Complainant

Respondent

Parties

Philomena Duke

Edward Tully trading as Edward P Tully & Co

Representatives

Self-Represented

Self-Represented

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-00053099-001

04/10/2022

The Complainant commenced employment with the Respondent on 27th January 2020. The Complainant was a full-time permanent employee, in receipt of an average weekly payment of €480.77. The Complainant’s employment was terminated on the grounds of alleged redundancy on 30th September 2022.

On 4th October 2022, the Complainant referred the present complaint to the Commission. Herein, she alleged that her dismissal was unfair for the purposes of the present Act. In particular, she submitted that she was summarily dismissed on the grounds of redundancy without any form of process or consultation being undertaken. The Complainant further queried the rationale for the redundancy. By response, the Respondent denied this allegation. In this regard they submitted that a phone answering service had automated the majority of the Complainant’s role and, as a consequence of the same, the Complainant’s role was made redundant.

A hearing in relation to this matter was convened for, and finalised on, 11st April 2023. This hearing was conducted by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the Workplace Relations Commission as a body empowered to hold remote hearings. No technical issues were experienced by either side during the hearing.

Both parties issued submission in advance of the hearing, with the same being expanded upon and contested in the course of the hearing. The Complainant gave evidence in support of her complaint, while the Managing Partner and the Office Manager gave evidence in defense. All evidence was given under oath or affirmation and was opened to cross-examination by the opposing side. In circumstances whereby the fact of dismissal was not in dispute, the Respondent accepted the consequent burden of proof imposed by the Act and presented their case first.

No issues as to my jurisdiction to hear the complaint were raised at any stage of the proceedings.

At the outset, the Respondent submitted that the Complainant had been fairly dismissed on the ground of redundancy.

The Respondent is an firm providing accountancy services. They submitted that the Complainant was engaged as a receptionist who would provide some bookkeeping support in the area of VAT returns and bank reconciliations. Following a successful interview, the Complainant commenced employment on Monday 27th June 2020.  Approximately six weeks later, the restrictions imposed to prevent the spread of the Covid-19 virus commenced. While the firm continued to operate during the same, only two accountants attended the office, with the rest working from home. As footfall to the Respondent’s offices had effectively ceased, the Complainant was placed on lay-off from March 2020. In June 2020, the Complainant returned to work. However following her return, many of the practices implemented during the initial lockdown, such as accountants working from home and taking client calls on their mobiles, continued. In addition to the same, the Managing Partner observed that fewer people were actually calling the office, instead seeking to email or complete more simple, revenue based tasks, directly.

Having regard to these developments, and the decreased turnover arising from the period of restrictions, the Respondent began to examine various cost saving measures. Amongst these, the Respondent elected to introduce an automated answering service that would direct calls to the relevant person, or allow a message to be recorded. Once this system was implemented, it was envisaged that much of the Complainant’s workload would be automated and she would be paid statutory redundancy.

On 26th September 2022, the Managing Director met with the Complainant to advise of the decision taken by management and to give her two weeks’ notice of her forthcoming redundancy.

In answer to a question posed in cross-examination, the Managing Director accepted that October is typically an extremely busy month for  accountancy practices. When asked why he choose to make the Complainant redundant just prior to this month, he advised that the process was commenced some time prior to the same and that there was no good time to make an employee redundant. Regarding the Complainant’s activities that did not involved answering the phone, the Managing Partner advised that these had been distributed amongst the remaining accountancy staff. The Managing Director denied that the volume of calls had increased prior to the Complainant’s redundancy and stated that incoming calls remained rare. He submitted that following the Complainant’s redundancy no person was hired to replace her, and that the system implemented was working well.

In evidence the office manager advised that the Complainant’s tasks were distributed amongst the remaining staff members. In answer to a question, she accepted that the Complainant also answered and maintained the Respondent’s general email address. In this regard she stated that this role was undertaken by herself.

Having regard to the foregoing, the Respondent submitted that the dismissal of the Complainant was not unfair for the purposes of the present Act.

The Complainant submitted that her dismissal was unfair for the purposes of the present Act.

