ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00007106
Complainant Anonymised Parties Respondent
A Radio Broadcaster A Commercial Radio Station
Stephen O'Faolain Brennan & Co. Solicitors and Cathal McGreal BL Neil Breheny of Neil J. Breheny & Co.
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-00009658-001 10/02/2017
Complaint seeking adjudication by the Workplace Relations Commission under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003 CA-00009658-002 10/02/2017
Date of Adjudication Hearing: 09/11/2017 and 14/09/2017 Workplace Relations Commission Adjudication Officer: Penelope McGrath BL
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015 and in particular the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing. In particular, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form her place of employment wherein she had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 24th of August 2016) issued within six months of her dismissal, I am satisfied that I have jurisdiction to hear the within matter
which was tested through cross-examination.
The Complainant has opted not to proceed with the claim under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003. The fact of a termination of Employment is not in dispute and so the Burden of Proof rests with the Employer to establish that it has acted reasonably and fairly in all of the circumstances.
Summary of Complainant’s Case:
The Complainant makes the case that she was Unfairly dismissed by reason of Unfair Selection for Redundancy.
Summary of Respondent’s Case:
The Respondent has sought to make the case that the Redundancy programme was part of an overall programme that had to be implemented to best meet the Financial circumstances of the Respondent Company.
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of the two days of hearing before me. I have also considered the documentation which has been presented to me. Both parties’ legal representation made opening and closing statements and legal submissions. The Complainant presented as a very capable Radio presenter who has worked in broadcasting since in and around 2001/2002. She has worked with many well recognised Dublin based Radio stations and the breadth of her skill and knowledge is beyond doubt and is confirmed by the Respondent herein. The Complainant came to work with the Respondent Radio station in January of 2015, and her Contract came to be renewed in March of 2016. It is usual for Radio Employment Contracts to be run on a year to year basis in line with the Radio shows and schedules undergoing constant changes as listenership tastes and demands might dictate. Mr. B the Managing Director for the Respondent company is also an experienced broadcaster and has worked in this field in 25 years. He gave comprehensive evidence in relation to how commercial stations operate and I fully accept that it is a very competitive market, not least because the potential listenership has drifted away to other media sources for their entertainment and news updates. The Respondent Station is the newest entrant into the Dublin/Eastern market. The company has never been profitable, but there has been a steady growth in sales and Revenues though these are counterbalanced by increased levies, remuneration costs, Advertisement Agency Commission and other associated commercial costs. The Company hit a highpoint of listenership in and around the last half of 2015 and I have studied the JNLR records which have been provided to me showing the weekly listenership and how that equates in percentage terms. At the time that the Complainant’s Contract came to be renewed in March of 2016, she had no knowledge that the Company was experiencing difficulties. The Complainant I accept would have interpreted her increased salary together with the extension of her Contract for a further year as evidence of her doing a good job and adding value to the Company. The Complainant at that time was presenting live Radio in the evenings (from 7 to 12) as well as doing a specialised (Magazine) hour at the weekends concerning what was happening on the music scene. The Complainant did give evidence that she would have been generally aware that listenership numbers were relatively good and she had the impression that her own listenership numbers were well up on the previous incumbent. The Complainant loved her job and put 50 hours a week into it because she wanted her presentations to be the best that they could be. The Respondent, she believed, was benefiting from her contacts, knowledge and experience in the music world and even though she had no Assistant or Editor or Producer - she was happy in her job. Mr. B on the other hand was monitoring the numbers, and he was of the view that the numbers were not good and that steps needed to be taken to reduce costs. He indicated that from time to time there would be a necessity to have redundancies and explained that in 2013 the Programming Director was made Redundant. Mr. B described how he himself took a cut in salary in 2014/2015 to allow for a little flexibility in the figures. The Financial Controller of the company Ms. AC gave evidence concerning the very tight margins and the inability to get into profit with a year on year loss being the annual picture. Ms. AC was always looking for ways to cut costs and review budgets – she did not however have anything to do with the decisions made concerning the Complainant’s employment. The JNLR records demonstrate a dip in listenership at the third quarter of 2016 (July through September). It was this dip that caused some concern in the Respondent company and in reaction to this, financial cutbacks were sought. The question of Redundancies arose again in 2016 and the Complainant’s position came into focus as she was the last person into the workplace. Mr. B made the point that the Complainant’s live show in the evenings was no longer viable and therefore (and in line with many commercial Radios of that size) the preferred manner for production for the post 7pm hours was by way of pre-planned music with pre-recorded introductory segments. Mr. B gave evidence that it would only take one Contractor about 6 hours to put together all the recordings, introductions, links and segments required for twenty-four hours of Radio Air time. Mr. B gave evidence that there was a process entered into in and around June of 2016 for the purpose of making savings in the remuneration bill. When cross examined in relation to the process adopted, Mr. B accepted that the review was conducted primarily by himself in conjunction with other members of the management and financial team Mr. C and Mr. W and Ms. C - (though Ms C categorically stated she had no part in any decision-making process concerning the Complainant). I note that there is no paperwork trail relating to this part of the process and I have no real idea whether any of the Complainant’s colleagues were identified for the purpose of possibly being made redundant. There was no criteria identified for the retention of employees