ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029730
Parties:
| Complainant | Respondent |
Parties | Hayley Kenny | McCann Morrissey Clarke Solicitors |
Representatives | Padraig J Hyland & Co Solicitors | Niamh McGowan B.L. instructed by McCann Morrissey Clarke Solicitors |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00039373-001 | 26/08/2020 |
Date of Adjudication Hearing: 30/11/2021
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The complainant was employed by the respondent from the 1st December 2017 until her redundancy which was notified to her on or about 16th March 2020. While the complainant’s last day of employment was 16th March 2020 she was paid in lieu of notice and annual leave entitlements up until 31st March 2020. The complaint which was submitted to the Workplace Relations Commission on 26th August 2020 relates to an alleged unfair dismissal by reason of unfair selection for redundancy. Note: At the conclusion of the adjudication hearing, the complainant’s solicitor was given two weeks to submit a supplemental submission on the complaint and was asked to copy the respondent for convenience. The respondent was given a further two weeks to respond. A further exchange of correspondence ensued with the most recent letter being received from the complainant’s solicitor on 21st January 2022. All submissions and additional information have been taken into account in this decision. |
Summary of Respondent’s Case:
The respondent contends that the dismissal was not unfair as it related to the legitimate redundancy of the complainant and is in accordance with Section 6(4)(c) of the Unfair Dismissals Act, 1977 and Sections 7(2) (c) and (d) of the Redundancy Payments Act, 1967. The respondent contends that at the material time, having merged with another firm, there were some financial concerns and there was more staff than was needed. The respondent stated that the complainant was one of two legal secretaries and was selected for redundancy on the basis that the other legal secretary had a greater level of capability and capacity to work independently than the complainant and was able to bring projects from start to finish. The respondent also stated that while it was not a deciding factor, the complainant’s level of income had to be taken into account when considering the totality of the situation and the immediate need to reduce costs and restructure the business. Evidence and Cross examination A Principal of the respondent gave evidence in relation to the circumstances which led to the merger in early 2020 and in relation to the investment that was taking place at that time. The witness confirmed that there was “a lot of work on” but that there were some “speed wobbles” occurring following the merger of the two organisations in relation to operational issues. The witness stated in evidence that following the merger there were two legal secretaries and one was to be made redundant. The witness stated that both the complainant and the other legal secretary were extremely capable, and both were assets to the business, and it was a fine line as to who was kept and who was made redundant. Ultimately, it was the view of the Partners that the legal secretary who was retained had a greater level of skills and competencies than the complainant. The witness also stated that although not determinative of the issue, salary costs were also a factor in circumstances where the partners were trying to secure the future viability of the business. The witness stated that if there were any alternatives to redundancy, they would have been explored but unfortunately there were not and one of the legal secretaries had to be let go. It was put to the witness in cross examination that the complainant was quite understandably upset when she was made redundant in circumstances where there was no advance consultation or discussion in relation to the process to be followed nor any opportunity for her to discuss alternatives. It was accepted by the witness that in normal circumstances it would have been fair to discuss options with the complainant but in the exceptional circumstances pertaining at the time, redundancy was the only option. Cases cited The respondent cited the cases of Sheehan v Continental Administration Limited UD858/1999 in relation to the efforts the complainant must make to mitigate her losses and the case of Susan O’Kelly v WYG Engineering (Ireland) Limited UD301/2011 in relation to the continuing responsibility to mitigate losses even after finding alternative employment. The case also concerns taking into account the redundancy payment received by the complainant when assessing financial loss. |
Summary of Complainant’s Case:
The complainant does not accept that a legitimate redundancy situation existed within the Company and even if one did exist, the process surrounding the selection of the complainant fell far short of what would be expected from the respondent in such circumstances. The complainant stated that there was no process in place in relation to selection criteria and fair procedures were not applied to the complainant’s redundancy. The complainant further stated that there was no discussion on alternatives to redundancy and the complainant was not given the opportunity to appeal the decision to make her redundant. The complainant stated that despite difficulties in obtaining alternative employment caused by the covid 19 pandemic, she was successful in finding a new job approximately three months after her dismissal. She stated her income in the new position was approximately €16.5k p.a. for 20 hours per week which is approximately €1,700 less per month than when she was employed by the respondent. The complainant confirmed that she has been working full time since her return to work following maternity leave in November 2021. Evidence and cross examination The complainant gave evidence in relation to her employment with the respondent and the merger which took place in early 2020. The complainant’s evidence was that following the merger her terms and conditions of employment were to remain the same. It was also her understanding that with the employment of new staff in late 2019 and additional investment in the Company, the issue of redundancy was not expected. The complainant stated in evidence that things changed following the merger and in January 2020 there was a delay in salary payments and other issues occurred relating to an increase in workload which prompted a grievance meeting in early February 2020. The complainant’s evidence was that on 16th March 2020 she attended a meeting with the principals of the respondent and was informed that she was being let go and that it was best to leave immediately. The witness stated that there was no mention that others may be let go, no opportunity to discuss issues, no consultation on the matter and no opportunity to appeal the decision. The complainant also stated in evidence that it was her level of income that resulted in her redundancy and, in her view, not because one person was better at their job or more capable than the other. In cross examination, it was put to the witness that her redundancy was appropriate given the circumstances pertaining at the time. It was also put to the witness that while there may have been somewhat of a lack of communication on the issue at times, ultimately the complainant’s employment ended legitimately on the basis of redundancy which is in compliance with the provisions of the Unfair Dismissals Act, 1977 and the Redundancy Payments Acts 1967. Cases cited The complainant’s representative cited the cases of Mulligan v J2 Global Ireland Limited, UD993/2009. Sheehan and O’Brien v Vintners Federation of Ireland [2009] 20 ELR 155, Crosby v Fuss Doors System Limited 2009 20 ELR 38, Callaghan v Olok Limited UD219/2009 JVC Europe Limited v Ponisi 2012 23 ELR 70 and Desmond McGuire v Sleedagh Farms Limited UD1320/2012. |
Findings and Conclusions:
The complainant contends that she was unfairly dismissed by reason of unfair selection for redundancy. The respondent contends that the respondent was fairly dismissed by reason of redundancy.
