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Employer Obliged to Offer All Alternative Options including Unpaid Leave/Career Break Before Confirming Redundancy

Facts: The Complainant was hired by the Respondent Company in June 2014.   She was made Redundant in November 2020 from her position as Co Ordinator of Egg Donation at the Respondent Clinic.  The Respondent claimed that the reason for the redundancy was due to financial losses within the Company as a result of the Covid 19 pandemic. The Complainant had been on sick leave for 5 months immediately after her maternity leave and she submitted that this was the reason for her dismissal.  The Respondent’s case was that the Complainant’s position was “standalone” and therefore as her position was no longer viable, her dismissal was fair on the grounds of redundancy.  At the time of her dismissal there were other vacancies within the Company that required the skillset of the Complainant.  In November 2020 the Respondent Company made payment to the Complainant of her statutory redundancy being €8,340.00 together with payment in lieu of 4 weeks’ notice.  She therefore brought a claim to the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act 1977.

Decision

The Adjudicator in this case was satisfied that the role of the Complainant was made redundant and the Respondent Company were required to save costs and restructure their business. She was further satisfied that the Respondent had followed procedure in their dismissal of the Complainant.  However, she referred to the earlier decision of Brigid Burns v Component Distributors (CD Ireland) Limited wherein it was highlighted that an employer’s right to restructure for economic reasons is not unfettered.  The reasonableness of the decision to dismiss the Complainant was called into question and it was held that the onus is on the Respondent Company to ensure all alternative positions and options are both considered and offered to the employee before a decision to dismiss is taken.  The Adjudicator included the option of unpaid leave or a career break in the options that should have been considered. The Adjudicator put particular weight on the Complainant’s transferrable skillset and the ease with which she could have taken on another role. She also noted the potential ulterior basis for not making more efforts to offer the Complainant alternative roles.  The Adjudicator awarded a sum equivalent to 9 months’ pay less the statutory redundancy payment to the Complainant, the hearing having been held 7 months after the dismissal.   The sum acknowledged the Complainant’s skill set and the reopening of the economy after the pandemic.

Takeaway for the Employers  

Employers must be able to show that they have done everything possible to avoid termination of employment in order for a redundancy to be deemed reasonable. Retaining employees in their position must be the goal of both employers and employees. Before a redundancy is confirmed, all alternatives (having regard to the employee’s skill set) must be considered and offered to the employee, regardless of the level of the role and/or the temporary nature of the role.

Link  – https://www.workplacerelations.ie/en/cases/2021/august/adj-00032561.html

Authors – Nicola MacCarthy, Anne O’Connell

25th August 2021

Anne O’Connell Solicitors

19-22 Lower Baggot Street, Dublin 2

www.aocsolicitors.ie

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