Complainant

Respondent

Parties

Mariann  Bodor

iNUA Hospitality Group t/a Radisson Blu Hotel & Spa

Representatives

Renata Bencsik

Niamh O Donnabhain, BL

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00038834-006

21/07/2020

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

CA-00038834-003

21/07/2020

K used to work together with The Complainant’s Manager, A in previous hotels therefore she was approached to join the team.

The Complainant was forwarded a roster from August 2021 by an accident and it is clear that all Accommodation team was working, some was even working 6 days per week. New Recruit as Accommodation supervisor, K is still rostered so it is only The Complainant that was removed from the department by “making her role” REDUNDANT.

The Complainant felt that she should have been given the opportunity to be trained to become a Supervisor and not to hire a new recruit for the role.  As The Complainant’s Manager, A have expressed not once that there is no need for a Team Leader in the department, The Complainant couldn’t understand why a new supervisor was hired while The Complainant was denied of any training to become a Supervisor.

The Complainant feels her dismissal was unfair and inappropriate as it is obvious the hotel did not want her to work their anymore.

The Complainant suffered a nervous breakdown, she was prescribed with anti-depressants and relaxation medications from her GP due to the stress and bullying she experienced while working in the hotel.

The Complainant still suffers from aftereffects of the way she was treated, she suffers from anxiety and stress and she finds it hard to gain her confidence back.

Regarding the submission by the Respondent that the WRC has no jurisdiction to hear the claim as it was lodged prematurely the following is submitted:

The following case law which supports her case to be heard; most importantly sets the precedence and showcases implications this ruling have in Unfair Dismissal cases.

Alan Brady –v- Employment Appeals Tribunal [2014] IEHC 302appealed and presented in front of the High Court.

The Employment Appeals Tribunal heard the applicant’s claim. At the hearing the Football Club argued that the applicants unfair dismissal claim was received by the EAT before the dismissal took effect. The EAT agreed and as a result determined that the Tribunal did not have jurisdiction to hear the matter.

The express oral representation made by a representative from the Club was so clear that it would be unfair and inequitable to allow it to rely on the assertion that the dismissal occurred some two weeks later. The Court decided that the applicant successfully pleaded his estoppel argument. Under s. 8 of the Unfair Dismissals Act 1977, the time limit for filing an unfair dismissal notice is six months from the date of dismissal. The applicant and his lawyers took action to comply with s. 8 of the Act. The Court said that time limits were intended to thwart the tardy, not punish the prompt. It went on to determine that the Tribunal did have jurisdiction to hear the applicants claim because of the principles of equity. As a result, the court granted all the reliefs sought by the applicant as stipulated in the facts above.

Inthis interesting an important ruling, the High Court overturned the EAT’s decision. The High Court stressed that time limits exist to prevent tardy employees from taking claims a long time after the event.

the High Court were also somewhat surprised by the EAT’s approach to Mr Brady’s claim as they noted that in a different claim but with a similar scenario the EAT had held that such a claim could proceed.

The Complainant has received her notice on the 9th July 2020 and she was instructed to finish up work and was sent home.

Two weeks notice was paid so it is unreasonable from the Respondent to state that her last day of work was the 31st July 2020.

 Informed of her termination: 9th July 2020

Two weeks notice ends: 23rd July 2020

Date Complaint Lodged: 21st July 2020

On the 17th July, the Complainant herself emailed HR to request some sort of formal confirmation of her dismissal and this is when she received her letter stating her last day of employment was the 31st July 2020.

She should not be punished for such poor and lack of response from the Respondent and her dispute of unfair dismissal and unfair redundancy should be upheld.

It is also argued that the Respondent failed to follow its own procedures in making the Complainant redundant.

Complaint under section 77 of the Employment Equality Act - Penalisation

The Complainant feels that she was victimized and penalized for raising a grievance the 27th of February 2020. Her promotion also felt as a penalty so she can be made redundant.  The contention is that she was victimised for taking action set out in Section 74 of the Employment Equality Acts.

She raised a complaint that she was bullied by one of the Accommodation Supervisors which was never investigated.

