Complainant

Respondent

Parties

Patrick J.  Tyrrell

FST Technical Services LLC

Complainant

Respondent

Anonymised Parties

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Representatives

Brian Nolan of Connect Trade Union

Paul Carroll of O'Mara Geraghty McCourt Solicitors

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-00066870-001

22/10/2024

The Complainant commenced employment with the Respondent on 10 May 2021 in a Quality Assurance Representative role and within three months he was working as an Off-Site Manufacturing Quality Assurance Representative (OSM QAR). The role involved specialist quality assurance functions relating to off-site manufacturing processes forming part of the Respondent’s contractual service delivery to its client.

On 17 July 2024, the Respondent received formal notification from its client terminating the Off-Site Manufacturing Quality Assurance scope of services. The Respondent submits that this resulted in the removal of a specific contractual business function directly linked to the Complainant’s role.

The Complainant was notified on 6 August 2024 that his role was at risk of redundancy. Consultation meetings followed including a meeting on 13 August 2024. Formal notice of redundancy issued on 16 August 2024. The Complainant appealed the decision through his trade union. The appeal was unsuccessful and the Complainant’s employment terminated on 13 September 2024.

The Complainant referred the within complaint to the WRC on 22 October 2024.

The Complainant accepts that the Respondent removed the Off-Site Manufacturing Quality Assurance Representative role but submits that the redundancy dismissal was unfair by reason of unfair selection and procedural deficiencies in the redundancy process.

The Complainant submits that the Respondent failed to apply fair and objective redundancy selection procedures. It is submitted that the Respondent improperly confined the redundancy pool to the Complainant alone and failed to consider other employees performing Quality Assurance Representative functions within the organisation. The Complainant contends that there were multiple comparable employees performing Quality Assurance roles and that a broader redundancy selection pool should have been established.

The Complainant submits that Last In First Out (“LIFO”) principles should have been applied and that he had longer service than certain other employees who were retained. The Complainant submits that he held a reasonable expectation that his length of service would be considered in any redundancy selection process. It is further submitted that temporary or contract workers should have been considered for redundancy before permanent employees in accordance with site arrangements operating between trade unions and certain companies working on the client site.

The Complainant disputes the Respondent’s position that his role was uniquely distinct or standalone. He submits that there was no material operational difference between on-site and off-site Quality Assurance functions and that he possessed the qualifications, experience and transferable skills required to perform other Quality Assurance Representative roles. The Complainant submits that during his employment he performed work across multiple functions and that his skills were interchangeable with those of other Quality Assurance personnel.

The Complainant further submits that the Respondent failed to conduct any form of comparative assessment or skills matrix to determine whether he or other employees were best placed to remain in employment. The Complainant contends that the Respondent effectively selected him personally for redundancy rather than identifying a role that ceased to exist.

The Complainant submits that the Respondent failed to properly consider redeployment opportunities within the organisation and failed to properly utilise his experience across other projects or functions. The Complainant accepts that limited redeployment opportunities were discussed but submits that insufficient effort was made to identify alternative roles or restructure existing functions to retain him.

The Complainant also submits that the redundancy consultation process was procedurally deficient. It is submitted that he was not advised of his right to representation and reliance is placed upon S.I. 146 of 2000.

The Complainant further submits that the appeal process did not constitute a meaningful independent review of the redundancy decision and submits that the appeal failed to adequately address the grounds raised concerning the selection pool, interchangeability and redeployment.

Overall, the Complainant submits that while the Respondent may have removed the OSM QAR function, the redundancy process was implemented in a manner that unfairly selected him for dismissal and failed to properly consider whether other employees or contractors should have been selected instead.

The Respondent denies that the Complainant was unfairly dismissed and submits that the termination of employment arose wholly or mainly by reason of a genuine redundancy situation.

The Respondent submits that the Complainant occupied a specialist Off-Site Manufacturing Quality Assurance Representative role and was the sole incumbent of that role. The Respondent accepts that the Complainant was a capable and experienced employee and states that the redundancy decision was unrelated to performance or personal capability.

The Respondent submits that the redundancy arose following a decision by its client to terminate the Off-Site Manufacturing Quality Assurance element of the Respondent’s contractual deliverables. The Respondent submits that the client determines the scope, location and nature of services required and that once the off-site manufacturing quality assurance function was removed, the Respondent no longer required the Off-Site Manufacturing Quality Assurance Representative role. The Respondent submits that this amounted to the complete removal of a discrete operational function.

