Complainant

Respondent

Parties

Valerie Murphy

The Salvation Army Ireland Company

Complainant

Respondent

Parties

Valerie Murphy

The Salvation Army Ireland

Representatives

Nicola Coleman SIPTU

Naledi Bisiwe IBEC

Act

Complaint Reference No.

Date of Receipt

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

CA-00057022-001

08/06/2023

The Charity exists to meet the needs of its clients. The strategic direction of the service has moved from being a provider of accommodation to a more broad-based needs service which also aligns with HSE policy. Arising from the insights and challenges that COVID presented, this needs centric service strategy was prioritised for implementation with a shift towards less administrative staff and more direct support staff to meet the needs of service users. This meant that the role of the incumbent was suppressed. A comprehensive consultation process began with SIPTU and an agreement was reached where those employees at risk would in essence be given first choice on suitable alternatives.

The Complainant was consulted with on several occasions and two roles were deemed suitable. One role of programme manager was deemed to be suitable and partly acceptable to the Complainant. However, a difference between the parties related on an on-call allowance. The new role had a much-reduced allowance which would reduce total gross earnings by about €8000 a year. On this basis the Complainant rejected this role. As no other alternative role became available and as the matter of this allowance could not be red circled no agreement was reached.

The Complainant believed that the consultation process was a tick box exercise and failed to demonstrate any flexibility regarding her service and skills. The role on offer would lead to a substantial drop in gross earnings.

The on-call allowance that she had should have been red circled. 2 other work colleagues had their terms and conditions red circled.

The Complainant did initiate a grievance about how she felt that the process was unfair and it had created huge stress for her. However, these grievances were not properly processed, and very significant delay arose in responding to her.

Other employees were red circled.

She also believed that another role that had been created arising from a transfer of undertakings should have been given to her as the duties were more aligned to her current role.

A comprehensive consultation process began with SIPTU.

Arising from that consultation process very significant changes were made to the process concerning how vacancies would be filled so that no enforced redundancies would occur, unless the roles on offer were declined.

The restructure was across the respective service centres and was driven by the need to align the structure of these service areas with a change in strategy, which moved from a focus on accommodation to being client centred  focused on their needs and not just accommodation.

The Complainant was offered an appropriate role where her salary would be protected. There also was a higher-grade role open to her but she declined to accept that role.

The matter at issue related to an on-call allowance that was not attached to either of these roles.

It meant that there would be an income loss for the programme manager role.

The organisation engaged in extensive consultation. The Complainant was made redundant as she declined to take up suitable roles offered to her. She was offered the right to appeal when unfortunately, she was made redundant. This arose as she declined to take up any of the open positions offered to her and were deemed to be suitable alternatives. The Organisation did not want to make the Complainant redundant.

The two red circled roles referred to by the Complainant were junior roles where their basic salary was red circled. The Complainant’s salary was not reduced or impacted by the proposed role change.

The Complainant also wanted to be appointed into another managerial role that was created arising from a service transferring back to the Organisation before the restructure. It was not deemed reasonable to bump that incumbent where other roles were offered to the Complainant.

The Employer has every right to re-organise how work is done either based on the need to be more efficient or for some other reason such as the requirement to reduce costs and in this case to better meet the needs of the end user of its services. The essential characteristic of redundancy is that it is an impersonal decision:

At section 7 of the Redundancy Payment Act 1967 as amended it states:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned] the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained

On the evidence the Organisation was restructured to align with a more expansive and client focused strategy. This meant that the Complainant’s role would no longer exist. While the Complainant’s employment may have been at risk it did not follow that she would be made redundant.

Section 7 of the Unfair Dismissals Act as amended states:

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

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

The Complainant contends that the Employer was unreasonable arising from their failure to:

·        Hear her grievance on time.

·        Redeploy her into another managerial role that transferred sometime previously and bump the incumbent.

·        Red Circle her on call allowance as two other work colleagues were red circled.

In O’Rourke v Valcourt Limited [2015] ELR 209, while criticising procedural failings in the process; however, it was decided that did not negate the fact that a genuine redundancy existed, and that the selection was fair.

Redmond on Dismissal Law 3rd Ed, Bloomsbury, 2017, referenced A Hotel Manager v A Hotel and Spa Resort Adj-00015257:

“Thus, even where an employer can be criticised for some elements of its interactions with the individual whose role is ultimately made redundant, the redundancy when looked at in its totality may not necessarily amount to an unfair dismissal.”

It can be argued that while many procedural accommodations are desirable; none are absolute (Nigrell v Graham UD/690/2013).

The employer must rebut the presumption of unfairness.

A decision to make an employee redundant must be impersonal as Charleton J determined in JVC Europe Ltd v Jerome Ponisi [2012] 23 E.L.R. 70 stated:

2. A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. Under the Unfair Dismissals Act 1977, as amended ( “the Act of 1977” ), the dismissal of an employee may only take place for substantial reasons that are fair. In effect, the contract of employment is protected in law and it may only be repudiated by the employer for reasons which do not amount to an unfair dismissal. This requires the employer to show substantial grounds which justify the dismissal. The burden of proof, in that regard, is squarely placed upon the employer. Sections 6(1) and (2) of that Act, in their amended form, provide:

In Cronin v RPS Group, Tallaght UD 2348/2009 and cited in the Arthur Cox yearbook 2011 the tribunal determined that:

The EAT accepted that a genuine redundancy situation existed but concluded that the employer did not act reasonably when it came to selecting the claimant for redundancy. It cited the following grounds for upholding the claim:

·        failure to advise the claimant of the criteria to be applied for redundancy.

·        failure to give her the opportunity to make representations on her own behalf in respect of those criteria.

·        failure to provide an appeal mechanism for the claimant.

·        the company adhered rigidly to a system of selection that did not provide for any consideration of redeployment.

·        failure to have regard to the claimant’s length of service.

An extensive consultation process took place with SIPTU that meant the process was fair and accommodated long service employees. Specific roles were in the first instance offered to long service employees who were displaced arising from the new structure. The Employer was flexible, and that flexibility cannot be used against it now by using precedents of red circling for lower paid staff for basic pay to also apply to a call out allowance, an entirely different benefit. Such an allowance is not guaranteed in perpetuity.

 There were deficiencies in how a grievance was addressed; however, that grievance must be differentiated from how the Employer reasonably responded to the immediate task of identifying alternative suitable roles, which they did. The Employer has rebutted the presumption that the dismissal was unfair. I must determine on the facts that the Complainant was not unfairly dismissed. The Complaint is not well founded. The employment ended by reason of redundancy, was impersonal and arose from a restructuring of the centres to align with a needs centric service strategy. The Complainant was offered two reasonable alternatives that were suitable so that a redundancy could be avoided. As neither offer was accepted the Employer had no choice but to make the Complainant redundant.

The Complainant was give the right to appeal this decision and she chose not to appeal it.

On these facts I determine that the employment ended by reason of redundancy.

I determine that the Complainant was not unfairly dismissed.

An extensive consultation process took place with SIPTU that meant that the process was fair and accommodated long service employees. This meant that specific roles were in the first instance offered to long service employees who were displaced arising from the new structure.

The Employer was flexible, and that flexibility cannot be used against it now by using precedents of red circling for lower paid staff for basic pay to also apply to a call out allowance. Such an allowance is not guaranteed in perpetuity.

There were deficiencies in how a grievance was addressed; however, that grievance must be differentiated from how the Employer reasonably responded to the immediate task of identifying alternative suitable roles, which they did.

The Employer has rebutted the presumption that the dismissal was unfair. I must determine on the facts that the Complainant was not unfairly dismissed. The Complaint is not well founded. The contract ended by reason of redundancy.

Unfair Dismissal-Redundancy