Complainant

Respondent

Parties

Mary  Ward

Cooleeshil Limited

t/a Grafters Hair Company

Representatives

Anthony Feeney

Fergus A Feeney Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00068141-001

16/12/2024

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely.  I am also satisfied that I was in a position to fully exercise my function, and I made all relevant inquiries in the usual way.

In response to the 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), I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice.  I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and 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 to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

The Specific Details of the complaint are outlined in the Workplace Relations Complaint Form which was received by the WRC on the 16th of December 2024.

At the completion of the hearing, I did take the time to carefully review all the oral evidence together with the written submissions made by the parties. I have noted the respective position of the parties.  I am not required to provide a line-by-line assessment of all the evidence and submissions that I have considered. Any matter not specifically addressed is 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 that a

“…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…”. 

The Complainant was not represented and made her own case. When it came time to hear the Complainant’s evidence, the Complainant agreed to make an Affirmation to tell the truth. The Complainant relied on the submission set out in the Workplace Relations Complaint Form.  I was provided with supplemental documentary evidence in support of the Complainant’s case. No objection was raised to any of the materials relied upon by the Complainant in making her case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative.

The Complainant alleges that her role was made redundant and it follows that she is entitled to a Statutory Redundancy payment.

Where it also became necessary, I explained how the Adjudication process operated with particular emphasis on the burden of proof which had to be attained by the Complainant in the first instance.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed

The Respondent had full legal representation at this hearing. The Respondent entity was also represented by the company owner as a witness. The Respondent provided me with documentation including what’s app messages as evidence of the Respondent position. No objection was raised in connection with any of the documentary evidence relied upon by the Respondent in the course of making its case. All evidence was heard following an Affirmation.

The Respondent rejects that the Complainant is entitled to Statutory Redundancy and asserts that the Complainant knew or ought to have known that she had employment elsewhere.

Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute.

I have carefully considered the evidence adduced in the course of this hearing. The Complainant commenced her employment with the Respondent Hair Salon based in Longford in August of 2001. The Complainant was engaged as a receptionist and according to the time sheets which have been provided the Complainant worked anywhere up to 23 hours a week. The Complainant worked almost exclusively for the Longford Hair Salon premises for the first 20 years of her employment. It is noted that there is a mobility clause within the Contract of Employment which allowed for the Complainant to work off site as part of her role.

In and around the period leading up to Covid it seems that the Complainant started to also work at a sister Hair Salon operating up the road in Carrick on Shannon.

The evidence is that the Complainant worked different days across both salons and that by 2024 the Complainant worked mainly in Carrick though she still put in shifts in Longford. I accept that the Complainant’s place of work remained as per her original Contract of Employment and was specified to be Longford. This remained the case even after the updated Contract of Employment was provided in and around 2014. The Complainant never moved full time to Carrick on Shannon.

There is no doubt that the Complainant was very happy in her employment and that she had a singularly good relationship with the owner Manger of the hair salons PB.

It is an unfortunate fact that the premises leased out by PB in the town of Longford was destroyed by an all-consuming fire in July of 2024. PB gave evidence that she tried her level best to re-start her business in Longford but against a backdrop of dwindling resources, and her own recent bereavement, PB was forced to admit that she was not going to be able to reopen the premises in Longford again.

On the 3rd of October 2024, PB called together the fourteen members of staff who worked in Longford to advise that the workplace was no viable and that all the roles were going to be made Redundant.

The Complainant was present at this meeting. The Complainant was to my mind entitled to be present at that meeting as she continued to be an Employee at that premises albeit she was redeployed to the Carrick on Shannon site as often as not.

I appreciate that this was a difficult, perhaps even emotional meeting. It is however worth noting that the Employer did not appear to suggest that there would or would not be openings in the Carrick on Shannon premises. There was no discussion on that occasion around the issue of alternative employment options with any of the staff.

The Respondent – PB - was making the entire staff of this premises Redundant without reference to her second salon in Carrick on Shannon. The two salons were being treated as entirely separate entities. This is important because had the Respondent seen her obligations as being across her two salons then she would have had to treat this situation as one of a collective redundancy. Assuming the second premises had as many employees as the first then the Respondent was looking to make 5 or more people out of a staff of 20 to 50 redundant. This is, by definition, a collective redundancy which obliges the Employer to commence a thirty-day consultative process. This did not happen. The Longford premises/workplace was being treated as a stand-alone entity.

