Complainant

Respondent

Parties

Emma McGuinness

T&C Environmental Services Ltd

Representatives

Brian O'Farrell  

Anthony Slein BL instructed by Donal Reilly & Collins Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00044258-001

21/05/2021

The complainant worked for the respondent between the 25th March 2019 and the 17th February 2021. The grounds of her dismissal were redundancy. She worked part-time and earned €1,924 per month. She stated that her dismissal was unfair; a claim rejected by the respondent.

Evidence of the complainant

The complainant outlined that she commenced as an office accounts administrator on the 25th March 2019. She was dismissed on the 17th February 2021. She absolutely liked the job and was the sole earner in her household. When she took over the role, the invoicing was in a shambles. She cleared the back log over 4 to 6 weeks. She did not accept that there was an annual review meeting in November 2020.

The complainant outlined that the directors were extremely happy with her work, and she was told that the money was flowing in. There was no backlog, and she perhaps may have missed 3 or 4 overlooked invoices. There was no meeting or reprimand re the standard of her work.

The complainant believed that the meeting of the 15th December was her annual review and the directors told me that they wanted her to take a full time role. This was the only review meeting and there was no reference to any previous meeting, for example in November. Mr Joyce told her that her role needed to be full time to accommodate the growth of the company. This was not a surprise as they had a brief conversation about this September. She asked for his definition of ‘full time’. The was no mention of the role being full time at the interview.

The complainant said that she got a terrible fright at the meeting of the 15th December. She offered an additional day or job share. She said at the meeting that she could not recall any mention of the full time role at the interview. The offer made of a full time role was less than her current salary pro rata. The complainant asked for clarification whether she would be dismissed if she did not take the full time role. Mr Ó Bric said that she would be dismissed if she did not take the full time role. This too was on the 15 December. The complainant said that this meeting lasted five minutes and her suggestions were not open for discussion.

The complainant made a contemporaneous note as she felt that the meeting was too important. Mr Ó Bric has said that the salary was to be €36,000. She had offered to work four days per week at the meeting and on the 4th January, offered to work 38 hours per week or to job share. There were no further offers from the respondent. The respondent set out its position and she was given until the 15th January to reply.

The complainant made two proposals on the 15th December and on the 4th January. On the 19th January, she became aware that the respondent had advertised for the full time office administration role on the 10th January.

The complainant said that the 9th February meeting was ‘icey’. She had been offered a four-day sampling role, and via her solicitor, she offered to work three days in the role or to job share. The meeting of the 17th February was a two-minute meeting where she was being made redundant with immediate effect and had to leave the premises immediately. She said good-bye and left the boardroom and composed herself and handed her key to a colleague. She felt humiliated as it felt like she was being frogmarched from the business.

The complainant said that she had looked for alternative roles and had yet to secure a position. She applied for part-time roles in accounts. She never received a reply from the respondent to work three days per week in the sampling role.

Cross-examination of the complainant

It was put to the complainant that the offer of a full time role reflected their view of your good work; she replied that the directors were not unhappy with her work and had tried to force her to take a full-time role. There was no difficulty with invoicing, and she had overlooked three or four invoices over the two years. She worked Monday to Wednesday and got as many invoices as she could before she drew up the manager’s list. She would indicate on the list if the invoice was ‘to be invoiced’ ‘not to be invoiced’ ‘job on pause not to be invoiced’ and ‘job on pause to be invoiced’. The company grew and got busier, and she had to issue 100 invoices on one day.

The complainant accepted that for a time she worked from home on a Thursday to clear the backlog. She was clearing the backlog left by a predecessor. The complainant did not accept that there was a review meeting in November 2020. She accepted that it was clear in December 2020 that the respondent wished for her to work full-time. She was presented with a binary choice. She accepted that her pay increased by 2% on the 15th December. Mr Ó Bric had referred to €36,000 per year, which is how she compared the full-time role to the new role.

