Complainant

Respondent

Parties

Martina  Collins Condon

Bishopsisland Plant Hire & Groundworks Ltd

Representatives

Sean Cullinane, Conflict Solutions & Consultancy Services

Diarmaid Falvey , Diarmaid Falvey Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00040733-001

02/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977(withdrawn at hearing)

CA-00040872-001

09/11/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00040872-002

09/11/2020

On 9 November 2020, the Complainant, an Accounts and Payroll Assistant submitted a complaint of unfair dismissal in addition to complaint relating to a written statement of her terms of employment.

A duplicate claim for unfair dismissal CA-00040872-001 was withdrawn at hearing.

The Complainant was represented by Mr. Sean Cullinane, who filed a comprehensive submission in the case.

The Respondent operates a Plant hire business grouping and has denied the claims. The Respondent is represented by Diarmuid Falvey Solicitors.

In this case the complainant evidence was accompanied by the religious oath. The Respondent witness gave evidence by affirmation.

Mr. Cullinane submitted the case of ADJ 34372, and Mr. Falvey recorded his response to this on August 16, 2022.

An earlier scheduling of a Remote Hearing had been replaced by an In Person hearing at the behest of the Respondent.

CA-00040733-001 Claim for Unfair Dismissal

The Respondent filed a defence in the claim on 3 August 2022. The claim is contested. The Respondent has contended that this was a genuine redundancy which arose from a change in trading during the National Pandemic.

Mr Falvey outlined that the Company had experienced a reduction in turnover 2016 -2020. It was common case that the complainant had worked at the business since 24 May 2016 until the date her employment ended through redundancy on 23 June 2020. The Complainant had expressed reservations regarding the authenticity of the redundancy but had accepted the financial settlement at the conclusion of her employment.

He described that the complainant’s role had been in a new role at the business and had been absorbed within the remaining staff complement of 3 after she left.

In early 2020, the Respondent had harboured a plan to expand the Hire fleet at the company and the complainant had been approached to illicit her interest in undertaking additional hours. This plan was overtaken by the Pandemic and face to face meetings were not possible.

The period leading to redundancy was marked by inter party contact in the form of phone and text messaging. The Complainant was in receipt of Covid support payments.

On the day of hearing, Mr Falvey outlined that this was a genuine redundancy where the Complainant was made redundant following a reduction in trading. He said the Complainant was one of 7 workers, where 4 were assigned to her area of administration. This cohort of 4 now stood at 3 as her workload has been absorbed by the remining workers. The complainant has never been replaced.

The Respondent also operated a Plant Sales Company.

He described the complainant as an excellent worker, where there was no animus between the parties, and it was not an application of the circumstances in Panisi.

He submitted the Respondent was surprised by this claim as the complainant accepted the redundancy without contesting it at the time.

Evidence of Ms Fiona Griffin, Financial Controller:

Ms Griffin outlined that the business planned to increase work during 2020 but was met with a scenario where turnover stopped.

The Complainant had been on sick leave from March 2020 and was covered by the covid payment. The Respondent had considered the 70% government subsidy for her but the covid payment had made more sense.

She, herself had been working from home and she had felt pressurised. Ms Griffin recalled having 3 conversations prior to what she described as the “difficult “phone call in June 2020. She outlined that she had informed the complainant that she could not see her job being continued as the volume of work had dropped off considerably from January and she did not want it to drag on.  Ms Griffin clarified that the decision to let the complainant go was made jointly with the Managing Director. She submitted that there were just no alternatives and no other outcome possible.

Ms Griffin conveyed that she had not deemed it appropriate to offer the complainant the full-time replacement when she left the business in January 2021

She submitted that the position was no longer in existence and detailed the remaining staff alongside her role as Financial Controller

1 full time worker from 2008 – January 2021

1 worker who covered reception and shipping

The Complainant

During cross examination

Ms Griffin said that the complainant responded to news of her departure by asking for a letter for the social welfare and a redundancy payment. The redundancy payment was calculated and revised by the complainant herself.

A prepared reference placed the complainant in a position where she had been regarded highly but the commercial position of the business had been badly affected. Two other redundancies were made in the stores and Shop area, but neither person had more than 2 years’ service.

Ms Griffin confirmed that a family member did work as an Accounts Administrator.

