Complainant

Respondent

Parties

Suzanne  Dunne

Matrix Recruitment Group

Representatives

Rory Kennedy B.L., instructed by   Powderly Solicitors

Fiona Egan Peninsula Group Limited

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-00043366-001

01/04/2021

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 a witness for the respondent gave their evidence under affirmation while another witness for the respondent gave evidence under oath.  Witnesses were cross examined by the other party to the proceedings.

The hearing was held in tandem with ADJ 29110 a complaint from the same complaint against the same respondent that she was discriminated against under the Employment Equality Acts.  That complaint was lodged on 16 July 2020.

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

The respondent submitted that the complainant was dismissed by reason of redundancy.  The complainant was employed by the respondent as Branch Manager from 10 February 2007 until 14 October 2020.  The respondent submitted that it is an Irish owned regional recruitment company with four offices nationwide in Carlow, Waterford, Dublin and Athlone.

Although the complainant submitted that she was unfairly dismissed when she was unfairly selected for redundancy, the respondent denies the claim in its entirety and submits that she was made redundant on 2 September 2020 and given six weeks’ notice. This was done only after the respondent had exhausted all other options and offered the complainant what it deemed to be a suitable alternative position within the business a position she declined to accept.

The respondent submitted that the complainant had a history of troubled dealings with her colleagues which resulted in her indicating that from in or around September 2019, she did not wish to attend Management meetings as she found it difficult to accept that Financial Controller would also be attending such meetings.

The respondent submitted that the complainant applied for and took Parental leave from 15 November 2019 until 9 March 2020.  The respondent also submitted that prior to the Claimant going on Parental leave the Managing Director (MD) spoke to her and advised that there would be change for the business in the year ahead. He did not know how that would affect the complainant but just wanted to let her know that the organisation structure was subject to continuous review.  The respondent submitted that the complainant subsequently submitted a sick cert for a further period of two weeks meaning she was due back to work on 23 March 2020.

The respondent submitted that in February 2020 the external HR consultant and discussed a number of organisational structures and structural changes which were focused on positioning the business for potential buy out/early retirement of the MD in the next 1-2 years.

The respondent submitted that on 18 of March 2020, the Respondents business was severely affected by due to Covid 19 and the complainant in addition to other members of staff were being temporarily laid off.

The Respondent continued to communicate with the complainant in relation to the position it found itself in as a result of Covid and the implication for the business in general. On 13 May 2020 having endured an extremely tough previous 18 months which was exacerbated by Covid 19 the respondent advised the complainant that her previous role would no longer exist due to the massive downturn in business as a result of the pandemic and the structural changes that were required for the business to survive.

The respondent submitted that on same date it offered what they believed to be a suitable alternative Senior position within the company, the position being Recruitment Specialist Manager Accountancy & Supply Chain role.  The respondent submitted that a few days later the complainant emailed the MD to refuse the job offer and raised the issue of a redundancy package herself.

The respondent submitted that between May and the end of August 2020 the complainant and the MD were in continuous correspondence in relation to the new role and the complainants return to work.  The respondent noted that at one point it was pointed out the complainant that “there are still so many options to be considered over the period”.  The respondent submitted that regrettably the complainant declined to accept anything other than her original role for which she was engaged prior to her return to work.

The respondent submitted that the complainant was also not the only member who was made redundant as a result of the structural change that was taking place. It was further submitted that once all other possible options were explored and the complainant indicated her final refusal to accept the alternative role there was no other option but to proceed with redundancy.

The respondent submitted that the MD personally met with the complainant in Kilkenny and notified her that her previous role was being made redundant and she was given 6 weeks’ notice. The complainant appealed the decision to make her role redundant and an appeal hearing took place chaired by an external HR Consultant on 25 September 2020.

The respondent submitted that an outcome letter dated 13 October 2020 was issued to the complainant after a thorough investigation and went through in detail the four grounds of appeal raised by her.  All four grounds were found not to be upheld and statutory redundancy of €16922 was paid to the complainant on 16 October 2020.

The complainant submitted that the redundancy was not a genuine redundancy but was linked to a issue of a personal nature.  The complainant submitted that nothing has been submitted regarding the financial situation of the respondent and accordingly we are being asked to infer a redundancy situation existed in the absence of financial proof.

The complainant submitted that there was a conflict between senior managers, which was clearly demonstrated by her choosing not to attend management meetings.  The complainant submitted that she was the highest earner, and a company only gets rid of its highest earner where there is a personal conflict. 

The complainant submitted that it was not disputed that she would lose her place at the management meeting in the role that was offered to her and that this clearly showed that the position offered to her was a demotion.

 The complainant submitted that there was no genuine consultation period during the redundancy process and that she was given an ultimation to either sign up for the new role or be gone.  She submitted that this was new position was considered to be a ’fait accompli’ and that amounted to a diminution of both her position and her earnings.

The complainant submitted that she doesn’t know why the MD got rid of her as he doesn’t seem to have any issue with her.  The complainant submitted that she was one of the longest serving staff members and was the highest earner and that form an impersonal perspective, the selection for redundancy doesn’t make sense.

The complainant submitted that procedure has to be followed in a fair and reasonable manner and the respondent did not do so, only one other person was made redundant.

The complainant is seeking reinstatement.

Section 6(4)(c) of the Unfair Dismissals Acts 1977, states that

(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,

The respondent submitted that a genuine redundancy situation arose and that despite its best efforts the complainant did not accept the equivalent role that she was offered.  The complainant disputes this contention.  The consideration of these matters comes down to two central issues – was the redundancy genuine and thereafter was the alternative offer a suitable alternative employment for the complainant.

In terms of the genuineness of the redundancy situation, it is important to consider the evidence of the witnesses, the complainant herself on one hand and the MD and the HR consultant, who was the appeal officer in relation to this matter, on the other.  I found each of the witnesses to be credible and truthful but on balance I preferred the account of the managing director, whose evidence was given with more detail and what appeared to be better recall of the events that transpired prior to the complainant going on leave. 

While most of the events that transpired prior to the complainant going on parental leave are not relevant to these proceedings, one or two facts are relevant.  The complainant indicated that she did not wish to attend management meetings in the presence of a colleague and stayed away from such occasions.  I deem this to be relevant in that the alternative position offered to the complainant would not have required the complainant to attend any further management meetings.  This seems to be a recognition of the reality of what was happening on the ground.  As to the second event that transpired, the MD stated that he did inform the complainant about the possible reorganisation of the company prior to her taking parental leave, the complainant was not able to recollect whether this happened or not.  On balance, I prefer the respondent witness testimony due to the detail that he gave of the conversation and of the surroundings that it took place in.

Notwithstanding the testimony of the witnesses, the fact is that the Covid Pandemic was declared in or around this time and the great lockdown was introduced in Ireland during March 2020.  As shown by the governmental response at the time this had a big impact on businesses throughout Ireland and globally.  In addition, the time period was one of great uncertainty for business. 

Section 7(2) of the Redundancy Payments Act, 1967 outlines that

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,

Having regard to Section 7(2) of the Act, I am satisfied that the respondent has demonstrated that a redundancy situation existed.  Having regard to the alternative position that was offered to the complainant, I note that the terms and conditions afforded to the complainant would have been the same and accordingly, I consider that the position was at an equivalent level to the position that the complainant was undertaking having regard to all the circumstances of her employment.  I note that the respondent carried out all the appropriate steps when considering the redundancy situation that existed.  Accordingly, I find that the complainant was not unfairly dismissed.

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

Unfair dismissal – genuine redundancy established – alternative employment offered – no unfair dismissal.