Complainant

Respondent

Parties

Sharon  McCauley

Miley & Miley LLP

Representatives

  Sharon McCauley

 Ursula Cullen Solicitor

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042520-001

16/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00042520-002

16/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00042520-003

16/02/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997

CA-00042520-004

16/02/2021

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

CA-00042520-005

16/02/2021

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

CA-00042520-006

16/02/2021

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

CA-00042520-007

16/02/2021

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

CA-00042520-008

16/02/2021

The complainant worked as a legal executive in a solicitor’s practice and the dispute relates to alleged unfair selection.

As a preliminary matter the respondent employer stated that the complaint was statute barred.

The complaint form was lodged with the commission on the 16th of February 2021 and the employment was terminated on the 22nd of July 2020, as confirmed in a letter dated the 21st July 2020.

The complaint concerns unfair selection for redundancy along with other related complaints.

The letter stated:

“I confirm that your employment will now terminate on Wednesday 22nd July 2020. I have asked John Connelly to make a payment to you which covers all salary, holidays etc. that is due to you and to include in that payment one month’s salary in lieu of notice and your statutory redundancy entitlements.”

The respondent employer stated that the complaint is statute barred as it was lodged outside the six months statutory time limit and no reasonable cause had been provided.

The complainant stated that arising from the pandemic lockdown at the time; her access to computer equipment and a printer was severely curtailed and she had to purchase a printer. The complainant also submitted a professional report from a counsellor that stated her mental health during this period limited her capacity to prepare and to lodge a complaint on time.

The complainant stated that she was unfairly selected for redundancy and that the downturn in business arising from the pandemic was used as an opportunity to target her for redundancy. The decision was not impersonal or reasonable having regard to all the circumstances.

The employer stated that it was only after several months of deliberation and fair consultation that it decided to make the complainant redundant. The process commenced in late May 2020 and involved several meetings with the employee. The employee was informed why her position was at risk. She was the only employee in the firm who held the position of legal executive. The employee worked in the litigation area where work had declined very significantly due to COVID. This in turn had a direct impact on fee income,

CA-00042520-001 Unlawful Deduction (Payment of Wages Act):

No evidence has been presented by the complainant to support this claim.

The employer has paid the employee her contractual notice; statutory redundancy and unused holidays.

The complaint is not well founded.

CA-00042520-002 Unlawful Deduction (Payment of Wages Act):

This complainant states that her employer unlawfully reduced her contractual hours where she was put on a 3-day week commencing the 1st June 2020. There is no provision in the contract for short-term working. However, the employer relies on clause 7 of the employment contract that states:

“you will be flexible in your hours to meet the workload requirements of the partnership as they arise”

There is a conflict in evidence between the parties concerning the wish to work shorter hours. The complainant at the hearing stated that she wished to have more flexibility about her working hours. However, what is clear is that the move to reduce the complainant’s hours was decided upon by the partners as a cost saving measure based on the reduction in work arising from the pandemic.

No evidence has been presented by the employer concerning a review of other employees and how their hours were also reduced. The employer relies upon the pandemic and the consequential reduction in litigation work that the executive in question was directly engaged in as the reason to reduce her hours. The partners had reduced their salaries. A reduction from 5 days to 3 days is a very significant reduction and in the absence of a policy that demonstrated consistency and fairness within the firm; the reduction is unlawful. There is no contract provision that provided for a reduction in working hours.

Section 5 of the Payment of Wages Act 1991 states:

5.— (1) An employer shall not make a deduction from the wages of an employee (or receive any payment from an employee) unless—

(a) the deduction (or payment) is required or authorised to be made by any statute or any instrument made under statute,

(b) the deduction (or payment) is required or authorised to be made by a term of the employee's contract of employment included in the contract before, and in force at the time of, the deduction or payment, or

(c) in the case of a deduction, the employee has given his prior consent in writing to it

No term in the contract provided for the reduction in hours and the contract clause being relied upon by the employer is not specific enough so that it can be relied upon to reduce the working hours of the employee. In any case even if that contractual right did exist, it is not an unfettered right and must be implemented fairly and reasonably. There is no evidence in this case that this reduction was implemented fairly and reasonably.

