Complainant

Respondent

Parties

Anne  Morris

Limerick Chamber of Commerce

Representatives

Siobhan McGowan,  Alastair Purdy & Co

Sarah Daly BL, instructed by  Sweeney McGann 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-00047450-001

02/12/2021

The Complainant commenced her employment with the Respondent on 4 October 2004 as Network Manager. She worked 21 hours a week. The Complainant’s employment terminated on 17 September 2021.

On 2 December 2021, the Complainant referred her complaint to the Director General of the WRC alleging that she was unfairly dismissed. The Respondent denies the claim.

The Respondent denies the allegation. It is accepted that the Complainant’s employment was terminated on 17 September 2021. However, it is the Respondent’s case that the Complainant’s employment was terminated due to the Complainant’s original part-time role becoming redundant. The Respondent’s position is that it had engaged in a comprehensive consultation process with the Complainant prior to the decision to terminate her employment on the grounds of redundancy.

FACTUAL BACKGROUND

The Respondent is a mixed sector business representative body, whose aim is to support the business development of its member organisations. The Respondent is part of the Chambers Ireland business network.

The Respondent provides a number of services to its members and one of the services is in relation to training supports. Funding for such training supports is secured through Skillnet Ireland. Skillnet Ireland is a business support agency of the Government, allocating funding from the Department of Further & Higher Education, Research, Innovation and Science to business groups that are sectoral or geographically based. There are 72 Skillnet Networks across Ireland. Each Skillnet Network is connected to a different business group/organisation (such as the Respondent) which is the ‘contracting body’. Each Skillnet Network is then led by a voluntary steering group (which guides network focus) and is run/managed on a day-to-day basis by a Network Manager (“Skillnet Manager”). The Skillnet Manager is an employee of the contracting body.

The Respondent operates a Skillnet Network for the benefit of its members and other businesses primarily in the Mid-West region. The Respondent is accountable to Skillnet Ireland for the successful delivery of pre-agreed funding and workforce development supports for businesses within the Respondent’s network. The Respondent is required to seek budget approval every year from Skillnet Ireland for continued funding for the Limerick Chamber Skillnet. Core funding is allocated in principle on a multi-annual basis (every three years) but detailed applications must be provided annually for confirmation of approval amounts.

The Complainant has been employed by the Respondent since 4 October 2004 as the Skillnet Manager for the Limerick Chamber Skillnet Network. The Complainant’s role was a part-time role, working 21 hours per week over 3 days. The Complainant’s working hours were generally flexible and she was not required to work set days. The Complainant’s salary was €29,000 gross per annum. There were no issues in respect of the Complainant’s performance and it was considered that overall she was very much in control of her area and carried out her duties well.

In 2018, Ms Ryan was appointed as CEO for the Respondent. After her appointment she met with Ms O’Donnell, who was also recently appointed Skillnet Development Adviser for the region which includes the Limerick Chamber Skillnet. Ms O’Donnell met with Ms Ryan and also with the Complainant, which meetings took place separately in or around October/November 2019. She advised that Skillnet Ireland would like to see the Limerick Chamber Skillnet move from a part-time to a full-time network with a full-time manager. It was advised that if a full-time manager position was commenced, an increased amount of funding could be secured by the Limerick Chamber Skillnet. Skillnet Ireland felt that this would significantly improve the reach and impact of the network. Ms Ryan was aware that the Complainant was unhappy with the proposal to move the network to a full-time network. Ms Ryan then advised Ms O’Donnell, that as the Complainant was an employee of the Respondent, it would be matter for the Respondent to implement any decisions regarding changes or the timing of any proposed changes to the manner in which the Limerick Chamber Skillnet was further developed and any corresponding changes to the Complainant’s role. Ms Ryan understood that the proposal to move the Limerick Chamber Skillnet to a full-time network was one that had been raised previously by Skillnet Ireland with the previous CEO.

In or around 12 February 2020, Ms Ryan arranged for Ms O’Donnell to participate in a member engagement strategy workshop with the Complainant and the LC Skillnet Administrator at the time to determine how to progress the network development utilising the Limerick Chamber member database/network. Shortly after this time, the Covid pandemic commenced, and the Respondent’s focus temporarily moved away from the development proposals for the Limerick Chamber Skillnet Network.

The Complainant then commenced a period of ill health absence on 7 July having first informed the Respondent of the health issue on 23 June 2020. When the Complainant first commenced ill health absence, she advised that she was due to undergo surgery and then wished to utilise annual leave and some TOIL but when it came time for her to return to work in September 2020, she advised that she required additional ill health leave due to suffering from stress.

On the 23 October 2020 Ms Ryan contacted the Complainant regarding her absence and also referred to the proposed restructuring which would happen on her return. (Copies of all the relevant correspondence were exhibited at the hearing) The Respondent also arranged for the Complainant to be reviewed by Medmark in late October 2020. The Medmark report was issued on 3 November 2020. At that point, the Complainant had advised that she had been absent from work since September due to decreased levels of wellbeing. She personally attributed her symptoms to difficulties at work, particularly in relation to her workload. She was deemed medically fit to work and it was recommended that a gradual return to work may be of assistance.

On 24 November 2020 Ms Ryan followed up with the Complainant having reviewed the Medmark report and offered to meet with the Complainant to discuss her phased return to work on 26 November 2020. On 25 November 2020, the Complainant advised that she needed more time before she returned to work and sought to clarify if she was being asked to return to work on a phased basis of the 21 hours per week. She was contacted on 14 December 2020, again regarding a return-to-work meeting.

A return-to-work meeting was arranged for 4 January 2021 and then later rescheduled to 14 January due to the lockdown imposed by the Government over Christmas. On 22 December 2020, the Complainant proposed an agenda for discussion at the return-to-work meeting. It should be noted that in the agenda, the Complainant made reference to the fact that the role she was filling was difficult to complete within a 21 hour week and parts of her workload were unfeasible having regard to her 21 hour working week. The Complainant advised that she wished to see efforts being made to have these matters resolved prior to her return from sick leave.

Ms Ryan then met with the Respondent’s Board on 8 January 2021. As part of the meeting, the Board approved a budget for 2021/22/23 which provided for funding for a full-time Skillnet Manager in order to optimise value offering for members to increase Skillnet funding distribution. By this time, the Respondent had considered that it was appropriate and important that the feedback received by Skillnet Ireland in respect of the delivery of the Limerick Chamber Skillnet Network be taken on board. It was noted that Skillnet Ireland had long been of the view that the Limerick Chamber Skillnet ought to be run as a full-time network and should be managed by a full-time manager so as to maximise its delivery and reach across its region.

