ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030499
Parties:
| Complainant | Respondent |
Parties | Alan Cameron | Maybin Support Services (Ireland) Limited Momentum Support |
Representatives | Peter McKenna B.L instructed by Daniel Spring & Co. | Dermot O’Laughlin |
Complaint:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00040429-001 | 15/10/2020 |
Date of Adjudication Hearing: 13/07/2021
Workplace Relations Commission Adjudication Officer: Pat Brady
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 joined the respondent in December 2017 as an Industrial Team Manager, initially reporting to the Financial Director. In 2018, following a re-organisation he reported to the new position of Operations Manager, who in turn reported to an Operations Director.
Following a redundancy process, his contract was terminated on August 17th, 2020. |
Summary of Respondent’s Case:
Momentum Support is a trading name of Maybin Support Services (Ireland) Limited and was established in 1982, employing more than two thousand five hundred people and delivering more than three million hours of service per annum.
The complainant, Alan Cameron, was first employed on the December 4th, 2017 as an "Industrial Team Manager" with an annual salary of €50,000.
Mr. Cameron's contract was terminated with an effective date of August 17th, 2020 following a redundancy process.
The respondent began experiencing challenges to its operations as a result of the Covid-19 pandemic. The company recognised that to ensure its long-term survival and sustainability a re-organisation was needed.
The Chief Operation Officer wrote to employees on the May 6th, 2020 to explain the need for change and he concluded as follows;
"The long-term survival, success and sustainability of Momentum Support depend on our ability and willingness to make these changes".
As a first step, the company sought expressions of interest in voluntary redundancy from within the relevant areas, but the level of interest was low. Because of this it proceeded with a compulsory redundancy selection programme.
This was communicated to identified employees on June 22nd, 2020.
The company used an objective selection process that embraced sixteen scoring elements which included skills, experience, performance, attendance and disciplinary record.
Before the process began the HR Director provided extensive training and a wide-ranging guide on the selection process to the Senior Leadership Team and the HR Business Partners, which included the STAR interviewing technique. All those involved in the complainant’s selection received this training.
The re-organisation of the company led to the creation of a new role of Industrial Operations Manager which was an amalgamation of the then roles of "Operations Manager" and "Industrial Team Manager". This placed both of these roles at risk of redundancy.
The complainant attended his first consultation meeting with the Operations Director and HR Director on June 29th.
Following the consultation meeting he attended for interview for the position of "Industrial Operations Manager" on July 6th.
Arising from that interview, he attended a second consultation meeting on July 13th at which he was told of his selection scores and invited to comment.
At the final consultation meeting on July 21st, 2020,the complainant was informed thathewasbeingdismissedbyreasonofredundancy.Thiswasconfirmedin writing on July 23rd, 2020.
His appeal was heard by the Operations Director on August 12th but on August 20th the decision to dismiss by reason of redundancy was upheld.
While this letter postdates the complainant’s termination date, the decision maker needed more time to consider the complainant’s appeal.
Arising from the selection process for the role of "Industrial Operations Manager", the complainantscored54fromapotential75whereastheothercandidateachievedascore of67from75.
The complainant has argued that the new role is fundamentally identical to his previous role of "Industrial Team Manager". However, a study of the Role Profiles suggest that the role of the old "Operations Manager" has more similarities to the profile of the new "Industrial Operations Manager".
While there was a small number of alternative roles within the Administration Department no suitable alternatives were available within the Operations Department
The companydecided because ofthechallenges broughtabout the Covid-19 pandemic that it needed to restructure the organisation toensure its long-term survival and sustainability. In doing so they sought to protect asmanyjobsaspossible.
Unfortunately, seven positions were made redundant in the Head Office, one of which was the role held by the complainant.
The redundancy selection process was carried out methodically in a fair and objective manner and was applied consistently across all areas that were at risk of redundancy.
Unfortunately, there were no suitable alternative roles available for the complainant.
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Summary of Complainant’s Case:
The complainant joined the respondent in December 2017 as an Industrial Team Manager, initially reporting to the Financial Director. In 2018, following a re-organisation he reported to the new position of Operations Manager, who in turn reported to an Operations Director. On September 27th, 2019, the complainant spoke to the HR Director and raised concerns about his manager.The complainant also spoke to the Operations Director and sought a transfer toanotherteam.
