FULL RECOMMENDATION
SECTION 9 (1), UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : KOHINOOR LIMITED (REPRESENTED BY MANAGEMENT SUPPORT SERVICES (IRE.) LTD) - AND - HUSSAIN ALI (REPRESENTED BY CHANGIZ DURRANI DIVISION : Chairman: Ms Jenkinson Employer Member: Ms Doyle Worker Member: Mr McCarthy |
1. An appeal of an Adjudication Officer's Recommendation no r-159394-ud-15/SR.
BACKGROUND:
2. The Worker appealed the Recommendation of the Adjudication Officerto the Labour Court on 27th April 2016 in accordance with Section 9(1) of the Unfair Dismissals Act 1977 to 2015. A Labour Court hearing took place on 14th September, 2016. The following is the Determination of the Court:
DETERMINATION:
This is an appeal by Mr Hussain Ali against the Adjudication Officer’s Decisionr-159394-ud-15/SR,which rejected his claim under the Unfair Dismissals Act, 1977 - 2015 (“the Act”). Mr Ali submitted a complaint against his former employer, Kohinoor Limited, alleging that his dismissal by reason of redundancy was a sham and therefore he was unfairly dismissed. The Adjudication Officer held that he was not unfairly dismissed and rejected his complaint.
For ease of reference the parties are given the same designation as they had at first instance. Hence Mr Hussain Ali will be referred to as “the Complainant” and Kohinoor Limited will be referred to as “the Respondent”.
The Respondent is in the business of manufacturing readymade meals for retailers. It was based in Tallaght before it relocated to Cookstown in 2015. The Complainant was employed by the Respondent as a Chef from 20thNovember 2006 until 20thJune 2015 when he was made redundant. He was based in the food preparation unit in Tallaght and did not relocate to Cookstown as he was declared redundant prior to the relocation. He referred his claim under the Act to the Workplace Relations Commission on 27thJuly 2015 .
Summary of the Respondent’s Position
Mr John Barry, Management Support Services (Ireland) Limited, on behalf of the Respondent informed the Court that the company had experienced a noticeable slowdown in its business and was in the process of planning a move to new premises which would result in more efficient use of equipment, resources and a rationalisation of Chefs. As it had more staff than it needed and consequently reduced its Chefs by two.
The General Manager met with all Chefs on 15thJune 2015 and advised them of the need to rationalise their department, with the result that two Chefs would be made redundant. As the job was the same for all Chefs the Respondent decided to carry out a selection process. With the assistance of HR expertise, it devised a matrix against which all Chefs were to be measured. The selection for redundancy was based on the outcome of that process.
The matrix measured the following:-
- oAttendance Record
oTime-keeping Record
oDisciplinary Record
oFlexibility/Adaptability/Versatility
oSkills/Competencies
oNew Method/Work Improvement
oQuality of Work
oCooperation and Motivation
Each category was given five rankings which were set against certain targets, e.g.
Flexibility/Adaptability/Versatility
- 0no competence beyond immediate role/reluctant to learn new skills
1limited competence beyond immediate role/takes time to adjust and accept new situations
2able to provide some assistance in other areas/adjusts to new situations well
3multi-skilled and able to provide regular support beyond own role – picks up new skills quickly, accepts responsibility
4multi-skilled and able to take on a range of different roles/actively seeks responsibility and opportunity to learn new skills, takes new skills in stride
Having completed the matrix for each Chef, the General Manager met with each person to seek their opinion and views on their scoring and to discuss any grievances regarding the scoring. The General Manager met with the Complainant, at the conclusion of which the Complainant accepted his scores.
The two people with the lowest scores were therefore selected for redundancy. This included the Complainant and the second was a Senior Chef. He was made redundant on 20thJune 2015. The Complainant appealed the decision and a meeting was held on 3rdJuly 2015 to hear the Complainant’s concerns.
The General Manager said that since that time, further Chefs have been made redundant, it now has only four Chefs. The Respondent stated that it required Chefs who had the ability to be flexible and to have the appropriate skills for the ongoing development of the type of product the company was producing, this entailed having less Chefs and more employees with the ability to be efficient and capable of carrying out a broad range of duties.
Mr Barry stated that the Respondent advertised for an Executive Chef in October 2015, with specialist qualifications, for the purposes of product development. He said that the Complainant did not possess the required qualification and told the Court that the position was not filled until 2016.
The General Manager, Mr M, in his evidence to the Court said he joined the company in September 2014 as Operations Manager and had become General Manager in February 2015. He said that he was very familiar with the business and was on the production floor on a daily basis. Mr M stated that the numbers of Chefs employed had been reduced while the number of general operatives had increased due to the changing demands of the business. He said that there were a number of issues with the Complainant’s work, this was reflected in his low scoring on the matrix. He said that after the redundancies, four other Chefs were relocated to packaging, however the Complainant was not suitable for this work as demonstrated by his low score on “flexibility”.
