ADJUDICATION OFFICER DECISION

An Electrical Mechanical Engineer -V- A Company

Adjudication Decision Reference: ADJ-00000420

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

Date of Adjudication Hearing: 23/4/2016 and 27/07/2016

Workplace Relations Commission Adjudication Officer: Gerry Rooney

Procedure:

In accordance with Section 8 of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Following the first hearing the case was adjourned to afford sufficient time to complete the presentation of evidence from the parties at a second hearing.

Complainant’s Submission and Presentation:

Background:

This claim refers to an engineer (the Claimant) who commence employment with a material handling systems company (the Respondent) on 7^th March 1994 and was promoted to the role of Engineer in Charge in March 2004, a position in which he continued until his termination of employment on 13^th August 2015.

The claimant was on a salary of €75,836.62 per annum plus a car allowance for €450 per month and a discretionary bonus.

The claimant contended that he was unfairly dismissed from his employment on 13^th August 2015 where the Claimant received correspondence from the respondent dated the 12th August 2015 notifying him that his current role did not meet their business needs and therefore the role was to be eliminated the following day. The claimant maintained that his position was not redundant as he was offered the same role with altered terms and conditions which he declined. The employer's response to his declining the offer was to notify him "therefore you are redundant and your last day of work will be the 13th August 2015".

Respondent’s Submission and Presentation:

The respondent denied and refuted the claim that it unfairly dismissed the claimant and contended the claimant refused to accept necessary changes in his job which required them to consider his position redundant, and where they would have paid the claimant a redundancy payment upon termination of his contract of employment on 13^th August 2015.

The respondent advised that the claimant was employed as an electrical mechanical engineer from the 7^th March 1994 where he initially was required to work five eight-hour days each week. The claimant was subsequently promoted to Engineer in Charge and where he worked alongside another engineer of similar grade.

The respondent acknowledged that the claimant’s work arrangements were informally changed in 2009 due to changed demands in the workplace and to facilitate the claimant’s domestic circumstances. At this time the claimant changed from a five-day week to a four ten-hour day each week and with a requirement to attend on site calls out of normal working hours. Due to the changed arrangements the respondent had reduced an on-call allowance to €25 per day. Over this time the claimant had an arrangement with another engineer to cover on call arrangements and where the respondent explained the engineers agreed to a day on, day off on call arrangement between them. The respondent maintained that the four-day week arrangements were temporary and informal. The claimant’s written contract of employment was not changed at this time.

The respondent contended that during 2014 and into 2015 the client they were serving had expanded and as a consequence there were considerably increased demands on the respondent to provide the service. As a result of this increased demand the respondent asked the claimant to revert to the contractual arrangements that he had in 2009 and where he would again work five eight-hour days, in addition to being available to respond to calls and attend the site outside his normal working hours. In this regard the respondent advised that it had an acute need to have its electrical mechanical engineer onsite over five days a week for eight-hours each day and where the role of having an engineer working a ten-hour day’s over four days had become redundant.

The respondent argued that it had exhausted all reasonable efforts when consulting with the claimant to get the claimant to revert to the five eight-hour day arrangement, and when its offers failed it had no option but to terminate the claimant’s contract of employment by way of redundancy as they no longer had a four-day week role.

The respondent also contended that they had discussed changing the arrangements with the claimant in 2013 as it predicted a growth in demand at that stage but the respondent did not return to discuss these issues again with claimant during 2014. It was only in 2015 when a major refit had taken place and the changes required the engineer to be onsite five days a week. In effect from the beginning of 2015 issues were ramped up in the client’s site. The respondent acknowledged that the nature of the work was the same but there was more of it complete. The respondent maintained that the changes also brought unpredictable whereas prior to the changes the work was predictable. It argued that with the new refit things could change overnight and the engineer in charge had to be onsite on the Friday, and also there was an increased demand for an on call requirement. In effect the respondent argued that they needed a five-day week cover, Monday to Friday, from the claimant. They also required that when the claimant was on call he could turn up to the site within four hours.

