ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033152
Parties:
| Complainant | Respondent |
Parties | Catherine Connolly | Edmundson Electric (Ireland) Limited t/a Ewl Ltd |
Representatives | Rachel Hartery SIPTU | Ian McGlashan |
Complaints:
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-00043930-001 | 06/05/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998 | CA-00044198-001 | 18/05/2021 |
Date of Adjudication Hearing: 10/01/2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The Complainant contends that she was unfairly dismissed by reason of redundancy and that she was discriminated against on the grounds of gender and family status.
Summary of Complainant’s Case:
The Complainant was employed by the Respondent in Accounts Payable and on administrative duties from 13th June 2016 to 31st March 2021 when she was made redundant. It is submitted that she was unfairly selected for redundancy following a period of maternity leave and a sham process. The background is that the Complainant returned from maternity leave in January 2021. Another employee, also carrying out administrative duties returned from maternity leave around the same time. Manager Mr J informed them that he had been carrying out the duties during lockdown and due to a sales decrease that there was not a need for two employees carrying out the work. However, there was a temporary employee engaged from around January 2020 carrying out the Complainant’s duties. Mr J called the Complainant in for ‘a chat’ on 11th March 2021 and the outcome was the Complainant was given until 15th March 2021 to apply for the new merged job that was the combination of her and Ms B’s duties. Both colleagues declined to apply for the job. The Respondent then asked for alternative solutions. The Complainant stated that she was willing to job share the position but this was declined. Letters to both the Complainant and her colleague show a marked difference in treatment and it was obvious that the Complainant’s redundancy was effectively decided and as transpired her appeal was rejected. It is submitted that the redundancy of the Complainant was unfair, that she was treated less favourably than her colleague, that no alternative was genuinely considered and staff had been hired and one staff member left and their role could have been filled by the Complainant. In relation to the complaint under the Employment Equality Act, it is submitted that the Complainant was discriminated against in relation to the Respondent’s profit share award which was denied to the Complainant on grounds that she was on maternity leave and had not contributed during her absence. It is contended that as the Complainant was on protected leave, she was denied the employment rights enshrined in law. Section 22 of the Maternity Protection Act provides that while on protected leave the employee shall be deemed to be in the employment of the employer and shall accordingly be treated as if she had not been so absent. The Complainant gave sworn evidence and outlined the facts as contained in the submission. She stated that she would have been happy to carry out other duties e.g. Counter, Sales, Stores. She believed she was treated differently than her colleague Ms B in that her colleague was actively asked to apply for the merged job but she was not. One colleague left the company just before her appeal was heard and she was not given any opportunity to have that job. Another issue of concern was that a C.E. worker was hired end of May 2021 and has now been answering the phone as ‘accounts payable’, which was her job. She stated that she knew there was too much work contained in the merged jobs and she was proved to be correct in that the Respondent reduced the number of staff from 7 to 5 and now that number is back up to 7. She also stated that her redundancy payment was paid into her bank account on 20th April 2021 before the outcome of the appeal was issued. In relation to the profit share scheme, she stated that she did receive profit share once in 2017 for 2016 year and she had been on maternity leave 15th September 2017 to 19th March 2018. She stated that ‘M’ who left the employment in early April 2021, received payment for profit share. In cross examination by the Respondent’s representative, the Complainant agreed the meaning of discretionary as it applied to the policy on profit share is that it is paid at the discretion of the employer. The representative of the Respondent stated that the profit share payment was in ‘recognition of efficient and productive service’ and asked the Complainant would she agree that if you are in work for only 17 days of the relevant year you would not demonstrate ‘efficient and productive service’. The Complainant’s representative stated that question was discriminatory as the Complainant was on protective leave in the relevant period. |
Summary of Respondent’s Case:
The Respondent operates a number of individual profit centres (IPCs) throughout the country. In 2020, IPC Manager Mr J carried out the duties of the Complainant while she was on maternity leave. Due to various matters including reduced sales due to Covid, he deduced that there was not a requirement for two jobs i.e. he did not need a dedicated Administrator and dedicated Inventory Controller. He embarked on a redundancy consultation process with the Complainant and her colleague which resulted in the position of the Complainant being made redundant. It is argued that in circumstances where the employer had a reduced requirement for the work, there was a genuine redundancy situation. The Complainant was invited to apply for the new position which was a combination of her and her colleague’s jobs with an addition of sales. She declined to apply and following a process and appeal, she was dismissed due to redundancy. The Respondent rejects the proposal that the job could have been done on a .5 basis. The Respondent also rejects the argument in relation to others being recruited. There were different jobs, i.e. Sales might involve electrical qualifications. |
In relation to the complainant under the Employment Equality Act, the issue is that the Complainant quite simply did not qualify for profit share payment and this had nothing to do with her maternity leave. The scheme operates on a discretionary basis and a ‘waiting period’ where the employee is not entitled to payment if they exit the company during the period January to end of April. The Complainant’s employment ended on 31st March 2021 and therefore she did not qualify for payment.
