ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035187
Parties:
| Complainant | Respondent |
Parties | Kerry O Mahoney | Radleys It Ltd |
Representatives | Self-Represented | No Appearance |
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-00046323-001 | 20/09/2021 |
Date of Adjudication Hearing: 26/10/2022
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
I conducted a remote hearing in accordance with the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and Statutory Instrument 359/2020 which designates the Workplace Relations Commission as a body empowered to hold remote hearings. The Complaint Form was received on 20 September 2021 for an unfair dismissal claim.
Having waited a reasonable period time there was no appearance by the Respondent. After reviewing the file, I am satisfied that the Respondent was on notice of the hearing and on this basis the hearing proceeded.
The Complainant swore an affirmation despite the evidence being undisputed by the Respondent. The Complainant commenced employment on 6 July 2015 and her employment was terminated on 22 May 2021 giving one month’s notice. She was paid €500 gross per week for working 40 hours. The Complainant confirmed the name of the Respondent as being Radleys IT Limited and registered business address as per the Complaint Form. |
Summary of Complainant’s Case:
It was the Complainant’s evidence that she commenced work in July 2015 after an interview with John Cashell Jr for an accounts position with the Respondent. During the course of her employment, she described her hours and roles been continuously changed by the Respondent and she was always accommodating. In March 2020 she was advised via email from Mr Cashell Jr that the premises was temporarily closing due to Covid19 and sent a link to information regarding the Pandemic Unemployment Payment. The Complainant tried to contact him but was always too busy to speak to her. In May 2020 the shop re-opened but the Complainant was told by Mr Cashell Jr only one staff member was needed, and the Manager returned to work. However, it later transpired that another employee was asked to come back and work on Saturday. Again, the Complainant sought to contact Mr Cashell Jr on numerous occasions between May and July 2020 but there was no response from the Respondent. In July 2020 the Complainant was diagnosed with a serious illness and advised Mr Cashell Jr that she was still available for work. It was the Complainant’s undisputed evidence that Mr Cashell Jr told her he would look after her and agreed to allow her work from home to undertaking typing work on an unpaid basis. It was her evidence that she wanted to keep herself occupied during her treatment. However, after “a week or two” Mr Cashell Jr told her to return the laptop computer he had given her. The next contact came in September 2020 when the Complainant again asked about her role but was advised by Mr Cashell Jr that he did not know what he was doing, and he would let her know. Two weeks later, the Complainant sent a text to say he decided to recruit for an instore position. Again, the Complainant made several attempts to speak to Mr Cashell Jr on the phone, but she never received a call back. At this stage, it was her evidence that everyone was back to work except her. Due to Covid19 restrictions the shop closed again. In May 2021, the Complainant next heard from Mr Cashell Jr asking if she would be available for work as the Manager was unavailable for work due to illness. She explained her medical situation and would be available to return to work on 22 May 2021. There was no further contact from Mr Cashell Jr. The Complainant gave undisputed evidence that she called into the shop and met Mr John Cashell Sr who shouted at her and told her to get in contact with Mr Cashell Jr. The Complainant spoke with her colleague on the same day who previously only worked on Saturdays but was told she now worked full time. Mr Cashell Jr did call her after she left a message for him and was told that he was thinking of closing the shop. He asked if she would be interested in taking over the business with the manager. The next communication from Mr Cashell Jr was to state he was holding onto the business himself. On 27 May 2021, she received her termination letter by email from Mr Cashell Jr stating he was reducing the number of staff but did not say he was closing the business. There was no response from Mr Cashell Jr to her phone calls. The Complainant explained at that stage she did not have any more “fight” left in after her treatment and the way Mr Cashell Jr dealt with her. Despite the Respondent’s commitment to pay her 4 weeks’ notice pay, she has not received it. She did receive her statutory redundancy payment. The Complainant concluded her evidence by noting the business was still open and another employee was hired in July 2021 along with her former colleague. She described herself as never leaving Mr Cashell Jr down and he himself, would refer to her as his “most reliable member of staff.” Financial Loss The Complainant gave evidence that she obtained alternative employment on 5 July 2021 on a part time basis on a rate of €14 gross per hour until 6 January 2022 and full time thereafter. From July 2021 to January 2022, she was at a financial loss of €150 gross per week. From January 2022 the Complainant earned €46 gross more per week than when she worked with the Respondent. |
Summary of Respondent’s Case:
There was no appearance by the Respondent. |
Findings and Conclusions:
Section 6 of the Unfair Dismissals Act 1969 sets out the procedure in relation to dismissal due to redundancy:- “(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either— (a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or (b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.” The Employment Appeals Tribunal in Gerry Fennell v Resources Facilities Support, [2011] 22 E.L.R. 26 held: “When an employer is making an employee redundancy, while retaining other employees, the selection criteria being used should be applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria to be adopted will come under close scrutiny if an employee claims they were unfairly selected for redundancy. The employer must follow the agreed procedure when making the redundancy. Where there are no agreed procedures in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably”. In JVC Europe –v- Panasi 2011, IEHC279 Mr. Justice Charleton stated. “In all cases of dismissal, whether by reason of redundancy or substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of the employment came within a lawful reason”. The Employment Appeals continued: “The Tribunal considered all of the evidence adduced; it is for the respondent to establish (a) that a redundancy situation arose and (b) that they acted reasonably and fairly towards the claimant in addressing that situation. It is found that a redundancy situation arose and that the respondent did not behave reasonably and fairly with the claimant”. The Respondent did not attend the hearing and therefore, has failed to discharge the burden of proof set out in Section 6 of the Act. The Complainant’s evidence is accepted in its entirety that she was unfairly dismissed from her employment. There is no evidence that a redundancy situation arose in the sense the business continues to trade, a part time colleague of the Complainant’s was given full time hours despite the Complainant advising she was available for work together with the evidence that a new employee was hired in July 2021 less than two months after the Complainant received a termination letter from the Respondent. This is compounded by the fact she was a loyal and long serving employee who had undergone treatment for a serious illness and at all times the Respondent was aware of this fact . Consequently, I find the Complainant was unfairly dismissed by the Respondent |
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.
Having considered all the facts of this case, I find that the complaint is well founded. Redress Section 7 of the Unfair Dismissals Act 1977 sets out the limitation of redress with Section 7 (1) (c ) allows for compensation of financial loss: “(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances. (2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to, (a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and (d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister. (3) In this section— “financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation; “remuneration” includes allowances in the nature of pay and benefits in lieu of or in addition to pay.” The Complainant has demonstrated great efforts to mitigate her financial loss and obtain alternative employment after her dismissal initially part time and later on a full time basis.. I find that the award of compensation of financial loss in the sum of €5,500, just and equitable in the circumstances where there was a complete failure on the part of the Respondent to apply fair procedures to the Complainant’s dismissal. Please note this award of compensation for financial loss does not include any sum of statutory redundancy made to the Complainant upon termination of her employment. |
Dated: 4th January 2023.
Workplace Relations Commission Adjudication Officer: Úna Glazier-Farmer
Key Words:
Unfair dismissal – Redundancy -Well Founded. |