Complainant

Respondent

Parties

Sandra  O’Brien

Niit (Ireland) Limited

Representatives

Peter McInnes Solr,                                       McInnes Dunne Solicitors

Kieran Tansey                                  Damien Tansey and Co. 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-00041633-001

21/12/2020

This matter was heard by way of a remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having each day of this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski  -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally also informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in circumstances where there is likely to be serious and direct conflict in evidence between the parties to the complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. To ensure an orderly and expeditious hearing, I confirm that each of the witnesses gave their evidence on Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Complainant was fully represented by a Solicitor. At the outset, the Complainant was happy to make an Affirmation to tell the truth. I was provided with a comprehensive book of papers on the 21st of February 2022. The Complainant additionally relied on the detailed submission outlined in her Workplace Relations Complaint Form.  No objection was raised to any of the materials relied upon by the Complainant in the making of her case. The oral evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

I note that the Complainant also provided me with two booklets relating to the efforts she has made to mitigate loss.

The Complainant alleges that she was Unfairly dismissed when she was unfairly selected for Redundancy.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. 

The Respondent had legal representation at this hearing. The Respondent provided me with a written submission dated the 9th day of July 2021. This was presented together with a significant booklet of documents. I have additionally heard from a number of witnesses for the Respondent. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation. The Respondent witnesses were cross examined by the Complainant representative.

The Respondent rejects that there has been an Unfair Dismissal and asserts it has acted appropriately and reasonably.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully listened to the evidence adduced in the course of the four days set aside for the hearing of this case.

The Respondent Company is a worldwide organisation providing bespoke training and learning services to any area of industry which has identified a need to upskill and train their working professionals so as to achieve better productivity and outcomes.

The Complainant came to work with the Irish based office of the Respondent company in and around 2015 and she joined as a content designer per her Contract of Employment. The Complainant was one of very few employees who came to the Company’s newly formed offices in Ireland at that time.  The Complainant’s role was that of Learning or Instructional Designer and I understand that she put together the final products to go to clients. The general training package for a particular client type would be put together by other designers (content developers), with the Complainant designing the final curriculum and delivery package. The Complainant says that she trained in a lot of the content developers herself and depending on workplace requirements (staff shortages etc.) she was able to fulfil the role of content developer at any given time. She was instrumental, she says, in mentoring and training any staff that needed it.

The Complainant always saw herself as a team player and was utterly invested in the success of the company. The Complainant says that she did lots and lots of travel for the company and was regularly putting in 40-to-50-hour weeks. The Complainant was one of the first Employees engaged by the company in Ireland and worked tirelessly towards making this new European base a success.

In 2019 the Complainant was promoted to Senior Learning Designer but explained that this amounted to a change in title only. There was no salary increase and no competition held for the role. She was bestowed with the new title in a review letter. It was flattering but made no difference to her. The Respondent (Ms. Pruitt) said that there was a raise but the Complainant insisted that she only ever got incremental raises.

In January of 2020 two members of the design team staff (Rodney Lee and Sinead Moloney) were moved into the role of Learning Designer. With their introduction, there were about 13 Learning Designers across Ireland, Canada and the United States. Four were based in Ireland. The Complainant was the longest serving Learning Designer in Ireland. Mark Kaplane oversaw all of the Learning Designers’ work and there was a weekly team meeting hosted by him to share ideas and take advice and instruction from him. Mark (MK) was based in the States, and he encouraged mentoring amongst all designers rather than them coming to him all the time for support and direction. Resources were shared across the entire group with MK trying to foresee where resources and assistance would be needed as work was coming on stream. Generally, the European Learning Designers did the European work, though they sometimes needed support from their American counterparts and vice versa. They were one large team.

The Ireland office was being headed up by Karen McGrane who was the Delivery Manager who also oversaw some of the project Management role.