In December 2019, his manager approached the complainant and offered him a termination package. It is the complainant’s position that the respondent had been seeking an opportunity to terminate his position and is simply using the pandemic as a pretext.
On May 6th, 2020, the complainant was informed that the company would soon commence a re-organisation and on June 24th, 2020, he was told that his role of Industrial Team Manager was at risk of redundancy, and he subsequently attended a number of interviews.
The complainant contends that the new role of Industrial Operations Manager is in essence his role.
Initially when thecomplainantcommencedemploymenttherewasnoOperationsManagerroleabovethecomplainant but then having created that role, the complainant himself was subsequentlymaderedundant.
Accordingly, the complainant does not accept that a valid redundancy situation existed.
Thecomplainantattendedaninterviewforthe“new”roleonJuly 6th andafurtherconsultationarranged for July 13th where he raised a number of concerns about the questions put tohimandthemarksawarded.
Itseemsthatassumptionshadbeenmadeabout thecomplainant’sdutiesandtherespondentultimatelyagreedtorevisethemarksawarded to him in relation to his response to some interview questions but not others which he felt should have been.
The termination of his employment was confirmed on July 21st, 2019. An appeal against this decision was heard on August 12th, but his final day of employment was August 17th.
He appealed, and the appeal decision issued on August 20th, but it was unsuccessful.
In fact, the complainant understands that the “new” role had been offered to his manager on or before August 21st, 2019. For that reason, he submits that the redundancy process was not fair and simply rubber stamped a pre-determined outcome to remove him from the company.
The complainant was not offered alternative roles in the company.
Further, he was penalised at interview for asserting that the “new” role would require a sixty-hour week when the respondent considered a forty-hour week would be sufficient. Events have proved the complainant correct however as another individual in the company has been tasked with assisting the incumbent in the “new” role and this was not offered to the complainant.
Section 7(2) of the Redundancy Payments Acts 1967 (as amended) defines redundancy and sets out five grounds in which an employee shall be taken to be dismissed by reason of redundancy. The respondent has not indicated which subsection of 7(2) it relies on in seeking to justify the dismissal
Section 6(4) of the 1977 Act provides that a dismissal will not be unfair if it results wholly ormainlyfromredundancy.
The onus is on the employer to justify the selection of the employee for redundancy and the dismissal will be considered under s 6(1) of the 1977 Act. The respondent must show that a redundancy situation existed, and that redundancy was the main reason for the dismissal.
As Charleton J. stated in Panisi v. JVC Europe [2012] ELR 70,
“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967 , as amended, provides, "reasons not related to the employee concerned."
The respondent must also be capable of showing why it selected the complainant for redundancy. It is necessary to consider the means by which the complainant was selected by therespondent to be dismissed and the reasonableness of the steps taken by the respondent toselectthecomplainant,ratherthananotheremployee.
So even if a redundancy situation is held to exist the respondent must separately demonstrate why a particular employee was fairly selected for redundancy as per s. 6(3) of the UDA 1977.
There is an overriding obligation on employers to act fairly and reasonably towards theiremployees. In determining the scope of these duties, principles of due process are followed,andconceptsofadministrativelawused.
Bias is another relevant consideration when considering procedural fairness of a dismissal. It is submitted that, in order to show bias, one does not have to prove actual bias. It is sufficient to show that there is a reasonable suspicion of bias. That test is, is used by McKechnie J in the unanimous decision of the Supreme Court in Reid v Industrial Development Authority [2015] IESC 82 at [52]:
“Thetestforthisclassofobjectionis now well established: in short, it is the reasonable suspicion or the reasonable apprehension test: whilst the latter description has been preferred in Bula Limited v. Tara Mines Limited (No.6) [2004] I.R. 412 (“Bula (No.6)”), both terms continue to be used interchangeably. No longer is there any real suggestion that the once alternative approach, namely a real likelihood of bias, should be considered.”
As Charleton J. stated in Kelly v Minister for Agriculture [2020] IESC 000
“Clearly, the gravamen of objective bias is not that the decisionmaker or investigator formed a pre-judgment, and then tendentiously acted upon it by twisting facts to suit what was already decided, but rather that a person of common sense and reason and in full possession of the relevant background and the facts of the case would reasonably suspect bias may have influenced the process.”
