UDD2316

1.Appeal of Adjudication Officer Decision No(S) ADJ-OOO30821 CA-00041164-001

BACKGROUND:

2.This matter comes before the Court as an appeal by Rachel Ahearne (the Appellant) of a decision of an Adjudication Officer in a complaint made by her against her former employer Acorn Brokerage Ltd T/A Acorn Insurance Brokers (the Respondent) under the Unfair Dismissals Acts 1977 to 2015. The Adjudication Officer held that the complaint was not well founded. A Labour Court hearing was held in Galway on 15 March 2023.

DETERMINATION:

Preliminary Issue

A preliminary matter was raised with the Court addressing its jurisdiction to hear the appeal. Ms Caoimhe Ruigrock BL, on behalf of the Respondent, submitted that a valid Appeal Form was not lodged by the Appellant within the 42-day time limit specified in theWorkplace Relations Act 2015and, therefore, the Court has no jurisdiction to hear the appeal.

Rule 52 of the Labour Court Rules 2022 provides as follows:The Court may, in its discretion, give a preliminary ruling on any aspect of the case where it is satisfied that time and expense may be saved by the giving of such a ruling and/or where it has the potential to be determinative of the case. The Court decided to address this issue as a preliminary matter and to make a decision in relation to the matter on the basis that the issue has the potential to dispose of the entire matter.

Preliminary Issue - Position of the Respondent

The Adjudication Officer issued his decision 20 April 2022. The last date for the Appellant to lodge an appeal to the Court was 31 May 2022. The Respondent submits that based on email correspondence from the Labour Court dated 21 July 2022, it appears that the Labour Court advised the Appellant’s representative on 31 May 2022 that an invalid appeal was lodged to it. The Appellant had up until midnight on 31 May 2022 but, notwithstanding the notification from the Court, did not do so.

The Respondent received a signed appeal form by email dated 21 July 2022, however that appeal form was undated. No application was made to extend the time for bringing an appeal, as provided for under Section 44(4) of the Workplace Relations Act, 2015.

Preliminary Issue - Position of the Appellant

Mr Barry Clifford, on behalf of the Appellant, did not address the preliminary matter in his written submission to the Court. He submitted that he did everything correctly. In his view the Respondent was engaged in semantics, and that he would be guided by the Court on the matter.

Relevant Law

Sections 44(2) (3) and (4) of the Workplace Relations Act 2015 provide as follows:

• (2) An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing suchparticulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946and stating that the party concerned is appealing the decision to which it relates (emphasis added)
  
  (3) Subject to subsection (4), a notice under subsection (2) shall be given to the Labour Court not later than 42 days from the date of the decision concerned.
  
  (4) The Labour Court may direct that a notice under subsection (2) may be given to it after the expiration of the period specified in subsection (3) if it is satisfied that the notice was not so given before such expiration due to the existence of exceptional circumstances.

• 1.The appeal shall be initiated by notice in writing, including by email, delivered to the Court within 42 days from the date of the decision being appealed. In accordance with the provisions of the Interpretation Act 2005 the date of the decision is day 1 of the 42-day period. Appeals sent by post can be given to the Court in the ordinary course of the Court’s business and the date of receipt will be recorded using a date stamp manually applied on the day the appeal is received. Appeals submitted by email can be made up to 12 midnight on the 42^ndday and the date of receipt will be the date and time automatically recorded on the email system.
  2.If the appeal is not made within the requisite 42 days, then application should be made to the Court, to extend time for bringing an appeal in accordance with Section 44(4) of the 2015 Act. The grounds for any such application for extension of time should form part of the Appellant’s written submission. Such an extension of time will only be granted in exceptional circumstances.
  3.The notice of appeal shall be completed in full and accompanied by a copy of the decision of the Adjudication Officer to which the appeal relates.
  4.The notice referred to at 1, & 3 above shall be given on a form provided by the Court for that purpose.
  5.The Court shall send a copy of the notice of appeal by registered post to the Respondent including any correspondence relating to the notice of appeal between the Appellant and the Court.

