ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00044909
Parties:
| Complainant | Respondent |
Parties | Louise Ralph | Easilocks Human Hair Extensions Limited |
Representatives | Self-represented | Michael Stafford, The Chapter Coach Training & Consultancy Services Limited |
Complaint(s):
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-00055554-001 | 14/03/2023 |
Date of Adjudication Hearing: 18/08/2023 and 01/12/2023
Workplace Relations Commission Adjudication Officer: Paul McKeon
Procedure:
This complaint pursuant to Section 8 of the Unfair Dismissals Act 1977-2015 was referred to the Workplace Relations Commissionfollowing the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The hearing was held in public, and evidence was taken on oath pursuant to the Workplace Relations (Miscellaneous Provisions) Act 2021, amending the Workplace Relations Act 2015. I explained the changes arising from the judgment of the Supreme Court in Zalewski v Adjudication Officer and WRC, Ireland, and the Attorney General [2021] IESC 24 on 6/04/21 and the parties agreed to proceed in the knowledge that the decision issued from the WRC would disclose their identities.
The hearing was held in person on the 18 August 2023 and a second hearing date pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and SI 359/20206, which designates the WRC as a body empowered to hold remote hearings also took place on the 01 December 2023
Both parties submitted written submissions with supporting documentation prior to the hearing.
As the Complainant did not submit any documentation in relation to her efforts to mitigate her loss and current earnings, I afforded the Complainant the opportunity to submit documents in support of her efforts to mitigate her loss that she alleges she sustained by virtue of her dismissal.
I also afforded the Respondent the opportunity to respond to any documents and/or information submitted by the Complainant which I have considered herein.
The Complainant was self-represented. The Respondent was represented by Michael Stafford, Chapter Coach Training & Consultancy Services Limited.
All of the evidence, submissions submitted have been considered herein. While the parties are named in this decision, for the remainder of the document, I will refer to Louise Ralph as “the Complainant” and Easilocks Human Hair Extensions Limited as “the Respondent.”
Background:
The Complainant’s claim is that she has been unfairly dismissed by way of Redundancy.
The Complainant does not accept that her dismissal arises from a genuine redundancy situation.
The Complainant submits that she has been employed by the Respondent since February 2018 and prior to that with a sister company since February 2017.
The Respondent submits that the Redundancy was necessary due to economic factors and that the Complainant was included in the redundancy process.
The Respondent asserts that the termination of employment by way of redundancy was in accordance with the Unfair Dismissals Act, 1977.
|
Summary of Respondent’s Case:
By way of introduction the Respondent submits that the Redundancy was necessary due to economic factors and that the Complainant was included in the redundancy process. The Respondent asserts that the termination of employment by way of redundancy was in accordance with the Unfair Dismissals Act, 1977. During her maternity leave, the Respondent submits that the Complainant gave access and permission to applicable persons to use her email to gain access to customer accounts etc. The Respondent submits that due to ongoing business challenges the Company applied for loans, on 04 July 2022 and on 27 July 2022 from two separate banks. A loan was approved from the first bank in late August 2022 but there was a delay on the second loan to see how the business was performing. The Respondent further submits that the company then reapplied for the second loan at end of December of 2022 and received verbal notification that the loan was not going to be approved in early January 2023 and it was formally refused in March 2023. The Respondent informed the hearing that Mr Shane O’Sullivan (SOS) (Director and Owner) approached Consultant Michael Stafford, of the Chapter Coach Training & Consultancy Services Limited (MS) by way of phone call to seek advice on the restructuring of the company’s workforce due to ongoing business challenges.
In response, the Respondent told the hearing that Consultant MS, requested a list of potential employees that the business had identified who may be ‘at risk of redundancy’ be sent to him for review.
The Respondent further told the hearing that Consultant MS on review of the list that was sent to him and on asking some further questions which he needed to be able to make recommendations it became apparent that due to financial circumstances of the business at the time, there was an urgency to this request and to consider redundancies.
The Respondent explained to the hearing that the ‘at risk’ employees were identified in the following way; · Who could be temporarily laid off? · Who could be dismissed based on their current contract status (probationary period etc/specified purpose or temp) · Who was at risk of redundancy due to their department closing? · Who could not be made redundant at this time due to their current status e.g., on maternity leave or sick leave etc.
At this time, the Complainants department (salesperson) was identified as ‘at risk’ but the company was not able to make Complainant redundant due to her being on maternity leave.