Sworn evidence was given by Manager Mr J summarised as follows:
He stated that he is the Manager of the IPC in which the Complainant was employed. He took over her duties during 2020 which happened to be during the Covid period. He discovered that the tasks could be done in less than the full period of time allocated. He consulted with both the Complainant and her colleague Ms B. He stated that he treated the Complainant and her colleague the same in that both were advised that the jobs would be merged into one position with sales added and both were asked to apply. Ms B seemed to be more engaged in the process, asking questions about the job. The Complainant did not apply. The witness stated that he had made enquiries with other IPCs and there were no vacancies. The Complainant’s suggestion to have her position at .5 and the other job remain was not a viable solution and although alternatives were considered they were not viable. Sales for example, needs a good knowledge of product. In relation to other staff exits and entries, M left in or around 5th or 6th April 2021 and P was employed on a ‘Youth reach’ scheme. He came in October 2020 and was made fulltime in May 2021. He works in the Trade Centre and Warehouse. In cross examination, Mr J stated that he invited both Complainant and Ms B to apply for the newly configured job. He did not give preferential treatment to Ms B. There was some questions and answers around the dates of communications and lack of dates on some. The Complainant’s representative particularly questioned the lack of dates on some communications, in particular a letter to the Complainant’s colleague Ms B asking her to tell him by 9am 25th March 2021 if she is interested in the new position.
Sworn evidence given by Mr O is summarised as follows:
He stated that he was the Appeal Officer to whom the Complainant submitted her appeal against the decision to make her redundant. As a senior person in the company, his role was assist Mr j in handling the matter but he did not meet with or take part in the substantive decision so he was in a position to impartially hear the appeal. At the time, the business was in a difficult position with covid and reduced sales. In cross examination, the witness stated that he did address the appeal grounds in his letter confirming the Complainant’s redundancy.
Findings and Conclusions:
CA-00043930-001 Unfair Dismissals Act 1977
Section 6 (1) of the Unfair Dismissals Acts 1977-2015 states:
subject to the provisions of this section, 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) provides:
(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:
(c ) the redundancy of the employee, ….
Section 6 (1) (7) of the Act provides without prejudice to the generality of subsection 1 of this section, in determining if a dismissal is an unfair dismissal regard may be had, if the Adjudication Officer or the Labour Court, as the case may be, considers it appropriate to do so-
(a) to the reasonableness of the conduct, or otherwise (whether by act or omission) of the employer in relation to the dismissal …
The onus lies on the Respondent to show the dismissal results wholly or mainly from redundancy. The Respondent relies on S7 2 (c) of the Redundancy Payments Act 1967 whereby the 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 her dismissal) to be done by other employees or otherwise.