In this regard, she stated that while she was engaged as a receptionist, she also completed many book-keeping duties in the course of her employment. She stated that these duties, including VAT returns and revenue queries, accounted for most of her working time. In this regard, she also stated that she acted the first point of contact as regards the firm, and dealt with many matters herself over the phone in an effort to create an efficiency for the service. She stated that she also maintained the Respondent’s email account, again resolving more minor issues herself.

The Complainant submitted that on the morning of 26th September 2022, the Managing Director called her to a meeting. She was not provided with nay advance notice of the this meeting, was not provided with any agenda in relation to the same and was not permitted to arrange any form of representation. On this date, the Complainant was informed that her role was to be made redundant. The Respondent advised that such redundancy was due to the fact that they were automating the phone answering service and the majority of the Complainant’s duties no longer existed. The Complainant disputed that same but it was apparent that the Respondent had already made the decision. The Complainant worked one week of notice, with her last day of employment being 30th September 2022.

By submission, the Complainant stated that her dismissal was procedurally and substantively unfair. She submitted that only part of her role had been made redundant, with the majority of her duties still in existence. She stated that the Respondent failed to consult with her or abide by any form of procedure prior to terminating her employment.

Section 6(1) of the Unfair Dismissals Acts provides that,

“…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)c of the Acts expressly lists “redundancy” as a ground of dismissal which shall not be deemed to be unfair. In a situation whereby the Respondent can demonstrate that such a redundancy is substantively and procedurally fair, they may rely on the defence afforded by Section 6(4)C of the Act. In this regard, it should be noted that Section 6(6) of the Acts provides that the onus of proof in relation to the same lies with the Respondent.

Section 7(2) (as amended) of the Redundancy Payments Acts provides that,

“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-

….

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…”

Regarding the instant case, the Respondent has submitted that they sought to automate part of the Complainant’s role. This was to be achieved by means of introducing an automated answering system to fulfil many of the receptionist duties. The remainder of the Complainant’s duties were to be distributed amongst the remaining staff members. Having regard to the foregoing, it is apparent that such a proposal would qualify as valid grounds of redundancy on the basis of subsections (b) and (c) quoted above. 

Notwithstanding the same, the Complainant raised several significant issues as regards the rationale for her redundancy, and the method by which the same was affected. In the matter of In the matter of Component Distributors (CD Ireland) Ltd -v- Brigid (Beatrice) BurnsUDD1854, the Labour Court accepted that “the Respondent was entitled to restructure its business and reduce its workforce if necessary”. The Court went on to state that,

“…the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain her employment must have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved.”

In this regard, it was candidly accepted by the Respondent that they did not engage in any form of consultation with the Complainant in respect of the proposed redundancy. From the evidence adduced, it is apparent that the Managing Partner determined that a cost saving measure could e introduced and simply decided that the Complainant’s employment should be made redundant on foot of the same. In this regard, no consultation was arranged with the Complainant and her input was not sought at any stage of the process. At the hearing of the matter, the Complainant raised several issues regarding her actual job description, the breakdown of her daily tasks and the value she brought to the organisation. While many of the foregoing points were accepted by the Respondent, the appropriate time for such consideration is prior to the decision to make the role redundant and by means of a formal consultation process. Such procedures are not empty formalities, they represent the process whereby an employee may contest the rationale for a redundancy, suggest alternatives to their dismissal and advocate for their continued employment. In this particular case, while the Respondent’s initial rationale for the redundancy of the Complainant had merit, their failure to consult with the Complainant and allow her the opportunity to present her case for her continued employment renders the dismissal unfair.

In this regard, I find that the Respondent’s failure to engage in such a process renders the dismissal of the Complainant unfair for the purposes of the present Act.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following her dismissal. In this regard, the Complainant stated that she found alternative employment shortly after her dismissal. Regarding the actual losses suffered the Complainant accepted that these were minimal, with no evidence being adduced in respect of her efforts to minimise the same. In this regard Section 7(1)c(ii) of the Act (as amended) provides that in such circumstances and employee may be awarded,

“…such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances”

Having regard to the foregoing, I award the Complainant the sum of €1,923.08 in compensation.

Redundancy, Procedure, Losses