Complainant

Respondent

Parties

Angela  Fitzgerald

B.R. Marketing Limited

Representatives

Ursula Cullen, Miley & Miley Solicitors/Katherine McVeigh BL

Hugh Hegarty Management Support Services (Ireland) Ltd

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the

CA-00045552-001

05/08/2021

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

CA-00045552-002

05/08/2021

On or about the 19th of March 2021 the Complainant was informed that she would be made redundant arising from the retirement of the Marketing Director.

The Complainant commenced employment on or about the 20th of December 2013 in an administrative role; however, the Complainant stated that over time her role expanded to include product marketing and research responsibilities.

When her direct report retired the Company decided to reorganise and it informed her that her role would no longer be required.

She alleges that the Company failed to engage in any meaningful consultation with her. That she fulfilled a diverse range of roles other than providing support to the retiring director and that she wished to remain in employment. However, the Company had made up its made and made her redundant while it continued to recruit new staff for marketing and sales roles.

The Company detailed their Redundancy termination payment of statutory redundancy, her holiday entitlement, and an ex-gratia payment of €5,1228.

The Complainant stated that she was badly treated by the Respondent. While the Company has the right to reorganise, the Respondent had an obligation to engage in a meaningful consultation. This simply did not occur. The Company had decided to make her redundant. The role may be redundant, that does not mean that the incumbent also should be made redundant.

The Complainant stated that including administration her duties were as follows:

·         Managing new product leads

·         Price call enquiries

·         Liaising with brand managers

·         Pricing on new products

·         Arranging merchandising

·         Account manager support

·         Monthly Sales Reports

The Complainant stated that while the Pandemic gave rise to remote working, profit at the Company in fact increased during this period.

It is alleged that the Company gradually eroded her role and stripped away her duties so that she could be made redundant.

The Respondent failed to attend to present their case. I am satisfied that the Respondent was notified of the date, time, and venue of the hearing.

The Complainant has made out a case that the Employer acted unreasonably and unfairly towards her. It had a duty to engage in consultation with her which it failed to do.

I note in Redmond on Dismissal Law 3rd Ed:

[17.29]

In Sheehan and O’Brien v Vintners Federation of Ireland Ltd 41 the EAT held that the claimants had been unfairly dismissed even though the redundancy was found to be genuine. The employees provided proposals to the company on how their jobs could be retained and the company did not take these into consideration. The tribunal was critical of, inter alia, the employer’s failure to ‘consider earnestly the claimants’ proposals regarding the reorganisation of the work which would have realised significant savings’. 42

I note Regan and Murphy Employment Law 2nd Ed:

Individual consultation

[19.80]

With regard to an employer’s obligation to consult in the context of individual redundancies, the principles are well summarised by the English EAT in the case of Mugford v Midland Bank plc 130 as follows:

(a)where no consultation of any kind has taken place, the dismissal will normally be unfair, unless the Tribunal finds that a reasonable employer would have concluded that consultation would be an utterly futile exercise in that particular case.

(b)consultation with the trade union over selection criteria does not of itself release the employer from consulting with the employee individually, who is identified for redundancy.

(c)it will be a question of fact and degree for the Tribunal to consider whether consultation with the individual and/or his union was so inadequate as to render his dismissal unfair, viewing the overall picture up to the date of termination.

In Cronin v RPS Group, Tallaght UD 2348/2009 and cited in the Arthur Cox yearbook 2011 the tribunal determined that:

The EAT accepted that a genuine redundancy situation existed but concluded that the employer did not act reasonably when it came to selecting the claimant for redundancy. It cited the following grounds for upholding the claim:

failure to advise the claimant of the criteria to be applied for redundancy;

failure to give her the opportunity to make representations on her own behalf in respect of those criteria;

failure to provide an appeal mechanism for the claimant;

the company adhered rigidly to a system of selection that did not provide for any consideration of redeployment;

failure to have regard to the claimant’s length of service.

I note in this case an appeal was conducted; however, the Complainant stated that process was a tick box exercise and was not genuine.

In St Ledger v Frontline Distribution Ireland Ltd [UD 56/1994] the Employment Appeals Tribunal determined that the statutory definition of redundancy had two important elements, namely ‘impersonality’ and ‘change’ In the absence of a transparent process it is difficult to assess if the process in fact is impersonal.

I have only heard one side and based on sworn evidence must conclude that the consultation was inadequate and renders the dismissal unfair. It was stated under oath that no genuine effort was made to look at alternatives. While the role may have been made redundant, it did not follow that the Employee would be made redundant in a company that was expanding.

The Complainant is on a monthly salary of €3125. At the time of the hearing the Complainant had not obtained another position. There is a duty on the Complainant to mitigate her loss.

The role of the Complainant has been suppressed. No other employee has been recruited to carry out that role.

The Employer has the right to re-organise their business so that it is more efficient or to meet a strategic goal. It is not up to the tribunal to stand in the shoes of the Employer other than to assess how reasonable it has been during the selection process.

When questioned about her experience it became clear that the Complainant’s experience is primarily administrative. It is true that the Company has recruited new employees; however, it is not clear if any of those roles could be fulfilled by the Complainant.  While she selected both reinstatement and compensation as redress options, she cannot be reinstated as her role no longer exists.

Allowing for the breakdown in the working relationship in this case I don’t recommend re-engagement and having regard to what the Complainant’s preferred redress of compensation.

Section 6 of the Act states that:

(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

On the facts presented at the hearing, principally that consultation was inadequate I find that the Complainant was Unfairly Dismissed.

I note that at 7(3) of the Act Financial Loss is defined as:

(3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;

Section 7(2) of the Act states that:

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,

In Redmond on Dismissal Law 3rd edition at:

[24.72]

The common law rule of mitigation of damages applies to compensation for unfair dismissal. Questions of mitigation are questions of fact. The burden of proof lies on the party seeking to allege that another has failed to mitigate loss. 111 Sir John Donaldson explained the duty in AG Bracey Ltd v Iles: 112

‘The law is that it is the duty of a dismissed employee to act reasonably in order to mitigate his loss. It may not be reasonable to take the first job that comes along. It may be much more reasonable, in the interests of the employee and of the employer who has to pay compensation, that he should wait a little time. He must, of course, use the time well and seek a better paid job which will reduce this overall loss and the amount of compensation which the previous employer ultimately has to pay.

The test to be applied is an objective one in determining if the employee acted reasonably.

The Complainant has a duty to mitigate her loss and while evidence was presented that she had looked for work and was unsuccessful, I determine that 6 months is a reasonable time to have found a comparable role in a buoyant employment market. I award €18000 in compensation in addition to all other payments that she has received from her employer as a just and equitable award in all of the circumstances.

I find that the Complainant was Unfairly Dismissed.

The Respondent failed to attend at the hearing. I am satisfied that they were informed of the date, time, and venue of the hearing. The Respondent was also informed that the hearing would be delayed for 1.5 hours to allow them to attend on the day of the scheduled hearing. No representative of the Company attended.

On the facts presented at the hearing, principally that consultation was inadequate I find that the Complainant was Unfairly Dismissed.

The Complainant has a duty to mitigate her loss and while evidence was presented that she had looked for work and was unsuccessful, I determine that 6 months is a reasonable time to have found a suitable role in a buoyant employment market. I award €18000 in compensation in addition to all other payments that she has received.

Unfair Selection