ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00039408
Parties:
| Complainant | Respondent |
Parties | Helen Finnan | Ivy Technology |
Representatives |
| Mary Paula Guinness BL Niamh Cassidy Solr. Hayes Solicitors |
Complaint:
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00050913-001 | 30/05/2022 |
Date of Adjudication Hearing: 09/11/2022 and 19/01/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(1) of the Unfair Dismissals Act 1977 :
“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(4) of the Unfair Dismissals Act 1977 reads :
“Without prejudice to the generality of Subsection (1) of this section the dismissal of an employee shall be deemed for the purposes of the 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 for which he was employed by the employer to do;
(b) The conduct of the employee,
(c) the redundancy of the employee, and
(d)….”
Lastly, Per Section 6(6) of the 1977 Act in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in Sect 6(4) of the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 6 (7)).
In the case before me the Employer seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee (as provided for in Section 6(4) of the 1977 Act aforesaid). In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of 1967 the Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade, or proposes trading with fewer employees or that the work is to be done differently or that the Employee has not the requisite training or qualification to continue.
At Section 7 (2)(b) it states that a redundancy may be attributable to the fact that the business requirements for an employee to carry out work of a particular kind in the place of employment have ceased.
Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the said dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 30th of May 2022) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence. The matter coms before the WRC on foot of a workplace relations complaint form – prepared by the Complainant - and which issued on the 30th of May 2022. There were two days of evidence.
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Summary of Complainant’s Case:
The Complainant was not represented and made her own case. At the outset, the Complainant made an Affirmation to tell the truth. I was provided with a comprehensive submission dated 19th of October 2022. The Complainant additionally relied on the detailed submission already outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that she was Unfairly dismissed. She has made the case that her selection for Redundancy was pre-determined and stemmed from issues she had previously had with Senior personnel. Further (or in the alternative) the Complainant made the case that her position was not made Redundant and was now being carried out by other members of staff. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Summary of Respondent’s Case:
The Respondent had full representation at this hearing. The Respondent provided me with a written submissions dated November 3rd 2022. I have additionally heard from a number of witnesses for the Respondent. These included the Chief Financial Officer (DB), the HR Director (GP), the Operations Director (DOD) and the Dell Global Account Manager (JMcD). The Respondent witnesses were challenged as appropriate by the Complainant. The Respondent rejects that there has been an Unfair Dismissal and set out the proposition that the Complainant’s client-funded position was made redundant when the client withdrew the said funding as part of an ongoing programme of internal re-structuring being implemented by the Client. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of two days of hearing herein.
The Respondent company is a global electronics repair and service provider and works with some of the world’s largest tech, medico-tech and telecom companies around the world. For the purpose of these proceedings, it is important to note that the Respondent company is contracted by Dell Technologies to repair, refurbish and restore any Dell products (laptops, desktops, workstations and monitors etc) which have been returned by customers and end users to Dell as being in need of repair. As I understand it, the Respondent company operates a high-end industrial unit in Poland where these works are physically carried out.
JMCD is the Respondent Employee in charge of maintaining the Dell global account. He described the Complainant as being a Materials Analyst. The Complainant worked for the Respondent but on the Dell premises in Limerick At all times she was an Ivy Employee and her salary was paid for by Dell as part of the agreed costs which the Respondent billed Dell for each month/year. The Complainant commenced her employment with the Respondent company in 2011. Previous iterations of her job title were Unit Planner or the Service Operations Planner. JMCD explained that the Complainant’s role was to constantly analyse, plan and prioritise what work needed to be done against what parts were readily available or potentially available (after on-site re-conditioning in Poland). The Complainant’s catchment area was Europe, Middle East and Africa and she had to keep on top of unit repairs coming in from all these jurisdictions. The Complainant only worked for the Respondent employer in connection with the Dell account.
In a move which JMCD says was beyond his control, Dell made a decision to bring various roles home to it’s base in Texas. In particular, Dell formed the intention to bring it’s global scheduling and planning of repair work in-house. As I understand it the Complainant’s role was being automated by a new CPP tool which Dell had acquired. This tool now prioritised the repair schedule.
A series of emails was opened to me (dating early November 2021) wherein JMCD explained that the conversation he was having with Mr. CS in Dell recognised that the change being brought about in Texas was going to have an impact locally. CS agreed that Dell would continue paying for the Complainant’s role up to the end of January 2022 but that there would be no further requirement for that role thereafter. It was hoped that the Complainant might be absorbed into the Respondent company in another role.
