ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00001275

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

Date of Adjudication Hearing: 06/12/2016

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with 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).

1:        Complainant’s Submission and Presentation:

2:        Respondent’s Submission and Presentation:

The Complainant was made Redundant on the 11^th of September 2015.

The Respondent had carried out a business Review during the Summer of 2015 and the position of the Complainant had been found to be no longer required. Accordingly the position was declared redundant, the Complainant was offered an opportunity to apply for other positions, declined to do so and was given an opportunity to appeal. The Appeal was not successful.

3:        Decision:

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.

4:        Issues for Decision:

Was there a genuine Redundancy in this case?

Were Fair Procedures /Natural Justice applied at all times?

5:        Legislation involved and requirements of legislation:

Unfair Dismissals Act, 1977 and S.I. 146 of 2000 Code of Practice on Grievance and Disciplinary Procedures.

6:        Decision:

6:1         The Legal Position

A land mark case is JVC Europe v Panasi [2011] IEHC 279 and I have relied on it for guidance and have also had regard to a number of other cases.

In JVC Europe v Panasi [2011] IEHC 279 Mr. Justice Charleton stated

“a dismissal is fair only if it results from a reason within the Unfair Dismissal Act .1977

The lawful reasons for dismissal are precisely set out. Section 6(4) of the Act of 1977 provides:-

“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 qualifications of the employee for performing work of the kind which he was employed by the 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 made under statute.”

He continues to comment that

“It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason.”

“The comment on the nature of redundancy made in St. Leger v. Frontline Distributors Ireland Ltd., [1995] E.L.R. 160 at 161 to 162 by Dermot MacCarthy S.C., as chairman of the Employment Appeals Tribunal, is apposite:-

“Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy of note that the E.C. Directive on Collective Redundancies uses a shorter and simpler definition: ‘one or more reasons not related to the individual workers concerned'.

Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in numbers. Definition (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. Under these two definitions change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words ‘other work'. More work or less work of the same kind does not mean ‘other work' and is only quantitative change.”

Justice Charleton also remarks that “It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go, should be examined”.

He also comments

“As a matter of contract, where selection procedures for redundancy, or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed. Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision.

As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.

The contractual entitlement to a defined procedure is declared in s. 6 of the Act of 1977. This provides at s. 6(3):-

“Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure.”

6:2       Burden of Proof

It is well established law that in an Unfair Dismissal case the burden of proof rests with the Respondent to clearly demonstrate that the Dismissal was fair or as in this case that the Redundancy being relied on as a defence was genuine and was carried out in keeping with fair procedures.

6:3       Pertinent Facts of the Case.

The Complaint was employed since April 1992 in a variety of positions.

In 2009 her then position of Duty Station Manager had been declared redundant but she succeeded in obtaining the Front of House Manager position in which she remained to the date of Redundancy.

In May 2014 she lodged a Grievance against the Regional Manager (Mr. XM) – her immediate Superior, this was investigated and a finding was issued by the Group Director of Operations (Mr.XO) on the 30^th of June 2014. The Grievance was not upheld.

In April 2015 the complaint received a 2014 bonus notification from her Superior Mr.XM of 75%. This was significantly down on previous year’s bonus payments. – cited in evidence.

The Complainant then queried this bonus situation and a meeting was held with Mr. OX and the Deputy Director of Operations (Mr.AX). A letter dated the 29^th May 2015 was issued by the Operations Director (Mr.XO) following this meeting – cited in evidence.

A number of ongoing difficulties appear to have continued with the Regional Manager during 2015 and 2016.

Some of these issues revolved around Annual leave and Workloads. On the 11^th August 2015 the Complainant went home on Sick leave.

On the 27^th of August she received a letter at home informing her that her position was being made Redundant and given to the 4^th September to consider alternative roles.

On the 11^th of September 2015 the Redundancy position was confirmed (the Complainant had not formally responded on the issue of the vacant positions listed) and her employment ended. An Appeal was heard on the 6^th October 2015 and the redundancy situation was confirmed.

Her Legal Advisors had contacted the Company in detail on the 4^th September 2015 in a very wide ranging reply to the letter of the 27^th August 2015.

6:4       Evidence heard at the Hearing.

There was extensive written evidence presented by both sides but at the Hearing key Respondent evidence was given by the Deputy Director of Operations (Mr.AX). Mr. AX was a very long standing Operations Manager and had direct personal experience of almost all aspects of the ground Operations requirements of an Airline. He was the major Decision Maker and had written the key letters of 27^th August 2015 the “At Risk” letter and the 11^th September 2015 Redundancy Confirmation letter.

The Respondent had already explained that the nature of Ground Operations was constantly changing with fewer and fewer passengers now actually physically checking in in person and most only carrying hand luggage.

A similar exercise in 2009 had resulted in a management pool of four persons being reduced to two.

Following a complete review of the Operations at Dublin he became convinced that the Complainant’s Management position and that of the Ramp Manager were no longer required.

