Complainant

Respondent

Parties

Iwona  Bujwid

Tiktok Technology Limited

Representatives

Joseph Bradley B.L. instructed by Sean Ormonde Solicitors

Owen Keany B.L. instructed by A&L Goodbody LLP

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-00066441-002

03/10/2024

The Respondent is a digital media organisation employing over 2000 people in its Dublin office. There were the following complaints: a claim of unfair dismissal under section 8 of the Unfair Dismissals Act, 1977 to 2023 and a claim of discrimination on the under section 77 of the Employment Equality Acts 1998 to 2021.

This second complaint was withdrawn after the hearing.

The complainant’s role was made redundant on September 30th, 2024, following a collective redundancy process in July 2024 in which over 300 employees’ roles, including her, were put at risk of redundancy. Over 150 roles were made redundant.

The complainant’s role was made redundant on September 30th, 2024, following a consultation process which included collective engagement with elected employee representatives, and individual engagement and consultation meetings with the complainant herself. Alternatives to redundancy were explored and the selection criteria were fully shared. At no point during that process did the complainant raise an issue about them.

Her contention that she was unfairly dismissed is without merit. She has failed to provide any details whatsoever of the grounds upon which those claims are being maintained, despite requests to her solicitors to do so, no response was received.

On March 5th, 2025, the WRC notified the parties that these claims had been scheduled for remote hearing on April 29th, 2025.

It is a fundamental principle of fairness and natural justice that both parties should have a reasonable opportunity to prepare their case. The complainant’s failure to particularise her claims severely hampers the respondent's ability to respond.

The complainant commenced employment September 21st, 2020, and on July 29th, 2024, members of her team were informed of the potential collective redundancy arising from a proposed restructure of the function in which she worked. A follow up communication issued to employees on July 29th, 2024, in which the rationale underpinning the planned restructuring as well as the next steps involved in the process were set out.

Employees were notified that if their role was considered to be at risk, they would receive an “at risk” letter by July 30th,  2024.

The proposed restructuring involved increasing the use of artificial intelligence for moderation work thereby reducing the number of employees required. Within her team, employees were divided by reference to their language specialism and the market they serviced. In the case of the Complainant, she was one of five members of the team servicing the Polish market.

It was proposed that the overall numbers within the complainant’s team would be reduced from 100 to 52, and that the number of employees servicing the Polish market would be reduced from 5 to 1.

On July 30th, 2024, the respondent wrote to the complainant for the purpose of notifying her that her role was identified as one of the roles at risk of redundancy and that it would commenceaperiodofcollectiveconsultationwithemployeerepresentativesduringtheweek commencing12August2024.

In that letter, the respondent reiterated the rationale underlying the proposed restructuring and set out the consultation process in an effort to avoid redundancies and to minimise the number of employees impacted and to mitigate the effects of any redundancies.

That letter included a link to an FAQ document which was intended to assist in answering any preliminary questions which impacted employees may have had. In that letter, it confirmed a process of individual consultation and that no redundancies would take effect until after the consultation process had concluded.

On the issue of selection criteria, it was confirmed to the Complainant in the letter of 30 July 2024 that the criteria were based on business requirements and include Performance rating from previous 2 performance cycles, Disciplinary records and Competencies.

All employees were conducted in a fair and objective manner by reference to the above three criteria and that the same criteria have been applied in the same way to assess the other employees in the Complainant’s role category (i.e. the EMEA Polish Language Core Ops Specialists).

The Complainant was informed by way of letter dated 9 September 2024 that, following that assessment, she was awarded a score of 13.7 and, as a consequence, her role had been provisionally selected for redundancy.

As part of the collective consultation process, the Minister for Enterprise, Trade and Employment on 13 August 2024 was advised in line with its statutory obligations. The Respondent also held a comprehensive consultation process with employee representatives. Thirteen employee representatives were nominated to represent impacted employees.

