ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00013314
Parties:
| Complainant | Respondent |
Anonymised Parties | Business Development Officer | A Software Developer |
Complaint:
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-00017530-001 | 20/Feb/2018 |
Date of Adjudication Hearing: 29/May/2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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.
Background:
The Complainant was employed as a Business Development Officer from 7th June 2016 to 1st November 2017. He has claimed that he was unfairly dismissed and has sought compensation. |
Summary of Respondent’s Case:
The Respondent stated that the business was a loss maker and by September 2017 they had a loss of €1.5 million. The business was reviewed on 27th October 2017 with owner, general manger the IT executive and the Complainant. It was stated that there was a need to cut costs which included dealing with the Complainant’s position. There was no issue with his performance. There was no alternative position in the company for him. There had been 6 people employed in 2016, now there are just 2. Nobody has been replaced. Most of the company’s activities have been moved to South Africa in order to continue with the cost savings. The Company has been unable to generate enough revenue. It was decided to eliminate the Complainant’s position.
Following the business review that took place on October 27th costs were reduced. People moved out or onwards. Between 27th October and 1st November, the company decided to terminate the employment of the Complainant. On 1st November 2017 the owner and general manager met with the Complainant and advised him that his position was redundant. He was paid for all the time that he had worked, his holiday pay and he was given one month’s pay in lieu of notice. His position was made redundant because of the lack of funding and the company’s lack of viability. This claim is rejected. However, it was accepted that the redundancy could have been handled better from a procedural point of view.
Summary of Complainant’s Case:
The Complainant stated that there was a strategy day held on 27th October 2017. The objective was to bring the product to the next stage. The owner, general manager, IT executive and the Complainant were in attendance. The owner arrived late and appeared disinterested. The Complainant endeavoured to inform the owner where his money was going. The owner reacted aggressively to the presentation. He said, “you need to know when to put the dying horse down”. The financial state of the company was not discussed. The owner’s comment about the ‘dying horse’ referred to the project X (named). The Complainant left the meeting not realising that his job was in jeopardy. On the following Tuesday 31st October 2017, the general manger met with the Complainant and he expressed dissatisfaction with the strategy day and he said that the owner was also disappointed. The next day on 1st November 2017 the general manager asked to meet the Complainant and he advised him that the owner was pulling the X named project. The Complainant expected that other routes would be open to him but he was told that the job was finished. No alternatives were examined and there was no discussion on change of work practices. There was no offer of representation and no appeal was offered. When he started there were lots of promise but it was not followed up. There was no belief in the X project. This project was not his main job, it was a project. He believes that his competency was taken into account because he was criticised at the meeting on 27th October 2017. There was confusion with the Respondent whether he was being made redundant or not. The process lacked fair procedure. He has mitigated his loss and found work within five weeks however his current salary is €10,000 less per annum. He has sought compensation. |
Findings and Conclusions:
Substantive matter I note the Respondent’s evidence that the company is a loss maker and had accumulated losses of €1.5m to September 2017. I note the Respondent’s evidence that the company is still losing money. I note that the workforce has been reduced from 6 in 2016 to 2 now. I note that nobody has been replaced. I note that much of the business has been relocated to South Africa as part of a cost cutting measure. I accept the Respondent’s evidence in this matter. Therefore, I find that this was a genuine redundancy and the termination was substantively fair. Procedural |
I note that while it was the Respondent’s evidence that financial matters had been deteriorating, it appears that the Complainant was unaware of it despite the reduction in the workforce and nobody being replaced.
I find that the Respondent failed to apply best practice with regard to how the termination of employment was handled
I find that they failed to advise him that his position was at risk of redundancy.
I find that they failed to properly engage with him concerning his position and to explore alternatives
I find that he attended a meeting on 1st November 2017 but was not aware that he would leave that meeting having lost his job.
In a redundancy situation there should be no surprises.
I find that proper discussions should have taken place and after alternatives to termination of employment were examined he should then have been told that his position was to be terminated.
I find that he should have had the right be represented at these meetings
I find that he should have had the right to make representations on his behalf before a final decision was taken.
I find that the termination was procedurally unfair.
Decision:
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.
For the above stated reasons, I have decided that there was a genuine redundancy.
I have decided that the termination of employment was handled incorrectly and it rendered it procedurally unfair.
I have decided that the Respondent should pay the Complainant compensation of €5,000.
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Dated: 10 August 2018
Workplace Relations Commission Adjudication Officer: Eugene Hanly
Key Words:
Unfair dismissal/unfair selection for redundancy |