It is submitted that a reasonable apprehension of bias has arisen in this case in circumstances where the complainant’s employment was terminated prior to the determination of the appeal.
The complainant is in his sixties and has found it difficult to gain alternative employment despite his best efforts. For the reasons outlined above, the complainant submits that his referral is well founded. |
Findings and Conclusions:
The facts are as set out in the submissions of the parties and are largely not in dispute.
The complainant says that he was unfairly dismissed. The respondent replies that his dismissal was by means of redundancy and that it complied with all legal and procedural obligations.
Not uncommonly in recent cases the backdrop to this case lay in trading issues being experienced by the respondent as a result of the Covid-19 pandemic. The respondent says it concluded that it needed to reorganise and re-structure its business to cope with future business challenges.
Directly relevant to the complaint was a decision to create a new role of Industrial Operations Manager which was an amalgamation of the then roles of ‘Operations Manager’ (held by the complainant) and "Industrial Team Manager".
This placed both of these original roles at risk of redundancy.
The respondent first sought expressions of interest in voluntary redundancy but got a poor response and then decided to embark on a compulsory redundancy selection programme. A letter issued to those employees within scope on June 22nd, 2020.
In its submission the respondent outlined its approach to the process, including the criteria to be used in the selection which included skills, experience, performance, attendance and disciplinary record.
The selection team was given training in the process. It also embarked on a consultation and selection process, details of which are in the respondent’s submission and his redundancy was confirmed. He appealed unsuccessfully.
The complainant argues that the process was neither impartial not objective and that new post of ‘Industrial Team Manager’ is essentially the same as his former position.
Evidence was heard on this latter point. The respondent submitted that it was not the same; that it was more senior, had different competencies (six in all), involved closer working with accounts and other matters.
I find as a matter of fact that the new position could not be equated with the complainant’s former role, although, given that there was an amalgamation of the positions, the new role did embrace some of the complainant’s previous functions.
However, this type of job reorganisation is not uncommon in redundancy situations and is expressly provided for in section 7 the Redundancy Payments Act (although the complainant was critical of the respondent ‘s failure to specify under which of those particular categories the redundancy fell). It would be helpful had the respondent done so but it is not in any way a breach of the Act that they did not.
He is also critical of some aspects of the detail of the conduct of the process on which nothing really turns; for example, an exchange about the likely demands that would be placed on the postholder.
There was also an issue about the delay in finalising the appeal, and the facts that the complainant’s employment was terminated, and the position filled before the appeal decision issued.
The complainant was notified of his redundancy on July 13rd and he appealed on July 30th.
His employment actually terminated on August 17th, 2020, the appeal was heard on August 12th, but the appeal decision did not issue until August 20th. This delay was explained at the hearing by the decision maker as resulting from his desire to be diligent in his consideration of the appeal.
What was not satisfactorily explained was how the respondent proceeded to bring the complainant’s employment to a conclusion three days before his appeal had been rejected.
Of course, had the appeal succeeded he could have been re-instated but the complainant understandably saw this as evidence that the appeal was a purely cosmetic exercise, and, at the very least, what are these days referred to colloquially as the ‘optics,’ do not look good.
This was explained at the hearing as some sort of communications breakdown.
The respondent seemed to say that the complainant was working out the notice resulting from the communication of July 23rd and no-one spotted the implications of a live appeal which might have rendered the notice period irrelevant.
This is unacceptable but is insufficient to render the redundancy process unfair. There was no evidence that the appeal decision maker was influenced by these separate developments and, in his decision, he addresses each of the grounds of appeal on their merits.
The fault here may not lie with the appeal decision maker (who was the company’s Operations Director and may not have been privy to this degree of detail) but in any event it was certainly known to the HR function which ought to have paused the notice period.
This is bad practice but, and at the very least the respondent should have provided clarity about the interaction between the notice and the appeal.
I note that, had the appeal been successful, that would have rectified the matter.
I find that the redundancy was justified by the reorganisation of the business as provided for in Section 7 (2) (c) of the Redundancy Payments Act 1967,
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’.
Accordingly, I find that the dismissal was fair. |
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 uphold complaint CA-00040429-001 and find that the dismissal was fair. |
Dated: 13/09/2021
Workplace Relations Commission Adjudication Officer: Pat Brady
Key Words:
Unfair dismissal. |