Complainant

Respondent

Parties

Roisin  O'Hanlon

Orlagh Gp Limited Orlagh House

Representatives

Jeanne Kelly Dominic Dowling LLP Solicitors

 Denise O’Brien

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00055069-001

14/02/2023

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00055069-002

14/02/2023

The Complainant commenced employment with the Respondent on 7 January 2019, her employment ended on 5 December 2022.  She was paid €3,470 gross per month. An in-person hearing of the case took place on 19 July 2023. The Respondent is a luxury venue catering for weddings and corporate events.

At the commencement of the hearing, the Respondent provided a detailed written submission.

The Respondent denies that the Complainant was unfairly dismissed but rather was made redundant for legitimate reason and with fair procedures applied.

The written submission provided by the Respondent provided a detailed chronology of events from when the Complainant commenced employment on an ad hoc basis for cash in 2018, in the role of Bookings/Sales.  It explains that the Complainant was employed on a full-time basis in 2019, until her role was terminated by way of redundancy in December 2022.

The Respondent’s chronology summarises the situation as follows:

“Covid took a large chunk of sales from the business due to the downturn in sales, cancellations and also lockdowns.  In addition to this, [the Complainant] had decided she was no longer answerable to me or the new GM, and in order to stay on top of the business, I had to take over the role myself, from a distance. Over a period of about 18 months, I watched as the role went from full time to part time, to the employee not even willing to attend the workplace or contact me as the employer. I have no doubt that covid contributed to the financial aspects of the sales down turn, however in terms of the full role itself being made redundant, the employee stopped fulfilling duties to me as their employer. [The Complainant] ceased turning up for work full time, ceased working as a team member and even when down to the wire, refused to attend a redundancy meeting which would have given her an opportunity to investigate any other roles she might have had more interest in. When I attempted to commence discussions with [the Complainant] I was disappointed that she would not engage.  In Autumn 2022, the business was at a crucial stage for survival and [the Complainant] refused to communicate with me as her employer.  I engaged a separate company to assist with redundancy discussions for all departments across the site and both that company and I travelled by plane to Dublin, by appointment to meet all staff and [the Complainant] would not turn up in person, turn up to video link or discuss this on the phone.

“She [the Complainant] did not fulfil her employee obligations to communicate and liaise with me as her employer.”

The Respondent’s written submission goes on to outline, inter alia, how “he lost all confidence in her sales role,” in November 2021. In February 2022 he received “fairly damning feedback in relation to the sales department overall”, from a consultancy, which led to a search for a more experienced person to come in and help the business in several areas.  Another manager was subsequently hired (April 2022). The Respondent submits that the Complainant was unwilling to engage fully in training. By Spring 2022 the Respondent “felt the as if the sales role had become redundant in some way already”.

The Respondent submits that around this time he and the new General Manager had serious concerns about the viability of the Sales role.  In June 2022 the Respondent decided to split sales into sales and corporate sales. A new employee was hired to take on the corporate sales role. as the Complainant had accepted that she had no experience in corporate bookings. In July 2022, the Respondent submits that the new GM was having problems with the Complainant as she did not seem to have any duties to fulfil and was getting involved with other employees’ work. The Respondent felt he was in danger of losing the GM because of the poor relationship he, the GM, had with the Complainant.

The Respondent submits that at the end of July 2022, and having taken advice from his “accountants and my HR teams, and I was advised seeming as the role of sales was redundant, was not being fulfilled and not being even followed up on- that I could consider making the role officially redundant and continuing to carry out all of the tasks myself, or offer [the Complainant] an alternative role.”

The Respondent accepts that in July 2022, the Complainant wrote to him setting out several grievances. Relationships continued to deteriorate through August and September.

The Respondent submits that by early October 2022, he believes the role of bookings/sales has been redundant since March 2020; that the role had vanished since Covid and the subsequent lock-downs et had hit and the way the Complainant had refused to communicate and engage with him and the GM.

The Respondent submits that having taken HR advice to discuss alternative roles with the Complainant.  However, having taken the trouble to travel from the UK for the meeting to discuss this option, and having given the Complainant adequate notice of the meeting, the Complainant did not turn up. Following this meeting the decision was made to advise the Complainant that the role was to be made redundant, the Complainant was asked to offer alternative roles if she had considered one and to reply to the Respondent.

Following this there was interaction between the Respondent and the Complainant’s solicitor.  The Respondent submits that at this point the Complainant had not responded to him for several months and nobody, including the GM, knew her day to day plans for attending work.