The respondent acknowledged that a sequence of communications had taken place between the claimant’s manager and the claimant from the 29^th April 2015 where it attempted to resolve the matter and encourage the claimant to accept the changed work practices. The respondent argued that to facilitate the claimant it agreed that he could start late on a Friday morning to meet his family and personal circumstances, that they also agreed to increase the car allowance to €600, and acknowledged that they had a challenge of balancing their customer demands with staff workloads.

They argued that they were disappointed with the claimant’s lack of willingness to take on the new responsibilities and where they attempted to address his concerns but ultimately they acknowledged that the claimant was not in a position to accept the changed role, and following his departure they sought internal applications and filled the role within one month. The respondent acknowledged that the new role was to complete a five-day work where substantially the work remained the same with the only material difference being a requirement to attend on five days instead of four, and a change in the overall arrangements.

The respondent also argued that in response to concerns raised by the claimant regarding the on call arrangements that proposals were made to redress the on call requirements but that these were not responded to by the claimant. The respondent further argued that the claimant was in fact doing on call under the current arrangements and therefore was of the view that the claimant should be in a position to facilitate its request to meet the new demands.

The respondent contended that it had offered the claimant the new position but he refused it, and therefore it had no option but to make him redundant.

The respondent also acknowledged in the cross examination that whilst they were offering a new arrangement the service provided by the claimant would remain as per the previous arrangements but under a new contract. It acknowledged that it gave the claimant two days to get legal advice but extended this to give him more time. Ultimately the respondent held the view that the claimant did not accept the new role and in trying to progress matters they offered a compromise agreement (exit package) if the claimant was not in a position to accept the new role but he also refused to sign this. Therefore, they had no alternative but to make the claimant redundant. The respondent indicated that they did not want to get rid of the claimant, but they had done what they could and could not get past the issue in relation to the on call arrangements and therefore had no option but to make the job redundant.

In this regard the respondent maintained that it did all it could to facilitate the claimant’s requirements but as ultimately the claimant was not in a position to accept the new role it made him redundant and it does not accept its decision amounts to an unfair dismissal. In effect the roe had changed due to changing work demands and the claimant refused to accept the redefined role.

Claimant’s Submission and Presentation:

The claimant contended that he was unfairly dismissed from his employment on 13^th August 2015.

The claimant outlined that his original contract of employment required him to work from 8:00am to 4:00pm Monday to Thursday and from 8:00am to 3:30pm on Friday. In 2009, in order to meet a requirement from his employer to have a 24 hour seven day on call cover he made a new agreement which changed his work practices to a four by ten hour working day per week, and agreement to be available on call outside these hours. The claimant advised this was confirmed in an email to him from the respondent dated 25^th June 2009, where he agreed to work four 10 hour days a week and ten hours to be available on call from 5pm until 7pm on a Friday, and where he would be available on call throughout Saturday and Sunday. The on call arrangements were shared between the claimant and another colleague. The claimant also agreed to a reduction in his on call allowance from €50 per twelve-hour shift to €25 for the days he was on call.

In his evidence at the hearing the claimant maintained that the changes which took place in 2009 were due to a head count reduction and as a consequence the level of experience in the workplace dropped off which required an on call arrangement to be put in place. These arrangements were a large imposition for the claimant where he would have objected strongly at the time, but ultimately he came to an agreement. The claimant was unhappy that these changes were not contractually documented. However, the email he received in 2009 clearly outlined what the arrangement was. Furthermore, the claimant advised that when the arrangements were put in place they would remain until he agreed otherwise as this was clearly stated in the email which stated that “the arrangement can be changed back to regular work week at any time by you.”

At the time of these arrangements the claimant was also experiencing a marriage breakdown and was ordered via a court order to collect his young children on Thursday nights and bring them to school on Friday mornings and then keep them for the weekend. Whilst the claimant wasn’t happy with these arrangements he agreed to work them and continued working in this capacity from 2009 until the termination of his employment on the 13^th August 2015.

The claimant contended that in January 2014 the Senior Operations Manager of Service, who was based in America, visited the workplace and sought suggestions in relation to how a new on call work arrangement could be covered due to changes that would be required from their main costumer and which the claimant was providing the services.

On the 21^st January 2014 the claimant made some proposed solutions as to how the on call work and new arrangements could be covered.

The claimant maintained that his suggestions were not replied to so he followed them up by email by 25^th February 2014 where he asked the manager if he had considered the matter further. The claimant advised that he received a response from the manager who advised that no change to the coverage would occur at this time and that the manager was still waiting for HR to get back to him on some questions that he needed answered (in relation to the proposed changes). The claimant maintained that the original on call system remained in place for the following eleven months.

The claimant advised that in early 2015 that he was informed by the respondent that he would now be required to work five days per week plus to be on call every second week. The claimant maintained that the on call hours were to be throughout the night and at weekends, and as part of the proposed changes he was required to come to the site within four hours of a call if it was deemed necessary. The claimant advised this was a change to his current arrangements where he could deal with issues arising on a call via telephone. The claimant also advised that he had visitation obligations for his two children every second weekend which meant that he would have to have a babysitter on standby should he be required to come to site and he advised that this was entirely unworkable and impractical for two weeks every month. The claimant also advised that the obligation to be on call for a two-week period would restrict his social life and his opportunity to travel during the two weeks he was on call every month.

The claimant maintained that in April 2015 he was being put under pressure to accept the new changes. Over this time, arrangements were being proposed which the claimant felt were not suitable. On the 29^th April 2015 following a telephone conversation with his manager the claimant sent an email to his manager as he was concerned an intention was in place to unilaterally change his working arrangements. In this email he advised his employer that he understood an employer could not change an employee’s working hours outside the employee’s employment contract except by agreement. He reiterated that he understood the respondent was asking for him to be available to come onto site in less than four hours outside of his non-working time, and this was a significant change in his working terms and conditions. He advised the respondent that it did not have his agreement and therefore it was an illegal practice to impose the changes on him.

The claimant understands that his email was forwarded to the HR Manager and the Director of Operations of the respondent (who are resident in the USA). The claimant further referred to an email sent by the Director of Operations to his manager advising “I think we should be going to rewrite the contracts and if he does not like it, we will make him redundant” (copies of all correspondence referred to were submitted at the hearing). The claimant also observed that the HR Manager had replied to his managers on the 29^th April 2015 by email stating “what the claimant has said based on the information he shared in his email, we cannot force him to do anything unless there is an agreement between employer and employee.” The claimant therefore argued that the respondent acknowledged that they were in breach of his contract of employment and in breach of employment law if they attempted to impose the changes in which he was not in agreement with.

The claimant then maintained that on the 1^st May 2015, with his colleague, he received an email from the respondent stating that the on call process would change. He advised that this email stated that the on call work would be shared between himself and his colleague on a weekly rotation and that during this period of on call they must answer a call from the site within 30 minutes and must be on site within four hours of the call if “deemed necessary”. The claimant also advised that he was to be paid €25 per day for on call work and for every fifteen days spent on call he would receive a one eight-hour day off and where the email ended by stating “this is [the company’s] final response to the discussion. Please indicate if you are in agreement or rejection.” The claimant said that whilst his colleague reluctantly accepted the proposal on the 7^th May 2015 his colleague also advised the respondent by email that he felt all the parties should consider an alternative method to the on call support.

The claimant said that he did not agree to the proposal and therefore did not accept it. The claimant also referred to an email of the 13^th May 2015 from his manager to the HR Manager and the Operations Manager, which stated “sat down and had that conversation with [the claimant]. Informed him of the conversation and told him he could be released.”