Preliminary Issue -Deliberations of the Court

A failure on the part of an Appellant to present an appeal in time deprives the Labour Court of jurisdiction to hear the claim. In this case the Adjudication Officer issued a decision on 20 April 2022. For the within appeal to be made in time, it must be given to the Court no later than 31 May 2022.

Sequence of events

The Court received a purported notice appeal from the Appellant on 27 May 2022, within the 42-day limit specified at Section 44(3) of the Act. The appeal form used was not the form provided by the Court for that purpose and as such not in compliance with Rule 4 of the Labour Court Rules 2022.

The Court wrote to both parties on 27 May 2022 confirming receipt of the purported appeal, citing a case reference number CD/22/100. The subject line of both letters stated:- “RE: Appeal of Adjudication Officer Decision No(s) ADJ-00030821 CA-00041164-001 Acorn Brokerage Ltd T/A Acorn Insurance Brokers (Represented by Kilfeather & Company Solicitors) - and - Rachel Ahearne (Represented by Barry Clifford)”. The letter to the Respondent advised that this decision had been appealed to the Labour Court by Rachel Ahearne. A copy of the appeal form was attached.

On 31 May 2022, the Court wrote to both parties citing a new reference number UD/22/81.

The letter to the Appellant’s representative acknowledged receipt of an appeal and stated that an incorrect appeal form was used which resulted in it being processed as an industrial relations issue.The letter advised that previous correspondence issuedon 27 May 2022 should be disregarded and the correct appeals form provided as soon as possible. The letter also advised that written submissions were required by 21 June 2022 and that any application for an extension of time should be made before that date. No application to extend time was made to the Court.

The letter sent to the Respondent’s representative on 31 May 2022 cited the relevant Adjudication Officer’s decision and the parties’ names. It advised that the appeal was submitted using an incorrect appeals form which resulted in it being processed as an industrial relations issue and that the Court awaited the correct appeals form from the Appellant which it would forward to the Respondent when received.

Further documentation was furnished to the Court by the Appellant after the expiry of the 42-day limit. It is accepted that no application was made to extend the time for bringing an appeal beyond that 42-day time limit, as provided for under Section 44(4) of the Workplace Relations Act, 2015.

The issue for determination is whether the appeal form given to the Court on the 27 May 2023 constitutes a valid appeal under section 44(2) and (3) of the Workplace Relations Act 2015 in circumstances where the correct form was not used.

The Respondent asserts that the appeal submitted on that date was not lodged using a valid Appeal Form and, therefore, the Court has no jurisdiction to hear the purported appeal.

In response to question from the Court, Ms Ruigrock acknowledged that the form given to the Court on 27 May 2022 contained certain relevant information about the decision under appeal but asserts that the form was deficient insofar as it makes no reference to the relevant employment statute under appeal. She submits that if a representative was not involved at first instance, they would have no idea what the appeal was about and would presume that it was an industrial relations matter. Ms Ruigrock accepts that her client may not be prejudiced by the lodging of an appeal using the incorrect form, however, she submitsthat the Labour Court Rules 2022 are statutory rules, and both the Rules and the Labour Court website give very clear instructions that an appeal shall be given to the Court on a form provided by the Court for that purpose.Ms Ruigrock’s position is that the form used by the Appellant is only relevant for section 13(9) appeals under the Industrial Relations Act and cannot constitute a valid appeal of a decision made under employment rights enactments. Ms Ruigrock relies onMcLoughlin v Murray {2022] IEHC 537in support of her position.

The Appellant’s representative when invited had no comments to make in relation to this matter.

Section 44(2) of the Workplace Relations Act 2015 Act sets out the mechanism for appealing an Adjudication Officer’s decision to the Labour Court and provides that:-

• “An appeal under this section shall be initiated by the party concerned giving a notice in writing to the Labour Court containing such particulars as are determined by the Labour Court in accordance with rules under subsection (5) of section 20 of the Act of 1946 and stating that the party concerned is appealing the decision to which itrelates”.