In clarification, Ms Griffin confirmed that the complainant had not been provided with, nor had she sought an appeal of her dismissal. she had not communicated her disquiet directly to the business.

The Respondent had considered lay off, but the Complainant had proceeded on sick leave.

She said that she understood that Policy on Redundancy was in existence before she joined the company on a part time basis in 2008. She was unaware of whatever steps the complaint had adopted back then.

Ms Griffin confirmed that the phone call lasted 10-15 mins.

By means closing remarks, Mr Falvey concluded that this was not an unfair dismissal, but rather a genuine redundancy conducted fairly and reasonably.

The Complainant had been paid and retained a lump sum in redundancy payment of €3, 419

The Respondent stood over the decision to make the complainant redundant, and he emphasised that the respondent evidence pointed to a correct, timely just and fair decision.

He pointed to shortfalls in the complainants reported efforts to mitigate her loss, which was at odds with the minimum the law expects.

On behalf of the Respondent, he wished the complainant well for the future.

Mr Falvey considered the application of ADJ  28766 to the facts of this case. He wrote in response that the Respondent did not accept that it was on point with the circumstances presented by the complainant. He raised reservations regarding the extent of loss and mitigation raised by the complainant. Mr Falvey also highlighted a concern that the complainant had adopted an undue interest into the subsequent staffing at the business.

CA-00040872-002 Claim Terms of Employment

Mr Falvey confirmed that the Respondent had relied on the Agency to cover terms of employment during the hiring process. He accepted that the complainant was not provided with a written term of employment. The Company has since updated their procedures by issuing contracts and a staff handbook.

Ms Griffin was not in position to explain any background or context to this claim.

It was open to the complainant to raise a grievance, if dissatisfied.

CA-00040733-001 Claim for Unfair Dismissal

Mr Cullinane for the Complainant submitted a written narrative as an introduction to the claim for unfair selection for redundancy, contrary to the Unfair Dismissals Act 1977, as amended.

The Complainant commenced work as an Accounts administrator on 23 May 2016 until her last day of employment, 23 March, 2020. The employment ended on 23 June 2020. This interim period was covered in a Covid support payment.

The Complainant was a part time worker on 22.5 hrs in return for a gross salary of €384.62. The Complainant had not found “new work” by the day of hearing in August 2022.

On 9 June 2020, the Respondent informed the Complainant that her position was being terminated. This occurred as a telephone exchange. She was the sole employee faced with termination of post. The term redundancy was not used at that time.

This was set against the backdrop of an earlier conversation in January 2020, when the Respondent had sought an expression of interest from the complainant that she was prepared to work additional hours. She understood this matter was set for discussion in June 2020 and agreed to working these extra hours directly with the Managing Director.

Mr Cullinane outlined his view that for a redundancy to be genuine, it must be accompanied by fair procedures. He stated that the procedural framework surrounding the dismissal was bereft of fair procedures. The circumstances had placed the complainant at a disadvantage in seeking new work and in obtaining social welfare credits for her time spent on the covid support payments. He sought the maximum level of compensation.

On the hearing day, Mr Cullinane described the 4-year period of employment as “uneventful”. He said the complainant had been informed that her job was “gone “, but the respondent had not taken or explored measures short of dismissal. The staff had not been approached to reduce pay. No efforts were made to redeploy staff. The Complainant was not the most junior and had maintained transferrable skills to drive machinery. He maintained the junior staff had remained at the business.

The dismissal was not prefaced by any meeting or discussion and the first she heard of the cessation of employment was during a phone call on June 9.

Mr Cullinane sought a maximum award of compensation in redress to address the complainant’s unfair selection for redundancy.

Evidence by the Complainant:

Ms Collins Condon recalled March 2020, when she submitted, she knew the business was quiet and she commenced on the covid support payment.

She began to explore getting back to work when the phone call of June 9, 2020, occurred. She agreed with the duration as 10-15 mins. She submitted that she was very shocked when she heard that her job was “no longer there “She had anticipated an increased pattern of hours and accepted that “Lock down “displaced that plan. She recalled that she had not been hosted in any discussion of the termination and was emailed the final figures.

The Complainant described that she felt “mistreated “and “excluded “. She obtained a letter for social welfare and sought external advice. She clarified that a lump sum redundancy payment was to be added to her final payment of annual leave and notice. She sought this in written format.

