Complainant

Respondent

Parties

Ciara  Leddy

Aquachem Water Management Dac

Complainant

Respondent

Anonymised Parties

Representatives

Mr. Peter McKenna, instructed by Brendan Hanifin & Co. Solicitors

Ms. Eithne O’Donell, instructed by Alastair Purdy and Co, Solicitors

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-00052901-001

20/09/2022

The Complainant commenced employment with the Respondent on 7th April 2014. The Complainant was a permanent, full time employee, in receipt of an average weekly wage of €788.46. At all relevant times, the Complainant’s role was described as that of “office manager”. The Complainant’s employment was terminated by the Respondent on 9th May 2022 on the grounds of redundancy.

On 20th September 2022, the Complainant referred the present complaint to the Commission. Herein, she alleged that no valid redundancy situation existed prior to her dismissal. In addition to the foregoing, and without prejudice to the same, she submitted that the process utilised in making her redundant was fundamentally flawed and unfair. By response, the Respondent denied these allegations, stating that a valid redundancy situation existed at the relevant time, and that the Complainant was afforded all natural and contractual rights during the process.

A hearing in relation to this matter was convened for, and finalized on, 2nd April 2024. This hearing was convened for, and finalised on, 12th April 2024. This hearing was conducted by way of remote hearing 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. No technical issues were experienced by either side during the hearing.

Both parties issued extensive submissions in advance of the hearing, these submissions were expanded upon and contested by the opposing side in the course of the hearing. The Complainant gave evidence in support of her allegations, while the CEO of the Respondent gave evidence in defense. All evidence was given under affirmation and was opened to cross examination by the opposing side. As dismissal as a fact was accepted, the Respondent accepted the consequent burden of proof and gave their evidence first.

No issues as to my jurisdiction to hear the dispute were raised at any stage of the proceedings.

In evidence, the CEO of the Respondent stated that the Complainant was employed as an office manager at an office of the Respondent, based in Dunboyne, Co. Meath. In or around June 2000, the Respondent entity was purchased and subsumed into a larger corporate entity. Following this merger, four persons, including the Complainant, were employed at the Dunboyne site, with the majority of the Respondent’s operations occurring from a site based in Co Galway. Following the imposition of the restrictions arising from the Covid-19 pandemic, the footprint of the Dunboyne office deceased even further, with the Complainant and one other person being the only employees working from this site.

In or around September 2021, a further company was purchased and merged into the Respondent group. Following the integration of this group, and in light of the rapid expansion of the Respondent in recent times, a review was undertaken of the various functions across  to the group to ensure that there had been no duplications of roles.

As part of this review the Complainant’s role was identified as one that may present such duplication of tasks. In this regard, it was noted that the Complainant was initially engaged as an office manager for the initial, much smaller, operation. Following the successive mergers, much of these administrative duties were undertaken by the support staff of the other operations. In this respect, it was noted that the new operation had the benefit of numerous dedicated functions to undertake the roles that formerly fell within the Complainant’s duties. In evidence, the CEO stated that at his time the Respondent had dedicated HR, Marketing and Health and Safety departments, and that these functions had been removed from the Complainant.

Following this review correspondence was issued to the Complainant, informing her that her role was “at risk” of redundancy. This correspondence was followed by a meeting between the Complainant and the CEO on 30th March 2022. During this meeting numerous alternatives to the Complainant’s proposed redundancy were discussed. Following same, the Complainant issued an email of 4th April suggesting alternative duties she might undertake. Following the same, a further meeting was convened for 8th April 2022, whereby these alternative duties were discussed.   Unfortunately, following a consideration of the same, it was apparent the to the Respondent that each of the duties suggested by the Complainant were being undertaken at other parts of the operations. Nonetheless, the Complainant was offered an alternative to redundancy. This role, described as an office administrator role, was based in Galway for logistical reasons. Following the Complainant’s refusal of the same, her role was deemed to be made redundant. While the Complainant appealed this decision in accordance with the Respondent’s internal policy, this appeal was unsuccessful, and the Complainant’s dismissal on the grounds of redundancy stood.

In answer to a question posed in cross-examination, the CEO accepted that the list of duties described as “office administrator”, closely resembled those of the Complainant. Nonetheless, the Respondent submitted that the Complainant’s role was being completed by others, and that the particular position was no longer required. In answer to a further question posed in cross examination, the CEO accepted that the Complainant was effectively given fifteen minutes notice of her termination following eight years of service. Nonetheless, he stated that it is normal practice that an employee would not be required to work out their notice following a dismissal.