The claimant then maintained that on the 15^th May 2015 his manager emailed the HR Manager and the Operations Manager and referring to the on call arrangements and discussions with the claimant advised “I had that discussion at last three (SIC) specifically made that point. Being; this company’s position and if you do not want to do that part of the job we will need to move you to another position or end your employment.” The claimant contended that he received another email on the 22^nd May 2015 from his manager stating “I am writing to you on relation to our ongoing discussions regarding the on call process which has been operating for five years and is part of your contract of employment with the company. Regrettably it appears that despite trying to come to an amical agreement with you that this may not be possible. If I do not receive written confirmation from you then the company will have no alternative than to invoke the company’s disciplinary process which may result in a sanction up to and including dismissal”. The claimant advised that he was concerned with having received this email and with a threat of disciplinary sanction including dismissal. He responded to his manager on the 26^th May 2015 advising him that he was disappointed with the tone of the letter, and inquiring what he had done wrong that would make him subject to disciplinary actions. He also advised his manager that he had never signed up to the new process and having reviewed his terms of employment he does not see where the on call arrangements were part of it, and that he was seeking to clear up the misunderstanding that existed. The claimant advised that he received a response which stated that the matter was no longer a discussion and the respondent had made his final position on the issue. He was asked to provide a response within a stated deadline.

On the 29^th May 2015 the claimant emailed his manager and cc’d the HR Manager and the Operations Manager that he would cooperate with the on call system as it had been operating up to that point and he would continue to work a four-day week plus on call every second week. He refused to change his contract arrangements to a five-day week plus every second week on call. He advised later that day his manager emailed the Operations Manager where the Operations Manager asked the claimant’s manager whether he wanted to rewrite the contract and where the claimant’s manager replied “I think we still need to but I want him to be clear. “Yes I will do the on call. I also want to change my work schedule”. Then we rewrite the contract and four months later he will refuse to sign, and Christmas I will make him redundant (my prediction only).”

The claimant contended that the sequence of emails indicated that the respondent was aware that they could not change his contract of employment without his consent, and equally they intended to progress with imposing the changes on him and where they would decide to make him redundant at some stage in the future if he refused to agree to the changes.

The claimant advised that on the 13^th July 2015 he received an email from his manager advising that the respondent was offering him a new position to replace the one he was currently holding where his employer maintained that the majority of the contract will remain unchanged except the on call policy will be included, work days will be five days a week, and he will receive an increase in his car allowance to €600. The claimant advised that the email also informed him of a compromise agreement should he not agree and which would provide him with a payment of around €28,500 and that if he signed that agreement he would qualify for an ex gratia payment which needed to be worked out. The claimant advised that he needed to take legal advice and sought clarification as to whether the respondent’s position was that he had to accept the new position or take the redundancy.

The claimant then advised that on the 24^th July 2015 he received an email from his manager stating that the respondent had determined his current position is not meeting the business’s needs in the current form, and they needed to create a new position that meets those needs. They advised that they had offered him that position because they believe his is the right candidate for the position and where they clarified where the difference was that the new position would need to follow the on call policy, where he will receive €25 per day of an on call duty, that the new position will work five days a week Monday to Friday and that he would receive an increase in his car allowance from €455 to €600 per month. The respondent also advised that they had drawn a conclusion that the claimant had not accepted this position and that based on this understanding the formal redundancy documents would be finalised and they would determine his last day of work. The claimant then received an email on the 12^th August 2015 advising him that as per the discussions they have determined his Engineer in Charge role no longer meets the business needs and therefore this role was to be eliminated as and from the 13^th August 2015. The respondent advised the claimant that they had offered him the new role (Engineer in Charge) by the 11^th August 2015, they contended that the claimant had confirmed he would decline the offer for the new engineer in charge role and therefore advised him that he was being made redundant where his last day of work would be the 13^th August 2015.

The claimant argued that the role was exactly the same with the exception of the change in working hours and the on call duty which was not agreeable to him, and therefore the role was not redundant. He maintained that after his job was terminated an internal person was appointed to the role and that in effect the decision to make him redundant was a sham redundancy and that he was in effect unfairly dismissed.

