ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00037117
Parties:
| Complainant | Respondent |
Parties | Martin Bowling | Indaver Ireland |
Representatives | Barry Crushell Crushell & Co | Barry Kenny Kenny Sullivan Solicitors Arthur Cush, BL David Cunniffe, HR Business Partner, Indaver Ireland Ireland John Commons, Line Manager – Indaver Ireland Limited Seamus Flynn, Managing Director, Indaver Ireland Limited |
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-00048468-001 | 04/02/2022 |
Date of Adjudication Hearing: 02/05/2023
Workplace Relations Commission Adjudication Officer: Caroline Reidy
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.
Oral evidence was presented by both the Complainant and the Respondent. The parties were offered the opportunity to cross examine on the evidence submitted.
All the parties who were due to give evidence took an affirmation namely, Mr Martin Bowling, Complainant and for the Respondent Mr David Cunniffe and Mr John Commons. Mr Seamus Flynn was present on Day 2 and took an oath also to facilitate him to give evidence.
Background:
The Complainant commenced employment with the Respondent on 25 July 2016. The employment of the Complainant was terminated on 28 January 2022. The Complainant was employed as a TWM Co-Ordinator. The Complainant had raised a complaint seeking adjudication by the Workplace Relations Commission (WRC) under section 8 of the Unfair Dismissals Act, 1977 in relation to unfair dismissal due to unfair redundancy.
The Complainant, Mr Dowling contests that he was managed out of his role via a sham redundancy and the process was far from any best practice. However, the Respondent, Indaver Ireland Limited stated it was due to changes required within the company and it was not personal to him. They stated he could not have done the work onsite in Leinster from his base and home in Sligo. They also stated he did not engage in the process. The Respondent representative, Mr Barry Crushell, Solicitor confirmed that the company name is Indaver Ireland Limited not just Indaver Ireland and the company and complainant representative consented to this being updated and corrected in the Complaint Form. The Respondent representative also confirmed the claim was submitted on the 4 February 2022 and it was 25 February 2022 when the termination occurred so the claim was submitted, they allege in advance of any termination occurring.
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Summary of Complainant’s Case:
The Complainant, Mr Bowling stated he had suffered a heart attack in February 2018 and was offered a demotion from his management role on two separate occasions. He stated on 5 July 2019, he wrote to Blathnaid Carolan (HR) informing her that he was considering resigning from his role due to a number of issues that he was experiencing in the company. He stated on 29 November 2021, a meeting was held via Microsoft Teams where the issue of redundancy was raised. He stated that he was informed that his role was to become redundant and that the same role from which he had been made redundant was going to be advertised. He stated the Microsoft Teams meeting lasted for 30 minutes, and the Complainant felt that the whole encounter was extremely rushed.
The Complainant stated he received a letter from the Respondent outlining what had been discussed at the meeting on 29 November 2021. The Complainant stated he was devastated by the decision and felt as though the conversation had been an attack on his character. He stated that his contract of employment stated that the position was field based and that he would be required to undertake international travel to their offices/departments within the group. He stated the only difference between the Complainant's job description and the job description for the new role is that the phrase "Leinster based" has been added, but the role of a TWM Coordinator had not changed, the staff and clients had not changed, and the sites being serviced hadn't changed. The Complainant stated he did not apply for the Leinster based position as he did not see the need to relocate.
Mr Bowling, stated on 9 December 2021, he received a termination letter after 39 minutes of discussions via Microsoft Teams.
Mr Bowling stated on 14 December 2021 he met with his line manager, John Commons, to ask for clarification on what he could tell customers and staff about his redundancy. He stated after the meeting, all other meetings were cancelled and the line manager ceased to have any contact with him. The Complainant stated he believed that this was a strategy by the Respondent to get him to quit his role so that they would not be required to pay him statutory redundancy. The Complainant stated he was sent a letter informing him that if he wished to appeal the decision to make him redundant, he could do this by sending a letter to the managing director, Seamus Flynn.