On 14 January 2021, Ms Ryan met with the Complainant over a remote video conference meeting. In addition to answering a number of queries raised by the Complainant, M Ryan advised her that the Respondent would like to move the Complainant’s role of Skillnet Manager to a full-time role with increased emphasis on business development and growth of the Limerick Chamber Skillnet. It was noted that the creation of a full-time manager role would allow the Limerick Chamber Skillnet to grow and increase its revenue. Ms Ryan explained the reasoning for the proposed change, noting that this was something that had been recommended for a number of years by Skillnet Ireland and asked the Complainant to consider the proposed change to work on a full-time basis.

Ms Ryan then issued a follow-up letter to the Complainant on 19 January 2021 which set out a full review of the meeting and what had been discussed. Ms Ryan’s letter dealt with all the other issues raised by the Complainant, but in particular set out that the Respondent was hoping the Complainant would seriously consider the full-time position, which had been previously discussed and set out in the email of the 23 October 2021. The salary for the new full-time position was proposed at €38,000 with a 15% bonus based on achieving certain performance objectives.

On 27 January 2021, the Complainant responded and advised that she wished to return on a phased basis. She advised she did not wish for her role to change from a 21-hour week. She stated that a full-time post was not acceptable as her personal circumstances were such that such a move was not possible. Ms Ryan then sent an email on 29 January 2021 thanking the Complainant for her e-mail, noting that the Complainant was fit to return and advising they would discuss how they would accommodate her return on a phased basis. Ms Ryan noted the Complainant had said that she was not interested in taking up the proposed full-time role and advised that the Respondent would engage further with her on this matter after her return.

It was decided that having regard to the Complainant’s ill health absence, the priority was to support the Complainant in her return to work. As a result, the proposed restructuring of Skillnet Limerick was temporarily postponed. The Complainant returned to work in late February 2021 and by June 2021, it was decided that it was important to revisit the changes that were required to improve and develop Limerick Chamber Skillnet.

On 23 June 2021, the Respondent arranged for a meeting to again discuss the full-time Skillnet Manager role with the Complainant. The Complainant was provided with a detailed role description for the full-time role in advance of the meeting. In addition to the change in hours, other changes were also proposed to include an increased focus on marketing promotion and sales of training programmes and a particular focus on lead generation and sales in addition to meeting new annual targets. Having reviewed the job description, at the meeting the Complainant expressed her dissatisfaction with the new salary being proposed which she felt was not pro-rata with her current salary. It is agreed that the new salary was not a pro-rata increase of the Complainant’s original salary. The Complainant had been paid €29,650.20 p/a for a 21 hour week, whereas the budget approval for the new role was to be €38,000 p/a with bonus potential of up to 15% (i.e. €43,700 to include bonus).

On 25 June 2021, the Skillnet Administrator, who had worked on a full-time basis to support Skillnet Limerick, handed in her notice. On 13 July 2021, a further meeting was held to discuss recruitment of a new administrator, as it was the role of the Skillnet Manager to recruit to fill that role. During this meeting the Complainant raised a number of issues, including TOIL days untaken and the payment of same, payment for childminding fees for the time the Complainant had to work and use additional childcare. During this meeting the discussion also dealt with the proposed full-time role and the Complainant was advised that having considered the matter, the Respondent was not in a position to improve the package originally offered for new full-time hours role (i.e. €38,000 plus bonus/€43,700 to include bonus). The Complainant was advised that she would be required to respond with her decision in relation to the fulltime role by 16 July 2021 and thereafter that the full-time role would commence as soon as possible.

On 15 July 2021, the Complainant replied and stated “I wish to continue working part-time which is 21 hours as per my employment contract”.

On 16 July 2021, Ms Ryan telephoned the Complainant following receipt of the email. Ms Ryan discussed the position and advised the Complainant that she wanted to ensure that the Complainant had understood that this meant they would have to move into a consultation process and that her role would be at risk of redundancy. A further follow up letter was sent later that day by email which set out:

As you know the Board have identified that this area has the potential for further development and growth and to achieve that, there is a requirement for a full time Skillnet Manager. I had provided you with the Job Spec and salary/benefits. You had raised some queries such as could we improve on the salary/package and as you know we cannot. We had really hoped that you would take up the role where you are greatly valued. We will now be advertising externally for the role. However, we also accept and respect your decision not to take the new proposed role up.

We now have to move into a formal consultation process where your current role as a part-time Skillnet Manager is at risk of redundancy. During this process you are entitled to raise any queries/issues that you may have and also put forward any alternative suggestions other than redundancy that you wish the company to consider. You are entitled to be accompanied by a coworker to these meetings. In the event alternatives cannot be identified, your current role as part-time Skillnet Manager will be made redundant.

I would like to meet with you on 4th August to commence this process and I will issue a diary invite to you in due course. You might please confirm your attendance.

On 20 July 2021, the Respondent issued formal confirmation to all employees that two employees were due to leave – being the Skillnet Administrator-full time and the Chief Economist-full time. It was also announced that another employee, who had been taken on under the EWSS scheme to help produce a Chamber Magazine would be continuing on a rolling part-time fixed term contract, 3 days a week, until the end of September.

On 4 August 2021 a consultation meeting was held with the Complainant and her representative, Mr. Coughlan. The Complainant was advised at that meeting that two roles were currently open within the organisation, a) Chief Economist - a full-time role and b) Skillnet Administrator - a full-time role. The Complainant explained that her primary issue in respect of the fulltime Skillnet Manager role was the increase in hours as her firm preference was to remain on part-time hours. The Complainant asked if it was possible to do a job share in the Skillnet Manager role and stay on her current salary. Ms Ryan advised that it had been considered that one full-time manager would be required to drive the Skillnet forward in a focused and consistent manner but she advised that the Respondent would give the job share idea further consideration if the Complainant was open to a reduced salary in line with the full time manager salary on offer. Ms Ryan advised that a job share could not be accommodated on the Complainant’s current salary as that would mean that the two roles together would cost in excess of €55,000 if not more. The Complainant then offered an alternative proposal whereby she advised that she could act as a part-time assistant manager on a 3 day week to assist the new fulltime manager but again, she wanted to stay on the same salary. Ms Ryan advised that unfortunately the budget wouldn’t allow for that. The Complainant explained that she couldn’t understand why under the full-time contract her hours would be increasing but pay would not be increased on a pro-rata basis. Ms Ryan responded that the budget for management of the network was set by Skillnet Ireland and it was not possible to increase the salary to €55,000 (which would be the pro-rated equivalent for a 40 hour week) at that time. However, Ms Ryan advised that pending successful growth of activities in the network, there would be opportunities to revisit the salary accordingly. It was agreed that Ms Ryan would revert on the job share option proposal before the end of the week and another meeting was scheduled for the following week.

