ADJ-00005027

Complainant

Respondent

Parties

A Groom

An Animal Welfare Organisation

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-00007143-001

22/09/2016

The complainant commenced employment with the respondent, an animal welfare organisation, in February 2012. His main role was to break and train horses and he also performed general yard work.   The complainant worked an average of 32 hours per week over 4 days and his pay was €384.00 per week gross. In early 2016 the respondent informed the complainant of the possibility that he could be made redundant as it had been decided that it would be more economic to outsource his main duties.   Discussions in this regard took place and in March the respondent gave him formal notice of redundancy which was implemented on 4 April 2016. The complainant appealed against this decision and this appeal was heard by an external third party. The appeal was rejected.

There was no economic justification for outsourcing the complainant’s position.

The financial calculations were based on the cost of breaking and training only and did not include the other duties performed by the complainant.

The respondent did not disclose to the complainant the cost savings of outsourcing his main duties up to the appeal process.

The complainant believes that the decision to dismiss him was already taken prior to any consultation meeting.

There are significant cost savings accruing to the respondent as a result of outsourcing the breaking and training of horses.

The respondent gave due notice to the complainant and he had representation throughout the process.

The respondent reviewed whether alternative employment could be found for the complainant within the organisation but, having considered various proposals made by him, no alternative employment could be found.

The matter was reviewed by an external expert who found in favour of the respondent.

As noted above the respondent is an animal welfare organisation and is a registered charity controlled by a committee. In late October 2015 a number of staff, including the complainant, were put on lay-off due to an infection of ring worm in the yard. This period of lay-off extended into the New Year.  The complainant was on certified sick-leave commencing on 22 October 2015 during this process.

On 12 February 2016 a meeting was held between representatives of the committee and the staff. The complainant attended this meeting. The purpose of the meeting was to consult in relation to the ongoing lay-off, to advise on the possibility of redundancies and to invite feedback in that regard. This was followed by a letter addressed to a number of staff formally advising them that their position was at risk and inviting the person concerned to a meeting in two weeks time. The letter detailed the purpose of the proposed meeting which included explaining the reasons for the proposed redundancies and inviting ideas for avoiding same. A further letter sent a few days later asked that these ideas or suggestions be put in writing for consideration by the committee. The complainant, in a letter dated 26 February 2016, stated that he was willing to take any job allocated to him and set out his flexibility and experience in regard to a number of alternative positions.

The complainant was invited to a consultation meeting to take place on 21 March 2016 and was advised that he could be accompanied by a union representative or work colleague.     The person that the complainant elected to accompany him was not acceptable to the respondent as that person was actually self-employed. It was agreed therefore that that person would remain outside the room and that the complainant could consult with her as required. The respondent’s representatives stated that the outsourcing of the breaking and training of young horses was being examined and consequently the complainant’s role would be redundant. The complainant protested and stated his view that the respondent wanted to get rid of a whistle blower. The complainant also stated his belief that the redundancies were consequent to the appointment of a new CEO. The respondent denied these allegations.

In a letter dated 23 March 2016 the respondent restated that “we unfortunately anticipate having to make you r position redundant in the near future”. The letter went on to rule out all of the suggestions of alternative employment put forward by the complainant in his letter of 26 February 2016. As a result of that letter the complainant’s union contacted the respondent seeking further information regarding the redundancy and querying the ongoing lay-off.

On 5 April 2016 the respondent wrote to the complainant stating that it had not been possible to find a solution to the problem and that the complainant was being made redundant. The letter went on to say that his 2 weeks notice period would commence on 21 March 2016 and that he would finish work on 4 April 2016. The letter advised the complainant of his right of appeal.   There appears to have been a delay of at least a week in the complainant receiving this letter.

The respondent replied to the complainant’s union on 12 April 2016 and stated that “following a fair redundancy process and consultations, (your member) has been made redundant as of 4^th April 2016”. The letter went on to state that it was not intended to provide clarification on the savings arising from the outsourcing as this had already been provided to the complainant at the meeting of 21 March 2016.   Finally the letter said that “the rationale for Mr……….’s redundancy was not due to ring worm that had broken out. It was due to economic reasons where the role can be outsourced which would benefit the business…”.

The complainant appealed the decision to make him redundant by way of letter sent by his union on 25 April 2016. That letter again requested information regarding the financial savings arising from the decision to outsource and queried if this outsourcing was a transfer of undertaking. A director of the respondent was nominated to hear the appeal but this was objected to on the grounds that the members of the committee had been involved in the decision regarding the redundancy. The respondent agreed to appoint an outside person to hear the appeal but refused to disclose the information requested on the grounds of confidentiality.