The Respondent submits that on 22 November 2022, the Complainant was made redundant.

The Respondent submits that no unfair dismissal took place; the Complainant refused to meet the Respondent in person for almost all of 2022. As her employer the Complainant ceased having respect for his requests or feedback, and so in order to understand his business he had to take over the role and the bookings. The Respondent submits that, “In effect, she was definitely part of making the role redundant because she ceased being effective in the role and she ceased carrying out responsibilities and tasks.”

The Respondent gave evidence at the hearing.

The Respondent gave evidence supporting the version of events as presented in the written submission, summarised above.  The Respondent stated that the Complainant had commenced in the company as Booking Manager. He referred to difficulties that arose between the Complainant and a family who were living in house which created friction. The business worked through the Covid pandemic which was understandably a very difficult period.  When the house opened fully after Covid the Complainant’s title changed to Operations Manager, which meant her role encompassed many various duties. 

As things progressed the Respondent assessed that a significant overhaul of the organisation was required and in 2021, he brought in a new General Manger (GM) post (to which the Complainant as Operations Manager would report) and a new Corporate Bookings Manager; he deemed the Complainant was not experienced enough to take on the Corporate Bookings Manager role.

The Respondent stated that the Complainant did not want to be GM but she would not cooperate with the GM. The Complainant was told to concentrate on weddings. However, relationships broke down within the team. In May 2022 the Complainant did not turn up for a staff appraisal meeting.

Following a conversation between the Respondent and the Complainant in July 2022, the Complainant submitted a letter setting out several grievances she had with the Respondent. The Respondent stated that he did not follow up this conversation with any paperwork.

The Respondent was informed by consultants that the business was in serious trouble and he started looking at the possibility of making redundancies.  When asked what other departments were looked at [regarding redundancies] he stated that only Sales bring in income; no other department [was looked at]. The Respondent stated that the Complainant’s role was being done by others and although he wanted to discuss the situation and how things could be turned around, the Complainant would not engage.

The Respondent sought HR advice and invited the Complainant to a meeting to discuss the delineation of roles and how the business problems might be addressed.  Following this, notes were sent to the Complainant but the Respondent did not receive a response.  Subsequently the Respondent sent the Complainant her redundancy figures. The next contact with the Complainant was in the form of a letter sent by her solicitor.

The Respondent told the Complainant not to work her notice period as, “we needed a positive atmosphere.”

The Respondent stated that the since the Complainant’s departure there had been no one taken on to replace her as he did not want “aggro.” The business managed with smaller numbers.

In answers to questions put to him in cross examination the Respondent stated that the Complainant had been reprimanded by him, but he had not done so in writing; he addressed issues informally. He disagreed with the assertion put to him that the Complainant as Operations Manager was the de facto General Manager.

In response to a question, The Respondent had no document to support his contention that in October 2021, when he wanted to change the Complainant’s title to Bookings Manager, he was merely reverting her title to what it had been originally. He accepted that he wished to give the Complainant a new contract by which the Complainant’s salary was going to decrease but her hours increase, however this was done as the Respondent wanted security and because her original contract was only a 12-month contract.

Regarding the arrival of the new GM the Respondent agreed that this role was initiated without any consultation with the Respondent.  He could not remember if he had stopped emailing the Respondent around this time, but he stated that he had a GM whom he contacted.

Regarding the structure of the business the Respondent accepted that the roles of GM and Corporate Bookings Manager overlapped with the Respondent’s role, however, weddings were a huge part of the business.

When asked whether the Complainant’s contract was essentially that of a GM and that the recruitment of a new GM was done deliberately because of the Complainant’s performance, the Respondent replied that he was not going into it. When asked if the GM’s appointment had nothing to do with the Complainant’s performance, the Respondent replied that at a later stage, when there was no engagement, she was selected for redundancy. 

The Respondent stated that the Complainant was not a GM, therefore she could not be replaced with a GM.

In concluding cross examination, the Respondent agreed that the Complainant had not signed her redundancy papers.  He denied that this was a “sham” redundancy.  When put to him that the real issues at play were “performance” and “relationships,” the Respondent stated that he was doing the role.

In conclusion the Respondent’s representative put forward that there is no dispute but that there were personal issues at play in this case.  However, the redundancy process started before the Complainant went on sick leave. 

The Respondent accepts the Complainant’s contract was not clear however, the role is still unfilled.

The Complainant was not entitled to not engage with her employer on the matter.

Finally, the Respondent submits that a fair redundancy process was followed, and that the Respondent did want to do the right thing.