She asked the rhetorical question, “Why Me?  “  

Ms Collins Condon submitted that Redundancy had knocked her confidence and while she had made regular applications for part time work, it was hard to obtain this. Therefore, mitigation was limited.

During cross examination, she recalled experiencing a high level of upset on hearing the news of her termination. she said that she heard “that she was no longer there “and obtained advice two weeks later, for the first time.

She confirmed that she had calculated the redundancy lump sum figures herself.

She countered the job profile which Ms Griffin has described and said that she had a broader remit. She felt that her selection had been personalised. She accepted that Gillian’s primary role was shipping but countered that she had administrative functions in her role. She confirmed that she had understood that her position was affected by Covid, but she honestly had not anticipated that she would be met by a redundancy. The Complainant qualified that her dismissal was unfair.

She disagreed with the Respondent representative when he put a mention of 4% unemployment to her and that her extended status of unemployment was incredible. The Complainant maintained that she had not been offered work and argued that she should not have to take work not commensurate with her level of experience.

The Complainant explained that she would have expected LIFO to apply (last in, first out)

During clarifications, the complainant attributed the delay in making her complaint before the WRC originated in a delay in meeting her representative.

In addressing the selection process surrounding the redundancy, the complainant reaffirmed that she had not been sat down and spoken to. she had not received a letter which outlined what happened. She recalled an earlier redundancy in an earlier part time employment but recalled that a letter had accompanied that process. She submitted that she had also been shocked on that occasion.

She was unaware of any grievance procedure and did not know how to reverse the decision to terminate her employment.

Ms Collins Condon said she aware of her full-time colleague leaving through social media but did not want to approach the company as “she had doubts “following being knocked back.

The Complainant had attended the business on June 12,2020, when only her full-time colleague was present. she confirmed that she had not requested to be placed on the government covid subsidy payment. She confirmed that she would be uncomfortable in considering a return to the business.

CA-00040872-002 Claim Terms of Employment

Mr Cullinane outlined that the Complainant had not been provided with a contract of employment during her employment. The Complainant had joined the staff via an Agency.

Ms Collins Condon confirmed that she had not sought a written statement of her terms of employment.

In conclusion, Mr Cullinane summarised that the complainant had not been included in any prior consultation prior to her dismissal. The Respondent had not adopted measures short of dismissal and the matter was simply not discussed between the parties.

He accepted that a Genuine Redundancy may well have been in being, however, it was the manner in which this redundancy was conducted that turned it into an unfair dismissal.

Mr Cullinane disputed Mr Falvey’s submissions on loss and mitigation and instead put forward an Adjudication Decision e Kieran Murray V Sherry Garden Rooms Limited ADJ-00028766. ADJ     where a lump sum redundancy payment was ignored in the calculation of redress. Mr Cullinane forwarded the case recorded comments , which I have referred to above . Mr Falvey did not accept the application of the case to the facts of the instant case, and he submitted that the complainant had given her evidence on loss and mitigation.

He argued that the PUP payment should be equally disregarded in the event of the complainant’s success in the case.

I have been requested to consider the facts as presented in this case and decide whether the Complainant was unfairly dismissed and secondly, has there been a contravention of the Terms of Employment (Information) Act, 1994.?

In reaching my decisions, I have considered both written submissions and oral evidence adduced. I have also had regard to case law relied on by both parties.

It is important that I record this decision as having a context and background of the early months of the National Pandemic of Covid 19.

I found great clarity in both Representatives approaches to the case and I thank them for that assistance

CA-00040733-001 Claim for Unfair Dismissal

The Law on Unfair Dismissal is set out in Section 6 of the Unfair Dismissals Act, 1977, from where my jurisdiction rises.

Unfair dismissal.

6.— (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(3) of the Act reflects that a dismissal is unfair if either the circumstances outlined in section 6(2) prevail or whether an employee was selected for dismissal in contravention of a procedure agreed with Unions or by custom and practice established.

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

There is a defence open to the Respondent in Section 6(4) (c) of the Act for circumstances resulting wholly or mainly from Redundancy

(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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 6(7) of the Act allows me to reflect on the reasonableness of 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—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14 (1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7 (2) of this Act.