The Applicable law
Section 6 (4)(c) of the Unfair Dismissals Act, 1967 states as follows:
6(4)(Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a)……
(b)……
(c) the redundancy of the employee…..
Section 7(2) (c)and (d)of the Redundancy Payment Acts, 1967 states as follows:
7(2) (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
Findings
I have given careful consideration to the submissions and evidence of both parties to this complaint. There is no dispute that the complainant was a capable and valued member of staff and was described as being an asset to the business. Following the merger in early 2020 there was an immediate need to reduce costs and make savings where possible. The complainant was well paid and contends that she did five days’ work in three days. The principal of the respondent in his evidence stated that it was a fine line between who was made redundant and who was retained, and that the complainant’s salary was a factor although there were also other factors to be taken into account. In cross examination, the respondent principal stated that “the highest earners were what it boiled down to.”
The respondent also stated that the legal secretary who was retained was, in the view of the employer, better at working independently than the complainant yet there was no skills matrix or objective criteria in place to substantiate this or any opportunity at the time for the complainant to comment or question the respondent on this point.
Having considered the evidence, it appears to me that the main reason the complainant was made redundant was on the basis of her high earnings rather than, as contended by the respondent, that the legal secretary who was retained in employment was seen as being more capable and better at working independently and “taking things from start to finish.”
While I accept that there may well have been an immediate need to make savings following the merger, the manner in which the complainant was treated was, in my view, very unfair. There was no redundancy process or procedure in place, there was no consultation with the complainant in advance, no opportunity for her to suggest alternatives and no opportunity for her to appeal the decision. The complainant simply attended a meeting on or about the 16th March 2020 and was told she was being made redundant and that it was best if she left immediately.
In all of the circumstances of the complaint, I find that the complainant was unfairly dismissed on the basis of unfair selection for redundancy.
Mitigation of losses
Both parties provided calculations in respect of the complainant’s losses and in relation to her efforts to mitigate those losses. The complainant’s representative stated that the complainant’s loss of earnings amounted to €24,868.00. The respondent stated that the complainant’s losses amounted to €3,369.70 less the complainant’s redundancy payment of €2,976.45 which amounts to €393.25
Having considered the matter, I find that the complainant was without any earnings for approximately 10 weeks after her dismissal which based on a monthly salary of €2793 equates to approximately €6982.50. In addition, the complainant secured a part time position in June 2020 which was expected to become full time in September 2020 but this did not happen until the complainant returned from maternity leave in or around November 2021. While working part time from mid-June 2020 to going on Maternity Leave in April 2021, the complainant stated that her earnings were approximately €1,700 less per month in her new employment which in that period amounts to losses of approximately €16,150. I accept the respondent’s arguments that the complainant should have continued to seek full time employment during this period, but I also accept the difficulties that existed in relation to obtaining new employment during the covid 19 pandemic and also the circumstances during this period of time when the complainant was pregnant.
Conclusion
The complaint of unfair dismissal is well founded. In relation to compensation, having considered the submissions of both parties and the complainant’s efforts to mitigate her losses, I find it fair and reasonable to award the complainant the sum of €12,006.05. This sum is calculated on the basis of the losses incurred during the three months after the dismissal (€6982.50) plus €8,000 in respect of the period from mid-June 2020 to April 2021 which equates to a total of €14,982.50. The redundancy payment of €2,976.45 is deducted from this amount leaving €12,006.05.
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.
For the reasons stated above, I find that the complainant was unfairly dismissed. The respondent is directed to pay the complainant €12,006.05 in compensation. |
Dated: 24/03/2022
Workplace Relations Commission Adjudication Officer: Andrew Heavey
Key Words:
redundancy, unfair selection, lack of procedures |