Complainant

Respondent

Parties

Franziska  Haji

Cpl Solutions Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

  Self-Represented

Emily Maverley IBEC

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-00059555-001

23/10/2023

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The initial hearing was adjourned to facilitate submissions on the part of the respondent.  In the event these submissions were only received 1.5 days prior to the reconvened hearing, however the complainant indicated that she did not need additional time to consider the documentation submitted.

The complainant and two witnesses for the respondent gave their evidence under affirmation.  Cross examination was facilitated and took place in respect of all three witnesses.

I have taken the time to carefully review all the evidence both written and oral. I have noted the respective position of the parties. I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or deemed superfluous to the main findings. I am guided by the reasoning in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 where it was held “…minute analysis or reasons are not required to be given by administrative tribunals...the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given…”.

At the outset, the respondent clarified that the complainant was employed to carry out work for them at a client site under a fully managed service agreement and so was a direct employee of the respondent.  She was employed as a team lead since May 2021.

The respondent submitted that the client was going through multiple restructures, and the entire team was placed at risk of redundancy.  It was submitted that this was not unfair but was unavoidable due to the client instructions.  This also included an instruction that remote working could not be facilitated.  The complainant was not considered as suitable for an alternative team lead position, given her need to work remotely but was offered details of 13 alternative opportunities.

The respondent submitted that the complainant’s team was one of a number of teams that were made redundant at that time.  As regards the complainant’s loss, the respondent submitted that the suggestion of mitigation of loss was not accompanied by documentation from the complainant and indicated that caselaw supported the contention that a proportion of each working day must be spent engaging in job search.

The first witness for the respondent was the Programs Manager.  She stated that the complainant’s role was split up between two units and noted that the workflows for both aspects were different.  She stated that the complainant’s team lead role was not required after the changes and the recent client acquisition.  She stated that the new shareholders wanted a new way of doing things overnight and adopted aggressive cost-cutting measures.  She stated that no replacement role options were provided to the respondent.  She also stated that she was not involved in the redundancy apart from sending the complainant a list of open roles across the company.

Under cross examination the witness was asked how she came to be involved in the process and noted that it was a somewhat chaotic process given the speed in which the client wanted the changes to happen.  She confirmed that the work undertaken by the complainant was handed over to another employee of the respondent who was able to work on site on a full time basis.

Under redirection, the witness confirmed that she received client instructions regarding the redundancies and was following the instructions of the client in that regard.

The second witness for the respondent was the HR Business Partner.  She confirmed that several Team Leaders left the organisation around the same time.  She stated that between the time of the first and second employee meetings she tried to get an idea of what roles people might be interested in.  She stated that the initial employee meetings with the complainant were carried out by a colleague, as the witness herself was on leave but that she conducted the final meeting with the complainant.  She stated that the complainant was only seeking a permanent role with the client who refused to continue to employ staff identified for redundancy on a remote basis.  She offered the complainant any of the open roles that were suitable within the respondent organisation.  The only role available with the client was a different role, with a presence required 5 days a week on site.  This was non-negotiable.  The complainant was offered to opportunity to apply for this role but did not apply for it.

The witness also stated that the complainant did not question the redundancy itself, just the role in question.

Under cross examination it was put to the witness that the role offered was not a suitable alternative in that there were different, more technical requirements.  However, she stated that to her it looked like aspects of the role were part of the complainant’s role.  She stated that this was her first in-depth review but noted that it seemed like a general role.  She noted that the complainant did not apply for the position that was offered to her.

It was put to the witness that the job title was team lead and that there was a question as to how it was different from other team leads and why it would warrant a new job application.  In response the witness stated that it was a different workflow and therefore required a new recruitment process.  It was also put to the witness that no other team leads within the client were selected for dismissal.  The witness respondent that the contract was not being given on a remote basis with the client.

In closing submissions, the respondent noted that they only became aware at the last moment that the client company needed staffing reductions.  It was submitted that this was a client-led process and that it was required to follow the client’s direction.  The respondent submitted that there was a full and fair process.  It was further submitted that the complainant was only interested in remote or hybrid roles and she was invited to apply for a team lead role and a further 13 open roles were advised to her.