Furthermore, the Respondent advised the hearing that the Company felt at the time, that the financial circumstances of the business could improve, and would review the situation prior to Complainant returning to work after her Maternity leave in the hope that this could hopefully allow them to avoid redundancy at that time.
On 05 September 2022, the Director SOS sent an email to all employees informing them that the company was in a difficult phase owing largely due to the impact of Covid and Brexit.
Consultant MS told the hearing that he received a message from the Director SOS on the 18 September 2022 informing him that he had received an email from the Complainant in relation to her return from Maternity Leave The Respondent submits that a further email was sent by the Director SOS to Consultant MS on 28 September 2022 informing him to proceed with ‘staff let go’s’. The Respondent noted at the hearing that further points to consider from these email chains were as follows;
On the 12 October 2022 – Consultant MS on behalf of the Respondent commenced meetings with some affected staff informing them of how the business restructure had impacted them.
The Respondent told the hearing that these meetings were handled with care and compassion and the company offered all support with CV writing and references etc. paying notice where applicable to allow staff time to look for alternative work.
The Respondent pointed out that one employee during this period due to their own personal reasons to pursue a career elsewhere, stepped down and resigned.
This role the Respondent pointed out due to the financial uncertainty of the business was not and still has not been replaced with duties absorbed into the existing headcount.
On the 12 October 2022, Consultant MS on behalf of the Respondent commenced redundancy procedures with another affected member of staff from the list who was being made redundant.
Consultant MS on behalf of the Respondent submitted that this process was conducted in line with legislative requirements and the ex-staff member was made redundant as no alternative position was available in the business.
On 12 October 2022 an email was sent to the remaining staff members to reassure them that it appeared the situation was stable.
On 26 October 2022 further staff members were terminated by way of redundancy.
By way of background information, the Respondent submits that they would like this background information noted to show the first initial impact of the restructure, the desire to always try and do things with compassion, within the law and how the business which was facing ongoing struggles to survive, tough decisions were made. It is in this context that the Respondent submits regarding the Complainant’s position within the company at this time was that the business had hoped that by the time the Complainant returned from Maternity Leave, they would not have to look at other restructures. Genuine Redundancy and Process Followed: The Respondent highlighted at the hearing that rather than addressing each point raised in Complainants submission individually, it is the company position to map out the timeline of events which demonstrates that not only was this a genuine redundancy, but the processes followed was correct when taking into account the broader position of the business at the time. Genuine Redundancy The Respondent made reference to the background information it included in its submission at the hearing that they believe demonstrates beyond a reasonable doubt that the role of the Complainant was already identified as ‘at-risk’ of redundancy in August 2022. As referenced in its submission and also on the date of the hearing the Respodents representative Consultant MS told the hearing that the refusal from the bank for a loan led the company to review the remaining ‘other’ employee which was the Complainant (to now be ‘at-risk’ of redundancy. The Respondent advised the hearing that during the process which commenced in January 2023, that it was regretful and unfortunate that the Complainant became aware of the fact that their role was ‘at-risk’ of redundancy. This the Respondent states happened due to an email sent in error by the Financial Controller. The Respondent accepted that the emails going back, and forth which showed dates being suggested should not have occurred until the company was in possession of the contract of employments from the employee file. This should not be taken out of context as it was only an information gathering exercise. Nonetheless, the Respondent explained that due to the highly sensitive nature of the email and the fact that while the Complainant was on Maternity Leave, they were aware that other people had access to her emails therefore once the error was flagged, measures were taken to delete/recall the email. The Respondent further explained also that they didn’t want to raise alarms of further potential redundancies if ‘word’ got out to the other staff members in the team. In relation to the Complainant mentioning that this left her feeling stressed and anxious the Respondent submits that as she was on maternity leave, she may or may not have been accessing her emails, so the stress and anxiety mentioned by the employee was in part due to the fact that she was accessing her emails prior to coming back after Maternity Leave.
In this regard, the Respondent put forward that this caused a sequence of events which need to be read in context: a. The password was reset causing an error in accessing email account when employee returned to business. b. The intention was for employee to receive the ‘at-risk’ letter from the consultant MS once she returned to the office. c. Follow up email sent by MS to staff member 1 and the Director SOS requesting that access be restored 11.55am on the 30 January 2023 for the Complainant”. d. Access restored and confirmed by Staff Member to the Complainant in email) including a summary email to MS of staff member 1 recollection of events “NetSuite login) e. The Complainant decided to leave the premises behaving in a way which can only be described as unprofessional. f. MS informs SOS and Staff member 1 that a meeting would be going ahead with the Complainant at 1.30 pm on 30 January 2023.
