ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004920
A Housing Aid Manager
A local partnership development company
Complaint/Dispute Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977
Date of Adjudication Hearing: 26/04/2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
The complainant contends that he was unfairly dismissed by reason of redundancy and that the redundancy was a sham as a replacement employee was engaged by the respondent.
Summary of Complainant’s Case:
The complainant was employed as a Housing Aid Project Manager from 28th April 2008 to 29th April 2016. The CEO of the respondent met with him on 24th March 2016 and told him that the project was being restructured and that his post was being made redundant. He was offered and given a “termination package” which was in fact statutory redundancy. It is submitted that there was no consultation, no other options considered such as redeployment and that he was given no right to representation or appeal. He specifically asked if he had done something wrong and if so, should he not have had the opportunity to correct it. There was no offer to upskill or retrain. He noted there was an advertisement for a successor to him and found that very many of the duties were the same as the duties he carried out. In the circumstances, the complainant contends that this “termination package” was a sham redundancy designed to oust him from his employment and therefore constituted an unfair dismissal.
Summary of Respondent’s Case:
The respondent rejects the claim that the complainant was unfairly dismissed. He was provided with the statutory redundancy requirements as required by the legislation and there was no element of “sham” in the process. The Housing Aid Service provides a small scale construction and maintenance service to the residents who are vulnerable and disadvantaged people who would not otherwise be able to contract builders and tradespeople to do such work. The budget to fund the construction materials comes from a mixture of public and private bodies. Following some extended period of unsatisfactory performance of the service in terms of finance of which he was fully aware, the complainant was informed of the need to totally restructure the operation in March 2016. In that context the role he occupied was to be made redundant. The respondent was concerned that part of the reason for the unsatisfactory performance of the service was the complainant’s poor management of his team in terms of scheduling work, quality of work completed, pricing of jobs and a lack of skill in the general financial management that is required in reporting on the use of public monies. However his redundancy was a factor of the role becoming inadequate to the need for a more inclusive set of skills beyond those of the construction trades, rather than being based on his performance. At a review meeting in mid 2015, the complainant was offered a performance bonus to meet some basic targets by the end of that year. He was also provided with informal supports by other staff to aid his pursuit of recovery. However the set targets were not achieved and the service incurred more losses. It is argued that the rationale to restructure was the continued provision of a valuable service to clients and the preservation of jobs which would be lost if the service had to close. It is submitted that in meetings conducted in March the complainant accepted the fact that the service was not performing in a sustainable way and that following some reservations expressed about his reputation, he accepted the redundancy.
Findings and Conclusions:
The applicable law
Section 6 (1) of the Unfair Dismissals Act 1977 (as amended) provides:
“Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal”.
Section 6 (3) of the Act provides :
“(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either –
(a) The selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or
(b) He was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971 [as amended by the Industrial Relations Act 1990], representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure, then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”
The evidence indicates that the selection of the complainant in this instant case was made for reasons of his shortcomings in the marketing and financial areas. It is well established that redundancy should not be utilised to remove an employee from his/her job. (JVC Europe Ltd – v –Panisi  IEHC 279 being one High Court decision). The evidence shows that performance reviews showed that the service was not performing. However, the complainant was not subjected to any disciplinary process or given the right of representation or appeal. No other options were considered in the restructuring aside from removing the complainant from his employment. In the circumstances, I deem that the selection of the complainant for redundancy to have been an unfair dismissal and I uphold his complaint.
I find that the complainant was unfairly dismissed from his employment. Neither re-instatement or re-engagement are suitable remedies in the situation where the position has been filled. I note that the complainant has received a payment on termination and I find that compensation in the amount of €12,000 should be paid to the complainant by the respondent.
Dated: 11th July 2017
Workplace Relations Commission Adjudication Officer: Gaye Cunningham