Mr. M said that the Respondent was not aware of the Complainant’s grievances as he had not brought these to the attention of management, prior to the initiation of this claim.
Summary of the Complainant’s Case
Mr Changiz Durrani, Legal representative for the Complainant contended that the Complainant was unfairly selected for redundancy. He said that the Complainant had worked for the company for over 8 years. Mr Durrani maintained that the Complainant was not given the opportunity of fair procedures.
In his evidence to the Court, the Complainant disputed that there was a valid redundancy. He said that 3 Chefs had started before him and 6 after him. He maintained that he was selected for redundancy due to his ongoing dispute with the company. He said that at the one to one meeting he had with Mr M, General Manager when an interpreter was present, he was told that his scores were better than others and therefore he thought his job was safe. He said that as he disputed the redundancy he refused to sign the redundancy papers given to him by management.
Mr Durrani disputed the selection process and said it was not genuine, as it was devised two days before the announcement of redundancy and lacked the criteria of length of service. He said that the Respondent had increased employee numbers and had advertised for a Chef after the Complainant was made redundant.
He said that the matrix showed that the Complainant had no disciplinary record and that his scores for flexibility and motivation were very low, which did not make sense. He disputed the General Manager’s ability to assess the work, he was relatively new and had no experience of Indian food.
Conclusions of the Court
Redundancy is defined in Section 7(2) of the Redundancy Payments Act 1967 - 2014, as being a dismissal 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 hence forward be done in a different manner for which the employee is not sufficiently qualified or trained, and/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 henceforth be done by a person who is also capable of going other work for which the employee is not sufficiently qualified or trained.
The Court must be satisfied that where an employee is dismissed by reason of redundancy that there was a genuine redundancy and that the redundancy was the main reason for dismissal.
Having considered the submission made, the Court is satisfied that the Respondent decided to carry on its business with fewer employees due to the changes taking place in the Company at the time. The Court is further satisfied that the changes involved were qualitative changes, as evidenced by the continual reduction in the requirement for Chefs, the Court accepts as persuasive the evidence of Mr M in this matter. Details supplied to the Court of employees employed prior to the redundancies in June 2015, indicated that there were 34 employees employed, whereas by September 2015, there were 31 employees employed. Therefore the Court cannot accept the Complainant’s contention that more employees were taken on after he was made redundant. Therefore, the Court finds that there was a genuine redundancy within the meaning of Section 7(2) (c) of the Acts.
The Court notes that the Respondent sought external expert advice on the selection process for the required redundancies. In conjunction with that advice it devised a matrix to include the essential elements required to meet the future needs of its business. The Complainant was properly consulted in relation to the impending redundancy of his position and was given an opportunity to have an input into the scoring. Furthermore, he was given the opportunity to appeal the decision to make his job redundant.
The Court also found as persuasive, the Respondent’s assertion that it had no knowledge of the Complainant’s grievances or of letters purported to have been sent to the Company between February 2008 and June 2014. Therefore, the Court cannot accept the Complainant’s assertion that he was singled out for redundancy due to his dispute with the Company.
Employers must act reasonably in taking a decision to dismiss an employee on the grounds of redundancy. Section 5 of the Unfair Dismissal Act 1993 (as amended) provides that the reasonableness of the employer’s conduct is now an essential factor to be considered in the context of all dismissals. Section 5, inter alia, stipulates 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”
In its determination inGillian Free v Oxigen EnvironmentalUD 206/2011, the Employment Appeals Tribunal noted that“when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy….where there is no agreed procedure in relation to selection for redundancy….then the employer must act fairly and reasonably”.
The Court is satisfied that having made the decision to make a number of employees redundant from among a number of Chefs, carrying out the same or similar duties, with the assistance of expert advice it devised a very detailed selection matrix to decide on the criteria to be used to select those to be made redundant. Having reviewed the criteria used the Court is satisfied that they were objective and fair criteria.
The Court has not been given any evidence to show that the selection criteria did not apply equally to all Chefs working in the same area as the Complainant and in doing so the Respondent gave consideration to alternative roles that the Complainant may be capable of performing in its business. In such circumstances, the Court finds that the Respondent engaged in fair procedures through consultation with all affected employees before any redundancy was decided and finds that it has justified why the Complainant was selected for redundancy.
The Court finds that the Complainant was not unfairly selected for redundancy and therefore finds that the Respondent has not contravened Section 6 (4) of the Unfair Dismissals Act 1977 (as amended) which states:-
‘Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly form one or more of the following:
- (a)[not applicable]
(b)[not applicable]
(c)The redundancy of the employee, and
(d)[not applicable]
Determination
For the reasons set out herein, the appeal is disallowed and the Decision of the Adjudication Officer is affirmed.
The Court so determines.
Signed on behalf of the Labour Court
Caroline Jenkinson
CR______________________
1st November, 2016.Deputy Chairman
NOTE
Enquiries concerning this Determination should be addressed to Ciaran Roche, Court Secretary.