By submission, the Respondent stated that the Complainant’s dismissal occurred following a period of fundamental change in the operation of their business. Following from the same, they submitted that they determined that the Complainant’s role was one that was unfortunately duplicated across the business. Following the same, they engaged in a comprehensive consultation period with the Complainant. Unfortunately, following same, the only available outcome was the redundancy of the Complainant. Having regard to the foregoing sequence of events, they submitted that the dismissal of the Complainant was fair on the grounds of redundancy, and that as a consequence of the same, the Complainant’s application under the Act should not succeed.

In evidence, the Complainant stated that she commenced employment as an office administrator at the Respondent’s premises in Dunboyne, Co. Meath. Two years following the commencement of her employment, she was promoted to the position of office manager. The Complainant’s main duties in this regard were attending to finance, supervision of other office staff and general administrative duties. In 2019, the Respondent was merger with another company. While some of the Complainant’s duties were centralised, such as some finance functions, the Complainant remained busy with the remainder of her duties. Following this merger, the Complainant reported directly to the CEO of the Respondent, and reported that they had a good working relationship following the merger.

In late February 2022, the Complainant had a disagreement with a colleague who felt that work was being unfairly delegated to her. When this matter was reported to the CEO, the Complainant began to notice a deterioration in their relationship from this point.

Shortly thereafter, in March 2022, the Complainant received an email from the Respondent, inviting her to a meeting to purportedly discuss the role of office manager. This email did not mention redundancy or suggest that the Complainant was at risk of losing her job. During the meeting in question, the Complainant was informed that her role was at risk of redundancy, and that she would enter a two-week consultation period. While this development came as a shock to the Complainant, she engaged with this process in good faith, sending a list of additional duties she believed that she would be in a position to undertake. During the follow-up meeting, again scheduled to discuss the alternatives to work, it became apparent that the CEO was unaware of the alternative duties suggested by the Complainant, and clearly had not considered the same at all. Following this meeting, and without any apparent consideration of the alternatives suggested by the Complainant, she received notice, received at 16.44 on 11th April 2022, that she would be made redundant effective from 9th May, and that she was not required to work her notice period. In evidence, the Complainant explained that the effect of this communication was that she was given 15 minutes notice to leave a job in which she had worked dutifully for eight years. Following receipt of this correspondence, the Complainant appealed the decision in accordance with the Respondent’s internal procedure. Unfortunately, this did not uphold the Complainant’s appeal, and her dismissal was deemed to stand.

By submission, the Complainant stated that she dismissal was both procedurally and substantively unfair. Regarding the fact of redundancy situation, she submitted that the her duties were still required completion by the Respondent. In this regard, the Complainant opened the alternative role of office administrator that was offered to her during the process. She submitted that this role contained, on an almost verbatim basis, the list of duties attributable to her previous role. In addition to the same, while the Complainant accepted that the Respondent’s main place of business was now based in Galway, the Respondent had no intention of closing the Dunboyne office, and were in fact renovating the same with a view to expansion shortly prior to her dismissal. Regarding the process, the Complainant submitted that the Respondent did not consider any of the alternative to redundancy suggested by her during the process. In this regard, they submitted that the process was simply a “box ticking” exercise, and that the Respondent had entered the same with the decision already made.

In answer to a question posed in cross-examination, the Complainant accepted that she had been working on ISO certification over the previous number of months, and that this certification had been achieved prior to her dismissal. Nonetheless, the Complainant maintained that her role and duties remained in being, and that she remained busy until the day of her dismissal.

Regarding the present case, the Respondent has submitted that the dismissal of the Complainant was fair for the purposes of the impleaded Act, on the grounds of redundancy. In this regard, they submitted that the Respondent organisation had experienced significant change in the months prior to the Complainant’s dismissal. Following a review of their operations, they submitted that many, if not all, of the Complainant’s duties could be completed by various central functions within the group. They further submitted that following a series of mergers, their base of operations had moved across the country and that they were in the process of winding down the Complainant’s site. By response, the Complainant denied that a valid redundancy situation existed and that her role still existed within the Respondent organisation. In addition to the same, she submitted that the Respondent did not engage in any meaningful consultation with her in relation her purported redundancy, and that the decision to dismiss had been effectively made prior to any engagement with the process.

In this regard, Section 6(1) of the Unfair Dismissals Acts provides that,

“…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 Acts expressly lists “redundancy” as a ground of dismissal which shall not be deemed to be unfair. In a situation whereby the Respondent can demonstrate that such a redundancy is substantively and procedurally fair, they may rely on the defence afforded by Section 6(4)C of the Act. In this regard, it should be noted that Section 6(6) of the Acts provides that the onus of proof in relation to the same lies with the Respondent.

