ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00004938
Parties:
| Complainant | Respondent |
Anonymised Parties | A Warehouse Operations Co-ordinator | A Logistics Company |
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-00007017-001 | 15/09/2016 |
Date of Adjudication Hearing: 31/05/2017 and 25/09/2017
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance 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.
Background:
The Complainant has complained that he was unfairly selected for Redundancy and thus Unfairly Dismissed. |
Summary of Respondent’s Case:
The Respondent submitted that the complainants position as Warehouse Operator became redundant pursuant to Section 7 of the Redundancy Payments Act ,1967, as amended. The Complainant was an exemplary employee. The Respondent submitted written submissions, inclusive of a copy of documents exchanged with the retained candidate and a comprehensive account of the Financial position experienced by the Company. The Respondent submitted that during 2015/2016, the Company presided over an operations wide review, precipitated by a reduction in business handled by the office, where the complainant was based. This led to a review of warehouse staffing and operations. The Company activated several redundancies in other regions. On May 10, 2016, the complainant was notified that his role was at risk of redundancy at an informal meeting with the Country Manager. Consultation took place with the complainant initially on 13 May, 2016 and following follow up feedback on May 17, the complainant was informed that there was no alternative but to make one of the two Warehouse Operative positions at the warehouse redundant. The Company invited both warehouse operatives to interview for the remaining warehouse operative position on May 18, 2016. On May 23,2016, the complainant was notified that his position had been made redundant. He appealed the decision on June 3 to Mr A, a Regional Controller who was not involved in the redundancy process and was impartial. The Complainant based his appeal on an allegation that the redundancy process had a pre-determined outcome and was motivated by personal reasons on the part of a Senior Manager within the company. The Complainant also referred to a discriminatory element to the decision in relation to his age. Mr A did not uphold the appeal. The Respondent outlined that the employer had engaged in a full and detailed consultation with the complainant and had acted reasonably, relying on fair, reasonable and objective procedures. The Company did not have an alternative position to offer the complainant. The Complainant received a lump sum redundancy payment, a once off discretionary lump sum and outstanding annual leave at the official conclusion of his employment on June 30, 2016. Evidence of Mr CM (Country Manager) Mr CM outlined the Company Global logistics, a company HQ in the U. S with Country leads and separate business units. He worked as the Country Manager over Ireland and the UK since 2009.The Ireland operation was based on three sites and involved circa. 20 people. He outlined that every piece of cargo came through the warehouse in the area where the complainant was based. Company costs were reviewed worldwide following a reduction in revenue. The country leader, conversations took place at company level where two paths were set out 1 Grow business revenue 2 Cut costs Mr CM confirmed that he tried to address both paths. A Directive issued globally to speak to each Manager focussing on profit and loss margins. There were 80 employees in the UK and 29 in Ireland. He considered resources, vendors, materials in terms of the review but the last thing he wanted to look at was people. He was seeking to align costs downwards to the tune of 150-200,000 euro. The volume of work had reduced around June 2016 -August 2016 and 4 leavers were replaced by two. the Branch Manager moved to sales and then left in October 2016. The Company experienced a 32% downturn in Cargo. Decisions were delayed until 2016 when the 2 employees in the warehouse were approached, met with individually and an agreement reached on a joint basis that the warehouse would move forward with one operative. Mr CM sought some suggestions on alternatives to redundancy. An Interview was held as in the absence of a prior procedure for redundancy, it was felt to be fairest. The objective for the company was to identify the “right person” and appoint the most efficient operator to the resultant position. No objection was raised to the process. Having heard from both candidates, Mr CM decided to retain the complainants colleague in employment as a better option. This decision allowed for reduced overtime, mapping of the warehouse and a system of reduced touches. He did not have a capacity to redeploy the complainant. Mr CM heard from the complainant where he had formed a view that the decision to make him redundant was predetermined and guided by soured personal relations between the company Vice President and his niece. Mr CM confirmed that he was completely taken aback as the decision had been a hard one and he felt that the complainant was influenced by the emotional impact of being made redundant. There were no other redundancies in Ireland. The Country Manager was made redundant in the UK, albeit it was slightly different. During cross examination, Mr CM confirmed that