Complainant

Respondent

Parties

Linda  Galvin

Shoes For Crews Europe Ltd

Representatives

Andrew Cody Reidy Stafford Solicitors

Sarah Daly B.L. instructed by Ronan Daly Jermyn Solicitors

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-00040249-001

05/10/2020

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and three witnesses for the respondent all gave their evidence under affirmation and the parties were enabled to cross examine the witnesses for the other party.

The finalisation of this decision was delayed due to the impact of Covid 19

The respondent denied that the complainant was unfairly dismissed but submitted that her employment was terminated by reason of redundancy due the impact of Covid 19 on the respondent’s business.  The respondent submitted that the result of this downturn resulted in a restructuring of its business in Q3 of 2020, with a resulting reduction in headcount.

The respondent submitted that the complainant was not the only redundancy in its organisation.

The respondent submitted that the dismissal of the complainant was therefore fair and lawful in accordance with section 6(4)(c) of the Unfair Dismissals Act 1977, as amended.

The respondent submitted that the complainant commenced employment in April 2013 and, at the date of her redundancy, held the position of Design Manager, a stand-alone role in the Respondent. The Complainant’s gross salary was €43,000 gross per annum.

The respondent submitted that its business was significantly adversely impacted by the Covid 19 crisis. Revenue was impacted by over 50% in the first four months of the pandemic in 2020. In June 2020, the Respondent’s business ended 35% behind June 2019, with order numbers down 44% as against February 2020 orders. The Respondent availed of the temporary wage subsidy scheme (“TWSS”) put in place in response to the Covid 19 crisis.

It became clear to the Respondent in June 2020 that it was unlikely that the business would return to its previous rate and that 2020 / 2021 would be challenging. On this basis it concluded that it had to take some difficult decisions around restructuring the business through Q3 2020 and reorganising some roles in the business.

The respondent submitted that the leadership team was restructured first with a role on the leadership team being made redundant. It was determined a smaller workforce going forward would be needed.

The respondent submitted that it looked at a number of functions, teams, and roles, and it was determined that an at-risk consultation process would be entered into with potentially impacted teams and individuals.

The respondent submitted that consultations took place with effected staff and the respondent met with the complainant on two occasions.  The complainant has some queries on the basis of the ‘at risk’ notification and these were answered during a series of meetings in July 2020.  During the course of these meetings the complainant made a number of proposals, but these did not reach the level savings required to remove the need for redundancy.  The complainant suggested an alternative role, but it was decided that these did not suit the complaint as there were in the marketing area rather than the design area where she worked.

The respondent confirmed that full consideration had been given to every way to avoid a redundancy situation but that there was no way of doing so in the circumstances where there was a hiring freeze and no suitable open roles for the complainant’s skills and experience. She was advised that the decision had been made to make her role redundant. She was further advised that she would receive pay in lieu of notice, the balance of untaken holidays and that the respondent would continue to provide health cover to her until the end of the calendar year.

She was also advised that she could appeal the decision to make her redundant and did so within the five-day timeframe.  The appeal took place but affirmed the original decision to make her redundant.

The respondent submitted that the complainant has not made reasonable efforts to mitigate her loss and noted that she should have applied to a far greater range of roles than simply design roles.

The complainant submitted that the redundancy was not a genuine redundancy as proper costing were not done, had they been done the redundancy would not have been upheld.  The complainant submitted that there was a fake situation created and that the whole situation was scripted in advance.

The complainant submitted that she was the only graphic designer and produced a special catalogue about 8 times a year (although only 3 – 4 times a year recently).  She submitted that this was a highly skilled job and that she was an integral part of the marketing department.  The department consisted of six people in total.

The complainant submitted that from the time the marketing controller was appointed she found little support from him.  She noted that he was somewhat crude and was not willing to do a lot of the work that had been previously done by his predecessor.  She submitted that she had brought her concerns to the attention of the Managing Director who raised the issues with the marketing controller.

The complainant submitted that thereafter she found it difficult to deal with the marketing controller and that he was engaged in her appraisal the following year.  She submitted that the company introduced monitoring software on her computer and that this showed that she was ‘flat out’ busy.

The complaiant submitted that over the 2019 period there was some correspondence between her and the US based managers.  She also submitted that she had found notes that the marketing controller had prepared ahead of telephone meetings.  These notes were left on the floor of a shared office.

