ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00002841
Complaint for Resolution:
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
18th April 2016
Date of Adjudication Hearing: 20th October 2016
Workplace Relations Commission Adjudication Officer: Seán Reilly
In accordance with Section 80 of the Workplace Relations Act 2015 and Section 8 of the Unfair Dismissals Act 1977, following 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 complaints.
The Complainant was employed by the Respondent from 26th August 2013 to 11th March 2016 and her weekly rate of pay was €517.83c. The Complainant was submitting that she had been unfairly dismissed by the Respondent and the Respondent was submitting that she had been properly made redundant by them.
Summary of Complainant’s Case:
I was the only Travelling Visual Merchandiser with the Company. I could be deployed in any part of Ireland and sometimes in Britain. I was out of work with pregnancy related illness from 7th August 2015 and I was ready to return to work on 11th February 2016. However, I was told that my position had become redundant. I asked if I could be given a job as a visual merchandiser in one of the client company stores and I was told that no such job was available. I had trained many of the visual merchandisers who are in client stores and I have more senior service than all of them. I believe that I could have been given a job of this nature. If a redundancy existed, I should not have been selected. I believe that my maternity and my pregnancy may have been factors in the decision to select me for redundancy. A Redundancy payment was transferred to my Bank Account electronically. It remains in my Bank Account untouched and can be returned to the company, when and if required. My representative wrote to the company, along the lines outlined above but failed to get a response.
IWU said that as a Visual Merchandiser the Complainant travelled around and worked in several stores where the Respondent supplied their products and they provided a list of the 20+ stores she visited as part of her job. IWU said the Complainant was paid €27,000.00c per annum; she had the use of a Company vehicle, the benefit of a health insurance policy and a death in service policy.
IWU said the Complainant informed the Respondent of her pregnancy in February 2015 and she said she noticed that her job was made more difficult after this. She had to visit more stores, and was only allocated 1.5 hours per store. She said that this reduced her break times and some times she was deprived of a lunch break.
The Complainant referred to an incident she said occurred in one of the stores she visited in April, when she said she pointed out to that Store Manager that moving the product up and down the stairs was difficult in her pregnant state and she said that she was abused by that Manager. She said that she reported this to the Respondent, but she felt she did not get back up support and she refused to go to that Store again. She said that however her named Line Manager instructed her to go to this Store one month after this incident.
IWU said there was a decline in relations between the Complainant and this Line Manager and they submitted a list or string of emails to demonstrate this.
The Complainant was off work due to pregnancy related illness from 7th August 2015 and she went on maternity leave from September 2015. The Complainant was due and ready to return to work on 11th February 2016, but she was told that her job had become redundant. She asked if she could have a job as a Virtual Merchandiser in one of the Respondent’s concessions, but she was told that only a part-time work was available. IWU said the Respondent did offer her a part-time job on top of her redundancy (payment). IWU said the Complainant had trained many of the virtual merchandisers and she had more service than all of them and she could have easily done their job.
IWU said if a redundancy did exist, the LIFO (last-in-first-out) principle was not applied and they said the Respondent appears to have no rational reason for selecting a senior employee for redundancy, apart from her pregnancy/maternity issues.
IWU said the Respondent imposed a redundancy on the Complainant, by electronically transferring a redundancy payment of €3,167.30c to her bank. The Complainant rejected her selection for redundancy and she holds the redundancy payment to this day, with a view to returning it to the Respondent.
IWU informed the above views to the Respondent by letter of 6th April 2016, and they stated the redundancy offer was not acceptable and that the monies involved remained untouched in the Complainant’s Bank Account and could be returned to them. IWU received a response from the Respondent on 29th April, and they said in this the Respondent implied that the Complainant was happy to accept her redundancy and to reject the part-time job offer, but IWU said this claim was false
IWU said that the Complainant became aware that her job was advertised on the jobsireland.ie website that was displayed on 9th May 2016 and she submitted a copy of same. IWU said the Respondent could have contacted the Complainant and offered her this job, but they did not.
The Complainant said that contrary to the submissions of the Respondent there was not a significant reduction in sales the reverse was the case and sales had actually increased. (This was denied by the Respondent). The Complainant questioned why she was the only employee made redundant and she said that she is gone from the employment even though she was longer in the job than any of the others performing the same work. She also said that her named Line Manager was not getting back to her on any issue and the relationship got progressively worse.
