ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00008125
Complaint(s):
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-00010787-001 | 12/04/2017 |
Date of Adjudication Hearing: 15/12/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Procedure:
In accordance withSection 8 of the Unfair Dismissals Acts, 1977 - 2015, andfollowing the referral of the complaint 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.
Background:
The Complainant commenced employment with the Respondent on 1 September 1997, initially under a part-time contract, however, this developed into a full-time contract on 15 December 1997. In 2000 the Complainant worked in the Insurance Section for the Respondent while also providing cover to the Teller positions when required, such as during lunch breaks or due to staff shortages. During this time the Complainant was a ‘Senior Clerical Officer – Teller’. In 2007 the Complainant was appointed as ‘Senior Clerical Officer – Insurance’, a role she held until April 2017. The Complainant was the only individual working in the Insurance Section during this time as it was a stand-alone role. In 2012 the Complainant’s weekly working hours were reduced to 32.5 hours from 37 hours by agreement with the Respondent. The Respondent, operating in the Credit Union sector, stated that a series of dramatic changes have taken place over the previous 5 years. Firstly, the Credit Union and Cooperation with Overseas Regulators Act 2012 (CUCORA), resulted in tighter internal controls, risk management and compliance frameworks for Credit Unions. Secondly, the economic climate has been very challenging for the Respondent due to the financial crisis in 2008, increased competition, changing member needs, the need to diversify service delivery channels, IT challenges and more. Thirdly, the Respondent stated that they also faced consolidation challenges, having grown from a single branch to five branches covering a wider geographical area, serving approximately 30,000 members and managing €187 million in assets. Following an independent review carried out in April 2016, which identified excess resources in the insurance section of the business, the Respondent provided the Complainant with an opportunity to transfer to the new Member Service Desk which had been created in conjunction with the move to a new building in May 2016. Having initially refused the position offered at the Member Service desk, the Complainant subsequently agreed to take up the position on a trial basis. The Complainant worked on the Member Services Desk for three days before commencing sick leave on the basis that she had an issue with the movement required in the position. The Complainant returned to work following the completion of an Occupational Health Assessment. However, her return was to her original role in insurance rather than the new role at the Members Services Desk. The Respondent stated that, on the back of the first Independent Review and in order to ensure viability and sustainability, the Respondent conducted a second Independent Review , which saw the introduction of the first ever voluntary severance programme in its history. This restructuring included the introduction of 7 new roles, arising from the need to enhance its management structure and its skills for its future in November 2016. The restructuring also identified a reduction of 10 staff members who were to be affected by these rationalisations across multiple functions of the business including Clerical, Lending, Tellers, Management, Finance and Insurance, where the Complainant worked. When the restructuring and severance programme was formally announced in November 2016, the Complainant was not at work, having commenced sick leave the previous August, due to pre-notified surgery. While the Complainant was on sick leave, she was contacted by the Respondent on a number of occasions to advise and inform her of the changes which were going to take place. According to the Complainant, she was unable to engage with this correspondence due to the physical and psychological effects of her complex medical procedure. She stated that this contact resulted in further anxiety and worry for the Complainant, in a situation where she was already feeling overwhelmed by the situation. Between November 2016 and April 2017 an extensive engagement process took place involving the Respondent and all affected staff. This process included referral to Conciliation in the WRC. During this process, the staff were represented by SIPTU. The initial announcement regarding the proposed restructure, including details in relation to Voluntary Severance, issued to all staff on 21 November 2016. On 22 December 2016, in common with other staff who were in scope for Voluntary Severance, the Complainant received correspondence from the Respondent indicating that the closing date for applications for Voluntary Severance was 13 January 2017. On the 6 January 2017, the Complainant received an email detailing that she was part of the re-structuring programme and was offered a voluntary severance package of 4 weeks’ pay per year service. This communication offered the Complainant an opportunity to meet with the Respondent's independent HR Advisor. It also confirmed to the Complainant that she had the option of