She was intimidated and scared by her supervisor while on temporary layoff. The Complainant’s Supervisor messaged her that there will be COVID 19 infected people in the hotel as HSE will take the hotel over as a test centre and she understands if The Complainant does not want to return to work. Accommodation supervisor, Ms K did not send this message to any other colleagues. The Complainant showed this message to HR & General Manager and they both confirmed this is not true and they will speak to the Accommodation Manager about it. This was never followed up with The Complainant.

The Complainant believes that Ms K, Accommodation supervisor bullied her and wanted her to leave.

It is contended that the Complainant was discriminated against on grounds of age, where the supervisor told her to look for a job elsewhere as she was too young and the cleaning job was not for her.

It is contended that the Complainant was discriminated against by her supervisor (Hungarian) on grounds of race (nationality), where she was treated less fairly than other (non-Hungarian) colleagues.

She was responsible for cleaning all the VIP rooms which was checked by the General & Operations Manager and they never complained that her rooms were not up to high standards however as due to the severe stress she was under The Complainant admits she made some mistakes in the last month of her employment as she could not focus.

It is making the Complainant very upset and emotional that her direct manager and supervisor did not want to help her to progress and that she had to depart the hotel in such sad circumstances while every other employee was kept on.

CA-00038834-003 Unfair Dismissal

It is respectfully submitted that the Adjudication Officer does not have jurisdiction to hear the Unfair Dismissal claim brought by the Complainant, as it is not within the period of 6 months beginning on the date of dismissal.

The Complainant submitted the WRC Complaint Form on 21 July 2020, which was before her employment ended on 31 July 2020. Please see below under heading of Unfair Dismissal for full details of the objection.

Section 7 of the Unfair Dismissals (Amendment) Act, 1993 amends Section 8 of the Unfair Dismissal Act 1977 which states as follows in relation to the time period for bringing a claim:

“7. (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under section 17 of this Act made for the purposes of subsection (8) of this section) to a rights commissioner or the Tribunal, as the case may be—

(a) within the period of 6 months beginning on the date of the relevant dismissal, “

The Date of Dismissal is defined by Section 1 of the 1977 Act as:

(a)    where prior notice of the termination of the contract of employment is given and it complies with the provisions of that contract and of the Minimum Notice and Terms of Employment Act, 1973 , the date on which that notice expires.

Key dates:

Date of Notice: 09 July 2020

Date of Dismissal: 31 July 2020

Date Complaint was lodged: 21 July 2020

The EAT discussed the premature filing of complaints of unfair dismissals in detail in the decision of Caragh Neeson v John O’Rourke, UD2049/2011 wherein the Tribunal concluded: “However, the Tribunal, focusing on the insertion of the words “beginning on” and giving these their natural and ordinary meaning, interprets the amendment to mean that a claim must be lodged after the dismissal. Thus, it finds that the claim, having been lodged prior to the dismissal, was not validly before the Tribunal. “

The EAT continues in discussing the 1993 Amendment: - “The Tribunal is of the opinion that this amendment demonstrates a manifest intention by the legislature to preclude claims being lodged before the dismissal date”.

The Tribunal distinguished the case from Brady v Employment Appeals Tribunal [2014] IEHC 302 on the basis of time between the date of filing and the date of dismissal where Brady was clearly told at a meeting that his dismissal was effectively “Now”, this is not the case here where the Complainant was engaged in a fair and transparent consultation process, was clearly advised of her date of notice in writing by the General Manager in his letter of 17 July 2020. 

It should be noted that the Complainant failed to appeal the decision to make her redundant.

The Tribunal concluded on a practical note:-

“Furthermore, were the Tribunal to look with leniency on premature claims the system could well become clogged up with claims based on the expectation that a dismissal might occur sometime in the future which could be later withdrawn. As the claim is not lodged in accordance with section 8 (2) of the Unfair Dismissals Acts, 1977 to 2007 the Tribunal cannot accept jurisdiction to determine the substantive case.”

Judge Barrett in Brady noted that the case was decided on the facts before it and noted: - “Of course there will be some boundary in time and some circumstances in which an ostensibly premature notice will be found in fact to have been premature and thus not duly lodged within the appropriate time period for the purposes of section 8(2). “

It is respectfully submitted jurisdiction cannot be accepted in this claim for Unfair Dismissal.

Redundancy

In the alternative, The Complainant was not unfairly dismissed but dismissed by way of redundancy as a direct result of the hotel’s radical reduction in business due to the global Covid19 pandemic and forced closure of the hotel by the Government in the interest of public health. The Respondent is a corporate hotel with its primary market conferences, large functions, and business meetings both formally in the meeting rooms and casually in the restaurant together with catering for the business traveller. Consequently, unlike other hotels in the country and the Group it did not have the same increase in trade during Summer 2020 and opened on 24 July, a full month after the hospitality opening date of 29 June 2020.  The Complainant was fully consulted in a fair and transparent redundancy process by the Respondent.

The Respondent made 5 employees redundant in the Radisson Blu Hotel and Spa, Limerick, in the period July – September 2020. In 2020, the hotel had 150 people employed in the hotel; over the year where employees left their employment very few have been replaced and our current total number of employees is now at 119.

It is the Respondent’s submission that it at all times engaged and consulted with the Complainant throughout the redundancy process. The timeline of consultation can be summaries as follows:

By email dated 22 June 2020, the Respondent’s HR Manager contacted the Complainant requesting meeting following unsuccessful attempts to call her.

On 23 June 2020, the Complainant was advised that the Respondent was undergoing a review of the Respondent’s structures at a meeting and her position was under review.

On 24 June 2020, the Complainant was sent a follow up letter from the General Manager. The letter also contained an invitation to a meeting on 29 June 2020.

On 29 June 2020, the Complainant attended a meeting with the General Manager to discuss alternative proposals to redundancy. On the same day, the HR Manager emailed the Complainant with a list of current open vacancies within the Group.

By letter dated 6 July 2020, the General Manager wrote to the Complainant again inviting her to an outcome meeting on 9 July 2020.

Notes of the meeting on 9 July 2020 demonstrate the consultation process continued with the Complainant. The Complainant was given her notice of redundancy in that meeting.

By letter dated 17 July 2020, the Complainant received notice of her redundancy, advising of her two-week notice period and end date.

Important to note, despite being formally offered, the Complainant failed to appeal the decision to make her redundant.

The Complainant was offered an alternative role as outlined above on 29 July 2020 but unreasonably refused this opportunity on 30 July 2020.

It was only after the Complainant refused this role was her redundancy processed on 14 August 2020.

The Complainant failed to take up the offer of an appeal to the decision to make her redundant.

The Complainant failed to take up the offer of reasonable alternative employment in the same location when it became available on 29 July 2020. This offer of employment demonstrates that the Respondent did want the Complainant to continue working with it despite her ascertains in her Complaint Form. Similar, the Complainant is being disingenuous by stating in her Complaint From that she “would be happy to continue in that role [Accommodation Assistant] if there is no need for a team leader position.”

In response to the Complainant’s complaint that her Supervisor text her regarding the possibility of the hotel opening to cater for Covid19 patients, the Respondent did at one stage consider such a proposal from the HSE. However, it was decided by Senior Management not to open the hotel for this purpose.

Failure to Accept an Offer of Alternative Employment

Due to the unpredictable nature of the Covid19 pandemic on the hospitality industry, all redundancies were kept under constant review. The Complainant’s case is a perfect example of the approach taken by the Respondent in evaluating all options other than redundancy. On 28 July 2020, the HR Manager received a letter of resignation by email from a colleague (JK) of the Complainant. The HR Manager immediately contacted the Complainant and arranged a meeting with her on 29 July 2020 to offer her the role of Accommodation Assistant that had become vacant. The Complainant attended this meeting and advised that she only wanted to come back as a Team Lead or Supervisor and not an Accommodation Assistant. The HR Manager allowed her time to consider the offer and asked that she revert to her by 8 August 2020 with her decision. Despite the time given to consider the position the Complainant unreasonably refused the offer of alternative employment by email dated 31 July 2020.

Section 15 (2) of the Redundancy Payment Acts 1969 states:-

“(2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ wholly or in part from the corresponding provisions of his contract in force immediately before his dismissal,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of dismissal, and

(e) he has unreasonably refused the offer.”

It is the Respondent’s case that despite the Complainant’s refusal to accept this reasonable offer of alternative employment nor did she accept it on a trial basis, she was still paid her statutory redundancy payment despite s.15 (2) of the Redundancy Payment Acts 1969.

In summary, the Respondent has been extremely generous in its payments to the Complainant and has been paid in excess of what she was statutorily due. It is the Respondent’s submission and based on the evidence presented that her claim is entirely disingenuous and must fail.

Financial Loss

The first time the Respondent was on notice of the illness suffered by the Complainant was upon reading her Complaint Form.

It is unclear what efforts, if any, the Complainant made to seek new employment after her redundancy from the hotel, what her financial loss is, if any, or for how long she was sick leave. The Respondent wrote to the Complainant to seek details of her financial loss and efforts to seek new employment by letter dated, 16 February 2021. To date, no response was received directly to the Respondent. However, it is noted a response was provided to the WRC directly stating that the Complainant did not see how this query was relevant and if requested, would be provided at the hearing. It is respectfully submitted that this is not only against the WRC procedure around remote hearings but leaves the Respondent at a significant loss as to the case it is faced with defending. The second point to note is that the Complainant notes in her submission received from the WRC dated 11 February 2021 that she has secured employment with the Kilmurry Lodge Hotel as an Assistant Accommodation Manager in January 2021. Therefore, the time period in question is from July 2020 – January 2021. If it is the Complainant’s case that she was unable to work due to illness as set out in her Complainant Form, the Respondent seeks to rely on Section 7(1)(c)(ii) of the Unfair Dismissal Acts 1977 – 2015, if successful, which the Respondent denies: -

“(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”.

CA-00038834-006 – Penalisation- Employment Equality Act 1998 –

The Respondent categorically denies that the Complainant was penalised as a result of raising a grievance in the workplace.

It is respectfully submitted that the Complainant cannot succeed under this claim as no protected act took place, which gave rise to the alleged penalisation/victimisation in accordance with the Employment Equality Acts 1998-2016.

In order to succeed in a claim of penalisation or victimisation, a Complainant must establish that she committed a “protected” act, which gave rise to the victimisation. That protected act must in relation to one of the specific lists of acts set out in Section 74 (2) of the Employment Equality Act: - “(2) For the purposes of this Part victimisation occurs where dismissal or other adverse treatment of an employee by his or her employer occurs as a reaction to—

(a) a complaint of discrimination made by the employee to the employer,

(b) any proceedings by a complainant,

(c) an employee having represented or otherwise supported a complainant,

(d) the work of an employee having been compared with that of another employee for any of the purposes of this Act or any enactment repealed by this Act,

(e) an employee having been a witness in any proceedings under this Act or the Equal Status Act 2000 or any such repealed enactment,

(f) an employee having opposed by lawful means an act which is unlawful under this Act or the said Act of 2000 or which was unlawful under any such repealed enactment, or

(g) an employee having given notice of an intention to take any of the actions mentioned in the preceding paragraphs.”

For the avoidance of doubt, the Respondent acting in accordance with its grievance process at all times in response to the Complainant’s issues.

The Complainant raised a grievance against a colleague (K). The background to this grievance was following a grievance raised by the same K against the Complainant in January 2020. The Respondent immediately invoked a professional Mediator. The Mediator came at considerable expense in the amount of €1,590.00 to the Respondent, in an effort to resolve the parties grievances. Both parties voluntarily engaged in the mediation process which concluded successfully.

However, on 27 February 2020 the Complainant raised a grievance against K to the HR Manager. Again this was acted on without haste and every effort was made to bring the two employees together to resolve their issues on 13 March 2020. However, K refused, which was her right as per her letter of 10 March 2020. The HR Manager responded by offering to organise separate meetings with each of the individuals. These meeting were arranged for 19 March 2020 and working arrangements put in place to ensure both parties could continue working but not together. It should be noted that during this period both K and the HR Manager were on annual leave.