Redundancy Process On the 01 February 2023 the Respondent provided the Complainant with an ‘at-risk’ letter and confirmed first meeting also for 01 February 2023 at 10:00 am. Following this meeting to discuss potential redundancy, the Respondent told the hearing that the Complainant raised a number of points in an email to a Staff member and the Director SOS for an official company response. The Respondent told the hearing that at the meeting the Complainant and representative for the Respondent Consultant MS agreed that the company would hope to respond as soon as possible, and a further meeting was to be held to discuss the matters raised. The Respondent submitted that the business formally responded to the points raised by the Complainant on the same day at 17.53pm informing her that the business position was to still proceed with making the role redundant. A letter was issued 02 February 2023 by way of email informing the Complainant of its position. This was accompanied by a further email with accompany documentation issued by Consultant MS at 12.53 on 02 February 2023 in which the Complainant raised further points raised also on the 02 February 2023 at 13:13. Another letter was issued to Consultant MS and Director SOS of the Respondent by the Complainant raising further points which was responded to by Consultant MS on behalf of the company at 15.22 on the 02 February 2023. Another email was received from the Complainant confirming below:
“Hi Michael, Just confirming, Easilocks company property was collected this afternoon 16th February 2023 at 15.26pm by John O Sullivan. All company property that was in my possession was handed over as per item list below 2 company laptops 1 wireless mouse
Company phone and sim card Company car inclusive of 2 keys Toll tag, insurance disc, tax disc (all in car) Company fuel card Attached for your reference, signed by John O Sullivan on behalf of Easilocks on collection. Best wishes, Louise.”
In this regard the Respondent advised the hearing that it agreed to allow the use of the company car and all company property to ‘assist the Complainant during the transition of her being made redundant’ as a gesture of goodwill.
As a further gesture of goodwill, the Respondent also submitted that it offered assistance with CV writing to help the Complainant find alternative employment.
The Respondent submitted that the Financial Controller sent a follow up email to Complainant (after she had received her redundancy payment)
“Hi Many thanks for your email. I hope you are keeping well. Just to confirm, I won't be sending any signed documents. I am not comfortable with putting my signature on a document that I did not agree to…”
Calculation of redundancy payment based on length of service: In terms of the calculation of the Complainants redundancy, the Respondent submits that the Complainant commenced employment with Easilocks Hair Extensions Limited on 12 February 2018. In support of its position the Respondent submitted and made reference at the hearing to its supporting documentation of the Complainants signed contract of employment signed by the Complainant. In this regard, the Respondent explained that a P45 was issued by Young Nails Ireland ceasing employment with this company on 02 February 2018. The Respondent further explained that the Complainant is incorrect when she states that her length of service carried over from Young Nails Ireland. This company is owned by another member of the same family, trades under a different name and is not a ‘sister’ company therefore no such agreement could have been made and does not exist. On 26 September 2019, the Complainant sent an email to the Director SOS to trial new terms of employment as she had resigned from the business, highlighting page 2 of this email chain where it shows that the Complainant has agreed to the new terms. A new contract was signed by LR dated 7 October 2019 which also aligns with above email chain: “Your employment begins on the 07 October 2019 and no previous employment counts as part of your continuous period of employment due to resignation.
The term of employment being continuous or not should not be an issue of contention. Whilst the Complainant did make reference to the additional wording was included, which deviated from the normal employee contract. It states that “due to resignation no continuous service applies”, they continued to sign same without any further objection throughout their period of employment. Further matters for WRC and Complainant to consider: On completion of explaining the timeline of events in relation to the redundancy of the Complainant, the Respondent provided further information that it requested be took into consideration at the hearing.
Firstly, the Respondent accepts that the timing of the redundancy is far from ideal (the day of return from maternity leave).
However, it also submits that it was necessary to commence the process as the Respondent was consistently looking at cost savings and implications.
In addition, whilst the Respondent could not start the redundancy process during maternity leave, it accepted that ideally the Complainant should have returned to work in the usual manner with full access & induction etc.
The Respondent points out however that this was just going to delay the inevitable, unless during the course of the ‘meeting to discuss potential redundancy’ the Complainant came up with an idea that was a miracle all round solution.