accepting Voluntary Severance by 13 January 2017. However, it further stated that, following the closing date of 13 January 2017, the Respondent would be proceeding with the rationalisation element of the restructuring programme on a compulsory basis. On 12 January 2017, the Complainant received further correspondence from the Respondent indicating that, following representations made by SIPTU, the terms of the Voluntary Severance package was being increased from 4 to 5 weeks per year of service and the initial cap of 2 years maximum was being removed. This communication advised that the closing date for the now enhanced Voluntary Severance package remained 13 January 2017. On 13 January 2017, SIPTU wrote to the Respondent raising several issues, including the Voluntary Severance scheme. Following receipt of this correspondence, a Conciliation Conference took place between the parties at the WRC on 8 February 2017. At this Conciliation Conference the Complainant’s Trade Union representative challenged the decision to terminate the Complainant’s employment. The Complainant had also put forward alternative solutions to the Respondent, however, the Respondent contends that they never received such proposals. It was agreed at the Conciliation conference that the Respondent would meet with the Complainant and her representative to discuss the particular situation pertaining to her. This meeting took place on 10 February 2017, during which the Complainant outlined she would not be accepting the redundancy package as losing her job would negatively affect her personal circumstances. Furthermore, it was raised that the Complainant was fully competent and had many years’ experience which could be used elsewhere in the business. On 11 February 2017, the Complainant received a letter from the Respondent outlining the decision to terminate her employment by way of compulsory redundancy on 7 April 2017. The Complainant was offered the right to appeal. The Complainant availed of this option and her appeal was heard by an independent Third Party on 10 March 2017. The decision of the independent Third Party, which upheld the original decision to terminate the Complainant’s employment issued on 16 March 2017. On 29 March 2017, the Complainant received correspondence from the Respondent outlining that her termination date remained 7 April 2017. On 4 April, the Complainant’s Trade Union representatives wrote to the Respondent to the effect that the Complainant was not willing to accept compulsory redundancy, wished to remain in her post, would consider alternative employment and would engage in relevant training. By way of letter dated 5 April 2017, the Respondent replied to the effect that no vacancies existed in areas where the Complainant might be redeployed to and/or retrained in and that the Complainant was not qualified for vacancies that existed in lending. The Complainant's Trade Union representative replied on her behalf on 6 April 2017 to the effect that the Complainant was not accepting redundancy and was lodging a complaint of Unfair Dismissal with the WRC. The Complainant’s employment was terminated on 7 April 2017 and the Respondent issued the redundancy cheque to the Complainant. However, the Complainant has not cashed this cheque to date. |
Summary of Complainant’s Case:
The Complainant contended that when the review of skills and competencies, which arose out of the second independent review, was conducted by the Respondent, staff were required to participate in a review process which involved gathering information on skill sets. However, when this review was taking place, the Complainant was on sick leave. The Complainant was absent from work from 8 August 2016, an absence which had been advised to the Respondent as far back as February 2016. The Complainant contends that, due to this absence, she was unable to fully engage with issued correspondence or compose an informed response. One of the outcomes of the review was that the volume of work in the insurance section was low. Based on this, the Complainant received a letter dated 21 November 2016 outlining an approved re-structuring plan which identified the need for redundancies in a number of areas. However, the Complainant claimed that, while the Respondent was unable to identify the exact number of voluntary redundancies required in November 2016, the closing date for application for a Voluntary Severance was set as 13 January 2017. The Complainant stated that, notwithstanding the fact that she was on sick leave throughout this period, she was contacted by the Respondent on a number of occasions in relation to the restructure/Voluntary Severance. The Complainant stated that she was unable to engage with this correspondence due to the physical and psychological effects of her complex medical procedure. The Complainant contended that this contact resulted in anxiety and worry and resulted in her feeling overwhelmed by the situation. The Complainant stated that she was surprised at being selected for redundancy, given that in April 2016 she had been in talks with management on the proposed location of her work area in the new office. The Complainant contended that her work would have involved general member queries, account opening, educating new members and would have been a