FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: BISHOPSISLAND PLANT HIRE & GROUNDWORKS LTD (REPRESENTED BY RDJ LLP) - AND - MARTINA COLLINS CONDON DIVISION:
SUBJECT: 1.Appeal Of Adjudication Officer Decision No ADJ-00030488, CA-00040733-001 DETERMINATION: This is an appeal on behalf of Bishopsisland Hire & Groundworks Ltd (‘the Respondent’) from a decision of an Adjudication Officer (ADJ-00030448, dated 3 February 2023) under the Unfair Dismissals Act 1977 (‘the Act’). Notice of Appeal was received in the Court on 15 March 2023. The Court heard the appeal in Cork on 12 July 2023 during which it received the sworn evidence of Ms Martina Collins (‘the Complainant’) and of Ms Fiona Griffin on behalf of the Respondent. The Factual Matrix The Complainant is a qualified accounting technician and was employed as a part-time Accounts and Payroll Assistant by the Respondent from 24 May 2016 until her employment terminated by reason of redundancy on 23 June 2020. Her annual salary was €20,060.00. Prior to the termination of the Complainant’s employment, the Respondent worked as part of a four-member administrative team that also included Mr Noel O’Shea, Managing Director; Ms Fiona Griffin, a Chartered Accountant and the Respondent’s Financial Controller; a Receptionist cum Shipping Executive and a second Accounts Assistant in a connected business. The Complainant’s position was the only position within the administrative team that was made redundant. It appears the positions of two manual workers were also made redundant in or about the same time. It is common case that following the Government imposed lockdown in March 2020, the Complainant was removed from the Respondent’s payroll to allow her to avail herself of the PUP payment. The decision to make the Complainant’s position redundant was taken jointly by Ms Griffin – the Complainant’s line manager – and Mr Noel O’Shea. It is not disputed that there was no consultation with the Complainant in advance of this decision being taken, nor was she offered the opportunity to make representations in relation to alternatives to redundancy. On 9 May 2020, Ms Griffin telephoned the Complainant to advise her that following a Government announcement the Respondent’s offices would re-open shortly thereafter but that not all staff could attend at the offices at the same time. This was the first occasion on which Ms Griffin intimated to the Complainant that there was some uncertainty in relation to the future viability of her position with the Respondent. The Complainant was still in receipt of the PUP payment at this point in time. On 9 June 2020, Ms Griffin again telephoned the Complainant and, on this occasion, advised her that her employment would be terminated as the Respondent didn’t have sufficient work for her. Ms Griffin then drafted two documents dated 10 June 2020 which she forwarded to the Complainant: a letter of confirming the details of the Complainant’s employment with the Respondent and a letter which appears to have been issued to facilitate any application the Complainant might need to make to the Department of Social Protection. The latter letter states: “I confirm the above named was ceased on our payroll on 23rdMarch 2020 and we do not envisage having sufficient work for her in the future.” Neither letter explicitly states that the Complainant’s employment was terminated by reason of redundancy. The Complainant received a statutory redundancy payment of €3,419.00 on 23 June 2020 along with payment in lieu of two weeks’ notice and her outstanding annual leave and public holiday pay. Submissions It is submitted on behalf of the Respondent that a genuine redundancy situation had arisen due to the onset of the Covid-19 pandemic and the detrimental effect that had had on the Respondent’s business. The Respondent submits that the termination of the Complainant’s employment by reason of redundancy falls within the terms of section 7(2)(c) of the Redundancy Payments Act 1967, the Respondent having decided “to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed … to be done by other employees or otherwise”. It is the Respondent’s position that nobody has been hired to replace the Complainant and the work that she had done prior to her dismissal continues to be performed by Ms Griffin and Ms Kelleher. Finally, the Respondent submits that it had engaged in a fair process with the Complainant prior to the termination of her employment on the grounds of redundancy. Counsel for the Respondent opened a number of authorities to the Court including two determinations of the Employment Appeals Tribunal (Curtin v Mallow Golf ClubUD/964/2014 andSheehan v Continental Administration Co LtdUD858/1999) and a recent determination of this Court (Acorn Brokerage Ltd T/A Acorn Insurance BrokersUD/22/81). The Complainant submits that the decision to terminate her employment was communicated to her by telephone as