ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00002419

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

Date of Adjudication Hearing: 29/06/2016

Workplace Relations Commission Adjudication Officer: Michael Hayes

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and the abovementioned Act, 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).

Respondent’s Submission and Presentation:

The respondent submits that it was obliged to face the real prospect of insolvency as a result of the downturn. Consequently it was obliged to enter into negotiations to review and extend it’s licence agreement to operate the commercial services it provides. It was made clear to the respondent that each individual unit of its operation would have to be commercially viable in its own right and that cross subsidisation would no longer be acceptable. Against this background the cost saving measures considered inevitably included redundancy. There were three separate positions inclusive of the complainant’s position identified for possible redundancy. Following a number of consultation meetings and consideration of possible alternatives written notice dated 3^rd of February 2016 was issued to him. His right of appeal against the decision had been outlined to him at a meeting on the 27^th ult. He exercised his right of appeal but was unsuccessful. The redundancy in this case was procedurally fair in every respect (details provided) and was preceded by an offer of voluntary redundancy to all staff. Unfortunately because of the precarious financial position the respondent found itself in it was unable to offer enhanced redundancy terms.

Complainant’s Submission and Presentation:

The complainant was employed by the respondent for a period in excess of ten years. He submits that he was unfairly selected for redundancy and consequently unfairly dismissed. In the circumstances the respondent did not act reasonably or fairly in relation to the dismissal. The process commenced on the 13^th of January 2016 when the complainant was informed that a number of options were being considered including the option of making some positions redundant. The respondent did not meet any other member of staff concerning redundancy nor was the complainant made aware of other the particular positions being considered. At the second consultation meeting on the 19^th inst. the respondent stated that the issue was now the “suitability of and appropriateness of the sous chef position given the financial situation” – no particular consideration was given to the position of sous chef nor was any further information provided until the occasion of the appeal meeting on the 25^th of February. The appointment of a new employee in September 2015 a mere 4 months in advance of these events is highly suspect. The fact that the particular position was not considered for redundancy is again highly suspect in that it would have had no immediate cost implication. The appointment can only be understood in the context of a pre-arranged plan to bring about the redundancy in response to the financial difficulties being experienced. The criteria advanced to justify the selection viz. “turnover, profitability and size of the unit or sub-unit, and the effect of those things on the suitability and appropriateness of positions employed at all levels therein” could not have been used nor was there any evidence that the position of head chef was considered within the criteria. It may have been reasonable for the respondent to dismiss the complainant by way of redundancy for financial reasons but only in circumstances where it had genuinely considered of other positions and in particular the recently filled position in that context using objective criteria. Organisational change was first mentioned in the appeal decision letter of the 10^th of March.

Decision:

I accept that the position filled in September prior to the herein dismissal was a junior one in the scheme of things and that the respondent has re-organised its operation to accommodate the redundancy of the sous chef position. I am satisfied that a genuine redundancy situation arose in this case. I am also satisfied that a fair and reasonable process was provided. In these circumstances I find that the complaint is not well founded.

Dated:  24/01/2017