Her employment was terminated on the grounds of redundancy on 20 July 2020. She asserts that she was unfairly selected for redundancy and that she did not receive her statutory notice entitlements.

The Complainant began her employment with the Respondent as an Office Worker on 14 August 2006 and earned a gross weekly wage of €711.53 per week. She stated that she was made redundant along with her other colleague in the Galway office as a result of a decision to centralise the finance function in Dublin. She asserted that she was never given the opportunity to move to Dublin and also stated that she should have been considered for front of house roles on the hospitality side of the business. It was also alleged that another employee Ms G, who previously worked front of house, assumed office duties after the Complainant departed, which she (the Complainant) asserted that she could fulfil, but were not offered to her following her dismissal on the grounds of redundancy.

She also claimed that she did not receive her statutory notice entitlements. 

The Respondent stated that despite having written to all of their employees in May to seek ideas on how to cut costs, an insufficient number of adequate proposals were presented and as a result they had to effect a number of redundancies. One of the decisions made to reduce costs involved the centralisation of the finance function in Galway and the consequent decision to close the Galway office where the Complainant worked from. It was asserted that it would not have been realistic for the Complainant to travel to Dublin which is why this was not offered to her. It was also claimed that as the Complainant had never worked on the hospitality side of the business, no roles in this area were offered to her. The Respondent also highlighted that Ms G, who the Complainant asserted was fulfilling duties she could have done, works mainly on the reservations side of the business and assists the executive chef with stock margins. 

The Respondent also stated that as the Complainant was in receipt of the Pandemic Unemployment Payment, there was no requirement to pay her statutory notice.

CA-00041357-001: 

The Complainant acknowledged that she received her full statutory redundancy entitlements and this complaint was therefore withdrawn. 

CA-00041357-002: 

The Law

Section 6 of the Unfair Dismissal Act states inter alia:

(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.… 

(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 as amended by the Industrial Relations Act 1990, 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 7(2) of this Act.” 

Section 7 of the Redundancy Payments Act, 1967, as amended, states:

“(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.” 

Findings:  

While the Respondent asserted that the redundancy of the Complainant’s position was in accordance with Section 7 (2) above, it is clear from a review of the relevant case law that where redundancy is presented as the reason for termination of employment, it must not only meet the definition of the term but it must also be shown that the Complainant was fairly dismissed. 

In the seminal case of Panisi v JVC Europe Ltd. [2012] ELR 70, Charleton J held: 

“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 notrelated 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.”

In Panisi it was also held:

“It may be prudent, and a mark of genuine redundancy, that alternatives to letting an employee go should be examined….” 

The Labour Court held in the case of Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854: 

“The Court accepts that the Respondent was entitled to restructure its business and reduce its workforce if necessary. While the Court accepts that the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain her employment must have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved.” 

The Labour Court also held in the case of Student Union Commercial Services v Traynor UDD1726 that:  

“In the instant case, the Court is satisfied that the Respondent did follow a consultation process with the Complainant to inform him that his role in the Company was being considered for redundancy. The Complainant was given the opportunity to make suggestions as to why he should be retained and on alternatives that might be considered. However, the Court is not satisfied that the Respondent has demonstrated that it gave due consideration to the suggestions made and/or to the possibility of alternative employment options that may be available. The Court notes that at the consultation meeting held on 13th January 2016, reference was made to consideration of options and/or suggestions being put forward by both sides. At the consultation meeting of 19th January 2016, the Respondent explained to the Complainant that a number of alternatives were under consideration and that the most suitable possible alternatives was redeployment, which may even entail different duties, pay rates, shift patterns and responsibilities. By 27th January 2016 the Complainant was informed that no suitable alternative position was available and he was being made redundant. The Court notes that the Complainant had almost twelve years’ service. The Respondent had a number of business units and had fluctuating numbers of staff employed. The Court was presented with no information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options/suggestions. The Court can accept that had such an exercise being carried out it may not have identified any alternative positions suitable to the Complainant, however, it seems clear that no such exercise was engaged in. On that basis the Court finds that the approach adopted by the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a) of the Act, the dismissal of the Complainant was unfair.” 

In the instant case, the Respondent presented no evidence that any alternative roles were explored with the Complainant, similar to the Respondent in the matter of Student Union Commercial Services v Traynor UDD1726 above. While I noted the Respondent’s evidence that any decision to retain the Complainant would have involved dismissing employees in the Dublin office, I do not believe that this would necessarily have been the case if a meaningful consultation process had taken place. Specifically, in order to eliminate the need for the compulsory redundancy of the Complainant, the workers in the Dublin office could have been consulted with and asked if they wanted to consider voluntary redundancy or perhaps reduce their hours. Moreover, given the Complainant’s background in hospitality, the option of allowing her to take up a front of house role in the bar or restaurant in Galway should have been explored. I also noted the compelling evidence of the Complainant’s former colleague who visited the office a number of months after she had also been dismissed on the grounds of redundancy and spoke with a former colleague, Ms G, who had previously worked in a front of house role but was now doing office work. While these duties may not have taken as much time or been as significant as the responsibilities as the Complainant assumed in her former role, she should at least been spoken to about fulfilling these duties which she may have been willing to do on reduced hours.

I also note that there was no avenue of appeal provided to the Complainant when she was notified of the termination of her employment. Such a process could have given her the opportunity to defend her future employment and highlight her willingness to work in alternative roles. In Mackey v Resource Facilities Support Limited UD56/2009 and Fennell v Resource Support Services Limited UD57/2009, the failure to inform the claimants of their right to appeal the redundancy decision was a relevant factor in the EAT’s finding that the redundancy was implemented in an unreasonable and unfair manner. 

