FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: MATRIX RECRUITMENT GROUP LIMITED (REPRESENTED BY PENINSULA GROUP LIMITED) - AND - SUZANNE DUNNE (REPRESENTED BY RORY KENNEDY BL., INSTRUCTED BY POWDERLY SOLICITORS) DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(S) ADJ-00032666 CA-00043366-001 DETERMINATION: This matter before the Court is an appeal by Suzanne Dunne (“the Complainant”) of a decision of an Adjudication Officer (Adj-00032666 CA-00043366-001, dated 27 October 2022) in a complaint made by her against her former employer Matrix Recruitment Group (“the Respondent”) under the Unfair Dismissals Acts 1977 to 2015. The Adjudication Officer held that Ms Dunne was not unfairly dismissed. A Labour Court hearing was held in Waterford on 14 June 2023. Background The Complainant was employed as a Branch Manager in the Carlow office of the Respondent company from 10 February 2007 until her employment was terminated by reason of redundancy on 14 October 2020. The Complainant was paid a statutory redundancy payment. TheRespondent submits that the Complainant’s employment was terminated wholly or substantially due to the redundancy of the role of Branch Manager in Carlow, and that the offer of alternative work on the same set of terms and conditions was a reasonable offer.TheRespondent rejects any assertion that the decision to make the role redundant was related to workplace issues with a colleague or was based on the Complainant’s decision to take parental leave in 2019. Witness Evidence The Court heard evidence from the Complainant and from three witnesses on behalf of the Respondent. Testimony of Kieran McKeown – Managing Director Cross examination On the Complainant’s return from parental leave in March 2020, she was put on furlough as that is what was agreed between them. No other members of management were placed on furlough. Mr McKeown acknowledged that the Complainant was one of the highest revenue earners. He said that there was an ongoing downturn in business to the Carlow branch. The decision to make the branch manager role redundant was based on the lack of incoming volumes, not revenue generated to date. He saw the creation of a new business development role as a way of keeping the Complainant in employment. The branch manager post rather than the person was made redundant. The job description for the new role was not finalised until March 2020. The Complainant did not provide input into the review process but was kept up to date. He was in continuous engagement with the Complainant from May to August by email or telephone, and he addressed the concerns raised by her verbally. He hoped that she would change her mind. The working hours for the role were reduced from 30 to 18 hours a week, as others were working 18 hours at that time. He told the Complainant that her hours would increase to 30 hours per week, and the intention always was that the role would be 30 hours per work. The Complainant appealed the decision to terminate her employment, and that appeal was conducted by an independent person from Simplify HR. Testimony of Ms Nichola Aylward Ms Aylward is the Financial Controller with the Respondent company and gave evidence about what happened to other employees during Covid. Ms Aylward said that the business was severely impacted with no products to sell. There were no government supports initially. Everyone had to work from home, except payroll. There were 24 employees employed in the company at the time. Five employees were placed on furlough. One employee was on maternity leave. Ms Aylward, the managing director, and the Athlone branch manager worked full-time hours. All others received a government subsidy and a 50% top up payment. Testimony of Ms Helen Barry Ms Barry is the Managing Director of Simplify HR and was engaged by the Respondent in April 2019 to assist with developing a strategic business plan and to provide HR support. Ms Barry said that she reviewed roles and responsibilities and with the managing director and looked at a strategic role for recruitment focused on regions, not branches. The managing director was concerned with succession planning and envisaged a management buyout. She met with senior leaders including the Complainant in May and June 2019 to talk about the strategy. The Complainant raised a number of workplace issues when she met with her in June 2019. Following that meeting she sent the Complainant copies of the grievance and dignity at work policy, and identified a person to hear the workplace issue, however, the Complainant decided not to proceed with that matter as it was a small company. The matter of severance was also raised at the meeting in June 2019. She spoke with the managing director about that matter, but it was not progressed. Testimony of Ms Suzanne Dunne - the Complainant The Complainant was employed as a Branch Manager in Carlow since February 2007 and was successful in that role. She was happy managing staff and producing revenue. Over 14 years she was involved in reviews of organisational strategy and there was never any discussion about the branch manager role being dissolved. The branch manager role was the pillar of the company. The Complainant had a conflict with a colleague which she brought to the attention of the managing director on several occasions. She looked at several ways of resolving the conflict and severance was discussed as one option. She could not recall who instigated the conversation about severance. She was happy when mediation was suggested, but the other party declined mediation. She never refused to attend management meetings, with the exception of one meeting which was a wellness day. She decided to take parental leave in November 2019. Her return to work coincided with Covid and the managing director asked her to extend her parental leave. It was not viable for her to do so economically, and she was laid off until September 2020. She was offered an