The Respondent submits that the Off-Site Manufacturing Quality Assurance Representative role was organisationally and functionally distinct from on-site Quality Assurance Representative roles and required specialist expertise in off-site manufacturing oversight, vendor monitoring and supply chain quality assurance. The Respondent submits that while some skill overlap existed, the roles were not operationally interchangeable.

The Respondent submits that as the Complainant was the sole incumbent of the Off-Site Manufacturing Quality Assurance Representative role, no redundancy selection pool arose. The Respondent submits that redundancy law does not require an employer to displace other employees or broaden a redundancy pool where a specialist standalone role ceases to exist.

The Respondent further submits that contractor personnel performed different functions under separate contractual arrangements and were not appropriate comparators for redundancy selection purposes.

The Respondent submits that it does not recognise trade unions and is not party to any site agreement requiring the application of LIFO or contractor prioritisation. The Respondent submits that such arrangements were not incorporated into the Complainant’s contract of employment and did not bind the Respondent.

The Respondent submits that it conducted a full redundancy consultation process. The Complainant was notified that his role was at risk, consultation meetings were held, potential redeployment opportunities were discussed and the Complainant was afforded the opportunity to raise alternatives. The Respondent submits that no suitable vacancies existed within the organisation at the time of redundancy apart from a potential overseas opportunity which did not materialise. The Complainant was afforded a right of appeal and the Respondent submits that the appeal process reviewed the grounds raised and upheld the redundancy decision.

The Respondent submits that the redundancy arose solely due to the disappearance of the Off-Site Manufacturing Quality Assurance Representative role following the Respondent client’s decision and that the Respondent followed fair and reasonable procedures throughout the process. The Respondent submits that the dismissal was lawful and fair within the meaning of the Unfair Dismissals Acts.

In making these findings, I have considered the documentation submitted by the parties, the oral evidence adduced at the hearing summarised above and the oral and written submissions made by and on behalf of the parties at the hearing.

The fact of dismissal is not in dispute. The central issue for determination is whether the dismissal arose wholly or mainly by reason of redundancy and, if so, whether the Respondent acted reasonably in implementing that redundancy.

Redundancy is defined by Section 7(2) of the Redundancy Payments Act 1967 (as amended) as follows:

“(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-

(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 had 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 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

(e) 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,…”

The applicable portions of section 6 of the Unfair Dismissals Act 1977 (as amended) (hereinafter referred to as “the 1977 Act”) provide as follows:

(1) 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.

(6) 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.

(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,

and…

(7) 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,

…

Subject to the generality of Section 6(1), Section 6(4)(c) of the 1977 Act provides that the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy.  As observed by Charlton J. in  JVC Europe Ltd v Panisi [2012] E.L.R. 70: 

“In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite.  Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights.” 

The Respondent gave clear and consistent evidence that on 17 July 2024 it received formal notification from its client that the Off-Site Manufacturing Quality Assurance function was being removed from the Respondent’s contractual scope of services. I accept this evidence. I further accept that the Complainant’s role as Off-Site Manufacturing Quality Assurance Representative was directly dependent upon the continuation of that client-driven function and that the removal of that function resulted in the disappearance of the role itself.

I am satisfied that the Respondent undertook a genuine organisational review following the client’s decision and that the decision to remove the role was based upon operational and contractual necessity rather than considerations personal to the Complainant. I therefore find that the Respondent has discharged the burden placed upon it under Section 6(6) of the 1977 Act and that the dismissal falls within the redundancy exemption contained in Section 6(4)(c) of the 1977 Act.

The Complainant submits that he possessed extensive transferable skills and was capable of performing other Quality Assurance roles within the organisation. I accept that the Complainant was an experienced and capable employee. However, the issue of interchangeability in redundancy cases is determined by reference to the employer’s operational organisation of work rather than solely by the personal capability of an individual employee. Redundancy must be assessed objectively, having regard to how roles are structured and utilised within the employer’s business in practice.

Having considered the evidence, I accept the Respondent’s evidence that the Complainant’s duties involved specialist off-site quality assurance functions which were functionally and operationally distinct from on-site Quality Assurance Representative roles. I also accept the Respondent’s evidence that on-site Quality Assurance roles involved different reporting structures, operational responsibilities and client interface requirements and that the Off-Site Manufacturing Quality Assurance Representative role required specialist expertise that was not replicated across other roles.