continuation of the Insurance role. The Complainant stated that, at the WRC Conciliation Conference on 8 February 2017, her Trade Union representative challenged the Respondent’s decision to terminate her employment. The Complainant stated that alternative solutions in relation to her situation were put forward, however, she contended that these were not considered as the Respondent prevented discussion on those matters. The Complainant stated that, at a meeting with the Respondent on 10 February 2017, which she attended with her Trade Union representative, she advised that she would not be accepting the redundancy package as losing her job would negatively affect her personal circumstances. The Complainant contended, furthermore, that she advised the Respondent she was fully competent and had many years’ experience which could be used elsewhere in the business. However, the Complainant stated that despite having raised those matters at the meeting, she received a letter the following day (11 February 27) from the Respondent outlining the decision to terminate her employment by way of compulsory redundancy on 7 April 2017. The Complainant stated that while she was allowed to appeal this decision, it was upheld by the appeal process and the termination of her employment was confirmed as 7 April 2017. In support of Complainant’s claim against to termination of her employment by the Respondent, it was stated that she had almost 20 years’ service with the Respondent. The Complainant was flexible in her role over the years and was also young enough to upskill if necessary to fulfil the requirements of other roles. In this regard, the Complainant exampled one lending role which was vacated shortly after the restructure took place. However, she was not considered for it as she were not qualified for the position. The Complainant referred to the Respondent’s “Further Education and Academic Leave” programme which could have been utilised to support her in requiring the necessary upskilling. In relation to the Complainant’s redundancy and termination of employment, it was contended that there was no evidence to suggest her length of service was taken into consideration. The Complainant stated that, while the Procedural Agreement is silent on a Last in First Out system when determining compulsory redundancies, this does not preclude the use of such a method for selection. The Complainant contended that where no redundancy procedure is identified, LIFO would be the obvious and fairest option to use. According to the Complainant if this method had been utilised then she would have retained their job and others who expressed an interest in leaving would have happily exited. Furthermore, the Complainant claims she was not considered for a Teller position despite there being email evidence suggesting Tellers were under pressure in July 2016. The Complainant contended this would indicate work was available in this area. The Complainant also outlined that two Teller positions were advertised and subsequently recruited for, in July 2017. The Complainant stated that when she was on sick leave for much of 2017, some of her work was covered by another employee in conjunction with their own duties. The Complainant stated that as she was also absent during the job/skill review process, the Respondent did not have her contribution and, therefore, could not fully appreciate the full extent of her role. In response to the Respondent’s submission, the Complainant outlined there was no attempt to argue the necessity of the restructuring plan which was chosen. The Complainant stated management have the right to manage but the responsibility to manage fairly is incumbent upon them. The Complainant contended, that while the package offered was voluntary, it concentrated on certain functions and, therefore, certain staff were targeted by the Respondent. The Complainant stated that, notwithstanding her skills and experience, she was not offered any option other than redundancy. The Complainant contended that when she commenced the Senior Clerical Officer position in 2012, ‘Insurance’ is mentioned as an addendum to the title of that role. However, she stated that in reality, the role incorporated much more than this. The Complainant quoted from this document to the effect that she was “accountable to the Office Administrator and the Credit Union for carrying out a range of administrative and operational activities that contribute to the effective running of the Credit Union. This may from time to time include the supervision and training of employees in a more junior role.” The Complainant stated that the functions of her role our portrayed as less than they actually were by the Respondent. The Complainant did not believe the reviews which took place examined the entirety of the work associated with the Insurance role. Only the level of insurance claims was looked at. However the Complainant contends that the role incorporated much more and exampled: compilation of quotes for House Insurance; correspondence to legal firms; completion of reports on deceased member accounts; building up the House Insurance business; among other responsibilities. The Complainant outlined she was invited but was unable to attend the review process in August 2016 due to being mentally