• “The jurisprudence of this Court and higher Courts makes clear that an insistence on absolute compliance with the requirement to complete every element and detail sought on a notice of appeal is not appropriate. Nevertheless, the Court considers that an appellant is under an obligation, at a minimum, to provide the Court with the information which is essential to ensure fair procedure in considering the appeal. A fundamental requirement of fair procedure is that both parties to an appeal before the Court are afforded full and adequate opportunity to state their case and to know the case made in opposition to them. Where the details provided to the Court on the written notice of appeal are so deficient in detail and accuracy as to result, unbeknownst to the Court, in an incapacity to make a party aware of the existence of the appeal and subsequently of the date and time of a hearing of that appeal; a significant issue of fairness in procedure arises. Where a failure to comply with the Rules of the Court is of such a magnitude as to imperil the fair conduct of the appeal by the Court, a significant issue arises as regards the validity of the purported appeal at all”.

• “This case arises from a matter which came before the Employment Tribunal, which is one of a number of tribunals set up to relieve people of what is regarded as the undue technicalities of courts and the expense and the delay. It has a fairly rapid procedure and it sits locally, and is, in many ways, intended to be somewhat informal.
  
  This present case indicates a degree of formality, and even rigidity, which is somewhat surprising. It is a rather ironic turn in history that this Tribunal which was intended to save people from the ordinary courts would themselves fall into a rigidity comparable to that of the common law before it was modified by equity. When we come to deal with what is the main point in the case, so far as the High Court decision is concerned, it is the question of erring within jurisdiction’. I must confess that I am not very impressed by that because everything depends on what the error is. However there is not any jurisdiction in any court or tribunal to be unfair. The question here is whether what happened was so unfair as to be a fundamental issue in the case.”

Findings of the Court on the preliminary matter of jurisdiction.

The Court finds that the within appeal was made within the time limit set out in the Act at
Section 44(3) and the Court has jurisdiction to hear the substantive appeal.

Having established that the appeal was within the 42-day time limit the Court proceeded to consider the substantive issue under appeal.

Substantive Appeal -Background

The Appellant worked as a “data enterer” with the Respondent company. The Respondent operated Trade Stands at public events and meeting places where it advertised its insurance and other services. The Appellant’s role involved inputting data collected at Trade Stands into the Respondent’s systems.

With the onset of the Covid-19 pandemic in March 2020, the operation of Trade Stands was discontinued. The Appellant was asked not to attend work as a safety precaution. On 8 April 2020, the Appellant was notified of a decision by the Respondent to place employees on a period of short-term layoff. On 9 July 2020 the Appellant was invited to a meeting and notified that a decision had been made to discontinue the Trade Stands operation and that her role and that of the Trade Stands team leader were redundant.

Substantive Appeal -Position of the Respondent

Ms Caoimhe Ruigrock BL, on behalf of the Respondent, submits that a genuine redundancy situation arose, as defined in section 7(2) of the Redundancy Payments Act 1967, and the Appellant’s dismissal was wholly connected to redundancy.

With the onset of the Covid-19 pandemic the operation of Trade Stands was discontinued. No data was generated for inputting on the Respondent’s system by the Appellant. The Appellant was the only Data Enterer employed at that time. A decision was made to discontinue the Trade Stands operation and to make the positions of Data Enterer and Trade Stand Team Leader redundant.

When the Appellant was notified of the redundancy she asked why temporary staff in other areas were being kept on when she was a permanent member of staff. The Appellant was advised that other areas of the business were not impacted in the same way by the Covid-19 pandemic and that redeployment of the Appellant to other areas was not possible.

The Respondent refutes the Appellant’s assertion that she was unfairly selected for redundancy, or that other employees employed on temporary contracts should have been selected for redundancy in her place. It submits that the correct legal test for consideration by the Court is whether there were other employees doing similar work, not whether there were other employees who were on temporary contracts and not permanent contracts.

There were no other employees employed in a similar role to the Appellant. The Appellant did not make calls to customers and had no dealings with customers. It was not plausible to make another employee redundant and redeploy or retrain the Appellant to another role. The Appellant was not qualified for roles subsequently advertised by the Respondent, which required previous experience in insurance sales and providing commercial line insurance.