While the Complainant demonstrated transferable skills, I am satisfied that transferable skills do not, of themselves, establish organisational interchangeability. The relevant consideration is whether the roles were interchangeable as a matter of operational reality rather than whether the Complainant was capable of adapting to other roles. I am mindful that it is not the function of an Adjudication Officer in redundancy cases to substitute his or her own view for that of the employer in relation to business reorganisation but rather to assess, on the evidence, whether the redundancy is genuine and whether the employer acted reasonably in implementing the redundancy process. I am therefore satisfied that the Respondent reasonably concluded that the Complainant’s role constituted a specialist and standalone role and that this assessment was grounded in organisational and operational reality.

The Complainant submits that a wider redundancy pool should have been created including other Quality Assurance employees and contractors and that he should have been retained in employment in preference to other workers. I have carefully considered this submission, as the issue of selection pool definition is frequently central to redundancy disputes. Redundancy law does not of itself confer an entitlement to displace other employees or to require the employer to conduct a competitive selection exercise where the employer has reasonably determined that a particular role has ceased.

I am satisfied that the Respondent considered whether a wider selection pool was appropriate and reasonably concluded that organisational and operational factors supported treating the role as standalone.

I accept the Respondent’s evidence that the Off-Site Manufacturing Quality Assurance Representative role was a single-incumbent role and that the removal of the off-site manufacturing function resulted in the complete elimination of that role. I am satisfied that the Respondent’s decision to define the redundancy pool by reference to the role was a rational and reasonable business decision grounded in organisational structure and client requirements.

The Complainant relied upon site arrangements and LIFO principles and argued that contractor personnel should have been considered before the Complainant was selected for redundancy. I accept the Respondent’s evidence that it was not a party to any collective agreement requiring the application of LIFO or contractor prioritisation and that such arrangements were neither incorporated into the Complainant’s contract of employment nor established as binding custom or practice. I have had regard to Ryanair Ltd v Labour Court [2007] IESC 6 in this regard. I am further satisfied that LIFO principles could not reasonably arise in circumstances where only one employee occupied the role identified as redundant.

The requirement for meaningful consultation in redundancy situations is a well-recognised feature of procedural fairness. Having reviewed the evidence, I am satisfied that the Complainant was notified that his role was at risk of redundancy, consultation meetings were held, the Complainant was afforded the opportunity to propose alternatives, redeployment opportunities were explored and the Complainant was afforded a right of appeal.

I am satisfied that the consultation process was genuine and meaningful and that the redundancy decision was not predetermined prior to consultation.

I accept the Respondent’s evidence that no suitable alternative roles existed at the time and that potential overseas opportunities did not materialise.

I am satisfied that redeployment options were actively considered but no suitable alternative positions existed. While it is well recognised that employers should reasonably consider alternatives in redundancy situations, they are not obliged to create new roles or redeploy employees into materially different or unavailable positions.

The Complainant relied upon S.I. 146 of 2000. I am satisfied that this instrument primarily governs disciplinary and grievance procedures and does not impose a mandatory requirement to advise employees of representation rights in redundancy processes. In any event, the Complainant was represented during the appeal stage and I do not find that this issue renders the redundancy process unfair.

The Complainant criticised the independence and effectiveness of the appeal process. I am satisfied that the appeal process considered the grounds raised and that the availability of an appeal constitutes an important element of procedural fairness.

Having regard to the totality of the evidence before me and the statutory framework, I am satisfied that the redundancy arose from an external client decision which resulted in the disappearance of the Off-Site Manufacturing Quality Assurance Representative role. I am further satisfied that the Respondent reasonably determined that the role was a specialist standalone position, that the redundancy pool was appropriately defined, that consultation and appeal processes were conducted and that alternative employment was reasonably considered.

Having regard to Section 6(7) of the 1977 Act, I am satisfied that the Respondent acted within the range of reasonable responses open to an employer faced with legitimate organisational restructuring arising from client-driven business requirements.

Accordingly, I find that the Complainant’s dismissal resulted wholly or mainly from a genuine redundancy situation and that the dismissal was not unfair within the meaning of the Unfair Dismissals Acts 1977–2015.

For the reasons set out in my findings above, I find that the complaint is not well-founded.