The respondent conducted frequent consultation meetings with the employee representatives, namely on 13 August 2024, 16 August 2024, 20 August 2024, 22 August 2024 and 4 September 2024. In addition, the Respondent engaged with the employee representatives on a daily basis in between consultation meetings to respond to queries regarding the consultation process

On September 9th, 2024, the respondent confirmed inter alia that it was consulting with employee representatives in order to identify ways to avoid redundancies and to minimise the number of employees affected. In that letter, the selection criteria, along with the score attributed to the complainant were each confirmed, and it was confirmed that her role had been provisionally selected for redundancy. It was stressed that no final decision had been made in relation to the redundancies and that the company would try to identify any alternative positions that may be appropriate.

It was confirmed that in the coming days the complainant would be invited to an individual consultationmeetingandthatthepurposeofthatmeetingwouldbetotalktoher abouttheproposedredundancy,discusstheoptionsavailabletoher,includingwhetherthere wasanysuitablealternativeemploymentandtoansweranyquestionsshemayhave.

A first individual consultation meeting took place on 11 September 2024.

At the request of the complainant, her team leader, Stephen Kahlina accompanied her at the meeting. During this meeting the selection criteria and process were discussed with the Complainant, along with the scoring attributed under each of the three selection criteria listed above.

During this meeting, she did not raise any concerns in relation to the redundancy process, the selection criteria or the manner in which she had been scored under those criteria. During this meeting the Complainant made reference to the fact that she was pregnant and requested an extension of time before any redundancy would take effect.

A second individual consultation meeting took place on September 18th, 2024. At this meeting it was noted that she had applied unsuccessfully for two alternative positions. and that she did not intend on applying for any other roles. During this meeting, it was confirmed to that the collective consultation process had concluded on 14 September 2024 and that the decision had been taken to make her role redundant.

She was informed that formal notice of redundancy would issue later that day and provided with details of the severance package which would be available to her. Copies of the notes of the individual consultation meetings which took place on 11 and 18 September 2024 were submitted.

On September 19th, 2024, the complainant was formally notified in writing of the decision to make her role redundant, with effect from September 30th, 2024, and given full breakdown of the payments which were to be made to her, including an ex gratia payment which would be paid upon execution of a mutual termination agreement.

Enclosed with that letter was a copy Statement of Employment and details of an Outplacement Support Service which would be available to all impacted employees, as well as details of the Employee Assistance Programme which would remain available to her for a period of six months.

On September 26th, 2024, she stated that she would not sign the termination agreement because the ex-gratia payment was too low and that she was hoping to keep her job or that the redundancy would be deferred for a period.  At no stage did she take issue with the decision to make her role redundant, the selection criteria applied, the manner in which she was scored or the consultation process.

Claim under the Unfair Dismissals Act 1977 - 2015

Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia, that:

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

The definition of ‘redundancy’ is found in Section 7(2) of the Redundancy Payments Act 1967- 2014 (as amended).

“[A]n 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:

(a)     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

(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, or

(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 has been employed (or had been doing before his dismissal) - to be done by other employees or otherwise, or

(d)     The fact that his employer has decided that the work for which the employee has 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 has 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."

The Employment Appeals Tribunal (“EAT”) in St Ledger v Frontline Distributors Ireland Ltd [1995] ELR 160 emphasised that there were two important characteristics in the statutory definition of redundancy, namely impersonality and change. On the issue of change, the EAT held:

Change […] runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete closedown. Change may also mean a reduction in the needs for employees, or a reduction in number”

The decision to make the Complainant’s role redundant is precisely the kind of operational change which is provided for and envisaged in the provisions of section 7(2) of the Redundancy Payments Act 1967.

In addition, the redundancy was entirely impersonal in nature and was itself a consequence of the marked decrease in need personnel on the Core Ops and Appeals team into the future.

In Kingwell v Elizabeth Bradley Designs Limited (EAT-0661/02), the UK Employment Appeals Tribunal considered the circumstances that might give rise to a genuine redundancy situation and stated as follows:

“It appears to us that there is a fundamental misunderstanding about the question of redundancy. Redundancy does not only arise where there is a poor financial situation of the employer, although as it happens there was such in this case … It can occur where there is a successful employer with plenty of work, but who perfectly sensibly as far as commerce and economics is concerned, decides to reorganise his business because he concludes he is overstaffed. Thus, even with the same amount of work and the same amount of income, the decision is taken that a lesser number of employees are required to perform the same function. That too is a redundancy situation.”

