Complainant

Respondent

Anonymised Parties

Accounts Assistant

Security Company

Representatives

Sean Ormonde & Co.

Management Support Services (Ireland) Ltd

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-00044224-001

19/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00044224-003

19/05/2021

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044293-001

24/05/2021

On 19 May 2021, the Complainant submitted three separate complaints to the WRC – including a complaint of unfair dismissal under the Unfair Dismissals Act, 1977 (CA-00044224-001) and a complaint of discriminatory dismissal under the Employment Equality Act, 1998 (CA-00044224-002).  On 24 May 2021, the Complainant submitted an additional complaint of discriminatory dismissal under the Employment Equality Act, 1998 (CA-00044293-001). 

On 28 May 2021, the WRC wrote to the Complaint’s representative noting that the Complainant had referred a complaint of discriminatory dismissal under Section 77 of the Employment Equality Act, 1988 (CA-00044224-002) and a claim of unfair dismissal under the Unfair Dismissals Act, 1977 (CA-00044224-001).  The WRC informed the Complainant’s representative that, in accordance with Section 101(4)(a) of the Employment Equality Act, 1998, the complaint under the Employment Equality Act would be deemed to have been withdrawn unless, not later than 41 days from the date of the correspondence, the Complainant withdraw the claim under the Unfair Dismissals Act, 1977.

The Complainant’s representative was requested to advise the Commission in writing, not later than 41 days of the date of the correspondence, if the Complainant wished to withdraw the claim under the Unfair Dismissals Act, 1977.  The Complainant’s representative was informed that if the Complainant withdrew the claim of unfair dismissal within the 41-day period, the Commission would then make arrangements to process the complaint which had been submitted under the Employment Equality Act, 1998.

The Complainant’s representative was also informed that if there was no response to the correspondence within the 41-day period, the complaint under the Employment Equality Act, 1998 would be deemed to have been withdrawn and the Commission would then make arrangements to process the complaint which had been submitted under the Unfair Dismissals Act, 1977.

On 28 April 2022, the WRC wrote to the Complainant’s representative to confirm that, as it had not responded to the Commission’s letter of 28 May 2021, the complaint of dismissal under the Employment Equality Act 1998 was deemed to have been withdrawn and that the Commission would make arrangement to hear the complaint under Unfair Dismissals Act, 1977.

At the outset of the hearing the Complainant withdrew the following complaints: CA-00044224-003 and CA-00044293-001, leaving one extant complaint; CA-00044224-001 which was submitted under section 8 of the Unfair Dismissals Act, 1977.

The Respondent submits as follows:

The Complainant began her employment on or about the 19 August 2013, as an Accounts Assistant, with an annual salary of €31,000. During the course of her employment, the Complainant’s duties increased to encompass the role of payroll assistant and she became responsible for month end and reconciliations. At the time, the Complainant was happy with the added responsibility and the opportunity to develop. The Complainant’s salary increased to €35,000 per annum at that time and by the time of her redundancy her salary has increased to €45,000.

It is noted that the Complainant has stated in her submission that she had taken on the role of management accountant.  The Respondent rejects this assertion in its entirety.  The Respondent submits that a management accountant is a senior role, usually held by a qualified accountant, who advises the company on matters such as company investment, risk management, assets acquisition, budgeting, planning and financial decision making. This must be contrasted with the Complainant’s role which was accounts and payroll assistant which is an administrative or clerical role within an organisation.

The Complainant was well regarded within the Respondent organisation, and there were no issues with the quality of her work. However, it is the Respondent’s strong contention that the role or duties carried out by her, and the remuneration paid to her, was not that of a management accountant.

In or around mid to late 2019, the parent company began a review of the structure of both the Respondent company and the wider group of companies and an external accountant was enlisted to assist in the review and necessary restructuring.

In or around January 2020, the Complainant’s manager gave notice of his intention to resign.  The Complainant informed the Respondent of her pregnancy in or around early February 2020.  The Complainant was congratulated on her news.  Generally, prior to her maternity leave the relationship between the Complainant and Respondent was positive.  In April 2020, the Complainant and her manager both left the Respondent company, therefore, there was a lacuna in the accountancy department. As a short-term solution to the staffing issues, the external consultant took over many of the accounting department’s functions while also continuing to work on the restructuring of both the Respondent company and the wider group.

