Complainant

Respondent

Parties

Zsuzsanna  Orosz

Pinkerton Consulting & Investigations (Ireland) Limited

Representatives

Kevin Gately of Kevin Gately Mediation

Company Manager

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-00062674-001

09/04/2024

The issue in contention was the alleged Unfair Dismissal of a Global Audit Analyst by an IT Consultant/Security Agency. The employment began on the 25th of November 2019 and via a TUPE transferto the Respondentcontinued until the 9th February 2024.

 The rate of pay was stated by the Complainant to have been €6,250 per month for a stated 45 hour week.

The Complainant was represented by Mr Gately. She gave a detailed Oral Submission supported by a substantial written submission.

In essence her complaint was that she was Unfairly Dismissed by the Respondent Employer very shortly ( within 10 weeks) after the Respondent had taken over the contract by TUPE.

There was no explanation given to her other than the fact that the Multinational where she had been working since 2019 had decided to remove her from their work situation. The Employer had simply told her that as the main Multinational - Company A -had decided that she was not suitable for them she had to be let go. The Employer was a small operation in Ireland and had no other suitable work for her.

The Complainant alleged that she had recently returned (mid 2023) from Maternity Leave to the Multinational. Things had changed and she was never given an opportunity to “Catch up”. She alleged that she was referred to in the Multinational as a “Stressed Out Mother” not really capable of her job anymore.

It was grossly unfair that she lost her employment because of a decision taken by a Third Party, the Multinational , over which she had no redress or right of investigation or appeal.

2:1        The Respondent gave an Oral Testimony from Manager H.  His argument was that his Company had taken over the Multinational Support contract on the 1st December 2023. The Multinational-Company A , had informed him in early January that the Complainant was not suitable for their business and they were withdrawing her site facilities. She was not to work on their account anymore. The Respondent Account Manager had visited the Multinational but to no avail. The Multinational alleged that Complainant had basic performance and attendance issues that fell below the standards required. Their view was made up

He, Mr H for Respondent, met with the Complainant, informed her of her potential Redundancy and as they had no other suitable work she was made Redundant. His view was that he had been as sympathetic as possible and only wanted the best for an employee in a difficult situation. He had mentioned her maternity situation but only in a helpful manner.

She had been treated fairly and given a most reasonable settlement of approximately €14,000. The matter was effectively out of his hands.  An Appeal mechanism to an Independent Manager had been advised but was never followed through even though a letter of Appel had been received.

2:2        Third Party Evidence from Mr W of X Company – TUPE predecessors of the Respondent in the Multinational contract.

Mr W gave evidence that the Complainant had worked without incident for his Company. On her return from Maternity Leave some “catch up” issues had arisen. An Audit had identified some performance issue with the Complainant – she needed to “learn and grow”. The Complainant had disagreed and an incident had taken place with her Supervisor in September2023  A Mediated Settlement had been arranged but was overtaken by the TUPE process.

3:1        Legal discussion

In any discussion of Unfair Dismissal the touch stone legal precedent has to be Mr Justice Flood in Frizell v New Ross Credit Union  IEHC  137  It is worth quoting in full.

In Frizelle v New Ross Credit Union Ltd 1977, IEHC  137 Flood J. stated that where a question of unfair dismissal is in issue, there are certain matters which must be established to support the decision to terminate employment.

“1.

The complaint must be a bona fide complaint unrelated to any other agenda of the Complainant.

2.

Where the Complainant is a person or body of intermediate authority, it should state the complaint, factually, clearly and fairly without any innuendo or hidden inference or conclusion.

3.

The employee should be interviewed and his version noted and furnished to the deciding authority contemporaneously with the complaint and again without comment.

4.

The decision of the deciding authority should be based on the balance of probabilities flowing from factual evidence and in the light of the explanation offered.

5.

The actual decision, as to whether a dismissal should follow, should be a decision proportionate to the gravity of the complaint, and of the gravity and effect of dismissal on the employee.

Put very simply, principles of natural justice must be unequivocally applied.”

This is the touch stone case and Statutory instruments such as SI 146 of 2000 – Code of Practice on Grievance and Disciplinary Procedures would in effect be putting into practice what Mr Justice Flood outlined.

A complicating factor in this case is that it did not appear that the Respondent Employer was an Employment Agency. The relief available of Transfer of Liability from the Respondent Employer to the “End User” Multi National  A as in Section 13 of the Unfair Dismissals ( Amendment Act) 1993 did not seem applicable. It was not pleaded by either Party.

The basic  fact was that the Complainant was dismissed , made redundant ,after some 10 weeks of a TUPE transfer. The decision had been made in January 2024 by the Multinational Company.

However all cases rest on their own facts and situation and these have to be considered below.

3:2          Oral and Written evidence  presented.