There was no custom and practice with regard to redundancy in the Respondent company. As the Appellant had less than 2 years' service, she was not entitled to a statutory redundancy payment, but the Respondent was willing to pay her an ex-gratia payment. The Respondent disputes that she was put under “severe pressure” to sign a Termination Agreement.

The Respondent referred the Courtto Compensation on Dismissal: Employment Law and Practice, where Ercus Stewart SC outlined at paragraph 9.3.2.1, page 148:

• “The employee may allege unfair selection and in defending a claim under the Unfair Dismissals Acts, the employer must be able to show that the employee was redundant. It is up to the employee to show that he was unfairly selected for redundancy”.

The Respondent relies onEmployee v Employer UD1451/20710,Kavanagh v Compass Catering Services lreland Limited ADJ 0030520, Cruise v Nugent Manufacturing UD 2099/0, A Boat Builder v A Boat Building Company ADJ 0004098, Curtin v O’Keeffe and Redmond UD 964/2014, Torley v Omni Park Shopping Consortium UD/1745/2010, White v Yenon Limited UD993/2009andNigrell v Sondra Graham UD690/2013in support of its position.

Substantive Appeal -Position of the Appellant

Mr Barry Clifford, on behalf of the Appellant, submits thatthe Appellant wasunlawfully terminated from her position at the Respondent company. The Respondent company is part of an umbrella company, and he disputes that the company was in financial troubles.

The Appellant accepts thatthe Trade Stand sector ceased to operate. However, herwork was not restricted to that area. TheAppellant could have been retained in another role. Instead, procedures were bypassed, and the Appellant was simply put out the door.

Witness Evidence

The Court heard sworn evidence from the Appellant and three witnesses on behalf of the Respondent,Ms C R - Head of Operations,Ms M – Acting Head of OperationsandMr S- CEO.

Testimony of Ms C R - Head of Operations

Ms R told the Court that the Appellant reported directly to her up until March 2020, when she went on maternity leave. The Trade Stand Manager, Mr D, was not involved in the day-to-day management of the Appellant ashe wasalways on the road. His role was to organise trade stands.

The Appellant worked solely as a DataEnterer, keying in informationfrom trade stands into a lead management system. Leads are entered into the management system and customers contacted in advance of their renewal date to query if they are open to taking a quote. If so, they are transferred to a Dialler. Diallers require three to five days of training before they can undertake the role. A Dialler hasa call target of 120calls a day. The Appellant was not trained to work as a Dialler and was never signed off or approved as a Dialler. At peaktimes, if therewas a spike inleads, they would bring in students to work on a temporary basis. The Appellant did not have other roles or responsibilitiesShe answered phone calls in the context of data generated from the trade stands. Over the 19-month period of heremployment she made a total of 150inbound/outbound calls. The Appellant was capable in her role and was a satisfactory worker.

Ms R refuted that the Appellant ever took on additional duties in other areas. Her role was confined to the trade sector and did not have a customer focus. Training was required to undertake Dialler or other administrative roles. Qualifications are required for insurance roles. Ms R said that the Appellant could have been retrained in other roles, but no additional resources were required in other areas, and the Appellant had told her in her regular one-to-one meetings that her priority was to work 20 hours per week until her daughter went to national school.

Testimony of Ms M – Acting Head of Operations

Ms M was acting Head of Operations when Ms R was on maternity leave. She contacted the Appellant on 9 April to let her know that a letter was on the way informing her that she was to be laid off due to the Covid-19 pandemic.

On 18 June 2020 the Appellant attended the office as she needed some forms signed. It was not an official meeting. They discussed the possibility of the trade stands operation finishing. The Appellant said she was disappointed as she enjoyed her work.

On 9 July 2020 Ms M asked the Appellant to come to the office as a decision had been made about her role. At the meeting, Ms M explained that the data entry role was being made redundant. The Appellant was upset and asked why others such as the temporary employees were not laid off. Ms M explained that those employees were not impacted. As the Appellant had less than two years' service she was not entitled to statutory redundancy,but therespondent was willing to make an ex-gratia payment to her. Ms M gave her a termination agreement to review. On 10 July 2020 the Appellant attended the office to get a copy of her contract of employment. On 15 July 2020 Ms M texted her about the termination agreement but denied she pressurised her to sign the document.