As it happened, in late January of 2020, the Complainant had requested a shorter working week. This was intended to last for one year (from February 2020 to February 2021) and the request arose out of personal issues. MK acquiesced to the request with no apparent reluctance. I do not think this arrangement had any bearing in the events that subsequently unfolded.

The Respondent says its business was badly affected by the covid pandemic. The Complainant disagreed with this assertion. She gave evidence that the workplace continued to be busy and active albeit everyone now worked from home – something she had already done regularly. The Complainant gave evidence that she had five projects on the go and a 6th large project had just been handed to her.

To her surprise the Complainant was notified that she was to be temporarily laid off in and around the 15th of July of 2020, some four months into the pandemic. The Complainant still has no visibility on how that decision came to be made. At the time she was busy and there was no warning that a decision of this sort was being made up the line. The decision to put the Complainant on lay off is set out in a letter from the Employer Human Resource Manager Sandra Pruitt and dated July 15th . The Temporary Lay-Off was intended to last for three months in the first instance and there is a clear reference to the fact that the Government PUP intervention (then in operation) was being utilised until the crises passed. It is worth noting that the Complainant though shocked took the news well and even complimented Ms. McAllister on how she had conveyed the news.

The Complainant says that at a general online meeting in and around this time that the Irish office  was described as being “maxed out” with work – this seemed inconsistent with what the company had chosen to say to her.

The Lay off was to commence on the 24th of July 2020. In advance of that date the Complainant was expected to perform a handover of her ongoing work which, it is noted, was scheduled out to the end of August 2020. In that period of time the Complainant was able to reflect on her position and understandably wrote to Ms. McAllister and Ms Pruitt seeking clarification on a number of points which had occurred to her.  An email dated the 21st of July raised these many issues. Of particular note is the question around the use (or non-use) of LIFO – the last in first out criteria. The Complainant could simply not understand how she as the longest serving Learning Designer had been selected over and above three more junior members of the Learning Designer team in Ireland. In addition, the Complainant wanted to understand why she was handing her ongoing work over to others, when she should have been given the opportunity to see that work (assigned to her) through to the end. Lastly, the Complainant suggested that there was no advance warning that decisions as drastic as this were even being considered by the Company.

Emma McAllister replied to the queries raised and in particular the response to the question of LIFO is interesting:

“We will not be disclosing the criteria on which roles were selected, nor the decision process that management went through. The company restructuring is a global exercise, and the process for selection was fair and objective.”

Other issues raised by the Complainant were also responded to. The Complainant was told that there had been some skype meetings warning of difficult HR decisions being made by Management, and that the need to hand over pre-assigned work was unavoidable. In general terms I am satisfied that at this point in time, the Complainant believed that she would be back in full time employment after a three-month (or other necessary) period had passed. All the indicators were that this was the fully anticipated outcome.

The Respondent referred me to a communication of the 27th of July from a Sapnesh Lalla across all NIIT divisions setting out the efforts being made to stay afloat and cut costs. The Complainant saw this letter as one that described belt tightening requirements but not one warning of job losses. In fact, the Complainant pointed out that this particular communication ended on a positive and hopeful note. The Complainant is categoric in her assertion that while she was in the workplace she was not on notice that the company was failing. She had not taken this message from any of the meetings that she had attended, and nothing was said to her or her immediate team. The Complainant rejected the proposition that she had been naïve in this regard.

I have carefully considered the evidence adduced by the Respondent witness Mr Brewer who was introduced as the Executive Vice President in charge of content development worldwide. I accept he had a macro picture of how things were unfolding in the course of the pandemic. It had, he said, a dramatic and profound impact.  He says he was aware of Redundancies in Ireland though these were being implemented across the world too. I have noted that Mr. Brewer’s evidence was that the Company was looking for a headcount reduction. For him it was a question of budget management where his employee numbers were at 2,600. Mr. Brewer conceded that he did not know whether or not the downturn was resonating at grass root level in Ireland.He was not involved in the decision to make the Complainant redundant.