The Complainant stated he sent this letter to Seamus Flynn on 11 January 2022, stating that the fact he lived in Sligo had no bearing on his role and that according to his contract of employment, his position was field based. He stated that Seamus Flynn responded that the letter was too long and would need to be summarised, but the Complainant argued that he had never been given an opportunity to communicate his feelings about the redundancy and so to "dumb it down" would not be possible. He confirmed the meeting occurred on 27 January 2022. The Complainant stated he contends that he was aggressively questioned on his appeal letter and that the meeting was concluded after just six minutes. The Complainant stated on 2 February 2022, he received a letter inviting him to attend a second appeal meeting, but he made the decision not to attend due to the hostile treatment he had received.
The Complainant stated on 15 February 2022, he received a letter informing him that the decision to make him redundant had been upheld. The Complainant stated he had found this ordeal extremely distressful both financially and mentally, and believes that the Respondent's intention was to create an impossible working environment so that he would have no choice but to walk away. He stated additionally, the Respondent company had been paying for him to complete a BSc in Environmental Science, and he had a commitment to finish this course despite no longer working in the waste sector.
The representative for the Complainant specifically referenced the decision by by Dermot McCarthy S.C. in St. Ledger v. Frontline Distributors Ireland Ltd. ([1995] ELR 160 at 161), in terms that are reproduced in a variety of texts. In that case, there was an increase in the work in the company, and the employee, a warehouse operative, was dismissed in favour of somebody who was better able to handle the increased volume of work. The Tribunal found that this was not a dismissal within the meaning of the Redundancy Act, setting out the importance of impersonality and of change within the legislation:
―Impersonality runs through 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 EC 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 number. 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 or less work of the same kind does not mean other work’ and is only quantitative change.
The Tribunal concluded that the quantitative change was in the wrong direction, being an increase in work, and that training was not the same as ability. It could not be relevant that the replacement was better able to do the work than the employee who was dismissed, or else the notion of impersonality would be irrelevant.
In JVC Europe Ltd v. Panisi ([2012] ELR 70) Charleton J. emphasised again the central impersonality of redundancy and contrasted it with unfair dismissal:
―A contract of employment can involve both personal and impersonal interaction between employer and employee. Redundancy is not, however, a personal choice. It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. Dismissal, on the other hand, is a decision targeted at an individual. The Complainant stated it is the position that his personal circumstances were the motivating factor in his selection for redundancy.
The Complainant stated in summary he contends that:
Issues had arisen after he had suffered a heart attack in February 2018 which had led to him going off sick from work as certified by the company doctor.
After this, the Complainant had been offered a demotion from his management role on two separate occasions;
The Complainant stated on 5 July 2019, he wrote to HR informing her that he was considering resigning from his role due to a number of issues that he was experiencing in the company. He stated in this letter he stated that he was “shocked and upset at what he considered to be an offer to demote him”. He also stated that “recent events made him feel like he was being managed out of the role” and that “the whole situation was extremely stressful, and he was frightened that this will affect his health again”.
The Complainant stated that HR and Martin Bowling had a meeting to discuss this and, in an email, dated 31 July 2019 she stated that “I will take some time to consider what you discussed today with me to assess what is the best course of action, if indeed any, at this time”
The Complainant stated on 29 November 2021, a meeting was held via Microsoft Teams. He stated he was shocked that the issue of redundancy was raised.
The Complainant stated he was not given any notice of this meeting, nor was he provided with an agenda for the meeting. He stated during this meeting, he was informed that as a result of company restructuring, his role was to become redundant.
The Complainant stated he was informed that the same role from which he had been made redundant was going to be advertised as the Respondent was looking for someone to replace the Complainant in the Leinster Region. The Respondent stated that the Complainant would be welcome to apply for this position if he would be willing to relocate.
The Complainant stated the Microsoft Teams meeting lasted for 30 minutes. The Complainant stated he felt that the whole encounter was extremely rushed. He stated during this meeting, the Complainant tried to gain an understanding as to why he was being made redundant if the position was still in existence. The Complainant stated he contends that whilst trying to get this clarification, he was persistently talked over.
The Complainant stated on 1 December 2021, he received a letter from the Respondent outlining what had been discussed at the meeting on 29 November 2021. He stated the letter stated that while “a final decision had not been taken as to whether he was to be made redundant, it was expected that such a decision would be made by 7 January 2022.