It is well established, as illustrated in the Kingwell, that an employer is entitled to embark upon a reorganisation of its business (of the kind arising in the immediate case) and the existence of a genuine redundancy situation is in no way preconditioned on there being some financial imperative for doing so.

Having regard to the above, there can be no doubt whatsoever that a genuine redundancy situation arose in this case. The selection of the complainant for redundancy resulted from an objective matrix/scoring system. She was provided with an opportunity, to raise questions in respect of the scoring matrix and the scores awarded to her on foot of the assessment process but did not do so. The process which led to her selection was transparent, fair, and reasonable and followed a detailed consultation collective and individual process. At no point did the Complainant express any concern or raise any issue in respect of the process or the selection criteria.

The Respondent was entitled to take the decision to make the complainant’s position redundant and, conducted a full and fair consultation process.  She has failed to make out a prima facie case of discrimination under the 1998 Act and her claim, in that regard, ought to be dismissed.

Ms Antoniya Smrcel, a HR Business Partner gave evidence on affirmation.

The witness stated that she worked with the Core Operations Team and in July 2024 Core Operations was part of global operations. At that time, as AI options began to grow the need for human moderation of content was diminishing.

Accordingly, a decision was taken to reduce employee numbers by means of a merger of some operations. The total numbers to be reduced were from 100 to 48 across different languages. The witness set out the process, which was followed and outlined communication with stakeholders, the criteria which would be used et cetera.  These criteria were agreed by the employee representatives.

She also gave details on the dates on which the collective consultation meetings took place. She confirmed that these selection criteria were given specifically to the complainant as well as a document which outlined next steps.

In relation to the complainant’s assessment, she said that she got joint highest scores in relation to performance but overall, she was second out of the numbers of those assessed. In response to a question, she stated that the complainant’s absence played no part in the assessment of our performance.

In fact, she had successfully navigated a performance improvement programme.  She also stated that the scoring was done by the HR team.

In cross examination she outlined how she had first met the complainant and stated that she had a role in providing the accommodation to her following her diagnosis and identification of need. The witness did not recall when she first learned of the complainant’s pregnancy. She repeated her evidence regarding how the selection took place which was that the selection was done by the HR department and reviewed by senior HR management.

She also repeated that there were no issues with the complainant’s performance or discipline as was clear from her rating. It was put to her that the scoring was flawed, and she disagreed with this confirming again that it had been agreed with the employee representatives.

Ms Emma Murray gave evidence on affirmation. The witness is a Leader on the HR Business Team

She stated that she had a role in the collective consultation process and also in the individual consultations with specific employees. She confirmed that the criteria for selection were the product of consultations as were the weightings to be applied to the individual criteria.

She also conducted the first consultation meeting online with the complainant following which she was given her scores. She stated in her evidence that the complainant did not raise any issue with her about the criteria for selection.

She also stated that the complainant had not raised any issue regarding the fairness of the selection process although there had been discussion about the possibility of alternative positions and a severance package.

The complainant had applied for two other positions but was not successful and had told her that she was not going to apply for anymore.

The situation then moved on and the complainant’s redundancy was confirmed, and she was offered and enhanced packaged with an ex gratia element, but she refused to accept it; it was the witness’s understanding that she objected to the level of compensation in the package and would not sign.  mutual termination agreement.

At no stage did she raise any issues about the process itself.

In cross examination the witness said that she had not really known the complainant before the consultation process and became aware of her health issues only when it was mentioned during the consultation process and from her knowledge of the accommodation which had been made earlier for the complainant. That accommodation involved permitting the complainant to work from home three days per week.

The complainant was employed as a ‘Risk Investigation Specialist’ within the Core Operations and Appeals team from September 28th, 2020, until September 30th, 2024. She was dismissed in September 2024.

The respondent operated a hybrid working policy with some hours in the office and some hours working remotely from home. Owing to her family status, and certain health factors the complainant had periods of absence from her role, which typically arose after periods in the office.

She has a young child with additional needs and was, at the time of her redundancy,pregnantwithhersecondchild.   Followingherinitialdisclosureofherhealth issues on03November2023, (performance reviews began to be significantly marked down. Prior to the disclosureofherdisability,shealwaysreceivedanM+rating.