Ms Pruitt also gave evidence on behalf of the Respondent. Ms Pruitt works in HR but mainly across the United States and Canada operations. She made the case that the recently promoted Learning Designers (in the Ireland Office) reverted back to content design as the pandemic unfolded. Ms Pruitt also suggested that the decision to lay off the complainant was made by Ms. McAllister.

The Complainant was promised that she would have monthly communication from Ms. McAllister, but this ultimately did not transpire although Ms. McAllister says there were a few phone calls to catch up and discuss well-being. For the Employee it seemed that there was radio silence from her Employer with only one email being sent by Ms McAllister at the end of September 2020.

Then on the 21st of October Ms. McAllister reached out by email to discuss the next steps. The Complainant took this to mean her re-entry into the workplace or (worst case scenario) the possible extension of her lay off. However, at a meeting held over the phone on the 29th of October 2020 the Complainant was notified that she was being made redundant to take effect from the end of November. The Complainant was terribly upset that this decision had been made. She had had no inclination that this was a step even being considered by her Employer. To her mind, there was no rationale for making this decision when she could have been retained on the PUP scheme. She could not understand therefore the urgent need to drop her. The Complainant confirmed at the hearing that she was very upset during this phone call held with Ms. McAllister. At the time she had again queried how she had come to be selected? She pleaded that Senior Management be asked to re-consider.

The Complainant became more and more upset and dropped the call. Almost immediately Ms McAllister forwarded the letter confirming the notification. The Complainant’s perception that she was being badly treated might be justified in light of the unhelpful remonstration (made in the email) that she had hung up on Ms. McAllister. I found this to be an unnecessary remonstration which was repeated in evidence and submissions.

The Complainant subsequently set out her position in a comprehensive email dated the 2nd of November 2020. Again, she questioned why, when the Government has stepped in to preserve jobs through it’s PUP programme, was the Complainant being made redundant? It is important to note that the Complainant requested an independent review be taken by senior Management of the decision not to maintain the status quo. This last request amounted, in my mind, to an appeal from the decision made.

Ms Pruitt  replied to this email on November 3rd saying that all alternatives had been looked at and all options had been exhausted. She claimed “..I have looked for every opportunity that we’ve had available for you”.  Ms. Pruitt went on to insist in the email that “Letting someone go is a painful decision for us..” which seemed a little tone deaf in the circumstances.

The Complainant had no sense of what alternatives had been looked at and what options had been considered and rejected. There might very well have been twenty alternatives looked at or there might have been zero. The Complainant was simply never told. There was no discussion about avoiding redundancy, all the conversation from this point on was about the consequences. The email of November 3rd is an implicit refusal to have this decision reviewed in any way – thereby rejecting any notion that the decision-making process had a built-in appeal mechanism. This meant that the Complainant had no input into the original decision to make her Redundant and no input into an Appeals process or outcome. For the avoidance of doubt, I am confirming that I consider there to have been no consultation process in regard to this decision to make this individual Redundant. The Complainant was simply not involved in any part of the process. She was given no opportunity to plead her case or make alternative suggestions. The Complainant was, it seems to me, shut down and frozen out. The Complainant herself challenged the integrity of the process right from the start per her email of the 12th of November.

I note that Ms.McAllister purported to give tentative and unverified evidence of a four way conversation between herself, MK and somebody called Shanker and somebody called Greg at the time that the decision was made. Ms. McAllister stated in her evidence to me that “the decision was made to make a final decision”.  If anything, this has added to the confusion.

The Complainant’s representative drew my attention to MsMcAllister’s email of the 5th of November which clearly sets out the Company’s position:

“A consultation meeting is not required in advance of giving notice. Consultation meeting happens after notice if given.”

This position was described to me by the Complainant’s representative as a fundamental misstatement of the Law.

