ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00033950
Parties:
| Complainant | Respondent |
Parties | Louise Walsh | Camile Thai Kitchen Ltd |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | Catherine Fitzsimons-Belgaid Fresh Thinking HRM | Fiona Egan Peninsula Group Limited |
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-00045071-001 | 06/07/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045494-001 | 02/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045494-002 | 02/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045494-003 | 02/08/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00045494-004 | 02/08/2021 |
Date of Adjudication Hearing: 18/01/2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 following the referral of the complaint(s) to me by the Director General, I inquired into the complaint(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s).
The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings.
The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Evidence in this case was taken on affirmation.
The complainant was represented by Fresh Thinking HRM. Three people from that organisation attended: Ms Catherine Fitzsimons-Belgaid and two colleagues, Mr Marcello Pietrocla and Ms Margaret Quinn. The respondent was represented by Ms Fiona Egan, Peninsula and a witness for the respondent, Ms Katrina Hopkins attended.
Background:
The complainant was employed as a supervisor at the respondent’s restaurant from 5/11/2019 until she was dismissed by reason of redundancy on 7/5/2021. She was paid €465.00 gross per 39-hour week. The complainant does not accept that a redundancy situation arose. The respondent denies all the complainant’s claims in their entirety. |
Summary of Complainant’s Case:
It was submitted on behalf of the complainant that the dismissal by reason of redundancy was unfair as no redundancy existed and the complainant was not offered any reasonable alternative. The complainant believes that she was selected for redundancy as she did not agree to a change in her working hours. Although the complainant was employed as a supervisor her work involved many other functions such as cooking, cleaning, managing staff and serving customers. At times she managed the entire operation with one other part time staff. She was placed on lay off from March 2020 until July 2020 and again from November 2021. In July 2020 the complainant trained in a new manager and new part time staff. The manager wanted to change the complainant’s contract to reduce her hours, but she refused to do so. In November 2020 there was another lay off as the business was shut due to a COVID-19 lockdown. In March 2021 the complainant was contacted by the respondent to say that she would not be returning to work until sales improved and that she should continue on the PUP payment. The complainant gave evidence that she wanted to return to work and raised a query as to why other staff were allowed to return. The complainant attended a meeting with the respondent and made a reference to the previous managers attempt to change her contractual hours. The new manager did not know about this, and the complainant considered the matter closed as she remained on her original contractual hours. The complainant was advised at this meeting that her position was now at risk due to a restructuring of the business. The complainant attended a series of meetings to discuss alternatives. Three alternatives were suggested by the respondent: a move to another restaurant on a part time basis; a move to a Dublin restaurant also on a part time basis or voluntary redundancy. There was no guarantee of any level of hours in either restaurant. No details of the voluntary redundancy were provided. The complainant rejected these offers at each meeting and questioned why she was selected for redundancy. The complainant also questioned why the respondent was recruiting new staff and she suggested that her existing hours could be facilitated in the second restaurant. The complainant also observed that at least three staff members and an operations manager were serving customers in the restaurant while other staff worked in the background. It was submitted on behalf of the complainant that her dismissal was unfair, and the respondent kept her on PUP and then penalised her by creating a redundancy situation in order to avoid having to take her back. It was also submitted that the redundancy was unfair as no redundancy situation existed and the complainant was not given any statutory notice. There were no reasonable alternatives offered and no RP50 form was issued to the complainant. It was also submitted on behalf of the complainant that the respondent’s conduct was unreasonable as she was not issued with a staff handbook, and she was not aware of the grievance procedure. Legal arguments were submitted on behalf of the complainant and in particular Section 6(3) of the Unfair Dismissals Act 1977 that provides: “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 employees in similar 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 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 specific reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal. Section 6(4) of the Unfair Dismissals Act 1977, provides: (a) “The capability, competence, or qualifications of the employee for performing work of the kind which he was employed by the employer to do (b) The conduct of the employee, (c) The redundancy of the employee, and (d) The employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute”. The complainant raises several questions that needs to be considered by the Adjudicator: (a) Was there a genuine redundancy situation (b) What the complainant fairly selected (c) Was the alternative employment suitable (d) Did the role change