IWU submitted the following:
The redundancy was false
The Complainant’s selection for redundancy (if it was really required) was unfair
The Complainant was in fact dismissed and not by reason of a genuine redundancy
The Complainant believes that her dismissal was unfair and was related to her maternity / pregnancy
IWU and the Complainant sought a finding and decision that her dismissal was unfair for any or all of the foregoing reasons and she sought redress in the form of compensation.
The Complainant gave evidence of her efforts to secure alternative employment and mitigate her losses.
Following the submissions of the Respondent IWU submitted the following on behalf of the Complainant.
On the question of sales figures being down, IWU said this question to justify her dismissal only arose at the Hearing. The Complainant acknowledges that sales fell in early 2015, but states they rose again in April 2015
In relation to her named Line Manager being ‘shocked’ when the breakdown in relations between her and the Complainant was discussed with the Finance Director, the Complainant states that the Line Manager neglected to contact her after her dismissal to inform or offer her a new position.
The Complainant also questioned the Respondent view on her job becoming redundant. She has contacted various stores and the information she got indicates that her merchandising role in several stores is still being carried out.
On the question of the job advertised, the Complainant conceded that it was a different job, but she submitted that if additional work was available surely the Respondent could have made the necessary adjustments to facilitate her re-employment.
Summary of Respondent’s Position:
The Respondent was denying the complaint.
The Respondent said that there were a number of errors in the Complainant’s Complaint Form, namely;
Date Notice Received - should be 11 February 2016
Pay Period - should be monthly
Contact Name (details of correct contact name, the Finance Director)
Date of Dismissal - The Complainant was given notice of her dismissal on 11 February 2016.
The Respondent enclosed a copy of correspondence sent to Complainant’s Representative by post of 29th April 2016 and by email to the Complainant on the same date, which read as follows: (I refer to the Complainant as she and others by their title in the following quotation):
“I was disappointed to receive your letter dated 6 April 2016 as we have not received any complaint from her about either the payments made or her treatment and feel that we dealt with this unfortunate situation both professionally and sensitively.
I attach some email correspondence from the Managing Director and myself to herwhich gives the reason for her role becoming redundant. We have found, across the business, that customers are requesting a locally based merchandiser. Her being on maternity leave was not a contributory factor in the decision to make her role redundant, more so it delayed it. I also felt that it was a lot fairer to pay her redundancy and then let her decide if she wished to take on the locally based roles (2 hours per week in two named areas and no travel expenses covered). We considered her email dated 22 February 2016, expressing her regret and seeking her P45, to mean she was not interested in a reduced role and my understanding is that there was no contact between her and her named Line Manager after these emails. However, if she was to be interested in these roles then we would be happy to consider her for same.
In relation to payments, she was paid both the statutory redundancy and her notice period, together with any holiday entitlements (including bank holidays) on her final payslip. In fact, as a gesture of goodwill we did not deduct her float for expenses of €300 from her. There were 11 days holiday paid (3 days from 2015 – carry over allowed at our discretion, 4 days accrued in 2016 and 4 bank holidays) The 78 hours pay (2 weeks) paid her up to the end of her four week notice period (11/03/16) - at which point her P45 was issued.
If she has any more queries than I will be happy to answer them. I would like to take this opportunity to wish her and her family my best wishes for the future and hope that she can find suitable employment.”
The Respondent said that they have employed a number of merchandisers across Ireland and the UK for a 30+ years and they currently employ 6 full-time merchandisers and also part-time ones. The Respondent said the Complainant began employment with them on 26th August 2013 and they said she concentrated on a named Group of Department Stores over a wide area, which she would visit predominantly 2 weekly or monthly depending on their size. She also covered for sick leave and holiday leave in the same group of Department Stores and she assisted with setups at the beginning of each season. She also attended a Trade Show for the Respondent in the UK on one occasion and she may also have visited one UK store on a single occasion.
The Complainant informed the Respondent on 29th April 2015, that she was pregnant and she notified them of her due date of 13th September 2015. She further informed that she wished to commence her maternity leave in the first week of September. At the same time she requested that a plan be put in place that would allow reduced travelling and manual handling for her later stages of pregnancy; this was to enable her to work up to when her maternity leave was due to commence and the Respondent said that this Plan was implemented as requested.
The Respondent said that from the start of 2015 the named Group of Department Stores showed a significant reduction in retail sales, (10 – 12% down on 2014 figures) and the Client insisted that the Respondent put locally based merchandisers in place, to allow for more frequent visits, in the Stores that the Complainant visited, and to address the falling sales. The Respondent did not implement any change at that time as they did not wish to distress the Complainant in her pregnant condition.