Manager H for the Respondent gave considerable Oral testimony. His evidence was that the Multinational  Company A had decided that the Complainant was not suitable for their business and she had to go. In cross examination it was revealed that the Complainant may have been in some difficulties with the previous Contractor. Questions of PIP plans etc were discussed. However these were overtaken by the TUPE process. It was clear the Complainant was, allegedly, not “without blemishes” prior to the Transfer.  The Third Party evidence from Mr W of the previous Contractor, referred to above, was relevant.

Mr H for the Respondent had tried to get the Account Manager to speak to the Multinational on the issue. This was to no avail. After this, Mr H essentially acted as a sympathetic facilitator in this case. His evidence was clear in that he was trying to do his best for the Complainant.

The Multinational wanted the Complainant off the Account and accordingly the Respondent made her Redundant. Proper procedures were followed and a Redundancy settlement was offered.

However, Legal precedents caution strongly regarding Redundancy being used as a “cloak” to cover other issues.

Mr Justice Charleton in Pansi v JVC Europe Ltd [2012] ELR 50 stated clearly

In an unfair dismissals claim ,where the answer  is asserted to be Redundancy ,the employer bears the burden of establishing Redundancy and of showing which kind of Redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead ,it must result from ,as s 7(2) of the Redundancy Payments Act 1967, as amended ,provides ,”reasons not related to the employee concerned”. Redundancy cannot, therefore be used as a cloak for the weeding out of those employees who are regarded  as less competent than others or who appeared to have health or age related issues. If that is the reason for letting an employee go, then it is not a Redundancy ,but a dismissal.”

In this case the Respondent employer was anxious to secure the Multinational Account and replaced  the then incumbent Cntractor. Interestingly a Manager from the Former Contractor gave brief Oral testimony. The Complainant had had issues during the Contract under the previous Contractor.

Reverting to Mr Justice Flood above the question of Natural Justice  arises.

Multi National A clearly was the decision Party irrespective of whether it was the first or second Contactor. In the TUPE discussions choice/profiles  of staff transferring etc must have featured. The TUPE involved some six individuals in a Multinational setting of thousands of employees. The Complainant was the only and almost immediate  Redundancy.

Manager H saw his role, it appeared, as effectively managing the fallout from the Multinational  instructions. He was most anxious to remain on good Commercial terms with Multinational A and his own superiors. He had no other work for the Complainant. She was made Redundant . There was no effort made to ascertain ,other than a brief contact with the Account Manager, why the Multinational wanted her off the Account, no interviewing of witnesses , follow up etc.

In a TUPE situation, if one of the first actions post a Transfer, is the Redundancy of a single individual while her Team remain, Mr Justice Charleton’s comments above seem apt.

In a TUPE commercial arrangements it is normal for all Parties to establish certain “ Financial Contingencies” relating to Staff issues, possible redundancies etc. It was not clear if any of these had been entered into here. The number of staff involved was very small ,approximately six persons. The Multinational involved is a very major employer in Ireland. Oral Evidence from Manager H and the former Contractor Manager, Mr W ,clearly pointed, to a reasonable observer, to the prospective Redundancy of the Complainant ,following the TUPE, being discussed. To believe otherwise would simply stretch normal credibility.  

In this case the Multi National A cannot simply walk away from this decision even if legally they are not the direct employer. They wanted the Complainant off their account. Natural Justice was clearly not followed -there was no effort to counsel or appraise the Complainant. No appeal was offered at Multinational level. The Complainant argued that the TUPE process was ,in essence a convoluted Cloak, to cover her removal without redress. In their Oral Testimony the Respondent , Mr H and Mr W for the TUPE predecessor , under cross examinations from Mr Gately , for the Complainant ,struggled with this point.

 It was not pleaded by either Party that possibly the case might have been better served by a TUPE / Transfer of Undertakings Claim. The Respondent accepted that they were the Employer and had paid Redundancy . The Unfair Dismissals claim rests with them.

3:3        Adjudication Conclusion.

The Redundancy arose out the “ hands off” wishes of Multi National A. The Respondent employer clearly had no work for her .  It was hard to see Natural Justice here , to follow Mr Justice Flood. Redundancy arose out of issues in Multi National A. The Complainant was never afforded any opportunity of addressing these issues or offering any rebuttal.

The key issues is one of Employee Rights. A Multinational can engage a Contractor to carry out work- in this case since November 2019. If the Multinational decides that the Contractor Employee is not “a good fit” they have a commercial right to seek the employees removal. However, where this decision is going to effectively make the Employee Redundant from the Contractor without redress, or any rights of Natural justice the issue becomes complicated.

The offer of an Appeal hearing was unclear but from Oral Testimony was not actively encouraged by the Respondent.

The spirit of the Unfair Dismissal Acts,1977 was to ensure justice for Employees. A TUPE where the immediate impact is a Redundancy without a fair examination of the reasons would appear to be at considerable  variance with Mr Justice Charleton in Pansi v JVC Europe Ltd [2012] ELR 50 as quoted above.

Accordingly ,the view of the Adjudication is that an Unfair Dismissal on basic Natural Justice grounds took place here.

Unfair Dismissal, TUPE Transfer.