The respondent suggested that the complainant has not made adequate effort to mitigate her loss in that she has only applied to four or five roles per month in the intervening 13-month period up to the hearing dates.  Furthermore, it noted that caselaw requires her to seek a role outside her expertise.

The respondent cited the following cases in respect of the onus upon the complainant to mitigate her losses:

Allen Clarke v International Airport Hotel Ltd, T/A Clarion Airport Hotel – UD 454/2013

UDD 1974 Philip Smyth v Mark Leddy

UDD 2313 Castolin Eutectic Ireland LTD v Bogdan Vasarheli

Bidvest Noonan Ltd V Slawomir Lantas UDD2219

UDD2125 Revenue Commissioners and Colm Keane

The respondent submitted that in line with Burke v Superior Express Ltd (UD1227/2014), the complainant had a responsibility to expand her job search beyond her field of expertise, and the standard in demonstrating this is a high one. The respondent further referred to Sheehan Continental Administration Co. Limited, (UD 858/199) in which the EAT held that: [A complainant] “who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work, nor merely to post an application to various companies seeking work. The time that a claimant finds of his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.

The respondent submitted that the complainant has not made significant efforts to mitigate her loss to date and as such, her failure to make significant efforts to mitigate the loss must be taken into account when calculating financial loss for the purpose of redress under the Acts

The complainant disputed the fact of redundancy; the role she occupied with the client company had not ceased.  She submitted that the client company had been acquired by someone else and that this new buyer sought a full return to the office by all staff.  She submitted that her role was being combined into another role and submitted that she did not apply for that role.

Complainant witness evidence:

The complainant noted that she did not have much else to add other than to note that there were suitable alternative roles within the respondent.  She stated that she had sought alternative roles to mitigate her losses, and she applied for 64 jobs over 13 months.  She stated that she was seeking part-time or fully remote jobs to combine work with her family situation.  She stated that there were no full time creche spots available and that she could only enrol her child for 20 hours per week in a local creche and that this limited her options.

Under cross examination the complainant confirmed that she was working as a team lead on an entirely remote basis.  She was asked whether alternative roles were offered to her, and she confirmed that they were.  She confirmed that she was aware of the other team lead role and that she did not apply for it as the role was 100% on site.  She further confirmed that she would only have applied for roles that were suitable for her situation.

In terms of mitigation of her loss, the complainant confirmed that she applied for multiple roles across multiple sectors and at multiple levels.

In closing submissions, the client outlined that she believed that she was unfairly dismissed and believed that this was unfair because there was another role that she could have undertaken.  She believes that the selection criteria were unfair and that an alternative role opened before she was let go.  She submitted that she has tried to find another role and continues to try.

The end of the employment situation came about because the respondent’s client decided to undertake the business with fewer employees going forward.

Section 6(1) of the Act 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 were substantial grounds justifying the dismissal”.

However, Section 6(4) of the Act states as follows:

(4) 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 one or more of the following:

(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.

Although the complainant disputes the fact of the redundancy, Section 7(2) of the Redundancy Payments Act states as follows:

(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

As can be seen from the foregoing, redundancy does not require a role to cease necessarily.  Section 7(2) (b) is of particular relevance to this case.  Although the respondent had not decided to continue working with fewer employees, the requirements of the business - for employees to carry out work of a particular kind in the place where she was so employed ceased due to the decision of the respondent’s client.  This decision was out of the respondent’s hands.  In accordance with Section 7(2)(b), this amounts to a redundancy situation and in that regard the respondent offered the complainant the option of applying for one open position and indicated 13 other possibilities to her.  She chose not to apply for the role or to consider any of the alternative open roles as they did not suit her personal circumstances. 

Having considered all the relevant information provided by the parties, I find that a redundancy situation existed and following on from Section 4(3) of the Act, this dismissal does not amount to an unfair dismissal as provided for in the legislation as it resulted wholly or mainly from the redundancy of the complainant.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the dismissal was not unfair.

Unfair Dismissal – changed business requirements – redundancy situation established - does not amount to an unfair dsimissal