ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00026225
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: 06/03/2020
Workplace Relations Commission Adjudication Officer: Michael Ramsey
In accordance Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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 seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 and has submitted that he was unfairly selected for redundancy (CA-00033422-001)
Summary of Complainant’s Case:
The Complainant commenced employment with the Respondent on the 10th August 2017 in the role of accounts administrator. The Complainant was paid €2,583.00 gross (€2,177,81 net) per month for 35 hours worked.
In his role with the Respondent Company the Complainant believed his key contributions included a complete process review of existing procedures for posting invoices, day to day accounts process including submitting returns to revenue, creating a new method for raising invoices using batch import files resulting in increased productivity and accuracy, creating new ways of submitting VAT and Vat Information Exchange Systems (VIES) returns and implementing new invoicing and return processes in conjunction with the IT director. These systems were used until the time of the Complainants dismissal, and he believed during this period there were no issues with revenue in relation to overdue or inaccurate returns
The Complainants first annual performance review was in May 2018 with a Director and he was given positive feedback and received a 10% pay increase due to his performance and the success of the new systems and this was the maximum pay rise allowed.
In the course of his employment the Complainant attended a day course on GDPR compliance and then had a key role implementing new GDPR processes in the office. The Complainant attended an anti-money laundering seminar in the Department of Justice and playedakeyroleintheanti-moneylaunderingauditwhichwasconductedbythe Departmentof Justice.The Complainant commenced studying for the IPASS payroll qualification in May 2019 and this was sponsored by the company. Further, the Complainant voluntarily took on VIES returns which relate to services renderedoverseasandaredueeverythreemonths.
The Complainant had his second annual performance review in June 2019 with a Director, and received positive feedback in relation to, inter alia, process improvement, good performance and expense knowledge improvements. He was also asked to start working towards starting a project management course. The Complainant, in the course of this review, highlighted opportunities to further improve the accuracy of invoicing spread sheets. The Complainant was informed that due to a decline in business he would not be receiving a pay rise and he accepted that rationale.
In the course of the Complainants employment a staff productivity tracker was introduced in July 2019 for all staff and the Complainant would have to log every task undertaken on a daily basis, how long these tasks took to complete and the priority of the tasks. In October 2019 it was evident that no other staff members apart from the Complainant and the office manager were updating these trackers.
The Complainant was informed onthe3rdofSeptember2019by the Director thathe hadcreateda"GANTT"Chartwhichwasfor his specificroleandlistedoutsomemonthlytasks. The Complainant requested a meeting with the Director and the Office Manager as he believed he was being singled out from his other colleagues as he now had two separate trackers. However, the Complainant was reassured the Directors had no concerns in relation to his performance. The Complainant was further advisedthathewouldbetheonlystaffmemberwhowouldbecompletingthis"GANTT" Chart on a trial basis and if it was effective it would be introduced to other staff members. The Complainant stated he continued in his role and facilitated the Respondent, inter alia, by making video tutorials for colleagues and train staff members.
On the 11th December 2019 the Complainant along with other employees were informed by the Directors for the Respondent that their roles were at risk of being made redundant and any staff member who wished to apply for voluntary redundancy may do so before the 18th of December 2019. They were informed the selection would be made based on a selection matrix but they were not provided with the detail on how each category of the matrix would be evaluated.
The Complainant was extremely anxious and concerned about the pending redundancies and requested a meeting with the directors so he could ask some more questions and receive more information. The Complainant met with two of the Directors on the 12th December 2019 and was informed, inter alia, that possibly 2 employees would be made redundant. The roles being made redundant would be based on the matrix provided by the Department of Employment and ultimately the Directors will make the decision based on the scores from the matrix of each employee.
The Complainant informed the Respondent that he would not be making an application for voluntary redundancy as he enjoyed his roles and further advised that he could not afford to be made redundant due to family commitments. The Complainant was concerned that the scores that would be given in the scoring matrix could only be based upon the subjective opinion of the Directors
The Complainant was informed on the 18th December 2019 by a Director that his role was being made redundant and that he would not be required to work his notice. The Complainant was handed a letter informing him of his redundancy and he was advised to leave the office with immediate effect. The Complainant was extremely distressed and shocked by the manner in which he was informed he was being made redundant and was further distressed he was not afforded the opportunity to prepare for said meeting or bring a representative.
The Complainant contacted the Respondent on the 20th December 2019 and sought a detailed rationale on the decision behind his redundancy and also made a GDPR data request for all information that was on his file. The Complainant was sent a copy of the selection matrix but was not given any details on how these numbers were arrived at nor what they were based upon.
In response to the matrix scores, the Complainant submitted he received lower scores, than the other employees, for performance however he believed this contradicted the feedback he received in both performance reviews especially as his job role was unique, he was required to work on his own initiative, he managed tasks and time frames and all objectives were completed in full and on time.
