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Agency Worker “Manoeuvred” Out of Employment

This week we look at a recent Workplace Relations Commission (WRC) case in which an agency worker claimed to have been unfairly dismissed after she took maternity leave. Our Adrian Twomey highlights the key points to note in the case of Loonam v Element Six Limited, ADJ-00030702.

The Respondent, Element Six Limited, is a company that is part of the De Beers Group and specialises in providing synthetic diamond and other hard materials for industrial use.


It seems that the Complainant, Ms Gráinne Loonam, spent two periods of time working for the company. Her first stint at Element Six terminated at the end of a period during which she was on maternity leave. The Adjudication Officer’s decision indicates that Ms Loonam was later re-employed in an administrative role, albeit through an agency called Eflexes. She was paid €29,083.41 per annum. She worked part-time hours but seems to have had a multiplicity of duties, including acting as a personal assistant to a senior manager as well as discharging finance, accounting, administrative and human resources functions.


Ms Loonam was, once again, on maternity leave in the early months of 2020. She was due to return to work in May of that year. She had been replaced by a maternity cover worker during the period of her maternity leave. It seems that on 7 or 8 May 2020 the Complainant was either informed that her role was to be made redundant or that she was at risk of redundancy. The company appears to have maintained that the a redundancy situation arose because of the COVID-19 pandemic and a consequential reduction in travel by employees of the company and the group and, therefore, a reduced need for administrative staff to make arrangements for such travel.


Diamonds

Ms Loonam’s employment was subsequently terminated with effect from 28 May 2020. The company claimed that the reason for this termination was redundancy. It also claimed that a full and fair consultation process took place before the redundancy was implemented.


Ms Loonam initiated a complaint to the WRC under the Unfair Dismissals Act 1977 (as amended) on 6 November 2020. Her case was heard on 26 October 2021 although a decision was not issued until 13 December 2022. The WRC’s decision does not give any reason for the delay.


Interestingly, the Adjudication Officer noted that the individual who took up a “temporary” position providing cover during the Complainant’s maternity leave:

  • had left a permanent job to do so; and

  • was offered – and accepted - another position with the company on 11 May 2020.

Ms Loonam was never offered or apparently even considered for that other position. Rather, when she was made “redundant” she was told that there were no other suitable vacancies and that the person who was covering her maternity leave would also be leaving the company. The Adjudication Officer clearly found these facts to have been significant and suggestive of foul play on the part of the employer. He concluded that:


“I find that the complainant’s dismissal was unfair because the redundancy was not genuine…. While the travel element obviously diminished, the complainant had a proven track record across many functions. The redundancy dismissal was completed in a very short period of time, and it is not clear what the urgency was. Most significantly, there was a vacancy which the complainant was well suited for but for which she was never considered. The replacement obtained further employment with the respondent and the agency while the complainant was manoeuvred out of her employment. It follows that the dismissal was unfair.”


The Adjudication Officer noted that the Complainant had made every effort to find alternative employment but was unsuccessful in her efforts. He awarded her compensation in the amount of €43,625; the equivalent of 18 months’ pay.


Employers should note that dismissals are not automatically deemed to be “fair” simply because they arise to due supposed redundancy, even where redundancy lump sums are paid and accepted. The WRC and Labour Court must be satisfied that redundancies are genuine and that appropriate efforts have been made to avoid job losses and to discuss alternatives with impacted employees. In this case, the very different treatment meted out to a woman returning from maternity leave and her “temporary” replacement must certainly have raised suspicions.


It is also worth noting that the employee succeeded in her unfair dismissal claim against the company despite the fact that she was employed by an agency. Employers should remember that they may be liable for the dismissal of agency workers if those individuals are placed with them for a year or more.


Those who require advice in relation to redundancies or other dismissals or who need representation before the WRC or Labour Court can contact our Adrian Twomey.

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