ADJUDICATION OFFICER DECISION
Retail Department Store
Complaint/Dispute Reference No.
Date of Receipt
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
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.
The evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
Also, an Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 7).
In this particular instance, and in circumstances where the Complainant herein has referred a complaint of having been unfairly dismissed form his place of employment wherein he had worked for in excess of one year and where the Workplace Relations Complaint Form (dated the 27th of March 2019) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the loss.
The Complainant brings a complaint of Unfair Dismissal when he says his employment was unlawfully terminated without regard to fair procedures and
Summary of Complainant’s Case:
The Complainant had been trained up in the Respondent department store in Donegal and moved with the group to the Dublin store as a full time Visual Merchandiser. The Complainant says that the decision to make him Redundant was Unfair in circumstances where he was personally singled out without being afforded any consideration for alternative positions.
Summary of Respondent’s Case:
The Respondent’s case is quite simply that the there were unavoidable financial reasons which justified the need for the Complainant’s position to be made redundant.
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of the hearing of this matter. The complainant had been engaged with the Respondent company initially through a Job bridge scheme in its Donegal operation and eventually as a full-time visual merchandiser and he was placed in the recently opened retail outlet in Dublin. Its flagship outlet.
I fully accept that the Respondent company which has a multi-million euro turn-over was experiencing some negative financial times in the entire company but most particularly in the Dublin based shop which was not pulling its weight and was sustaining losses which could not be allowed to continue unchecked. The Complainant appeared to accept this evidence in principal.
The employer in considering its cost base in Dublin looked at the salary outgoings and it is not surprising that the full-time role of Visual Merchandiser came into focus. Such a role does not generate sales and was therefore considered to be superfluous to requirements in the shop. I do note that the Complainant was on a very basic salary and would speculate that it was never going to be the panacea for the financial woes being experienced.
Eventually it would be decided that the job of Visual Merchandiser would be made redundant and I accept that, in due course, the Complainant’s position was made redundant and was not replaced. What is surprising is that the Complainant, who had trained up with the Respondent company and had worked well in various roles with the Respondent was not considered for retention in any other capacity. Ultimately, no other option of re-deployment was open to him or discussed with him. This is curious as, for example, the Complainant had essential retail and sales skills which with his knowledge and appreciation of the high-end product surely made him a good proposition as a salesperson? I note that the Complainant’s line Manager in her evidence had refused to look beyond his Contracted position. As far as she was concerned, the Complainant was the Visual Merchandiser and if his position was made Redundant, he was made Redundant. She was unwavering on this point.
The Complainant himself gave uncontradicted evidence that he had helped with the training up of four new members of staff to be added to the retail team in the November of 2018 (for part-time, full-time and temporary positions in the run up to Christmas) and I fully accept that this suggests he had acquired all the necessary skills in this field.
In and around early December 2018 the Complainant was told that his Contracted job as Visual Manager was being reduced to a three-day week. The Complainant had previously been advised (in the September) that his job as Visual Merchandiser would be certainly cut back but that he could make up his full working week in retail and sales i.e. 3 days as VM and two days in sales. This offer was dropped in the December discussion and only three days of Visual Merchandiser was on offer. The Employer allowed the Complainant some time to consider this offer and in fact the 5-day VM status quo remined through the Christmas period and it was not until the start of 2019 that the Employer sought a meeting with the Complainant. The initial suggestion was that the meeting take e place in Donegal which I hold to be a bit unreasonable given his workplace is in Dublin. In fact, on reflection, I cannot fathom why the Employer could countenance how bringing the Employee up to Donegal to terminate his employment would ever have sat well? For this is what happened. Over the Christmas/new year period the decision was made at Board level that the Complainant’s position as Visual Merchandiser and employment was going to be terminated without further discussion. This decision was delivered at a meeting in Dublin in February of 2019. The decision came as a bolt from the blue to the Complainant who had no idea he was being let go and he was given no opportunity to make his case for retention in any capacity.
It is not possible for me to ignore the apparent undercurrent of bad feeling between the Respondent witnesses (owners of the company) and the since dismissed Dublin Manager who had clearly had a good relationship with the Complainant. I have to wonder to what extent that the souring of that relationship had had on the precariousness of the Complainant’s position?
It was the Managing Director who came down to Dublin to terminate the employment. Generally, I accept that this termination appears to have been conducted in a vacuum and no one else in the company has to date been made terminated in this way (though some evidence has been suggested that protective Notice has issued somewhere since). Again, this brings me back to the point of the impact that saving on his small salary would have on the apparently serious ongoing losses. It is hard not to see that from the Complainant’s point of view, he has been singled out without any real explanation. I am bound to accept the MD evidence that the making of an employee redundant gave him no satisfaction. However, the MD had to agree that the question of re-deployment never arose and was never considered though he was well aware that the Complainant had a skill set singularly suitable to his Company. Nothing further was explored. The decision was made in Donegal and implemented in Dublin.
It is difficult to reconcile these actions with the sense of tradition and pride in a duty of care elaborated by the Board members who gave evidence before me. The blunt dismissal by reason of Redundancy does not sit well with the proposed ethos and I have to accept the Complainant’s argument that he had no foreknowledge of his impending Redundancy and given no opportunity to have other options looked at. It is also worth noting that the complainant was not offered any Appeal against this decision.
However, I must also consider the fact that the Complainant himself expressed no interest in being kept on in any other capacity and I must consider the possibility that the employment relationship was just coming to a natural end. In this regard I note that the Complainant had been on very good terms with the previous Manager who had parted company with the Respondent in difficult circumstances.
In mitigation I note that the Complainant has found alternative employment in another area altogether as there are limited opportunities available in the field of Visual Merchandising.
In the circumstances outlined I find that the Complainant has been Unfairly Dismissed.
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.
|Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977|
- I find that the Complainant has been Unfairly Dismissed and I award him compensatory remunerative losses of €8,940.00. I note that the Complainant has already been paid a portion of this sum (€4,432.84) by way of a cheque provided for a proposed Redundancy situation. The Complainant is to be paid a further €4,500.00.
Dated: August 2nd 2019
Workplace Relations Commission Adjudication Officer: