Complainant

Respondent

Parties

Jana  Kazmierkiewicz

Vistatec Limited

Complainant

Respondent

Anonymised Parties

Representatives

Cathy O’Grady B.L. and Christina O’Byrne B.L. instructed by Catriona Sharkey of Sheehan and Company Solicitors

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-00056542-001

08/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00056542-002

08/05/2023

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

CA-00056542-003

08/05/2023

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00056542-004

08/05/2023

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

CA-00056542-006

08/05/2023

The complainant made the above complaints on 8 May 2023. The respondent advised that the complainant had also made a Personal Injuries complaint which was listed to be heard in the week following the first day of hearing on 28 September 2023. As there was no overlap this hearing day dealt with complaint under the Unfair Dismissals Act and the Minimum Notice & Terms of Employment Act. The remaining complaints were heard over two further days on 30 April and 12 September 2024.

Summary of Respondent’s Case: the respondent submits the complainant’s employment ended by reason of redundancy.

The complainant commenced employment on 21 August 2017. By email on 10 March 2023 Siobahn Gantly, Head of Localisation Programs, invited Ms Kazmierkiewicz to a meeting to be held in the respondent’s office on 14 March 2023, to discuss a workplace update. By email on 13 March the complainant sought an agenda for the meeting and stated if it was urgent it would be better to communicate with her in writing. Ms Gantly replied later that day that the purpose of the meeting was to discuss some potential changes that may impact the complainant’s role, and offered the option of a remote meeting or to provide details in writing, at her preference. The complainant did not respond until the morning of the meeting stating that she wished to raise a grievance. The complainant later said she had just received the invite to the meeting. The meeting was rescheduled for the following day but the complainant failed to attend.

By letter dated 15 March 2023 the respondent set out details of challenges facing the business, cost cutting measures being considered and that the complainant’s role had been identified as being at risk of redundancy. The letter also set out that they would enter into a consultation process with the complainant to discuss how redundancy could be avoided and to explore and consider all suitable alternatives. The complainant was invited to consultation meetings on 23 and 29 March but no reply was received.

The complainant requested to be contacted at her home address and advised she had never given permission to for the respondent to contact her at her personal email address.

The complainant did not contact the respondent, did not make any suggestions and did not raise any questions. She failed to engage in in any manner whatsoever with the consultation process. She further failed to attend the meeting scheduled for 29 March. Notification of Redundancy was therefore issued to Ms Kazmierkiewicz on 30 March 2023. It was confirmed that the complainant would be paid in lieu of notice and the payments, that would be made to her on her end date of 30 April 2023, were set out; this included a statutory redundancy payment of €7,440.

The respondent submits that section 6 (4) (c) of the Unfair Dismissals says that “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 … redundancy” and, as the complainant’s employment ended by reason of redundancy, it was not an unfair dismissal.

Summary of Complainant’s Case: the complainant submits she had an acute stress incident in 2019. Following this she was removed from most client accounts in April 2020. After a short period of work strain in April 2020 the complainant reported overwork to HR and her inability to cope. She submits a campaign of retaliation followed and she lodged a formal complaint. She was removed from all projects and responsibilities in June 2020 during her sick leave and whilst her complaint was ongoing. The complainant submits she was demoted to a support role in August 2020. The poor treatment continued for 2 years.

On her first day after annual leave on 13 March 2023 the complainant had 2 messages waiting for her. This included an invite to meet the HR Manager on 14 March 2023. The complainant forwarded grievances to the HR Manager on 14 March 2023. She says her work account and all systems were blocked on 15 March 2023 and she was not allowed to enter the office on 16 March 2023. She received a number of letters including a proposed agreement to sign for an increased redundancy payment.

The complainant submits there was no reason to make her redundant in March 2023, particularly when the respondent had advertised for a Localisation Project Manager in October 2022.

Findings and Conclusions: the issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent, who contend the complainant’s employment was ended by reason of a genuine redundancy.

Section 6 of the Unfair Dismissals Act 1977 provides:

“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.

(4) 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 one or more of the following:

... (c ) the redundancy of the employee”

Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;

“7(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”

 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.”    

In that case, Judge Charelton remarked that “It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”.

The respondent says there was a downturn in their business and they looked to make redundancies to reduce their costs. They submitted a copy of a redacted selection process in the areas most affected by their business changes. The selection matrix shows the respondent considered 6 Senior Project Managers and 4 Project Managers. They had a scoring system, with marks for service in the respondent, commitment to company values, team oriented, customer feedback, transferable skills/versatility (with a double weighting) and qualifications. The complainant scored lowest, with 11 points. Whilst the highest three scored 20 points. The two candidates next lowest scored 14 points each. It is my view that the selection process, as shown in the selection matrix, shows some detailed assessment was part of the process. The complainant strongly disagreed with the selection matrix but I consider it acceptable from the evidence given by the respondent’s witnesses.

The issue of looking at alternatives, which was highlighted by Judge Charleton, is more difficult to assess. That is because the respondent did not meet the complainant to discuss the redundancy situation. The respondent says this is because the complainant did not engage with the process, despite various and many attempts to engage. The complainant says she asked questions about the engagement which were not answered. Also, there were communications issues because she did not want her private email address to be used and she was denied access to the building.