Following the above meeting, the Respondent gave further consideration to the question of whether a job share option would be feasible for the Skillnet Manager role. Having given the matter much thought, it was felt that the requirements of the business would be better served by a single individual who could offer a full-time commitment to the expansion and development of the network. There were further concerns in respect of how the Complainant’s salary could remain unchanged if she were to job share, as it seemed unrealistic to hire a part-time manager with the required skillset and attributes with a budget of €14,000. It would also be considered inequitable to have an arrangement where the Skillnet Manager role was filled through job share, with the Complainant earning a considerably higher salary that her job share partner.

On 6 August 2021, Ms Ryan wrote to the Complainant, to follow up on the matters discussed in their meeting and to advise of the outcome of the additional consideration of the points raised by the Complainant. Ms Ryan’s email advised:

a.       That whilst her experience and skill set was valuable to the Chamber, the Respondent did need to consider the needs of the organisation and it did not feel the interests of the Limerick Chamber Skillnet would be best served by a job sharing arrangement.

b.       that the Respondent’s preference would be that the Complainant would take up the full-time role.

c.       that the Respondent had identified the Limerick Chamber Skillnet as an area of growth for the organisation and, as such, it determined that one person entirely dedicated on a full-time basis was required to optimise and drive forward the necessary development.

d.       that there were two other jobs open, Chamber Chief Economist full-time and Skillnet Administrator full-time.

The Complainant then replied on 10 August 2021 and said that the response was very disappointing. She advised that it was her position that the practice of job sharing and its benefits were well documented and that the concept had been instrumental for businesses as they strived to retain the key skilled female workers. The Complainant stated it was her view that what was needed to develop the Skillnet programme was improved administrative support. She noted that the administrative position had a succession of appointees who do not stay with the Chamber. She stated the simple reason was that the salary was not at a correct level and that it was very evident from the fact that two of the previous post-holders had moved to other Skillnet networks with much improved compensation packages. The Complainant also stated that during her discussions to date, she had offered to be redeployed to the admin position on the basis she would retain her current salary, hours of work and additional benefits. She advised that it would appear for some reason, the Respondent was not willing to embrace accepted best practice in terms of flexible employment. She advised that she had made it clear that she was not in a position to move to a full-time position and for Ms. Ryan to suggest that the two full-time posts being proposed was an ‘alternative offer’ was not in fact an offer. She advised she had been working in a part-time capacity for in excess of 17 years and she had been effectively excellent. She again advised it was her wish to continue in her current role and she would view any attempt to remove her from the role on the pretext of redundancy as a matter that she would have to refer to her legal advisors.

On 19 August 2021, Ms Ryan responded advising that she was surprised by the contents of the Complainant’s letter, particularly where they had a call on 11 August 2021 following their meeting and prior to her review of her e-mail and she had not raised these issues. She reminded the Complainant again that she was very highly thought of, and that the Respondent had absolutely hoped she would take up the new full-time role and accepted her performance had been at a high level. Ms. Ryan advised the decision to restructure the area had not been taken lightly and had been considered for some time, noting that the Complainant had been aware that Skillnet Ireland had raised its wish to seek a full-time manager in its network for some time.

Ms Ryan further advised:

a.       The need to restructure had nothing to do with Covid.

b.       The Respondent was a very flexible organisation, but they could not envisage a job-share arrangement for this role.

c.       Where the Complainant wished to remain on the same salary, given the limited budget for the full-time role, that would only allow a very limited sum to pay any potential job-sharing candidate making it most unlikely that anyone would wish to apply for such a role.

d.       Regarding the administrator role, it was agreed that there had been a turnover in that role for various reasons, including a buoyant labour market. However, as per the Complainant’s recommendation in 2019, the hours and salary for the administrator role were increased to full-time to assist with staff retention. Ms Ryan advised that there were insufficient funds available to increase the renumeration for that role any further at that time.

e.       Ms Ryan noted that the Complainant had advised that she would take up the administrator role on her current terms and conditions, however, the Respondent simply could not afford that. The Complainant was advised that she was absolutely welcome to put herself forward for the administrator role but it could only be on the agreed salary.

f.        The Complainant was again advised that there was a genuine redundancy situation in respect of her part-time role because due to the proposed restructuring, the role she held at that time would no longer exist.

Ms Ryan concluded by advising that the Respondent was now moving forward to finalising the consultation process and would forward the Complainant’s redundancy calculations to her. The redundancy calculations were issued on 2 September 2021. The Complainant’s statutory redundancy was calculated at €19,915. A further meeting took place on 3 September 2021 in respect of the redundancy calculation and handover preparations.

The Complainant was advised that due to her service and the circumstances of her redundancy she would be offered an ex-gratia payment, on the usual terms being the signing of a Termination Agreement. On 7 September 2021, the Complainant was furnished with a Termination Agreement but ultimately advised that she did not wish to sign same. The Complainant’s role was then terminated on grounds of redundancy and her final day at work was 17 September 2021. The Complainant was then paid her redundancy payment in addition to all outstanding monies due, as set out in an email of 23 September 2021.

The Respondent has since hired/extended fixed-term contracts for the following employees:

·         2 December 2021 - Skillnet Manager – full time position - €45,000

·         23 February 2022 - Part time Skillnet Administrator – 3 day week - €21,000

·         3 March 2022 - Extension of part/time fixed term contract - Part time accounts/membership sales – 3 day week - €18,500

LEGAL PRINCIPLES

The Complainant claims that she was unfairly dismissed as follows:

“I was informed that my role was redundant as they required it to become full-time, however, would not agree to pay me full-time in line with my current renumeration. My role is now being advertised. I reserve the right to produce further evidence at the hearing and lodge a formal submission”.

The Respondent submits that the Complainant was dismissed wholly or mainly due to redundancy, which constitutes a substantial reason to justify the termination of her employment and is a full defence to unfair dismissal in accordance with sections 6(1) and section 6(4) of the Unfair Dismissals Act 1977, as amended.

In this regard reliance is placed on section 7(2) of the Redundancy Payments Acts 1967, as amended, which defines dismissal by reason of redundancy.

