Complainant

Respondent

Parties

Lea  Daynes

Hb Expert Limited t/a l’ombre

Representatives

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-00065464-001

16/08/2024

The Complainant commenced her employment as a Salon Co-Ordinator with the Respondent on 20 October 2021 on a part-time basis. She initially worked for 18 hours per week but her hours were reduced in January 2024. She was paid EUR 108 per week thereafter. She stated that she was unfairly dismissed from her employment on 31 May 2024

The Complainant stated that she received a call from the Respondent on Saturday 31 May 2024 to inform her that they had gone into liquidation. She subsequently tried to telephone the Respondent the following week to get further clarity on the situation but found that she had been blocked on the Respondent’s phone. She stated that she later learned that most of the staff were taken on by another company owned by the same Directors.

The Complainant also alleged that there had been ongoing difficulties with the employment relationship after a new manager started there. She further asserted that allegations of bullying had been made that were not investigated properly and that this led to there being a very difficult working environment and resulted in her feeling very isolated.

The Respondent did not attend on the day of the hearing to give evidence.

The Law

Section 6 of the Unfair Dismissal Act states inter alia

 (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.…

(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 as amended by the Industrial Relations Act 1990, 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.

(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,  

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal.

(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

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act 1993) of section 7(2) of this Act.”

Section 7 of the Redundancy Payments Act, 1967, as amended, 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.”

Findings:

I accept the Complainant’s evidence that the Respondent went into liquidation and find that her role was therefore redundant.

It is evident from a review of the relevant case law however that when redundancy is cited as the reason for the termination of employment, it is necessary not only to satisfy the definition of redundancy but also to demonstrate that the Complainant was fairly dismissed.

In the first instance, I noted that there was no prior consultation with the Complainant and that she was not informed of the dismissal until 31 May 2024, some four days after her role had been ceased on the Revenue website.

The necessity to consult with an employee whose position is at risk of redundancy has been set out by the Labour Court decision in Student Union Commercial Services v Traynor UDD1726, wherein it was stated that there was a requirement “to demonstrate that the Respondent carried out a thorough exercise to consider alternative options/suggestions. The Court can accept that had such an exercise being carried out it may not have identified any alternative positions suitable to the Complainant, however, it seems clear that no such exercise was engaged in. On that basis the Court finds that the approach adopted by the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a) of the Act, the dismissal of the Complainant was unfair.”

If the Respondent had engaged in a proper consultation process in the instant case and sought to avoid dismissing the Complainant, they should, in my view, have discussed the possibility of her moving to a different group company as many of her colleagues who worked there did.

As well as the failure to consult and engage with the Complainant, I also note that there was no avenue of appeal provided to her when she was dismissed. Such a process could have given her the opportunity to highlight her willingness to work in the other group company that her colleagues were transferred to.

Considering all of the foregoing, I find that the Complainant was unfairly dismissed in light of the Respondent’s breaches of 6 (7) of the Unfair Dismissals Acts 1977 -2015.

Section 7 of the Unfair Dismissals Act, in relevant part, states that:

(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, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or 

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(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, 

(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 financial loss referred to in that subsection was attributable to an act, 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,

(f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal. 

3) In this section—

“financial loss”, in relation to the dismissal of an employee, includes 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 1973, or in relation to superannuation;

“remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.

Findings:

As the Respondent is in liquidation, the only appropriate remedy in this case is compensation

In calculating an award of compensation, I have regard to the fact that the Respondent acted wholly unreasonably both in peremptorily dismissing the Complainant and not engaging in any consultation process whatsoever prior to her redundancy. The peremptory nature of the dismissal was underscored by the failure to offer an appeal of the decision to dismiss her.

As the Complainant’s employment ceased on the grounds of redundancy, I find that she made no contribution to the termination of her employment.

I also believe that her efforts to secure other work were adequate.

In addition, I have regard to the fact that she did not receive her statutory redundancy entitlements.

Considering all of the foregoing, I make an award of €5,000 in respect of the unfair dismissal.