ADJ-00031200

Complainant

Respondent

Parties

Mary  O'Gara

Flowers Made Easy Limited

Representatives

John Barry

Barry O’Mahony B.L., instructed by Paula Walshe ARAG Legal Protection Limited

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00041574-001

16/12/2020

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

CA-00041574-002

16/12/2020

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

CA-00041574-003

16/12/2020

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

CA-00041574-005

16/12/2020

The complainant submits she did not receive a statement of terms and conditions of employment, worked on a Sunday and was paid her normal rate of pay, when working on a public holiday was not paid double time or receive paid time off in lieu of the hours worked and she was unfairly dismissed.

Summary of Respondent’s Case: the respondent submits the complainant started work for the previous owners of the respondent’s business on 29 December 2016 and her employment was transferred to the respondent when they acquired the business in January 2020.

The complainant was dismissed by reason of redundancy on 19 November 2020. Prior to the redundancy the respondent faced a dramatic downturn in business generally and this was particularly acute in relation to weddings.

The complainant’s role was specific to this department and she was, in effect, a one-person wedding department, having sole responsibility for the wedding business of the respondent. Her role was office-based and she was assigned to attend all aspects of the wedding department. The respondent was monitoring the drop in wedding business even prior to the onset of the Covid-19 pandemic.

When the first lockdown was imposed in March 2020 the wedding business became unviable. Initially the respondent reacted by placing the complainant on lay-off. However, following a review of all aspects of the business it became clear that the wedding department would need to be shutdown completely. This resulted in the redundancy of the complainant’s position as she was the only employee engaged in this department. As there were no other employees the issue of selection did not arise. The complainant was informed of the situation in a meeting on 18 November 2020 and the decision was confirmed by letter dated 19 November 2020.

The respondent submits they did not advertise for wedding staff after the complainant’s redundancy.

Summary of Complainant’s Case:  the complainant submits she was employed by a company called Flowers Made Easy on 29 December 2016 as a florist, working three days a week totalling 24 hours per week. Her duties included; all aspects of floristry, helping and preparing for the peak periods, covering if any member of staff was out sick, setting up and teaching floristry classes, dealing with corporate clients, preparation and execution of many big events, working with couples who were getting married and organising their floral requirements. The company was taken over in January 2020. The complainant continued to carry out all the duties she had been doing with the previous employer.

Covid-19 began in March 2020 and on 27 March the first lockdown was announced. On 31 March the complainant got an email saying the respondent was going to re-open to do deliveries. The complainant and one other colleague were requested to return to work. But this was not to do weddings, as there were no weddings at the time. They did this work for five weeks and the Government were paying 80% of their wages under the TWSS scheme. The complainant continued to work. On 11 November 2020 there was a staff meeting at which staff were told the company was expecting a busy Christmas and staff were all asked to be available to work extra hours and on two weekends in the run up to Christmas eve. They were also informed extra staff were being recruited to help with the workload.

The complainant continued working as instructed by the CEO and had a number of jobs booked during November. On 16 November the complainant was asked by the CEO to go to his office. At the meeting she was told that on the advice of the accountant she was being put on the PUP, as she was being laid off with immediate effect and should leave the premises immediately. Redundancy was not mentioned. The accountant called to the complainant’s house the next day to see if she needed help to register online for the PUP scheme. On the same day the complainant sent an email to the CEO asking for a meeting to see what was going to happen to the work she had booked in and to discuss the way she had been treated.

On 18 November the complainant was asked to attend a meeting on the respondent’s premises. At the meeting the CEO sat in front of his computer and read a prepared script. During the meeting the complainant was made redundant and given her notice; her employment was terminated on 2 December 2020. Despite this the respondent continued to advertise for a florist on both LinkedIn and Facebook.

Findings and Conclusions: The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company, who say the dismissal was on the grounds of redundancy. Section 6 of the Unfair Dismissal Act, 1977 provides:

“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.