From the Respondent’s perspective, the employment relationship between the Complainant and the Respondent at the time of her maternity leave was normal.  While the Complainant was on maternity leave a number of changes occurred within the organisation. One of the first decisions in relation to the restructuring was the outsourcing of the wages function which would have constituted approximately 40% of the Complainant’s duties. In addition, over the next year the Respondent recruited an in-house accountant, whose role it was to oversee the accounts including payroll and relieve the external consultant of these duties.

When the Complainant contacted the Respondent, regarding the end of her maternity leave and the taking of annual leave, the Group General Manager responded to the Complainant by telephone to confirm the annual leave.  He also made the Complainant aware of the changes the company had made and asked her to attend a meeting to discuss the changes and the potential effect they would have on her.

The Group General Manager met with the Complainant on three separate occasions and on each occasion the Complainant was offered the right of representation.  The Respondent submits that during the course of the first meeting held on or about the 25 February 2021, the situation was explained to the Complainant, who understood, and agreed, that her position was redundant. In addition, when the Group General Manager explored alternative employment with the Complainant, she indicated very early on that she was not interested in part time work or in looking at opportunities within the larger group of companies. In fact, the Complainant quickly turned the conversation to money, and the rest of the discussions focused on negotiating an acceptable redundancy package.  Unfortunately, the parties could not reach an agreement on a redundancy package.

Legal position of the Respondent

The Complainant, on her Workplace Relations Complaint form states that she has been unfairly dismissed, and that it is her claim that the position of Payroll and Accounts Assistant is not redundant and the individual who was taken on to cover her remains engaged by the company. The Respondent rejects these claims.  The Respondent strongly contends that the position of Payroll and Accounts Assistant is redundant and that the functions of the role have been subsumed into alternative roles or outsourced to an accounts and payroll provider.

The Respondent submits that it made a decision to carry on its business with fewer employees.  The Respondent submits that this falls with the definition of redundancy under the Redundancy Payments Act.  Where redundancy is wholly and mainly the reason for the termination of the employment of the employee then, in accordance with section 6(4)(c) of the Unfair Dismissals Act 1977, the dismissal is not an unfair dismissal under the Act. 

The Complainant has outlined in her submission that the Respondent has failed to follow fair procedures during the redundancy process.  In response to this claim, it is the Respondent’s contention that there is no statutory requirement for an employer to engage in any process in relation to a redundancy; that is to say there is not an agreed procedure in statute that must be followed in every circumstance. This was the very principle enunciated by the Employment Appeals Tribunal in the case of Nigrell v Sandra Graham UD690/2013 where in relation to the failure to consult the Employment Appeals Tribunal stated:

"the Respondent's representative accepted that there was a genuine redundancy situation and that the Respondents complaints related to a failing on the employer's part of ensuring fair procedures.

The tribunal was not persuaded by the Respondent's arguments that in all instances an employer must

(a)      Afford the affected employee an opportunity to respond to the proposed redundancy or

(b)      Facilitate the employee by having a representative present or to have the employee's views on the redundancy fairly and impartially considered or

(c)       Have the right to appeal the decision to make the employee redundant.

The Respondent further submits that to claim that the employer has failed to follow procedure, where there is no set and agreed procedure to be followed is a claim that cannot be substantiated. The Respondent submits that it acted fairly and in a reasonable manner in accordance with the relevant legislation.

The Respondent submits that the Boucher and the CompAir cases, cited by the Complainant, relate to the selection matrix where a number of staff were being made redundant and a number of staff were remaining in employment.  The Respondent submits that, in the instant case, the Complainant was the only individual within the company fulfilling the role that was ultimately selected for redundancy; it was her position and not her that was selected.  The Respondent submits that the criterion for selection was both fair and impartial. The Respondent submits that the Complainant was notified that her position was being made redundant and that her job was at risk. She was given the opportunity to discuss the situation in an open and transparent manner. The Respondent submits that it was happy to consider any suggestions regarding alternative work but that the Complainant did not propose any alternatives.  The Respondent submits that it offered the Complainant alternative work albeit with reduced hours, which, it argues, shows that the decision to make the Complainant redundant was impersonal and not based on any aspect of the Complainant's personality or factors that were personal to her.  The Respondent submits that the decision that was made was made in the interest of the Respondent company and had nothing to do with the Complainant.

