ADJUDICATION OFFICER DECISION
Adjudication Decision Reference: ADJ-00005507
Complaint(s)/Dispute(s) 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
Date of Adjudication Hearing: 26/01/2017
Workplace Relations Commission Adjudication Officer: Caroline McEnery
In accordance with Section 41(4) of the Workplace Relations Act, 2015 following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Complainant’s Submission and Presentation
The Complainant is the Shop Manager of the Respondents Company.
The Complainant claims that her redundancy was not fair both procedurally and substantively.
The Complainant states that she was the only employee who was made redundant and a part time employee remained working in the shop.
The Complainant states she was not offered alternative work and that there was no consultation process with her prior to her redundancy confirmation letter which she received in August 2016.
The Complainant was out sick prior to her redundancy occurring.
The Complainant’s union representative requested data in relation to justifying her redundancy and she received details in relation to a pay and terms and conditions decision which was issued by the WRC previously but they did not send them objective grounds for the redundancy and justification for same.
The Complainant appealed her redundancy decision and an opportunity for an appeal hearing was not given to her.
The Complainant’s representatives claim that the upcoming review that the board plan to do about the future plans for the shop should have been done prior to the decision to make her redundant.
Respondent’s Submission and Presentation
The Respondent states that this employee has been made redundant fairly due to the financial and economic situation of the company.
The Respondent claims the club was under financial pressure and had only made an overall profit of 20,000 in the proceeding 4 years.
The Respondent confirmed that they engaged with staff since February 2015 including the complainant with regard to redundancy.
The Respondent claims that they dispensed with the role and scaled down the shop.
The Golf Professional who also worked in the shop also left. In August they confirmed that the redundancy would occur.
It is currently off season and the general manager of the company is running the shop with a part time staff member who is working 25-27 hours per week until they decide what to do next.
The Respondent company are considering closing the shop completely or trying to make it possible via a franchise option. Another alternative is to incorporate it into other staff members roles like the bar staff’s role. A will be occurring shortly by the board in relation to the long term plan for the company.
The company contacted the employee during her absence in June and July however they did not mention redundancy or that her job was at risk.
They stated they did not send her to the company doctor to assess her fitness to attend a meeting as they were advised not to do so by their advisors.
This case is referred under Section 13 of the Industrial Relations Act which states that "Subject to the provisions of this section, a rights commissioner shall investigate any trade dispute referred"
In addition the case is referred under:
Section 8 of the Unfair Dismissals Act 1997 which outlines that:
“A claim by an employee against an employer for redress under this Act for unfair dismissal may be brought by the employee before a rights commissioner or the Tribunal and the commissioner or Tribunal shall hear the parties and any evidence relevant to the claim tendered by them and, in the case of a rights commissioner, shall make a recommendation in relation to the claim, and, in the case of the Tribunal, shall make a determination in relation to the claim”
Issues for Decision:
The matter for the adjudicator is to decide if this redundancy was procedurally and substantively fair or if it was an unfair dismissal.
Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
The Complainant started her employment in 2007. For the employer to say that the consultation process started in early 2015 is not acceptable as she did not know her role was at risk of redundancy formally at this stage.
The Complainant was absent from work since May 2016 and was not consulted or notified that her job was at risk until she was notified that her position was being made redundant in August 2016.
There is a requirement to consult with the employee and explore all other options they present prior to the redundancy occurring. This did not happen in this case.
A part time employee was retained in the shop, this position was not offered to the Complainant, nor were other options considered to avoid the redundancy.
The company representatives confirmed that the board have scheduled a meeting to review what they plan to do with the shop in the long term in the coming weeks. It is the Adjudicators view that this review should have been done in advance of making the Complainant’s role redundant.
The explanation given to the employee for the redundancy is failure to engage in relation to pay and terms and conditions negotiations. This is not an acceptable reason for her role to be made redundant and in particular without consulting with her after her long service. The Complainant has secured part time work since her termination. She has also received a redundancy payment.
The Adjudicator finds that an unfair dismissal occurred and therefore awards the employee 12 month’s salary at 3 days a week as she has secured work for 2 days; this amounts to €18,008.64 less the redundancy amount she received of €10,875.08. This totals an amount of €7,133.56 which is compensation and is therefore not taxable.
Dated: 25 April 2017