Nonetheless, the Respondent submits that a handover/induction was attempted with the Complainant, but she took an annual leave day and left work early on her first day back.
Furthermore, the Complainant although receiving the ‘at risk’ letter later than anticipated due to an access issue, chose to go home.
The Respodents position in this regard is that the Complainant could have worked in the business on other tasks but simply due to being unable to get in contact with her manager, left of her own accord.
It is in these circumstances that the Respondent submits that the business was therefore not given the opportunity to do the handover & induction.
The Respondent also points out that the Complainant refers in her submission and also at the hearing to being asked to extend her maternity leave as the company was “seeing the benefit of saving their salary”.
In response to this the Respondent argues that this should be taken under the context of the Respodents ongoing struggles and attempts to protect the jobs of all employees as well as ‘encourage’ the employee to take all her maternity leave.
The Respondent also submits that the purpose of a meeting to discuss a potential redundancy is to allow an employee to offer alternative solutions to the redundancy and get clarification on the selection process.
The Respondent believes that they have dealt with this accordingly factoring in the ongoing financial position of the business.
Having said all that, the Respondent told the hearing that its decision to make the Complainant redundant was not done lightly and it was in part forced by the ongoing loss-making status it finds itself in, still today.
On this point, the Director SOS told the hearing that he would have considered the Complainant not just a colleague but a close friend and the ultimate decision to make her redundant was not something he welcomed or took any satisfaction from.
The Respondent further added on this point that they believe they took all reasonable steps to avoid redundancies and also believe they have completed this process in the best possible way.
In support of this position, the Respondent submitted documentation and accompanying emails to support the ongoing efforts the business made to try avoiding redundancies and continue trading in an unprecedented economic climate.
The Respondent stressed at the hearing by way of reference to the actions it took as set out in its submissions that they tried to be reasonable.
The Respondent explained that whilst fair procedures are necessary, it is not always practicable to offer new roles/ working hours/ alternatives to redundancy simply because the Respondent cannot continue to sustain all employees or aspects of the business if they wish to continue trading.
In this regard, the Respondent submits that it continues to be a place which prides itself on fairness and a great place to work.
The Respondent believes that based on the documentation produced at the hearing, it is clear that the type of culture that exists within this company is reflected in a positive light.
The Respondent told the hearing that other staff members were totally understanding of the struggles the Respondent were in.
In addition, during the financial crisis the business found itself in, in December 2022 the Respondent still made efforts to give all employees a voucher for all their efforts as they worked on a reduced workforce. The Respondent notes that even while on maternity leave, the Complainant was included in this gesture and was thankful of same. Mitigation of Loss In relation to the Complainants attempts to mitigate her loss, while the Respondent notes the Complainants stated efforts to secure employment, the Respondent also highlighted that this was not supported by way of ample supporting documentation following been being made redundant from the Respondent on 02 February 2023. The Respondent makes reference to the Complainant statement that: “Immediately following being made redundant, she states she applied for multiple roles inclusive of (but not limited to) the: • Brand Manager, Irish Beauty company • Secretary, GP Practice • Head of Prestige, Beauty Distribution Company • Brand Manager, International Fashion company • Administrative Assistant, Utilities company.
Alongside applying for all the above roles, which the Complainant states she had been unsuccessful with, she claims she reached out to old employers whom she still maintains regular contact with such as the Managing Director for an Irish Distribution Company, The trading Manager for multinational pharmacy business and the Commercial Manager for an Irish food brand who all told her they would keep her in mind for any roles that would become available within their respective business’ or furthermore the general sector in which they worked.” In this regard, the Respondent points out that the Complainants efforts do not include any time/date stamp, and question would why this is not included in the Complainants response to mitigate her loss. It is in this context that the Respondent highlights that the lack of supporting documentation to support the Complainant’s effort to mitigate her loss and as a result question the credibility of her efforts. The Respondent on this point asserts that the only real effort they see with supporting documentation is the application dated 11 April for the position of Medical Secretary. Furthermore, the Respondent adds that while the Complainant provides documentation in regard to the notification of a role, there is no evidence to support that this role was actually applied for by the Complainant. The Respondent also highlighted the Complainants statement that “Having not secured employment by April 2023, I met with the local Intreo officer and signed up with the Jobs Ireland portal where I also applied for multiple job roles.” The Respondent in its post hearing submission on the Complainants efforts to mitigate her loss question the evidence to support this declaration that Complainant applied for multiple roles. Having not secured employment, the Respondent is of the understanding based on the Complainants post hearing submission that following a conversation with her Intreo officer, she decided to undertake a course and started said course on 19 April 2023. The Respondent also states that it is of the understanding that following the Complainant obtaining a distinction for this course on completion in June 2023, the Complainant state she was then required to go on to complete further courses. The Respondent submits that following the completion of her studies the Complainant went on to secure unpaid work placement/experience in a local primary school but unfortunately, was certified medically unfit to return to work due to illness and is still currently certified unfit for work. On these grounds the Respondent argues that they cannot be held responsible for loss of earnings should a previous employee be out sick from work due to illness. The Respondent concludes that should the Adjudicator find in favour of the Complainant that her efforts to mitigate her loss must be measured in an equitable manner in that the Complainant made a decision not to apply for similar positions while instead concentrating on a potential business venture. The Respondent further concludes that if any award is forthcoming, it should be limited based on the fact that the Complainant decided to pursue a new career and stopped applying for (or was unable to provide satisfactory evidence to support references of application) |
Summary of Complainants Case:
The Complainant claims that she was unfairly dismissed as per complaint made to the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 on the 14 March 2023.
The Complainant submits that she worked for the Respondent since February 2018. Prior to this, she states that she had been working for Young Nails, a sister company of the Respondent, since February 2017. The Complainant told the hearing that prior to her beginning her Maternity Leave on 01 August 2022 she was not aware of any concern or by way of conversations she had with her fellow employees that the Respondent was in a bad situation financially.
While no concerns were ever raised regarding staffing levels in the months prior to her beginning her Maternity Leave, the Complainant informed the hearing that there were a number of new employees which the Respondent hired as well as implementing an expensive new sales/accounting software system to which was explained to employees would be beneficial in line with the continued growth and success of the business. It is in this context the Complainant advised the hearing that to the best of her knowledge all indications suggested the business was in a positive financial position.
It was not until the 05 September 2022 that a communication was sent to all employees stating that the Respondent is experiencing operational challenges and that they were exploring all options in order to ensure that they could sustain these challenging times and that they may be making some internal changes in order to move forward and further strengthen the business. The Complainant explained to the hearing that there was no mention of any potential job losses or redundancies in this communication.
It was only in early October when a colleague contacted the Complainant to say they had been made redundant that she was first made aware that the business was considering job losses.
On this note, the Complainant highlighted that as part of her questioning during her redundancy meeting, she asked the Respondent when her job was identified as at risk, at the redundancy meeting, to which the Respondent confirmed was around August 2022. The Complainant explained to the hearing that she thought this was peculiar in that this was prior to the above-mentioned business communication sent to all employees on 05 September 2022 and predates her return to the role following maternity leave.
In regard to her Maternity Leave, the Complainants submitted that an agreement was made between her and her line Manager, the CEO Director Shane O’Sullivan (Director SOS) that she would only be required to only take 6 weeks Maternity Leave as she just requested to take minimum time off.
Plans were put in place for the Complainant to handover her work to her colleagues who would be responsible for looking after my work whilst she was on Maternity Leave. One of her colleagues according to the Complainant that she handed over her work to is a close family friend of the Director SOS, and to the best of the Complainants knowledge she still works for the business and continues to do her work following her departure which the Complainant alleges her colleague had not been doing prior to her going on maternity leave.
On this note, this colleague the Complainant refers to was not considered for redundancy and despite asking for a selection matrix as well as querying why she was being made redundant as opposed to her colleague that she believes has a close relationship with the Director SOS, she was refused this information. Following 6 weeks of Maternity Leave, the Complainant requested on two separate occasions to commence discussion in relation to her return to work with her line manager, the Director SOS.
The Complainant advised the hearing that this was met with excuses from the Director SOS as to why he could not have the conversation with her.
The Complainant further advised the hearing that it was only on her third attempt to request her return to work that he agreed to have a phone call with her.
During this call, the Complainant informed the hearing that after she requested a return to work, she was told by the Director SOS that the business was seeing the benefit of saving her salary whilst she was on Maternity Leave, and she was advised to take the full maternity leave and return on 30 January 2023.
The Complainant told the hearing that she was disappointed with the news but felt she didn’t really have any other option at the time but to as requested continue her maternity break. The Complainant further told the hearing that when she questioned her job security at this time, she was informed that her job was not in doubt, and they would be happy to see her in January.