both Ireland and UK were governed by separate cost centres. Mr CM confirmed that he had investigated whether efficiencies could be achieved at the warehouse and whether redundancy could be avoided. He had not maintained notes. He used the modicum of questions to illicit answers.? He had also considered the finances. In referring to the notes of the May 13 meeting with the complainant, Mr CM confirmed that the complainant had accepted that 1 warehouse person would go but there were no minutes recorded. Mr CM outlined that his first meeting with the complainant recorded points and the second meeting reflected his findings governed by a quest for efficiencies. He confirmed that he had reflected on suggestions, what would work best for the future. He denied that either of the candidates emerged prior to the interview. He considered the alternatives put forward by the candidates. He knew that redundancy was a possibility. He considered 1 The discussions 2 Suggestions that helped 3 Nobody brought ideas on savings 4 It was more about suitability than avoiding redundancy He confirmed that the prospect of a confirmed redundancy had not been raised until after May 17. There was no stated criteria or matrix. The Complainant had been employed slightly earlier than the retained candidate. While the complainant had previously worked in administration, there was no provision for redundancies or redeployment there. Mr CM confirmed that the company was overstaffed and they did not have openings anywhere else. The process surrounding redundancy was informal and did not result in committal to writing. He recalled the interview process, based on general conversation and communication that it was a difficult decision but only one candidate would emerge. The interview lasted 30 -40 minutes and he did not want to be distracted by notes and concentrated on the dialogue. Mr CM confirmed that a job description had not been in being for the new post but the retained candidate won on experience. The Job title for the post was the same. Mr CM confirmed that the candidates had not been informed that “experience “would be a consideration at interview. He took a reflective approach on the best way forward which incorporated suitability for the future role. There were no issues with the Complainants performance. Mr CM confirmed that he had taken advice in the context of conducting the procedure surrounding the redundancy process. Evidence of Mr HOF (Head of Finance) Mr HOF is Head of Finance over three global areas of the business and had been an Accountant since 1993. He had undertaken one previous appeal but not of the status of this case. He undertook to address the appeal clearly fairly and in an objective and transparent manner. He was briefed by Mr CM and considered the correspondence already exchanged with the complainant. He had heard that something personal had come up from the complainant in the context of the decision to make him redundant, but didn’t want to know about it in advance of the hearing on June 3. He sat down and met with the complainant. He considered his oral submissions on: 1. Personal and Pre-determined outcome 2. Appraisal 3. Age of the complainant Mr HOF distanced himself from the complainant’s contention that his employment had been threatened some 4 years earlier. He was aware that this had arisen during the deliberative process but found the 4-year time lag without action implausible and he did not consider this in his decision. Mr Hof did not interview Mr M, who was referred to as having threatened the complainant’s employment. The Complainants appraisals were excellent and he submitted that he had embraced change at the company. The Complainant had indicated that he understood that volumes of business had reduced at the plant. Mr Hof was satisfied that the instructions on redundancy had not emanated from Mr M but from the Human Resource Dept. in the UK. He had been advised that the personal issue might be raised during the process. In response to the questions raised by the Complainants Solicitor, Mr HOF re-affirmed that the decision to declare the complainant redundant had been a careful decision based on objective impartial criteria and was not linked to the personal matter raised. Business was down and the continued requirement for two staff at the warehouse was viewed as no longer necessary. On June 7,2016 Mr Hof confirmed that the appeal had been unsuccessful. During the Appeal meeting, the complainant ha referred to legal shortfalls in the decision to make him redundant, but did not elaborate on this when approached. Evidence of Ms PA (Personal Assistant to Mr M) Ms PA was responsible for human resources and pay roll at the company. This covered 300 employees across 7 countries. She is copied in on all correspondence. She confirmed that the financial position of the company had deteriorated and a Corporate drive had identified that cost savings were to be made. This was devolved to the country managers. The Company relied on an external HR company to assist with preparation of template letters covering termination. These letters could be varied. Ms PA retained duplicate files to enable her to be in the loop. Ms PA stated that she had not addressed Mr M on the complainant’s redundancy as she knew that “it was going legal”. During cross examination, Ms PA confirmed that she had not checked the complainants personnel