ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00010010
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00013011-001 | 08/08/2017 |
Date of Adjudication Hearing: 22/01/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Procedure:
In accordance with 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.
Background:
The complainant is a junior sales representative, employed with the respondent on this contract since 7/2/13.He works 48 hours a week and is paid €612.56 a week. On the 22 February the respondent advised the complainant that he was being made redundant. The complainant contends that it was not a genuine redundancy or that in the alternative,he was unfairly selected. He understands that that the respondent engaged a replacement who is performing his duties. He submitted his complaint to the WRC on 8/8/17. |
Summary of Complainant’s Case:
The complainant was originally employed with the respondent in 2000-2009 at which point he was made redundant. He resumed employment with then respondent on 7 February 2013 as a junior sales representative. The salesforce of which he was a member was comprised of four salespersons who worked with a wide range of customers. The complainant’s job was to provide parts and source items for 10 garages operated by one of the respondent’s clients, client A. He was the only employee exclusively engaged with this customer. At the start of his employment in this role he was advised that he would be given additional and different customers/ companies. Those customers were given to other representatives. He drove about 2400 km per week in supplying their requirements. The account for supplying parts to client A was put out to tender. The managing director informed the complainant at the end of November 2016 when the complainant was passing his office that they had lost the contract with client A to whom the complainant had been assigned. He did not advise him at that point of a possible redundancy. The managing director told the complainant in early December that his job was safe now but that he could not guarantee anything. But should the contract be lost the respondent would have to make up job another for him perhaps packing boxes. The complainant was upset by this communication. The complainant states that he did advise the managing director at this time that he did not want to work with the current telesales manager whom he describes as aggressive and rude to other people. It was put to the complainant that it was the telesales job or the road. The managing director said that they could fire the complainant at that point if that was what the complainant wanted. This was the extent of the discussion concerning alternative employment. The complainant states that he was not put formally on notice of redundancy. Meetings took place across the company with staff in early December to consider how to address and or reverse the fall off in business. After the December meeting the complainant made efforts to gain different customers. The suggestion at the January crisis meeting was for the complainant to continue to call to the organisation to which he had been assigned. There was no downturn with other customers of the respondent. The complainant was looking to get more customers. The only consultation which occurred in February was a warning to the complainant to the effect that if he didn’t double his sales, changes would have to be made. The complainant understood this to mean that his position would be endangered. No procedure on how redundancies would be effected was put to the complainant. On 21 February the then sales director phoned the respondent and told him that he would no longer be continuing in his position and offered him the option of resignation. He was asked to clear his work phone and return same. On 22 February he was invited to attend a meeting with the managing director, the then sales director and the area sales manager. He was advised that he was being made redundant and was to hand over the phone. There was an advertisement for a telesales rep in February due to the departure of another employee. In reply to a question he confirmed that contrary to the assertions of the respondent he was not offered a job in telesales in either January of February. The complainant states that had he been offered, he would have accepted it. The complainant states that he never refused any position. He accepts that he did say that he did not wish to work with telesales manager late November / early December He states that he applied for 40-50 jobs, got one interview and has heard nothing since. The complainant repeats that he was unfairly selected for redundancy and that it was not a bone fide redundancy. |
Summary of Respondent’s Case:
The respondent operates an auto parts distribution business. The complainant had been employed in a sales capacity from 2000-09 since 7 February 2013. He had worked in a sales capacity from 2000- 2009 when he was made redundant. He resumed employment with the respondent as a junior sales representative in 2013. Witness 1: The Managing Director gave evidence. The junior sales executive role which the complainant occupied was primarily bound up with client A. The complainant was not confined to servicing client A. He chose not to extend his portfolio of customers during his time with the company. In 2016, the company with which the complainant was almost exclusively engaged replaced 914 out of 2100 vehicles with the consequential reduction in the need to supply spare parts. They put the contract for spare parts for the remainder out to tender. The respondent did not succeed in their bid. This reduction represented approximately 66% of the total workload in their business. The respondent only kept parts for one car type and kept the rotating electrics business and this coupled with the reduction in cars requiring service had a major impact on their business. The loss of the contract, notified to the respondent at the end of 2016 was relayed to the complainant who expressed the view that his job was in danger. The managing director in evidence stated that he told the complainant on the 9 December that due to the loss of two thirds of a contract with the customer with whom he was primarily engaged he might have to be taken off the road and moved into telesales. The complainant asked about retaining the company car. Nobody has a car in telesales. The complainant replied that the respondent was” ruining his life and make me redundant” The company declined because they could not afford to make him redundant at the time and there was work for him in the telesales counter. He was advised that he might have to move into the telesales area and off the road. And he was encouraged to look for additional business elsewhere. The respondent decided to retain the much-reduced contract with client A as it might generate future business. It was obvious that it would not be a full- time job. The respondent spoke to the complainant every week in January 2017, updating him. He was left to work full time on the road. The respondent wished to see if redundancy could be avoided. At the end of January, the respondent notified the complainant that they would have to review the situation. The managing director states that he advised the complainant on 22 February that