ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00030660
Parties:
| Complainant | Respondent |
Parties | Christopher Meja | Time Data Security Limited |
Representatives |
| Aimee Hart – Shared Services Director Aoife Morris - HR Manager |
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-00040933-001 | 10/11/2020 |
Date of Adjudication Hearing: 02/07/2021
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal is not in issue, the evidential burden of truth rests with the Respondent. Per Section 6(6)of the 1977 Act, in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
In the case before me the Employer seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee (as provided for in Section 6(4) of the 1977 Act aforesaid). In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of 1967 The Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade, or proposes trading with fewer employees or that the work is to be done differently and the Employee has not the requisite training or qualification to continue.
Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the said dismissal (per Section 7).
In the case before me the Complainant herein has referred a complaint of having been unfairly dismissed by reason of his Unfair selection for Redundancy from his employment wherein he had worked for in excess of one year. Because the Workplace Relations Complaint Form (dated the 10th of November 2020) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. I can confirm that I explained to the parties the immediate impact that the recent Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) has had on how WRC hearings must now proceed. In particular, I have indicated that hearings must now (and in the interests of transparency in the administration of Justice) be open to the public. I have additionally informed the parties that in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered. In this regard I have explained that emergency legislation is pending which will empower Adjudicators to administer said oath. The parties were happy to proceed in the absence of said oath/affirmation. The Complainant herein has referred a complaint of having been unfairly dismissed by reason of his Unfair selection for Redundancy from his employment wherein he had worked for in excess of one year. The Workplace Relations Complaint Form (dated the 10th of November 2020) issued within six months of his dismissal. |
Summary of Complainant’s Case:
The Complainant gave oral evidence and this was tested by the Respondent HR Manager. The complaint was outlined in the complaint form which formed the basis of his written submission. |
Summary of Respondent’s Case:
The Respondent provided me with a Hearing Information Submission to include a comprehensive analysis of the functions performed by the Complainant. I heard form the HR Manager on behalf of the company as well as a Mr. B the chief technology officer. The Respondent’s case is that for financial reasons it needed to operate with fewer employees. |
Findings and Conclusions:
I have carefully considered the evidence adduced in the course of this hearing. The Complainant started with the Respondent company as a quality assurance Engineer in May of 2018. The workforce numbered about 97 with up to 22 people working in the Quality Assurance Team. As I understand it, the company is constantly innovating and updating its software. As Developers make changes and modify products intended to be sold to clients, the function of the quality assurance Team is to really challenge the functionality and purpose of the any such developments. AM the HR Manager said in evidence that the QA Engineers almost try to “break” newly developed products. AM said that the complainant used “test rail” to record the tests he had himself conducted. These disclose all the different types of manual testing tasks he performed. He would submit time sheets on how long he spends on each product and prepare “test rail reports”. AM gave evidence that there had been a focus in recent times on getting the testing systems moved away from manual and towards automated testing. In effect their requirements were less for manual testers and more for computer programmers. I understand from her evidence that this had been the proposed roadmap for a number of years but that it’s progression was considerably ramped up when the covid pandemic hit. AM gave specific evidence that the task or project of developing the appropriate software for automation had been taken on by an individual (x) who subsequently resigned. I do not doubt that the Complainant’s standard of work was excellent. I note for example that the employer was happy to upskill and sponsor the Complainant when he took on a Cyber Security Course. The Complainant evidence is that the complainant was not skilled in automation testing. The Complainant rejects this. When the pandemic hit it seems that the company’s day to day business was completely stalled as all the client sites were completely closed down. The decision was made at Board level to cut costs across all the business. A programme of Redundancy was implemented with the Chief Financial Officere directing that each department would have a pro-rata Redundancy head count. It was a brutal response borne out of the huge uncertainty that the situation had created. Altogether nine people were made Redundant. There was an additional freeze on recruitment. AM gave evidence that the Complainant’s role came into focus because the pandemic had accelerated the need to have automated processes. In fact, manual testing capacity was rendered entirely unsuitable in the prevailing circumstances. In the end the Complainant as a Quality Assurance Engineer was made redundant alongside three development roles and all within the same 22 person software team earlier described. The Complainant was paid Statutory Redundancy as well as a month in lieu. I understand that the evidence is that the Complainant was notified of his redundancy remotely. The Complainant was made redundant on the 27th of May 2020 which was only some two months into the pandemic. The Complainant met with higher Management in the run up to the redundancy but no alternatives or merging opportunities were identified. One of the difficulties identified was the fact that opportunities to upskill were lost where everyone was working remotely. The Complainant gave evidence that the Employer has concentrated on the “test rail” aspect of his work and largely ignored that he was able to perform automated testing and indeed had come from a background in that field which fact was on his CV. He said there had been some emphasis on the automation side of things at his interview. I am satisfied that the Complainant did not appear to question the fact of his having been made redundant at the time of his redundancy, but only formed the view afterwards that the company had acted in bad faith. This was triggered by an advertisement placed by the company seeking a Software quality assurance automation engineer. I understand this post was advertised in September 2020The Complainant was understandable very upset to see the role that he feels he could have performed being advertised some four months after his departure. However, in explaining this move, the Respondent indicated that the person that I previously identified as x had in fact resigned and needed to be replaced. I understand that the Chief Technical Officer Mr. B was forced to strategize this new role in September of 2020 to be placed on linked in. The new role involved having automation skills from the ground up (i.e. being able to build the programmes for automation) not just an ability to use the end product. In defending it’s position, the Respondent says this was an entirely new and different role to the one previously held by the Complainant. I note that he Complainant did not apply for this job though it commanded a higher salary. On balance I find that the Dismissal herein was not Unfair and was by reason of a lawful redundancy situation having arisen. The company needed to rationalize in response to the imposition of lockdown. Nine posts were made redundant but eighty-five were saved. I have every sympathy for the Complainant whose position came in to focus for redundancy in the middle of a pandemic. However, this was not a question of unfair selection per the Acts. |
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.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00040933-001 – The complaint of Unfair Dismissals fails |
Dated: 3rd February 2022
Workplace Relations Commission Adjudication Officer: Penelope McGrath
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