file. She disputed that the communication process surrounding the redundancy had not been extensive. the external Hr company had not attended the meetings. Mr M (Vice President) Mr M gave a background on operations. Trading had been terrible in 2015 when prices for oil and gas fell from $120 to $ 18.20 per barrel. These were the worst conditions that he had seen and had not improved greatly to the present day. The Company announced a Cost savings target of 10% operational income/ nett revenue, followed by monthly conference calls. This was followed by a “second look “by the country managers. He was appraised of Mr CMs cost reduction plan. The ratio of warehouse operator to stock was mentioned as London:17 million kilos;2 staff to Irl 3 million kilos :2 staff. Mr CM identified that 1 person was needed. He had a one minute conversation. He had no idea that the complainant was to be made redundant before he knew himself. Mr M submitted that he oversees the cost savings identified by the country managers and if the plans submitted matched the cost savings, he would say “go do it”. He would deal with the administration of redundancy once it had been concluded locally. the Complaints claim was the sole claim against the company amidst a series of redundancies. The Company did not rely on the LIFO principle and supported the process of interviewing to inform decisions on redundancy. Mr M reflected on the complainant’s submission that he had stated that he could get rid of him 4 years previously. He disputed this by stating that the complainant was a high performing employee with whom his direct managers were happy and it made no sense to terminate his employment. He submitted that outside the downturn, the complainant would still be employed. Mr M gave details of an incident reported to him by his mother, where the complainant had refused to carry her in his taxi in August 2016, which caused offence. During cross examination, Mr M denied threatening the complainant’s employment. He had discussed the case with Mr CM and not Mr Hof. Hi discussion with Mr CM postdate the decision to rationalise the workforce. Mr CM told him that the retained candidate was a better fit an Mr M validated the decision. The Complainants Solicitor put it to Mr M that Mr CM denied speaking to him on the topic of redundancy. Mr M reaffirmed the changes in the throughput of product through the warehouse which undermined the need for two warehouse operators. Mr M also stated that Mr CM had compiled a report on projected redundancies and the anticipated timeframe for completion. The company was haemorrhaging money. the Report was received, consolidated and uploaded to the company CEO. Mr M had not altered any plan. The Report outlined the number of redundancies they needed to get. In Closing, the Respondent, confirmed that the Redundancy was genuine in the case in accordance with Sec 7 of the Redundancy Payments Acts 1967, a diminution of employees. The Respondent required less staff and the two warehouse positions were reduced to 1. The Respondent held a fair consultation and had no alternative positions to offer the complainant. The Company did not practice Loathe Complainant did not bring the “attitude of one” to the interview. The Company contended that the procedures relied on at the time were fair and reasonable and referred to Page 768 of Regan, Murphy, Employment Law in confirming that the Respondent had adopted a reasonable approach in Dismissal by objective standards at that time. The Company continued to dispute that the decision was pre-determined and pointed to the complainant’s own evidence where he confirmed that he was fighting for the retained candidate at interview conflicted with this. They contended that the system of selection was fair as directed by Mr M and Mr CM.
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Summary of Complainant’s Case:
The Complainant was employed as a Warehouse Operations Co-ordinator on August 1, 2010 until his position was terminated by means of redundancy on 30 June, 2016.He worked a 40 Hour week in return for a monthly gross payment of 4,095 euro per month. The Complainants Representative submitted extensive submissions which incorporated a document on earnings recorded whilst undertaking Taxi driving work after his dismissal. The Complainant had worked in the dual roles of Warehouse Operator and Administration during his six years with the company. He was joined by another Warehouse Operator some two years before his dismissal. On May 10, 2016, the Complainant was advised that his position of Warehouse Operator was being considered for potential redundancy. He met with the Country Manager in a brief consultation to address any viable solutions he might have. He attended for interview for a single warehouse operator position on May 18 and was unsuccessful. He was identified as being made redundant on May 20, 2016.This was not altered on appeal. The Complainant submitted that his redundancy was not a genuine redundancy and his selection for that redundancy was unfair. The Complainants representative outlined that he was denied an adequate consultation and that he had in fact been targeted for dismissal for reasons unconnected with his work. The Complainants Solicitor sought additional documents during the hearing on the background pertaining to the recommendation to make the complainant redundant.