The Appellant did not carry out any duties when she was laid off. Before then it was normal procedure for employees to listen to call-backs on occasion. She had no recollection of the Appellant doing calls.

Under cross-examination, Miss M said she did not train the Appellant to undertake Dialler duties and that training for such a role takes between three and five days. She accepted that the Appellant may have sat alongside another person to listen in to calls and get more exposure when less busy.

Replying to questions from the Court, Ms M said the Appellant was never told that her role was at risk of redundancy. The Appellant was issued with a layoff letter and termination document. No other correspondence was issued to her. There was no appeal mechanism. She was offered ex-gratia payment, but it was not paid toher as the Appellant did not sign the termination agreement. MsM did not consider if it was possible for the Appellant to undertake other roles. The priority was getting people to work from home. It was not feasible to train someone to work from home at that time. The two temporary employees engaged in the Dialler role had been trained up before the pandemic and so were capable of working from home. There were no other roles available.

Testimony of Mr S - CEO

Mr S told the Court that he made the decision to discontinue the Trade Sector operation in conjunction with the Board. The Trade Stand operation was not viable, as it had taken 7 years to make profit, while other areas took two years. Trade stands are conducted in shopping centres and at exhibitions. These events were no longer taking place. As they were not allowed into shopping centres the sources for leads stopped and there was no need for data entry.

There were no questions in cross examination.

Replying to questions from the Court, Mr S said that he did not speak directly with the Appellant as he was not her line manager. He informed Mr D, the trade stand manager, that the business was under review in April. The two redundancies were implemented on a compulsory basis. No correspondence issued to the employees as there were no processes in place at that time. He considered if it was possible to retrain the employees, but there were no vacancies. People who were trained up were operating well in a remote work environment and he felt it was the right decision to leave them in their roles. No other business areas were discontinued.

Testimony of the Appellant

The Appellant told the Court that she carried out other roles and duties when things were not busy, albeit very rarely. She did post in another office, listened to call-backs, and made outgoing calls. Ms M trained her to make calls. It was not busy. There were not a lot of calls. She was confident she could do more but was never given an opportunity to do so.

Under cross examination the Appellant said she did not receive training from Ms M but sat beside her. When she had spare time she would listen to customer calls. She rang customers with upcoming renewals to see if they were happy to talk to a Dialler. She may have carried out 20 calls over the 18-month period but she wasn’t trained up in the role. She fully accepts that training was required for the role.

The relevant Law

Section 6 of the Unfair Dismissals Act sets out the following:

6.—(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, 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.

• (a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
  (b) the conduct of the employee,
  (c) the redundancy of the employee, and
  (d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

• (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 insection 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) ofsection 7(2) of this Act.

• (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) …

Deliberations and Findings

Section 6(1) of the Act provides that the dismissal of an employee shall be deemed to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.Without prejudice to section 6(1), section 6(4) of the Act provides that a dismissal resulting from a redundancy carries the statutory presumption of fairness.

Also, without prejudice to section 6(1), section 6(3) provides that where a redundancy applies equally to other employees (in similar employment with the employer) who have not been dismissed then, in circumstances where the person dismissed was selected for a section 6(2) matter, or another matter that would not be a ground justifying dismissal, or was selected for dismissal in contravention of a redundancy procedure agreed with the employer and employees’ representatives, or a procedure that has been established by the custom and practice, and there were no special reasons justifying a departure from that procedure, then the dismissal will be deemed to be unfair.

The onus is on the employer to establish as a fact that one or more of the situations described in the definition existed at the time of the dismissal. Moreover, section 6(4) of the Act provides that the dismissal must be attributable ‘wholly or mainly’ to a situation of redundancy.

Did a genuine redundancy situation exist?

There is no dispute that the Trade Stands operation of the business ceased in March 2020 by virtue of the Covid pandemic. There is no dispute that by letter dated the 8th of April 2020 the Appellant was put on lay-off. There is also no dispute that following this the business made the decision to permanently dissolve the Trade Stands part of the business and make the two employees attached to that part of the business, the Appellant and the Trade Stand Manager redundant.