or otherwise. It is common case that the Complainant herself was not invited to give any comment in relation to her job and skill set and the reason for that appears to have been the sensitive and precarious nature of the company figures – per Mr. B. The decision was reached to change the format of the Radio being presented in the evenings to the pre-recorded format, and the automatic next step it seems was to make the Complainant Redundant. There was no examination of the prospect of re-distributing work or re-structuring the programming schedule or in any other way to utilise the broad range of skills that the Complainant brought to the Broadcasting Station. Her Employment was terminated without discussion on the 16th of August and followed up with a letter dated the 17th wherein the position of presenter of Nova nights and weekly entertainment show was described as being made redundant by reason of a reorganisation being implemented across the station by reason of ongoing challenging market and economic position. In evidence, the Respondent’s Managing Director confirmed that there had been a move within the Radio Station to use Contractors and in this context, Mr. B named up to eleven names of those persons who now operate or who have operated within the Respondent Radio station on a Contract basis (since 2015). This work ranges from well-recognised scheduled Broadcasters to freelance Broadcasters to Sales executives. Many of these Contractors pre-dated the Complainant’s own departure date in December of 2016 but the drift in favour of non-contracted Employees is clear. The Complainant’s Counsel questioned the exact status of these persons and felt that the lack of evidence to disclose what their services were on an individual Contract basis was noteworthy. Mr. B said that there was always demand for freelance work in the station and that the complainant was as welcome as anyone to make herself available for this kind of work, though admitted he had not actively sought the Complainant out in this regard and nor had he suggested to her at the time of her departure that work of this type was the way of the future. Most significantly was the Contracting out of the Complainant’s own show time to a third party. At the very least there was a job for six hours a week which the Complainant was more than capable of covering but she was never considered for the position. Equally, when the complainant sought to cover a maternity leave in and around the summer of 2016 her application was never considered. The Complainant knew that there had been a Redundancy in 2015 of the Programme Director but she stated that this did not amount to a culture of Redundancies and the staff in the Respondent Radio Station were not operating under a cloud of uncertainty. The Complainant, in her evidence, stated that she was not forewarned that she was about to be made Redundant. She pointed to all the positive press releases about expansion and increased Revenue and market share which were all contemporaneous with these behind the scene discussions to make her position redundant. The Complainant simply could not understand why she had been singled out and why no consideration was given by her Employer to see what other position might work for the Complainant when everyone agrees she had experience, clout, respect and ability within the industry. No consideration was given to re-training, re-skilling, a reduction in her hours or income – the position was simply terminated. The Respondent did not dispute that fact that there was no consultative process to speak of, and argued that this does not necessarily render the ultimate decision as invalid or unreasonable. The business requirement was for financial cutbacks in a situation where annual loss exceeded the annual percentage increase in what appeared to be healthy enough advertising revenues. The Company it was put to me had to ensure the future of all of its Employees by making one Employee Redundant. The element of being answerable to a Board room and the Shareholders was also a significant consideration. As it happens we now know that the dip in listenership which raised alarm bells in the third quarter of 2016 did not become a trend and it seems that the numbers did improve though I would accept the evidence that Radio as a medium is in a decline. On balance, I have to find that the Complainant was Unfairly dismissed. At the time of her Dismissal she was given no Notice that that her Radio show was under threat and she was given no opportunity to defend her show. A general assertion of financial downturn was put to the Complainant in August of 2016 though this was not detailed at that time. The later attempts to add detail to the financial circumstances which have now been brought to the attention of the WRC have not in fact created the grave image of a Company on the brink of collapse which could only be saved by the eradication of one persons €40,000.00 euro salary. I am obliged to consider the Respondent’s decision to terminate the Complainant’s Employment by reason of Redundancy at the time the decision was made. I accept that the format for the evening show might have had to change but I do not think it reasonable to have disallowed the Complainant any opportunity to be part of that changed format. She was as capable of pre-recording as anyone was – and possibly more so. In addition, where so much work was being given to freelance Contractors there could have been some thought put into giving the Complainant a share of the work. That there was a re-structuring going on, is accepted. but there is no justification for not giving the Complainant some opportunity to become part of the newly structured format. We will never know whether suitable alternative work would have been acceptable to the Complainant as she was quite simply never given the chance to consider same. In assessing a remedy I am conscious of the fact that the complainant was only with the company for just over a year and a half before she was made Redundant. The industry is not an easy one with broadcasters constantly moving between stations with no real guarantees or job security. I must also be mindful of the fact that the Contract to which she was working at the time of the Redundancy was only for a year and I cannot guess as to whether it would have been renewed at the end of that period or not. In those circumstances, I will not direct that the Complainant should be -re-instated and will instead direct that she be compensated for her financial loss. The Complainant lost six months of certain employment and has not been in a position to fully recover these losses since that time.
The Complainant withdrew her claim under Section 14 of the Protection of Employees (Fixed-Term Work) Act, 2003. Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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. In the circumstances I award the Complainant the sum of €30,000.00
Dated: 24th January 2018 Workplace Relations Commission Adjudication Officer: Penelope McGrath BL