Following her disclosure, this deteriorated, despite exceeding her KPI’s. However, despite the alleged drop in performance, the Complainant will say she was still meeting expectations, and yet she was inexplicably assigned a Performance Improvement Plan (‘PIP’).

When the complainant’s team lead took time off for maternity leave, another member of staff took over the PIP and observed that there had in fact been no significant failures in her work and promptly voided the PIP.

It is accepted that general collective redundancies were announced on July 30th, 2024. No specific announcement was made in relation to the complainant’s role at that stage. In the lead up to the announcement of redundancies, the Respondent routinely reviewed her accommodations, albeit unsatisfactorily. In any event, these reviews ceased following the announcement of general redundancies.

Around August 21st, 2024, the complainant notified her employer that she was pregnant by way of annual leave requests for antenatal visits which were all approved.

On September 9th, the complainant was invited to a consultation meeting to be held on 11th September 2024 where she again indicated she was pregnant and again reminded her employer that she was dealing with a debilitating disability.

During this consultative process, the complainant was informed that only one member of staff would be retained and redeployed within the company. It was also stated in the consultation meeting of 11 September 2024 that the company had not recorded her condition as being pregnant despite approving her annual leave requests for antenatal visits.

The Complainant was now not only dealing with her disability but trying to forward plan for the impending arrival of her child, whilst coping with a redundancy process.  As a direct result of this she was medically certified as unfit to work for one month. But despite this attended a second consultation meeting on the 18th of September

A final redundancy of €5403.76 was deposited in the Complainant’s bank account on 28th November 2024.

These absences arose wholly or primarily as a result of the Respondent’s resistance to the Complainant working remotely, to reasonably accommodate her disability.

Redundancy- unfair selection.

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 and the statutory definition of redundancy is found in the Redundancy Payments Act 1967, Section 7 (2) as amended (detail submitted).

The respondent in this case has not ceased carrying out either the business for which the complainant was employed, neither have they ceased to carry on their operations in Ireland. Her work carried has not finished, and neither is the work she previously carried being carried out in a different manner or in addition to work that she is not qualified nor trained for.

Under Section 6(3) of the 1977 Act there may be a finding of unfair selection for redundancy where an employee is dismissed but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have been dismissed

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides.

“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”

The Respondent must show the dismissal arose wholly or mainly from one of the matters specified in Section 6(4) of the 1977 Act (or some other substantial ground), and it is submitted they cannot and have not done so.

In Williams v Comp Air (1982) 1 ICR 156, Browne-Wilkinson J in considering the issue of fair selection, identified the following as generally accepted principles governing how reasonable employers will typically act:

“1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2.   The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3.   Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4.   The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5.   The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.”

Boucher v Irish Productivity Centre (1994) ELR 2005, was an illustration of an unfair selection process. In this case, no agreement was reached as to the method of selection for redundancy (as, it appears in the instant case). The selection process was carried out without any genuine consultation or interviews (as in the instant case). The Employment Appeals Tribunal described this selection procedure as unfair and held that the claimants had been unfairly dismissed.

In Mulligan v J2 Global (Ireland) Ltd (UD/993/2009), in respect of redundancy the tribunal stated:

“Incasesofredundancy,bestpracticeistocarryoutagenuineconsultationprocess prior to reaching a decision as to redundancy.”

In JVC Europe v Panasi (2011) IEHC 279, Charleton J stated:

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason…

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.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”

The comment on the nature of redundancy made in St. Leger v. Frontline Distributors Ireland Ltd., [1995] E.L.R. 160 at 161 to 162 by Dermot MacCarthy S.C., as chairman of the Employment Appeals Tribunal, is apposite:

“Change runs through all five definitions within the Act. 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 numbers. 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 work or less work of the same kind does not mean ‘other work' and is only quantitative change…

simply following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision.

Aswithmuchelse,anapparentlyfairprocedurecanbeusedasacloakfordeceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.

In the circumstances of this case, I accept on behalf of the Respondent Company that from a business and operational point of view and in light of the economic downturn that there was some evidence of a genuine redundancy situation. However, this does not absolve the Respondent from affording the Complainant fair procedures in relation to consultations or exploring alternatives.