The Complainant suggested that there must have been more communication (emails) around these matters, but I am inclined to accept Mr MCD when he says there was nothing else.
The Complainant was invited to a meeting on the 8th of November with DOD who was the Complainant’s line Manager. There is some conflict as to what exactly was imparted at this meeting as DOD and the Complainant gave sightly different accounts. DOD says that she advised at this early stage that there was a risk of Redundancy whilst the Complainant says she was told that both herself and the job were gone. DOD does confirm that she indicated that Dell had formally notified the Respondent that there was no longer a requirement for the services of an external Materials Analyst and planner. The Complainant was understandably very upset to learn that her position was in jeopardy. The Complainant had worked for the Respondent for 11 years and was upset to learn that there would only be a Statutory Redundancy package. The Complainant raised the spectre of this being a selection personal to herself as she had had issues with CS (her Dell point of contact) in the past.
This meeting included discussions around what jobs might be available within the Respondent company as well as a suggestion made by DOD to keep an eye on the Dell site as they were always advertising positions.
O the 11th of November 2021 DOD wrote to the Complainant confirming that the role was at risk of redundancy by reason of those decisions taken by the third-party client Dell.
A follow up letter on the 6th of December from the head of HR confirmed situation.
JMCD met with the Complainant on the 6th of December 2021 together with the HR director. At this stage it had been established that any roles currently available in the Respondent company would entail living abroad and this was not something the Complainant was (understandably) prepared to do. The Complainant was advised that the role she currently worked in would be Redundant as of the end of January 2022. Her Statutory Redundancy package was confirmed. I understand that the Complainant was advised that she could take payment in lieu of working out the remainder of the expected duration of the job. This was all confirmed in a letter sent by HR to the Complainant on that date.
I note that the Complainant had been ill but returned to the workplace in early January to complete and work out her Notice on site.
I am finding as a matter of fact that there is nothing to substantiate the claim that there was any element of personal animosity which brought about the end of this employment. The Complainant may have had a workplace issue with Mr CS in Dell back in 2013, but this had been sorted out in a formal mediation process which ended in a handshake. There is no indication or evidence of any difficulty between those parties in the intervening years. This aspect of the Complainant’s case was considered in the Appeal process (overseen by DB) which she had initiated once the decision to make her Redundant had been notified to her.
I do understand that the Complainant might have hoped that the redundancy package would be better than it was. To my mind the Statutory Redundancy, though lawful, was certainly light after 11 years of service. However, no evidence was adduced to suggest that the Complainant was contractually entitled to an enhanced package.
The Complainant did not look for alternative employment before the end of her time with the Respondent company. This opportunity had been given to her and I note she was especially encouraged to look at Dell as an Employer as she had a strong reputation in that workspace.
The Complainant presented me with various emails which she had screen grabbed or downloaded in the course of her last month in the workplace as well as for a period of time after her departure. She and JMCD (for the Respondent) had markedly different interpretations of what these emails meant. The Complainant asserted that they demonstrated that someone or some people (based in Poland) were still, for all intents and purposes, performing her job.
JMCD stated that the emails simply demonstrated that the administrative staff in Poland were working with the information it was now being given directly from Texas. The Planning system (which had been operated by the Complainant) was now fully automated out of Texas and needed to be implemented on the ground at the plant in Poland. JMCD’s evidence was that the Complainant’s own repair planning packages would have always been subject to local tweaking in Poland. I accept that this makes sense to me.
On balance I accept that the Respondent was forced to make the Complainant’s role Redundant when, through no fault of the Respondent, the funding for this role was unilaterally terminated by a third-party client. I accept that this was a shock to the Complainant and very upsetting given her decade of service. It is regrettable that no alternative accommodation could be made, but I must concede that the Respondent is not obliged to create a job where one does not exist.
The Complainant was always entitled to bring this matter before the WRC if she felt the termination was unfair. I hope that the Respondent respects this entitlement, and that it does not have any impact, if and when, the Complainant seeks a reference from her decade long Employer. |
Decision:
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00050913-001 – The Complainant was not Unfairly Dismissed. The Complainant’s employment was made Redundant.
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Dated: 31st January 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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