This case was presented to the WRC as a claim for unfair dismissal associated with a contention of unfair selection for redundancy on 23 June 2020.

The claim is disputed by the respondent, who has argued stridently that the dismissal occurred through a genuine redundancy, which was conducted fairly and in direct response to a severe downturn in trading. The Respondent has relied on the defence of section 6(4) (c) of the Act.

The test, I follow in this case:

1 Was there a genuine redundancy?

2 Was the method of selection fair?

3 Was the dismissal conducted in a fair and reasonable manner and within the band of reasonableness for a reasonable employer ?

I will return to all three topics.

Before, I engage in an analysis of the facts of the case, I would ask the parties to consider the High Court case of JVC Europe ltd and Jerome Panisi [ 2011] IEHC 279, where sitting alone, Justice Charleton engaged in a reflection of redundancy in the world of work.  

JUDGMENT of Mr. Justice Charleton delivered on the 27th day of July 2011

1. Redundancy can be a devastating blow. Where economic conditions are difficult, or where the employee who is let go has aged or is experiencing health difficulties, finding alternative employment may be impossible. Years of devotion to an employer count for nothing where technology overtakes the workforce, rendering the labour of those displaced unnecessary; where new methods of work are demanded from those who do not have the skills to respond; or where a product is rendered obsolete. All these are examples of genuine redundancy. As ordinarily understood, redundancy means that a worker is no longer needed. The legal definition, as stated in the legislation which I quote later, mirrors common comprehension. Because redundancy is inevitable if there is no work for workers to do and the workers cease to be needed, it is also lawful. The Redundancy Payments Act 1967, as amended, establishes a floor of rights in compensation for redundancy; circumscribes the use to which dismissal by reason of redundancy can be put; and provides for minimum payments for qualified employees who are subject to this misfortune. In circumstances of insolvency those payments can be met from the public purse.

2. A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act 1977, as amended (*the Act of 1977*), the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law, and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer.

The facts in Panisi were distinguished early in this case by Mr Falvey, who confirmed that no Animus existed between respondent and complainant, as both parties  had a mutually beneficial employment relationship prior to the downturn in the company turnover.

Panisi found that a “dismissal can be designed as a redundancy “and shrouded by a proverbial “cloak”.

  Charleton J. emphasised the need to look behind all the evidence in a case to arrive at an accurate finding in this emotional and challenging topic of redundancy. I accept that Panisi is distinguished from the instant case, but I have found the reflections on the precursors surrounding a redundancy and dismissal illustrative.

The burden of proof rests firmly on the Respondent in this case to prove the circumstances relied on in the defence of Section 6(4) (c).

I heard evidence from the Financial Controller, Ms Griffin. I accept that she was labouring under a very challenging and unprecedented trading environment in the first and second quarter of 2020. I accept her evidence that the decision to let 3 staff go was jointly made with the Managing Director of the business, who was not available to me at hearing.

The case becomes very interesting at this point as two of three staff made redundant did not have in excess off 104 weeks service to bring them under the protective wing of the Redundancy Payments Act provisions. I accept the Complainant evidence in that regard.

The Parties had not concluded the payment of a redundancy lump sum by means of a Compromise Agreement .

It is not disputed that the Complainant had service in excess of 104 weeks to allow her to avail of a lump sum redundancy payment.

General right to redundancy payment.

7.— (1) An employee, if he is dismissed by his employer by reason of redundancy or is laid off or kept on short-time for the minimum period, shall, subject to this Act, be entitled to the payment of moneys which shall be known (and are in this Act referred to) as redundancy payment provided—

(a) he has been employed for the requisite period,

And clarified in section 7(5)

(5) In this section requisite period means a period of 104 weeks continuous employment (within the meaning of Schedule 3) of the employee by the employer who dismissed him, laid him off or kept him on short time, but excluding any period of employment with that employer before the employee had attained the age of 16 years.

I found a high level of vague recollection in relation to the presence of a Policy on Redundancy at the business. Of course, this opaqueness was not aided by the complete absence of foundation documents of employment, which may have assisted a navigation of that impasse.

 I appreciate that Ms Griffin understood that redundancies which had occurred in 2008 were subject to a Policy or an identifiable procedure. However, I must conclude that no policy was in being or no evidence of custom and practice prevailed for the purposes of my inquiry.

