Complainant

Respondent

Parties

Pavel  Simik

Sinead O'Brien T/A Shinelle Hair & Beauty

Representatives

  Self-Represented

John Forde Human Resources

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-00034909-001

27/02/2020

The complainant maintains that he was unfairly dismissed contrary to the provisions of the Unfair Dismissals Acts, 1977-2015, on the 26 February 2020 due to the absence of a fair selection process for redundancy.

He commenced employment with the respondent as a hair stylist on 24 March 2014. He worked 23.5 hours a week. He earned €258 gross per week.

His employment ended on the 4 March 2020.

He submitted his complaint to the WRC on 27 February 2020.

The respondent’s representative’s written submission asked that the complaint should be dismissed on a preliminary point.

The Complaint form CA – 00034909 submitted by the complainant was received by the WRC on 27/02/2020 at 19:55 which was 6 days prior to the termination of his employment which occurred on the 04/03/2020. On that basis an Adjudication Officer may not entertain the complaint/dispute. In his own submission to the WRC the complainant confirms that the date of notice received was 26/02/2020.

Section 8 (2) of the Act of 1977 provides that an

“An Adjudication Officer may not entertain a complaint/dispute under Section 8 of the Unfair

Dismissals Act, 1977 if it has been presented after the expiration of the period of 6 months beginning

on the date of the contravention to which the complaint relates.”

The respondent’s representative requested that the complaint be dismissed

The complainant maintains that he was dismissed on the 26 February 2020.

He was notified of his selection for redundancy on that date.

The submission of a complaint prior to the “date of dismissal” was considered by the High Court in Brady v Employment Appeals Tribunal (2014) IEHC 302. That claimant, notified of his impending dismissal due to redundancy, submitted his complaint to the EAT before his two weeks’ notice period had expired. The employer argued that the dismissal did not take effect on December 16, 2011(the date of submission of the complaint), as the two-week redundancy period had yet to expire, and that the claim had been lodged outside the six-month time limit. This argument, accepted in the EAT, was not accepted on appeal to the High Court and the claimant succeeded in his quest to have his complaint declared admissible.

I am guided by this decision and find the that I do have jurisdiction to hear this complaint in circumstances where the complainant’s notice had not yet expired.

Witness 1. The complainant gave evidence under affirmation.

The complainant maintains that he was unfairly selected for redundancy.

He confirmed that his employment ended on 4 March 2020.

The complainant was with a client on the 26 February when the respondent owner asked him to go to the staff room. The respondent, accompanied by another person unknown to the complainant named Anne, advised him that she was making him redundant. She gave him one weeks’ notice. She advised him that as he had not reached 2 years’ service, he was ineligible for redundancy payments. The complainant stated that there were 3 stylists employed in the salon and no explanation was offered to him as to why he was selected for redundancy.  He was booked out every day with clients and did not notice a fall-off in clients before Jan- February 2020- a traditionally quiet period in the hairdressing industry.

Cross examination by the respondent’s representative.

Mr Forde put it to the complainant that as he had submitted his complaint prior to the expiration of his notice on 4 March, he could not claim that he was unfairly dismissed on the 26 February. The complainant replied that he had submitted his complaint one day after notification of redundancy.

The complainant did not contest that his weekly hours were 23.5.

The complainant

He confirmed that to his knowledge neither he nor another colleague who resigned later were replaced.

He was not aware of the restructuring until June 2020 or that the respondent was now working on her own. He confirmed that he did not exercise a right of appeal.

Remedy.

The complainant is seeking compensation.

Mitigation.

The complainant took up employment on 29 June 2020. He earns €300 a week.

The respondent’s representative read the written submission into the record.

In February 2020 it became clear that the business could not support more than two stylists. As the junior and last person to be employed by Shinelle Hair & Beauty, Mr Simik was informed on the 26th of February 2020 that due to re-organisation and restructuring of the business brought about by the reduced workload, that a decision was reached to reduce the number of hair stylists.

After fair selection and seniority (employee 1 had over 18 years of service) the position Mr Simik held was to be made redundant and he was issued with notice that his employment was being terminated due to redundancy. Subsequently, the business closed on the 16th of March 2020 in compliance with the direction issued as the result of the COVID-19 Pandemic.

The termination of Mr Simik’s employment was in adherence with the terms of the Minimum Notice and Terms of Employment Act, the Redundancy Payments Act and the Unfair Dismissals Act and the company maintains that the dismissal was not unfair.

I am required to establish if the complainant was unfairly dismissed.

Relevant law.

Section 6 of the Unfair Dismissals Acts, 1977-2015 states

 – (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 “

Section 6 (4)(c) of the Acts identifies redundancy as a defence to a complaint of unfair dismissal.

However, Section 6(3) of the  Acts qualifies this defence and states

“(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) N/A

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

Section 6(6) imposes the burden of proof on the employer to show that the dismissal was fair. Where a complainant alleges that they have been unfairly selected for redundancy and therefore unfairly dismissed, the onus of proving fair selection and therefore a fair dismissal lies with the respondent.

Furthermore, the Acts at section 6.7 provide

” 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……

Application of the above statutory provisions to the circumstances of this complaint.

In circumstances where the onus of proving fair selection and therefore a fair dismissal lies with the respondent, and though in receipt of professional advice, the respondent chose not to attend the hearing to set out the financial details which compelled the salon to reduce its workforce from three to two prior to the arrival of Covid -19, how the redundancy was implemented or to refute the evidence of the complainant. The respondent delegated the defence of the complaint to a HR consultancy who did not witness the events of 26 February.

The respondent was not there to refute the complainant’s evidence that he was booked out every day and that except for the January – February period, the post-Christmas period, he had not noticed any fall- off in business. In cross examination the complainant accepted that he was not replaced.  He accepted that the colleague who resigned subsequent to his redundancy was not replaced. He accepted that from June 2020 the respondent decided to operate the business on her own.

The respondent’s representative states in their submission dated 4/4/2022 that the respondent relied on seniority to determine who would be spared redundancy. They chose a stylist with 18 years’ service. This occurred on 26 February before the government-imposed lockdown in March 2020.

Even where the evidence is indicative of a redundancy, the employer is not relieved of the obligation to employ fair procedures or explore alternatives to redundancy. Section 6.7 of the Acts permits the adjudicator to consider the reasonableness of the respondent’s conduct.  An examination of the respondent’s conduct reveals the following:

there was no consultation process;

the complainant received no notification that his position was at risk;

no discussion took place with the complainant as to the criteria to be used in advance of the notification to make him redundant;

the complainant was summoned to attend a meeting without being afforded the opportunity to source a person to represent him;

the complainant was told that his redundancy was due to the respondent’s decision to reorganise and restructure the business. He was told this at the meeting on the 26 and in an undated letter which followed on after the meeting;

there was no consideration at that meeting or later to any alternatives to redundancy such as reduced hours or lay off.

The respondent’s written submission refers to seniority, but the respondent was not present to expand on this contradiction.

The respondent did not provide evidence in relation to any redundancy procedures.

 Requirement for consultation I selection of employees for redundancy.

In Mulligan –v- J2 Global (Ireland) Ltd (UD/993/2009), the tribunal stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”

Based on the evidence, I find that the respondent has failed to discharge the onus of proving that the selection process was fair.

As the process through which the complainant had been selected for redundancy had been fundamentally unfair, I find the claim of unfair dismissal to be well-founded,

Loss.

The complainant was unemployed 4 March to 29 June 2020. He incurred a loss of €4128 (€258 x 16). Hair salons were closed from March

I require the respondent to pay the complainant the sum of €2750, a sum which I believe to be just and equitable in all of the circumstances.

I find this complaint to be well founded. I require the respondent to pay the sum of €2750 to the complainant.

Absence of fair procedures in selection for redundancy.