The Court accepts the Respondent’s evidence that the trade sector operation was no longer viable in circumstances where it had taken 7 years to make a profit, and therequirement for employees to carry out data entry work ceased when thesource of leads stopped during the Covid-19 pandemic. In such circumstances the Court is satisfied that a redundancy situation arose, as provided for under section 7(2)(a) and (b) of the Redundancy Payments Act.

Was the Appellant fairly selected for redundancy?

Mr Clifford, on behalf of the Appellant, asserts that the selection of the Appellant for redundancy was unfair in circumstances where her role was not solely limited to data entry work and other employees with less service were retained in employment. The Appellant’s own evidence does not support the assertion that her role extended beyond data entry duties. She told the Court that she carried out other duties “very rarely” when things were not busy. She listened to customer call-backs and sometimes rang customers with upcoming renewals to see if they were happy to talk to a Dialler. Her evidence was that she made around 20 calls over the 18-month period of her employment. She accepted that she was not trained to carry out the role of a Dialler.

The Court finds on the evidence that the Appellant was the only data enterer in employment at the time and that no other employees in the company undertook the same or similar type work in March 2020 or subsequently. For the purposes of the redundancy pool, the Court finds that it was properly confined to the Appellant.

Was the conduct of the employer reasonable?

Section 6(7) of the Act (as amended) provides in relevant part as follows:-

• (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 rights commissioner, the Tribunal or the Circuit 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

• This provision confers a broad discretion on the Tribunal. Having regard to the facts: that a genuine redundancy situation existed in the employment, that the claimant’s position was unique and that the respondent had already implemented several cuts over the previous five years, the Tribunal, in exercising its statutory discretion, finds that the respondents had not acted unreasonably.

• “It is the decision of the Tribunal that there was a genuine and honest redundancy due to the changing nature of the business and the consequent change in the required skill sets and qualifications. The respondent’s representative accepted that there was a valid redundancy situation and that the respondent’s complaints related to a failing on the employer’s part in affording fair procedures.
  
  The Tribunal was not persuaded by the respondent’s arguments that in all instances an employer must
  
  (a) afford the affected employee an opportunity to respond to the proposed redundancy or
  
  (b) facilitate the employee by having a representative present or to have the employee’s views on the redundancy fairly and impartially considered or
  
  (c) have a right to appeal the decision to make the employee redundant.
  
  
  Such may be good and prudent practice and is probably found in larger enterprises. However, the Tribunal is not persuaded that such prudent practices are mandatory with automatic consequences for employers who do not follow them. Such practices may be negotiated or contractually provided for but in the instant case they are not legally required to be recognised such that a failure to do so recognise would result in a genuine redundancy being considered as an unfair dismissal”.

Ms M’s evidence was that she did not consider if it was possible for the Appellant to undertake any other roles, as no roles were available. She said that it was not feasible to train someone remotely to work from home at that time and the two temporary workers employed as Diallers were trained and capable of working from home.

Mr S’s evidence was that he considered if it was possible to retrain the Appellant. He considered displacing other roles but people who were trained were operating well in a different remote work environment. He felt was the right decision was to leave them in their roles. The Court accepts the Respondent’s evidence that it was not feasible to make another employee redundant in order to redeploy the Appellant.

On the facts of this case, the Court is satisfied that a genuine redundancy situation arose and that no other employees in the company undertook the same or similar type work as the Appellant. However, in the Court’s view the within appeal differs from the caselaw cited, and the Court finds that the conduct of the Respondent in relation to the implementation of the redundancy, when viewed in totality, was unreasonable for the following reasons:

In determining if a dismissal is unfair the Court may have regard, where it considers it appropriate to do so, to the reasonableness of the employer, which means balancing an employer’s interests with those of the employee.

The Court heard evidence that the Appellant’s line manager was informed in April 2020 that the business was under review, however, no such engagement took place with the Appellant. The Appellant only became aware informally of the possibility that the trade stand business may cease operation on 18 June, when she was on lay-off and attended the workplace to have some forms signed. She was never formally advised that her role was at risk of redundancy.