Instead, on an interesting turn of events, the Complainant, who had been on lay off and sick leave from March 2020 , subsisting on covid payments from the State (which exceeded her nett pay weekly) was informed by telephone on 9 June 2020 that her job was gone in a 10 -15-minute conversation. This was the only medium permitted in covid times and the complainant disputed that it was a “zoom call”

In a very unusual turn of events, I find that the complainant herself seemed to lead events after that as the steps she took in the immediate aftermath of this call reflected a high level of acquiescence to the news of her demise, and which had disturbed her.

Armed with a working knowledge and prior operational experience of redundancy in 2010 in a separate employment setting, again in a part time capacity, the complainant stepped forward and claimed, calculated and revised figures for her own redundancy. This process commenced on June 12, 2020 and concluded some 10 days later with the payment of €3, 419 as statutory redundancy.

What the Respondent failed to pick up, however, was that this communication of termination of employment had triggered traumatic memories of a past redundancy for the complainant. However, she distinguished this occurrence from the facts of this case by “at least they called her into the office and followed by letter “I was very struck by the complainant’s own evidence on that earlier trauma.

I found that the overzealous approach adopted by the Complainant in prompting and orchestrating her own redundancy arrangements was set against a vacuum on the Respondent management of the conclusion of employment. The Respondent named it a termination of employment. The Complainant, to her own detriment named it a redundancy.

I have identified a missed opportunity in this case for the complainant when she recorded that she believed that the redundancy was not genuine on 17 June 2020. Neither party engaged further on this topic. Both parties must carry a level of responsibility in this.

I accept that the complainant consulted a HR Practitioner two weeks after the dismissal occurred. I would have liked to have seen much earlier representation in this case on both sides. An earlier engagement may have helped save the employment. We will never know if that was possible, now.

It is also important to reflect that Emergency Legislation had been commenced in March 2020, which curtailed the Complainant in accessing a redundancy payment during lay off.

Right to redundancy payment by reason of lay-off or short-time.

12.— (1) An employee shall not be entitled to redundancy payment by reason of having been laid off or kept on short-time unless—

(a) he has been laid off or kept on short time for four or more consecutive weeks or, within a period of thirteen weeks, for a series of six or more weeks of which not more than three were consecutive, 

 Operation of section 12 - emergency period

12A. (1) Section 12 shall not have effect during the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his or her employer in order to comply with, or as a consequence of, Government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.

Inserted (13.03.2020) by Emergency Measures in the Public Interest (Covid-19) Act 2020 (2/2020), s. 29, commenced as per s. 1(2)(c).

For me, at least, this placed a higher level of responsibility on the Respondent to act to actively manage the complainant’s employment within those limitations.  

I appreciate that the company did claim wage subsidies for other workers, but the complainant claimed PUP.

I have found that the delivery of the news of job termination on June 9, 2020, was lacking in sensitivity and respect. Given that the decision was an acknowledged as a joint decision, it ought to have been communicated in a tri partite fashion with an opportunity for the complainant to have a support person / representative present. The language used in communication of termination of employment, not linked to misconduct of any kind needs to be uttered with skill and precision . I found that Ms Griffin was fully engaged in the challenging aspects of running the business. She needed back up and additional advice to manage a termination of employment .

 I would also have liked to have seen a reasonable amount of consultation to allow the parties to engage on the topic. It was open to either party to consider options .

 The positively worded reference was dated June 10, 2020. This signalled a retrospective analysis of the employment before the employment officially ended.

The Redundancy lump sum payment was processed and agreed with the Complainant. The employment officially concluded one day later.

There was a considerable delay of over 4 months before the claims were lodged with the WRC.

I listened carefully to Ms Griffins account of the evolution of the downturn in trading. I accept her evidence as I believe did Mr Cullinane that the Respondent was faced with a serious challenge in turnover in those early months in 2020.

The Labour Court in Kohinoor v Hussain Ali UDD 1629 considered a claim for unfair selection for redundancy.

The Court found that the dismissal had been fairly managed as a Redundancy. This was the main reason for Redundancy.

Section 7(2) of the Redundancy Payments Act, 1967, defines redundancy in several different categories.

7 (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,

A Redundancy is both impersonal and change related.

