ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00018106
An Engineering Company
Cliodhna Breen B.L instructed by Michael Woods, Solicitor
Complaint Reference No.
Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000
Date of Adjudication Hearing: 23/01/2019
Workplace Relations Commission Adjudication Officer: Pat Brady
In accordance with Section 41 of the Workplace Relations Act, 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 is a professional engineer with a special expertise in waste water treatment. He was employed between July 21st 2014 and September 24th 2018 when he was made redundant. He earned €1153.00 per week.
Summary of Complainant’s Case:
The complainant was employed as a project engineer with a specialist brief for waste water for the respondent’s business (which is not a waste water business).
He was told that he was being made redundant as his position was costing too much.
The respondent did not apply ay consultation or selection procedures and his position was not actually made redundant.
He offered to continue in the role even on the basis of a reduced salary.
Summary of Respondent’s Case:
The respondent says that the complainant was effectively in a ‘pool’ of one. His role was not in any way interchangeable with others he wished to be considered as relevant for inclusion in the selection process.
There was a discussion with the complainant on September 24th, 2018 and he was put on notice of redundancy the following day.
When he sought further information, this was provided. He was given detailed information in a letter on September 26th 2018 as to why he was being selected for redundancy.
The reason the complainant was selected for redundancy was a result of the diminution of the role. He did not have the skills necessary to fill other posts.
He was given notice and paid a statutory redundancy payment.
Findings and Conclusions:
There is a preliminary issue to be considered on this case.
The complainant, who was not legally represented at any stage, made his complaint under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000.
This is a provision that relates to collective redundancies and clearly has no application to the facts of the complainant’s case.
He confirmed at the hearing that this had been an error in selection of the ‘drop down’ menu on the WRC website.
The respondent attended the hearing with full legal representation and witnesses, including the company owner and its General Manager and prepared to defend the general complaint of redundancy. Accordingly, I proceeded with the hearing and address this as a preliminary point below.
In fairness also, the respondent did not raise any serious objection to the error or to the hearing proceeding.
The respondent’s case is that the specialised role performed by the complainant was no longer required by it.
A detailed letter sent on September 26th outlined in some detail three reasons given for the redundancy of the complainant.
First, that project management for which he had been recruited was coming to an end with the near completion of those projects.
Secondly, that work for which he had been recruited had not materialised as expected and that the company had currently none of that work and thought it unlikely that there would be any in the future.
Thirdly, shipment documentation in which he was involved had diminished and that there were now only a few such shipments.
On the face of it these would constitute good grounds for reviewing the need for a post undertaking these roles.
In that situation it is important that the principle of impersonality be respected; essentially a separation of the post and the postholder.
The respondent says that there was no real interchangeability between the complainant and those he described as being in a possible selection pool. The complainant did not substantially dispute this at the hearing, although in his job description he is described as ‘Project Engineer & Wastewater Treatment Specialist’.
Yet the point at which this needs to be transparent is in the course of the selection process itself, and to the party involved, and not just in defending proceedings at the WRC. There were deficits in the respondent’s approach to this and the process appears to have been compressed into a few (two, it seems) short days between September 24th and 26th, which is far from adequate.
While I am satisfied that a genuine redundancy situation existed there are a number of aspects of the respondent’s handling of the matter which give rise to concern.
The first is the speed with which the matter was conducted. As with any termination of employment the process is of critical importance. Even where there may be a redundancy situation within the meaning of the Act the selection process assumes a central importance.
In this case it appears that the time between notification to the complainant that his position was at risk and the decision to terminate it was a couple of days. The complainant even had difficulty in getting details in writing of what was being proposed.
It will be clear from the above that the complainant did in fact receive a redundancy payment, which is the only remedy available under the Redundancy Payments Acts.
A complaint of unfair dismissal would have to be processed under the Unfair Dismissals Act and clearly it is not within the jurisdiction of an Adjudicator to amend a complaint in such a significant way.
Therefore, as I find, on the above facts and evidence that the complaint would not have any merit even if considered under the Redundancy Payments Act the amendment of the complaint above would be a pointless exercise.
Accordingly, I decline to do so, and the complaint is not upheld.
[Section 39 of the Redundancy Payments Acts 1967 – 2012 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under that Act.
For the reasons set out above I do not uphold complain CA-00023338-001 and it is dismissed
Dated: 20th March 2019
Workplace Relations Commission Adjudication Officer: Pat Brady