Conclusion

The Respondent submits that the termination of the Complainant's employment was solely and entirely as a direct result of the position of Accounts Assistant being made redundant. The Complainant was contacted and asked if she would like to discuss the matter prior to her return to work.  The Respondent submits that a fair and transparent consultation process was conducted and the Complainant was offered alternative roles within the organisation.  The Respondent submits that it was made clear to the Complainant that there was no issues with her performance.   The Respondent submits that the Complainant indicated that she was not interested in discussing alternative employment and moved the conversation towards a redundancy package.  The Respondent submits that it is not obliged to compel the Complainant to discuss alternatives to redundancy where the Complainant clearly indicated that she was not interested in exploring such alternatives.  The Respondent submits that the Complainant and the Respondent entered into discussions but could not reach and agreement in relation to the ex-gratia element of the redundancy package. 

The Respondent submits that the position of Accounts Assistant was made redundant; it is a position that no longer exists within the Respondent organisation and, therefore, a genuine redundancy existed.  The Respondent submits that, throughout the process, the Complainant never disputed the redundancy until agreement on the redundancy package could not be reached.  

Evidence of the General Manager

The General Manager submitted that the external consultant was brought in to look at the group and all the associated companies.  While the Complainant was on maternity leave, the external consultant absorbed most of her duties and a temporary employee carried out the payroll function.

The General Manager said that, at the time the Complainant returned from maternity leave, her position no longer existed.  The accounting function was carried out by group finance, the salary function had been absorbed by group finance and payroll was being done by a part-timer.

Cross examination of the General Manager by the Complainant’s counsel

The General Manager confirmed that, although he was not terribly familiar with the duties of the Complainant and that she reported directly to the Financial Account, he was satisfied that her position no longer existed when she returned from maternity leave.

The General Manager submitted that it was never envisaged that the Complainant would become the company’s financial accountant.

Evidence of the retired Group General Manager

The retired Group General Manager said that the role of the external consultant was to review all the roles in the group with a view to streamlining the organisation.  The external consultant started working with the Respondent on 19 November 2019.  The Financial Accountant resigned effective from 1 April 2020 and his responsibilities transferred to the external consultant. 

When the Complainant went on maternity leave, a part-timer took over the payroll function and the Complainant’s other responsibilities were shared out amongst other members of staff. 

On 16 February 2021, the retired Group General Manager emailed the Complainant to bring her up to date with developments in the organisation during her absence.  Following the email, he met the Complainant on 25 February 2021 and 4 March 2021.  He offered her the opportunity to have representation at these meetings but she declined. 

At the first meeting, he informed the Complainant that her job was at risk of redundancy.  At the second meeting, it became clear that the Complainant was not interested in part-time work and the discussion turned to a possible financial package.  The Complainant did not suggest any alternative to redundancy.  Nor did she suggest that she had been discriminated against on the basis of her pregnancy and maternity leave.  The retired Group General Manager said that he was always supportive of expectant or new mothers.  The second meeting concluded with him agreeing to prepare figures in relation to the Complainant’s redundancy.

The third meeting took place on 9 March 2021.  He offered the Complainant an ex-gratia payment of €1,500 in addition to her statutory redundancy.

In late 2020, the Respondent advertised for a Management Accountant to replace the external consultant.  The position was filled in May 2021. 

Cross examination of the retired Group General Manager by the Complainant’s counsel

The retired Group General Manager confirmed that nothing was ever said to the Complainant about the Management Accountancy vacancy as it was his understanding that the Respondent organisation was looking for a qualified person for the job.

Evidence of the retired Group Manager

The retired Group Manager said that she knew the Complainant very well and that there was no animosity towards her due to her pregnancy.

The retired Group Manager confirmed that she was involved in the recruitment of the new Management Accountant.  Her understanding was that it was a senior role with responsibility for business growth and strategic development.  The organisation was looking for someone with an accounting qualification.  She would see the role as a replacement for the external consultant.

The retired Group Manager said that she did a lot of the screening interviews.  She said that the Complainant was aware of the vacancy and asked if it was her job.  The retired Group Manager told the Complainant that it was a different job.

Cross examinationof the retired Group Manager

The retired Group Manager confirmed that the successful candidate for the management accountant position would have needed management skills which the Complainant did not have.  It was a broader role than the Complainant’s role.  The organisation was looking for an individual with experience in strategy, business growth and people management.  She knew that it was not the Complainant’s role. 

