ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030873
Parties:
| Complainant | Respondent |
Parties | Sylvia McCann | Irish Whiskey Museum Limited |
Representatives |
| Peter McKenna BL Aileen Fleming solr Daniel Spring & Company |
Complaint:
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-00041244-001 | 25/11/2020 |
Date of Adjudication Hearing: 18/06/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
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. 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 circumstances where the fact of dismissal is not in issue, 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.
In the case before me the Employer seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee (as provided for in Section 6(4) of the 1977 Act aforesaid). In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of 1967 The Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade, or proposes trading with fewer employees or that the work is to be done differently and the Employee has not the requisite training or qualification to continue.
Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. The 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 said dismissal (per Section 7).
In the case before me the Complainant herein has referred a complaint of having been unfairly dismissed by reason of her Unfair selection for Redundancy from her employment wherein she had worked for in excess of one year. Because the Workplace Relations Complaint Form (dated the 25th of November 2020) issued within six months of her 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 financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In this regard I have explained that emergency legislation is pending which will empower Adjudicators to administer said oath. The parties were happy to proceed in the absence of said oath/affirmation. The Complainant issued a workplace relations complaint form on the 25th of November 2020 wherein she states that she was unfairly selected for redundancy by her Employer. The employment terminated on the 23rd of November 2020. |
Summary of Complainant’s Case:
The Complainant represented herself and is a lay litigant. The Complainant set out her case comprehensively in the Workplace relations complaint form and she also gave oral evidence on her own behalf. The Complainant’s evidence was tested under cross-examination. In the aftermath of the hearing the Complainant provided me with emails etc that I had requested. |
Summary of Respondent’s Case:
The Respondent had legal representation. I was provided with a comprehensive submission (dated June 17th 2021) in advance of the hearing dated. As well as hearing directly from the Respondent Managing Director he also provided me with a written Statement prepared in the 18th of June 2020. A small amount of correspondence exchanged between the parties and the WRC after the hearing by way of clarifying a few issues. Nothing in particular turns on that information. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. I cannot ignore the fact that there is significant bad feeling and rancour between the Complainant herein who was the Operations Manager with the Respondent company, and the Managing Director of the same company in circumstances where the Managing Director was married to the Complainant’s sister and that that marriage appears to have broken down at some point in time prior to the termination of this employment relationship. The Complainant has asked that I deal with this matter solely as a breach of the Complainant’s employment rights and protections as they are articulated in the Unfair Dismissals legislation but has also by implication suggested that the Respondent Managing Director has acted out of vindictiveness and as a consequence of mala fides. I would note that it is regrettable that I have had sight of communications between a husband and wife that can only be described as upsetting in it’s vitriol. I would say, given the personal nexus between the Complainant and the Managing Director of the Respondent company (who appears to have been the sole decision maker in this Redundancy situation), I have to be scrupulous in my assessment of the facts and absolutely satisfied that there was a genuine and objectively reasoned Redundancy situation. The Complainant has worked with the MD of the Respondent company for some time now. She had initially worked part time in one of the other tourist-reliant Companies owned by him. The Complainant was asked to become a receptionist in the Respondent Museum at a time when her sister was the Sales and Marketing Manager. The then General Manager left in mid-2018, at which time the Complainant’s sister took over that role of GM and the Complainant was elevated to the role of Operations Manager. I understand that the Complainant had a small shareholding in the business since it’s inception, and this must surely also have galvanised her to make a go of the position she now found herself in. The Complainant has provided me with a lengthy description of the workload she and her sister took on in the year or two that she was in this position (of Operations Manager) which saw the company turnover and profit increase significantly. I accept that the Complainant was a highly efficient, dedicated and able Operations Manager. It is worth noting that the Complainant got Employee of the year in 2019 and this was across all the companies in the group of tourism based businesses owned and operated by the MD at that time. I note that the Complainant never had a formal Contract of Employment nor a comprehensive job description. As the museum became more streamlined and successful, I accept that she organically expanded her knowledge and understanding of how the Museum operated. In March 2020, along with the rest of the nation, the Respondent company herein brought down it’s shutters in response to the Covid pandemic. The Complainant and all of her colleagues went on to the PUP payment in circumstances where she was unemployed by reason of the closure of the business. As a company almost entirely reliant on tourism, I accept that it’s future looked very uncertain. I understand that 3 months later in June of 2020 an issue was raised at Board level and that the Complainant (along with other Board members) had raised questions as to certain financial arrangements. It is not clear to me if this issue was ever satisfactorily resolved. The outcome of this event was that the Complainant was removed from the Board. On the 26th of October 2020 the Complainant then received an email from the MD of the Respondent company asking her to attend a Zoom meeting on the 30th to discuss the role of Operations in the museum. On the face of it, I accept that the Complainant might well have been surprised at this email. The business had not re-opened, and the status quo was the same in October 2019 as it had been in March 2019. Nothing had changed. There follows a thread of emails between the Complainant and the Managing Director which is striking for the dismissive treatment of the Complainant. The Respondent threatens to note any failure to attend the meeting on the complainant’s record. The Respondent describes the Complainant as “delusional” and as “unable to read black and white”. The Respondent MD refuses to say what the meeting is about or what the proposed agenda is. The MD accuses the Complainant of harassing him – though there is no evidence of this in the email thread. When the Complainant expresses reservations and says she wont attend without knowing what the full details of the agenda is and who else will be