Evidence of Ms M. (former wife of the Vice President of the Company) Ms M was formerly married to Mr M and recounted a conversation she had with her ex-husband some 5 years ago, He told her that he could have the complainant fired at any time. During cross examination, MS M reaffirmed the comment. When Counsel for the Respondent asked her if it had been repeated? she indicated that it had not been repeated. Evidence of the Complainant: The Complainant disputed the issue concerning Mr Ms’ Mother and her interaction with his taxi. He confirmed that he had worked hard co-ordinating freight at the Respondent warehouse. He had commenced work in administration for a period of 12 months, where he had incorporated warehouse work. After that he worked in the warehouse alone for a 4-year period. The retained candidate had worked with him for a period of 2 years. The Complainant submitted that at his first meeting with Mr Che felt that it was a “done deal” and he was just going through the process. He had made some positive changes at the company and recounted some of the preparations necessary to get the freight ready for export. Mr CM was seldom at the warehouse as he had his own work to do. The Complainant contended that the Warehouse work “does take two people” and had been supplemented by another employee from operations. During the consultation meeting on May 13, the complainant recalled being asked his opinion on why it took two people to run the warehouse.? Mr CM confirmed that the job could be done by one person. He couldn’t recall if any alternatives were discussed. The outcome was that one person would run the warehouse and interviews were set for May 18. At Interview, he was asked questions on: 1 How he handled situations 2 Health and Safety 3 Consultant who had been sourced for the company 4 Sign Outs 5 Trucking, which Mr CM contended would be more efficiently handled through operations. The Complainant submitted that Mr CM was seeking ways to trip him up. He had not been alerted to any new practices or changes in advance of the one hour long interview, yet these were flagged in earlier correspondence. He was not appraised of the selection criteria relied on. The Complainant had suggested other jobs at the plant as other staff were leaving and were not being replaced. The Complainant couldn’t remember Mr CMs response but concluded that alternative work was not researched. The Complainant was informed that he had been selected for Redundancy and appealed the decision. He submitted that Mr HOF did not relish holding the appeal. He outlined his personal issues on the pre-determined outcome attributed to Ms M, his appraisals. It was an awkward but fair experience. The Appeal lasted for 30 minutes and he did most of the talking, where he showcased his achievement at the Warehouse. He was not provided with minutes outside of the meeting of May 13. The Complainant gave evidence of mitigation and loss. During cross examination, the complainant confirmed that he had heard of 7 people who had left the company, some of whom had been replaced in Ops. In a direct question from Counsel for the respondent, he confirmed that he had been arguing for a retention of the status quo on warehouse staffing during the consultative process. The Complainant understood that he was fighting for the eventually retained candidates job and rebutted that he should have been fighting for his own job. He accepted that the retained candidate had more experience in logistics overall. The Complainant submitted that he was planning on retiring at 66, he had done the job for 4 years alone and was well capable as Bourne out by his appraisals. The Complainant stated that he had a gut feeling in response to his alleged threatened employment by Mr M some 4/5 years previously. The Complainant submitted that he decided to attend the interview as it would have looked confrontational if he hadn’t. He knew that the retained candidate would be retained, but had not discussed it with him. He understood that he was fighting for the other man’s job. He had not experienced a redundancy situation in his working life and held a strong view that it was a predetermined process. In closing, the Complainants Solicitor referred to well settled law on Redundancy that in the case of Peer Group assessment, that the criteria be recognisable by objective, independent and verifiable standards. There was no evidence of this criteria being relied on in this case or of it being made available to the candidates in the warehouse. He submitted that there was a distinct lack of notice given to the complainant as May 13 just signalled that “he was at risk”. There was a dearth in notes of interviews or minutes of meetings and the complainant had no idea whether both candidates interviewed were in fact asked the same questions? . The candidate was not able to address the new work practices flagged in advance of the meeting as he had no idea of their substance or form. The reasons for Redundancy advanced by Mr CM were not part of the interview. The Respondent had not outlined the demarcation of the steps taken by the company in pursuit of alternative roles. The Complainants representative submitted that that a matrix or assessment of other roles had not been followed. He submitted that the Appeal took the format of a conversation rather than an appeal and while the complainant had raised the” personal “issue referred to by Ms M as one of his grounds of appeal, this was not underpinned by enquiry by the Appeals Manager. He concluded that he Respondent had not met with their obligations on how they conducted a transparent process of selection for Redundancy and this rendered the dismissal unfair. He sought the remedy of compensation. |
Findings and Conclusions:
I have considered both parties oral and written submissions in this case.