and physically exhausted from their medical procedures. The Complainant contended the Respondent’s submission would make one believe the Complainant couldn’t be bothered to attend the review process. However, she stated that this was not the case. The Complainant stated it was incorrect for the Respondent to say the Complainant had been considered for redeployment under reasonable and fair procedures. The Complainant contended that she was not offered redeployment despite her skills and experience. The Complainant further contended it was clear, from presented correspondence, that those with specialised hours were targeted by the Respondent in the restructure. In response to the Respondent’s contention that the Complainant initially refused the redeployment to the Members Service Desk, the Complainant stated she questioned aspects of the role but this was not fully explored nor were discussions completed in relation to it. The Complainant stated that she did have to go out on sick leave after this as her medical condition was deteriorating. The Complainant stated that the redeployment offered was not a serious alternative as the role no longer existed. Regarding the move into a Teller position, the Complainant disputed the suggestion she had no right to revert to this position as, while she may have worked in the insurance section, she had been covering Teller duties over the course of the preceding 10 years and it was also a condition of her employment to be flexible in her role. The Complaint pointed out that it was accepted in the second independent report that she covered other roles. In response to the Respondent’s reference to her not applying for the advertised roles, the Complainant stated the applications for those positions needed to be made before 27 November 2016. However, by this time, the Complainant stated that she was not well enough to participate. Furthermore, the Complainant already had a job which they wished to retain or extend to the Teller area and was seeking redeployment based on their seniority. The Complainant stated that she had little confidence in the appeal process from the outset as the conditions and morale of staff was low and the Complainant’s experience of management’s actions in respect of her case was quite negative. The Complainant stated that, the decision of the appeal confirmed that her scepticism was well placed as the document outlined the author’s views of how the Respondent had continually attempted to facilitate the Complainant and her lack of participation in the process. The Complainant said the decision did not give full consideration to her side of the dispute and, while these issues were listed on one page of the document, they were not addressed anywhere in the conclusions. The Complainant contended that her unavailability to engage in the process while absent on sick leave appeared to be the main focus in the appeal decision. The Complainant further stated that potential alternative work options did not appear to have been considered in the appeal. The Complainant outlined that management was aware of her intended absence in February 2016 and by March 2016 the first operational review had been conducted, therefore, the Complainant could have been asked to participate in the skill set review prior to their absence. As this did not happen, the Complainant did not have the opportunity – unlike other staff members – to record their skill set in the process. At the end of the review process, the Complainant was faced with the loss of her job with no alternative employment options being offered despite options existing as was evidenced by the recruitment of 2 Tellers and also the upcoming retirement of at least 2 Tellers. The Complainant stated their selection for Compulsory Redundancy was unfair and is seeking a favourable decision in the unjustified elimination of her livelihood. The Complainant is seeking a reinstatement to her former position or a suitable alternative role. |
Summary of Respondent’s Case:
The Respondent outlined that the Insurance section, which the Complainant was working in, was to close and the work distributed amongst the Tellers. The reason for this being the Insurance claims, and 2.8 per week, were very low and been ongoing for some time. This situation was identified in the first independent report which examined claims over a three-year period. During November 2016, the Complainant’s work was being carried out by a full-time Teller as they were able to handle the additional workload. This had been happening since August 2016, when the Complainant went on sick leave. Arising from the first Independent Review which took place in April 2016, the Respondent offered the Complainant the opportunity to transfer to the new Member Services desk which was located in a newly constructed building which was soon to be opening. The Complainant refused this at first, however, after speaking with their Trade Union representative returned to say she had reconsidered her position and would give the new role a chance. In May 2016, the new office and the Member Services Desk was opened. The Complainant worked on the desk for 3 days and then went on sick leave stating an issue with the movement required at the desk. An Occupational Health Assessment was carried out. The