Redundancy Policy In support of her position, the Complainant drew attention at the hearing by way of reference to her submission to page 44 of the Respodents employee handbook regarding its redundancy policy whereby it states that; “consideration may be given to applications for voluntary redundancy depending on the business requirement”.
This option according to the Complainant was not considered.
The Respondent also drew further attention as per the Respodents redundancy policy whereby it states that “any criteria for selection will be discussed with you at the time where possible”.
The Respondent in this regard according to the Complainant did not engage in any discussions with her regarding redundancy.
On this note however, the Complainant pointed out that while the Respondent did not contact her in relation to redundancy during her Maternity leave, they did however contact her several times regarding work related queries which she stated she responded to out of courtesy.
In relation to the Complainants return to work, an error by the Financial Controller was made sending an email to her on 24 January 2023, that related to her contract of employment.
The Complainant stated that this caused undue levels of anxiety and stress for her in the week before returning to work on 30 January 2023. The Complainant expressed at the hearing that the pressure which she felt returning to work from Maternity Leave following receipt of the email she received on the 24 January 2023 was extreme.
This was further heightened on 30 January 2023 when the Complainant arrived at the office and was questioned by her colleagues as to why she was there as they claimed they had already been informed that she would not be returning to her role.
The Complainant explained to the hearing that this was highly embarrassing to experience and what furthered her embarrassment was that it appeared to her that she was the only person unaware of the situation. What escalated the situation further according to the Complainant was that there was no management or HR personnel available to assist in her settling back into work or answer any questions she had or to even conduct a return-to-work discussion following her return from maternity leave.
In an effort to contact the Director SOS who was her line manager the Complainant stated that she made numerous attempts to contact him by way of email and phone and left numerous messages stating how urgently she needed his assistance, all of which went unanswered until the 01 February 2023. Having no access to emails or systems to be able to carry out her job and nobody available to assist until 12:00pm that date, the Complainant states that upon gaining access, she was greeted with an email for a meeting with a HR consultant Michael Stafford (Consultant MS) at 13.30pm on the same date. The Complainant informed the hearing that she attended this meeting (via phone call) at 13.30pm where she was informed that her job was at risk of redundancy. In relation to the meeting, the Complainant submits that the Respondent failed to listen or take onboard any suggestions she had in order to avoid making the role redundant.
The Complainant also submits that the Respondent were not able to answer any questions she had in relation to why she was selected for the redundancy.
The Complainant informed the hearing that following the meeting, they were due to have a follow up meeting in which the Consultant MS would come back with feedback to the questions she had submitted.
The Complainant advised the hearing that an email was sent to her accidentally confirming her redundancy and the meeting that was arranged was then abruptly cancelled.
In the view of the Complainant, she told the hearing that she believes this demonstrates that the Respondent had made a pre-determined decision to make her redundant and this is clear based on the timing of the email she received and also the decision confirming her redundancy clearly shows that the decision to make her redundant had already taken place.
In addition, the Complainant told the hearing that no alternatives to redundancy were considered or outlined by the business.
Additionally, the Respondent refused to grant her the right to appeal the decision which has further shown that the decision was pre-determined.
The Complainant stated that the Respondent took no consideration or showed any sensitivity toward her as their employee prior/during or following her being made redundant.
This included the sending of emails to her which exacerbated a tough situation, while also excluding her access to work emails in advance of the redundancy meeting while colleagues appearing to know her fate in relation to her redundancy before she was informed.
The Complainant also stated that at no stage was she offered help by the business in order to prepare her for redundancy but rather she was simply told to hand back company property and be off the premises.
The Complainant asserts in this regard that it was clear that the Respondent had made their mind up to make her redundant and that this pre-determined decision to make her redundant would have happened regardless of any input she provided to the Respondent.
In relation to the Complainants contract of employment, the Complainant submits that the business is incorrectly using a contract from October 2019 when she was contracted to work part time (20 hrs. per week) for the company to calculate her service to the business.
In this contract, additional wording was included, which deviated from the normal employee contract.
The Complainant further submits that it states that “due to resignation no continuous service applies”, however, it also states that the same contract is a fixed term contract and would expire when the fixed term ended on 03rd January 2020 (a further contract was issued from January 2020 to April 2020, which the business did not mention during the redundancy process)
There were no further contracts issued to her following April 2020 until her redundancy date on the 02 February 202302 despite her terms and conditions changing further in 2021 when she was reinstated to full time working hours of 40 hrs. per week.