The Complainant stated he was devastated by the decision of the company. He stated he felt blindsided as he had been given no time to prepare for the meeting. The Complainant stated he felt as though the conversation had been an attack on his character and that the redundancy was about him as a person as opposed to the role no longer being in existence.
The Complainant stated his contract of employment stated that “This position is field based. As a TWM Coordinator you will be required to undertake international travel to their offices/departments within the group”. He stated at no point in the contract or the original job description was a region of work specified. He stated that both his position, and the positions of his colleagues, were field based. He stated for the last five years of his employment, the Complainant had worked from home and all-around Ireland. He stated it is important to note that the Complainant never refused to travel to any location in Ireland.
The Complainant stated the only difference between his job description and the job description for the new role was that the phrase “Leinster based” had been added. He stated the role of a TWM Coordinator had not changed, the staff and clients had not changed, and the sites being serviced hadn’t changed. The Complainant stated and contends that merely adding ‘Leinster based’ to the new job description does not in itself create a new role which would make the role held by the Complainant redundant. The Complainant stated and contends that he was never provided with a reasonable alternative to redundancy. He stated he was told that he could review all available roles within the company. He stated out of 17 vacancies, 9 were in the UK and many of the interview dates for the others had already passed. He stated on 7 December 2021, he wrote to David Cunniffe (HRBP) and informed him that “after careful consideration, he had decided that none of the roles were suitable for him”.
The Complainant stated in relation to the offer to apply for the Leinster based position, the Complainant did not do so as he did not see the need to relocate seeing as he had been travelling for work for the past five years with no issue.
The Complainant stated he also noted that there were four other coordinators who also work all over Ireland. None of these individuals had been subject to redundancy discussions. He stated, therefore, he strongly believed that he had been singled out.
The Complainant stated on 9 December 2021, he received a termination letter. He stated this letter came after merely 39 minutes of discussions via Microsoft Teams.
The Complainant stated he was told by the Respondent that he was not permitted to discuss these matters with anyone. The Complainant stated on 14 December 2021, he met with his line manager, John Commons. The Complainant stated he asked John Commons for clarification on what he could tell customers and staff about his redundancy as he was unsure how to continue planning months of work with clients when he was aware that he would no longer be with the company. He stated the Respondent failed to give the Complainant any guidance on the matter.
The Complainant stated he requested that the Respondent permit him to go on garden leave due to the fact that his staff were beginning to question him on what was going on. He stated, again, he was instructed by the Respondent to remain silent on the matter.
The Complainant stated after the meeting on 14 December 2021, all other meetings were cancelled, and the Complainant’s line manager ceased to have any contact with him at all. The Complainant stated he strongly believed that this was a strategy by the Respondent to get the Complainant to quit his role so that they would not be required to pay him statutory redundancy;
It was stated on 17 December 2021, Barry Crushell, Solicitor wrote to the Respondent noting that “our client is open to an amicable resolution of these matters prior to this termination date”. They also note that “the proposed termination of employment of our client has caused him a considerable degree of stress and anxiety”.
The Respondent, Indaver Ireland Limited stated they replied to this letter on 21 December 2021, stating that “should your client file a complaint to the WRC, same will be fully defended and any redundancy payment made to him will be taken into account in the unlikely event that it is determined that he was in some way unfairly treated”.
The Complainant stated on 10 January 2022, he confirmed he was sent a letter informing him that if he wished to appeal the decision to make him redundant, then he could do this by sending a letter to the managing director, Seamus Flynn.
The Complainant stated he sent this letter to Seamus Flynn on 11 January 2022. He stated in this letter he stated that the fact he lived in Sligo had absolutely no bearing on his role and that according to his contract of employment, his position was field based. The Complainant stated that he “should not be penalised on where he lives when he had been an exemplary employee”. He stated that he had “never said no to any request made of him and had stated on many occasions that he’d be happy to take on extra sites in any area of the country”.
The Complainant stated on 14 January 2022, Seamus Flynn, managing director responded to this letter stating that the Complainant’s letter was too long and would need to be summarised. The Complainant stated he contends that he had never been given an opportunity to communicate his feelings about the redundancy and so to “dumb it down” would not be possible;
The Complainant stated on 26 January 2022, Seamus Flynn invited him to meet the following day at the Sligo Park Hotel.
