EMPLOYMENT APPEALS TRIBUNAL
APPEAL OF: CASE NO.
EMPLOYEE -claimant UD2245/2010
against the recommendation of the Rights Commissioner in the case of:
UNFAIR DISMISSALS ACTS, 1977 TO 2007
I certify that the Tribunal
(Division of Tribunal)
Chairman: Mr. T. Ryan
Members: Mr M. Carr
Mr J. Maher
heard this appeal at Trim on 22nd January 2013 and 9th July 2013
This case came before the Tribunal by way of an employee appeal of the Rights Commissioner Recommendation ref: 7-087633-ud-09/JW under the Unfair Dismissals Acts, 1977 to 2007.
The respondent operates an envelope manufacturing company and employed the claimant from 23rd August 1989 until he was selected for redundancy effective from the 6th Of January 2010. The claimant maintains he was unfairly selected for redundancy.
The Production Manager gave evidence explaining the role of an adjuster as a key role in the business, involving mechanical and printing skills. The standard of an adjuster can vary from person to person, some staff are better performance wise than others. It takes about five to six years to become a successful adjuster. The aim of the redundancy process was to retain key skills resulting in the best production team to help the business survive. All staff were assessed in the process. The matrix process was based on skill and no preferential treatment was given to relatives or others. The intention was to retain the best team.
The Production Manager told the Tribunal that he carried out the assessments of staff, along with the Production Supervisors’. The claimant was an adjuster with the company. A matrix was used to assess staff. Overall the claimant was not operating to standard, he received a low scoring on attendance as he had a time keeping issue. He had a verbal warning on his record but scored high on his disciplinary assessment as the verbal warning was given to him in 1996 so was not taken into account for the purposes of the redundancy matrix.
The claimant received a promotion purely based on service with the company. The witness stated that the claimant totalled 32 in the matrix scoring. The claimant was spoken to informally about his attendance record. The overall ability of the claimant was taken into account. The Supervisor would have spoken to the claimant maybe four to five times over the years, informally, about his ability to perform. The Production Manager indicated that the claimant received a safety qualification and was allowed paid time off to complete the course. The company was too small to allow the claimant to work full time on Health and Safety.
Under cross-examination, the Production Manager stated that he consulted with the Production Supervisors on the redundancy process. He told the Tribunal that he felt it was appropriate for him to be involved in the decision making. The Production Manager was also involved in the appeal process. The Managing Director was also made redundant by the Board of Directors. This was after the claimant’s redundancy.
The Production Manager indicated that the three Production Supervisors positions were made redundant and all three were then given the role of adjusters on a reduced salary. Compared to the claimant, they were better skilled, could change the machinery on time and were faster than the claimant. The Production Manager said that the three Production Supervisors made the decision with him. When asked who assessed the three Production Supervisors, the witness stated that he did. The reason the claimant was moved around between machinery was not because of his ability but because the company tried to get him a machine he was comfortable with.
GQ, another adjuster with 6/7 years service was retained in the warehouse to cover as an adjuster during times of staff on sick leave/annual leave. The claimant was not offered the warehouse job. When asked if the claimant would have been capable of the warehouse position, the Production Manager stated the GQ, who was working in the warehouse, also provided cover as an adjuster. Even though GQ was only with the company for 6/7 years, he was very good at what he did. The reason he was in the Warehouse, came down to the scoring.
Of the 17 people made redundant, three or four were brought back temping on and off, depending on the work load. The Production Manager denied that 15 of the 17 were taken back on. There are currently 41 employees with the company.
In reply to the Tribunal, as to what plan was put in place in relation to the performance of the claimant, the witness stated that as well as running a training course, he worked more closely with the Supervisors moving to different machines and different shifts but with no real improvement. At the time the company was prepared to live with it.