As noted in the leading textbook, O‘Regan / Murphy, Employment Law, section 7(2)(b) applies in circumstances where there is a change in the employer’s business which results in a reduction in the business’ requirements for employees to carry out a particular kind of work. It is noted that a change in working arrangements (including day shift as opposed to night shift and/or part-time work as opposed to on-call work qualifies as such a change).

(ii) Reduction in requirements of the business

[19.18] The second situation arises where the dismissal is attributable wholly or mainly to:

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.

[19.19]

This second situation is essentially concerned with dismissals resulting from a downward change in the business’s requirements for employees to carry out work of a particular kind. The most obvious case in which such a situation arises is where the volume of work of an employer has fallen off either partially or completely. In such cases, some or all of the employees engaged in the work are surplus to the requirements of the business and so are redundant.

[19.20]

However, before an employee is redundant for this reason, the downward change must impact on the particular kind of work the employee was contracted to perform. According to the English National Industrial Relations Court, the same phrase in the English legislation means ‘work which is distinguished from other work of the same general kind by requiring special aptitudes, skills or knowledge’. In this jurisdiction, in Dinworth v Southern Hotel Board, the EAT held that day work was a different kind of work than night work. In Kelleher v St James Hospital Board, the EAT considered that work of a part-time nature was of a different kind from on-call work. In Shine v SKS Communications Ltd the EAT held that work consisting of repairing machines off-site as opposed to on the employer’s premises constituted work of a different kind within the meaning of this section.

Likewise, Redmond on Dismissal Law, (3rd Ed. Bloomsbury Professional, D. Ryan) para. 17.19/20 also discusses the need to carry out a qualitative analysis of the change to working practices in order to determine if they fall within section 7(2)(b):

[17.19]

‘Work of a particular kind’ referred to in s 7(2)(b) is likely to be interpreted qualitatively. In Dinworth v Southern Health Board, the question was whether day work was different to night work. The EAT said:

‘In any contract of employment, whether written or verbal, either party is entitled to stipulate for what either party considers to be essential terms. In the case of most daily occupations, such as work in offices and shops, night work does not enter into the parties’ considerations. In such cases, it would be a radical departure from the parties’ understanding of their contractual responsibilities if an employer was to say, for instance, to his office secretary, “from now on I will want you to work from midnight to eight o’clock in the morning two nights a week”. In our view that would entitle the employee, when she refuses the change and is dismissed, to assert that her dismissal was due to redundancy on the basis that the employer’s requirements for a secretary to work the conventional office hours had ceased and that what he wanted in future was someone who would be prepared to work a night shift.

If, on the other hand, the same employer, when advertising for a secretary had stipulated that he wanted someone who would work two nights per week, the situation would be different and the employee who is dismissed for refusing to keep to her contract would fail because the employer’s requirements have not changed.

In considering the phrase “work of a particular kind” in s 7(2) of the Act as amended, we are of the opinion that in the hypothetical cases mentioned, day work is work of a different kind from night work.’

[17.20]

This was repeated, and approved, in Kelleher v St James Hospital Board, where ‘on call’, as against part-time, work was concerned. The employer hospital experienced no change in the actual volume of nursing work in the area concerned but decided that it should be performed by one full-time nurse rather than two part-time nurses, which included the claimant. The EAT considered whether the employer’s requirements for part-time nurses to carry out work of a particular kind had ceased or diminished. The claimant had been told that, as she had been replaced by a full-time nurse, she would be ‘on call’ thereafter. The EAT concluded, applying Dinworth above, that work of a part-time nature was work of a different kind from ‘on call’ work. The employee was therefore successful in her claim for a redundancy payment.

Section 6(4)(c) of the Unfair Dismissals Acts upholds redundancy as a fair reason for dismissal. Insofar as any unfair selection for redundancy, section 6 (3) of the Unfair Dismissals Acts sets out how unfair selection for redundancy may arise.

The Respondent relies on the Employment Appeals Tribunal decision in Curtin v Mallow Golf Club UD964/2014 where it was held that that situations where a genuine redundancy situation may result in a finding of unfair dismissal under section 6(3) remain limited.

In considering the termination of the Complainant’s employment by reason of redundancy, the judgment of Charleton J. in JVC Europe Ltd v Ponisi [2012] E.L.R. 70, is relevant. Mr Justice Charleton stated that it might be “prudent and a mark of genuine redundancy, that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”.

Mitigation of losses

In the event that it is determined that the Complainant's redundancy dismissal qualifies as an unfair dismissal, the Respondent submits that any failure on the part of the Complainant to mitigate her losses ought to be taken into account when determining the appropriate compensation.

The Respondent relies on sections 7(1) and 7(2) of the Unfair Dismissal Acts 1977.

It is well settled that where it is determined that an employee has failed to take appropriate steps to mitigate his/her losses, a significant reduction of any award is merited. Furthermore, it is submitted that it is also well settled that a Complainant is expected to spend a reasonable portion of each working day attempting to secure alternative work.

The Respondent quotes Redmond on Dismissal Law, (3rd Ed. Bloomsbury Professional, D. Ryan) para. 24.73/4

“It is clear that an employee must produce evidence at the unfair dismissal hearing that he or she has made a ‘determined effort to find work’. In Sheehan v Continental Administration Co Ltd the EAT endorsed the position set out in the second edition of this work that ‘[a] claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work ... The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather [is] to be profitably employed in seeking to mitigate his loss.’ This passage was recently adopted and applied by the Workplace Relations Commission in deeming a claimant to have made insufficient effort to mitigate his loss. Where the complainant has been unavailable for work and thereby has not availed of opportunities to mitigate his or her loss, compensation will normally be reduced accordingly.”

The Respondent also relies on Smith v Leddy UDD1974.

APPLICATION OF LEGAL PRINCIPLES

It is submitted that the Respondent had cogent and genuine reasons for the redundancy of the Complainant’s role as have been set out in significant detail in these submissions. It is submitted the factual matrix in place at the time of the Complainant’s redundancy fits squarely within section 7(2)(b) Unfair Dismissals Act 1977.

The role of the Complainant was made redundant because the requirements of the Respondent for a part-time Skillnet Manager role were about to cease. The operational changes which the Respondent intended to implement (and thereafter did implement) included the expansion of the Skillnet Manager role to become a full-time position with additional focus on the continued development of the Limerick Chamber Skillnet Network.

The reason for the Complainant’s position being made redundant was due to objective and transparent factors, which were fully explained and discussed with the Complainant. The Respondent’s plans in respect of the restructuring of the operation were also driven and influenced by the views of the Skillnet Ireland Development Advisor and indeed the proposal to expand the network to a full-time network with a dedicated full-time manager was one that had been discussed with the Complainant and been considered for a number of years prior to its implementation in late 2021.