The Complainant stated the meeting occurred on 27 January 2022. The Complainant stated he contends that he was aggressively questioned on the appeal letter that he had sent. The Complainant stated that Seamus Flynn was visibly angry, and that the meeting was concluded after just six minutes.
The Complainant stated on 2 February 2022, he received a letter from the Respondent inviting him to attend a second appeal meeting on 9 February. However, the Complainant’s official termination date was stated as 28 January 2022.
It was stated that due to the fact that he was clearly no longer employed by the Respondent and the hostile treatment that the Complainant had received at the first meeting, he made the decision not to attend.
The Complainant stated on 15 February 2022, he received a letter from Seamus Flynn, managing director informing him that the decision to make him redundant had been upheld.
The Complainant state he responded to this letter stating that “I am confident I can prove unequivocally that my redundancy was unlawful”.
The Complainant stated he has found this whole ordeal extremely distressful - both financially and mentally. He stated this caused a danger to his health as he suffers from an ongoing heart condition. He believed that the Respondent’s intention was to create an impossible working environment so that he would have no choice but to walk away; and furthermore, the Respondent company had been paying for the Complainant to complete a BSc in Environmental Science. He stated they gave him half a day a week to study as well as paid time off in the lead up to exams and on exam days. It was state, now, the Complainant has a commitment to finish this course despite no longer working in the waste sector.
The representative for the company also referred to the case of Tracey Ring v Student Facilities & Services (UCC) Designated Activity Company (DAC) T/A Unisalon (ADJ-00037197), the Adjudication Officer gave a very useful summary of expectations with respect to a redundancy process:
“An employer does not have a free hand to act as it pleases. An employer is bound to act within the requirements of the law, irrespective of the circumstances the employer is navigating. It is not in dispute that there was a global pandemic. However, there is a well-trodden path in respect of dismissing an employee lawfully, by reason of redundancy. Specifically, it requires the employee to be put on formal notice that his/her role is at risk of redundancy. It requires a genuine consultation process being entered into, with the employee, by the employer. Often, an employer will implement a selection matrix (and a points system) to determine which roles in the organisation are to be made redundant, in a bid to be as fair to employees as possible, as redundancy is ‘impersonal’ – it is the role and not the person that is being made redundant. A lawful redundancy process requires the genuine consideration of suitable alternative employment within the organisation, including any suggestions the employee brings to the table. It requires the employee to be afforded a right of appeal.”
It is quite clear that the process utilized by the Respondent was but a front to terminate the employment of the Complainant.
The representative for the Complainants stated that if an employer is trying to justify the dismissal of an employee under the Unfair Dismissals Act, 1977, the burden will be on the employer to show that the criteria for a genuine redundancy were present, and that the employee was fairly selected for redundancy. The definition of redundancy is in section 7(2) of the 1967 Act as amended: ―(2) For the purposes of subsection (1), 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—
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
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
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
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
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.
They stated that these words underlined above were introduced by the Redundancy Payments Act 2003 and indicate that the legislature wanted to emphasise the central consideration of redundancy, namely the impersonality of the concept. It was precisely due to the personal circumstances of the Complainant, that he was selected for redundancy.
This central wording of the section indicates that the operative reason for the dismissal must be the redundancy, or at least that it must be the central reason for the termination.
The complainant representative stated that presumption in the Unfair Dismissals Act would operate in such circumstances in favour of the employee, in that it would be presumed that it was an unfair dismissal in such circumstances unless shown otherwise, but as the employee found work rapidly, the actual loss would most likely be smaller than the redundancy payment.
The Complainant contends that he was not dismissed wholly or mainly because of redundancy. If it emerges that the operating reason, or one of the main reasons for the dismissal, is something other than redundancy, then the WRC would be required to find that the dismissal was not as a result of redundancy. This was the case in Moloney v. W. Deacon & Sons Ltd, where the reasons presented by the company to justify the dismissal also included a claim for arrears of pay and failure to complete a statutory probationary period. Again, this will not necessarily be fatal, but it should be shown that the dismissal resulted mainly from impersonal reasons.
