Complainant

Respondent

Anonymised Parties

A Rigging Supervisor

An Engineering Company.

Representatives

Barry Powderly

Conor Cahill, Solicitor of Sheehan & Company Solicitors.

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-00016172-001

06/12/2017

The case concerns a Supervisor and his alleged Unfair Dismissal on grounds of Redundancy by an Engineering Company.

The Complainant had commenced with the Respondent in January 2015. On the 27th October 2017 he was called to a meeting and informed that he was being made redundant -he was given a letter to this effect. He was requested to work out his notice. No prior notice of the meeting was given, no consultation took place, no opportunity to discuss alternative work was allowed and no appeal was offered. In summary he was denied all normal rights and the principles of Natural Justice in this type of Redundancy situation. The Dismissal was accordingly completely unfair both procedurally and in keeping with Natural Justice.

The Respondent did not contest the basic facts set out above but offered by way of explanation and mitigation that the Company had been was in a dire financial situation and urgent immediate action had to be taken to reduce costs. The gravity of the financial crisis had not really become apparent until the September results were received - a small profit had been made in August.

Drastic action was required to save the Company and redundancies were an inevitable step. It was accepted that the Complainant had not been afforded rights of consultations but the situation was dire.

3:1     The relevant law

The Unfair Dismissals Act of 1977, SI 146 of 2000 -Statutory Code of Practice on Grievance an Disciplinary Procedures and extensive Legal precedents well set out in Chapter 17 of Redmond Dismissal Law in Ireland - Tottel Press 2nd edition 2009.

Section 6 (4) of the Unfair Dismissals Act sets out that Redundancy can be a legitimate ground for a Dismissal.

Section 6 (4) [c] of the Unfair Dismissals Act,1977

(4) 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.

Almost all legal precedents in cases where a Redundancy defence is being used require that a well-known set of steps apply – namely that Employee is put on notice of “Being at risk of Redundancy” before any final decision is taken, that full consultation of possible alternatives, other work are considered in a proper time frame, that the Employee is afforded the right to have Representation and that an Appeal by a reasonably Independent person against a final redundancy decision is offered.

However, each case has to be see in its own light and all evidence considered carefully by an Adjudication body.

3:2       Consideration of the Evidence.

None of the steps outlined above in a Redundancy situation took place in this case. The financial situation was dire and emergency action was undoubtedly required but his does not provide a waiver for an employer to short cut an employee’s legal rights.

In this case the Complainant was a Supervisor and from the evidence was in a Middle Management position. Normally a person in such a position would have cogent arguments regarding the state of the business and quite probably good ideas as to how a crisis management situation could be addressed even in the case of Redundancies. This type of input was not sought here.

It may not have changed the ultimate outcome of the Complainant’s redundancy but at the very least was a legal and procedural step that could not be set aside.

Accordingly, I have to find that there was an Unfair Dismissal in this case and award Redress to the Complainant.

3:3       Redress.

The Complainant secured alternative employment immediately after leaving the Respondent. He stated in evidence that the new position paid approximately €3,000 less per annum than his former position.

Accordingly, I award, under Section 7 of the Unfair Dismissals Act ,1977 a sum comprising four weeks’ pay (€ 884.62 X 4 =€3,538.48) plus a sum of € 4,500 by way of compensation for future loses - total award being €8,038.

Any monies already paid by way of statutory redundancy to be deducted from this sum.

The Taxation of the Award to be considered in consultation with the Revenue Commissioners.

Act

Complaint/Dispute Reference No.

Summary decision /refer to Section 3 above for reasoning.

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00016172-001

Claim upheld – an Unfair Dismissal took place. Redress of € 8,038 (less any redundancy payment already made) to be paid to the Complainant.