The retired Group Manager said that the Complainant asked her about the vacancy in an almost jokey way when she visited the office.  She was asked how this could have happened when the Complainant had never come into the office during her maternity leave.  The retired Group Manager said that she was sure the interaction had occurred although she was not sure when.

The retired Group Manager said that the Management Accountant role required experience in driving business growth and experience of working in an SME environment.  The retired Group Manager was unable to say what qualifications the successful candidate for the Management Accountant role had or what was their work experience prior to joining the Respondent organisation.

Closing statement

The Respondent submits that the Complainant’s redundancy was a genuine redundancy because the Respondent had decided to carry out its business with fewer employees and in a different manner for which the Complainant was not qualified. 

The Respondent submits that it effected 4 or 5 redundancies in total and that there can be no suggestion of pre-determination in relation to the decision to make the Complainant redundant.  Rather, it was an unfortunate confluence of circumstances which led to the Complainant’s position becoming redundant. 

Following on from the work of the external consultant, changes were made in the operation of the Respondent organisation and it was decided to employ a qualified accountant with relevant experience.  The Respondent confirmed that there were some discussions with the new accountant in December 2020 before she was hired.  The Respondent said that the Complainant’s position was not replaced. Instead, her duties were reassigned elsewhere.

The Respondent strongly refutes the view that the Respondent has no place for pregnant women or new mothers.

The Respondent submits that the Complainant failed to mitigate her loss.   She did not submit any evidence of job applications and is currently not available for work.  Furthermore, the Complainant was on certified sick leave until December 2021.

The Complainant submits as follows:

The Complainant was employed by the Respondent for a period of approximately seven and a half years from August 2013 until March 2021.  The Complainant was initially hired as an Accounts Assistant. The Complainant showed an interest in learning and had an excellent track record at work. As a result, over time her role evolved to the extent that she was undertaking the work of a management accountant. This was particularly the case after the previous management accountant moved into a new role elsewhere in the Respondent company in 2019.

The Complainant had observed the management accountant doing his job between 2013 and 2019 and had seen the level of stress he was under.  When he moved on, the Complainant was advised that she would be carrying out his duties. There was no consultation or chance to sit with the previous management accountant for handover purposes. As a result, the Complainant was responsible for the audit that year.  The Complainant was thrown in at the deep end, but maintains that all things considered, she managed well.  At that point, the payroll function for which the Complainant had been initially hired, accounted for only 20% of her role. As a result of her increased responsibilities, the Complainant was able to negotiate a salary increase from her starting salary of €31,000 in 2013 to €45,000.

The Complainant's role had expanded to include the following responsibilities since taking over the role of management accountant:

a)           Weekly payroll for approximately 200 staff

b)           Monthly payroll for approximately 30 staff

c)           Payroll reporting as required

d)           Maintaining staff records

e)           Producing monthly management accounts

f)            Processing and sign off of accounts payable invoices

g)           Reconciliation of all balance sheet accounts

h)           Day to day running of current account

i)            Monthly bank reconciliations (Current and invoice discounting account)

j)            Running invoice discounting bank account

k)           Filing revenue returns VAT, PAYE

l)            Cashflow

m)         Responsibility for year-end audit.

The Complainant became pregnant in April 2019.  During the final weeks prior to commencing her maternity leave, several staffing changes occurred within the Respondent company. The Complainant contends that she was not kept abreast of these changes and was excluded from management meetings.  The Complainant felt that the more visible her pregnancy became, the more invisible she became in the eyes of the Respondent.

An external consultant was brought in when the Complainant was six months pregnant; she understood he was there to complete a specific project. The Complainant contends, however, that it became increasingly clear when the external consultant was asked to shadow the Complainant two weeks before her departure on maternity leave, that he had, in fact, been engaged to replace her. The Complainant was moved to another part of the office so that she sat near to the external consultant so that he could shadow her. 

In relation to the payroll function, the Complainant was asked just three weeks before she was due to go on maternity leave to write up step-by-step procedures for carrying out her work. This was an enormous task and the Complainant felt that nobody would be able to take over her role simply by following her notes as it required a training period of a number of weeks.  The week before the Complainant was due to go on maternity leave, the Respondent hired a new employee to be trained in by the Complainant to complete the weekly payroll function. This person did not return to work after the first week.

The Complainant felt under so much pressure that she was forced to visit her doctor and finish up work a week earlier than anticipated. The Complainant states this was due to the stress of being asked in her final three weeks of work to train in people without any experience to take on a demanding role, while at the same time completing the year end audit.

During the first week of the Complainant's maternity leave, having finished up early due to work-related stress, the Respondent contacted the Complainant asking for her assistance to complete the payroll.  While she was on maternity leave, the Complainant learned that the external consultant who was shadowing her had, as she suspected, taken over all the non-payroll aspects of her role.

The Complainant had a difficult pregnancy and labour and suffered with post-natal depression in the aftermath which she feels was exacerbated by the hostile work environment she was subject to during her pregnancy. 

In the run up to the Complainant's planned return to work, she was asked by the Respondent to contact it.  The Complainant submits that this contact was initiated due to her imminent return to work and that she was no longer wanted in the workplace.  On 16 February 2021, the Complainant was informed that a company restructuring was taking place and that her role was being made redundant as the payroll function was going to be outsourced.

The Complainant submits that she had not been informed of the likely redundancy or given the chance to propose alternative positions. She was not offered a chance to reduce her hours or days of work. The Complainant was simply informed that she was essentially redundant. The Complainant was never given the option to continue her job without the payroll function.

The Complainant submits that the letter of termination which she received referred to her having been initially offered a part time role, which was in fact the payroll function she had been informed was being outsourced. The Complainant did not understand this as payroll had made up such a small overall percentage of her work week. The Complainant spent, at most, one day per week doing payroll, sometimes less than this. It was made very clear to the Complainant that this responsibility was now being outsourced and there was nothing that she could do about it.

It transpired that the Respondent then employed somebody two days a week to complete the payroll function, while a new employee has been hired to take over from the external consultant and complete the management accountant aspects of the Complainant's role.

The Complainant submits that the Respondent company was a toxic workplace with a controlling and patriarchal culture. She submits that there were only a few female employees, and most of these were older and/or did not have children. She submits that the Respondent did not want to deal with the hassle of maternity leave and someone with a young family.

Legal Submissions

It is submitted that the selection of the Complainant for redundancy was both procedurally and substantively unfair and contrary to section 6(3) of the Unfair Dismissals Act 1977 (as amended) (the Act) which provides that:

"(3) Without prejudice to the generality of subsection (l) 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 [as amended by the Industrial Relations Act 1990], 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.”

The Complainant submits that, in cases where the above section does not apply, such as the present case, the Employment Appeals Tribunal has consistently held that the general provisions of section 6 apply. In the case of Boucher v. Irish Productivity Centre [1994] ELR 205, the Employment Appeals Tribunal highlighted this: "In these circumstances and in the absence of any guidelines or precedent the employer is obliged to act fairly in relation to the criteria applicable in selecting who is to go and who is to stay and to apply such criteria fairly to each individual in order to bring about a fair assessment and decision The assessment is to apply to all in the group and not just to some."

Burden of proof

Section 6(6) of the Act, firmly places the burden of proof on the employer to prove that the dismissal of an employee was fair:

"(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. "

In the case of JVC Europe Ltd v. Panisi [2011] IEHC 279, Charleton J. emphasised that this burden of proof is placed on an employer in an alleged redundancy situation. He stated: "A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s. 7(2) of the Redundancy Payments Act 1967, as amended, provides, "reasons not related to the employee concerned." Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal."

Therefore, the Respondent has the burden of proving that there was a genuine redundancy situation and that the Complainant was fairly selected for redundancy.

The Complainant worked for the Respondent for seven and a half years. The Complainant was highly educated and skilled with significant experience gained both before, and during, her employment with the Respondent.  The Complainant demonstrated a high degree of flexibility, completing a broad range of tasks, duties and training in her role. This was reflected in the fact that the Complainant was asked to take over the previous management accountant’s role when he moved elsewhere within the group. The Complainant submits that at no time did the Respondent demonstrate that there was a genuine redundancy situation in relation to her position. Further, at no stage did the Respondent explain how it identified the Complainant's position as being at risk of redundancy or how it arrived at the decision to make her redundant. The Complainant submits that the Respondent has not adduced any evidence to show that it undertook a formal evaluation to determine that it was the Complainant's position that should be made redundant and no details of any objective facts, matrix, criteria, etc. were provided in support of its decision.

