ADJ-00003040

ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00003040

Parties:

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

Date of Adjudication Hearing:   25/07/16 and 24/01/2017

Workplace Relations Commission Adjudication Officer: Emer O'Shea

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015 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). 

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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.

Summary of Claimant’s Position

The claimant was employed as area sales representative with the respondent from the 11^th.June 2012 to the 9^th.March 2016 when he alleged he was unfairly dismissed .His gross weekly pay was €544.35 per week.The claimant was assigned o the Dublin area as Sales Rep. On the week commencing the 15^th.Feb. 2016 the claimant was advised by the brother of a Mr.K that he was bring moved back to Ballyhaunis.Mr.K was director of another company and had responsibility for delivering poultry products in the Dublin region for the respondent. The claimant learned that Mr.K owed a substantial debt to the respondent arising from which a deal was stuck whereby in order to settle the debt, Mr.K would assume all Dublin based sales functions- effectively taking over the claimant’s job. A director of the respondent advised the claimant on the 23^rd.Feb. 2016 that he was no longer required in Dublin and was asked to speak with the local manager in Mayo about 2 available job alternatives. The options put to the claimant were a factory supervisor working unspecified shifts in one of the respondent’s factories or a zero hours relief truck driver. Few details were provided other than that the hours were uncertain ; the ay would be reduced by approx.. 40% and specific skills were required for both positions – which the claimant asserted he did not have.

The claimant was distressed with the offer and rejected both on the grounds of the reduction in pay and his lack of skills/experience for either role. There was a brief discussion about redundancy – raised by the claimant .The claimant’s representative set out a chronology of the ensuing exchanges that took place between the claimant and the company director - a meeting took place on the 9^th.March 2016 – it was submitted that the unsuitable job offers were again put forward and the claimant was told categorically that Mr.K would be taking over his role in Dublin.That evening the claimant received an email from the financial controller with a termination agreement attached .IT was submitted that this document effectively dismissed the claimant. The claimant sought clarification on the Termination Agreement and pointed out that the document contained no reference to consultation , redundancy and statutory notice. The claimant returned his laptop, company phone and car to the respondent on the 11^th.March.The accountant advised him that evening that he was not entitled to redundancy as he had declined the alternative job offers put to him.It was submitted that had there been grounds to make the claimant redundant , there was a complete disregard for proper and fair procedures.The claimant’s representative invoked the provisions of Aspell v Frank Roche Air Conditioning Ltd[2006] in support of their contention that the claimant had been dismissed.The provisions of JVC Europe Ltd v Jerome Ponisi [2011] were invoked to support the claimant’s contention that the basis for redundancy did not apply.It was submitted that the purported redundancy was as a result of there being a better arrangement in place for Mr.K.

It was submitted that the claimant’s position was characterised by an absence of

Objective justification for his purported redundancy

Clarification as to whether the redundancy was voluntary or compulsory

Advance written notice of the purported redundancy

Setting out of valid reasons for the redundancy

The application of a fair selection procedure

A right of appeal

It was submitted that the claimants circumstances were not dissimilar to those of the claimant in Desmond McGuire v Sleedagh Farms Ltd[2012] where it was found that despite a genuine redundancy situation existing , the redundancy was not effected in a fair or reasonable manner and the claimant was denied a right of appeal.

It was submitted that the respondent was additionally in breach of the Terms of Employment(Information)Act 1994 and the Minimum Notice and Terms of Employment Act 1973.

In a later submission it was contended that a colleague of the claimant was treated in exactly the same manner as the claimant when he was made redundant.It was advanced that this contradicts the position advanced by the respondent at the first hearing.It was submitted that similar to the claimant , the term redundancy was used to dismiss the claimant after the dismissal had occurred.It was submitted that given that the respondent employs over 500 employees , proper redundancy and dismissal procedures should be in place.

Summary of Respondent’s Position

The respondent denied that the claimant was unfairly dismissed.It was submitted that the claimant approached the company director in 2012 seeking a job as a driver but as there were no driver vacancies at the time he was offered a sales rep. roleiin Fermanagh.In March 2013 the claimant approached the director stating that the position no longer suited him and the director created a sales position for him in Dublin on a 5 day week basis.In Oct 2013, the claimant asked to be put on a 3 day week and again he was facilitated .In Feb.2015 he sought a 4 day week – 3 in Dublin and one working from home .This was agreed.In Nov. 2015 , the respondent agreed to a further change to avoid the claimant having to go to Dublin twice a week.It was submitted that the director obliged the claimant as he considered him both an employee and a friend.It was submitted that the company also employed Mr.K and Mr. PR in Dublin.

It was submitted that having reviewed the sales figures in Dublin , the director decided to restructure operations as it was not practical to base 3 people in Dubliln when the same results could be achieved by one person.It was submitted that the claimant’s role was not generating enough sales to justify a full times sales position .Mr.K was unable to maintain repayments he owed to the respondent – arising from this it was agreed that Mr.K would take over money collecting from the claimant’s colleague and h would also be the point of contact in Dublin when the claimant’s position was terminated.It was submitted that while the negotiations were to be confidential it was regrettable that he learned of them in advance from a 3^rd.party.

It was submitted that the director met the claimant on the 23^rd.Feb. and advised him that the slaes position in Dublin was not working out and offered him the role of evening supervisor or driving.The director was hopeful that the claimant would accept the alternative roles offered.

It was submitted that at the meeting on the 9^th.March 2016, the director discussed again the alternative job offers and the claimant enquired if he could get redundancy instead of taking the jobs offered.The director indicated he would be disappointed to loose the claimant - the accountant was asked to look into the claimant’s entitlements and revert to the claimant.A termination agreement setting out the claimant’s entitlements to statutory redundancy was issued to the claimant and rejected by him .It was advanced that the claimant had failed to reply to an email of the 6^th.April asking for his decision on the alternative job offers.

It was submitted that the dismissal should not be deemed unfair as “ it was based solely on the redundancy of the employee and falls within the scope of Section 6(4)of the Unfair Dismissals Act.

Decision

I have reviewed the evidence presented at the hearing and noted the respective position of the parties.

Having considered the evidence presented I have concluded that a genuine redundancy applied arising from the reassignment of the claimant’s work to Mr.K.I have concluded that the respondent’s processing of the redundancy was characterised by informality.It was evident from the second hearing that both parties left the meeting on the 9^th.March with entirely differing views of what had transpired – the claimant believing he had been dismissed and the respondent under the impression that the claimant was to revert to them on his preferred option.Primary responsibility for this confusion has to rest with the respondent. In light of the absence of evidence from the respondent to demonstrate compliance with their own redundancy procedures and given the absence of transparency with respect to the criteria/matrix for selection for redundancy, I have concluded that the claimant was unfairly selected for redundancy and consequently I am upholding his complaint of unfair dismissal.I require the respondent to pay the claimant €13,000 compensation within 42 days of the date of this decision.

Workplace Relations Commission Adjudication Office Emer O'Shea 

Dated:   28 March 2017