Complainant

Respondent

Parties

Barbora  Rochlova

National Pen Promotional Products Limited t/a National Pen

Representatives

Mr D O’Brien BL instructed by Ms S Comiskey of Comiskey Solicitors

Mr R Horan of IBEC

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 18 of the Parental Leave Act 1998

CA-00040513-001

20/10/2020

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

CA-00040513-002

20/10/2020

The issues in contention concerned the alleged Unfair Dismissal of an Accounts Manager by a Product Promotional Company.

The employment began on the 27th August 2018 and ended on the 31st August 2020.

The rate of pay was stated to have been €24,000 per annum for a 39.5 hour week.

The Complainant submitted a comprehensive Written Submission assisted by a detailed Oral Testimony. The chief spokesperson was Mr O’Brien BL.

In summary the Complainant had been on Maternity leave from 2nd March 2020 which was due to conclude on the 31st August 2020.

On that day she was issued with a letter from her Employer notifying her that she was being made Redundant from her position as a Czech language Business Accounts Manager.

The Complainant argued that there had not been any proper Consultations with her. No alternative employment options were very considered. The meetings, allegedly “consultations” with the Respondent Managers on the 6th August 2020 and later during weeks beginning 17th and 23rd August were entirely perfunctory. They were basically setting out the terms on offer and making logistical arrangements for her exit.

There was no acceptance that she might be able to drop down a level and revert to the lower grade of a TA -essentially a telephone sales agent. Part Time work or a voluntary reduction in Salary were never considered.

Furthermore, while this “charade” of a consultation was going on the Respondents continued to advertise on job sites for Czech Language staff to essentially replace the Complainant. The question of LIFO was considered but a colleague of shorter service was kept in employment while she was let go.

In Oral testimony she particularly referred to the first contact (6th August 2020) with Ms N of the Respondent Company where the Redundancy was clearly presented as a pre-determined fait accompli.

Mr O’Brien BL opened extensive case law in support of the arguments of Proper Consultation, Considerations of Alternative employments and careful considerations of Employee Suggestions. None of the scenarios applied and the Redundancy was a cover up for a straight forward Unfair Dismissal.

Reliance was placed on Panisi v JVC Europe [2012] ELR 70 and numerous follow on cases. Daly v Hanson Industries Ltd UD 719/1986, for example, was, among others, referred to. 

The Complainant was cross examined extensively by Mr Horan for the Respondents.

The Complainant submitted detailed Written Submissions and gave extensive Oral Testimony from Ms C and Ms N Company Managers. Mr Horan of IBEC was the chief spokesperson.

In summary the Respondents first outlined the background context. The Respondent business had been hit very hard by COVID and demand for their products had largely evaporated by May 2020. The Chief Executive Globally had instituted, in early May 2020 a drastic round of job reductions to keep the Company afloat.

In the contact Centre in Dundalk, Ireland 107 positions were selected for Redundancy. Staff were informed on the 8th May 2020 that the required 30-day Legal consultation period would commence on the 14th May 2020.

Matters proceeded normally and the vast majority of staff left the Employment by the end of June.

The Complainant had been on maternity Leave since the 2nd March and was not included in the initial Consultation /Redundancy exercise. This was as per the Maternity Protection Act, 1994-2016 requirements.

Four weeks before her scheduled return on the 31st August the Respondent contacted the Complainant by telephone. A lengthy conversation with Ms C took place on the 6h August. the situation was explained that she was “At Risk” as the Czech Team were being reduced from 5 persons to two persons. This was on the basis of a LIFO process. All matters were discussed with Ms C. The Oral testimony from Ms C was that the Complainant was fully aware of the redundancies and had focused on the financial packages on offer and the practicalities of leaving the site.

A further discussion took place with Ms N on the 11th August (Ms C being on Annual leave). Again, the issues were fully discussed, and alternatives considered but it was explained that most of these were not really viable. Par Time work in the Role was not suitable from a Business point of view and stepping down to a lesser TA role was not possible as there were no vacancies there. The Respondent had just made in excess of 100 staff Redundant and alternative job opportunities simply were not available.