The Complainant received a lower score for skills and experience, than other employees, and it was stated he was competent in mostaspects but required some supervision. The Complainant submitted this was untrue as he did not have to be supervised and was fully competent in his role. Further, his skill set included advanced IT knowledge, sage experience and customer service experience and he was consistently up-skilling.
Further, in relation to working under his own initiative heading he was scored competent in his current role and also brought new ideas and improvements. The Complainant submitted this contradicted the scoring he was given for skills and experience .
The Complainant requested on the 23rd January 2020 hard copies of all documents on file in relation to himself along with electronic or paper communication in hard copy form to include all email and letter correspondence. The Respondent replied on the 24th February 2020 but the Complainant believed there were certain omissions. The Complainant renewed his original request to include all email and letter correspondence. However, the Respondent replied on the 25th February 2020 stating that they did not find that any emails he had sent or received whilst working with the Respondent were in the scope of personal data and attached email correspondence from his personal email.
The Complainant had the expectation that pursuant to section 4 of the Data Protection Acts, he would receive a copy of any information kept about him on computer or in manual form, in relation to him , his employment, terms and conditions and any communication issued by email or letter either sent or received in relation to the above.
The Complainant submitted the selection criteria was not reasonable and was not applied in a fair manner and after his request for a more detailed rationale, the justification for his dismissal was not explained. The Respondent did not act reasonably when dismissing the Complainant as he was not provided with adequate consultation before the decision was made. The Respondent did not consider or communicate any options including possible alternatives to avoid redundancies. The Complainant submitted that during the process there was minimal communication along with the absence of consultation. The Complainant was not provided with the process or guidance on how to appeal the decision and no support was offered to him during the process. The Complainant submitted the dismissal was carried out in an expedited and personalised way. The Complainant concluded that all the aforementioned put himself and his family under enormous stress and pressure.
The Complainant commenced alternative employment on the 3rd February 2020.
This Complaint was received by the Workplace Relations Commission on the 27th December 2019.
Summary of Respondent’s Case:
The nature of the Respondents business is to provide European accountancy services, taxation advice and social insurance for companies and individuals within the aviation and airline industries.
Due to the adverse downturn in the economy the Respondent stated, in the course of this hearing, that the business had suffered a 52% loss of business. Unfortunately, the Respondent came to the conclusion that due to the ongoing difficult economic situation a 30% reduction of personnel over a 18 month period would be necessary and accordingly this would reduce the personnel in the Irish office.
The Respondent sent a letter to their employees on the 11th December 2019 in relation to possible redundancies. The “at -risk” letter indicated that the Respondent proposed to perform a selection matrix by scoring employees against the following criteria. Namely, performance, skills/experience, punctuality/absenteeism, ability to work on own iniative and customer service skills. All staff were openly invited, in both written and verbal format, to talk to the Directors of the Respondent Company at anytime from when the “at-risk letter” was given out.
The Respondent submitted they did not have any precedent for redundancy selection so the Directors agreed that the underpinning consideration for selection was the successful continued operations of the same range of services in the future with reduced staff resourcing.
On the 17th December 2019 the three Directors met to talk through the scoring of each employee at risk and reluctantly decided that the company required the reduction of two salaried posts.
The Respondent submitted that the they did justify the reason for the dismissal of the Complainant and in that regard they forwarded him a copy of the selection matrix and they further state that the Complainant did not request further feedback or evidence. The Respondent stated they were unaware of the concerns of the Complainant until they were in receipt of the Complainants statement dated the 27th February 2020. Further, the Respondent submitted that they did provide adequate consultation for the Complainant prior to his dismissal including the at risk letter and the meetings on the 12th and 13th December 2019.
The Respondent submitted that whilst on notice period the Complainant did not request any further information or feedback from the Respondent. The Complainant did contact the Respondent three times whilst on his notice period for other information, but not once did he bring up a grievance. The Respondent believed that the Complainant had numerous opportunities to ask them for mediation or discuss the process and selection. In that regard the Respondent relies on their supporting letters and meetings reinforcing their open door policy in line with their grievance procedure. Further, as stated in the Respondents employee handbook , if an employee has a grievance then they should follow the procedure in the handbook to which the Complainant had viewed and signed for. In that regard, it is noteworthy that throughout the Complainant’s employment he had often demonstrated this understanding by approaching them if he had any matters to raise or discuss. The first time the Respondent became aware of any grievance was upon receipt of this complaint from the WRC.
In relation to the Complainants submission that he was singled out in the course of his employment in relation to issues such as productivity trackers and GAANT charts the Respondent submitted that they did not single out the Complainant in relation to these matters. Especially in relation to the latter matter the Complainant was informed that he was being used to trial the chart and then it maybe rolled out to other staff. The Respondent accepts they did ask the Complainant to complete video tutorials and train other employees as they considered him a valuable member of staff who could share his knowledge with other employees.