In that respect, it was noted that the Managing Director confirmed both in submissions and in the course of the hearing of this matter that there was no consultation process. The Complainant was asked to attend a meeting on the 10th of March 2022 wherein he was informed he was being made redundant. This meeting cannot be regarded as an adequate part of the consultation process. On the balance of probabilities and in consideration of the evidence presented at the hearing and noting the respective position of the parties I have concluded that there was no or any adequate consultation process and the onus was on the Respondent Company to carry out such a process.”

Redmond on Dismissal Law 3rd edition states:

“To satisfy the Workplace Relations Commission or the Labour Court that an employee was dismissed by reason of redundancy under s 6(3) there must be a redundancy situation and redundancy must be the main reason for dismissal. If the employer cannot prove both and cannot prove one of the other potentially fair reasons, dismissal will be unfair. Redundancy has become a common justification for dismissal. For this reason, strict proof is required.”

Examples of how the job was not working out and therefore did not meet the standard required to meet the objective justification test set out in Bilka. As previously indicated, it must be adequate, in that it must enable the loss and damage actually sustained as a result of the discriminatory dismissal to be made good in full in accordance with the applicable national rules (Marshall paragraphs 25 and 26).

It is necessary to recall that, in accordance with Article 12 of Directive 92/85, Member States are also bound to take the necessary measures to enable all workers who consider themselves wronged by failure to comply with the obligations arising from that directive, including those arising from its Article 10, to pursue their claims by judicial process…

 While recognising that the Member States are not bound, under Article 6 of Directive 76/207 or Article 12 of Directive 92/85, to adopt a specific measure, nevertheless the fact remains, as is clear from paragraph 45 of the present judgment, that the measure chosen must be such as to ensure effective and efficient legal protection, must have a genuine dissuasive effect with regard to the employer and must be commensurate with the injury suffered.” 

(Sections of submission on Equality complaint omitted)

Evidence of Complainant

The complainant gave evidence on affirmation.

She commenced employment with the respondent in September 2020, and she said that her role was to review the content of advertisements. Initially she did this working from home.

In relation to her performance reviews, she said that they had always been good before her diagnosis but did go down after that.

She said that the criteria in the redundancy assessment did not accurately measure the real distinction between the work she did online and offline; the latter was greater than that provided for in the in the criteria. She stated that the ratio of offline to online work was much greater than that reflected in the assessment criteria.

She stated that she was still working at home when the PIP concluded and shortly after that she advised the company that she was pregnant.

In relation to the consultation process she stated that she was hoping for advice on her situation and the second consultation took place when she was on sick leave.

In cross examination the issue of the relative role of off, and online work came up again. The complainant said that, while her offline work was considered in the course of the PIP, the proportion accorded to each in the redundancy process put her at a disadvantage in the selection for redundancy.

She agreed that the PIP did not play any part in the redundancy selection process, and she confirmed that she had been aware of the criterial being used and of the scoring. She became aware of the scoring on September 9th, and they were read to her at the first meeting with Ms Murray on the 11th.

She confirmed that she had not raised any issue about the process at the time and that she had been looking for a better redundancy payment. She agreed that no issues had been raised regarding the process at any of the meetings with the respondent, despite knowing the selection criteria and her scores.

She repeated that her primary concern at the meeting with Ms Murray on September 11th was the amount of the ex gratia payment.

She also stated that her refusal to sign the termination agreement was entirely attributable to the level of payment.

The narrative of events has been set out above in both submissions and there is no material difference on the sequence of events.

In its summation at the hearing the respondent asserted that no material criticisms of the redundancy selection process had materialised in advance of, or in the course of the hearing.

Indeed, there was criticism by the respondent of the failure of the complainant to particularise its case in advance of the hearing which I endorse. The failure to set out detail of the complaint until the last minute is unacceptable and disrespectful both to the parties and the tribunal process.

Likewise, the decision of the complainant to persist with the parallel complaint under the Employment Equality Act was extraordinary given that she was legally represented and given the clarity of the law on this point. Indeed, parties have their attention drawn to this prior to the hearing and the complainant’s obduracy (or more accurately that of her advisors) on this point is hard to explain.