Complainant returned to the Insurance role and did not go back to the Member Services Desk. The Respondent said efforts to redeploy the Complainant to a new role were unsuccessful, prior to the Respondent embarking on a restructuring. When the restructuring programme was announced the Complainant, who was on sick leave since August 2016, did not engage directly with the Respondent or it’s HR Advisor. The Complainant was also offered the opportunity to engage via email and phone but declined to do so. The Respondent said there was an extensive engagement process between November 2016 and April 2017 with all affected staff and with the Trade Union. The Complainant attended all the meetings that the Trade Union had with staff during that time period. There was also Conciliation in the WRC. The Respondent stated that, at the end of the 6 month process, the Complainant had not applied for any of the 7 new roles in the organisation and had declined an enhanced severance package. After an extensive engagement process from November 2016 to April 2017, the Complainant was made redundant on a compulsory basis as no other vacancies or redeployment opportunities were available. According to the Respondent, during the appeal process, the Complainant stated that she should not have had to apply for any of the 7 new roles there were announced as part of the restructuring. The Respondent said this would have been contrary to the Procedural Agreement which requires that all roles are advertised internally. The Respondent also said it would also have been extremely unfair on the 9 other staff who were in scope under the severance package. Furthermore, the Respondent outlined that the Complainant had not been a part of the Teller roster in the previous 10 years, given that she worked in Insurance. The Respondent contended that a situation could not be countenanced where the Complainant could revert to a Teller position and a Teller would be in scope for a severance instead. Arising from the restructuring programme the Respondent stated that, 9 staff left under a voluntary severance, one person (the Complainant) left through compulsory redundancy, the Caretaker retired in February 2017 and was not replaced, another Teller retired at the end of December 2017 and was not replaced. The Respondent also stated that two Senior Lending Officers resigned and were replaced by one individual, while a Teller had resigned subsequent to the restructure and another had gone on long-term sick leave. The Respondent further stated that, in addition to the above, a Risk Manager was appointed externally; a Compliance Officer was appointed – internally from the Teller group with that role not being backfilled and a Team Leader was internally appointed from the Teller group. The Respondent stated all roles are advertised internally first before then being advertised externally. The Respondent stated that two staff members who are on maternity leave, – one in Credit Control and the second in Finance – have not been covered on a temporary basis during their absence. The Respondent further stated that, arising from the aforementioned movements due to the restructuring, two Tellers were hired on fixed-term contracts. These positions were advertised internally and then through external means. The Respondent said the Complainant did not apply for these positions. The Respondent stated in evidence that, in total, 10 staff left the Credit Union due to the restructure - two due to retirement, three due to resignation, one is on long-term sick leave and two on maternity leave who have not been replaced. Another maternity leave was expected for February 2018 will result in a Teller moving to Finance and, in addition, some staff have been promoted with no replacements made. The Respondent said their economic situation has not sufficiently improved from the preceding year and they must remain prudent in relation to staff contracts. The only replacements brought in to cover the above staff movements have been one permanent Senior Loans Officer and two temporary Tellers. The Respondent stated the Complainant has not been singled out in anyway. A significant restructuring of the workforce has taken place for operational and economic reasons. In addition, staff departing through retirements and resignations have not been replaced and when staff are on long-term sick leave and maternity leave temporary cover has not been sought. The Respondent is currently operating on a far tighter staff budget than in preceding years. In response to the Complainant's submission, the Respondent made the following responses. With regard to the contention that staff were selected for voluntary severance because they were part-time, the Respondent stated that the Voluntary Severance was offered to staff in sections on the basis of data and business analysis –'s where the section was closing such as insurance or scanning / filing where there was over-staffing in the section and staff numbers needed to be reduced. In relation to the Complainant’s skillset and length of service not being considered by the Respondent, they outlined the reality was that the Complainant was the only employee in the insurance section – a Section which was going to close – and the Complainant had been in that role for 10 