Their responsibilities could be safely devolved to the next rank of Supervisors without any impact on the business. Organisational charts were demonstrated and talked through to illustrate this point. The successful operation of the Ground Operations despite the absence of the Ramp Manager and the Complainant in August 2015 during the busy Summer season was the key practical test of the Redundancy argument. The continuing successful operation of the Ground Operations to date being the ultimate proof of this argument.

From a purely Business Piot of View I was convinced that there were strong arguments in favour of the Redundancies, which were well thought through by Mr.AX.

6:5       Fair Procedures and Consultations with the Complainant

The guidelines here are set out in S.I.146 of 2006 - Code of Practice on Grievance and Disciplinary Procedures. There is an onus on the parties to utilise what procedures are available.

It is well accepted law and well referenced by EAT precedents that an employee “At Risk” of Redundancy needs to be offered opportunities for consultations and for the production of alternative scenarios, other possible job opportunities etc. The letter of the 27^th August 2015 had listed vacancies then available in the Organisation.

The Time Frame, of one week to the 4^th September, afforded to the Complainant to come up with alternatives or other positions was short – especially for a Manager of some 23 years’ service. It appeared to take no account of her absence on certified Sick Leave.

The Complainant’s letter of 4^th September 2015 from Sean Gallagher and Company Solicitors clearly raised employment matters that required careful consideration. However the focus was wide ranging and not specific to Redundancy alternatives. The Respondent’s reply (7^th September from McDowell Purcell Solicitors) indicated that the Respondent Airline was

“Currently engaging with your client to determine if the redundancy can be avoided or mitigated or if any suitable alternative position is available. It is up to your client to engage in that process”

No further communications took place until the Confirmation letter of the 11^th September 2015 from Mr.AX in which he stated

“Additionally, in the absence of any inquiry, contact or application from you, I can only assume that you do not want to be considered for any of the open vacancies in Respondent Airline sent to you on the 27^th August.”

In the Respondents’ arguments it was pointed out that the Complainant had been able, despite being on sick leave, to give very detailed briefing to her Legal Representative (Mr. Sean Gallagher & Co) and had effectively chosen to avail of this route rather that engage directly with the Respondent as requested in the “At risk” letter of the 27^th August 2015.

The detail and scope of the Complainant’s letter (via Sean Gallagher and Co.) of the 4^th September did not indicate to me a party unable to engage in the requested internal procedures.

6:6      The Internal Appeal Process

An Internal Appeal took place on the 27^th October conducted by the Director of Operations. He was available but did not give oral evidence to the Hearing. It was accepted by the parties that as his evidence would largely be to corroborate his written evidence the Hearing could proceed on his written letters.

The key letter was the Appeal Decision of the 27th October, 2015.

Paragraph four stated

“The purpose of your appeal was to consider whether the redundancy of the Role of Front of House manager was justified and this hearing was your opportunity to put forward any evidence or information which would allow me to overturn the decision of (MR AX) to make this role redundant)

Reading this letter /Appeal Decision I came to the view that the Complainant had not focused clearly on Redundancy Alternatives and in the absence of these detailed arguments the Respondent proceeded on the Redundancy road.

6:7       The overhang from the 2014 Grievance issues

In the evidence ,both Oral and written , especially the correspondence between the parties it was clear that the 2014 Grievance issues ,while nominally resolved , were still an “Open sore”.

It was not the function of the Adjudicator in this case to reinvestigate these issues. The issue before the Hearing was whether or not a genuine Redundancy situation existed in August/September 2015.

The”Impersonality” argument quoted from Dermott McCarthy SC in St. Leger v. Frontline Distributors Ireland Ltd., [1995] E.L.R. 160 is apt.

“Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job”.

The overhang from 2014 certainly had not improved the employment atmosphere but the key evidence was that the job of the Complainant had become redundant regardless of other personal issues.

6:8       Final summary

Without going back over the incidents of 2014 and the fallout from Grievance issue raised then, the basic fact was that the Respondent had undertaken a review of the Ground Operations in Spring/Summer 2015 and had found that positon of the Complainant was Redundant.

The extensive oral evidence of the key decision maker, Mr. AX, was crucial to this point. In 2009 four (4) Managerial positions had been reduced to two (2) and in 2015 the remaining two positions were now no longer required.

7:        Conclusions

1. From a business and operational point of view there was good evidence of a genuine redundancy. The positon occupied by the Complainant was no longer required.

    

2. This did not absolve the Respondent from affording the Complainant fair procedures in relation to Consultations/exploring alternatives. The “At Risk” letter afforded an opportunity to do so, albeit in a very tight time frame. The Complainant chose to go down a legal route and did not focus specifically on the “At Risk – Alternative Positions” options in the letter of the 27^th August 2015.

    

3. An Internal Appeal to the Redundancy was offered and availed of.

4.     In final conclusion therefore I have to find that the Redundancy was genuine and proper procedures were followed.

5.     The claim for Unfair Dismissal fails.

Dated:   2^nd March 2017