The Complainant stated the amount of time he has spent gathering evidence and the impact on his life had been immense. He stated having to replace his company car and the ongoing solicitor fees has put a toll on his health and finances.
The Complainant stated businesses should not get away with this behaviour. He stated what they did to him was cruel and unethical. He stated he believes Indaver Ireland Limited needs to be financially reprimanded and taught this cowboy behaviour with employment law is not tolerated.
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Summary of Respondent’s Case:
The Respondent stated the personal statement provided by the Complainant contains a number of serious inaccuracies which were clarified by reference to the documents annexed to the statement and which could be proved and expanded upon in evidence at the hearing. The Respondent stated the Complainant. Martin Bowling began his employment with the Respondent as a TWM Co-ordinator on the 25 July 2017. They state the role was field based and required the employee to co-ordinate operations at customer sites in the areas assigned to that TWM Co-ordinator. The Respondent stated the Complainant resides in Sligo and the sites he managed were largely located in Connacht. They stated the Complainant was the only Connacht based Co-ordinator. They stated there were also Leinster based and a Munster based Co-ordinators. They stated although he did attend two sites in Leinster, this was to cover the Leinster based TWM Co-ordinator at times when there was exceptional demand. The Respondent stated the Complainant covering sites in Leinster was not a sustainable or suitable long-term solution to the growing demand in Leinster as the complainant resided up to three hours away from some of the Leinster sites. They stated in the months leading up to November 2021, it became increasingly clear to the Respondent that its business in Leinster was expanding whereas its business in Connacht did not require a permanent full time TWM Co-ordinator. They stated the number and location of TWM Co-ordinator roles is directly connected to the number and location of customer sites. The Respondent stated where the Complainant was the only Connacht based TWM Co-ordinator he was the only Co-ordinator who was or could have been impacted by this change. The Respondent stated they provided full and comprehensive details of this shift in its business at the hearing. The Respondent stated the Complainant is correct to say that no performance issues arose whatsoever and his feedback during performance reviews was overwhelmingly positive. The Respondent stated the Complainant states that he was informed on the 29 November that his role was being made redundant. They stated that this was not correct. The stated a short power point presentation was delivered explaining the change in the Company business described above and the Complainant was informed by Mr Cunniffe and Mr Commons that the result was that there was a risk of his role being made redundant as he was the only Connacht based Co-ordinator. The Respondent stated crucially, no final decision had been made and it was envisaged that no decision would be made the Company could consider any input Mr Bowling might have. They stated the Complainant, Mr Bowling was advised as to the seventeen vacancies available in the Company at that time and was invited to a further meeting on the 7 December to discuss the issue. They stated Mr Bowling was provided with a list of the titles of the seventeen vacancies and hyperlink to the further information available. The Respondent stated as a result of the shift away from Connacht and towards Leinster, Mr Bowling was informed that the Company would require a further Leinster based TWM Co-ordinator. The Respondent stated they take issue with the complaint of the Complainant’s statement that he was told in an off-hand way to apply for the Leinster based role. They stated that the Complainant was specifically advised that while the role was Leinster based, he was eligible to apply even though the role had not yet been advertised to other candidates. The Respondent stated the offer to re-engage Mr Bowling in the seventeen available vacancies was a genuine one. They stated that the Company followed up on the letter of the 1 December with an email dated the 7 December 2021 in which it is stated by Mr Cunniffe that he had made enquires and could arrange for an interview to be set up in respect of one position and to extend the deadline for applying for other roles so as to allow Mr Bowling more time. The Respondent stated Mr Bowling confirmed by way of email dated the 7 December that: ‘after careful consideration, I have decided that none of the roles are suitable for me.’ The Respondent stated that Mr Bowling claims in his statement at that he was given only three days to review all the roles in the company. The Respondent stated this was not correct. They stated that Mr Bowling was given seven days and was specifically offered further time, which he declined. The Respondent stated a further meeting took place on the 7 December. They stated these meetings took place remotely due to the public health conditions. They stated at all meetings, Mr Bowling was given every opportunity to speak and be heard and was not talked over. They stated however, Mr Bowling provided mostly one-word answers to questions asked and was extremely uncommunicative. They stated that Mr Cunniffe and Mr Commons made every effort to communicate with Mr Bowling but he appeared determined not to engage with the meetings. They stated this same approach was also taken later at the appeal meeting and is reflected in the meeting notes. The Respondent stated following this meeting, a further letter dated the 9 December indicated that having confirmed that no other vacancies in the Company were of interest to him that his role would be made redundant on the 28 January 2022. They stated a further meeting was arranged for the 14 December to explain the details of his redundancy package and answer any questions he might have. The Respondent stated at the meeting of the 14 December, Mr Bowling asked that the process move forward quickly and that options such as a payment in lieu of notice be considered. The Respondent stated it was not correct to say that Mr Bowling was left to flounder. They stated at this meeting he requested that the company should engage with his solicitor rather that with Mr Bowling directly and this was the approach which was taken by the company, at Mr Bowling’s request. The Respondent stated Mr Bowling was given the opportunity to appeal his redundancy on foot of letters from his solicitors and he was asked to submit a letter setting out the basis for his appeal. The Respondent stated Mr Bowling’s letter of appeal was in the format of a lengthy legal submission and contained copy and paste extracts from other documents. The Respondent stated Mr Bowling was invited to a meeting to discuss the grounds of his appeal on the 27 January 2022 in the Radisson Hotel in Sligo. They stated the meeting was between Mr Bowling and the Company’s managing director Mr Seamus Flynn and Mr Alan Masson, HR Business Partner. They stated at this meeting he refused to explain his views or engage in a discussion about his concerns. They stated rather he repeatedly told Mr Flynn to read his letter without further elaboration. The Respondent stated Mr Bowling was asked via email if he had any amendments to these meeting notes and he did not reply with any amendments. The Respondent stated given that this meeting was not productive in helping the Company understand Mr Bowling’s concerns about his redundancy, it was decided that a further meeting would be held on the 9 February 2022 in the Sligo Park Hotel. The Respondent stated Mr Bowling did not attend this meeting and did not provide any warning that he would not attend. They stated the Company’s managing director travelled to Sligo specifically for this meeting. Mr Flynn had prepared a number of questions to assist him understand Mr Bowling’s concerns. The Respondent stated as he did not attend the meeting, the Company wrote a further letter dated the 15 February 2022 asking Mr Bowling to write to the Company by the 21 February 2022 to advance his appeal failing which the issue would be finalised. The Respondent stated no further communication was received by the Company and so Mr Bowling was informed by way of letter dated the 25 February that the decision to terminate his employment by reason of redundancy had been confirmed and would take effect on the 25 March 2022. The Respondent stated Mr Bowling was paid for February and March as his employment was maintained so that his appeal could be considered. They stated he was provided with his redundancy payment and a breakdown explaining how it was calculated by post. They stated Mr Bowling himself initiated the return of the Company car and it was not returned on the basis of a demand from the Company. The Respondent representative referred to Section 6 (4) of the Unfair Dismissals Act 1977 sets out the circumstances in which a dismissal will be deemed not to be an unfair dismissal and this includes the redundancy of the employee concerned: (4) 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: […] (c) the redundancy of the employee For the purposes of the Unfair Dismissals Act 1977, redundancy is defined as any of the matters referred to in paragraphs (a) to (e) of section 7 (2) of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971.Section 7 (2) of the 1967 Act provides: (2) For the purposes of subsection (1), 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 […] (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, The Respondent stated where the Respondent can demonstrate that the reason for Mr Bowling’s dismissal was redundancy within the meaning of the definition cited above, his claim for Unfair Dismissal must fail. The Respondent stated they understand the requirements imposed by Section 6 (3) of the Unfair Dismissals Act 1977 to the effect that a fair selection process for redundancy must be applied. They stated the wording of the statute leaves latitude in terms of what criteria will be appropriate and each case is to be determined on a fact specific case by case basis. The Respondent referred to the often-cited case of Williams v Comp Air Maxam Ltd the characteristics of a fair selection process were summarised as being: “The basic approach is that, in the unfortunate circumstances that necessary attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the workforce and to satisfy them that the selection process has been made fairly and not on the basis of personal whim” The Respondent stated in the present case, the parties agree