years. While the Complainant had a lengthy service period, they had spent the previous 10 years in the insurance section and had not been involved in the Teller roster in those 10 years, therefore they had no entitlement to revert to a Teller position. In relation to the redeployment efforts, the Respondent stated every effort was made to redeploy the Complainant in April 2016 to the Member Services Desk in the new building. The Respondent said this role no longer exists following the Review, as the role is now distributed between the Tellers. The Respondent stated there was no Last In First Out agreement in place and, even if there was, the Complainant would not have had the right to displace a Teller simply because she had worked in that department 10 years previously. Under the Procedural Agreement with SIPTU there is no agreement regarding redundancy or use of LIFO. There is also no precedent regarding LIFO as this is the first time that a voluntary severance or compulsory redundancy situation has ever arisen. According to the Respondent, the Complainant was offered voluntary severance because the insurance section was closing and the work was being incorporated into the Teller role which has been the case since August 2016 when the Complainant went on sick leave. In reply to the issue of her absence from work on sick leave throughout the engagement with staff, the Respondent stated that the Complainant advised Management that she was on sick leave and should not be contacted. The Respondent stated that extensive engagement opportunities were offered to the Complainant and her representative from November 2016 to April 2017. The Complainant had every opportunity to participate in this process but declined to engage with the Respondent or their representatives. The Complainant was also offered the opportunity to engage by phone, email or have the HR Advisor meet her at a suitable location but these were all declined. The Respondent stated that they did have extensive engagements with SIPTU, who represented the Complainant, throughout the entire process. The Respondent stated the Complainant and Trade Union were fully appraised of the situation and of developments at all times. The Complainant was offered the opportunity to appeal the redundancy to an external third party who had no involvement in the prior process. In reply to the Complainant's contention that the third party merely upheld the Respondent’s decision without giving the matter due consideration, the Respondent stated that the third party met with the Complainant and SIPTU and gave them every opportunity to put their case forward. In addition, the Respondent stated that the third party reviewed the grounds for appeal with an extensive review of documentation provided by the Respondent. However, the Respondent noted that no documentation was provided by the Complainant. The Respondent also stated that the appeal decision from the third party consisted of a detailed report, where their analysis, conclusions and findings were clearly set out. In response to the Complainant not applying for the vacancies, the Respondent stated the Complainant declined to apply for the new positions which were advertised in accordance with the Procedural Agreement with SIPTU. In addition, in this regard, the Respondent pointed to some inconsistencies in the representation presented on behalf of the Complainant with regard to her reasons for not applying for these positions. The Respondent states that, according to one of the Complainant’s representative, she did not want to apply for the positions as they were full-time roles. The Respondent goes on to point out that this position is different to that offered by a second representative, who contended that the Complainant did not think she had to apply for the roles and alternative options should have been considered. The Respondent stated the Complainant did not make any proposals for alternatives during the entire process. The redundancy of the role in Insurance was due to the low volume of work and the fact that such work could be distributed amongst the Tellers. The Respondent stated they have acted fairly and reasonably in all the circumstances surrounding the redundancy. In response to the Complainant seeking to retain their position or be provided with alternative employment, the Respondent stated the role in question was made redundant as the work was distributed among the Tellers. The Respondent stated that there was no question of a return to a stand-alone Insurance department. The Respondent stated there was a genuine redundancy situation. In summary, the Respondent stated that reasonable and fair procedures were followed at all times in what was a challenging time in the Respondent’s business. A genuine redundancy situation existed and voluntary severance was the preferred option. The Complainant was the only person working in the Insurance section, as it was a stand-alone role. Prior to this, redeployment was the preferred solution, however, this turned out to be unsuccessful. New roles were created as part of the restructuring programme which the Complainant had a realistic opportunity of being successful for, however, she did not apply. As all options had been explored and no other alternatives existed, the Complainant was notified of a compulsory redundancy situation and offered it on the same enhanced terms as the voluntary redundancy severance package. The Complainant appealed the decision and this was heard by an independent third party. |
