ADJ-00037742

Complainant

Respondent

Parties

Angela  Sheehan

Edril Limited

Representatives

John Mc Namara Solicitors

 Ciara Dowling Director

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-00049128-001

10/03/2022

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

CA-00049627-001

11/04/2022

The Complainant alleged she was unfairly selected for redundancy and was unfairly dismissed. The complainant also alleged she had not received written terms of employment.

The Complainant was employed from January 1st 2018 to February 18th 2022 as a Senior Customer Service member.

The Complainant gave evidence on affirmation and stated she felt the selection was unfair, that there was no consultation, that she heard the decision by phone and she had no information about the company finance situation. The Complainant advised she had no formal advance notice of the possibility of redundancy. The Complainant advised was not given the opportunity to set out her case for retention. The Complainant advised that the redundancy was a big surprise to her and that she had no performance issues.

The Complainant was asked by her Soliciior, Ms. Sinead Garry, had she any input to the decision and the Complainant stated no. The Complainant advised she had agreed to a 3 day week and was always flexible. The Complainant advised nothing was raised with her about her technical ability and she had always done what she was asked to do. The Complainant stated she searched for her contract of employment in her emails but could not find it and was unsure if she got it or not but did not recall signing it.

The Respondent Director, Ms. Ciara Dowling gave evidence that the business was an ecommerce business specialising in customised star maps. She advised they had over 25000 five-star reviews and that all customer interactions were through customer service. She advised the Complainant was a great Customer Service Agent and the company had no issue with her work and the redundancy was a market issue. She advised that business was down 64% at the time due to the Pandemic. The Directors decided to reduce hours of all staff by 15% in January 2020 and this was accepted by staff as a fair means to try keep all employed. She advised orders, during their peak trading period, were down 20% in Nov 21, 50% in December 2021 and 63% in January 2022. The Customer service team as a result were not busy and it was obvious to the team business was significantly down. The Directors had to make 50% of the customer service team redundant and reduced contact time from 7 to 5 days and cover per shift from 2 people to 1 person per shift.

The Director, Ciara Dowling, advised they used criteria to assess staff as to who to make redundant. There were two senior customer service staff with similar service. On assessing both senior staff the Respondent gave great weight to the high technical skills of the second senior customer service person. The Witness advised the second person was much more proficient technically and had set up automation systems to make the Customer Service team significantly more efficient. The Complainant was told of her redundancy by phone and had a lack of flexibility due to her hours and her own business. The Complainant was advised there was a big technical difference between her and the other senior customer service person. The Respondent advised they were not increasing the Customer Service pool this year.  Under cross examination by the Complainants Solicitor, Sinead Garry, the Respondent was asked had they submitted vouched accounts/order information and the Respondent agreed to supply these post hearing to the Adjudication Officer on a confidential basis. The Respondent advised that the downturn was most obvious in Nov/Dec/Jan 2021 as this should have been their busiest period and the decision to make the Complainant redundant was made on February 7th 2022. The Respondent was asked was she aware of her obligation to consult prior to a redundancy decision and the Respondent stated she was unaware of that requirement but that everyone expected the redundancies. The Respondent was asked had any warning been given to the Complainant and replied that the Complainant did not have an input into the decision. The Respondent was asked had they considered a part time role or an alternative role The Respondent advised there was no other way to reduce costs or hours without reducing headcount and they were overstaffed for many months. On cross examination, Ms. Dowling stated the Complainant never refused work but she did refuse some hours and there was consultation on hours as the Complainant had to work around her reflexology clients needs.  Ms. Dowling stated the Complainant wanted to work only Saturdays and Sundays as she had no reflexology clients those days. Ms. Dowling stated the contracted hours were between 7am and midnight 7 days a week. The Respondent had no issue that the Complainant would do her 40 hours work per week and she felt it was a shame she had to make the Complainant redundant. The Witness was asked was her knowledge of the Complainants outside business a factor in the redundancy decision and the Witness said no that the main driver was the need to reduce staff by 50%.

Ms. Elizabeth Dowling, Manager Customer Services also gave evidence on behalf of the Respondent under affirmation. She explained the decision-making process and that both the Complainant and the other staff member were the same level. She advised the other person had an edge in both technology and logistics experience and had streamlined the customer service platform. She advised the other person was more skilled and had better experience than the Complainant. She advised the business would have regressed to the way it was before if they lost the skills of the other person. She advised how the other person had used her skills to streamline the cancelled orders process to avoid customer issues and unnecessary printing of jobs. She advised how the other person had improved dealing with promotional events which generated thousands of replies from normal business thus enhancing efficiency. She advised the other person streamlined processes to make them more efficient and often did this in her own time.  She advised customer service staff were aware of the business volume reductions and sometimes were “scratching” for tickets to look busy. Under cross examination Ms. Elizabeth Dowling was asked did she discuss the redundancy with the Complainant prior to making her redundancy and the Witness replied “No” and the Witness confirmed she did not engage with the two people in the position prior to making the redundancy decision and communication. The Witness, in reply to Ms. Garry, accepted the Complainant was not aware of the financial position of the Company. The Witness also accepted there was no formal warning of a redundancy but that staff were aware things were bad as customer queries were down from a 1000 to a couple of hundred. When asked did the Complainant train in staff the Witness agreed she did. The Witness confirmed that there was no performance issues with the Complainant. The Witness was asked did she raise the issue of technical ability with the Complainant and the Witness replied that the customer platform was the others persons. She agreed they both did the same job and had the same title but added that the differencing factor was the other person looked after the customer service platform.