It was argued that the Complainant had been on maternity leave during the major round of Redundancies in May & June but was now being given equally fair treatment as regards consultations.

In cross examination from Mr O’Brien BL for the Complainant the Managers Ms C and Ms N stated that they had considered all the possible alternatives (e mail correspondence was presented), LIFO had been carefully applied  (documentary evidence supplied) and the question of stepping down to a TA role from the role of TM had been considered.  The staff member in the unit who had been covering the Complainant’s maternity leave reverted to her original role as a TA.

As regards Part Time work the Complainant was reported by the Managers as having said that with a young baby this was not really an option for her.

Mr O’Brien queried the Managers on their interpretation of Clauses 17 and 18 of the Contract of Employment (which effectively suggested Part Time Work or other lesser alternatives to Redundancy). It was the Managers view that these were not available at the time. This had been discussed with the Complainant but her main focus, in the Manger’s recollection, was on her Redundancy terms

Mr Horan argued in conclusion that the Redundancy was proper and had been carried out fairly and in keeping with natural justice. He cited considerable case law to support his arguments and placed considerable reliance on Toner v Esat Telecommunications Ltd [2003], UD135/2003 to support this case.

3:1        The Legal Position

The Unfair Dismissals Act,1977 at Section 6(4)(c) identifies Redundancy as a legitimate ground for ending an employment. Section 6(3) effectively serves to guard against an Unfair Selection for Redundancy.

Allowing for the extensive case law submitted by both Mr O’Brien and Mr Horan on the Consultation issue, all cases rest on their own facts and evidence and these must be considered below.

3:2       Consideration of Evidence both oral testimony and materials submitted.

The inescapable background fact is that some 107 (including the Complainant) employees were made redundant due to a Covid downturn and an international Corporate restructuring.

The evidence presented was that the Czech team was being reduced from 5 to 2 employees based on LIFO. This process was supported by Respondent Payroll/Personnel evidence of service durations.

It appeared that the initial May /June redundancies & consultations had gone relatively smoothly.

The Complainant’s main argument from her Oral Testimony and Mr O’Brien’s legal arguments was that in some improper way the Respondent regarded the Complainant as an “Outlier” to be “tidied up” with little regard for proper procedures on her return from maternity leave.

The Oral Testimony, under sworn oath, of Ms C and Ms N was that they were well, unfortunately, versed in redundancy procedures by August of 2020.

Procedures were followed. Covid restrictions on face-to-face contacts, especially for a new mother, did not help the case. Language may also have had a bearing.

The sworn evidence which was subject to full cross examination from Mr O’Brien for the Complainant did not, to the Adjudicator, raise significant questions regarding a lack of fairness. Ironically the almost standalone situation of the Complainant allowed more time to her case as opposed to the earlier large numbers in May/June.  Documentary materials were supplied to support the arguments of both Managers.

Regarding case law The Adjudicator noted Torley v Omni Park Shopping centre UD 1745/2010 and White v Yenom Ltd UD/993/2009 in basic support of the arguments that even if there are some procedural shortcomings these can be overlooked to some extent where there is an overwhelming case for redundancies. In this case the Respondent was making 107 staff redundant and even if the Complainant felt in some way that she was being “Railroaded” (which was vigorously denied by the Respondents) it was not sufficient to support an Unfair Dismissals case.

In Panisi v JVC Europe [2012] ELR 70 referred to by Mr O’Brien, at para 5 by Mr Justice Charleton raised the issues of a genuine redundancy being “Impersonal” and not related to the individual concerned. In this case the “Impersonal” appeared to be a major factor.

The evidence in this case pointed to 107 employees being made Redundant including the Complainant. Listening to the Oral Testimony, under Oath, from both sides the Adjudicator was not able to discern a Negative or Malign personal agenda directly targeting the Complainant. There was an issue of a Personal Injuries claim being taken by the Complainant, but this did not seem to be an issue for the two Managers.

3:3         Overall Adjudicator summary.

Having reviewed all the Oral testimony and the written materials submitted it was the Adjudication conclusion that a Redundancy situation existed and that no complaint for Unfair Dismissal was established.

The Complaint fails.

No Unfair Dismissal took place.

Unfair Dismissal, Redundancy.