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A legal executive has been awarded €50,000 for unfair dismissal after being “targeted for redundancy” by a Dublin law firm when “cashflow dried up” because of the effect of the pandemic lockdown on the courts.
A witness for the company said the complainant “came into the firing line” because the firm was “running out of money” with cases on hold at Dublin Circuit Court.
The Workplace Relations Commission upheld a claim under the Unfair Dismissals Act by Sharon McCauley against Miley & Miley LLP of Molesworth St, Dublin 2 along with a further claim for unlawful deductions from her pay.
Ms McCauley had claimed the firm engaged in a “sham redundancy” when it dismissed her on July 21st, 2020, using the downturn in business because of lockdown to justify letting her go after she complained of stress and several rows with her line manager.
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The law firm argued it had taken “several months of deliberation and fair consultation” to decide to make Ms McCauley redundant in a process that started in May 2020.
The firm’s managing partner, Stephen Miley, said Ms McCauley had proposed moving to a four-day week the year before, citing stress.
He said the partners had discussed cost-saving measures to deal with the impact of lockdown on the firm in May 2020 and decided to place Ms McCauley on a three-day week from the start of June.
Mr Miley said Ms McCauley was informed of the partners’ decision to put her on a three-day week at a meeting on May 20th.
“There were two reasons the meeting was called, one, the issue of the three-day week, the other, stress,” Mr Miley told solicitor Ursula Cullen, defending the claim.
Propose alternatives
The firm submitted that it put Ms McCauley on notice on June 30th and asked her to propose alternatives, but that she did not propose any.
He said by July that year the business situation had deteriorated even further, and the partners discussed the question of redeploying her at a meeting on July 17th.
“It was noted that Sharon could not be redeployed. Her skills were almost exclusively in the area of insurance defence litigation. She was not in a secretarial role,” he said.
She was notified of her redundancy on July 20th.
John Walsh, the firm’s litigation partner and the complainant’s line manager, said in his evidence that Dublin Circuit court was “effectively closed” for a period of 15 to 18 months because of the pandemic and the firm was left with a “body of work that we could not progress further”.
“With litigation, it was a sudden stop and the cashflow dried up,” he said. “For the first time in my time in August 2020, we issued no invoices, not a penny,” he added.
“In those circumstances, unfortunately Sharon came into the firing line. The stress issue didn’t come into it,” he said. “I could care less about the business but I cared about my employees and my friend,” he added.
“The catalyst for the decision was that we were running out of money,” he said. “We did not see any of the major cases that we had in the pipeline coming for hearing for more than a year. That later transpired to be the case,” Mr Walsh said.
“I can tell you with absolute clarity that the issue of Sharon’s state of health never came into the discussion. What was being discussed was how the department was going, any light at the end of the tunnel,” he said.
In cross-examination, Ms McCauley put it to Mr Walsh that there was a row between them in December 2019.
“You took exception to attending the Circuit Court at 10am and the High Court at 11am,” Mr Walsh said, telling the hearing Ms McCauley said: “I’ll need a saw to cut myself in half.”
His response was: “No need to be a smartarse,” he said, adding that he had apologised, thought the matter was resolved, and didn’t have a “grudge” about it.
“You will recall that I apologised for the remark,” Mr Walsh said.
Mr Walsh said Ms McCauley had an issue accepting “constructive criticism” and referred to a case in which there had been a two-year delay in taking affidavits – and that he had to step in and handle the matter himself.
On that occasion he said to her: “Sharon, that can’t ever happen again.”
Ms McCauley said she had found the case file in another office, where documents were stored on the floor, and said she could not be blamed for the delay.
“Having left my office it took you three minutes to get up the stairs to say you were being stressed,” he told the complainant.
‘Chosen for redundancy’
In her own evidence, Ms McCauley said she had first been employed as a “locum solicitor/legal executive” in September 2012.
She said she was “chosen for redundancy” because of the issues she had raised and her difficulties with Mr Walsh.
“They thought I’d come after them with a personal injuries claim,” she said.
I just wanted a job. My job can be a legal executive, a solicitor’s role or a legal secretary if push comes to shove,” she said.
Cross-examined by Ursula Cullen, for Miley & Miley, she agreed she had asked to go on a four-day week but said she had proposed being “available from home” on the fifth day.
“That’s what’s in my email,” Ms McCauley said.
Ms Cullen put it to the complainant that her claim was “frivolous”.
“I was made redundant and I believe it to be a sham redundancy,” Ms McCauley replied, adding: “I’m just doing what I’m legally entitled to do as a citizen of Ireland.
In closing, Ms Cullen argued the redundancy process was fair and that as the only legal executive in the company it was impossible to consider Ms McCauley on an equal basis with qualified solicitors.
“The stress issue was not the reason for making Ms McCauley redundant,” she said.
Ms McCauley said she believed she was chosen for redundancy because of the “incident” with John Walsh in December 2019 and the case where there was a delay in the taking of affidavits, and added that the firm failed to properly engage with her during the redundancy process.
“I determine that the conduct of the employer was not reasonable,” wrote adjudicating officer Brian Dalton in his decision, published on Thursday, ruling that Ms McCauley was unfairly dismissed.
“It would appear on the facts that this employee was targeted for redundancy. No serious review of her skill set, and experience was conducted to assess if she could have been redeployed to another area or report to or part help another partner,” he wrote.
Mr Dalton noted that the firm made no mention in its submissions of looking for support payments from the government to keep its staff in employment, and said the evidence was that no other staff were made redundant or had their hours cut.
“By failing to consider realistic alternatives other than redundancy during a pandemic… including the alternative of availing of the employment wage subsidy, the employer’s action, omission and conduct significantly contributed to the loss sustained by the employee,” he added.
He ordered Miley & Miley to pay Ms McCauley a year’s pay of €50,000 for unfairly dismissing her, and a further €2,692.34 for unlawful pay deductions when the firm placed her on a three-day week.