Complainant

Respondent

Parties

Mohur Saleh

TikTok Technology Limited

Representatives

N/A

Niamh McGown BL instructed by Michael Doyle A & L Goodbody Solicitors

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-00066648-001

11/10/2024

The Complainant submitted his complaint to the Workplace Relations Commission on 11th October 2024 alleging that he had been unfairly selected for redundancy. He commenced his employment with the Respondent on 27th July 2020 and it terminated on 12th April 2024. At the time of termination, the Complainant held the position of team leader. At the hearing, he gave evidence on his own behalf and was cross-examined by the Respondent’s representative.

Evidence was also given on behalf of the Respondent by Kevin Purcell, TikTok Business Leader and Aaron Lawder, HR Business Partner. Both witnesses gave evidence by way of civil affirmation.

The Complainant says that his dismissal on grounds of redundancy was unfair. He raised various issues relating to the scores that he achieved in his performance reviews and a policy knowledge test. He was dissatisfied with these scores and their subsequent inclusion in the selection criteria. He gave evidence that the policy knowledge test in particular (Juren Test) was irrelevant to his role as Team Leader, contained broken links, incorrect decisions and should not have been included in the selection criteria. This test was initially described by management as inconsequential but was subsequently used in the selection process.

The Complainant further states that his performance review scores from the 2023 mid-year and annual cycles were unfair. He says that they were subjective, inconsistent, and influenced by personal bias rather than objective data. The Complainant contends that differing expectations were applied to the Arabic team compared to other markets and this constituted discrimination. Despite consistently exceeding expectations historically, the Complainant claims that his contributions and concerns were ignored by management and HR, creating a hostile work environment.

The Complainant described multiple incidents involving two co-workers that were reporting to him and his belief that this experience contributed to his performance rating, thereby also affecting his score in the selection criteria.

He also described being given different scores at various times and therefore did not have confidence in the Respondent’s application of the selection criteria.

The Complainant spoke about a lack of support in securing alternative roles, exclusion from opportunities, and contradictory feedback during recruitment processes. The Complainant said that his appeal was dismissed without addressing substantive concerns and highlighted discrepancies in the appeal outcome, which he argued demonstrates bad faith.

The Complainant maintains that these factors collectively amount to unfair treatment, culminating in an unjust redundancy.

The Respondent submitted a detailed response to the complaint lodged by the Complainant.

The Respondent contends that the Complainant’s dismissal was lawful and fair, arising wholly by reason of redundancy following a necessary global restructuring. This restructuring resulted in a 50% headcount reduction, affecting 1,925 employees globally and 289 employees in Ireland.

The objective criteria used in the selection of employees for redundancy was collectively consulted upon, objectively reasonable, and uniformly applied across all affected employees. The Respondent stated that there was a thorough and fair process applied to all employees. The selection criteria was made up of: performance ratings, leadership principles, Juren test results and disciplinary record. If an employee achieved a score above 33 when the criteria was calculated, then they were not at risk of redundancy. 63 team leads were in the selection pool and, of those, 24 were made redundant. All 24 scored under 33 in the combined selection criteria.

The Complainant’s performance reviews for 2023 were rated “Meets Expectations,” and he failed the Juren policy knowledge test. When asked if the scores of the co-workers who had made complaints about the Complainant were taken into account in his performance review, the Respondent replied that they absolutely had not been. Those scores were discounted and, if anything, the Respondent witness was sympathetic to the Complainant in the circumstances.

The Respondent also said that the error regarding the Complainant’s score was a typographical error in the letter only and the correct score was promptly inserted and the letter re-issued. In any event, neither score was above the qualifying 33 required.

The Complainant availed of the opportunity to appeal his redundancy and this independent process did not uphold any of the grounds that he relied upon.

Two alternative roles at the Complainant’s level in the organisation were identified during the redundancy process. It was open to the Complainant to apply for both of those and they were each ultimately filled by two people who were at risk in the same pool as the Complainant. Two additional posts identified would both have been promotional opportunities for the Complainant. He was unsuccessful in securing an alternative post and therefore he was made redundant.

Despite being afforded full participation in both collective and individual consultation processes and being supported in applying for alternative roles within the organisation, the Complainant was unsuccessful in securing another position. He was formally notified of redundancy on 4th April 2024. His subsequent appeal, which alleged unfair treatment, discrimination, and flawed performance assessments, was independently investigated and not upheld. The investigation confirmed that the redundancy rationale, selection process, and consultation procedures were fair and reasonable.

The Respondent submits that the dismissal falls squarely within the statutory definition of redundancy under the Redundancy Payments Act 1967 and therefore satisfies the criteria of Section 6(4)(c) of the Unfair Dismissals Act. Consequently, the dismissal can not be deemed unfair.

The Respondent asserts that the dismissal was substantively and procedurally fair, based on objectively reasonable grounds, and requests that the Adjudication Officer dismisses the complaint.