In light of all of the foregoing, I find that the Complainant was unfairly dismissed. 

CA-00041357-003: 

Section 4 of the Minimum Notice and Terms of Employment Act, 1973, states: 

(1)    An employer shall, in order to terminate the contract of employment of an employee who has been in his continuous service for a period of thirteen weeks or more, give to that employee a minimum period of notice calculated in accordance with the provisions of subsection (2) of this section. 

(2)    The minimum notice to be given by an employer to terminate the contract of employment of his employee shall be –

(a) if the employee has been in the continuous service of his employer for less than two years, one week, 

(b) if the employee has been in the continuous service of his employer for two years or more but less than five years, two weeks 

c) if the employee has been in the continuous service of his employer for five years or more, but less than ten years, four weeks, 

(d) if the employee has been in the continuous service of his employer for ten years or more, but less than fifteen years, six weeks, 

The Second Schedule of the Act states as follows in relation to employments for which there are no normal working hours, which was the case in this instance because the Complainant was on temporary lay off:

3. Subject to paragraph 4 of this Schedule, an employer shall pay to an employee, if there are no normal working hours for that employee under the contract of employment in force in the period of notice, in respect of each week in the period of notice, a sum not less than the average weekly earnings of the employee in the thirteen weeks next preceding the giving of notice.

4. An employer shall not be liable to pay to his employee any sum under paragraph 3 of this Schedule unless the employee is ready and willing to do work of a reasonable nature and amount to earn remuneration at the rate mentioned in the said paragraph 3.

Findings:  

While I find that the only possible interpretation of paragraph 3 above is that the calculation of any notice pay is based on the average weekly earnings in the 13 weeks preceding the giving of the notice, I also note that the Complainant was on temporary lay-off for almost the entirety of the 13 week period prior to the notification of the termination of her employment and note that she did not earn any money in this period, apart from the Pandemic Unemployment Payment. I find therefore that the relevant average earnings for the purposes of this complaint should be the thirteen weeks period prior to her temporary lay off and not what she earned in the period prior to the notification of her termination of employment. While I note that it is not explicitly stated in the Minimum Notice & Terms of Employment Act, 1973 over what period average earnings should be considered, for it to be suggested that it should be over a period that an employee is on lay off would, in my view, be at odds with the spirit of the legislation and would make it very easy for employers to avoid paying employees their statutory notice entitlements, which cannot have been the intention of the relevant Minister. Moreover there is no suggestion from the legislation that the relevant period is that which immediately preceded the giving of notice. 

In light of the foregoing, I find that the Complainant is entitled to be awarded six weeks’ notice pay at her average earnings in the 13 weeks prior to her temporary lay-off and will disregard any parental leave taken during this period for the purposes of the calculation. 

CA-00041357-001: 

This complaint was withdrawn as it was acknowledged that the Complainant received her full statutory redundancy entitlements.

CA-00041357-002:

I have found that the Complainant was unfairly dismissed for the reasons set out above. 

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer, considers appropriate having regard to all the circumstances: 

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or 

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or 

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, 

(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to— 

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, 

(b) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employee, 

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt  measures, to mitigate the loss aforesaid, 

(d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister, 

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, 

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

I note in the first instance the Complainant’s preference for compensation as a remedy and also that the Respondent’s representative highlighted that she had failed to mitigate her loss given that she had not sought alternative employment elsewhere. In this regard, I note the decision of my colleague in ADJ 32667, which I wholeheartedly endorse, where she stated inter alia that: 

Much was made of the obligation on the Complainant to mitigate her losses as set out in Section 7(2)(c) of the Unfair Dismissals Act and that is part of the consideration in any case when deciding on compnesation- but it is worth noting that the obligation of the employee in section 7(2)(c) is one of six tests in that section and it is no more primary than any other…. 

It follows ….. that in considering compensation, regard must be had to all of the subsection of Section 7-and the tests are not confined to the efforts of the former employee-or the Complainant in this case. In circumstances where the Respondent is found not to have met the tests set out in subsections (c) and (d) …. and the Complainant made no contribution to the decision to dismiss her under (a) (b) or (f) It would be wholly unjustified to penalise the Complainant solely for a conclusion that she did not make a sufficient effort of mitigate her losses where the balance of unfairness and failure to comply with the terms of Section 7 as a whole lie squarely with the Respondent.” 

Having regard to the instant case, I note that there was no procedure for dismissal surrounding any selection for redundancy adhered to by the Respondent contrary to S.I. 146 and fair procedures generally and that alternative roles were not considered for the Complainant or proposed to her, as I have outlined in my analysis above. I also noted however that no evidence was presented to demonstrate that the Complainant made any efforts to obtain alternative employment, apart from undergoing a training course, as mandated by the Act. 

In light of the foregoing, I determine that twelve weeks compensation should be awarded to the Complainant in respect of her unfair dismissal and make an award of €8,538.36. 

CA-00042355-003: 

I find that the Respondent has contravened the provisions of Section 4(2) of the Act by failing to provide the Complainant with her statutory notice entitlements for the reasons set out above. 

Accordingly, I find that the complaint is well founded. I hereby order that the Respondent pay the Complainant the sum of €4,269.18 (being the equivalent of six weeks’ pay) in compensation for the loss sustained by reason of the contravention.