The Complainant noted in the email she received from the Financial Controller on 24 January 2023 it clearly states her original start date with the company is the 12 February 2018.
The Complainant also noted by way of reference to her submission that she had a prior agreement with the Director SOS that, as he requested, she move from his sister company Young Nails Ltd.to work directly for him, so that her service would be carried over.
The Complainant concluded on this point that her start date therefore was 13 February 2017 and this would mean that her service totaled 5 years and 11 months to the date that she was made redundant, meaning she would be entitled to 4 weeks’ notice, however, she only received 2 weeks’ notice while additionally her redundancy payment was lower than it should be.
In the Complainants overall closing summary comments she made reference at the hearing to her submission outlining the reasons that the redundancy was pre-mediated, unfair and unlawful with the payments made.
The redundancy was pre-meditated by the business with no consultation being allowed to happen. This is demonstrated by:
Mitigation of Loss As the Complainant did not submit any documentation in relation to her efforts to mitigate her loss and current earnings, the Complainant submitted documentation post hearing in support of her efforts to mitigate her loss that she alleges she sustained by virtue of her dismissal.
In this regard, the Complainant submitted that immediately following her being made redundant, she applied for multiple roles inclusive of (but not limited to) the below:
• Brand Manager, Irish Beauty company • Secretary, GP Practice • Head of Prestige, Beauty Distribution Company • Brand Manager, International Fashion company • Administrative Assistant, Utilities company
Alongside applying for all the above roles, which she had been unsuccessful with, the Complainant further submitted that she reached out to old employers whom she still maintained regular contact with such as the Managing Director for an Irish Distribution Company, The trading Manager for multinational pharmacy business and the Commercial Manager for an Irish food brand who all informed her that they would keep her in mind for any roles that would become available within their respective business’ or furthermore the general sector in which they worked.
Having not secured employment by April 2023, the Complainant claimed that she met with the local Intreo officer and signed up with the Jobs Ireland portal where she also applied for multiple job roles.
It was at this meeting, the Complainant claims that the Intreo officer suggested that she should also look at further education opportunities. Following this meeting, the officer made an initial request for her to start a Special Needs Assisting course which would commence the following day as the officer felt it complimented her previous arts degree and her interest in the education sector.
It in this context that the Complainant commenced a part time QQI level 6 Special Needs Assisting course with Tallaght (West Dublin) Education Training Board on the 17 April 2023.
As she completed the QQI Level 6 in Special Needs Assisting, the Complainant submitted that she was required to then complete the QQI Level 5 Special Needs Assisting course with additional QQI Level 5 modules (Intellectual Disability and Child Development).
The opportunity according to the Complainant arose to participate in this course with Waterford/Wexford Education Training Board in which she commenced in June 2023 and completed the course with distinctions in all 3 modules in September 2023.
The Complainant states that she then went on to secure unpaid work placement/experience in a local primary school but unfortunately was certified medically unfit to return to work due to illness and is still currently certified unfit for work.
The Complainant concluded that she has secured garda vetting (clearance) with several primary schools in her area and beyond and is registered on both the Sub Seeker portal and Educationposts.ie where she will continue to apply for Special Needs Assistant job roles.
In addition, as well as continuing to apply for roles within Education she submits that she will continue to apply for roles similar to her previous role with Easilocks Human Hair Extensions Ltd. where her skillset can be utilized.
The Complainant also noted that she intends to continue with further education in 2024/2025 to complete her master’s in education which will allow her to teach at all levels, inclusive of Special Needs teaching which she hopes will ensure she can secure employment into the future.
|
Findings and Conclusions:
I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence presented at the hearing. Following the hearing, I also afforded the Complainant an opportunity to furnish any documentation which could demonstrate her efforts to mitigate her loss. The Respondent was also afforded the opportunity to respond to the documentation the Complainant furnished which it did so. The Redundancy Payments Act, 1967, Section 7(2) as amended by section 4 of the Redundancy Payments Act ,1971 and section 5 of the Redundancy Payments Act 2000, provides that: …an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not relating to the employee concerned, the dismissal is attributable wholly or mainly to— (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or (d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or (e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,” Unfair Dismissals Act 1977 Section 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. Section 6 (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.
In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated; “In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as 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.”
I am satisfied based on the evidence of the Respondent, that a redundancy situation did exist within the Respondent entity at the material time.