During the phone call of the 4th January, she offered the 38-hour role. She had offered a four-day per week in her current role and not in another role. It was put to the complainant that the offer of 38 hours include unpaid lunch breaks, so was an offer of 34 hours. She replied that she would take a 30-minute break. The complainant said that she considered the offer of a four-day week in the other role to be a step down. It was put to the complainant that she wanted to dictate the terms even though her part-time role was not feasible; she replied that her contract was for three days and went against her own wishes by offering four days. It was put to the complainant that the role being full time was mentioned at the interview; she did not accept this.

The complainant referred to her efforts to find alternative employment and she completed a six-month course at UCD, on Monday and Tuesday mornings.

In re-examination, the complainant said that she would have taken the sampling role for three days a week.

Closing of the complainant

The complainant outlined that the statute provides for five types of redundancy. The burden of proof is on the employer and none of the grounds applied in this case. The respondent should apply SI 146/2000 and set out business requirements and the pooling of employees, followed by notification to the employee in the at risk letter. There should then have been a meeting to consider the suggestions of the employee. None of those steps were followed in the 15th December meeting. This was an annual review, and the complainant was not notified of the meeting nor advised to her bring a colleague. The complainant was told that her role was gone if she did not take the full time role.

There was no discussion about the redundancy before the complainant was selected for redundancy. There was no November review, and no such review was referred to in the January correspondence. The employer did not act reasonably, and the complainant’s performance was never disputed. The complainant had made substantial concessions.

The respondent outlined that it made significant efforts to retain the complainant. The role being full-time was discussed during the interview. The role would not remain a part time job and could become a full time role. Invoicing increased by 20% each month during 2020. There was a delay in sending out invoices. The complainant’s role was reviewed, and the only possible way was to move the role to full time. The respondent engaged with the complainant who indicated that she was pleased to move to a four day role. This was in the water sampling dept as there was a less pressing role. She indicated that she was happy but then insisted on her part time role, which was clearly redundant. There was no specific redundancy procedure and no established custom and practice as this was the only redundancy.

Evidence of Colum Ó Bric

Mr Ó Bric said that he interviewed the complainant with Mr Joyce. They agreed with part time hours and certainly mentioned that the role would increase in hours with the potential to go full time if the candidate was amenable. The complainant’s pay was increased regularly, and they were impressed with her work. There was an increase in the workload during 2020 and saw an increase in the volume on the list not invoiced.

In November 2020, the respondent discussed with the complainant the pressures of the job. There was no suggestion that the job was being done poorly but there was an ever increasing job of work. They discussed aspects of the role that were not being achieved and this led the lists to increase. This ultimately reduced the amount they were able to invoice.

On the 15th December 2020, they discussed how the role was performing. They told the complainant that the role was increasing to a full time role. The meeting was as long as it needed to be. The complainant’s contemporaneous note is inaccurate, and he would have said that the accounts role needed to be a full time role and he did not say that the complainant’s role would be terminated.

After the Christmas break, Mr Joyce sought to contact the complainant for clarification of what they had discussed. The complainant emailed on the 4th January in respect of the offer of a four day week. Mr Ó Bric replied that this was not suitable for a four day week role and five days a week was required. On the 13th January, the complainant asserted that she wished to retain the three-day role. The respondent wanted to keep the complainant and suggested the four-day sampling role. Employees take an hour for lunch, so the 38-hour proposal was 34 hours.

Mr Ó Bric interpreted the complainant’s solicitor letter of the 12th February as ruling out any four-day option. The full-time role in accounts was filled in-house. He said that the part time office administrator role was made redundant as cash flow was vital for the company. They had to act if invoicing was not complete. This was not a criticism of the complainant as she did not have time for the time intensive side of the role for example purchase orders.

Mr Ó Bric said that the meeting of the 17th February was short and business like. No one was treated poorly or prevented from doing anything. The respondent outlined its conclusion and made the position clear that the complainant’s role was redundant. They stayed in the boardroom and the complainant left so was not frogmarched.