Section 7(2) (as amended) of the Redundancy Payments Acts provides that,

“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-

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.”

In the matter of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated 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”.

Regarding the instant matter, it is apparent that the Respondent underwent a significant series of changes prior to the Complainant’s redundancy. In this regard, it is noted that the Respondent, while previously operating as an independent entity, merged with a larger organisation prior to the Complainant’s dismissal. While the Respondent continued as a discrete corporate entity, it is common case that many of the administrative functions of the same were thereafter shared across a larger group of companies. In this regard, the Respondent has submitted that the Complainant’s role was effectively made redundant as a consequence of the efficiencies achieved by this centralisation of administrative tasks.

In this regard, it should be noted that the foregoing situation represents a valid ground for redundancy, and one that commonly occurs following the merger or acquisition of corporate entities. In the matter of Component Distributors (CD Ireland) Ltd -v- Brigid (Beatrice) BurnsUDD1854, the Labour Court accepted that “the Respondent was entitled to restructure its business and reduce its workforce if necessary”. Notwithstanding the same, the Court went on to state that while,

“…the Respondent was entitled to decide on the most appropriate means of achieving its operational requirements, its entitlement in that regard is not unfettered. The right of the Complainant to retain her employment must have been taken into consideration. That necessarily obliged the Respondent to look at all available options by which this could be achieved.”

During the hearing, the Complainant submitted that her role was nor in fact being made redundant nor were her duties being assigned to others within the group of complaint. In this regard, the Complainant submitted that the Respondent was simply seeking to unilaterally amended her core terms of employment. In this regard, she opened the job description of an office administrator role that was offered to her during the process. She submitted that this role was almost identical to her former role, aside from the fact that it attracted a significantly reduced salary and was based in an entirely different location. Having examined this document, is in noted that the same is strikingly similar to the list of duties drawn up by the Complainant as part of the process. This indicates that while the Respondent intended for the Complainant’s role to be completed from the Galway office, the staff at that location could not actually cover all of the Complainant’s duties, and a person would have to be hired to complete the same. Following from the same, it cannot be said that the Complainant’s role was being made redundant or that it was intended to that he duties were to be completed by other within the existing workforce. Rather, it is apparent that the Respondent sought to unilaterally imposed a significant alternation to the Complainant’s place of work and rate of pay, two central aspects of any contract of employment.

In addition to the foregoing, the Respondent has submitted that they were seeking to centralise the administrative operations in the Galway office, and that they intended to move the entirety of such support functions to that site. Again, this appears to be a reasonable development given the changes experienced by the Respondent. Following the merger of two companies, management will often seek efficiencies in their support function. Often times this results in employees transferring into a situation whereby they are put at risk of redundancy. However, regarding the particular facts of the instant case, certain issues arise for the Respondent. In this regard, it is noted that the Respondent legal entity continued to operate as a distinct corporate entity within the Respondent group, with many of the particular administrative duties of this entity remaining. In addition, it is noted that rather than seeking to reduce the activities of the Dunboyne office, the Respondent was seeking to increase the use of the space. Finally, from the evidence of the Complainant, it is apparent that all of her duties, and indeed the duties of the proposed new role, could be completed from the Dunboyne office without any significant interruption to the Respondent’s activities.

Having regard to the accumulation of the foregoing points, I find that no valid redundancy situation existed in respect of the Complainant’s at the time of her dismissal. In such circumstances, I find that the dismissal of the Complainant was unfair for the purposes of the impleaded Act and her complainant is duly deemed to be well-founded.

I find that the Complainant was unfairly dismissed within the definition of the Acts and consequently I find that her application is well-founded.

In relation to redress, Section 7(1) empowers me to order re-instatement, re-engagement or a payment of compensation to be made to a successful Complainant under the Act. Given that neither party wished for the employment relation to recommence, compensation is the most appropriate redress in this circumstance.

In calculating such compensation, regard must be had to the Complainant’s attempts to mitigate her losses following his dismissal. In this regard the Complainant submitted evidence of her efforts to secure alternative employment following her dismissal. In this regard, it was submitted that the Complainant found alternative employment within two months of her dismissal. Notwithstanding the same, the Complainant submitted that this role attracted a lower rate of pay than her previous employment.

Having regard to the foregoing, I award the Complainant the sum of €6,000 in compensation. For the avoidance of doubt, this payment is in addition to the payments already received by the Complainant.

Redundancy, Valid Grounds, Merger