However somewhere in the mix is the role carried out by the Complainant, who certainly worked across both premises. It seems clear that those days that the Complainant worked in Longford would not be available to her moving forward.

I have no doubt that the Complainant after 24 years of service was happy to take a Redundancy package and I believe that the PB had no difficulty with that being the case and it was in these circumstances that the Complainant seemingly indicated that she would take her redundancy and not continue to work in the Carrick Salon wherein she had been working a few days a week  as she was obliged to do so under her mobility clause. This formed part of a friendly conversation held after the 3rd of October 2024.

I am satisfied that PB did not suggest or confirm that the Complainant was being offered an alternative role on a full-time basis in Carrick on Shannon. There was no suggestion that the Respondent was in a position to offer the Complainant her full complement of hours (to include those worked in Longford) in Carrick. In fact, there  was very little said between the parties and even less committed to paper. PB says that the Complainant resigned her role at this time though no notice of resignation was required or received. I accept that PB as an Employer was aware of the formalities surrounding the formal tendering of a resignation. She did not look for a formal resignation and was, to my mind, aware, that the Complainant wanted to take the redundancy in circumstances where her workplace of 24 years was being permanently closed.

I am therefore concluding that there was a complicit ambiguity around what the Complainant and PB understood the position to be at the time. Added to this was a failure to understand the implications of seemingly tendering a resignation on the part of the Complainant and/or of not formally offering the alternative employment on the part of the Respondent.

I believe that the Complainant was happy to be made Redundant form her role in Longford and had no interest in transferring to Carrick on a full-time basis. PB did not object to this and very quickly set about the task of training up a new receptionist in Carrick. All of the (friendly) what’s app messages between the parties at this time attest to this being the case.

On the 19th of October 2024 the Complainant along with her thirteen fellow colleagues was made formally redundant by a letter from PB who indicated that she was outsourcing the question and calculation of redundancy to a third party.

PB engaged TG as the accountants to deal with this matter. I have not seen any paperwork supplied to TG, nor have I seen any response or advice provided by TG concerning the Complainant and her co-workers. What I have been told is that TG asserted that the Complainant was not entitled to Redundancy in circumstances where she could have remained in Carrick on Shannon. It seems therefore that for the purpose of the third-party assessment conducted by TG the option of legitimate and appropriate redeployment to Carrick on Shannon was considered. It was considered even though it had not been previously suggested. It seems also that TG assessed that the Complainant was offered a suitable alternative role commensurate with the one being made Redundant when in fact this does not seem to have happened. The Complainant was never formally invited to move over (full time) to Carrick on terms and conditions as favourable to the ones she had.

It seems to me that TG took the liberty of merging the two workplaces for the purpose of assessing the redundancy herein. As noted, if the Respondent was looking at redundancies across two premises with over twenty employees then a process of collective redundancy consultation ought to have been initiated. The Respondent was not so advised and the Complainant lost out on her 30-day consultation period during which all options might have been more clearly assessed.

More importantly, the Complainant was never advised that having received that offer of suitable alternative employment, the Complainant would not be entitled to any Redundancy package. Had this been made clear to the Complainant I am satisfied she would not have tendered any resignation without a bit more thought.

The Complainant and indeed PB, on behalf of the Respondent, discovered that TG had taken the view outlined and the Complainant on or about the 6th or 7th of November 2024.

I noted that in his closing submission the Solicitor acting for the Respondent stated that suitable alternative employment continues to be available to the Complainant up to the date of the hearing of this matter though I have no evidence of any such offer  having been received.

On balance I am satisfied that the Complainant was made redundant from her role in Longford when the premises from which she had been working for 24 years was burnt out resulting in a loss of work for all staff. I do not attribute any particular significance to the fact that the complainant had been in more recent years expected to work in a premises other than Longford as there was a mobility clause in her Contract which allowed for this.

Crucially I am not satisfied that the Complainant was ever offered a suitable alternative role in another premises with her hours of work intact. There was no discussion around this.

Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967

CA-00068141-001  - I allow the Complainant’s appeal against her Employer decision and find that she is entitled to an award under the Redundancy Payments Acts  based on the following facts:

The employment started: 31st of August 2001

The employment ended: 19th of October 2024

Gross weekly wage : €356.00