ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00028929
A Service Technician
A Ventilation Company
Complaint 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: 18/02/2021
Workplace Relations Commission Adjudication Officer: Pat Brady
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.
The complainant began his employment with the respondent on April 1st 2019. He received notice of the termination of his employment by reason of redundancy on May 15th 2020 and the employment ended a few days later.
He earned €500.00 per week
Summary of Complainant’s Case:
The complainant say that he was sent an email on May 11th by his line manager saying that he would be getting further details on May 13th about his return to work which would then recommence on May 18th.
However, when that email arrived it stated that his employment was being terminated on May 15th .
He questioned this and was told that as he was the most recently recruited he had been selected for redundancy.
He says that there had been two people recruited after he started; one in August 2019 and another in March 2019.
There was no selection process for the redundancy that he was aware of and he says that he was unfairly selected for redundancy in a manner that constitutes an unfair dismissal.
Summary of Respondent’s Case:
The respondent draws attention to the severe impact of the pandemic on its business services which involves attendance at domestic premises to service its products.
The recruitment of the complainant was with a view to trying to establish a full-time service department.
However, the service that the respondent set up in the second half of 2019 and early 2020 was not breaking even.
The respondent concluded that a different approach was necessary.
In late February/early March as the incidence of the Covid-19 pandemic was increasing it was clear that revenues would decline further. This meant that decisive immediate action was needed to keep the company financially viable.
Profits were again low in 2019 as in previous years and payroll costs had to be reduced immediately.
On March 13th, 2019, emergency action was taken. Manufacturing staff were put on temporary layoff, directors suspended their salaries and a 20% reduction in pay was applied to all remaining employees.
During this period, the situation regarding home servicing (the complainant’s role) was not considered, or it is possible that the complainant would also have been laid off.
In May, when government permitted the return of open-air or external construction operations, the respondent decided that a service operation within homes would not be viable. This would mean that the complainant would no longer be required.
The respondent MD stated that a selection matrix for the evaluation of at-risk employees was used and the complainant scored worst of the three candidates. The target was to reduce the number of employees by one.
No interviews were held with any of the candidates. One person was excluded from the process because he had long service.
Findings and Conclusions:
The respondent went to some lengths during the hearing to stress the adverse impact of the pandemic on his business.
Of course, and especially given the nature of that business it is easy to accept that there might have been such an adverse impact.
Anyone living in Ireland (or indeed anywhere affected by the pandemic) would be fully aware of the universal, and in many cases devastating impact of the virus on business and community life; an impact which continues to this day.
Indeed, it remains to be seen what the full impact of the crisis will be on the workplace and on communities.
All of that noted, one thing that has not changed is the applicability of the core principles of our employment laws and, most notably, and perhaps most importantly, the underlying and fundamental obligation to apply fair procedure in matters affecting a person’s rights. The pandemic provides no exemption from its writ.
Redundancy will provide a lawful basis for the termination of employment under the Unfair Dismissals Act, 1977.
The Redundancy Payments Acts 1967 to 2007 provides the legislative basis for assessing redundancies and a valid redundancy situation is deemed to have occurred where a dismissal occurs "wholly or mainly" from one of the following situations:
1.Where an employer has ceased or intends to cease to carry on the business for the purposes for 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.
2.Where the requirements of the business for an employee to carry out work of a particular kind, in the place where he was so employed, ceased or diminished, or are expected to cease or diminish.
3.Where an 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.
4.Where an employer has decided that the work for which the employee has been employed should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained.
5.Where an employer has decided that the work for which the employee has been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work, for which the employee is not sufficiently qualified or trained.
It should be noted that a redundancy will not be a valid defence to a claim for unfair dismissal in circumstances where either:
The employee was unfairly selected for redundancy or was selected for redundancy in a manner not consistent with his contract of employment or the previous manner in which redundancies had been dealt with in the company provided that there is no special reason such as would justify a deviation from prior standard practice, or,
Where the redundancy is not a genuine redundancy situation.
Where an employee alleges that they have been unfairly selected for redundancy the onus of proving fair selection and therefore a fair dismissal rests with the employer.
In this case, the respondent submitted evidence of what was described as a ‘staff performance matrix tool’ on three employees including the complainant.
One other employee was excluded on the basis that he had ‘long service’.
This is very strange as ‘Length of Service’ is one of the criteria under which people were assessed as part of the selection process. Any credit due to that employee for long service would have worked its way into the selection criteria.
In response to a question the Managing Director of the respondent said that the selection exercise was carried out sometime between the notification to the complainant on May 11th and the notice of his termination on May 13th.
The complainant gave evidence that he knew nothing about the selection process.
Interestingly in an email to the complainant on May 18th the respondent stated;
‘As you are one of the most recent hires, I am sorry but you are one of the people whose service we have to dispense with from this Friday’.
It strikes an odd note again that, having gone to the trouble to construct and carry out a ‘staff performance matrix tool’, the respondent made no mention of it in writing to the complainant, a matter of a couple of days after it had allegedly been carried out, according to his evidence.
It is not the only odd thing about this process, leaving aside for now the fundamental point that the complainant knew nothing about it.
For example, the complainant scored 9/25 for his qualification and skills, 7/20 for attendance/punctuality 8/10 for Communication/Listening Skills, 10/20 for ‘Work Quality’ and also for ‘Versatility’, and, incomprehensibly 10/25 for something described as ‘Customer Demand’.
Bear in mind that the complainant had only been recruited about a year earlier and yet his qualification and skills had become less than half what was needed in that period (even less allowing for the layoff period).
But critically, the complainant (and likewise his colleagues) were given no opportunity to dispute any of these criteria or the interpretation put on them. Were there mitigating factors in relation to attendance, for example, what aspect of ‘customer demand’ was attributable to the complainant’s skills or lack of them, and one could go on.
I have very great reservations about the credibility of the respondent submission on this point and it seems highly unlikely that any such skills selection process took place at all.
Even if some version of the exercise took place, which I doubt, it fails entirely to meet the requirements of a fair process.
In my opinion, it has all the appearances of having been drafted for the purposes of the hearing but without any apparent insight as to what the requirements of such a process are.
And this is to say nothing of the obvious exposure of the respondent to the complainant’s assertion that this was the first he heard of any selection process.
Further suspicion is cast on the fairness of the process by the following.
It appears that the respondent’s business made a dramatic recovery and that by September it was in need of additional employees (although it failed to find any who were suitable). In response to a query about why the complainant was not considered for re-employment the company MD opined that he would have been unlikely to make it through the recruitment process.
This misses the critical point that the complainant had been suitable for twelve months; it was his post that was made redundant. This reinforces the general impression that the complainant was dismissed under what has been well described as ‘the cloak of redundancy’.
This is a minor aspect of the matter as there is sufficient indisputable evidence in the failure to apply a fair selection process of the requisite standard of fairness.
The complainant’s case is well-founded. It is clear that the object of the exercise was to produce a pre-determined outcome; the termination of the complainant’s employment.
The termination of his employment was unfair in that procedures applied to the selection of the complainant for redundancy were unfair and quite seriously so.
In considering compensation for losses attributable to the dismissal I am required to take into account the fact that the complainant was unavailable for work from November 2020 and my decision does so.
The complainant was available for work from the date of his termination in May up to November 2020.
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 complaint CA-00038480-001 to be well founded and award the complainant €10,000.
Dated: 9th March 2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Unfair Dismissal. Selection for redundancy