Complainant

Respondent

Parties

Nessa  Coffey

Kentz Management Ltd

Representatives

  Self-represented

 Eversheds Sutherland

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00040679-001

29/10/2020

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

CA-00040679-002

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00040679-003

29/10/2020

The Complainant was employed as a FP&A Manager from December 1st 2008 to April 4th 2020 when she was made redundant due to a reduction in business and made a complaint under the Act that other employees had received an additional ex gratia payment when made redundant and she did not receive an ex gratia redundancy payment.

The Complainant alleged she was unfairly dismissed as the Respondent had not conducted appropriate due diligence on the amount of staff that would be required in the finance department after the redundancies were implemented and her opportunity to remain in employment were affected accordingly.

In the Redundancy complaint the Complainant, in evidence, alleged that other employees had received an ex-gratia redundancy payment when terminated and she was seeking the payment of same.

In the Unfair Dismissal complaint, the Complainant, in evidence, stated she did not apply for the full time or part time role as part of the role belonged to another employee and that she did not want to interfere with that employees future and that is why she did not apply for the full time role. The Complainant stated she could not afford to work part time on half wages. The Complainant made a very genuine statement that it was hard for her to apply for any post due to the small nature of the financial team and the consequences for others if she was successful. The Complainant stated that from the time of the at risk notice in January she was very busy and the final notice came out of the blue.

The Complainants main case was that no proper due diligence was completed prior to letting the staff go and that ultimately one and a half roles remained.

Ms Mole was cross examined by the Complainant and confirmed that the Complainants role was not rehired. She advised that there was no premediated plan to make any particular employee redundant and the Respondent was open to job sharing. She confirmed the Complainant did not apply for any position.  In response to the Respondents Representative Ms. Mole confirmed she had been involved in the redundancy consultation process and attended the meetings. She was asked had the Complainant ever raised an issue in the process regarding procedure or if her role was not to be made redundant and advised no.

She advised that 2 staff were appointed to remain, one full time and one part time.

Ms. Linda Cole gave evidence on oath on behalf of the Respondent.

The Respondent denied any employee had received an ex gratia redundancy payment since 2017 and that stated that the Respondent had fulfilled its obligations under the Act and submitted that the Adjudicator therefore had no jurisdiction to enquire any further into the complaint.

Ms. Mole, in evidence, stated that the organisation had made about 1200 positions redundant worldwide and about 20 of those were in Ireland. She stated the Complainant was an Employee Representative and had engaged in the redundancy consultation process in Ireland. She stated the Complainant received all statutory redundancy due, holiday pay, notice pay etc. She stated that since 2017 the Respondent had not paid ex gratia payments in Ireland as a policy and business decision. She stated that it was Covid that impacted the Complainants future opportunity to get employment due to the timing of the redundancy. She stated there were 3 members of the Finance team to be made redundant and only one role was viable to remain in either a full time role or job shared role to give the selected employees the opportunity to remain in employment. She stated the post(s) were advertised and the Complainant did not apply for either a full time or job share post. The Witness outlined the consultation and communication process over a few months with employees on the proposed redundancies and that the reduction was due to business issues and nothing personal as the Complainant had been a very capable and valued member of staff. She advised that the affected employees were given an at risk letter in January 2020 and the redundancy took effect at the end of April, with the Complainant having negotiated that notice pay would be paid on termination. She stated there was a final consultation with the Complainant in April and no issues were raised. She stated the Complainants employment ended as a result of redundancy and she was not dismissed.

Redundancy Payments complaints

The Payment of a statutory lump sum redundancy payment by an employer is governed by Section 19 (1)of the Redundancy Payments Acts and under schedule 3 entitles a redundant employee to two weeks pay per year of service (or part thereof) plus a week (subject to a maximum of 600 Euros per week).

“19.—(1) Upon the dismissal by reason of redundancy of an employee who is entitled under this Part to redundancy payment, F47[or where by virtue of section 12 an employee becomes entitled to redundancy payment], his employer shall pay to him an amount which is referred to in this Act as the lump sum.

(2) Schedule 3 shall apply in relation to the lump sum.

(3) The Minister may by order amend Schedule 3.”

The Complainant confirmed in evidence that he had received this entitlement and therefore the Adjudicator has no further jurisdiction on the complaint.

Unfair Dismissal complaint

In evidence Linda Mole for the Respondent stated that the Complainant was a capable employee and they had no issue with her performance and under evidence stated they had no premeditated plan to have any employee remain or leave their positions were open to all staff to apply.

The Complainant advised in evidence that she did not apply for to remain in the workforce on the basis that the part time role would not give her sufficient income and that she felt if she applied for the full time role this may compromise another fellow employees chances of being retained. This was admirable of the Complainant but she had the possible opportunity to remain in employment and decided not to do so. She raised no issues prior to her termination regarding future roles or number of staff. There was no premeditation on behalf of the Respondent to terminate the Complainants employment. With regard to the Respondent retaining one and a half employees instead of one some employers can seek to reduce staff and find they just can’t cope with the workload afterwards and need to adapt their plans.

On overall examination of the case the Complainants role was made redundant, she did not seek to be retained when notified of the redundancy, sought an ex-gratia payment which she was denied and the Unfair Dismissal complaint has an element of being a “smokescreen” of getting an ex gratia payment by another means. Nothing in the Respondents submission or evidence shows a poor process or intent to terminate the Complainant specifically.  If the Complainant had applied for any of the posts advertised she would have been in the “mix” for whatever transpired from that process. There was no evidence of “bad faith” attributed to the Respondent or found in examination of the evidence, a key element if the Complainant were to succeed in her complaint.

The Law;

Overall, I conclude that the Complainant was dismissed mainly on  genuine grounds of redundancy and in accordance with Section 6.4.c  I deem the Complainant was not unfairly dismissed.

Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act. I disallow both appeals. CA-00040679-001 and CA-00040679-003.

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 the Complainant was not unfairly dismissed and her employment was terminated due to redundancy. CA-00040679-002

Unfair Dismissal