The Complainant stated that she had been working as a manager in another organisation for 17 years when she was approached by the Respondent to see if she would come on-board.  Following a six-month trial period, in February 2020, she was offered and accepted a permanent position as Operations Manager. In the Complainant’s view this role meant she was the point of contact for everything and she carried out all the tasks listed in the contract.

During the Covid of 2020-2021, the business experienced a very quiet period.

In October 2021 the Complainant’s role was changed to that of Bookings and Events Manager; she accepted the role but did not get a contract despite requesting one numerous times. The Complainant stated that she felt insulted with the change as it meant increased hours for less pay. There were no face-to-face meetings with the Respondent only some phone calls, the relationship was poor.

In April 2022, a new GM was taken on.  The Complainant was unaware that this was going to happen until a week before the GM arrived in the house.  The Complainant felt she was doing everything for the new GM. Another new employee was taken on to look after Corporate Events, the Complainant was “stuck with weddings.” The Complainant felt the new Corporate Events Manager took over all her duties.

In July 2022, the Complainant wrote to the Respondent setting out several grievances which she had raised in the past which she believed had not been addressed.  The letter contained six grievances.  The Complainant did not get a response to her grievance letter from the Respondent, (a response on behalf of the Respondent was received from a solicitor’s office.  This made for a very awkward working environment.

When the Complainant returned from leave in August 2022, the business was very busy. The Complainant stated that the notification of redundancy impacted severely on her and she went out on sick leave with stress.

In response to the assertion made by the Respondent that she had failed to engage with him during this period the Complainant stated that she did not agree with this, she engaged, but through her solicitors.

The Complainant referenced a wedding at which all the guests were investors.  Some issues arose regarding the wedding and the Complainant believed she was accused in the wrong about the problems, which were not of her making.  This was the “last straw” for her.

In cross examination the Complainant stated that she had taken some time off in January and then had to wait a few weeks for her new job to start.

The Complainant stated that the reason she had not called the Respondent, was because she had handed matters over to her solicitors. In addition, she stated that communications with the Respondent had broken down so much; she had been blamed for so many things.

In conclusion the Complainants representative put forward that there are three central issues to this case and the allegation that this was a redundancy under the cloak of dismissal:

1.       A personal issue arose between the parties. If this is accepted, it is incredible that the redundancy in November 2022 was a coincidence. This is particularly so in light of the letters of complaint, a coincidence is not credible. There was personal animosity shown towards the Complainant.

2.       The Respondent has accepted that the original roles for which the Complainant was responsible for were given to others, the net effect of this is that role made redundant was not the same as the Complainant’s 2020 role.  The Complainant posits that an employer cannot make a role redundant when it is not the same as originally defined.

3.       The redundancy process was executed when the Complainant was on sick leave, this, according to the Complainant’s representative is illegal as there were no procedures.

The Complainant puts forward that she did her upmost to mitigate her loss.

I have carefully considered the evidence adduced during the hearing of this matter.

The Complainant asserts that he was unfairly dismissed. The Respondent asserts that the termination of employment was due to redundancy as the job was no longer viable in due to the downturn in the business and the realignment of roles.

Section 6(1) of the Unfair Dismissals Act 1977 provides that: -  

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(4)(c) of the 1977 Act provides that: -  

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 ... the redundancy of the employee...

Section 6(7) 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, 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.

Sec 7(2) The Redundancy Payments Act1967 highlights a number of various where redundancy arises as follows:

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.

I refer to Quinn (Jnr)-v-Quinn Insurances Limited UD2415/2011 in which the EAT noted for a redundancy defence to succeed it must result from (as per Section 7 (2) of the Redundancy Payments Acts 1967, as amended) "reasons not related to the employee concerned". In this regard redundancy is impersonal and where impersonality runs through the five definitions of Redundancy as set out at Section 7 (2) of the Redundancy Payments Act 1967, and as referred to above.

I am also conscious of the decision in JVC Europe Ltd v Panisi [2011] IEHC 279, in which Charleton J warned at paragraph 5 of his judgment: “In an unfair dismissal claim, where the answer is asserting 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. It must result from, as Section 7(2) of the Redundancy Payments Act 1967, as amended, provides, ‘reasons not related to the employee concerned.

‘Redundancy, cannot, therefore, be used as a 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”

The first issue that must be addressed is whether there was a valid redundancy situation in the Respondent company. The burden of proof rests with the Respondent to establish that the dismissal was wholly redundancy connected. The Respondent must then justify that the process whereby the Complainant was selected for redundancy, was fair and transparent in all respects. 