The two members of the design team who had recently been promoted to Learning Designer roles were retained. The Complainant has asserted that Sinead Molony in effect took over her role. In the course of working out her notice period she could see that Ms Moloney was being given all the new work. Ms. Moloney did not give evidence to rebut this assertion. The evidence also revealed that two brand new recruits taken on in March 2020 were retained as content developers – work which the complainant was competent to perform. Even though the Complainant says she was the most experienced and most capable, she was the one selected to be put out on lay off and then Redundancy. The complainant felt that HR had turned on her, and she had no support. She was, she says, humiliated amongst her peers and in front of junior colleagues. Her years of dedicated and loyal performance were overlooked or considered without value. 

The Complainant described how Ms. McGrane had reached out to her after the termination and had been so upset to lose her. Sinead Moloney even rang her to express how upset she was. There can be no doubt that the complainant was viewed very highly amongst her peers and colleagues. To be fair, even Mr. Brewer spoke highly of the Complainant.

It was suggested by MsMcAllister that the Complainant’s larger salary was part of the decision making process though this was never signalled to the Complainant. The proposition makes very little sense, in any event, as the Complainant was on PUP.

The Complainant says she had to wrangle with HR about her final severance package as there was a reluctance to pay for hours of work which she could not now claim as time in lieu. MK eventually stepped in to make sure she got her entitlements, though it irritated the Complainant that HR perceived this as some sort of ex gratia payment. I note that Respondent submission has doubled down on this description

The Complainant gave comprehensive evidence concerning mitigation. She applied above and below her level she says, but given the pandemic it was extremely hard to secure employment. The Complainant believes her age might also have been a mitigating factor. Two years after her termination the Complainant took up another job at a  roughly commensurate salary.

The Complainant acknowledged that another Learning Designer Eric D had been made Redundant in July of 2020. However, the Complainant could not speak to this termination as she was not appraised of how this came to happen. I have noted that Ms. .Pruitt suggested that his selection might have been based on the last in first out criteria. It did not occur to to the Complainant at that time that she might be at risk because at that time she had been given every assurance that she was being placed on PUP with a view to her being returned to the workplace.

Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent.  There is I accept a general obligation to inform and consult when a redundancy situation is under consideration. The Complainant’s representative described this obligation as notorious.

The Employer should be able to demonstrate that it has devised a Redundancy selection Matrix which ensured that every effected employee was to be evaluated against a key set of relevant criteria to be applied fairly and consistently. This did not happen, and I am still in the dark as to how the Complainants role came to be identified as suitable for redundancy.

To counterbalance the mitigation argument being put up by the Complainant, I have to take into account that the Complainant could and possibly should have been left on extended PUP in circumstances where there was a downturn in business. This certainly appears to have been a more preferable option for the Complainant at that time. I am also mindful of the fact that the Respondent did implement staff reductions across its international operations and I have no reason to think that the Irish staff were in some way immune from this. I have been told, and have no reason not to believe, that positions have not been backfilled since that time. It seems therefore that, at a global level, the Respondent has moved forward as a leaner machine.  

Having reflected on the foregoing, I am satisfied that the Respondent has not discharged the burden placed on it to show that it has acted fairly and reasonably in all the circumstances. The HR team dealing locally with the Complainant failed to implement basic and accepted norms when it came to making a person Redundant in this jurisdiction. Had the HR department/management approached this matter correctly, then the Complainant may well have had to accept that the Employer was entitled to make her Redundant. That was an open goal entirely missed by the Employer. I understand I have to take into consideration the urgency of the pandemic landscape but as the Complainant was already out on lay off there was no reason why a proper analysis of the workplace could not have been taken to determine whose position should be made Redundant. The Complainant’s employment was terminated in circumstances which were and have remained opaque. Nobody has been able to demonstrate that a fair process was entered into. The Complainant was and is entitled to fully understand how and why her employment came to be terminated.

In these circumstances, I am finding that the Complainant was unfairly dismissed.

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

CA-00041633-001 – The Complainant was Unfairly Dismissed and I am finding that she is entitled to  redress in the form of compensation for financial loss which I am assessing in the amount of €100,000.00.