The claimant also informed the hearing through cross examination that he would have advised the respondent why the system being proposed in 2015 could not work, that there was a delay from the respondent in responding to his concerns, but ultimately the respondent did not consider them and progressed with requiring a substantial change in his work practices to facilitate the extra work which was now required. In this regard the claimant advised that he had made suggestions which included six people who could do on call where the workload could be more fairly shared out, but this suggestion was not responded to by the respondent. The claimant believed that due to this impasse the respondent then “had a change of tact” where it issued new contract conditions and gave the claimant a short time to respond to these issues which ultimately led to a redundancy letter on the 12^th August 2015.

In this regard, the claimant argued that the statuary definition of redundancy as provided in the Redundancy Payments Act, 1967, S.7(2) as amended, did not apply in his case as the respondent had not ceased or intended to cease to carry on the business for the purpose of which the employee was employed. In this regard the claimant argued that the business had in fact increased, and his role was still there and that the matter in dispute was the on call and five-day work arrangements. The claimant also argued that none of the following requirements had been met:

-          requirements of the business where he was employed to carry out work of a particular kind had not ceased or had been diminished or were expected to cease or diminish,

-          the respondent had not decided to carry on business with fewer employees, or

-          that the respondent had not decided that the work for which the employee had been employed should be done in a different manner in which the employee is not sufficiently trained, or

-          the fact that the respondent had decided that the work in which the employee had been employed should hence forth be done by a person who is also capable of doing other work in which the employee is not sufficiently trained.

On that basis the claimant argued that it was not a redundancy in accordance with the Redundancy Payments Act. The claimant argued that it was not a case that the business needs of the respondent had diminished resulting in a necessary dismissal, but rather that they had increased. He also argued that in response to the increased business needs the respondent, who was in a financially healthy position, attempted to increase the workload on employees and specifically on the claimant rather than hiring new employees. The claimant’s role, he argued, was still in existence in its entire and unchanged form, however the respondent sought to add additional duties to it. Furthermore, the claimant again argued that the respondent had acknowledged in its own written submission to the Workplace Relations Commission that due to the change in business needs his role as it then operated was no longer adequate and that the role (as it then operated) was to be made redundant and replaced with an almost identical role.

The claimant therefore argued that the respondent acted in contravention to Section 6(1) of the Unfair Dismissal Act, 1977 which provides that “subject to the provisions of this section, the dismissal of an employee should be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regards to all the circumstances, there were substantial grounds for justifying the dismissal.” The claimant argued that he had made repeated attempts from as early as 2014 to remedy the issues surrounding the on call arrangements, however neither his suggestions nor his protests were considered. Once he stated he was unwilling to accede to the demands he maintained that the respondent’s management stated amongst themselves they would make him redundant in a matter of months (see earlier).

The claimant argued that he was unfairly dismissed from his employment on formulated grounds, having been subjected to threats and coercion to relinquish his rights under his contract of employment which he had held for a period of twenty-one years, and that had been amended some seven years earlier. He further argued that he, after twenty-one years of experience, was a highly qualified engineer with specific skills for his employer, had an excellent disciplinary record, and stellar performance reviews over the years.

The claimant also argued that instead of making him redundant it was feasible for the respondent to hire another employee who could cover the on call requirements, however the respondent chose to overload him without any concern or regard for his adequate rest periods, quality of life and family commitments. The claimant argued that it was when he refused meet these unreasonable requests that he was dismissed. The claimant further argued that the respondent behaved unreasonably and abhorrently in their attempts to bully the him into accepting demands that the claimant knew he could not reasonably sustain. The claimant was not in a position to accept these changes as he felt they would jeopardise his mental and physical wellbeing in addition to impacting gravely on his family and personal circumstances and his social life.