It is clear that when the Respondent failed to secure additional funding during a prolonged difficult period for the Respondent that matters took a turn for the worse.
Furthermore, I am satisfied that there was no alternative role for the Complainant within the Respondent entity and that the decision to make her position redundant was made in good faith.
I am however, not satisfied that the Respondent carried out any proper consultation process, meaningful or otherwise with the Complainant prior to making the decision to make her position redundant.
While I note the Respodents position that they were under severe financial distress during this period and did not want to provide ‘‘false hope’’ to the Complainant of bringing her through a prolonged process of consultation and appeal when the final outcome in their view due to the dire financial situation the company was in at the time was always going to lead to redundancy.
Nonetheless, regardless of the financial situation a company may find itself in, it is paramount that fair procedures and due process are afforded to an employee when redundancy is under consideration.
In this regard I am of the view that any discussions or explanations came after the decision had already been made and the decision to make the Complainant redundant was pre-determined.
In addition, while I note the Respodents position that they did not want to provide ‘’false hope’’ to the Complainant as referenced previously, no option of an appeal was afforded to the Complainant either and in that regard the redundancy process was procedurally flawed.
Therefore, overall, I find that the Complainant’s claim that due process was not afforded to her and that she was unfairly dismissed by way of redundancy has been upheld. Redress: Section 7 of the Act, in its relevant parts, provides: 7. Redress for unfair dismissal (1) Where an employee is dismissed, and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances: …. (c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or (ii) if the employee incurred no such financial loss, payment to the employee by the employer of such compensation (if any, but not exceeding in amount 4 weeks remuneration in respect of the employment from which he was dismissed calculated as aforesaid) as is just and equitable having regard to all the circumstances, and the reference in the foregoing paragraphs to an employer shall be construed, in a case where the ownership of the business of the employer changes after the dismissal, as references to the person who, by virtue of the change, becomes entitled to such ownership. (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. …. (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 pay and benefits in lieu of or in addition to pay.
The Complainant submitted that she is seeking compensation for unfair dismissal.
In this regard I am conscious in calculating the level of compensation, that due consideration must be taken in regard to the efforts of the Complainant to mitigate her losses.
On this note a claimant who finds him or herself out of work should employ a reasonable amount of time each weekday in seeking work.
In addition, it is incumbent upon the Complainant to give plausible evidence on mitigation of loss.
On this note, the Complainant did not adduce any evidence of her efforts to mitigate loss at the hearing and when I afforded her with a further opportunity to do so, the Complainant provided limited and, in some examples, vague evidence without at times supporting documentation of her attempts to mitigate her loss.
While I note from the documentation she submitted that she made some efforts to mitigate her loss, I am not satisfied that she approached this with the resolve that is set out in the case of the Employment Appeals Tribunal v Continental Administration Co Ltd (UD858/199) where it stated: “a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work nor merely to post an application to various companies seeking work. The time that a claimant finds on his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss.”
Furthermore, while I accept that the Complainant did enrol in further education since the termination of her employment, I do not accept that this is a barrier or precludes her entirely from seeking to mitigate her loss.
The Respondent has made submissions in relation to the Complainant’s obligation to mitigate her loss as set out in Section 7(2) (c) of the Unfair Dismissals Act and that is taken into consideration in any case when deciding on compensation.
Assessing redress that is just and equitable giving all the circumstances and that I am not entirely satisfied that the Complainant has adequately shown attempts to mitigate her loss, I award the complainant redress of €6000.
|
Decision:
CA-00055554-001: Section 41 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Having carefully considered the evidence I find that no meaningful engagement or consultation process took place with the Complainant.
In addition, while I note the Respodents position that they did not want to provide ‘’false hope’’ to the Complainant, no option of an appeal was afforded to the Complainant and in that regard the redundancy process was procedurally flawed.
In accordance with Section 8(1)(c) of the Act and having carefully considered the evidence of both parties together with the documentation submitted, I declare that the Complainant’s selection for redundancy was unfair, and the complaint is well founded.
Assessing redress that is just and equitable giving all the circumstances and that I am not entirely satisfied that the Complainant has adequately shown attempts to mitigate her loss, I award the complainant redress of €6000.
|
Dated: 19th of March 2024
Workplace Relations Commission Adjudication Officer: Paul McKeon
Key Words:
Unfair Dismissals Act, 1977, Redundancy |