This appeal against the Recommendation of the Rights Commissioner, involved a claimant’s position in audit, in the respondent accounting firm, becoming redundant while she was on maternity leave without the offer of an alternative position.
Due to the decrease in the volume of work, there was a requirement for redundancies. The respondent gave evidence of a request for a meeting with the claimant in July, but that this had been refused since the claimant was away. It was at this point, the claimant informed the respondent of her intention to return to work in August. The claimant first became aware of her redundancy on receipt of a letter notifying her that her position had been made redundant. The respondent stated that this letter sent in July informing the claimant of her redundancy on completion of her maternity leave, was done so as to provide her with sufficient time to make arrangements for after her maternity leave expired.
The claimant gave evidence that she requested additional 16 weeks unpaid leave while she looked for another job, however this request was refused, by an email which stated that “You need to move on as there is nothing further we can offer you.” The respondent claimed that this request was refused as the claimant had already been notified of her position being made redundant.
The lesser position of bookkeeper was advertised in July; however even though the claimant was open to the idea of taking a pay cut, this position was not advertised to her. The respondent stated that as a qualified accountant with 3 years’ experience this position was not suitable for her and that this was the reason for not advertising it to her.
It was claimed by the respondent that a meeting was held in August, where the claimant accepted that there was no work available within the company.
Some time passed and the claimant was yet to receive her P45, so she emailed the respondent to inform them that she would be returning to work the following Monday. Upon her return to the office, she was not granted access and was instead issued with her P45.
DETERMINATION
On the evidence adduced, the Tribunal found that the respondent should have offered the claimant the advertised alternative position of bookkeeper. The Tribunal also found that redundancy should not have been effected while the claimant was on maternity leave and that the procedures used were flawed.
For these reasons, the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds and an award of €40,000 in compensation was made to the claimant.
LEGAL REVIEW
While the form and timing of individual consultation will vary depending on the circumstances, the employer should, at a minimum, inform the employee in advance of the proposal to make the position redundant, giving the reasons for the proposed changes and the proposed process affecting it. The employer should also seek the employee’s feedback on the proposals, particularly as to any alternatives to redundancy and/or options for redeployment.
If your employer makes you an offer of suitable alternative work, and you refuse it, you may lose your entitlement to a redundancy payment. Generally speaking, alternatives which involve a loss of status or worsening of the terms and conditions of your employment would not be considered suitable. Your justifiable refusal of an offer of alternative (as opposed to suitable alternative) work, followed by dismissal, may entitle you to seek statutory redundancy or make a claim for unfair dismissal. Any offer of alternative work should be given to you in writing and you are entitled to full information concerning the details of the offer.
Any purported termination of employment while an employee is on a period of maternity leave or additional maternity leave will be void. Section 27 of the Maternity Protection Acts states that an employee is entitled to return to work on the expiry of a period of maternity leave:
i) to employment with the same employer or if a change of ownership, the new owner;
ii) the same job and the same contract of employment held immediately before the start of the period of leave;
iii) terms and conditions not less favourable than those that would have been applicable if they had not been absent from work, which also incorporate any improvements to which the employee would have been entitled to.
Where it is not reasonably practicable for the employer to permit an employee to return to the job held before commencing protective leave, the employee is entitled to be offered suitable alternative work under a new contract of employment.
While an employer is entitled to dismiss an employee due to redundancy, this does not release the employer from his obligations under contract and/or statute, namely, contractual notice periods and/or notice entitlements under the Minimum Notice and Terms of Employment Acts 1973- 2001 and compliance with consultation requirements including those imposed pursuant to collective redundancy and exceptional collective redundancy legislation.
CONCLUSION
When considering the option of redundancy, employers should be aware of the necessary procedures which must be implemented, the requirement to inform employees of the proposed redundancy and the possibility of alternative positions or redeployment and in every case the provision of a consultation period.
Full Decision:
http://www.eatribunal.ie/determinationAttachments/b4bdbcbc-bdcf-4905-b8d3-2602a25c99cb.pdf
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