When it’s accepted that an employee was dismissed, as is the case here, an employer has the responsibility to prove that the dismissal was fair and reasonable. Section 6(1) of the Unfair Dismissals Act 1977 (the Act) states:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

The Act lists examples of reasons an employer can rely on to show a dismissal was not unfair. Section 6(4) says a dismissal will not be considered unfair if it was mainly due to:

(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

[…]

Section 6(6) makes it clear that the employer must show the dismissal was mainly for one of these reasons or another substantial reason. It says:

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.

An Adjudication Officer must also consider whether the employer acted reasonably in how they carried out the dismissal. This is because section 6(7) says:

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so—

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

In this case, the Respondent argues the dismissal was due to redundancy as allowed under section 6(4). To prove that a dismissal was due to redundancy, an employer must show the redundancy was genuine and not just an excuse to remove the employee. Under Section 7(2) of the Redundancy Payments Act 1967, the employer must show that the dismissal happened because the business was closing, reducing staff, or changing how work is done, and that the employee didn’t have the necessary skills or qualifications for the new requirements.

Even if redundancy exists, an employer must also show that the choice of this particular employee was fair and that the selection process was transparent.

The Complainant says he was unfairly dismissed because he was unfairly selected for redundancy after working for more than a year. Since the complaint was filed within six months of dismissal, I have jurisdiction to hear the case.

There is no dispute between the parties that there was a genuine redundancy situation and I find that this was a genuine redundancy within the meaning of section 7(2) of the Redundancy Payments Act, 1967.

The Complainant stated in evidence that he was not challenging the legitimacy of the redundancy, but rather how he was selected for it.

Approximately 289 employees were made redundant in this jurisdiction at the time. The question for me is whether the selection of the Complainant was genuine and that redundancy was not used as a reason to remove him.

The Complainant’s position is that he was disadvantaged in the selection criteria by the use of a policy test as part of the selection criteria. He said that he was not required to be up to date or trained on the relevant policies and therefore the use of it’s results put him at a disadvantage. Further, he says that the test did not work correctly and had multiple broken links and incorrect decisions. He raised this with his team leader at the time of the test but was assured that it would not be used for anything, only to later be advised that it would form part of the selection criteria for redundancy.

The Respondent says that concerns relating to this test were taken on board during the consultation phase of the proposed redundancies. As a result of that consultation, the scoring for the policy test was reduced as it related to the Complainant’s category of employees. Further, the Respondent stated that all employees took the same test, so any issues that the Complainant experienced with, for example, broken links, would also have been experienced by everyone else. In other words, he was not unfairly disadvantaged in any way as he undertook the test in the same circumstances as all other employees.

The Complainant also argued that his performance ratings were incorrect and that he was further disadvantaged by the use of these in the selection criteria. He said that he had no difficulty with the selection criteria itself but that he did take issue with the result of the performance reviews.

The Respondent says that the same criteria was applied indiscriminately to all employees and the Complainant was therefore at no more or less disadvantage than any other employee. Responding to the Complainant’s performance reviews specifically, the Respondent noted that the Complainant had the option of appealing those scores internally and submitted that his dissatisfaction with his performance reviews could not amount to an unfair redundancy process.

The question I must answer is whether the selection of the Complainant for redundancy in this case was personal. Was he personally selected in order to terminate his employment? I find that he was not.

While I understand the Complainant’s perspective that a variety of issues meant that he did not score as highly as he wished in the selection criteria, that criteria was impersonally applied to all employees and I therefore do not see any grounds upon which to find that the Complainant’s selection was in any way an individual selection of him, personally, for redundancy. Similarly, based on the evidence heard, I do not find that the Complainant was prejudiced or specifically excluded from recruitment to the available roles during the redundancy period. The Respondent’s witnesses gave convincing evidence that, given the number of redundancies, there was huge interest in any available roles and it was open to the Complainant to apply for any ones that were suitable. There is no substantiating evidence to show that he was in any way specifically excluded from these posts.

The Complainant’s complaint is not in relation to the selection criteria, but rather it relates to his performance reviews and the Juren test result. These are grievances that the Complainant may have had with the Respondent, but they do not affect the fact that the Respondent applied an objective and impartial set of criteria when selecting candidates for redundancy.

As this complaint relates to the fairness of the redundancy process, rather than any personal grievances with, for example, a performance review, it is the impartiality of that process which I must assess. I am satisfied that the termination of the Complainant’s employment resulted wholly or mainly from redundancy and that his selection for redundancy was not unfair as it was based on impartial and impersonal criteria.

In all the circumstances, I find that the Complainant was selected for redundancy after an impartial selection process and, in accordance with section 6(4)(c) of the Unfair Dismissals Act 1977 (as amended), his dismissal was therefore not unfair.

For the reasons set out above, I do not find in favour of the Complainant.

Unfair selection for redundancy