ADJUDICATION OFFICER DECISION/RECOMMENDATION
Adjudication Reference: ADJ-00002827
Parties:
Parties | Complainant | Respondent |
Complaint(s):
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-00003897-001 | 18/04/2016 |
Date of Adjudication Hearing: 13/04/2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015, Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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
Respondent’s Submissions.
The respondent company fell into financial difficulties several years ago. All attempts were made to turn the situation around but unfortunately those attempts failed. The respondent assessed all areas within the company and identified the complainant’s position and one other related position that needed to be made redundant. Out of a total of 14 employees 2 positions were made redundant. The respondent did not engage in a consultation process with its employees, nor did it discuss other options with the two individuals whose position were being made redundant. The respondent stated that there was no point in having a consultation process as there were no funds to pay their wages and no amount of consultation was going to change that. There was one position that the complainant could have done but the salary attached to that position was at a rate of €10.00 per hour. They didn’t ask the complainant would he like to do it at the reduced rate because they thought he wouldn’t work at a rate less than what he was currently on. The complainant was paid his statutory redundancy and his notice. He ceased employment with the respondent in February, 2016.
Complainant’s Submissions.
The complainant was working on the 10th February, 2016 when he saw three men in suits walking through the factory. He was then called into the office where he was told that the warehouse manager’s position was being made redundant. He stated that he was not the warehouse manager and asked if he should go and tell that individual. The situation was clarified and he was told that it was his position that was being made redundant. He stated that the warehouse manager was employed after him and that it should be him and not the complainant that was being let go. He was told that it was his position that was chosen. He was also told that as the company had no money to pay his redundancy and that he would have to claim his redundancy from the State. He was eventually paid his redundancy and his notice by the respondent.
The complainant has not worked since February, 2016. He has registered himself on publicjobs.ie and has sent out CV’s to multiple companies but has yet secured employment.
Decision
Section 41 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 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.
The complainant is claiming that he was unfairly selected for redundancy in the absence of any fair procedures and/or process.
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,
then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.
I am satisfied based on the evidence adduced by both the respondent and the complainant that a genuine redundancy situation existed at the material time. However, the respondent’s procedures in relation to the selection process were seriously flawed. The respondent is entitled to have whatever selection criteria it requires, so long as the criteria are fair and objective. There was no criteria objective or otherwise adopted by the respondent. Furthermore, there was no consultation process whatsoever. In addition to that, the one position that the complainant could have moved into, albeit at a lesser rate of paid, was not offered to him for no other reason other than the respondent didn’t think he would work for less money.
In all of the circumstances I find that the complainant’s claim pursuant to the Unfair Dismissal Acts succeeds.
Mitigation of Loss.
(2) Without prejudice to the generality of subsection (1) of this section, in determining the amount of compensation payable under that subsection regard shall be had to—
(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer,
(b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee,
(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid, and
(d) the extent (if any) of the compliance or failure to comply by the employer or employee with any procedure of the kind referred to in section 14 (3) of this Act or with the provisions of any code of practice relating to procedures regarding dismissal approved of by the Minister.
The complainant is under a legal obligation to mitigate his loss. The complainant produced evidence of approximately ten jobs applications and/or replies from prospective employers. He also stated that he left his CV in with several named companies but had no documentation in relation to those.
Whilst the complainant did make some efforts to secure employment I am not satisfied that he did all he could have done to meet his obligation to mitigate his loss.
Remedy
S7(1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the rights commissioner, the Tribunal or the Circuit Court, as the case may be, considers appropriate having regard to all the circumstances:
(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or
(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or
(c) payment by the employer to the employee of such compensation (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) in respect of any financial loss incurred by him and attributable to the dismissal as is just and equitable having regard to all the circumstances.
In all of the circumstances I find that the appropriate remedy is that of compensation pursuant to Section 7 (1) (c). I award the complainant the sum of € 10,000.00
Dated: 08 May 2017
Workplace Relations Commission Adjudication Officer: Niamh O'Carroll Kelly
Key Words:
Redundancy, Procedures, Criteria, Selection Process. |