the 5 day a week job on the road was no longer viable. He could keep the car, work 2-3 days on the road, work the remaining days in telesales and keep the company car. The complainant rejected this offer. The managing director advised him that as there was no full-time job on the road, and because he was unwilling to accept their offer of an alternative role, he would have to make him redundant. That is why the complainant was offered redundancy The complainant was not replaced. After the complainant left, another employee in telesales absorbed what was left of the auto-parts contract for 2 days a week into his own job. The respondent advised that they engaged another person for the telesales job in May 2017 but that he left a short time later. The advertisement placed in 8 February was for a marketing role. Witness 2: The then Sales Director gave evidence He stated that he visited all garages with the complainant in an effort to drum up more business. The witness stated that the complainant acknowledged that if they were to lose the contract with client A, his job would be endangered. The witness also asserted that the complainant advised him that under no circumstances would he work under the telesales manager. The witness refutes the complainant’s assertion that he telephoned him in Waterford on 21 February informing him that he would be made redundant. This witness attended the meeting on 22 February where the complainant was offered the part -job in telesales combined with 2 days in supplying auto parts and tools, and to which he responded that under no circumstances would he work with the telesales manager. The witness stated that when driving to Clare with the complainant last year, he told him about the telesales job. Witness 3: The Area Sales Manager gave evidence of his attendance at the meeting on 22 February when the complainant was offered the job in telesales and declined same. The witness stated that he, the Managing Director and the former Sales Director had encouraged him to try and develop business outside of client A. He stated as well that the complainant had said to him that his job was finished should they lose the contract with client A. The complainant’s competence is not an issue. The respondent’s witnesses in response to questions from complainant’s legal representative confirmed that they hold the contracts for 2 transport providers but the only parts which they supply to these companies are filtration bulbs. The respondent could have maintained that they offered him reasonable alternative employment but chose to offer him redundancy instead. |
Findings and Conclusions:
This is a complaint of unfair dismissal on the basis that the redundancy was not genuine or in the alternative, that he was unfairly selected. Two Questions arise. 1.Was it a genuine redundancy and if so 2 What obligations lie with the employer? The grounds which must exist to satisfy the definition of genuine redundancy are set out in section 7(2) of the Redundancy Payments Act 1967 and amended by the Redundancy Payments Act 1971 and 2003 and are ”an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to— (a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or (c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise. The Employment Appeals Tribunal in St Ledger v Frontline DistributorsIreland Ltd., UD 56/ emphasised that there were two important characteristics in the statutory definition of redundancy, namely impersonality and change. The EAT held: “impersonality runs through the five definitions in the [Redundancy Acts]. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job” It is common case that the contract with client A was much reduced. Both parties accept that this resulted in a much-reduced workload for the complainant. The complainant did not dispute the respondent’s evidence that he had acknowledged the consequences for himself should the contract with client A be lost. He was wholly or mainly engaged with client A unlike other members of the sales force. The evidence is that he was not replaced. The job that was advertised in February was a marketing job. What remained of his sales representative job with client A (which amounted in time to 2 days a week) was subsumed into the job of another telesales employee. A temporary telesales appointment was made in May 2016. The evidence submitted demonstrates that a genuine redundancy existed in accordance with section 7(2) (b) and (c) s of the Act. Obligations on Employer in selecting an employee for redundancy. The claim of unfair selection for redundancy is the second limb of the complainant’s complaint. It is correct that the respondent did not supply the complainant with a copy of a procedure. But both parties accept that the downturn in the business was confined to the area of business in which the complainant was wholly or mainly engaged and that he was the only employee working with that client whose failure to maintain the contract led to the reduced need for the complainant’s services. The complainant did not identify other positions to which he could be assigned. There is a conflict of evidence as to why he became corralled into servicing client A. The complainant did not dispute that the loss of 2/3rds of the contract. The complainant had accepted that he would have had a difficulty working with the telesales manager. His own evidence is that he was notified in November 2016 of the loss of the contract. He stated in evidence that there were meetings in December and January to consider ways of addressing the downturn. He states that he was advised of the option of a part job on the road combined with a part job in telesales. He indicated himself that the would not work with the manager in telesales – the inference being that consideration at the very least was underway regarding a job in telesales. Three witnesses attested to the fact that he refused the option put to him on 22 February. This coupled with his own statement that he would not work with the telesales manager lends credibility to the respondent’s assertion that he rejected the offer of alternative employment which would have seen him maintain his salary and the company car as opposed to his own statement that he was made no such offer. I do not find that his disclosed difficulties with the telesales manager was an adequate reason to reject this alternative offer of employment. I find that the respondent kept the complainant appraised of the consequences of the loss of the contract with Client A, delayed a decision to see if the situation could be rescued and redundancy avoided, and offered him alternative employment. Redundancy is a defence against a complaint of unfair dismissal. But this is qualified by section 5 of the Unfair Dismissals(Amendment) Act 1993 which requires that the conduct of the respondent in carrying out the redundancy must be reasonable. On the basis of the evidence and the law, I do not find that the complainant was unfairly selected for redundancy |
Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
I do not find the complaint to be well founded. I decide that the complainant was not unfairly dismissed. |
Dated: 12/09/2018
Workplace Relations Commission Adjudication Officer: Maire Mulcahy
Key Words:
Genuine redundancy; rejection of offer of alternative employment. |