Having considered the matter carefully, I find the evidence put forward by the Respondent, including the supporting documents relating to the business and the reasons given why the Complainant’s role was being made redundant, to be less than convincing. I find there was not a valid reason to make this role redundant for several reasons, which I set out below.

In the Respondent’s written submission, it is submitted that the Complainant refused to meet the Respondent in person for almost all of 2022. As her employer the Complainant ceased having respect for his requests or feedback, and so in order to understand his business he had to take over the role and the bookings. How could he take over a role that he later says did not exist- there is an inherent contradiction between this statement and the evidence put forward by the Respondent, that the role was gone.

No evidence was adduced to support the assertion that the business was in such financial difficulties that required drastic action, such as redundancy of a manager, was required.

While the Complainant was employed new recruits were taken on, a General Manager and a Corporate Events Manager.  The Complainant was never asked if she could do the General Manager role, she stated that she had been, at the outset of her employment with the Respondent, in effect a General Manager. It would seem to me that the recruitment of both these managers had the effect of taking her role away from her bit by bit, she was being pushed “to the edge of the bed.” If tasks/roles are reviewed realigned the employees in situ must be the first to be given the opportunity to put themselves forward to do the realigned tasks/roles before someone else is employed to do them.  This did not happen in this case. The end result of these two new employees coming on-board was to squeeze the Complainant out.

The line in the Respondent’s submission is “In effect, she was definitely part of making the role redundant because she ceased being effective in the role and she ceased carrying out responsibilities and tasks,” is telling. If an employee is becoming ineffective that is a performance issue and one that should be dealt with as such.  Performance or perceived lack of performance is not a cause for redundancy. If, as postulated by the Respondent, the Complainant’s post was redundant from March 2020, why did it take so long to act on this belief, it does not seem to me to be a credible position.

In her evidence the Complainant referred to a break down in the relationship between herself and the Respondent, indeed the Respondent too accepted that the relationship had become strained.  The deterioration of this relationship, perhaps exacerbated by the impact of the Covid 19 restrictions on the business, seems to me to be the root cause of the decision to end the Complainant’s employment.

Regarding the procedures utilised by the Respondent I find that the failure to engage properly during the process lies mainly, if not entirely, with the Respondent. The fact that the Complainant was made redundant while on sick leave undermines the Respondent’s contention that procedures were followed.

In conclusion, I find this was an unfair dismissal and taking into account the impact the chain of events leading to the Complainant’s termination had on her and her ability to mitigate her loss and the time she was without work, I find an award of 16 weeks’ pay, €13,880, is just and equitable in the circumstances.

The Complainant was unfairly dismissed, and I award the Complainant €13,880.

As summarised above

As summarised above

I have considered the evidenced adduced and summarised above carefully regarding this complaint.

The Respondent accepts that in October 2021 he wrote to the Complainant changing her role from Operations Manager to Bookings (& Events) manager; he was, in his view, simply reverting to the role that she was first hired to do. The Operations Manager title was simply short-term through Covid when there was no need for a booking manager.

The Complainant does not agree with the Respondent’s assertion.  In her letter of 16 July 2022, to the Respondent, she states that referring to, “your [the Respondent’s] unilateral communication in October 2021 whereby you proposed a change of title for my role from Operations Manager to Bookings (& Events) Manager, which I agreed to as I felt I had no option but to confirm. Since then, I have asked several times for an addendum to my original contract to reflect the change of title and to define areas of responsibility, or for a completely new contract.  Subsequently, you sent me a draft new contract which unilaterally changed the terms and conditions of my employment because it determined 32 more hours of work and a reduced salary. Of course I refused to sign this and requested that you revise it in accordance with my original terms and conditions, but I still have not been furnished with any amending contract of employment. Therefore, the only agreed terms and conditions of my employment are contained in my original 2020 contract.”

The Complainant was never furnished with an updated/amended or new contract.

Section 5 of the 1994 Act states:

Notification of changes.

5.—(1) Subject to subsection (2), whenever a change is made or occurs in any of the particulars of the statement furnished by an employer under section 3, 4 or 6, the employer shall notify the employee in writing of the nature and date of the change as soon as may be thereafter, but not later than—

(a) the day on which the change takes effect, or]

I find the Respondent has contravened the Act.

In the circumstances I believe an award of 2 weeks’ pay, €1735, is just and equitable.

I find the complaint is well founded and I order the Respondent to pay the Complainant €1,735.

Cloak, procedures for redundancy, valid redundancy