The appeal hearing took place on 29 June 2016 and was conducted by an outside party with legal qualifications. The appeal was heard by means of separate meetings with the parties. The meeting with the complainant took place on 29 June2016 and the meeting with the respondent on 14 July 2016. The result of the appeal was published in early September 2016. The appeal was rejected on the grounds that the third party was satisfied that there was and would be significant cost savings accruing to the respondent as a result of the outsourcing and that no alternative employment could be found for the complainant. The contention that the outsourcing might be subject to TUPE regulations was also rejected.

Section 6(4) of the Unfair Dismissals Act 1977 states:

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:

(a)   the capability, competence or qualification of the employee for performing work of the kind which he was employed by his employer to do,

(b)   the conduct of the employee,

(c)    the redundancy of the employee, and

(d)   the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument under statute.

Section 7(2)(b) of the Redundancy Payments Act, 1967, defines redundancy thus:

the fact that the requirements of that business for the 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.

The EAT in case no. UD206/2011 has stated:

“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……where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.”

Among the factors to be examined as regards the actions of the employer, as set out by the EAT, are the questions of whether there was serious or worthwhile consultations with the employee prior to the decision to make him redundant and whether there was suitable or substantial consideration given to alternatives to dismissing him.

The decision to outsource the breaking and training of horses would obviously lead to the situation where the requirement for employees to carry out that work would cease or diminish. It is an accepted fact that in a redundancy situation a role is made redundant and it is as a consequence that a person is declared redundant. While it is accepted that the breaking and training of horses constituted the main part of the complainant’s work it was agreed that he also performed general yard duties particularly in winter.

I have also examined the consultation process engaged in by the respondent. The initial mention of possible redundancy took place at a meeting on 12 February 2016 which also discussed the ongoing ring worm issue.   I see no mention of outsourcing in the minutes of the meeting provided by the respondent nor in the letter dated the same day that formally gave the complainant notice of potential redundancy.   In his letter of 26 February 2016 the complainant stated that he was willing to concentrate on yard work, to assist in the transport of horses and to be flexible with his time so as to perform other duties outside of the yard. He ended the letter by saying that he would be willing to work on certain days for no payment. The consultation meeting took place on 21 March 2016 at which point the representatives of the respondent advised the complainant regarding the outsourcing decision and, according to their minutes, told the complainant that his role would be redundant. I note also that the complainant’s chosen representative was excluded from the meeting.   It is unclear why the complainant did not elect to have union representation at this meeting. A letter sent two days later by the respondent addressed the alternative employment roles suggested by the complainant and rejected all of them. It concluded by stating:

“If you would like to be considered for voluntary redundancy please inform (manager) and we will discuss your request.”

The next letter, dated 5 April 2016, reiterated that it was not possible to find a solution other than to make compulsory redundancies. The letter stated:

“As a result therefore, you will become redundant and this letter is to be treated as formal notice of dismissal due to redundancy.

Your length of service entitles you to two weeks notice, which will commence on 21^st March 2016 and you will finish work on 4^th April 2016.”

It is difficult to see how this process could constitute serious and worthwhile consultations with the complainant prior to deciding to make him redundant as it is clear that, as far as the respondent was concerned, the complainant had been given notice of his dismissal at what was supposed to have been a consultation meeting on 21 March 2016. There was no evidence of suitable and substantial consideration being given to alternative employment. It is also clear that there was no discussion as regards the cost saving that the respondent claimed would accrue from the decision to outsource nor were details of same given to the complainant. It therefore appears that the decision to make the complainant redundant was a fait accompli.

I note that the appeal process which was conducted by the outside third party concentrated for the most part on the financial element and projected cost saving of the outsourcing.   It concluded that there would be a significant cost saving in outsourcing the breaking and training of horses rather than employing the complainant to do so and it was mainly on that basis that the appeal was dismissed.

Having regard to all these matters I find that the complainant was unfairly dismissed because of unfair selection for redundancy. I note, however, that the complainant was on sick leave for all of this process and therefore unfit for work. Indeed evidence was given at the hearing on 16 May 2017 that it was just that week that the complainant’s doctor certified him as fit for work.   No loss accrues whilst an employee is unfit for work. Taking that into consideration and on the basis that the complainant is now fit for work, I award the complainant the sum of €5,000.00 as compensation under the Act. This award is in addition to any payments already received in relation to the termination of his employment.