a fait accompli on 9 June 2020 without her having been afforded the courtesy of a face-to-face meeting after four years of loyal service to the Respondent. She further submits she was given the opportunity to discuss potential alternatives to redundancy. Evidence of Ms Fiona Griffin Ms Griffin gave a brief outline of the Complainant’s employment history with the Respondent. She told the Court that it was the Respondent’s intention in early 2020 to grow the plant-hire side of its business and it anticipated being in a position to offer additional hours to the Complainant commencing possibly in summer 2020. The onset of the pandemic, she told the Court, put paid to these plans and the plant-hire business suffered particularly badly once construction activity ceased following the outbreak of the pandemic. The witness gave detailed evidence in relation to text messages she exchanges with the Complainant and also telephone conversations she had with her during April, May and June 2020. The witness told the Court that she had very little prior experience of dealing with redundancy matters and in hindsight accepts that that her engagements with the Complainant in relation to making her position redundant did not represent best practice. She accepted, in particular, in answer to questions from the Court, that there had been no consultation whatsoever with the Complainant before the decision to terminate her employment had been taken and communicated to her. The Complainant’s Evidence The Complainant gave evidence in relation to loss and mitigation. She told the Court that she did not secure alternative employment until 16 August 2022, just after her case had been heard before the Workplace Relations Commission. She is earning €30,000.00 per annum in her new job. The Complainant’s evidence was that she had registered with a number of employment agencies and had also sent a copy of her CV to approximately 24 companies based in a number of industrial estates located in the region where she lives. She was at all times seeking part-time work only as her family circumstances were not compatible with full-time working. The Complainant informed the Court that she had significant caring responsibilities for a period of approximately three months in 2020 that rendered her unavailable for work during that time. Discussion and Decision The only evidence before the Court in support of the Respondent’s submission that it was necessary to reduce the number of administrative staff in June 2020 was that given verbally by Ms Griffin. The Court was not presented with any copy accounts or financial statements to corroborate that evidence. The Court therefore declines to make a decision on this aspect of the case being advanced on behalf of the Respondent. By her own admission, Ms Griffin accepts that the process which culminated in the decision to make the Complainant’s position redundant could have been handled far better than it was. The Complainant was not consulted prior to Mr O’Shea and Ms Griffin jointly making the decision that her role should be eliminated and that she did not have a skill-set that could be deployed elsewhere in the business. Ms Griffin further accepts that the Complainant was not afforded the right to appeal the Respondent’s decision which Ms Griffin had communicated to the Complainant as a fait accompli in the course of a fifteen-minute telephone conversation on 9 June 2020. Having carefully considered Ms Griffin’s evidence in relation to here engagements with the Complainant in relation to her redundancy, the Court finds that those communications fall far short of best practice in this area as established by the extensive jurisprudence of this Court and of the Employment Appeals Tribunal. The Complainant was not consulted at any stage in the process and neither was she afforded an opportunity to propose alternatives to redundancy such as working a fewer number of hours or taking on some of the duties of her former colleagues. These shortcomings in the Respondent’s processes, in the Court’s view, are sufficiently serious as to render the Complainant’s dismissal unfair. The appropriate remedy in the circumstances, having regard to the fractured nature of the relationship between the Parties, is compensation. In the light of the Complainant’s evidence regarding her efforts to mitigate her loss, and in particular her answers to questions put by counsel to her in cross-examination, the Court measures the base level of compensation to be equivalent to nine months’ salary from which the amount of the statutory redundancy payment received by the Complainant should be discounted. The Court, therefore, directs the Respondent to pay the Complainant €12,000.00 gross by way of compensation for her unfair dismissal. The decision of the Adjudication Officer is varied accordingly. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Aidan Ralph, Court Secretary. |