Findings and Conclusions:
The case presented by the Complainant is that she was unfairly dismissed on the grounds of unfair selection for compulsory redundancy. Section 6 (4) (c) of the Unfair Dismissal's Act, 1977 states that: “the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from the redundancy of an employee” Section 7 (2) (b) of the Redundancy Payments Act, 1967, states that: “for the purposes of subsection (1), an employee who was dismissed shall be taken to be dismissed by reason of redundancy if the dismissal is attributable wholly or mainly to - the fact that the requirements of that business for employees to carry of work of a particular kind, or for the employees to carry over work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.” Section 6 (6) of the Unfair Dismissal's Act, 1977 states that: “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 only 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." Based on the above legislative requirements, it falls to me to consider whether or not a genuine redundancy situation existed in compliance with Section 7 (2) (B) of the Redundancy Payments Act, whether the termination of the Complainant's employment resulted from that redundancy and, finally, whether or not her selection for compulsory redundancy resulted from a fair and reasonable process. From the evidence adduced in this case, it is clear that the business sector in which the Respondent operates was experiencing significant challenges leading up to and at the time of their restructuring programme. The challenges in question resulted from the much changed economic environment stemming from the collapse of the financial sector in 2008. This, combined with the passing of the Credit Union and Cooperation with Overseas Regulators Act in 2012 and the ensuing consolidation which took place within the sector, lead the Respondent to conduct a major review and restructure of its business in 2016/2017. The review and restructure in question was based on two Independent Reviews of the Respondent’s operation, which took place as a result of a request by the Central Bank of Ireland. As a result of these reviews it emerged that there was an excess of resources of 10 staff across six identified areas of business. In particular, the Insurance sector, where in the Complainant was the sole member of staff, was identified as being significantly over resourced. The Review concluded that, based on the level of insurance business being conducted, the work associated with this sector could easily be distributed across other roles within the Teller sector. On the basis of the Review findings, the Respondent identified a redundancy situation and sought to achieve the necessary reductions by means of a Voluntary Severance program. It is clear from the evidence presented at the Hearing that an extensive programme of engagement and consultation with staff took place between November 2016 and March 2017. This process included a Conciliation Conference in the WRC in February 2017. It is noted that throughout this process the staff, particularly those, including the Complainant, who were in scope for redundancy, were represented by their Trade Union, SIPTU. Taking all of the above into consideration, I find that a genuine redundancy situation existed, the implementation of which was significant in the context of the Respondent’s ongoing viability and sustainability. It is also clear from the evidence, that the termination of the Complainant's employment with the Respondent on 7 April 2017 was as a direct result of the implementation of the organisational restructure and the redundancies which flowed from that. Finally, based on the above, it remains then to consider whether the Complainant's selection for redundancy, which in her case was the only instance of compulsory redundancy, was fair and reasonable in the circumstances. Firstly, I am satisfied from the figures presented in evidence, that the Complainant's position as Insurance Official, a role she had carried out for the previous 10 years, was reasonably in scope for elimination as a stand-alone role. In this context, I find that the evidence does not support the Complainant's contention that the reviews which took place did not examine the entirety of the work associated with the Insurance role. It is clear from the evidence presented that Voluntary Severance was offered to staff in sections, including insurance, on the basis of detailed data and business analysis in all cases. In a context where the role which the Complainant held at the time of the review/restructure was being eliminated as a stand-alone position, it is incumbent on the Respondent to consider the possibility of relocation to an alternative role/duties. However, it is clearly also incumbent on the employee in question to proactively engage with their employer in discussions/consultations pertaining to their situation. While I fully appreciate and accept the Complainant's health/medical situation and note it’s unfortunate coinciding with the most significant restructure that had