It is submitted that at all times the Respondent behaved fairly, transparently, and reasonably towards the Complainant. The Respondent consulted in full with the Complainant regarding the reason for the proposed redundancy of her role and considered all proposals made by the Complainant to avoid the redundancy

It is submitted that the termination of the Complainant’s employment by reason of redundancy was fair for the following reasons:

a.       The Complainant’s part-time position had genuinely become redundant, as can be seen from the fact that immediately after the Complainant’s employment terminated, the Respondent recruited and hired a full-time Skillnet Manager.

b.       The Respondent’s budget limitations meant that it was not possible to create a full-time role with a salary that was pro-rata the full-time equivalent of the Complainant’s part-time role.

c.       The Complainant was offered the full-time Skillnet Manager role and was actively encouraged to take up the full-time position.

d.       There was a full at-risk consultation process with the Complainant, during which the Complainant availed of the opportunity to meet with the Respondent and was represented during the course of the said consultation process.

e.       The Respondent met with the Complainant on a number of occasions during the at-risk process to discuss the proposal to make the role redundant; discuss any concerns the Complainant had and discuss the Complainant’s feedback in relation to the proposal.

f.        There was no selection process for redundancy as the Complainant’s role was a stand-alone role within the Respondent’s business.

g.       The Respondent did all in its power to retain the Complainant in the organisation and endeavoured to do all it could reasonably do to encourage her to take up the full-time role.

It is further submitted that any suggestion of ‘unfair selection for redundancy’ cannot arise on the facts as there is no basis for any selection of the Complainant being on any of the automatically unfair grounds within section 6(2) of the Unfair Dismissals Acts. There was no selection pool or pool of candidates in a similar employment to her such that part (a), does not arise as her role was a stand-alone role. In addition, the Respondent did not have an established redundancy selection procedure such that there can be no breach of any such procedure.

It is submitted that once the Adjudication Officer is satisfied that (a) redundancy was the reason for redundancy and (b) no unfair selection within the meaning of section 6(3) of the Unfair Dismissals Acts occurred then the redundancy is not an unfair dismissal. Therefore, it is submitted that the Complainant cannot seek to challenge the termination of her employment by reason of redundancy in the absence of showing unfair selection for redundancy within the meaning of section 6(3) of the Acts.

Notwithstanding the above submissions, in circumstances where the Adjudication Officer accepts that the Complainant has been unfairly dismissed, it is submitted that any failure on her part to mitigate her loss must be taken into account. In the within case the Complainant ought to have spent a significant portion of each working day attempting to secure alternative employment. At the time of the preparation of the within submissions the Complainant has yet to confirm her employment history since the conclusion of her employment with the Respondent, however the Respondent submits that it would be expected, in the current economic climate and having regard to the Complainant’s skillset and geographical location that she would have secured alternative employment within a short period of time. It is further noted that the Complainant has been paid the sum of 8 weeks' notice and so she has suffered no losses for the first 8 weeks post termination. It is also noted that the Complainant has been paid the sum of €19,915.80 by way of a redundancy payment and so this payment must be returned to the Respondent in the event of her being found to have been unfairly dismissed.

CONCLUSION

It is submitted, that having regard to the factual matrix set out above, and the supporting documents, the Complainant is unable to establish that her redundancy was anything other than a genuine redundancy situation and/or that she was unfairly selected for redundancy.

In the closing remarks, the Respondent further said that the redundancy process was fair, alternatives proposed and considered. The requirement for a part-time manager ceased. The Complainant was offered the full-time role.

Regarding the Complainant’s request for reinstatement, the Respondent said at the adjudication hearing that it is not realistic. There is a person in situ for over a year.

The Respondent further submitted that the Complainant failed to mitigate her losses. There is a significant demand for workers with her skillset. Contacting people and asking to let her know if something comes up is not sufficient. Furthermore, the Respondent submits that the Complainant was doing courses, so she was not available for work.

Summary of the direct evidence and cross-examination of Ms Ryan, the CEO

Ms Ryan said in her sworn evidence that Skillnet required a full-time role. She said that there has never any suggestion that the Complainant’s performance was an issue. It was capacity issue, there was potential to do much more and the Respondent needed to increase capacity. It was decided to increase the hours to full-time. Ms Ryan said that when she became aware of the Complainant’s ill health she made some changes to give her support.

In January 2021 the Board of Directors agreed to restructure the role, the Complainant was encouraged to take it up.

Ms Ryan said that she met with the Complainant in June 2021 and explained the constraints. She understood that the hours of work were the challenge. In mid-July 2021, the Complainant confirmed that she didn’t want to move, and Ms Ryan explained that they will have to move to formal process as the Complainant’s role was at risk of redundancy. She said that two full-time roles became available. Regarding the part-time role the Complainant referred to, Ms Ryan said that in July 2021 it was envisaged that the project the employee worked at would run until September. The role was part of the Employment Wage Subsidy Scheme. Once the EWSS did not apply, the employee was given a full-time contract. Ms Ryan said that this role never came up in conversations with the Complainant as it was a temporary role.

Ms Ryan said that she discussed the Complainant’s proposals with the Chamber’s President but the view was that it would not work for the Respondent as it could not pay €29,000 for a three day week to one person and €14,000 for a two day week to another person. The Respondent needed consistency.

In cross-examination, Ms Ryan confirmed that the Complainant worked in excess of her contracted hours. At the periods when the admin staff left, she would have ensured that the network was run efficiently, she would have covered admin work in addition to her own. She was offered time off in lieu. Ms Ryan said that there have never been any complaints made to her as to how the network was run.

Ms Ryan was asked if, in January 2020 when the Complainant was putting in long hours doing an audit, she made comments about redundancy. Ms Ryan said that she recalls a conversation in passing in the kitchen when the Complainant said that work was crazy, she would have indicated that they could talk about other options. She said she understood the Complainant was under pressure and she was aware that a full-time person was needed.

In relation to communication during the Complainant’s sick leave, Ms Ryan said that she understood she was on annual leave at this stage, and the matter was urgent.

Ms Ryan confirmed that the Board met on 8 January 2021 and approved the full-time position, she did not recall if the fact that the salary was not pro-rata was raised.

Ms Ryan said that the Board made a decision in relation to a full-time manager and did not predetermine any decisions regarding redundancy. They hoped that the Complainant would take the role. She was skilled, liked by stakeholders, it would have been the Respondent’s desire that she would have accepted the role.