In Devlin v Electricity Supply Board PW 550/2011 the tribunal noted that:

However a discretion, although it may seem absolute, is not unfettered and must be exercised reasonably and in good faith Horkaluk v Cantor Fitzgerald [2004] 1 ICR 697 and Lichters & Hass v Depfa [2012] IEHC 10.

However, in this case there is no absolute contractual right to reduce the working week.

I note the employer relies on section 5(2)(i) which states:

(ii) the deduction is of an amount that is fair and reasonable having regard to all the circumstances (including the amount of the wages of the employee),

Allowing for the absence of any specific contractual provision that provides for short time and that the reduction in hours appears only to have applied to this employee; I determine that the reduction was not fair and reasonable having regard to all the circumstances.

Section 6 of the Act states:

6.  [ (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that

The complainant was on a 3-day week from the 1st of June to the date of dismissal on the 22nd of July 2020; which I calculate to be a shortfall of 14 days.

The complaint is well founded, and I award the complainant 14 days’ pay.  I direct the employer to pay the complainant €2692.34 less any statutory deductions. The complainant is on an annual salary of €50,000 or a daily rate of €192.31 x 14 = €2692.34.

CA-00042520-003 Organisation Working Time Act:

The complainant states in her complaint form that she was not notified in advance of additional hours required to be worked. However, the complainant provided no specific details, dates or evidence to ground this complaint. The complaint is not well founded.

CA-00042520-004 Organisation Working Time Act:

The complainant stated in her complaint form that she was not compensated for her annual leave entitlement when leaving the organisation. The complainant provided no specific details, dates or evidence to ground this complaint. The employer has also rebutted the complaint by stating that all outstanding holiday entitlement was paid; as confirmed in an email dated 24th of July 2022 from Mr John Conneely, Accountant with the Firm:

“Please find a copy of your payslip which covers 1 month in lieu of notice payment and also the portion for unused holidays.”

The complaint is not well founded.

CA-00042520-05 Unfair Dismissal Act:

The employer stated that it was only after several months of deliberation and fair consultation that it decided to make the complainant redundant. The process commenced in late May 2020 and involved several meetings with the employee. The employee was informed why her position was at risk. She was the only employee in the firm who held the position of legal executive. The employee worked in the litigation area where work had declined very significantly due to COVID. This in turn had a direct impact on fee income.

The respondent employer stated that the complainant was dismissed wholly or mainly arising from being made redundant. The firm followed a fair and comprehensive consultation process that commenced in late May. In late June 2020 a further consultation meeting took place. At this meeting the employee was informed that due to the very significant decline in fee income arising from the pandemic and a very significant decline in work; the company regretted that the position of legal executive was at risk. The managing partner requested that the employee give him alternatives other than redundancy that would be considered. The employee was put on notice by way of letter on 30th June 2020 that her role was at risk of being made redundant. The firm never received any alternatives from the employee. A further consultation took place on the 7th of July 2020 and rescheduled to the 13th of July 2020.

The partners held a meeting on the 17th of July 2020 and considered if the employee could be redeployed. As the employee was the only legal executive, there was no other employee who could be compared with the claimant’s skill set.

It was understood that the employee did not wish to be redeployed into a secretarial role. This is denied by the complainant.

On the 20th July 2020 the managing partner informed the complainant that she would be made redundant.

While the employee maintained that she was unfairly selected at no time did the employee engage in the process and provide an alternative.

The employee is the only legal executive in the firm.

The complainant has failed to mitigate her loss.

The respondent employer has referred the adjudicator to several relevant cases such as Ruu Oliveira v Uniqube (Ireland) Limited Adj 00029313, where the employee was made redundant arising from a delay or suspension of projects due COVID and where the adjudicator held that it would not have been appropriate to establish a redundancy matrix.