that no performance issues arose. The Complainant in this case was the only TWM Co-ordinator responsible for the area where the company’s business was diminishing. There was simply no longer a need for a TWM Co-ordinator in Connacht. They stated the reason for the redundancy was entirely geographic and based on the changing needs of the Company. The Respondent stated the authors of Employment Law in Ireland note that an employer is not required to wait until the diminution in work actually occurs and it is sufficient that it be expected to diminish. They stated however, in the present case the decision was made at a time when there was already an insufficient amount of work to justify the need for a permanent full time TWM Co-ordinator in Connacht. The Respondent stated there is a positive duty on employers to identify and explore the feasibility of pursing less drastic measures to redundancy. They referred to the case JVC Europe Ltd v Ponisi 2012 Charlton J stated that: “It may be prudent, and a mark of genuine redundancy, that alternatives to letting an employee go should be examined.” The Respondent stated it is respectfully submitted that the Respondent has more than met this requirement in the present case. They stated having sent the Complainant all available vacancies within the Company, Mr Cunniffe offered to schedule interviews for the Complainant. They stated the Complainant was provided with information on roles not yet advertised and was offered more time to consider these options. He declined by stating on the 7 December 2021: “Hi David, after careful consideration, I have decided that none of these roles are suitable for me.”. The Respondent stated the Complainant’s role within the Company was made redundant arising from a change in the locations within Ireland where the work of a TWM Co-ordinator was needed. Specifically, a shift away from Connacht and toward Leinster. They stated the Complainant was made aware of the risk in advance of the decision being made. They stated Mr Bowling was given the opportunity to be heard as part of the process before a final decision was made. The Respondent stated they attempted to re-engage the Complainant in another position, including the new Leinster based position but the Complainant did not wish to be interviewed for any other position in the Company. The Respondent stated the reason for the Complainant’s redundancy falls squarely within the statutory definition provided by section 7 (2) (b) of the Redundancy Payments Act, 1967 and therefore must be found not to be an unfair dismissal. The Complainant was entitled to a redundancy payment and this was provided. They stated the Complainant is not entitled to any further compensation. |
Findings and Conclusions:
Section 6 (4) of the Unfair Dismissals Act 1977 sets out the circumstances in which a dismissal will be deemed not to be an unfair dismissal, and this includes the redundancy of the employee concerned: (4) 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: […] (c) the redundancy of the employee For the purposes of the Unfair Dismissals Act 1977, redundancy is defined as any of the matters referred to in paragraphs (a) to (e) of section 7 (2) of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971.Section 7 (2) of the 1967 Act provides: (2) For the purposes of subsection (1), 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 […] (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, The requirement under the legislation is that once the risk of redundancy is raised, the primary requirement under statute is for the employer to act reasonably in relation to the redundancy, and it is the role and not the person that is the focus of the redundancy process including the selection criteria and that the criteria have a requirement of impersonality i.e. focused on the role and business requirements so that redundancy is not ‘used as a cloak to disguise the true reasons for a dismissal’. I find based on the evidence that the process was designed to target this employee and no true consultation occurred and his location in taking up the alternative role was decided by the company rather than via consultation and he was only told of the right to appeal a month after the redundancy decision when the complainant’s solicitor was involved. Therefore, he presumed his employment finished on the 28th of January hence his submission of his claim which I accept accordingly. In effect he was in limbo in this employment for a number of months. |
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.
I find that the claim is well founded based on the evidence provided both orally at the hearing and in the submissions and that this Complainant was unfairly dismissed due to redundancy.
In taking into account the relevant compensation, I have considered the Complainants lack of meaningful engagement throughout the process which did not assist his cause and I also note that the Complainant was paid by the company until the 28 March 2022 and found new employment by that date i.e. on 14 February 2022 on a similar salary. Therefore, I decide that the Respondent is to pay compensation of €3,000 to the Complainant in this case.
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Dated: 12th October 2023
Workplace Relations Commission Adjudication Officer: Caroline Reidy
Key Words:
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