Ms Ryan said that she did not approach the Complaint again until June 2021 as her attention was given to another project. She confirmed that she was in regular communication with the President regarding the Complainant’s concerns and possible alternatives, she had no notes of these conversations.

It was put to Ms Ryan that when the salary was increased to €45,000 plus 10% bonus in October 2021, the offer was not put to the Complainant. Ms Ryan said that the Complainant refused the role because of hours of work, the position with the higher salary remained a full-time one.

She confirmed that no appeal was offered to the Complainant.

In re-examination, Ms Ryan said that the Complainant never queried if the matter was discussed with the President. She also said that the Complainant never suggested that there was room to negotiate the full-time salary, the issue was the hours of work.

Ms McGowan, on behalf of the Complainant submits as follows.

The Complainant commenced employment with the Respondent in 2004. She was employed as the Network Manager, running the Skillnet programme. She was employed in a part-time capacity and worked a 21 hour a week contract for the duration of her tenure of employment. For the majority of her employment, no issues arose in relation to the part-time aspect of this role and this was due to the efficiency of the Complainant and the fact that the role worked alongside a full-time administrator who worked on a 35 hour a week contract.

Over a period of 5 years prior to the Complainant's employment being terminated, the Respondent had lost, and had to replace the Administrator's role, on 5 different occasions. One of the Administrators who left in June 2019 was not replaced for 6 months and when the new employee was hired, there was another gap due to the training that was required for this individual. Due to the absence of an administrator at this time, it necessitated the Complainant carrying out both roles and she was authorised by the Respondent's CEO to log these additional hours on the Respondent's H.R. Management system as time owed in lieu (TOIL).

During the Complainant's annual review in February 2020, she was informed by the CEO that, as the Respondent's budget was fixed, they could not offer her any further money for the additional works that she had and indeed, still was, carrying out. The Complainant stated that she wished to remain at her part-time hours and an agreement was reached that she would be paid for all the TOIL accrued.

The Complainant became ill in May 2020 and was advised that she required surgery. In June of that year, she sought assistance from the CEO with the workload and also sought that, as her surgery was now planned for July of that year, that her accrued leave and TOIL be dealt with prior to same. The Complainant received no responses to these requests.

The Complainant commenced certified sick leave in July 2020, however, she was consistently contacted by the new Administrator who would apologise for disrupting her "holidays".

The Respondent's policy is to discharge one month worth of sick pay, however, the Complainant was paid for the months of September and October 2020 and duly submitted her welfare entitlements to the Respondent. The Complainant was subsequently informed that her outstanding TOIL was used for these months, without her knowledge or agreement.

During the Complainant's period of sick leave, she was informed that 4 employees of the Respondent carried out her role being paid for time spent on same.

In January 2021, while the Complainant was still on certified sick leave, the CEO sought a meeting with her via Zoom. The Complainant sought in her email to the CEO to set certain items on the agenda of this meeting. At this meeting, the Complainant was informed that the Respondent wished to make her position full-time (35 hours per week), however, the pay was not to increase commensurate with her current salary conditions. On the Complainant's return to work in February 2021, she was informed by the Respondent's CEO that her role was indeed to be made "full-time". She was informed that her part-time position no longer existed and that this matter would be discussed further with her when she had settled back to work. In fact, it was only when the Complainant sought annual leave in June 2021 that this matter was raised again.

A further meeting took place on the 13 July 2021 between the Complainant and the CEO and the CEO sent an email summary of matters referenced in that meeting on the same date. It is clear from this that the Complainant was querying the "package" being allocated to the proposed "full-time" role and yet the Complainant was given only 3 further days to make a decision.

Two days prior to the Complainant's annual leave, she received an email from the Respondent's CEO dated 21 June 2021. This email sought a meeting with the Complainant and included an "agenda" with item 1 being "Move to full time hours for Network Manager (job description to follow).” The next day, under email of 22 June 2021, the job description and proposed remuneration details were sent. A meeting duly took place and by email dated 25 June 2021, the CEO stated that she would revert with minutes of the meeting and confirmed that another Administrator had resigned. She further confirmed that she would work on answers to the Complainant's queries on the proposed full-time role and same would be discussed when both parties had returned from their annual leave.

Due to the fact that the salary being proposed for the "full-time" position was not in line with her current salary for 21 hours, the Complainant declined the proposal to change her terms and conditions. She communicated her decision to the Respondent's CEO on the 16 July 2021. The Complainant was then immediately informed her that position was "at risk of redundancy" and that the role of Skillnet manager was being advertised externally. It would appear difficult not to draw a conclusion that a decision had already been made to terminate the Complainant's employment at this juncture.

A Teams call was set up with the Complainant and the Respondent's CEO wherein the Complainant was allowed to be accompanied by an external person, Mr. Coughlan, as her support. At this meeting, the Complainant proposed a job share scheme, however, under email dated 6 August 2021, this suggestion was rejected and instead, the CEO stated that there were 2 full-time positions that the Complainant could apply for, failing which, her role was redundant. It is interesting to note that in addition to these 2 full-time roles, the Respondent also had a part-time position which it had filled internally, without advertisement and this position had not been offered to the Complainant.

The Complainant issued an email to the CEO dated the 10 August 2021, setting out her disappointment with the Respondent. She stated that she had proposed a job share arrangement which was dismissed out of hand and further, agreed to move to the Administrator role on her current terms and conditions, again this was rejected. The Complainant clearly indicated that she was not happy with the process and referenced obtaining legal advice. This was responded to by the CEO by email dated 19 August 2021. The CEO again, declined the offers/alternatives proposed by the Complainant and while stating that "We are moving forward to finalise the consultation process", it is clear that a decision had been reached in advance and the document confirms that redundancy calculation figures should be furnished. It is also to be noted that the Complainant was asked to remain in her position for a number of weeks following the hiring of the new Network Manager, so that she might train them. Again, on the basis that the Complainant's role was redundant, it is not in keeping with the statutory definition of redundancy to state that the Complainant was required to remain to train her replacement.

The Complainant was duly made redundant and her employment was terminated on the 17 September 2021. The Complainant received a statutory redundancy payment of €19,915.80.