The Respondent submitted confidential accounts to the Adjudicator, post Hearing, showing they were operating at a loss for 2022 and that there was a significant downturn in business.

With regard to the complaint (CA-00049627-001) under the Terms of Employment (Information) Act 1994 the Respondent provided evidence of sending a contract of employment to the Complainant. The Complainant accepted at the Hearing she may have been supplied with a contract of employment by email at the commencement of employment but could not locate it and probably did not sign it. The Respondent provided email conformation from the Complainant dated January 28th 2018 where she acknowledged receipt of the contract but had issues with using a digital signature. The Complainants Representative withdrew the complaint post Hearing by letter dated November 18th 2022. Section 3 of the Act requires an employer to provide a written statement of terms and conditions within two months of commencing employment. I find that this requirement has been fulfilled and no breach of the Act occurred.

With regard to the Complaint under the Unfair Dismissals Acts the Law is as follows

“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:

(a) the capability, competence or qualifications of the employee for performing work of a kind which he was employed by the Employer to do.

(b) the conduct of the Employee

(c) the redundancy of the employee and

(d) the employee being unable to work or continue to work in a position which he held without contravention by him or by his employer of a duty or restriction imposed by or under any statute or instrument under statute.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved”.

The EAT also pointed out in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant in that case had an entitlement to have her “submissions listened to and evaluated”.

Finally, in dealing with the issue of “Procedural v Substantive Justice” in Redmond’s Dismissal Law in Ireland it notes “Procedural defects will not make a dismissal automatically unfair……An employer may be able to justify a procedural omission if it meets the onus of proving that, despite the omission, it acted reasonably in the circumstances in deciding to dismiss the employee”.

The Complainant was one of two Senior Customer Service staff. From the evidence of the Respondent witnesses it was clear the business needed to reduce staff during the pandemic due to significant loss of orders and they  analysed the respective merits of which of the two Senior Customer Service staff to retain. There was no inference whatever of poor performance by either and the Respondent had a difficult choice to make to select one of the two staff. Both staff had similar service.  It is obvious from the evidence that what swayed the decision is the technical capability of the other Senior member and her contribution to improving the technical customer service interactions of their business. An Adjudicators role is to examine in a redundancy situation if a person has been unfairly selected or that adequate evaluation criteria were not used. In this case I can find no grounds on both counts to suggest the Respondent used inadequate evaluation criteria to make the redundancy selection. Both employees had similar service, there were both performing well and the key distinguishing factor was the much greater technical skills and contribution of the other senior customer service person. Therefore, I can find no flaw in the Respondents method of assessing the two employees for selection for redundancy. The Act states the following;

7. Redress for unfair dismissal

(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 or the Labour Court], as the case may be, 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

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,

and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership.]

[(1A) In relation to a case falling within section 6(2)(ba) the reference in subsection (1)(c)(i) to 104 weeks has effect as if it were a reference to 260 weeks.]

(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,

(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, and

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

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

(a) under the [Social Welfare (Consolidation) Act 2005] 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.]

With regard to the Complainants lack of effort to apply for other jobs and mitigate her loss, in Sheehan v Continental Administration Co Ltd UD 858/1999 the Employment Appeals Tribunal found the onus of proof lay upon the Respondent to show that the Complainant did not act reasonably in all the circumstances. The Tribunal ruled that it was not reasonable for a Complainant to merely place oneself upon a list with various recruitment agencies. A more “pro-active” approach was required. The Tribunal continued:

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work… The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.” 

Similar views were expressed by the Labour Court in Smith v Leddy UDD 74/2019 where it was said that the Court expected to see “evidence that employees who are dismissed spend a significant portion of each normal working day, while they are out of work, engaged actively in the pursuit of alternative employment”.

Section 7 (2) C of the Act states an award must take into account “the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”.

The Respondent gave the Complainant no opportunity to present her case against her redundancy/dismissal and that is in conflict with the Decision in Gearon v Dunnes Stores Ltd, UD367/1988 that the Complainant been given an entitlement to have her” submissions listened to and evaluated”. However, two factors come into play here. Firstly, I doubt very much if the decision would have changed following the consultation but the key issue is the Complainant was denied that opportunity. Secondly, while the Complainant stated she was distressed by the decision there was involvement in her husbands business for a number of months after her termination and crucially she did not try to mitigate her loss at any stage by looking for another similar job to the one she held with the Respondent. No evidence was offered by the Complainant to support any action to comply with Section 7 (2) C above.

So, in summary the Respondent did have substantial grounds for the dismissal, they never gave the opportunity to the Complainant to put her position across prior to the decision being made and the Complainant did not try to mitigate her loss. The Complainant gave evidence of her loss amounting to approximately 18,000 Euros. I decide that the complaint for unfair dismissal succeeds on procedural grounds only for lack of consultation to give the Complainant the opportunity to out her case or to seek an alternative role in the company. This is a serious failure by the Respondent but as no effort to mitigate loss was made by the Complainant the compensation award has to significantly reflect this lack of effort to mitigate loss.  I find that 4000 Euros is the appropriate compensation taking all factors into account. The complaint for unfair dismissal succeeds on the above procedural basis.

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.  I find that the complaint is not well founded. (CA-0009627-001)

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. I find that the Complainant was unfairly dismissed and I award her 4000 Euros compensation.  (C-00049128-001)

Unfair Dismissal