Having been dismissed at forty-six years of age the claimant maintained that he now finds himself unemployed. Due to the specialist skills that he has developed over the past twenty-one years (robotic equipment in clean room environment) he maintained that he is finding it difficult to find further employment stating that his skills are not transferable due to the particularities of the respondent’s work. The claimant advised that he had sought employment on a number of occasions but had been refused. He advised the only type of jobs that he would now be qualified for were much lower than his current situation where he would have to take a substantial reduction in his income (€25,000 to €40,000 per annum) and where he would effectively have to start mid-career again and where it would take him some years, if at all, to work at a similar position to the one he was in when he was allegedly unfairly dismissed. The claimant also stated at the hearing that he would have accepted other jobs with the respondent rather than to be made redundant, but as that was never offered to him, despite such work being available.

In effect he has argued as he would not agree to the unreasonable changes in his working conditions to meet the growing demands of the respondent, the respondent decided to make his role redundant but in effect it was a sham redundancy as his role continued and another internal member of staff was promoted to the role where this person is performing identical duties to what the claimant was doing before he was dismissed.

Findings and 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 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.

The claimant asserts that he was unfairly dismissed; the respondent asserts that the termination of employment was due to redundancy as the job had substantially changed and having offered the new role to the claimant he was not in a position to accept it and therefore he was made redundant.

The adjudication must therefore consider whether the claimant’s redundancy was a genuine redundancy or whether it amounts to unfair dismissal.

Sec 7(2) The Redundancy Payments Act1967 highlights a number of various where redundancy arises as follows:

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.

It is clear from the evidence of the respondent that the work had not ceased. In fact, it had increased which required extra cover for on call outside of normal work hours, and also for the attendance onsite of an engineer in charge on Fridays. However, in 2009 the claimant had through an agreement with the respondent moved to a four-day forty-hour week where this arrangement also included on call arrangements. That agreement was to remain in place until it was changed back to regular work at any time by the claimant. Therefore, any change in the working arrangements had to be agreed by the claimant.

It is clear from the evidence adduced in the hearing that the respondent had a need to increase its cover to a five-day week and also to change its on call arrangements. The evidence demonstrates that during 2014 the respondent had approached the claimant in relation to changing the work practices and when the claimant raised his concerns in relation to this matter, and referred to the legal protections of his contract of employment, the respondent did not progress the matter at that stage and remained silent on the issue for circa 11 months. Then in April 2015 the respondent proposed a process to change the working arrangements where it was clear from the internal correspondence within the organisation between the claimant’s supervisor, HR, and the Operations Manager that if the claimant did not accept the changes he would be made redundant sometime later that year.

The evidence adduced also demonstrates that the claimant, once he was approached again in April 2015, raised his concerns in relation to the change of work practices and provided alternatives to the respondent. However, the respondent did not directly respond to these concerns and issued an ultimatum to the claimant in July 2015 that if he did not accept the changed working arrangements his position would be made redundant. The claimant clearly found the situation to be unsatisfactory and continued to assert his concerns with the respondent who ultimately decided on the 12^th August 2015 that as the claimant had not accepted the new work arrangements his job was no longer required and he was subsequently made redundant the following day. The claimant received redundancy payment and payment for notice and his contract of employment was terminated.

The evidence at the hearing also confirmed that in effect the job had not changed in that all that was required was a change in the working arrangements and a requirement for new on call arrangements to be put in place. I am satisfied that alternatives appear to have been available for the respondent to consider in relation to the on call arrangements in that the respondent appointed another employee to the role after the claimant’s contract was terminated.

The claimant advised that he would have considered alternative employment within the respondent’s sight, however these were never offered to him and he was therefore left with no option but to have his job terminated.

Having reviewed these circumstances, I am not satisfied that a genuine redundancy existed. Clearly the respondent had a change in its requirement to service its client which necessitated a higher level of cover. Under such circumstances it appears that more work existed rather than less, and therefore it appears remarkable that the respondent decided to terminate the claimants contract. Equally the job was not replaced by somebody with different skills, it was clear that the job still remained. Having considered all the evidence presented I am satisfied the respondent’s decision to dismiss the claimant was based on the claimant’s resistance to change his agreed contractual arrangements rather than on the job being made redundant.