Unfortunately, due to the Government imposed hotel closure due to the Covid19 Pandemic on 15 March 2020 the HR Manager had to postpone the meetings until the hotel reopened. Due to the Government imposed closure the hotel did not reopen until 24 July 2020 at which point K voluntarily relocated to a sister hotel in Co Kerry which of itself resolved the Complainant’s issue.

The Complainant’s grievance and that of her colleague’s, K, did not relate to any of the nine grounds of discrimination. The issues raised in the Complainant’s grievance of 27 February 2020 can be summarised as purely work-related issues and her own position and not discriminatory issues: -

· An issue with damaged furniture

· A torn magazine being left in the bedroom

· K referred to as “bossy” in her approach to the Complainant

· Complainant feels she could not do her work due to K’s demands

· Feels K wants her to leave the hotel

· Complainant states she is a Team Leader for 3 months but is doing the same job.

· Discusses how she would like to motivate the other girls their work.                                  

Consequently, it is respectfully submitted that the Complainant’s claim does not fall within the jurisdiction of the Employment Equality Act.

 CA-00038834-003 Unfair Dismissal

The first issue to be decided is whether there is jurisdiction to adjudicate this claim.  The Respondent submits that the complaint was submitted before the effective date of dismissal, being the date when the notice period expired and therefore has been submitted before the dismissal of the Complainant.   In response to the Respondent’s contention that the complaint was referred prematurely, the Complainant’s representative relied upon the High Court Judgement in Brady -v- Employment Appeals Tribunal (2015) ELR 1 as guidance in relation to interpreting the time limits.

Section 8(2) of the Unfair Dismissals Acts provides as follows:

“A claim for redress under this Act shall be initiated by giving a notice in writing …to the Director General- (a) within the period of 6 months beginning on the date of the relevant dismissal….” 

I note that in Brady, Mr Justice Barrett held that a claim to the Employment Appeals Tribunal (EAT) was not premature where it was lodged during the notice period where termination was imminent.  In his Judgment, he made the following three important observations: (1) prescribed time limits are normally intended to “thwart the tardy, not punish the prompt”, (2) there is a longstanding equitable principle that “Equity aids the vigilant, not the indolent” and (3) just because a person (EAT) was first given notice before the commencement of the statutory period, it does not mean that it did not have notice during the period and “Moreover, the court considers that in reaching this conclusion no violence is done to the language of the Act.  Section 8(2) requires that notice be given within the period of six months from the date of dismissal.  It appears that in the circumstances of this case, giving notice to the Tribunal on one date such that it has notice on another date, is within the scope of the legislation.” 

In this instant case, I note that the Complainant was told of her redundancy on 9th July 2020, was formally advised by letter of 17th July 2020 and the complaint was received on 21st July 2020. 

I note that both sides rely on Brady -v- Employment Appeals Tribunal (2015) ELR 1.  The Respondent argues that this instant case is not on all fours as the Complainant in Brady was told the effective date of termination of his employment was “Now”. 

I am cognisant of the finding and judgement of a higher court and note that in Brady, the learned judge effectively found that notice of claim for redress under the Act while given before the commencement of the statutory was extant during the period.  For these reasons, I find that I have jurisdiction in the matter and the complaint is validly before me.

In relation to the substantive issue, I find as follows:

There was a history of disputes between the Complainant and her supervisor, both Hungarians.    The complaint made by the supervisor against the Complainant resulted in a mediation process which apparently ended successfully.  Then the Complainant lodged a complaint against the supervisor.  The hotel closed due to Covid and when it was about to re-open, the Complainant was called in and made redundant.  I note the conflict of evidence about whether the Complainant herself offered to revert to accommodation assistant role.  When the Respondent offered her an accommodation assistant role in preference to being made redundant, she turned down that role.

The issue for decision in the present case is whether or not the Complainant was unfairly dismissed contrary to Section 6 of the Unfair Dismissals Acts. The fact of dismissal is not in dispute between the parties, and therefore, the burden of proof rests with the Respondent to demonstrate that the termination of employment came within a lawful reason.

In the circumstances, in order to satisfy the burden of proof, it is therefore, a matter for the Respondent to establish (1) that a redundancy situation arose and (2) that it acted reasonably and fairly towards the Complainant in addressing that situation in terms of the selection process for the redundancy.

The Respondent contends that due to the difficult financial circumstances, in the main due to the Covid Pandemic, it was necessary to make the Complainant’s position redundant.

Section 7(2) of the Redundancy Payments Acts provides:

“(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..

In considering whether or not a redundancy situation arose in the context of the present case, I am satisfied that, and it was common knowledge there were losses incurred in the hospitality industry during the period in question.

In terms of deciding whether or not the Complainant was unfairly selected for redundancy, I am obliged to take cognisance of the following provisions of the legislation. The contractual entitlement to a defined procedure in terms of the selection of candidates for redundancy is provided for in Section 6(3) of the Unfair Dismissals Act 1977 which states that:

“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, 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.”

I have not been presented with any evidence to suggest that there was either any trade union agreement or any custom or practice in operation within the company in relation to the manner in which candidates should be selected for redundancy. I also find that the selection of the Complainant for redundancy did not result wholly or mainly from any of the matters specified in subsection (2) of Section 6 of the Act. In the circumstances, I find that the Respondent did not act contrary to the provisions of Section 6(3) in terms of the manner in which the Complainant’s redundancy was effected.

However, notwithstanding the foregoing, in considering the fairness or otherwise of the Complainant’s selection for redundancy, I am also obliged to take cognisance of the provisions of Section 6(7) of the Unfair Dismissals Act 1977 (as substituted by s.5(b)(a) and (b) of the Unfair Dismissals (Amendment) Act 1993), which provides that:

“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 mission) of the employer in relation to the dismissal”.

This provision provides that the reasonableness of the employer’s conduct is an essential factor to be considered in the context of deciding on the fairness or otherwise of a dismissal and it places an obligation on an employer to act reasonably in taking a decision to dismiss an employee on the grounds of redundancy.  In this regard, I note that the Employment Appeals Tribunal held in the case of Gillian Free v Oxigen Environmental UD 206/2011, the Employment Appeals Tribunal held that:

“When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy. The employer must follow the agreed procedure when making the selection. Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.”

In this instant case, having regard to the totality of the evidence adduced, I find that the Respondent did not act fairly or reasonably and did not apply fair procedures in terms of the manner in which the Complainant was selected for redundancy. In coming to this conclusion, I have taken into consideration the fact that a matrix of selection for redundancies was not drawn up by the Respondent, and it appears the Complainant’s position was singled out for redundancy.  The Matrix, in particular has long been recognised as constituting best practice when effecting redundancies.  Typically this would take into account length of service, skillsets, employment record and suitability for all or many of the employees in an employment. 

In relation to the matter of an offer of a suitable alternative role, I note that when a staff member resigned, the offer of an accommodation role was made to the Complainant at the last hour.     That offer would have reverted her to a lower role than she held in the immediate period before her redundancy. 

Section 15 (2) of the Redundancy Payment Acts 1969 states:-

“(2) An employee who has received the notice required by section 17 shall not be entitled to a redundancy payment if in the period of two weeks ending on the date of dismissal—

(a) his employer has made to him in writing an offer to renew the employee's contract of employment or to re-engage him under a new contract of employment,

(b) the provisions of the contract as renewed, or of the new contract, as to the capacity and place in which he would be employed and as to the other terms and conditions of his employment would not differ wholly or in part from the corresponding provisions of his contract in force immediately before his dismissal,

(c) the offer constitutes an offer of suitable employment in relation to the employee,

(d) the renewal or re-engagement would take effect not later than four weeks after the date of dismissal, and

(e) he has unreasonably refused the offer.”

I find that the offer did not constitute a new contract which would not differ wholly or in part from the corresponding provisions of the Complainant’s contract in force immediately before her dismissal and therefore did not comply with the provisions of Section 15 (2) (b) of the Act.

Taking the totality of evidence and based on the findings above, I conclude that the Complainant was unfairly dismissed.

I find that taking into consideration the fact that the employment relationship has clearly broken down, and the Complainant found new employment some five months later, compensation is the appropriate remedy.  I award the Complainant the sum of €8,221 being equivalent to 20 weeks and not including the redundancy sum already paid. 

Unfair dismissal, unfair selection for redundancy.