(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”

Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;

“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”

 In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated;

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. 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 section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a 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 evidence of the respondent is that their wedding work disappeared at the time of government-imposed lockdowns which came due to theCovid-19 pandemic. And, as the complainant was a one-person wedding department, which accounted for 95% of her work, they had no choice but to make her redundant. The complainant says she did a lot more than wedding work and, in evidence at the hearing, gave examples of this work. I note that when a small number of staff were asked to return to work in April 2020, the complainant was one of these, even though there was no wedding work. The respondent says this was because she lived near the respondent’s premises. When asked why he did not consider moving the complainant to another area of their business, given her broad experience, the CEO confirmed this was because she was paid more than the other florists. 

I acknowledge that at the time of the complainant’s dismissal the respondent had no wedding business and did not know when it would return. In considering the contradictory evidence of the CEO and the complainant I conclude that prior to the Covid pandemic the complainant spent the majority of her time looking after the wedding business. However, it is also clear she had help in preparing the flowers and that she carried out duties that were not wedding related. In the prevailing circumstances it made business sense in November 2020 to decide to put no resources into the wedding side of their business.

The decision for the respondent was how to structure their staff and they decided to make the complainant redundant. The reason given is that she was a one-person wedding department, who no longer had any work to do. However, as I have said she did other work and others carried out parts of the wedding work. The respondent gave evidence they did not consider any other restructuring options and did not consult the complainant. Given this and the evidence the complainant was paid more than the other florists I conclude the decision to make the complainant redundant was not for ”reasons not related to the employee concerned”.

Accordingly, I find redundancy, within the definition given in the Redundancy Payments Act, was not the primary reason for the complainant leaving the respondent’s employment and the dismissal was unfair.

Summary of Complainant’s Case: the complainant submits she was not issued with a statement of her terms and conditions of employment by her employer when she started in December 2016 and was not issued with her terms and conditions of employment by her new employer when they took over the company in January 2020. She asked the CEO for a contract of employment on a number of occasions but was not issued with this before she was dismissed.

Summary of Respondent’s Case: the respondent accepted the complainant was not issued with terms and conditions of employment. They submit the complainant was aware of her terms and conditions and suffered no prejudice.

Finding’s and Conclusions: I conclude the complainant did not receive terms of employment as required by the legislation. The respondent contended the complainant suffered no detriment as a result. However, she had no reference point when she was made redundant, and this was a detriment. I find this complaint is well founded.

Summary of Complainant’s Case: the complainant submits that from March to May 2020 she worked 2 or 3 Sundays at her basic hourly rate. Also, she worked one Bank Holiday in the same period and was paid at the same basic hourly rate.

Summary of Respondent’s Case: the respondent submits these claims were referred to the WRC on 16 December 2020 and none of the Sundays or Bank Holidays were in the reference period, of six months from the date of the complaints being made.

Finding’s and Conclusions: in accordance with Section 41(6) of the Workplace Relations Act 2015, I have jurisdiction to investigate any complaint under the Organisation of Working Time Act 1997 for a period of six months from the date of the referral of complaint. This complaint was submitted to the Workplace Relations Commission on 16 December 2020 and therefore the period to be taken into account when investigating this complaint is the six-month period back to 17 June 2020. The complainant’s evidence at the hearing was the alleged infringements took place before this. I therefore conclude these complaints are out of time and, therefore, not well founded

CA-00041574-003: Unfair Dismissal: for the reasons given above I find this complaint is well founded and the complainant was unfairly dismissed. In mitigation the complainant gave evidence she had contacted those she knew in the floristry industry but had found no paid employment since being dismissed. In cross examination she confirmed she had given up looking for work in April 2022 when she qualified for a state pension. Given all the circumstances, and taking account of the redundancy payment, I award the complainant six months’ salary; €12,168

CA-00041574-001: Terms and Conditions of Employment: for the reasons given above I find this complaint is well founded and I award redress of four week’s pay; €1,872.

CA-00041574-002 & CA-00041574-005: Organisation of Working Time Act: for the reasons given above I find this complaint is not well founded.

Unfairly dismissed – redundancy – not impersonal