In accordance with Section 6.1 the Unfair Dismissals Act, 1977 “the dismissal of an employee should be deemed, for the purpose of this Act, to be an unfair dismissal unless having regard to all circumstances, the were substantial grounds for justifying the dismissal”.

I therefore do not find there were substantial grounds to dismiss the employee, nor do I find the job was redundant, particularly as his job was filled within one month by an internal candidate. Furthermore, The respondent had an obligation to meet the agreement made to the claimant in 2009, and where “the arrangement can be changed back to regular work week at any time by you.”

Section 6(7) of the Act states 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. Therefore, the reasonableness of an employer’s conduct is an essential factor to be considered in the context of all dismissals.

With reference to Quinn (Jnr)-v-Quinn Insurances Limited UD2415/2011 the EAT noted for a redundancy defence to succeed it must result from (as per Section 7 (2) of the Redundancy Payments Acts 1967, as amended) "reasons not related to the employee concerned". In this regard redundancy is impersonal and where impersonality runs through the five definitions of Redundancy as set out at Section 7 (2) of the Redundancy Payments Act 1967, and as referred to above.

I find that a redundancy did not exist. In this case the claimant had entered a consultation process with his employer to agree a change to his working relationship to meet the employer’s needs. However, the respondent, without entertaining a reasonable consultation process, decided as the claimant was not accepting the changes that the job was to be made redundant, and where this decision was clearly made for reasons related to the employee concerned. On that basis I determine that the dismissal lacks the necessity for it to be reasonable. In effect the respondent cannot show a redundancy situation existed and that the claimant has been dismissed under the cloak of redundancy on the basis that he would not accept the ultimatum of a change in his working arrangements which was contrary to his contract of employment, and specifically contrary to an agreement made with the employee in 2009. Indeed, it is noted the claimant agreed to return to a five-day week but not to the revised on call arrangements which he believed were too onerous due to his personal circumstances. Therefore, there can be no doubt the dismissal resulted from frustration by the respondent regarding the claimant attempting to protect his contractual rights, and the concept of a creating a redundancy situation had been discussed some months earlier amongst the claimant’s managers as a tactic to deploy if the claimant did not accede to their demands.  

Having considered the totality of the evidence, I am satisfied that the claimant was dismissed for matters other than redundancy but under the cloak of redundancy. Therefore the claim under the Unfair Dismissals Acts 1977 to 2007 succeeds.

Having found that the dismissal was unfair I must consider , in accordance with Section 7of the Act, that where an employee is dismissed and the dismissal is an unfair dismissal, the employee should be entitled to readdress consisting of either reinstatement, reengagement, or if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding an amount of 104 weeks’ remuneration in respect of the employment for which he was dismissed calculated) and is just inequitable having regard to all the circumstances. In accordance with Section 7(2)(a) of the Act, in determining the amount of compensation payable regard should be had to the extent (if any) to which the financial loss was attributable to an act, omission or conduct by or on behalf of the employer, and the measures (if any) adopted by the employee, or the case may be, his failure to adopt measure to mitigate the loss of the aforesaid.

In this regard whilst the dismissal was entirely attributable to the employer, and could have been avoided, I am satisfied that the employee made every reasonable attempt to avoid the dismissal. Upon his dismissal he has advised that he has sought alternative employment, has applied for two jobs in addition to considering setting up his own business which following a number of months’ consideration he did not progress. In light of his very specific engineering skills I am satisfied that he would have experienced some difficulty in obtaining a similar role on a similar salary. The claimant remains unemployed.

I decide that compensation is the most appropriate remedy and award the claimant €80,000 to compensate him for his loss of earning and other benefits. This amounts to approximately one year’s salary and is made in light of the respondents prior stated intention that it would make the claimant redundant if he did not agree to the change in his rostering, and the dismissal has impacted on the claimant’s income. This compensatory payment is awarded in addition to the redundancy payment and the notice payment the claimant has already received by his employer upon his termination of employment.

I order that the compensatory payment should be made within 6 weeks of this decision.

Dated:   5^th October 2016