Following the initial emails which made no mention of redundancy the respondent sent a letter by post on 15 March 2023 which clearly set out that the complainant’s role was at risk of redundancy. Further letters were sent by post to the complainant on 20 March, 23 March and 30 March 2023. From, the written and oral evidence given by the complainant and the respondent my conclusion is that the respondent would have entered into consultation with the complainant and consideration given of any alternative role that may have been available. This did not happen because the complainant did not engage with the respondent in relation to these matters.

I am satisfied from the evidence adduced that a genuine redundancy situation existed, that the complainant was fairly selected for redundancy and that the employer acted reasonably in all the circumstances.  Having concluded that a genuine redundancy situation existed in this case, I am satisfied that redundancy was the main reason for the dismissal of the Complainant. Accordingly, I am satisfied that the complainant was not unfairly dismissed.

Summary of Complainant’s Evidence: in direct evidence at the hearing the complainant acknowledged that she had received payment in lieu of notice.

Summary of Respondent’s Evidence: the respondent submits the complainant received a payment in lieu of notice.

Findings and Conclusions: from the evidence given it is clear that the complainant received a payment in lieu of notice, in these circumstances the complaint is not well founded.

Summary of Complainant’s Evidence: the complainant submits that her contract of employment contained false information. This included; one level of hierarchy was missing in the reporting structure, duration of probation period was incorrect. Several changes to the terms of employment were imposed. These changes were either not communicated or the complainant was notified verbally or by email and such messages contained misleading information. She received no response from the respondent when she brought this to their attention

Also, the respondent made changes to her account ownership in 2022 and in December 2022 there was a team meeting about redundancy. In 2023 her company account was blocked when she was on sick leave.

Summary of Respondent’s Evidence: the respondent submits that the allegations made by the complainant overlap with the Personal Injuries complaint which was made in February 2021 and I therefore cannot consider anything before that date. Furthermore, they submit that that none of the alleged contraventions were not made within six months of the referral of this complaint on 8 May 2023.

Findings and Conclusions:

Section 41(6) of the Workplace Relations Act 2015 as amended states:

(6) Subject to subsection (8), an adjudication officer shall not entertain a complaint referred to him or her under this section if it has been presented to the Director General after the expiration of the period of 6 months beginning on the date of the contravention to which the complaint relates.

Having considered all the evidence given, both written and orally I conclude that none of the alleged contraventions took place within six months of the referral of this complaint to the WRC. It is therefore out of time.

Summary of Complainant’s Evidence: the complainant submits she made complaints to the respondent under the Safety, Health and Welfare at Work Act in 2019, 2020 and twice in 2022. She alleges the employer does not exercise a duty of care and does not account for industry specific hazards associated with the digital workplace. She alleges that she was unfairly dismissed, demoted and given different duties because of active legal proceeding which include a claim of negligence under the Safety, Health and Welfare at Work Act. The penalisation started in 2020 and went on until January 2023 when she wrote to her team leader.

Summary of Respondent’s Evidence: the respondent submits that any part of this complaint up to February 2021 were part of the Personal Injury complaint which has been heard. Furthermore, the respondent submits the referrals made by the complainant are not protected disclosures and the last such complaint was in October 2022 which is more than six months before the complaint was referred on 8 May 2023 and as such is out of time. Also, the complainant was not penalised because of the complaints made by the complainant.

Findings and Conclusions: Section 28 (4) of the Safety, Health and Welfare as Work Act 2005 states: “A rights commissioner shall not entertain a complaint under this section unless it is presented to him or her within the period of 6 months beginning on the date of contravention to which the complaint relates or such further period not exceeding 6 months as the rights commissioner considers reasonable.”

Having considered all the evidence given, both written and orally I conclude that none of the alleged contraventions took place within six months of the referral of this complaint to the WRC. It is therefore out of time.                                 

Summary of Complainant’s Evidence: the complainant alleges discrimination on the grounds of her ethnicity in relation to promotion, training and that she was harassed She is originally from Poland and speaks Russian. Discriminatory incidents referred to are:

-          Being denied access to the workplace on 16 March 2023,

-          Her Supervisor saying she was sympathetic to the Ukraine. In Summer of 2022 there was a wider discussion in the office about the war in Ukraine,

-          In September 2017 HR refused to continue paying her wages to a Polish account. This inconvenience would not have happened to anybody who had an Irish bank account,

-          The complainant had difficulties accessing health care in Ireland in 2017 and the first half of 2018,

-          The complainant says she was treated differently when she was not invited to team meetings in 2022. From November 2022 she was isolated.

Summary of Respondent’s Evidence: the respondent submits the complainant was not discriminated against and they had a strong objection to the complaint on the grounds of race being made public.

They said the complaints were out of time and she had not established a prima facie case of discrimination.

Findings and Conclusions: Most of the events referred to by the complainant are out of time. The only events which are in time are those relating to team meetings and interaction with team members. From the evidence given by the complainant I conclude that she has failed to demonstrate a prima facie complainant of discrimination.

CA-00056542-001 - Unfair Dismissals Act: for the reasons given above I find the complainant was dismissed by reason of redundancy and was not unfairly dismissed.

CA-00056542-002 – Minimum Notice & Terms of Employment Act: for the reasons given above I find the complaint is not well founded.

CA-00056542-003 – Terms of Employment (Information) Act: for the reasons given above I find the complaint is not well founded.

CA-00056542-004 – Safety, Health & Welfare at Work Act: for the reasons given above I find the complaint is not well founded.

CA-00056542-006 – Employment Equality Act: for the reasons given above I find the complainant has not established a complaint of discrimination.

Dismissed by reason of redundancy