The Respondent said that the Complainant requested that she go on maternity leave early as she did not wish to be travelling around the Country during the month prior to her due date, despite her journeys having already reduced. However, she requested that this be not part of her maternity leave as she wished this to be used, as much as possible, after the birth. The Respondent accepted this as long as they received a Doctor’s Certificate, so that she could take the time as sick leave, prior to her maternity leave starting. Ultimately, the Complainant finished working on 7th August 2015.
The Respondent said that after the Complainant began her leave they had to put cover in place and as a result began to employ locally based merchandisers as the Client had requested. They now have all the stores covered by locally based merchandisers and they said as an example, where before a Store may have had a visit once every 2 weeks or more, now all stores are being visited between 2 and 3 times a week, and they said that as a direct result of this retail sales are up 30% on last years figures. The Respondent said this service would have been impossible to provide with a travelling merchandiser and as a result the Complainant’s role effectively became redundant.
The Respondent said that on 11th February 2016, 2 weeks before the Complainant was due to return to work, the Managing Director spoke to her by telephone to explain that her role/job was now redundant and the reasons for this. The Complainant had been due to travel to the Dublin Office for a Meeting; however the Respondent believed it would be kinder to discuss the redundancy over the telephone in order to save the Complainant travelling. At that time the Complainant said that she understood the reason for her redundancy and did not dispute it.
On 12th February 2016, the Finance Director emailed the Complainant with details of her redundancy entitlements, explaining that the only jobs/roles they had were at drastically reduced hours. The Respondent believed that it was fairer to pay the Complainant redundancy and then allow her to decide if she wished to take up a reduced role/job.
On 17th February 2016, the Managing Director further emailed the Complainant to confirm that there were no full-time roles/jobs available and he suggested that there were possibly some locally based jobs/roles available
The Respondent said that on 22nd February 2016, the Complainant requested her P45 and payment of her entitlements and they said they considered this request to mean the Complainant did not wish to take up a reduced role/job in the Company.
The Respondent said that the Complainant received her full entitlements to redundancy, holiday pay and 2 weeks pay (notice pay totalling 4 weeks including 2 weeks while on maternity leave). These monies were paid early, on 26th February 2016, and her P45 issued upon the termination of employment date, 11th March 2016. The Respondent said there was no further communication from the Complainant after this date in relation to available jobs, complaints or appeals against the redundancy, until a letter was received from the Complainant’s Representative dated 6th April 2016.
The Respondent said that based on the foregoing it was clear that the Complainant was not unfairly dismissed by them, but rather was properly and appropriately made redundant.
Following the Complainant’s submissions the Respondent made further submissions.
The Respondent said that the Complainant claimed that their sales figures were incorrect and they submitted a summary of those figures along with a detailed backup for each month’s figures and they said this demonstrated the following:
Sales were badly down at the beginning of 2015.
The Complainant went on maternity leave on 7th August 2015, from that time new locally based merchandisers were put in place, as the Client was insistent that a travelling merchandiser was still not having the desired results. Locally based merchandisers are able to spend longer in store and carry out more frequent visits as they are not spending their time travelling. The Respondent said that as a direct result of this change massive improvements can be seen in sales, especially in 2016.
The Respondent said that the Complainant referred to a breakdown in the relationship between her and her named Line Manager, which she suggested contributed to her selection for redundancy.
The Finance Director said that he spoke to the Line Manager about this and she was shocked, she believes she had had a good working relationship with the Complainant, that she treated her with consideration throughout her pregnancy. The Respondent said the only dispute between the Complainant and the Line Manager appears to be over the accuracy of some paperwork in relation to a return, where the Line Manager has asked the Complainant to ensure that paperwork is correct before leaving the Store. The rest of the emails relate to a Meeting that the Complainant requested to carry out a risk assessment for the later stages of her pregnancy. The Respondent said that the tone of the Line Managers emails are polite and understanding, the Meeting was held and the changes to the Complainant’s workload agreed, without any animosity.
The Respondent reiterated that the advertisement included in the Complainant’s submission is not for a position of a ‘Virtual Merchandiser’ for concession customers; the job advertised was a for Hosiery Sales Merchandiser (a Salesperson) for their named tights range selling to grocery outlets in the North Leinster and Connaught Regions and it was to replace a named former employee who had left their employment. The Respondent said that it was readily obvious this was not at all similar to the role or job performed by the Complainant or in a similar area to where she worked.