In O’Doherty v Systems Dynamics UD 803/1995 it was held that the redundant employee must be able to compare himself to a retained employee of the same grade or status.

In John McCormick v DA Ellison E.LR. 1989, it was held that while there some overlap between the claimant’s job and that of another, they were not of equal value. As they were not in similar employment, the claim failed.

The employee disputed that a fair consultation occurred and believed that she was targeted based on unrelated matters to cost savings and COVID. She also stated that she would have considered being redeployed to a secretarial position.

Redmond on Dismissal Law 3rd edition states:

To satisfy the Workplace Relations Commission or the Labour Court that an employee was dismissed by reason of redundancy under s 6(3) there must be a redundancy situation and redundancy must be the main reason for dismissal. If the employer cannot prove both and cannot prove one of the other potentially fair reasons, dismissal will be unfair. Redundancy has become a common justification for dismissal. For this reason, strict proof is required. 5 The importance of this point was memorably captured by the High Court (Charleton J) in the leading case of Panisi: 6

‘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 firm in this case had experienced a dramatic decline in legal transactions and fee income arising from the pandemic. It also gave rise to key personnel leaving the company having regard to the high level of uncertainty that existed in the litigation work area. The economic conditions did create a genuine redundancy situation. The question that must be answered was the selection process fair and was the conduct of the employer reasonable (section 7 Unfair Dismissal Act 1977 as amended)?:

(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 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

The employee maintained that she was targeted arsing from interpersonal and performance related matters between her and her direct manager. The respondent employer denied that the decision to make the complainant was in any way subjective and was impersonal and directly linked to the decline in work.

 The complainant had suffered from stress that she attributed this to work related issues. The employer stated that they are a caring firm and the relationship between the employee and her manager had been very good. There may have been some differences; however, that was normal as part of the challenges that every company faces and the expectations of clients.

This employee was put on a 3-day week. No evidence has been presented that others in the area were put on a 3-day week.

While the pandemic presented many challenges to legal firms; there were also financial government supports to assist firms to weather the storm so that employees could be kept in employment.

This employee was on short time which provided a very significant cost saving.

No evidence was presented that any other employee had been made redundant.

The employer stated that there was no other comparator employee as the complainant’s role was unique. They also rely on case law where an overlap may exist; however, it was held that the role was essentially not like other roles.

There is a direct conflict in evidence between the parties concerning whether the complainant would redeploy into secretarial work.

The managing partner in a handwritten attendance note dated July 17th, 2020 wrote:

“Sharon doesn’t have Solicitor or Accountancy skills and she is not interested on the secretary side. No alternative to making Sharon Redundant”

I note the following EAT case as reported in the Arthur Cox Yearbook 2013:

[33.74]

O’Connor v Breen 92 – Employment Appeal Tribunal – Unfair Dismissal Acts 1977 to 2007 – whether claimant unfairly selected for redundancy

The claimant was employed as a legal secretary from 1999 to July 2011 in a small law practice. The EAT heard evidence from the respondent which detailed the difficult financial circumstances that the practice found itself in. Evidence was given by the respondent that it was necessary to cut costs at the practice.

It was accepted that the claimant was the second last into the practice, with another secretary being the last employee to commence employment. A meeting was held with staff in May 2011, where the principal solicitor explained the financial situation to them. He told employees that he was considering a pay cut of 10 per cent to 20 per cent for all staff or to close reception. He said that he would hold a further meeting and that any alternatives should be put forward to him.

A follow-up meeting was held in June 2011, where the staff suggested a four-day week. However, this was not accepted by the principal. Ultimately, a decision was taken by him to close reception and to make the claimant’s position redundant.

Evidence was given that the claimant was not replaced, that the phones were automated and that a video-intercom system was installed. It was conceded by the respondent that the claimant, although assigned to reception in 2008, was qualified as a legal secretary and the respondent accepted that he did not consider her for a secretarial position as there was none available. It was suggested by the claimant that she had been selected for redundancy on foot of a previous employment claim that had been brought by her, but this was not accepted by the respondent.