alternative role in May 2020 and had discussions about that via email. She was expected to focus on senior roles only, and on a whole new area. It was a difficult market with a difficult client group in a challenging time. The working hours were Monday to Thursday to 1.30pm. She felt she was better served looking at areas that she understood well. She was the top revenue earner. She disputed that volume levels were down in the five years preceding Covid. Volumes always fluctuate and they had always pulled through as a team. She confirmed that she would not take the role by email on 17 May 2020, as it was a junior role with no people management responsibilities or strategic input to management decision-making. It was unachievable and unrealistic within part-time hours. She stated her concerns about the selection process given that others continued to operate at branch manager level within the company structure. She proposed that they discuss a severance situation, as it was clear that her role no longer existed. The Complainant said that she asked to remain on the Covid subsidy payment until August, as no other options were put forward. There was no regular contact throughout this period, and she was left in limbo. Once she lodged a complaint to the WRC on 17 July 2020, there were no communications. She thought the managing director would revise the plan and put her back into the branch manager position. With so much uncertainty at that time, she thought things might change. She was invited to a review meeting on 2 September 2020, where the managing director read out a letter terminating her employment. She was stunned. She believed that she was made redundant because of the unresolved conflict with another colleague. She believes she was targeted, and the decision was more personal than business. The appeal process was a farce as the independent HR company was paid for by the respondent. Cross-examination The Complainant accepted that the strategic review was undertaken because of the need to improve market share and profitability. She acknowledged that there was a massive decline in business due to Covid but did not accept that there was a decline in volume over the five-year period preceding 2019. She did not reject the role because of a preference to remain on the Covid subsidy payment. There were a number of reasons for rejecting the role. It took her out of the decision-making process, and away from people and branch management duties. It was a new geographical area, with a focus on senior positions only. It was a stand-alone role, and a very difficult environment at that time. Ms Barry had mentioned the possibility of a MBO in the future and she did not want to be precluded from any buyout opportunities. The new role was already decided in February 2020 before she returned from parental leave. If the role was built around her, why wasn’t she given the opportunity to input into it? In her view it was as way of avoiding difficulties, rather than addressing those difficulties. She queried the hours for the role. A document she received said the hours would be Monday to Friday until 1.30pm. She wanted to return to a 4-day week. She did not raise the issue of reduced hours at the appeal, as she was more concerned about the selection process for redundancy. She accepted that she was allowed to provide input at the consultation meeting in May. She had shared her view that the role was unrealistic, given the hours. She was not given an opportunity to engage about the job specification. She did not put any alternative options forward. She raised the issue of redundancy, as she wanted clarity and was told that her role no longer existed. The Complainant was not allowed to return to work from parental leave on 16 March 2020. She understood that other managers were working full time hours. Employees were working from home. She was not aware of employees working 18 hours per week. She thought the managing director would retract the job offer and reinstate her as branch manager or marry the two roles together. She expected more communication and understood the September meeting was a review. She genuinely thought he’d say she could come back. In her view, the company got rid of her personally rather than address workplace issues. The relevant Law Section 6 of the Unfair Dismissals Act in relevant part provides:
(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:
(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (7) 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 —
Section 7(2) of the Redundancy Payments Act 1967 as amended provides:
Deliberations and Findings Where an employee is dismissed by reason of redundancy, the employer bears the burden of establishing that a genuine redundancy existed within the meaning of the Redundancy Payments Act 1967 as amended. Did a genuine redundancy situation exist? The Respondent submits that the Complainant’s employment was terminated wholly or substantially due to the redundancy of the role of Branch Manager in Carlow, and due to her refusal to accept a suitable alternative role. The termination letter cites the reason for the termination of the Complainant’s employment as “the significant drop in open positions as a result of Covid-19 and the absence of a positive outlook going forward”. In this case, the Respondent’s evidence is that following a strategic organisational review that commenced in 2019 a decision was madeto make theBranch Manager role in Carlowredundant. The Court was told that this decision was made to due to a continuing downturn in the volume of work coming through the pipeline in that area. The managing director, Mr McKeown, acknowledged that the Complainant was a high revenue earner, but asserts that as volumes had dropped and the company needed to generate new business to survive. His evidence was that he wanted to keep the Complainant in employment and retain her expertise in a different role that