I find that the Respondent has proved that a genuine redundancy occurred in this case and that this was the main reason for the dismissal. There was no animus between the parties and the reference written in support of the Complainant was excellent, well worded and directed towards a genuine attempt to relaunch the complainant into the world of work. The Respondent has met the test for substantial reasons for dismissal .

I find that Respondent dismissed the complainant through a genuine redundancy situation which incorporated both Section 7(2) b) and section 7(2) (c) of the Act.

Selection:

I have identified defined shortfalls in how the Respondent selected the complainant for redundancy, while leaving others at the employment.

In drawing from the facts in:

Gillian Free v Oxigen Environmental UD 206/2011,

The Labour Court in Kohinoor reflected that: Employment Appeals Tribunal noted that “when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy…. where there is no agreed procedure in relation to selection for redundancy…. then the employer must act fairly and reasonably”.

Kohinoor is of direct application here as the Deputy Chair Ms Jenkinson, took some time to probe the 5-part matrix of selection relied on by the Respondent in the case.

I did not have the benefit of that defined level of transparency in how the complainant was selected for termination of employment. I am satisfied that there was no animus. However, I was struck by the complainant’s own evidence when she highlighted that she had not been afforded any input into the decision to let her go within a period of lay off and following a period of illness.

I found that the Respondent could not demonstrate that the method of selection for redundancy was fair on this occasion.

The Complainant told me that she felt it was a personalised approach to her. It is hard to argue with that perception when the phone call of June 9 was not prefaced in a participatory forum of any kind to discuss the change which should have been impersonal. I am struck by the realisation that the Respondent did not provide an avenue for the complainant to influence her future with the business either through continuing supports or extended lay off or both. I appreciate that the Complainant was the first party to articulate the word redundancy, however, the Respondent retained staff of various lengths of service, which were not visibly and transparently measured against that of the complainant.

It is an important consideration in this case that the Respondent had not maintained the complainant on the pay roll at that time. The State had taken on that role from March 2020. That made me wonder , what was the rush in moving to dismissal . I remembered that it was an extraordinary time in the world of work and find that the decision ,however reflective of short termism was made against that extraordinary time .

I must find that in the absence of any preparatory work, matrix of selection, prior consultation, or discussion that the complainant was unfairly selected for redundancy. This could have been corrected by the provision of an appeal, but none was offered.

 I remain troubled by the mention of a practice surrounding redundancies conducted in 2008, which did not have a record in the organisation’s memory. This was not cured by the absence of foundation documents of employment.

I heard the Respondent representative and am encouraged  when he said that this has since changed for the better.

Reasonableness of the Conduct of the Redundancy:

Not withstanding that the Respondent introduced the termination of employment, rather than redundancy to the complainant on June 9, 2020, they did not surround this in fair procedures.

I can understand that the trading challenges had placed considerable stress on both parties in this case. However, there was an onus on the Respondent to undertake a number of preparatory steps on the road to any redundancy.

Firstly, the Respondent was obliged to comply with the provisions of Section 17(1) of the Redundancy Payments Act 1967 on written notice.

17. Notice of proposed dismissal for redundancy

(1) An employer who proposes to dismiss by reason of redundancy an employee who has not less than [104 weeks] service with that employer shall, not later than two weeks before the date of dismissal, give to the employee notice in writing of the proposed dismissal […].

(2) The Minister may make regulations for giving effect to this section and, without prejudice to the generality of the foregoing, regulations under this section may relate to all or any of the following matters—

(a) the particulars to be stated in the notice,

[(b) the method of service of the notice.]

[(2A) A notice under this section, a redundancy certificate and a claim for a rebate under section 36 may be combined in one document.]

(3) An employer who fails to comply with this section or who furnishes false information in a notice under this section shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding €5,000.

The EAT considered this matter in Employee v Employer UD 192/2012,

The Tribunal under Chair Dorothy O’Donovan, BL held that the respondent had failed to adhere to any fair procedures or indeed a compliance with Section 17(1) of the Act.

I appreciate that the RP 50 form is no longer universally relied on in the early days of evolution of redundancy, given the state tax rebate has been rescinded and it being used mainly in contested redundancies. However, the document itself has the capacity to focus minds.

The Tribunal also captured a lack of engagement as to “the possibility of alternatives to redundancy” 

An appeal of the decision to make the employee in that case, who had worked through a number of jobs with transferable skills was not provided.