Fair procedures

It is further submitted that if there was a genuine redundancy situation, which is denied, the Respondent failed to follow fair procedures in the way in which the redundancy was implemented. The Complainant cites the following precedents in support of its position: Boucher v. Irish Productivity Centre [1994] ELR 205 and Williams v. CompAir [19821 1 ICR 156 (at p. 162).

Consideration of alternatives to redundancy

The Complainant submits that the WRC and the Labour Court have consistently stressed the obligation on an employer to consider alternatives to redundancy.  The Complainant cites the case of Liam Sheehan & John O'Brien v. Vintners Federation of Ireland Limited [2009] 20 E.L.R 155 where the Tribunal highlighted the importance in giving consideration to alternatives to redundancy:

"The Tribunal also regrets that the respondent did not give any genuine consideration to the proposals put forward by one of the claimants (after consultation with the other claimant and another employee) to resolve the difficulties that the respondent was encountering.”

The Complainant submits that, in the present case, absolutely no consideration was given to an alternative to redundancy.

Redundancy as an impersonal act

The Complainant submits that the legislation and caselaw consistently provide that redundancy is an impersonal action. The Complainant cites Panisi where Charleton J. noted: "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."

The Complainant submits that she was not provided with any skills matrix, report, facts, figures or equivalent document outlining why she was selected for redundancy and, accordingly, that her selection for redundancy was unfair.

Redress sought by the Complainant

The Complainant seeks compensation for having been unfairly dismissed and submits that the size of this award should fall on the higher end of the Adjudicator's jurisdiction which rests at 2 years' salary or €90,000.

Direct evidence of the former Financial Accountant

The former Financial Accountant said that in April 2018 the Chairman asked him to train the Complainant to take over his role and that he would move elsewhere within the group.  This meant that from April 2019, the Complainant was effectively looking after the full finance function for the Respondent company.  The former Financial Accountant said that that the Respondent’s auditors were very happy with the Complainant’s performance. 

The former Financial Accountant said that the Complainant reported directly to the Chairman and he was very surprised when she was dismissed as he was of the opinion that she was well able for the role. 

The former Financial Accountant confirmed that he had the same accounting technician qualification as the Complainant and that he had qualified for the role of Financial Accountant through experience.

Direct evidence of the Complainant

The Complainant confirmed that following her dismissal, she did not secure alternative employment until January 2022. 

The Complainant said that she had expected that when she returned from maternity leave she would slot back into her previous role.

The Complainant said that her last month of work before her maternity leave was absolute chaos and there was nobody to take over her work.  There was no opportunity to train anyone up.  Instead, she was asked to write up the procedures for carrying out her role.  In addition, she was also asked to undertake audit work. 

The Complainant said that despite working closely with the external consultant before going on maternity leave, she was not informed that he was there to look at the company and make savings.  Nor was she informed that he was going to take over her role in her absence.  The Complainant said that nothing was ever discussed with her before she went on maternity leave and that she did not know who was doing her job in her absence.

The Complainant said that before she went on maternity leave, she felt very stressed in case her work was not done to her standards in her absence.  She also felt that she was being ignored. 

The Complainant confirmed that when she went on maternity leave, she did not make any contact with the Respondent until February 2020.  Very quickly it became evident to her that she would not be returning to her job.  She felt that the 2 day a week payroll position was offered to her very begrudgingly and then taken off the table.  The Complainant felt that payroll was the most menial part of her role and that if she returned to that position, it would be a completely different role to her role before going on maternity leave when she was responsible for running the accounting function.

The Complainant said that she found out about the Management Accountant position from a friend who had seen it online.  The Complainant said that she had not been in the office while on maternity leave and, therefore, could not have spoken to anybody about it. 

Cross examination of the Complainant by the Respondent’s representative

The Complainant said that she did not apply for the position of Management Accountant as she already felt that she would not be welcomed back.

The Complainant confirmed that she was on certified sick leave due to post-natal depression from April to December 2021.  For health reasons, she chose not to take any job until January 2022 when she worked for three months at an annual equivalent of €35,000 which was lower than her annual salary of €45,000 before the termination of her employment with the Respondent.  The Complainant gave birth to her second baby in August 2022 and is not currently available for work. 