focused on business development across a greater geographical area. In coming to this decision, the Court is mindful that having conducted an organisational review in 2019 the Respondentwas entitled to restructure its business and carry out that business in a different way. The Court accepts the evidence that business volumes were down in the Carlow area, and the focus needed to shift to developing business opportunities and increasing market share across a greater area. While the Complainant places much emphasis on an interpersonal conflict with a colleague, the Court does not find that to be the motivating factor in the decision to make the branch manager role redundant. The Court further notes that the Complainant had decided against proceeding with a formal investigation into those workplace issues. The Court is further swayed in this finding by the managing director’s clear and convincing evidence that he wished to retain the Complainant expertise and that it did not feature in his mind that she would not take the job. Was the new role an offer of suitable alternative work? However, the Court had some difficulty with the assertion that the role offered to the Complainant was an offer of suitable alternative work on the same set of terms and conditions. The Complainant’s evidence was that the role was not comparable to her previous role, as it had no people management responsibilities or strategic input onto management decision-making. Furthermore, she asserted that it covered a greater geographical area, and that the remit of the role was unachievable and unrealistic within the part-time hours specified in the job description. Notwithstanding the conflicting evidence about what hours of work would apply, it is clear that the new role had different responsibilities focused on business development covering a larger geographical area. It is also clear that the Complainant would no longer be a member of the management team, and that she would relinquish her people management responsibilities. Having regard to the above, the Court finds that the alternative role offered to the Complainant cannot be considered a “suitable” alternative role and, in those circumstances, the Complainant’s decision to decline that new position was not unreasonable. Was the Complainant fairly selected for redundancy? As outlined above, the Complainant was offered an alternative role which she declined. In the Court’s view, the Complainant cannot assert that redeployment was not considered as an option by the Respondent, in circumstances where she was offered another role in the company. The role may not have been a suitable alternative role in the eyes of the Complainant, but nevertheless an alternative role was offered to her. As already determined it was not unreasonable for the Complainant to decline that offer on the basis that it had less management responsibilities. The question the Court must now consider is whether the Complainant was fairly selected for redundancy in circumstances whereothers continued to operate at branch manager level within the company structure. The Court was told that there were three branch managers in the company - one based in Athlone, another based in Dublin (on maternity leave during the relevant period) and the Complainant based in Carlow – in addition to the Managing Director who was based in Waterford. In her appeal the Complainant specifically cites the Athlone based branch manager who was not selected for redundancy. The Managing Director told the Court that he did not consider redeploying the Complainant to other branches in order to retain her in employment as branch managers have specific client knowledge of their own geographical areas and business volumes in the other areas were holding strong. The Athlone branch manager had 20 years’ service and knew the business and client based in that area well. He said that it made no sense to put the Complainant into the Athlone branch given that it was a different geographical area, and she did not have the same level of client or business knowledge as the manager based there. In the Court’s view, the Managing Director gave a cogent and reasonable explanation for not displacing branch managers in other geographical areas, given that they had specific client knowledge in their business areas, and those areas were performing well. The Court is satisfied that, having regard to the circumstance cited by the Managing Director, it was reasonable to confine the selection for redundancy to the Carlow branch manager role, and so finds on the evidence that the selection of the Complainant for redundancydoes not render the Complainant’s termination of employment unfair. Was the process followed by the employer reasonable? The Complainant’s employment subsequently terminated on 14 October 2020, and she was paid a statutory redundancy payment. Having regard to all of the circumstances of this case, the Court is of the view that the matters identified by the Complainant in relation to the consultation and appeals process did not render the dismissal to be unfair. In the view of the Court, the Court is satisfied that a genuine redundancy situation arose, and that the Complainant was fairly selected for redundancy. Having considered all of the circumstances of this case, the Court is of the view that the conduct of the Respondent in relation to the implementation of the redundancy, when viewed in totality, was substantially reasonable, and any shortcomings that arose during the consultation process did not amount to behaviour on the part of the Respondent, such that it can be deemed the termination of the Complainant’s by reason of redundancy to be unfair. As a result and for the reasons outlined above, the Court finds that the Complainant’s dismissal by reason of redundancy was not unfair. The Court so decides.
NOTE Enquiries concerning this Determination should be addressed to Clodagh O'Reilly, Court Secretary. |