The EAT noted the evidence given by the parties and specifically that it had been established by the respondent that he no longer required a receptionist.

The EAT, however, found that:

‘in selecting the claimant for redundancy, he failed to consider the other duties that the claimant had performed in the past for the employer and that she was capable of performing the duties required of a legal secretary or that she had undergone a course in which she had studied aspects of the law that may have had a bearing on her retention in the practice had it been considered.’

The employer was criticised for failing to engage with the claimant on these matters prior to the dismissal or to have given any reasonable consideration of them.

The dismissal was found to have been unfair for this reason and the claimant was awarded compensation of €18,000.

On the facts of this case the employer placed the employee on a 3-day week.

No evidence has been provided that any other employee was placed a 3-day week.

The employer has detailed that the complainant was not interested in secretarial work; however, this is denied by the complainant. On the facts there is no detailed consideration by the employer of the complainant’s skill set and extensive legal executive experience that could be used by the firm. The note of the 17th of July 2020 that summarises the fact that there are no alternatives is far from being a comprehensive and considered reflection by the partners that they had carefully looked at all options.

On the facts no other employee in the firm was selected for redundancy; they may have left, and it would appear were replaced.

There were other options available to the firm that should have been carefully reviewed and then assessed to determine if they were or were not feasible.

The obligation is on the employer to demonstrate that they acted reasonably and that the presumption of unfairness must be rebutted by them.

I have had regard to her prior service in the company and at the date of hearing she was not in a permanent role; I determine that the conduct of the employer was not reasonable. It would appear on the facts that this employee was targeted for redundancy. No serious review of her skill set, and experience was conducted to assess if she could have been redeployed to another area or report to or part help another partner. While economic conditions did mean that the company encountered financial challenges; this employee was the only employee to have been placed on a 3-day week and then the only employee made redundant. The company made no reference to government subsidies available to employers affected by the pandemic, so that employment could be sustained and as an option or alternative to redundancy; that they considered and decided not to pursue. The consideration of possible alternatives supported by detail, is absent in this case. The review of such alternatives would not bind the company; however, it would provide a framework to show that the employer acted reasonably.

I determine that the complainant was unfairly dismissed.

There is an obligation on the employee to mitigate loss. The fact was employment in the legal sector became more difficult during the pandemic. The complainant is now employed on a short-term contract.

The Act provides that in determining compensation regard should be had to:

(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 said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

Both parties conduct must be assessed in measuring loss. I find that in weighing and assessing the conduct of both the employee to mitigate loss and the employer’s act, omission and conduct that gave rise to the redundancy; the respondent by failing to consider realistic alternatives other than redundancy during a pandemic when such were readily available in this case;  including the alternative of availing of the employment wage subsidy, the employer’s act, omission and conduct significantly contributed to the loss sustained by the employee.

I also note that:

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

Shall be disregarded.

And:

(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 pay and benefits in lieu of or in addition to pay

The relationship between the parties has broken down and the employee has been successful in obtaining new employment albeit temporary. In these circumstances I do not consider re-engagement or re-instatement to be viable options.

The employee was on a salary of €50,000. Her current role is not permanent. I have had regard to both the conduct of the employee to mitigate loss and to the conduct of the employer in causing the loss. I determine that having regard to all the circumstances in this case and to what I consider to be just and equitable, I award 52 weeks pay and order the employer to pay the complainant €50,000 in addition to all payments that she has already received.

CA-00042520-006/008 Minimum Notice:

The complaint is not well founded as the complainant did receive 1 months’ notice as per her contract prior to the termination of her contract.

CA-00042520-007 Minimum Notice:

The complainant states that I did not receive all my rights during the period of notice. However, the complainant has not detailed what right that was not provided and has provided no evidence to support this claim. This complaint is not well founded.