taken place in her workplace during her employment there, I am not satisfied that the Respondent was appropriately proactive in this regard, given the significance and gravity of the situation from her perspective. In particular in this regard, I note the Complainant's failure to respond to or engage with the process to fill seven new roles in the organisation. In her evidence, the Complainant stated that she did not apply for these positions as she did not consider herself well enough to participate in the selection process. In a context where the Complainant had been clearly advised by the Respondent that (a) her position as Insurance Official was in scope for redundancy and (b) that her failure to consider the Voluntary Severance package on offer could lead to compulsory redundancy in her case, I find her failure to engage with the process at all to be unreasonable and somewhat illogical in the circumstances. In this regard I accept the evidence of the Respondent that the Procedural Agreement in place at the time required the advertising of all positions. Consequently, the Complainant's contention that she should not have been required to apply for these positions is not credible. While it is not possible to predict whether or not the Complainant would have acquired one of the new roles had she engaged in the process, her failure to do so had the effect of guaranteeing she would not be successful in acquiring an alternative role. I am further satisfied that had the Complainant expressed an interest in competing for one/some of the new roles but advised that, due to her medical situation, she was not in a position to engage actively in the process, it would have been incumbent on the Respondent to make provisions for ensuring that the Complainant's interest in the position(s) was given full and appropriate consideration. In this context, I also note the Complainant's failure to engage in the overall discussions/consultations that were taking place between the Respondent and their employees in relation to the restructure and, in particular, the redundancies/Voluntary Severance. In this regard I note that the Respondent communicated directly with the Complainant on two occasions in August 2016 in relation to the restructure and the changes being proposed. On both occasions, the Complainant clearly indicated to the Respondent that she was unwilling to receive any further communication in this regard while on sick leave. Once again, I do not wish in any way to derogate the Complainant's personal circumstances. However, given the once off nature and significance of what was happening in her workplace and, in particular, the clear implications for her personally, I find the Complainant's failure to engage this and/or her expectation that matters could be put on hold pending her return to be somewhat unreasonable. I am satisfied that, had the Complainant advised of her willingness, but limited capacity, to engage in the consultation process, rather than removing herself from it, the Respondent would have more than likely made arrangements to ensure her participation in the process. Consequently, I find that the Complainant's failure to engage with the selection process for the new roles and with the general consultation process was unreasonable in the circumstances and served to undermine her contention that the Respondent failed r to provide her with a fair process in this regard. Notwithstanding her failure to actively engage in the processes, as set out above, I am satisfied that the Complainant was party to the ongoing discussions/consultations taking place between the Respondent and the Trade Union, on behalf of the staff as a whole. The Hearing was presented with significant evidence in relation to the various roles within the Respondent’s organisation, both in terms of pre and post restructure. Based on this, the Respondent contends that there were/are no vacancies within the organisation structure which could be used to accommodate the Complainant. It is not within the discretion or remit of an Adjudication Officer to validate or authenticate such evidence. However, the submission made by the Respondent in this regard appears comprehensive in nature and clearly results from significant review an analysis by independent consultants. Consequently, taking all of the above into consideration, I am satisfied there is a genuine redundancy existed and that the termination of the Complainant's employment with the Respondent resulted directly from that situation. In addition, having carefully considered all of the evidence adduced, I find that the Complainant selection for redundancy was fair and reasonable in the circumstances. |
Decision:
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.
Based on the evidence adduced at the Hearing and in line with the findings/conclusions are set out above, I find that the Complainant’s selection for compulsory redundancy took place in the context of a genuine redundancy situation and her selection for compulsory redundancy was fair and reasonable in the circumstances pertaining. Consequently, the Complainant’s complaint of unfair dismissal is not upheld. |
Dated: 15/03/2017
Workplace Relations Commission Adjudication Officer: Ray Flaherty
Key Words:
Compulsory redundancy Unfair Dismissal |