LEGAL POSITION

It is the Complainant's contention that she was unfairly dismissed by the Respondent. In addition, the manner in which the Complainant's redundancy was effected was entirely at odds with her right to fair procedures as provided for under the Unfair Dismissals (Amendment) Act, 1993. Unfair Dismissal is defined under Section 6 (1) of the UDA. It provides that the dismissal of an employee shall be deemed, for the purposes of the Act, to be an unfair dismissal unless, having regard to all the circumstances, and whether substantial grounds in existence at the time of the dismissal justifying same. Under Section 6(4)(c) of the Act, an employee's termination is not deemed to be an unfair dismissal in circumstances whereby said dismissal results "wholly or mainly" from the redundancy of the employee. To that end, the Respondent is placed on strict proof to demonstrate that the Complainant's termination resulted wholly or mainly from redundancy. The definition of what constitutes a valid redundancy is set out at Section 7(2) a-e of the Redundancy Payments Act, 1967 (as amended). Therefore, the Complainant contends that the Respondent must prove that for the Complainant's dismissal to be deemed a redundancy, one of the circumstances listed must have occurred.

It is contended that the termination of the Complainant's employment does not fall within any of the above circumstances. In fact, the truth is that the work had increased and while there can be no dispute that the Complainant was always qualified to carry out the role, the Respondent simply wished for same to be carried out for 35 hours per week as opposed to 21 hours and at a rate not commensurate with the Complainant’s rate of pay.

It is also not justifiable for the Respondent to attempt to state that the role may have changed or that the Complainant was no longer a suitable candidate, as the emails exhibited as part of the Complainant's case clearly show that the Respondent was more than willing for the Complainant to take up the full-time role at the lesser remuneration package. In fact, at no time during the purported "consultation period", did the Respondent highlight any proposed changes to the role bar that of it being amended to 35 hours per week.

Whilst the Redundancy Payment Act does not prescribe a set procedure when engaging in redundancy, the UDA, specifically Section 6(7)(b), states that an adjudicator may have regard to any process resulting in the implementation of the redundancy. There are a number of guiding principles have also been established by the former Employment Appeals Tribunal to supplement an employee's right to fair procedures and natural justice when subject to a redundancy scenario. In that regard, the Respondent must prove the following, that:

i.              The dismissal resulted wholly or mainly by virtue of the redundancy; ii.              The reasonableness/ fairness of the employer's decision.

As set out in the background section of this submission, the Complainant was contacted while on sick leave and informed that a decision had been made to move her role to that of full-time. It was again briefly mentioned on her return to work in February 2021 but only on the Complainant seeking approval of her annual leave dates in June 2021, did the Respondent fully engage with the Complainant. Following a meeting in July 2021 wherein the Complainant was offered the post in a full-time capacity and her decision to decline same, she was immediately informed that the post was to be advertised externally and that she was to be met with in early August 2021 as her post was now at risk of redundancy. The Complainant contends that the Complainant's redundancy was in fact already a "fait accompli" and despite alternatives suggested by the Complainant at her meeting on the 4 of August, she was subsequently made redundant by the Respondent. No appeal of this decision was offered to the Complainant.

The Complainant relies on the Labour Court decision of Cuan Tamhnaigh Teoranta —and- Declan McShane UDD224 (UD/20/141) wherein the Labour Court, in referring to the consultation process, described it as "perfunctory and pro-forma". It went on to state that

"There was no meaningful effort made, in the Court 's view, to consider options for alternative employment for the Complainant

The Complainant contends that this is also true in this instance, where another employee was offered part-time employment that was not openly advertised or published. In addition, as in the case cited, no appeals process was offered.

LOSS MITIGATION

It is submitted that the Complainant mitigated her loss.

In the closing remarks, it was submitted on behalf of the Complainant that the Respondent relied on section 7(2)(b) but there was no dispute that work increased. The Complainant was available to do extra hours, but the Respondent wanted this at a cheaper rate. She asked about the salary but was informed that here would be no movement on that.  Regarding the process, it was submitted that it was clearly a choice ‘take the role or you are gone’. There was nothing put forward to show that there was determination to keep the Complainant. It was not a genuine redundancy. The Complainant was never contacted when the salary for the full-time role was increased by 10k.

Summary of the direct evidence and cross-examination of the Complainant

The Complainant described her role with the Respondent. The Complainant said that “on paper” she was part-time working 21 hours a week but because of the demand she would have worked above these hours.

The Complainant said that during her conversation with Ms Ryan in the kitchen in January 2020 she said that she worked mad hours, Ms Ryan replied that the Respondent could not pay for overtime, and the Complainant said that she would revert to 21 hours. The Complainant said that during a subsequent meeting with Ms Ryan she said that she had lots of annual leave and TOIL and she did not want to work for nothing. Ms Ryan asked the Complainant if she was looking for a redundancy package to which the Complainant said that she was not.

The Complainant said that she was contacted during her sick leave. She said that on one occasion she spent over one hour on the phone texting. She thought that she could not go back to this.

The Complainant said that when the full-time proposal was put to her, she queried the pro-rata salary, pension and VHI. The Complainant said that she considered the role, but the big issue was that the salary was not pro-rata, there was no guarantee of a bonus. She said that she was not asked what an acceptable salary would be for her. She believed that the process was not genuine. She said that job sharing worked for other networks. She could do business development with strong admin support. She said that no details of any discussions with the President were put to her. She also said that she was not asked to consider the revised salary.

Regarding loss mitigation, the Complainant said that, at her age, it is more likely to get a job through someone she knows, not cold applications. She said that she contacted her contacts in Skillnet from October 2021 onwards. She also spoke with trainers and let them know that she was looking for a job. She did a manual handling course in October / November 2021. She considered a SNA route. She contacted recruitment agencies looking for a SNA role or a role in accounts. She said that she is doing a computerised payroll course. The Complainant confirmed that she would consider going back to the Respondent.

In cross-examination, the Complainant confirmed that she regularly worked over 21 hours. It was put to her that the role was more suitable for a full-time position. The Complainant replied that it depends on the support available.

The Complainant agreed that the expansion was on the cards for a while and a lot of discussions went into it for over 12 months. 

Regarding the full-time salary, the Complainant said that she was initially told to expect a salary between 40-60k. She said that if the Board decided to give her the bonus, she would take the job, but there was no guarantee. It was put to the Complainant that she asked for a pro-rata salary of €55k. She said that she asked why the salary was not pro-rata. She agreed that the CEO told her that it would be looked at down the road. The Complainant was asked why she didn’t say that the salary was an issue, the Respondent’s understanding was that it was hours of work. She said that it was a done deal.

Regarding loss mitigation, the Complainant said that she had done a SNA course some time ago but it is out of date now and she had no experience. She said that she sought a job through her network, from her experience she believes that that’s where she could get a job.