or was it the same work. The complainant gave evidence at the hearing in relation to her employment and specific duties that she undertook. She was responsible for opening the shop and then undertook cooking, serving and stocktaking duties. At the end of the day, she had to “cash up” and clean up. In addition to these duties, she undertook some of the managerial functions when there was no manger on site. The complainant also gave evidence in relation the difference between the managers role and the supervisors role. The main difference was that the manager prepared the roster. The complainant also outlined that she was responsible for training in the new manager and new part time staff when the restaurant reopened after the lockdown period. The complainant also gave evidence that she had undertaken some marketing functions when the premises first opened in November 2019. The complainant also gave evidence that a previous manager asked her to change her hours rather than work her 39 contracted hours. She did not agree to this. The complainant also gave evidence in relation to how the respondent informed her of the redundancy and the meetings that followed. She confirmed that he visited the premises since her dismissal and observed three new staff and an operations manager. The complainant outlined that she did not want to accept the other roles offered as there was no guarantee of any hours. She was happy to accept any role if it gave her the same number of hours as her existing contract. She needed to work due to her personal circumstances. The complainant gave evidence that she believed that her dismissal by reason of redundancy was because the respondent wanted to penalise her for not agreeing to a change in hours. The complainant also gave evidence that she was able to do any of the roles which the respondent kept in the restaurant. Under cross examination the complainant confirmed that she received a contract of employment dated 5/11/2019 and that she read it. The complainant explained that her grievance in relation to the proposal by the previous manager regarding a change of hours had been resolved. It was put to the complainant that the respondent was involved in a restructuring of the restaurant as a result of the circumstances they found themselves in and this also involved a change in relation to how food was cooked and served, and this now involved a chef. The complainant said that she could do any of the roles if she was shown how to do it. The complainant said that she did not accept that the respondent needed to save costs. It was put to the complainant that as a result of the restructuring the role of supervisor was now subsumed into the role of manager. The complainant outlined that she had previously undertaken manager duties. The complainant said that she did not indicate that she wanted the role of manager as there was a manager in place at that time. The complainant gave further evidence in relation to being unable to take breaks particularly when she was working on her own. She did not accept that she could have closed to take her breaks as it was not realistic to be expected to build up the business and then close to take breaks. The complainant confirmed that she had several meetings in relation to her redundancy but explained that she felt these were all the same. It was submitted on behalf of the complainant that if there was a redundancy there was no package on offer. The respondent wanted to reduce the complainant’s hours and when she refused it was then a matter of “accept or be dismissed”. The question that has to be answered is - was this a redundancy which was disguised to dismiss the complainant. |
Summary of Respondent’s Case:
The complainant worked as a supervisor with the respondent from 5/11/2019 until 7/5/2021. The respondent operates a restaurant and takeaway business. The complainant worked 39 hours per week and due to COVID-19 restrictions the respondent suffered substantial losses at the restaurant and the first closure took place in March 2020 and this continued until July 2020. During the periods of lay off the complainant was on PUP payments. As a result of the effects of the closure the respondent was forced to restructure its business model to save costs, minimise losses and ensure future viability. The complainant was put on the TWSS and topped up by the respondent. The complainant was advised on 20/03/2021 that her role was at risk but was assured that a consultation period would take place and that other alternatives would be looked at. She was also advised that voluntary redundancy would also be an option. Further meetings took place with the complainant on 26/3/21 and the respondent proposed three alternatives – part time work in two other restaurants or voluntary redundancy. At a further meeting on 15/4/21 the complainant rejected these and did not propose any other alternatives. A total of five consultation meetings took place and on 7/5/21 she was advised that her role would be made redundant and offered the option of an appeal. The complainant did not avail of the right to appeal. A number of legal submissions were made on behalf of the respondent. The respondent denies that the dismissal of the complainant was unfair due to the reasons that existed. This was a genuine redundancy, and it was done in a fair and transparent manner. There were 5-6 meetings held with the complainant. The respondent put forward three available options, but these were rejected by the complainant. The respondent submits in the strongest terms that the redundancy of the complainant was genuine and solely because of its poor trading position in which it found itself post COVID-19. |
Findings and Conclusions:
CA-00045071-001: This is a complaint seeking adjudication by the WRC under Section 8 of the Unfair Dismissals Act, 1977: It is not disputed that the complainant was dismissed by reason of redundancy on 07/05/2021. Having carefully considered all the evidence adduced and the respective submissions of the parties, it is clear that while the complainant contends that there was no genuine redundancy, the respondent submitted that the termination of the complainant’s employment constituted a dismissal by reason of redundancy. I must consider the complainant’s claim of unfair dismissal in the context of a redundancy scenario. Section 6 (1) of the Unfair Dismissals Act, 1977 states that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act; to be an unfair dismissal unless, having regard to all the circumstances, there are substantial grounds justifying the dismissal.” Section 4 (3) (c) of the Unfair Dismissals Act, 1977 further clarifies the situation in relation to redundancy by stating, inter alia, that: “Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this act, not to be an unfair dismissal if it results wholly or mainly from ….. the redundancy of the employee…” Section 6 (7) of the Act states as follows: “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so – (a) To the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal…” On the basis of the legal position as set out above, the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. Arising from this, the burden of proof rests with the respondent to establish, in the first place, that the dismissal was wholly connected to redundancy, and having done so, to justify the selection process whereby the employee in question was selected for redundancy. I accept that the respondent is entitled to restructure its business model to maintain its position and particularly within the context of the fallout of COVID-19. There is a considerable amount of case law in relation to the reasonableness of the employer in relation to the fair and objective selection of employees for redundancy. In Boucher v Irish Productivity Centre [1994 EL 205] the Tribunal enunciated the burden on an employer to: “establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made.” In the within case the redundancy proposed by the respondent would see the complainant’s role combined with the manager’s role. The evidence presented clearly indicated that this was a stand-alone role within the respondent’s structure. The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done. This is the standard by which the respondent’s actions must be judged against. The Act places the burden of proof on the employer to demonstrate that the dismissal was fair. As part of exercising this burden of proof the respondent needs to show that fair process and procedures were applied when conducting the process. S.I. No 146/2000 which is more commonly cited as the “Code of Practice on Grievance and Disciplinary Procedures” sets out the basic procedure which a respondent should follow prior to dismissing an employee. In simple terms these include: putting any allegations to the complainant in advance of a hearing, allowing the complainant the opportunity to properly defend himself at a hearing, permitting the appropriate right of representation and allowing an internal appeal of any decision to dismiss. These are not complex principles and while this instant case does not relate to misconduct on the part of the complainant, the respondent is still obliged to adhere to the principles outlined. While the respondent clearly had financial difficulties, which may have necessitated significant cost saving measures, the obligation to follow basic principles is not revoked in such circumstances. In the matter of Bank of Ireland v Reilly [2015] IEHC 241, Noonan J. approved the following extract: “the correct test is: was it reasonable for the employers to dismiss him? If no reasonable employer would have dismissed him, then the dismissal was unfair. But if a reasonable employer might reasonably have dismissed him, then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view.” Having regard to the foregoing points and the totality of the evidence as presented I find that the respondent has provided evidence that the dismissal by redundancy was substantially and procedurally fair. The respondent has provided evidence of fair selection for redundancy based on the restructuring plan. I believe that any reasonable employer would have dismissed the complainant. In the light of this conclusion, I find that the dismissal of the complainant by reason of redundancy was not unfair for the purposes of the Act. CA-00045494-001: This complaint was withdrawn at the hearing. CA-00045494-002: This complaint was withdrawn at the hearing. CA-00045494-003: This complaint was withdrawn at the hearing. CA-00045494-004: This complaint was withdrawn at the hearing. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.
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.
CA-00045071-001: Unfair Dismissal: I find that the complainant was not unfairly dismissed. CA-00045494-001: Complaint seeking adjudication by the WRC under Section 27 of the Organisation of Working Time Act, 1997: This complaint was withdrawn at the hearing. CA-00045494-002: Complaint seeking adjudication by the WRC under Section 27 of the Organisation of Working Time Act, 1977. This complaint was withdrawn at the hearing. CA-00045494-003: Complaint seeking adjudication by the WRC under Section 27 of the Organisation of Working Time Act, 1977. This complaint was withdrawn at the hearing. CA-00045494-004: Complaint seeking adjudication by the WRC under Section 27 of the Organisation of Working Time Act, 1977. This complaint was withdrawn at the hearing. |
Dated: 3rd March 2023
Workplace Relations Commission Adjudication Officer: John Harraghy
Key Words:
Unfair dismissal. Redundancy. |