The Appellant was subsequently notified of the decision that the trade section would cease operation and that her role was redundant at a meeting on 9 July 2020.The decision at that point was a fait accompli.The Appellant was not afforded representation at that meeting, nor was she invited to make suggestions as to why she should be retained or what alternatives might be considered.

The Court is not satisfied that the Respondent gave due consideration to the questions the Appellant posed or the suggestions she made regarding the possibility of alternative employment options that may be available. Had such an exercise being carried out it is possible that no alternative roles suitable to the Appellant may have identified, however, it seems clear that no such exercise was conducted. Furthermore, no avenue of appeal was made available to the Appellant.

The Court finds that thecumulative effectof these shortcomingsresulted in a failure to balance the interests of the employee with the interests of the employer and,as such amounted to unreasonable behaviour on the part of the Respondent.

Having considered all of the circumstances of this case the Court findsthat the approach adopted by the Respondent was unreasonable in circumstances whereon the facts presented there was no pressing need on the part of the employer to accelerate the implementation of the redundancy during a period of lay-off without any process or consultation and therefore, by reference to Section 6(7)(a) of the Act, the dismissal of the Appellant was unfair.

Redress

Having regard to the particular circumstances of this case,the Court does not consider reinstatement or reengagement to be appropriate forms of redress. The Court is of the view that compensation is the most appropriate remedy.

An award of compensation for unfair dismissal is to make reparation for loss actually incurred in consequence of the dismissal. There is no provision for including an amount intended as punitive or exemplary compensation. Nevertheless, the compensation must be in an amount that is ‘just and equitable in all the circumstances” These words provide the Court with some latitude in considering both mitigating and aggravating factors in the circumstances surrounding the dismissal.

Section 7(1)(c) of the 1977 Act as amended provides in relevant part:

• (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,

• (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
  (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
  (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
  (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,
  (d) 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 subsection (1) of section 14 of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister,
  (e) the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the said section 14, and
  (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.
  (2A) In calculating financial loss for the purposes of subsection (1), payments to the employee—
  (a) under the [Social Welfare (Consolidation) Act 2005] in respect of any period following the dismissal concerned, or
  (b) under the Income Tax Acts arising by reason of the dismissal, shall be disregarded.
  Section 7(3) of the 1977 Act as amended provides in relevant part:
  (3) In this section—
  “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts 1967 to [2014], or in relation to superannuation;
  “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.”

The Appellant’s salary at the time of her dismissal

It is not disputed that at the time of her dismissal the Appellant’s worked 20 hours per week and her salary was €991.47 net per month.

The Appellant’s own evidence was that she found it hard to get a job, as she was stressed and did not submit a lot of applications. For most of that time she was in receipt of the pandemic benefit payment. A year after her dismissal she secured a job in a sports retail outlet, working similar weekly hours to her former role and earned between €260 and €270 net per week. She voluntarilyleft this employment around Christmas 2022 for family reasons.

The Court determines the financial loss of earnings suffered by the Appellant from the date of her dismissal until Christmas 2022 was approximately €12,000.

The Court is satisfied that the Appellant by her own admission contributed significantly to her financial loss during the first twelve-month period from her dismissal and in those circumstances considers that a reduction of 75% in the amount of compensation for that period to be awarded is just and equitable.

The Court determines that any financial loss from Christmas 2022 to date is not attributable to the conduct of the employer in circumstances where the Appellant voluntarily left her employment for family reasons.

Weighing all of these factors, and having regard to all of the circumstances, the Court determines that the appropriate amount of compensation is €4,000 as just and equitable.

Determination

The Court finds, for the reasons stated above, that the Appellant was unfairly dismissed. The appeal is well-founded.

The Court requires that the Appellant pay to the Respondent the sum of €4,000being the amount the Court considers just and equitable in all of the circumstances. The decision of the Adjudication Officer is set aside accordingly.

The Court so determines.

	Signed on behalf of the Labour Court
	Katie Connolly
04/05/2023	______________________
CO'R	Deputy Chairman