The Respondent submitted that the complaint was not well founded and that it should be rejected.
Findings and Decision:
Section 80 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.
Section 8 of the Unfair Dismissals Act 1977 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.
I have carefully considered the evidence and the submissions made and I have concluded as follows.
The main issues that arise, as submitted by the Complainant, for which I am required to issue findings and decisions can be summarised as follows:
What occurred was not a genuine redundancy and accordingly her employment was not genuinely terminated by reason of redundancy.
If there was a genuine requirement for a redundancy then the Complainant’s selection for redundancy was unfair.
The Complainant believes that her dismissal was unfair and was related to her maternity / pregnancy.
The following are my findings and decisions in relation to these 3 issues.
- Was what occurred a genuine redundancy? . Section 7 of the Redundancy Payments Act 1967, as amended by Section 4 of the Redundancy Payments Act 1971 and Section 5 of the Redundancy Payments Act 2003 states:
“…..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:
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
the fact that his employer had 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
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
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.”
Subsection (b) above is the relevant one in the instant case. I note that since the Complainant last worked for the Respondent on 7th August 2015, the work that she performed was subsequently performed differently. Rather than being performed by a travelling merchandiser such as the Complainant, the work was now and still is performed by locally based merchandisers and this in turn meant that stores were now visited 2 or 3 times a week rather that once every 3 weeks which was the case when the Complainant performed the work. The reasons for this and the effects of the change are clearly demonstrated with an increase of circa 30% sales on the previous year’s figures. I am satisfied that this request was originally made by the Client/Customer and for a good business reason. I am also satisfied that this change could not have been done or performed by the Complainant. Accordingly I am satisfied that what occurred in the instant case falls squarely within the definition of redundancy confirmed at subsection (c) quoted above and accordingly the submissions by the Complainant that what occurred in her case was not a genuine redundancy as defined under the Redundancy Acts is rejected by me.
- Was the Complainant’s selection for redundancy unfair? . The Complainant was the only travelling merchandiser in the employment and accordingly her selection for redundancy was in effect self-selecting. I further note that it was not disputed that she had the shortest service of any of the full-time merchandisers. In relation to the question of alternative jobs being offered, it was asserted by the Respondent that the only available alternative work was on a part-time basis of 2 to 4 hours per week in an area some distance from the Complainant’s base with no travelling expenses.
I am satisfied that this alternative work was offered to the Complainant by the Respondent and this offer was repeated in writing in the letter from the Respondent to the Complainant’s Representative in a letter of 29th April 2016. I am not surprised that the Complainant would not be interested in such a position which would be a huge disimprovement in the conditions of employment and pay she had previously enjoyed and I note that the Respondent actually accepted that this was not a realistic option for the Complainant.
The Complainant did not submit details of any other available alternative work that could have or should have been offered to her at the time of the termination of her employment. She did refer to a job that was advertised by the Respondent, stating it was her job and said it was not offered to her. However, following discussion at the Hearing and submissions by the Respondent the Complainant accepted that this was not the same work as she did and was in an entirely different area to that in which she worked. It was also established that this vacancy, which was caused by an employee leaving the employment of the Respondent, only occurred some months after the Complainant had left the employment and accordingly was not available at that time and could not be said to be a factor at that time. I can see no evidence that there was suitable alternative work that was not offered by the Respondent to the Complainant.
Based on the above, the submissions by the Complainant that her selection for redundancy was unfair is rejected by me.
- The Complainant’s dismissal was unfair and was related to her pregnancy/maternity? . I was presented with no credible evidence that the Complainant’s dismissal was related to her pregnancy/maternity. Mere speculation and assertions of discrimination unsupported by evidence cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. The submissions by the Complainant that her dismissal was related to her pregnancy/maternity are rejected by me.
I further note that the Complainant suggested or implied that her selection for redundancy was related to the deterioration in the relationship between her and her Line Manager. Based on the emails submitted to me by the Complainant I accept that this relationship did deteriorate, the emails demonstrate an increasing lack of trust of each party in the other and each is questioning the others motivation. However I have no reason whatsoever to conclude that the Line Manager was involved in the selection of the Complainant for redundancy and the Complainant or her Representative have not suggested that she was so involved, accordingly I do not see this as being a factor in the Complainant’s redundancy or her selection for redundancy.
For all of the forgoing reasons I find and decide that the Complainant was not unfairly dismissed by the Respondent, accordingly the complaint is rejected by me and is not upheld.
Seán Reilly, Adjudication Officer
Dated: 15 December 2016