Closing statement

The Complainant submits that the Respondent has not provided any report from the external consultant to support its contention that the Complainant’s redundancy was part of a larger reorganisation. No other facets of the restructuring have been mentioned.  The Complainant contends that, if it was a genuine redundancy, such information would be available. The Complainant submits that she was not informed of her redundancy until she contacted the Respondent prior to her return to work after maternity leave.  The Complainant submits that the only inference that she can make is that her dismissal was wholly or mainly due to pregnancy contrary to section 6(2)(f) of the Unfair Dismissals Act, 1977.  The Complainant submits that the Respondent did not act reasonably or fairly in relation to her.

Section 7 of the Redundancy Payments Act 1967, provides that an employee is entitled to a redundancy payment if the dismissal is attributable wholly or mainly to:

“(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.”

The Respondent submitted that the Complainant was made redundant due to a decision to carry out its business with fewer employees and that the work of the Complainant had been distributed and was being carried out by other employees.  During the hearing the Respondent submitted that four or five employees, including the Complainant, were made redundant due to the reorganisation of the business on foot of the work of the external consultant.  If this was the case, I would have expected the Respondent to have adduced evidence to that effect.  However, no evidence in relation to the reorganisation and the consequent redundancies was submitted by the Respondent.  In my view, the absence of such evidence fatally undermines the Respondent’s position.

The Respondent also submitted that it had decided to carry out the accountancy function in a different manner and that a Management Account was employed for this purpose.  The Respondent contended that the Complainant was not sufficiently qualified or experienced for the position and that the Management Account who was employed around the time the Complainant was made redundant was more qualified and more experienced than the Complainant.  However, in her direct evidence the retired Group Manager was unable to tell me what qualifications or experience this individual had which made her more suited to the role.  I then asked the other two representatives from the Respondent company if they could enlighten me.  Neither of them was able to do so.

In the absence of any evidence to support the Respondent’s assertion that the Complainant’s employment was terminated due to redundancy, I find that the dismissal of the Complainant was unfair.

Redress 

Section 7 of the Unfair Dismissals Act 1977 – 2015 stipulates that where a complaint succeeds, redress may be awarded up to a maximum of 104 weeks’ remuneration, based on the financial loss suffered following the termination of employment. 

“ (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …

… (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances,”

The Complainant was dismissed on 30 April 2021.  She was in receipt of Illness Benefit from April 2021 until end-December 2021 and, therefore, she was unavailable for work. Where an employee does not suffer any financial loss as a result of being unfairly dismissed due to illness, as in the case here, the maximum award that may be made for the period of illness is up to four week’s pay as provided for under section 7(1)(c)(ii) above. 

I note that the Complainant worked for a period of three months in early 2022.  In O'Kelly v WYG Engineering (Ireland) Ltd UD 301/2011 the Employment Appeals Tribunal “was satisfied that a new employment only stops loss once it is permanent and on comparable terms to the employment from which a claimant is unfairly dismissed.  The subsequent employment is this case was not such.  While it did not act to stop the loss, account must be taken of the amount of earnings during that period in assessing loss.”  Similar to the situation that pertained in O’Kelly, the Complainant’s employment for the first three months of 2022 was not on comparable terms to her employment with the Respondent as she was in receipt of a lower rate of pay and she was employed on a temporary contract.  

In calculating the level of compensation, I also took into consideration the efforts of the Complainant to mitigate her losses in respect of the periods when she available for work.  The Complainant did not submit any evidence in relation to her efforts to mitigate her loss.  Accordingly, I find that her efforts do not meet the standard set out by the Employment Appeals Tribunal in Sheehan v Continental Administration Co Ltd (UD 858/1999) that a “claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss."

Having considered the written and verbal submissions of the parties and all of the evidence adduced at the hearing of this complaint, I find that this complaint is well founded.  I direct the Respondent to pay the Complainant redress of €15,000.  In reaching my decision, I have taken account the Complainant’s period of unavailability for employment after her dismissal for health reasons; the loss accrued during her period of employment in early 2022; and her failure to provide evidence in relation to her efforts to mitigate her loss.

I would point out that I am constrained by the statute under which this case was referred as to the level of compensation which I can award.  Had I not been subject to that constraint, I would have awarded a significantly higher amount given the unfair treatment to which the Complainant was subjected.

Unfair dismissal on the grounds of redundancy