It was only when invited to make a post-hearing legal submission on why the rule against parallel complaints of this nature should not apply, and sometime after the hearing, that the complainant withdrew the equality complaint. Up to that point the position taken by the complainant was that section 101 of the Employment Equality Act did not apply.

This resulted in unnecessary inconvenience and probably cost for all involved. And notwithstanding the decision to defer hearing of the Equality Act complaint, the complainant’s case was infused with references to her health and the bearing this may have had on the decision to make her redundant.

In any event, as agreed with the parties, the only issue now to be determined is that arising under the Unfair Dismissals Act.

There are two fundamental considerations here.

The first is whether a valid redundancy situation existed. Section 5 of the Unfair Dismissals (Amendment) Act 1993 provides, inter alia, that:

“… in determining if a dismissal is an unfair dismissal, regard may be had … to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal.”

The definition of ‘redundancy’ is found in Section 7(2) of the Redundancy Payments Act 1967- 2014.

“[A]n 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:

(e)     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

(f)      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

(g)     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 has been employed (or had been doing before his dismissal) - to be done by other employees or otherwise, or

(h)     The fact that his employer has decided that the work for which the employee has 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 has 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."

The Employment Appeals Tribunal in St Ledger v Frontline Distributors Ireland Ltd [1995] ELR 160 emphasised that there were two important characteristics in the statutory definition of redundancy, namely impersonality and change. On the issue of change, the EAT held:

Change […] runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete closedown. Change may also mean a reduction in the needs for employees, or a reduction in number”

The second is whether the respondent carried out a fair selection process.

While the nature of redundancy is fundamentally different to a termination based on performance or misconduct issues, they have in common the underlying requirement that the process of selection etc should be fair to the same standard.

The issues that arise for scrutiny are whether the selection criteria are themselves fair and transparent, and whether the manner of their application is also fair and transparent. (There are further requirements in relation to a collective redundancy, only some of which, the consultation requirements for example, are material to a decision on a complaint).

The respondent set out the process in both its submission and in the evidence of its two witnesses.

The background was a company re-organisation and the proposal to use new technology (Artificial Intelligence) to carry out the monitoring work previously done by the complainant. This was not disputed by the complainant.

There then followed a consultation process. The respondent submission and witness evidence were that selection criteria and related issues were the subject of the required consultation with worker representatives and again, this was not disputed.

As far as I can see from that evidence, it was conducted to a fair standard, and this was confirmed by the complainant in cross examination.

Then specifically, there was agreed evidence of the engagement with the complainant in relation to the process. Unfortunately for her, her post was ultimately one of those selected for redundancy.

There was a dispute over the weight that ought to have been attached to the respective functions of the complainant, as between those carried out on, or offline, and the impact of this on her score.

It is unreasonable to expect a WRC Adjudicator to evaluate the significance of this unless a clear case is made out that there was a procedural error, or one that was in breach of the agreed criteria or in some way mis-applied.  No such case was made out.

It is also relevant to note that, in any event, the complainant actually scored well on this, and indeed other categories; she was second overall in the rankings, but this was insufficient to save her.

But perhaps most extraordinary is the fact that the complainant did not raise any of this at the time.

 In fact, the evidence, undisputed again, was that the complainant accepted the outcome and refused to sign the termination agreement because she was not satisfied with the level of compensation (which was well in excess of the statutory payment).

While this would not, of itself, prevent her from then making out such a case in the course of a complaint to the WRC, she has failed to do so.

All of the evidence points to the conclusion that the only issue then between the parties was the amount of the redundancy payment and, fatal to her complaint of unfair dismissal, it remains so.

There is no jurisdiction under the Act to provide her with any remedy beyond a statutory payment.

Accordingly, I find that the dismissal meets the criteria set out in the definition of ‘redundancy’ in Section 7(2) of the Redundancy Payments Act 1967- 2014 and that the dismissal was not unfair.

For the reasons set out Complaint CA-00066441-001 is not upheld and the dismissal by reason of redundancy was fair.

Unfair Dismissal, Redundancy