Complainant

Respondent

Parties

Michelle  Cunningham

Pebble Beach Playschool

Representatives

Self-represented

Barry O’Mahony B.L. instructed by Paula Walshe ARAG Legal Protection Limited

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-00052440-001

29/08/2022

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and a witness for the respondent gave their evidence under affirmation.  Both were cross-examined by the opposing party.

The respondent submitted that the complainant’s employment came to an end by way of redundancy. It submitted that the company was in financial difficulties and that it was necessary to reduce running costs and therefore necessary to reduce staff numbers. 

The respondent submitted that it had approached the complainant seeking a pay reduction but that this approach was dismissed out of hand. The respondent submitted that no other staff could be let go due to the circumstances of their employment comment one was a key worker who was dealing with a child with autism, and this was connected to the funding of that position. The other staff member was in receipt of €13 per hour and as the complainant had discounted a pay cut, she had ruled herself out of consideration for that position.

The respondent submitted that the complainant was offered a 30-day consultation period but did not engage with it during this time. The respondent submitted that it made the relevant application for the complainant to access a redundancy package, particularly where it was not able to be able to pay the redundancy payment.

The respondent submitted that the complainant only had to contact the respondent in order to access that payment and that this remained the case.

The respondent submitted that the termination of the employment relationship was due to redundancy and therefore the complainant was not unfairly dismissed.

The complainant submitted that she was employed since September 2016 and on 9 May 2022 she was asked to consider a pay cut. She didn't respond to this request as it was outside working hours. The following day she was asked whether she had thought any further about the pay cut but responded no.

The complainant submitted that there was a bereavement in her family, and she returned to work in June following a three-week period of leave. Upon her return she had a meeting with the owner of the company who indicated to her that there was an option between either a potential redundancy or a pay cut. She submitted that she was given a letter indicating a potential redundancy but did not engage herself with the respondent.

She indicated that the pay cut was taken off the table and that she was to be let go. The complainant submitted that the respondent employed an additional staff member after that.

The witness for the respondent who was the owner of the business indicated that the business was having financial difficulties. She outlined how she had looked at the various possibilities and then approached the complainant seeking to have her take a pay cut. The witness stated that she had considered the possibility of other staff being let go but had discounted each staff member (of four staff) but felt that there were substantial reasons for keeping the other staff members on.

The witness stated that although she approached the complainant to take a pay cut once the complainant refused to consider a pay cut there were very few options open to her. The witness said done the complainant was given a letter which indicated a 30-day consultation within which to engage but failed to do so.

When the 30-day consultation period elapsed the witness said that she then completed the application which would entitle the complainant to her statutory redundancy from the department. She notified the complainant and ask her to complete the appropriate section of the form and return it to her whereupon she would upload it to the system. In this manner the complainant would be entitled to her statutory redundancy notwithstanding that the complaint that the respondent could not afford to pay. this

The respondent submitted that this was a real redundancy and that the appropriate procedures were followed.

The complainant gave her evidence that she was employed for approximately 6 years on the seasonal basis she gave evidence that she was approached about a pay cut but did not respond to it as the request came in outside working hours. She stated that the following day she was approached, and an inquiry was made as to whether she had thought any further about the matter. The complainant stated that she responded to this request by answering no.

The complainant stated that she was given an option between either a pay cut or a redundancy but that the pay cut was taken off the table. She was given a letter which indicated that the only possibility was redundancy. She confirmed that she did not engage herself with the respondent however she indicated that a solicitor wrote to the respondent. No documentary evidence was submitted to support this contention.

The complainant said that she felt she was let go because the owner had recently received the same qualification she already had. The complainant also said that in her opinion there should have been a meeting to discuss the matter with all staff members the complainant said that it never entered her head that she was going to be made redundant and that the way her employment finished was unfair.

Section 6(4) of the Unfair Dismissals Act states as follows:

(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 7(1) & (2) of the Redundancy Payments Act, 1967 state:

(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

(b) he was an employed contributor in employment which was insurable for all benefits under the Social Welfare Acts, 1952 to 1966, immediately before the date of the termination of his employment, or had ceased to be ordinarily employed in employment which was so insurable in the period of four years ending on that date.

(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, 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 that 7(2) (b) and (c) relate to the end of this employment relationship.  The complainant was made redundant and was provided with a 30-day consultation period.  Although the complainant submitted that she did not engage with the respondent based on legal advice, she did not provide any indication as to what that advice was other than to confirm that she did not engage with the respondent.  The respondent gave reasons for the decision to seek the complainant’s redundancy, and these were related to the financial health of the company.  The Act does not preclude a company from deciding to undertake work with fewer employees, irrespective of the reason.  Even if the reason were as suggested by the complainant that the owner now held the same level of qualification as she did, this is not prohibited by the Redundancy Acts.  Accordingly, I find that the employee was dismissed by way of redundancy.

Having considered all the written and oral evidence submitted by the parties, I find that the complainant was dismissed on the basis of redundancy.  Under Section 6(4)(c) of the Unfair Dismissals Act, 1977 the dismissal of an employee by way of redundancy shall be deemed not to be an unfair dismissal.  Accordingly, I find that he complainant was not unfairly dismissed.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissal – redundancy – not deemed unfair dismissal