I have identified a similar course of events in the instant case.

I understand that the Respondent was operating in an emergency period and genuinely believed their actions to let 3 staff go was both necessary and proportionate.

However, in the Complainants case, I have found that the Respondent fell short of what a reasonable employer in receipt of state subsidies and zero wage bill for the complainant would do.

I have reflected on the recruitment / reassignment opportunity that followed in January 2021, which neither party explored. However, this post-dated the decision taken to dismiss the complainant.

In a recent Labour Court Case of

Zeus Packaging Group v Grainne O’Hara UDD 2269

Deputy Chair Louise O’Donnell identified notable shortfalls in best practice in how a redundancy was conducted.

Taking all of these factors into consideration the Court finds no serious or worthwhile consultation took place with the Complainant prior to the decision to make her redundant. The process used by the Respondent was not clear and transparent the Court also finds that no substantial consideration was given to alternatives to dismissing the Complainant by way of redundancy.

For my part, I have found this case to be frail for want of earlier representation in the workplace for both parties. I found that both parties were struggling emotionally and economically in June 2020 and would have benefitted greatly from a tool kit for redundancy as exhibited by Mr Cullinane. I am hopeful that the Respondent will give serious consideration to amending their Policies to take account of such a navigation tool. It may never be needed but it would be a useful mutual reference point.

I have found that the Respondent acted unfairly in both the selection and conduct of this genuine redundancy. The process was bereft of fair procedures, representation, or appeal

I note that the Complainant did not advance the argument regarding being replaced by a respondent family member. I accept the Respondent submissions in that regard.

I must conclude that the claim for unfair dismissal succeeds but must be balanced against the complainant’s overzealous approach to executing the redundancy, without seeking to reverse the decision.

The Complainant was unfairly selected for redundancy and was unfairly dismissed.

CA-00040872-002 Claim Terms of Employment

It is not disputed that the Complainant was not provided with the statement in writing as provided for in section 3 (1) of the Act.

Such a document would have assisted the parties in the operation of the contract of employment. I am encouraged that this practice has now been corrected across the respondent businesses. However, I have identified a continuous breach of section 3 of the Act. I cannot accept that an Employment Agency carries any liability here.

Written statement of terms of employment.

3.— (1) An employer shall, not later than 2 months after the commencement of an employee’s employment with the employer, give or cause to be given to the employee a statement in writing containing the following particulars of the terms of the employee’s employment

The claim is well founded.

CA-00040733-001 Claim for Unfair Dismissal

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 have found that the Complainant is entitled to succeed in her claim for unfair dismissal on the grounds of unfair selection for redundancy.

I have considered all options of redress open to me. However, in light of the divide caused by the redundancy in an otherwise fruitful employment, I find compensation is the only practical option at this time.

The complainant had a gross salary of €384.62. She has not found new work to date of hearing. I understand the point made by Mr Cullinane on the lack of PRSI credits available to the complainant on PUP. However, I must measure financial loss attributable to the dismissal and have regard for any contribution made by the complainant to her dismissal and any evidence of loss and mitigation.

I understand that the complainant is seeking to relaunch on a part time basis into the workplace. However, in accordance with the terms of Section 7 of the Act. I cannot hold the Respondent wholly liable for that desire.

I would have preferred to see a more extensive effort at mitigation to off set the reported loss by the complainant.

I am not persuaded that ADJ 28766 is reflective of comparable circumstances.

(S7 (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—

(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,

(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,

(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, 

(d) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,

(e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.

(2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—

(a) under the Social Welfare Acts, 1981 to 1993, in respect of any period following the dismissal concerned, or

(b) under the Income Tax Acts arising by reason of the dismissal,

shall be disregarded.

I order the Respondent to pay the Complainant €18, 461 as just and equitable compensation for her unfair dismissal.

This is an additional figure to both the covid payments received to date of dismissal and the redundancy lump sum payment.

CA-00040872-002 Claim Terms of Employment

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 7 of the Terms of Employment (Information) Act, 1994, requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 7 of the Act.

I have identified a continuous breach of Section 3 of the Act and I order the Respondent to pay the Complainant €769.24 in compensation in respect of the contravention.

Claim for unfair dismissal, unfair selection for redundancy, terms of employment