ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000667

Complaint(s)/Dispute(s) for Resolution:

Date of Adjudication Hearing: 18/05/2016

Workplace Relations Commission Adjudication Officer: Joe Donnelly

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and/or Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Complainant’s Submission and Presentation:

Respondent’s Submission and Presentation:

There was an urgent requirement to cut costs and therefore a legal redundancy situation existed.

The respondent refutes the allegation that the complainant was unfairly selected for redundancy. A “last-in first-out” method was not feasible in the circumstances where the position was standalone.

The “at risk” employees were consulted at every stage and the circumstances leading up to the dismissal satisfies the requirements of the relevant legislation.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint(s)/dispute(s) in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 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.

Issues for Decision:

Whether there was a genuine redundancy situation.

Whether the selection of the complainant was fair and reasonable in all the circumstances.

Legislation involved and requirements of legislation:

Section 7(2) of the Redundancy Payments Act 1967 states:

“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-

1. the fact that his employer has ceased, or intends to cease, to carry on the business for the purpose 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

2. 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

3. 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….”

Section 6(7) of the Unfair Dismissal Act 1977 states:

“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 –

1. to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal….”

Decision:

The complainant was employed as a Caretaker by the respondent with whom he commenced employment in September 2006. He worked 39 hours per week and was paid €1,026.08 gross per fortnight. His employment terminated on 31 July 2015.

The complainant was employed by a school that caters for children with special needs. It is at present spread over two sites about a half a mile apart. Amongst its employees were 10 members of the ancillary staff. In Spring 2015 the Board of Management was concerned at the level of overspending by the school. On March 27, 2015 a number of the ancillary staff, including the complainant, received letters in relation to alterations to contracts / working reduced hours. The affected staff responded in writing rejecting what they considered to be a unilateral change of contract and the proposal was withdrawn.

At the same time an issue had arisen which prompted 5 members of the ancillary staff to write with queries regarding their terms and conditions of employment. The school principal responded to that letter on March 27 2015.

Some weeks later the complainant and four other members of the ancillary staff were invited to a meeting with the school principal to take place on May 26 2015. The principal advised them of concern at the level of overspending by the school and gave details of cost reductions implemented so far. He identified the ancillary area as a particular cause or concern and stated that book-keeping, secretarial work, the kitchen and caretaking were going to be restructured. The principal advised that protective notice letters would issue, that further meetings would be organised, that suggestions on cost savings would be welcome and that staff could volunteer for statutory redundancy. The letters were issued to the 5 staff members some hours later and they were also advised of further meetings at which they could have representation. The letter also stated that “following any consultation meeting the school will take into consideration any suggestions you have made throughout and we can then arrange a follow up meeting to discuss.” The 5 staff members concerned were the same 5 people who had sent a letter about employment matters. They were the only members of the ancillary staff to be subject to this process.

There then followed a series of meetings at which a number of staff, including the complainant, opted to have a solicitor as their representative. There were discussions in relation to the financial figures underpinning the decision and suggestions such as 3-day working or alternative duties put forward. On June 24 2015, however, the 5 staff were each informed by letter that they would be made redundant following the expiration of their notice period. They were also advised of their right of appeal. The complainant exercised this option and the appeal was heard by a member of the Board of Management not previously involved in the process. The appeal was rejected and the complainant advised of same on July 31 2015.

In cases such as this where an employer is making some people redundant while retaining other employees, the selection criteria being used must be applied in an objective and fair manner. Normally the selection should follow agreed procedures where they exist. The staff handbook under the heading of Redundancy states that the principal consideration will be to protect the employment of as many people as possible to ensure business efficiency. It then states:

“Therefore key staff will be retained to ensure this. Thereafter a policy of last-in, first-out will apply.”

Management decided that LIFO would not apply in this situation. Consequently the onus is on the employer to act in a transparently fair and reasonable manner. These matters were considered by the EAT in UD206/2011. In that case the Tribunal did not accept that the employer had acted reasonably for the following reasons:

1. the decision to make the claimant redundant was taken in a hotel….on (a date prior to the employee being informed of redundancy)

2. there was no serious or worthwhile consultation with the claimant prior to making her redundant. The consultation should be real and substantial. The decision to make the claimant’s position redundant was taken before the consultation process commenced.

3. no suitable or substantial consideration was given to alternatives to dismissing the claimant by reason of redundancy

4. there was no worthwhile discussion in relation to the criteria used for selecting the claimant. The selection criteria should apply to all employees working in the same area as the claimant but should also consider other positions which the claimant is capable of doing.

Many of these faults exist in this case. Whilst there were a number of meetings at which the complainant had legal representation it emerged in evidence that no meeting of the Board of Management was held during this period to consider the issues raised at those meetings. It therefore appears that no substantial consideration was given to the complainant’s proposals of working a 3-day week or whether he could revert in part to his original duties of driving the mini-bus.

I note in particular the following extract from the letter of July 31 2015 dismissing the appeal:

“As the caretaker role was identified as a role that could be carried out by other employees currently employed you were put at risk of redundancy. Furthermore….as your role is a standalone role LIFO selection criteria is not appropriate.”

I therefore find that the complainant was unfairly dismissed under the Unfair Dismissals Act 1977 because he was unfairly selected for redundancy. The complainant has been seeking employment but has been unsuccessful so far. I deem compensation as the most appropriate remedy and award the complainant €17,500.00 in that regard. For the avoidance of doubt this award is in addition to all sums already received in connection with the termination of his employment.

Dated:   5^th August 2016