The Complainant referred her claim to the Director General of the WRC on 2nd December 2021 alleging that she was unfairly dismissed. The Respondent denies the claim and asserts that the Complainant was dismissed wholly or mainly due to redundancy as per section 7(2)(b) of the Redundancy Payments Act.

The Law

Unfair Dismissal Act

6. Unfair dismissal

(1) 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.…

(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971 as amended by the Industrial Relations Act 1990, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

(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, 

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(7) 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 or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

Under the Unfair Dismissals Act, redundancy has the same meaning as it has under Section 7(2) of the Redundancy Payments Act, 1967, as amended:

“(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 contends that the Complainant’s dismissal was attributable wholly or mainly to the fact that the requirements of the Respondent for the Complainant to carry out work of a particular kind in the place where she was so employed have ceased or diminished as per section 7(2)(b) above.

The Unfair Dismissals Act deems a dismissal to be unfair until the Respondent can demonstrate that it was neither substantively nor procedurally unfair. Where redundancy is put forward by the Respondent as the reason for termination of employment it is necessary for the respondent employer to show that the purported redundancy not only meets the definition of the term but also that the Complainant was fairly dismissed by virtue of fair selection for redundancy.

In the leading case of Panisi v JVC Europe Ltd. [2012] ELR 70 Charleton J held:

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”

Further the High Court in Panisi held:

“It may be prudent, and a mark of genuine redundancy, that alternatives to letting an employee go should be examined…Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer.”

The Labour Court held in the case of Component Distributors (CD Ireland) Ltd v Brigid (Beatrice) Burns UDD1854:

“The Court accepts that the Respondent was entitled to restructure its business and reduce its workforce if necessary. While the Court accepts 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.”

As perO‘Regan / Murphy, Employment Law, quoted above by the Respondent, section 7(2)(b) “ is essentially concerned with dismissals resulting from a downward change in the business’s requirements for employees to carry out work of a particular kind. The most obvious case in which such a situation arises is where the volume of work of an employer has fallen off either partially or completely. In such cases, some or all of the employees engaged in the work are surplus to the requirements of the business and so are redundant. (Emphasis added).

There was no dispute that the demand for work carried out by the Complainant had increased significantly. In fact, it increased to such an extent that the Respondent made a decision that part-time capacity was not sufficient and an increase in hours devoted to the work carried out by the Complainant was required.

In St Ledger v Frontline Distributors Ireland Ltd UD 56/1994 the EAT held as follows;-

“Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in numbers. Definitions (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. Under these two definitions change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words ‘other work’. More work or less work of the same kind does not mean ‘other work’ and is only quantitative change. In any event the quantitative change in this case is in the wrong direction. A downward change in the volume of work might imply redundancy under another definition, (b) but an upward change would not.” (Emphasis added).

Section 7(2)(b) is concerned with dismissals resulting from a downward change in the business’ requirements for employees to carry out work of a particular kind. Therefore, the dismissal must not be connected to the individual employee but to the state of the business. 

Having considered the submissions of the parties and the evidence available to me, I find that no genuine redundancy situation existed in the instant case. Consequently, I find that the Complainant was unfairly dismissed.

Redress and loss mitigation

The Complainant indicated that, in the event of her claim being determined to be successful her preferred remedy would be either re-instatement or compensation. The Respondent objected to reinstatement on the basis that a new person has been in situ for almost a year.

Having considered the submissions of the parties and the evidence put before me, I determine in the circumstances of this case that the reinstatement or re-engagement of the Complainant is not a practical option. I, instead, take the view that compensation is the appropriate redress and is the remedy that will do justice between the parties.

Section 7(1) of the Acts provides:-

(1)    Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a)    …

(b)    …

(c)      

(i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

(ii) if the employee incurred no such financial loss, payment to the employee by the employer of 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,

Both parties furnished post-hearing their respective calculations of the Complainant’s average weekly remuneration as per S.I. No. 287 of 1977.

The Complainant’s representative asserted that the weekly payment amounted to €695.95 which comprised of the following:

·         base weekly salary (gross) €570

·         weekly pension contribution: €39.91

·         weekly VHI contribution: €28.84

·         weekly bonus €57.01

The Complainant’s representative submitted that, in line with the r S.I. No. 287 of 1977 Unfair Dismissals (Calculation of Weekly Remuneration) Regulations 1977, the above amounts are regular and recurring. It was asserted that the Complainant has consistently been in receipt of her 10% bonus. No further clarification of the above figures was offered.

The Respondent disputed these figures and submitted the following:

·         monthly wage per the Respondent’s records: €2,470.85, which is the equivalent weekly wage of €570.19 - which agrees with the Complainant’s figure.

·         pension payment by the Respondent appears to be fixed amount of €150.93 per month or €34.83 per week which is lower than €39.91 set out by the Complainant.

·         VHI - per 2021 payslips the VHI notional pay was €94.43 per month or €21.80 per week which is lower than €28.84 set out by the Complainant.

·         A bonus paid in December 18 for €2,250, which would indicate her bonus was circa 7.5% compared with 10% figure in email.

The Respondent asserted that the total weekly remuneration was €670 whereas the Complainant has sought €696.

In the absence of any evidence supporting the calculations of either party, I am inclined to accept the Respondent’s figures, which appear to be based on information contained in the Complainant’s payslips.

The Complainant gave evidence that she made some efforts to secure new employment but was unsuccessful. The Complainant furnished copies of two job enquiries, and one, what appears to be a general query regarding the recruitment process for a position of SNA and an administration position in a primary school.

Section 7(2)(c) provides that in examining the financial loss, the Adjudication Officer must have regard to the measures adopted by the employee to mitigate her loss. I note that the Complainant asserted that, because of her age she would be more likely to secure new employment through her network. While the Complainant noted that she had made many informal enquiries in that time, the only actual evidence of active job seeking in that period produced were two written enquiries and one interview. This evidence does not suggest a very active approach on the Complainant’s part.

As the Respondent pointed out, the requirement on a dismissed employee to seek alternative employment is very significant and was put very well by the Employment Appeals Tribunal in Sheehan v. Continental Administration Company Ltd., when the Tribunal noted that ‘The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss’.The evidence offered of the Complainant’s attempts to find work falls short of what is set out. In arriving at my decision as to the amount of compensation that is just and equitable, I have considered the Complainant’s not sufficiently rigorous attempts to mitigate her loss.

I note the Complainant was paid eight weeks’ statutory notice pay, which was taken into account when calculation the financial loss arising from the dismissal.

I declare this complaint to be well founded. I order the Respondent to pay the Complainant €17,420 (approx. 6 months wages) in compensation for her dismissal.

Unfair dismissal -redundancy -