in attendance, the Respondent replies: “That’s absolutely fine S----. The decision has been taken out of your hands by yourself. You will be receiving an email next week with our decision on your role without your input (your choice) now have a wonderful evening” For the avoidance of doubt, I read the sign off as wholly sarcastic. This is an extraordinarily hostile text for an employee to receives from an employer. As I have said, the Respondent’s tone in this series of emails is dismissive and contemptuous. In fact, the Complainant has invited me to go so far as to deduce from the subtext that her role in the company was already determined at this point in time. In any event the meeting did take place on the 2nd of November and a HR representative from one of the MD’s other businesses was present. The Complainant appears to have been advised that the company was restructuring as a cost saving strategy. The minutes of this meeting provided by the HR person confirm that the Operations Manager role was being eliminated with duties to be shared out amongst TEAM leaders. The Operations Manager is invited to come back with alternatives within 14 days. I have no doubt that the Complainant was shocked that her role was being terminated in the course of this meeting and judging by her post meeting emails she seemed genuinely confused as to what was being asked of her in terms of alternatives during the consultation process. Again the MD comes back to her and says :- “You are given the two weeks for you to come back with feedback from the meeting and see if you can offer any alternatives to what I have proposed to that role (if any)” To my mind, this sentence is unclear but appears possibly to be a request for alternatives to making the role redundant? It seems a pity that The Complainant cannot get a clear understanding from the MD for what exactly it is that he is proposing that she should do. Instead, rather bizarrely he asks her to look at a Failte Ireland video the relevance of which has not been explained to me or, indeed, the Complainant. Another meeting is scheduled for the 16th of November and the Complainant receives a formal letter making her redundant on the 23rd of November 2020 effective (without Notice) from that date. In his evidence, the MD states that of the 20 employees in the Museum he had identified hers as being the only one suitable for Redundancy. How this decision was reached is not clear to me though he stated in evidence that others could do her duties and that her role had only been created at the last minute and in better times. The MD is clear that he does not envisage that the role will ever be replaced. The MD vaguely asserted that he was advised of the need to make these cutbacks by his Accountant and or the Bank though there is no evidence of how or why this issue came into focus. The MD introduced evidence of making other employees Redundant at this time though this seems to have been in other companies unrelated to this small stand-alone boutique operation. In his evidence to me the MD stated that he asked her (at the meeting in early November) what was the role of the Operations Manager going forward? To my mind this is not borne out by the minutes of the meeting nor the email exchange thereafter. In his evidence the MD said that she never answered that question and instead just only ever gave submission as to why the role shouldn’t go In her evidence, the Complainant indicated that she was greatly upset by the way that she was treated. The Complainant is absolutely satisfied that not one member of the team of staff that she worked alongside of in the Museum was ever contacted (up to the date of the hearing of this case) to determine what they intended to do at the end of this pandemic. The Complainant is satisfied that a number of the staff will not be returning (though whilst on PUP will not formally be likely to state this). Most of the staff join on a casual part time basis. For this reason, the Complainant says that the Respondent has pre-emptively disposed of her without having any idea of who and how many he can rely on to return. In this regard, I fully accept that the Complainant was largely responsible for the training and mentoring of staff and of all the staff was the best placed to hold the fort. The Complainant is adamant that she and her sister were in charge of a well-run money-making enterprise and that the figures up to March 2020 bore this out. The Complainant loved her work with the Respondent company and as one of the longer serving members of staff she should have been retained for her experience and ability to do any of the in-house jobs that might need to be filled if and when this company does re-open. The Complainant makes the point that in the midst of a lockdown it is not rational to start a re-structuring programme when you can have no idea what your needs will be coming out of the lockdown. The only justification provided by the Respondent was as a cost saving measure. However, the Complainant was not costing the Respondent a single penny as she was on PUP at the time. Additionally, the question of what her salary might be or how her hours might work might change, if and when the lockdown was over, was not a discussion the parties had. On balance, I am not satisfied that even if there is a Redundancy situation (and I am not convinced that there was in the Museum) that the Respondent has discharged the onus on him as the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. There was no reason to select the Complainant over and above any other member of the staff all of whom were out of the workplace on PUP and costing him nothing. The Respondent’s conduct has been so unreasonable that I cannot but wonder that the issue was not more personal. There may well be some truth to the Complainant’s proposition that she was gone before the purported consultation period was started. In conclusion I am bound to find that this was an Unfair selection for Redundancy and an Unfair Dismissal. The Complainant has not made formally applied for relief under the Organisation of Working Time or the Minimum Notice Acts. I accept that the issue of Notice and Annual Leave was touched on in the course of the hearing, but I am not in a position to make findings in respect of any claims for redress which might flow from those pieces of legislation. Terminating an employment in the midst of a pandemic severely limits that person’s ability to mitigate the financial loss. I accept that the Complainant has made efforts to obtain alternative employment but must accept that the Complainant’s observation that her age is a mitigating factor is potentially true. I am not minded to direct that the Complainant be re-engaged or re-instated. The relationship has broken down and will not be mended or otherwise be ameliorated by a return to the workplace. The fact that the Complainant may well have gone ahead and sought or secured a Statutory Redundancy payment from the State does not preclude her from bringing a claim under the Unfair Dismissals legislation which operates to vindicate her employment rights and in particular her right not to be Unfairly Dismissed |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00041244-001 - I find that the employee has been dismissed and that the dismissal was unfair. IN those circumstances the employee shall be entitled to redress by way of compensation for the financial loss attributable to the dismissal. I award the sum of €25,000.00. |
Dated: 15-09-21
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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