The complainant submitted that she was informed that her position was ‘at risk’ and that her position was a standalone one.  However, she submitted that her position was within the marketing department.  She submitted that she could have easily been cross trained to do some of the other work of the marketing department and that it was disingenuous to classify her role as standalone.

The complainant submitted that no meaningful consultation took place in that the interaction was scripted.  She also submitted that the appeal procedure was simply a rubber-stamping exercise as it appears that the respondent received legal advice from their solicitors on the format of the result of the outcome letters prior to their issue.

The complainant submitted that if the same solicitor advises the company on making prep notes and advises on outcome letters, that clearly the appeal was pre-determined.  It was also noted that the appeals officer sent a copy of her appeal letter to the original decision maker for comments before she finalised the letter.  His comments were returned to the appeals officer before she finalised the correspondence to the complainant.

The complainant submitted that she was made redundant personally rather than her role.  She submitted that it was apparent that the decision was made to streamline the business earlier in the year and that this was never communicated to the complainant.  She also noted that the company was in receipt of the Temporary Wage Subsidy Scheme and that it received this assistance in both 2020 and 2021. 

The complainant submitted that the employment figures for the end of 2020 do not bear out the respondent’s contention that it had made a number of redundancies during the year, rather it indicated that it had made two redundancies rather than the six that the respondent had indicated.

The complainant submitted that when the costing of her position was looked at, it was apparent that she did not cost the company a great deal of money.  It was submitted that the Unfair Dismissals Act provides that an employer’s conduct be reasonable and that as regards cost, letting the complainant go was not reasonable in the circumstances.  Outsourcing even a small part of her workload would have cost more than retaining her.

The complainant outlined her efforts to mitigate her loss in her submission.

The complainant submitted that there was a sham redundancy.  However, I note that the complainant conceded that her role had diminished somewhat over the last number of years in that she was no longer producing the same number of catalogues.  The General manager gave evidence that there was a shift in the type of marketing it was undertaking, moving more toward digital content rather than posters, etc.  He also indicated that they ere moving towards outsourcing what design elements they needed and had done so when the complainant was absent.

The General Manager also outlined the uncertainty that existed at the time, noting that for example they didn’t know how long their customer base would remain open or closed, etc.

The General Manager also noted that the Marketing Controller was not part of the process, and that no grievance was ever raised in relation to the performance appraisal.  Under cross examination he noted that it was decided that the design elements could be outsourced and that there was very little new design required. It was put to him that the complainant had done some 300+ posters in the space of 5 months.

The issue of another colleague being brought into the marketing department was raised but the General Manager noted that this staff member had language skills (Italian) which were required for the job filled.  It was put to him by the complainant’s representative that she had e-commerce knowledge that would have been useful in the restructuring process but he replied that this was not revealed by the complainant.

The complainant suggested that the respondent did not seek to find out her skills to see where she might fit into the company as it evolved.  She also suggested that she could have retrained to undertake other roles.  I note that she never mentioned this during the consultation phase of the redundancy.  She also noted that she had e-commerce skills that would have been useful to the company but does not seem to have ever brought these skills to the notice of the company.

The complainant suggested that the appeals officer consulted the original decision maker and that this undermined the independent nature of the appeal process.  The appeals officer explained her contacts with each member of staff in her evidence, giving some detail as to the rationale of contacting each individual during the appeal process.  She outlined that her contacts with the original decision maker was to ensure that she had the record straight.

The process of consultation prior to the redundancy took a number of weeks and it appears that there were aa number of communications in both directions.  Although the complainant raised a number of possibilities that could have been pursued during this phase, she does not appear to have raised those possibilities at the time of the consultation (e.g., e-commerce training and experience, or the possibility to retrain).

I note that  the respondent outlined the standalone nature of the complainant’s position and the falling need for a dedicated design person.

Having regard to all the steps that the respondent took and the opportunities it gave the complainant to contribute towards the process, I am satisfied that the steps toward the decision to make the complainant redundant were reasonable in all the circumstances. 

Having regard to all the written and oral submissions of the parties, I find that the complaint was not unfairly dismissed.

Having regard to all the written and oral submissions in relation to this matter, my decision is that the complaint was not unfairly dismissed.

Unfair dismissal – consultation stage – appeal stage – no unfair dismissal.