Mr Ó Bric said that there was definitely a meeting in November 2020 as they would not have approached the meeting in December without a prior discussion with the complainant on the challenges of the role. He said that the respondent had not considered the complainant’s proposal of a three-day week in the sampling job following her rejection of a four-day week in the role. The respondent does not generally prepare minutes or documentation about reviews. There were certainly issues with the accounts department prior to the complainant starting and the volume meant that it became ungainly.

Cross-examination of Mr Ó Bric

Mr Ó Bric said that the complainant was encountering difficulties in raising invoices in September, October and November because of missing information. She did not have the time to gather the information. He did not have the date of the November 2020 review. It is not correct to say that all reviews take place in December. They had agreed with the complainant that the role was not being achieved, so did not do a formal review. On the 15th December, they explained the plan to the complainant and how they wanted her to take the full-time role. This followed from the previous discussions in November. Mr Ó Bric said that the documentation around the start of the employment did not refer to the role growing to full-time. Mr Ó Bric denied telling the complainant that she would lose her job if she did not take the full time job. He outlined that the offer of a 38-hour week was for 34 hours, excluding lunch. He took the offer in the complainant’s solicitor offer of three-days per week in an ‘altered or combined’ role as being her current role. She had not agreed to the four-day sampling role. It was reasonable for the respondent to interpret the letter as being three days in the current role. It was put to Mr Ó Bric why not all the complainant work four days with a named part-time employee working the fifth day; he replied that the point of the full time role was to get invoicing to a manageable point and to ensure that the follow up was getting done. On the 17th February, he had informed the complainant that she could finish up and there was no pressure on her to leave. She was not asked to leave the premises.

Closing of the respondent

The respondent submitted that the complainant was made redundant and within the meaning of section 7(2). The complainant was offered a part time role albeit a different part time role and there remain part time employees. There was creative and willing engagement to create part time roles for the complainant.

There were several conflicts of fact in this case. The first relates to whether there was a meeting in November 2020. On the balance of probabilities, there was no meeting. There was no date suggested for the meeting. One would expect to see routine emails or messages to schedule the meeting. One might expect to see a record. While there was also a conflict about what was said at the interview, this is less material as it was some time ago. It was material that there was nothing in the contract to suggest the role moving to full-time.

The second significant conflict is whether dismissal was mentioned at the December meeting. I find that it was. It is recorded so in the contemporaneous note. What is striking about this case is how quickly matters escalated. There were phone calls, proposals and counter-proposals, all within a short period of time, either side of Christmas. The follow-up call of the 4th January and the rest of the interactions suggest that the changing hours of work were an immediate, pressing matter with a lot at stake. This correlates with dismissal being put on the table in December.

There was a 20% growth in invoicing and the respondent does not criticise the complainant’s work. The respondent said that there were delays in three months towards the end of 2020 but did not present a record of this to the complainant. I accept that the work was increasing, and the respondent wanted to put resources in place to address this.

The complainant’s proposal for a 38-hour week went a huge way to accommodating the respondent’s needs yet was dismissed because of an assumption made regarding lunch. The offer was for 38 hours and not 34 hours. The respondent later incorrectly inferred that this offer was off the table. The respondent also never considered the three-day sampling suggestion.

The complainant was dismissed on the 17th February. A process that began in December ended in February. This was not a matter of misconduct or attendance; the complainant was doing her job well. The tight time period illustrates that the respondent did not take the time to adequately consider its options.

I, therefore, find that the respondent has not dislodged the presumption that the dismissal was unfair. As redress, I note that complainant’s efforts to find alternative employment, including to upskill. I award redress equivalent to six months salary, i.e. €11,544 as just and equitable compensation.

CA-00044258-001

I decide that the complainant was unfairly dismissed, and the respondent shall pay to the complainant just and equitable compensation of €11,544.

Unfair Dismissals Act / redundancy