CA-00042520-001 Unlawful Deduction (Payment of Wages Act):

No evidence has been presented by the complainant to support this claim.

The employer has paid the employee her contractual notice, statutory redundancy and unused holidays.

The complaint is not well founded.

CA-00042520-02 Unlawful Deduction (Payment of Wages Act)

Allowing for the absence of any specific contractual provision that provides for short time and that the reduction in hours appears only to have applied to this employee; I determine that the reduction was not fair and reasonable having regard to all the circumstances.

Section 6 of the Act states:

6.  [ (1) A decision of an adjudication officer under section 41 of the Workplace Relations Act 2015, in relation to a complaint of a contravention of section 5 as respects a deduction made by an employer from the wages of an employee or the receipt from an employee by an employer of a payment, that the complaint is, in whole or in part, well founded as respects the deduction or payment shall include a direction to the employer to pay to the employee compensation of such amount (if any) as he considers reasonable in the circumstances not exceeding —

(a) the net amount of the wages (after the making of any lawful deduction therefrom) that

The complainant was on a 3-day week from the 1st of June to the date of dismissal on the 22nd of July 2020, which I calculate to be a shortfall of 14 days.

The complaint is well founded, and I award the complainant 14 days’ pay.  I direct the employer to pay the complainant €2692.34 less any statutory deductions. The complainant is on an annual salary of €50,000 or a daily rate of €192.31 x 14 = €2692.34.

CA-00042520-003 Organisation Working Time Act:

The complainant states in her complaint form that she was not notified in advance of additional hours required to be worked. However, the complainant provided no specific details, dates or evidence to ground this complaint. The complaint is not well founded.

CA-00042520-004 Organisation Working Time Act:

The complainant stated in her complaint form that she was not compensated for her annual leave entitlement when leaving the organisation. The complainant provided no specific details, dates or evidence to ground this complaint. The employer has also rebutted the complaint by stating that all outstanding holiday entitlement was paid; as confirmed in an email dated 24th of July 2022 from Mr John Conneely, Accountant with the Firm:

“Please find a copy of your payslip which covers 1 month in lieu of notice payment and also the portion for unused holidays.”

The complaint is not well founded

CA-00042520-005 Unfair Dismissal:

I determine that the complainant was unfairly dismissed.

There is an obligation on the employee to mitigate loss. The fact is employment in the legal sector became more difficult during the pandemic. The complainant is now employed albeit on a short-term contract.

The Act provides that in determining compensation regard should be had to:

(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 said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

Both parties conduct must be assessed in measuring loss. I find that in weighing and assessing the conduct of both the employee to mitigate loss and the employer’s act, omission and conduct that gave rise to the redundancy; the respondent by failing to consider realistic alternatives other than redundancy during a pandemic when such were readily available in this case; including the alternative of availing of the employment wage subsidy, the employer’s act, omission and conduct significantly contributed to the loss sustained by the employee.

I also note that:

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee —

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

Shall be disregarded.

And:

(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 pay and benefits in lieu of or in addition to pay

The relationship between the parties has broken down and the employee has been successful in obtaining new employment. In these circumstances I do not consider re-engagement or re-instatement to be viable options.

The employee was on a salary of €50,000. Her current role is not permanent. I have had regard to both the conduct of the employee to mitigate loss and to the conduct of the employer in causing the loss. Actual loss to date is greater than 12 months. I determine that having regard to all the circumstances in this case and to what I consider to be a just and equitable, I award 52 weeks’ pay and order the employer to pay the complainant €50,000 in addition to all payments that she has already received.

CA-00042520-006/008 Minimum Notice

The complaint is not well founded as the complainant did receive 1 months’ notice as per her contract prior to the termination of her contract,

CA-00042520-007 Minimum Notice

The complainant states that I did not receive all my rights during the period of notice. However, the complainant has not detailed what right she was not provided and has provided no evidence to support this claim. This complaint is not well founded.

Unfair Selection for Redundancy-Date of Termination