The Respondent in this case decided to reduce the staff carrying out the Administrator and Inventory Controller duties from 2 to 1. This decision was made while the Complainant was on maternity leave or shortly after her return. The evidence shows there was no matrix of skills drawn up, no ‘last in first out’ and little or no consideration of the fact that others were leaving the employment or another individual had been recruited albeit as a ‘Youth Reach worker’ and then made permanent. I find that the Respondent did not genuinely consider alternatives for the Complainant. In the circumstances, I find the decision made to make the Complainant redundant was not fair in the circumstances and I uphold the complaint that she was unfairly dismissed. I award the Complainant the sum of €12,000 being part of the losses she sustained and not including the redundancy payment paid to her.
CA-00044198-001 – Employment Equality Act 1998
The Complainant contends that she was discriminated against in relation to the non-payment to her of a profit sharing scheme in operation in the employment. In order to succeed in such a claim, the onus is first of all on the Complainant to establish a prima facie case. In this case, the Complainant contends she was treated less favourably on grounds of gender and family status.
Section 85A of the Employment Equality Acts 1998-2011 sets out the burden of proof as follows:
“(1) Where in any proceedings facts are established by or on behalf of a Complainant from which it may be presumed that there has been discrimination in relation to her or her, it is for the Respondent to prove the contrary.”
The onus in the first instance lies with the Complainant to establish the primary facts from which it may be inferred that discrimination has occurred. If these facts are established substantiated by evidence, the burden of proof then shifts to the Respondent to prove that discrimination did not occur. The extent of evidential burden has been established by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 where the Court found that the Complainant must :
“establish facts from which it may be presumed that the principle of equal treatment has not been applied to them. This indicates that a claimant must prove, on the balance of probabilities the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination. It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.
In Elephant Haulage Ltd v Garbacevs The Labour Court stressed that facts based on credible evidence were necessary to prove a prima facie case of discrimination and that “mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.” The Court observed that the language of Section 85A admitted of no exceptions to the evidential rule laid down.
The formulation of the test by the Labour Court in The Southern Health Board v Dr Teresa Mitchell DEE 011 was described by the Court in HSE North Eastern Area v Sheridan EDA0820 involving a three step process of analysis:
First, the Complainant must prove the primary facts upon which he or she relies in alleging discrimination. Second, the Court or Tribunal (or in this case, Adjudicator) must evaluate these facts and satisfy itself that they are of sufficient significance in the context of the case as a whole to raise a presumption of discrimination. Third, if the Complainant fails at stage 1 or 2, he or she cannot succeed. However, if the Complainant succeeds at stages 1 and 2, the presumption of discrimination comes into play and the onus shifts to the Respondent to prove, on the balance of probabilities, that there is no discrimination.
In this instant case, the evidence shows:
The Respondent’s profit sharing policy document states at Clause 3.2.2:
Employees whose employment with the company terminates for any reason during the waiting period are not eligible to participate in the plan for the financial year to which the waiting period refers or the current financial year unless specific approval is granted by the Board of Directors.
The profit sharing policy refers to the waiting period as being the period between the end of the financial year and the date on which the profit share becomes payable. In this case, the Respondent stated that the date on which the profit share became payable was the 30th April 2021 and the Complainant’s employment was terminated before this date. The policy also refers to the discretionary nature of the payment. In the circumstances, I find the Complainant was not entitled to the payment from profit share by nature of the time issues and not because of her gender or family status.
I find the Complainant has not established a prima facie case and the complaint is not well founded.
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
CA-00043930-001 Unfair Dismissals Act 1977
I have decided that the Complainant was unfairly dismissed. I award her the sum of €12,000 being part of the losses she sustained and not including the redundancy payment paid to her.
CA-00044198-001 – Employment Equality Act 1998
I have decided that the Complainant has not established a prima facie case and the complaint is not well founded.
Dated: 24th March 2023
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
Key Words:
Unfair dismissal by reason of redundancy. Employment Equality complaint no prima facie case. |