The Production Supervisors assisted the Production Manager in scoring all the production staff. Verbal warnings remain on record for a six month period. The verbal warning was not used against the claimant in scoring. The Production Supervisors did not know their own positions were being made redundant when they helped with the scoring. An individual meeting was held with the claimant regarding his score. The claimant did not agree with his scoring. There were no minutes of the meeting with the claimant.
RW told the Tribunal he was a Production Supervisor at the time of the redundancies. He reverted back to a position of adjuster with a reduced salary and less responsibility when the redundancies were made. At the time of scoring, he filled out a sheet for each person, gave an honest decision and agreed with the decisions made. He said that the claimant would need help but not all of the time. The claimant was not the only employee who needed help with the machinery. The witness denied that preferential treatment was given to others and stated that 15 staff were not taken back on after the redundancies. RW had been working with the claimant for at least fifteen years. He would rate the claimant at the bottom of the list based on the current 10 adjusters working with the company. RW never flagged his opinion to the claimant. He said the claimant knew he was struggling. There was always a problem with the 202 machine but others could get it going. RW was responsible for seven adjusters at the time.
JW a production supervisor gave evidence that a good adjuster has to have a mechanical mind. The claimant was not a good adjuster. JW was asked to score the matrix based on the best team going forward. JW agrees with all the redundancy decisions made. JW had very little interaction with the claimant; he was not his direct supervisor. JW was not aware that his supervisor position was being made redundant at the time he scored the matrix; he only found out when he was informed his position was redundant.
PW, a production supervisor and the claimant’s direct manager gave evidence. PW spoke to the claimant about his performance on many occasions. PW informed the claimant that of all the adjusters, he ranked in the bottom two; this was 2-3 years before the redundancies took place. The three supervisors were included in PW’s mind when he informed the claimant that he was in the bottom two. PW was asked his opinion on each adjuster and asked to complete the matrix for each one. PW believes the right people were selected for redundancy and that his scores were fair. The claimant had been promoted to assistant supervisor on seniority grounds alone.
The claimant was employed as an adjuster with the respondent in 1989. After 6 years he was promoted to assistant supervisor as a reward for all his hard work. The claimant also completed additional Health & Safety training. The claimant outlined his many achievements with the respondent during his employment.
The claimant accepts that the respondent business was in trouble. Redundancies had been made within the respondent 18 months previously on a voluntary basis. The claimant was aware that another round of redundancies were being made 2-3 months prior to his selection. He was aware that 10 adjusters including the 3 supervisors were to be made redundant. The Union had been in negotiations with the respondent in order to minimise the volume of redundancies.
The claimant was informed he was being selected for redundancy on the 6th November 2009. This was the first time redundancy was mentioned to him individually; no prior consultation had taken place and he had not seen the matrix used for his selection until that meeting. It was only at this hearing that the claimant was made aware that the production supervisors also completed the matrix. The claimant did challenge his scores at the meeting as he had much more and broader experience than some of the other staff. As the claimant was not “privy” to the selection process he is not aware if his Health & Safety qualification was taken into consideration in the matrix. This was “the last chance” meeting so his representations had no effect on the outcome. There were no alternatives offered. The claimant is aware that some of the other staff that were made redundancy returned to work on a temporary basis 2 days later; the claimant was not informed of any vacancies.
The claimant gave evidence of his loss and his attempts to mitigate his loss.
The shop steward and the Union official both gave evidence that the matrix was not devised in consultation with the Union and that they strongly objected to its use. A combination of voluntary and LIFO redundancy practice had been in place previous to the use of the selection matrix. The Union were not involved in the redundancy process on an individual basis.
The Tribunal, having considered all of the evidence adduced, is satisfied that the entire redundancy process used in selecting the claimant for redundancy was unfair. The Tribunal upsets the Rights Commissioner Recommendation ref: 7-087633-ud-09/JW and finds that the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds and the claimant is awarded €30,000 in compensation under the Acts.
Sealed with the Seal of the
Employment Appeals Tribunal