The Respondent submitted that the Complainant makes! reference to the fact that they did not consider all options including possible alternatives to redundancy. However, the Respondent stated in the at risk letter that “this is only a proposal and no final decision will be made until the matter has been discussed fully with you and all employees at risk. The Respondent Company will continue to try to identify ways in which your redundancy can be avoided and throughout the redundancy process will continue to try identify suitable alternatives where possible within the Company.'
The Respondent submitted that for eight months prior, the Directors looked at every other alternative available in order to reduce costs, including alternative roles , reduced hours and short term lay offs. In the period from the 11th to the 18th December 2019 the Respondent offered employees the opportunity to make any suggestions or alternatives in order to avoid redundancy but no suggestions were forthcoming from any of the employees. The Respondent believed they considered all alternatives available.
The Respondent submitted that they always tried their very best to be a good supportive and considerate employer to their employees. The Respondent endeavoured to explore and secure new business but it was not enough to offset the impact of the continued decline of their core client numbers. Accordingly, they had no viable alternative and regrettably had to select employees for redundancy.
It is the Respondent’s position that the Complainant is not entitled to succeed in relation to this complaint.
Findings and Conclusions:
In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of this hearing by both parties.
The Complainant submitted that he was unfairly selected for redundancy where no genuine redundancy situation existed.
The statutory definition of redundancy is located in the Redundancy Payments Act 1967, Section 7 (2) as amended which provides that:
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, or
(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or
(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained
The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:
“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:
(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b) the conduct of the employee,
(c) the redundancy of the employee, and
(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”
Under Section 6(3) of the 1977 Act there may be a finding of unfair selection for redundancy where an employee is dismissed but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have 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, 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.”
Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides
“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal”
Under Section 6(4) redundancy is a substantial ground and once the redundancy is established the employer has discharged the onus. However, an employee may meet a redundancy defence by claiming the unfair selection under Section 6 (3).
In Williams –v- Comp Air (1982) 1 ICR 156, Browne-Wilkinson J in considering the issue of fair selection, identified the following as generally accepted principles governing how reasonable employers will typically act:
1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.
2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.
3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.
4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.
5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.
In Boucher –v- Irish Productivity Centre (1994) ELR 2005, this was an illustration of an unfair selection process. In this case, no agreement was reached as to the method of selection for redundancy. The selection process was carried out by without any consultation or interviews In describing this selection procedure as unfair and holding that the claimants has been unfairly dismissed the Employment Appeals Tribunal emphasized that those in the group likely to be dismissed should be made aware that such assessment is being made and they should be given an opportunity to give their views which should be considered.
InMulligan –v- J2 Global (Ireland) Ltd (UD/993/2009), in respect of redundancy the tribunal stated:
“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases thate may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”
In JVC Europe v Panasi (2011) IEHC 279, Charleton J stated:
“ It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason.”
“The comment on the nature of redundancy made inSt. Leger v. Frontline Distributors Ireland Ltd.,  E.L.R. 160 at 161 to 162 by Dermot MacCarthy S.C., as chairman of the Employment Appeals Tribunal, is apposite:-
“Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy of note that the E.C. Directive on Collective Redundancies uses a shorter and simpler definition: ‘one or more reasons not related to the individual workers concerned'.
Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in numbers. Definition (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. Under these two definitions change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words ‘other work'. More work or less work of the same kind does not mean ‘other work' and is only quantitative change.”
Justice Charleton also remarks that “It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go, should be examined”.
He also comments
“As a matter of contract, where selection procedures for redundancy, or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed. Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision.
As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course”.
In the circumstances of this case, I accept on behalf of the Respondent Company that from a business and operational point of view and in light of the economic downturn that there was evidence of a genuine redundancy situation and therefore the Respondent has discharged the onus that the termination of the Complainants employment came within a lawful reason pursuant to section 6 of the Unfair Dismissals Act.
However, this does not absolve the Respondent from affording the Complainant fair procedures in relation to consultations or exploring alternatives. Upon consideration of the above relevant case law cited and the evidence presented at the hearing and noting the respective position of the parties I have concluded, on the balance of probabilities, that there was a genuine consultation process and the Respondent endeavoured to explore alternatives. In particular, I accept the evidence of the Respondent that for eight months prior, the Directors looked at every other alternative available in order to reduce costs, including alternative roles , reduced hours and short term lay offs. I have further noted the Respondent Company did provide evidence in relation to redundancy procedures used including the use of matrices for selection for redundancy.
In the particular circumstances of this case, I fully accept this has been a very stressful and difficult time for the Complainant and his family. Although it is not a deciding factor in this matter, I do not accept that the Complainant was singled out from other employees in relation to productivity trackers or other internal procedures that the Complainant raised in the course of this hearing. The Respondent confirmed at the hearing of this matter that he was a highly valued employee and it was with regret that they had to make his position, along with one other employee, redundant.
Accordingly, I find that the Complainants dismissal was not unfair, in the circumstances of this case, and therefore this complaint fails.
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 find that the Complaint (CA-00033422-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977, fails.
Workplace Relations Commission Adjudication Officer: Michael Ramsey
Unfair Dismissal Redundancy