Section 6(1) of the Unfair Dismissals Act provides that the dismissal of an employee shall be deemed to be unfair unless having regard to all the circumstances there were substantial grounds justifying the dismissal. Section 6(4) states that a dismissal is deemed not to be unfair if it results wholly or mainly from redundancy. Section 6(3) of the Unfair Dismissals Act ,1977 sets out circumstances where a dismissal on grounds of redundancy can still be unfair.
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.
In the instant case, there was an employee in similar employment to the complainant. However, I accept the uncontested submissions of the Respondent that LIFO did not apply in this case. I also accept that no alternative procedure relating to redundancy was in use at the company at the time of the complainant’s dismissal. Both the Employer and both employees accepted the invitation to attend for interview for “single operator “managed warehouse scheduled for May 18, 2016.
I am also guided by the observations of Justice Charleston, which formed the introductory comments in JVC Europe ltd and Jerome Panisi [2011] IEHC 279
Redundancy can be a devastating blow. Where economic conditions are difficult, or where the employee who is let go has aged or experienced health difficulties, finding alternative work may be impossible…. As ordinarily understood, redundancy means that a worker is no longer needed.
Charleston J, cautioned that Redundancy cannot, therefore be used as a cloak for weeding out health or age related issues.
The Statutory basis for Redundancy is found in Section 7 of the Redundancy Payments Acts 1967(as amended)
Section 7(2)(c) provides that an employee shall be taken to be dismissed because of redundancy if the dismissal is attributable wholly or mainly to –
The fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed to be done by other employees or otherwise.
I heard clear evidence that the trading position of the company was under corporate review and direction to execute elaborate cost cutting and headcount reduction. I take the complainants point that the UK had a separate cost base. However, the email from Mr M to the Country Managers dated February,26, 2016 provided stark confirmation of a trading difficulties backdrop to this case and the recovery targets to be reached by them.
Redundancy is grounded on qualitative change in the workplace. It is also based on impersonality. I am satisfied that the changes advanced by the Respondent satisfy the test for Redundancy as outlined in Section 7(2) (c) of the Act.
I have found that a genuine redundancy existed in the employment.
Reasonable Approach:
Section 6(7) of the Act permits me to consider the reasonableness of the employers conduct in relation to the dismissal
The Complainant has submitted that he was unfairly selected for redundancy. Both parties submitted copies of the complainant’s contract of employment, which did not refer to a clause covering redundancy situation.
I accept that the company was experiencing trading difficulties during the first quarter of 2016. I note that both warehouse operators were placed on notice of consideration for potential redundancy on May 10,2016. I note the complainants evidence that he considered what occurred in the wake of this notification as a “done deal” yet, he invested in the consultative meetings up to an including May 17 when the Interview was advanced by the Respondent as the preferred course of action to arrive at the “single operator” managed warehouse.
I was struck by the complainant’s decision to participate in an interview where the job title was the same and have concluded that he held an honest belief that he would be retained and that he felt a sense of duty to his colleague to advocate for his retention. He framed his responses to the questions asked in that vein. He was not prepared for the eventual outcome where the tables were turned on his expectations.
I have spent some time reflecting on the evidence adduced by the Country Manager in this case. I have analysed the procedures relied on in this case.
I have found that the that the process surrounding Redundancy was conducted hastily and while the Unfair Dismissals Act does not impose a statutory obligation on an employer to consult with individual employees, the employer has a duty to consult. I have concluded that the Respondent would have benefitted from a defined protocol on redundancy as outlined by Casserly in Redundancy Law Review IELJ 2010,7(3) 68-73
1 Warning of Redundancy
2 Set out in writing the objective selection criteria
3 Consistent application of the selection criteria
4 Consult and explore alternatives
I have found that the Respondent did engage somewhat in all four of these protocols but it was a random and ad hoc attempt rather than a structured approach, not assisted by the retention of contemporaneous notes. I make this statement as I found that while the complainant had received documentation which placed his position at risk of redundancy, he simply had not considered the actuality of events. I found that the Respondent should have spent more time in communication mode.
It is undisputed that the Complainant was high performing in his role as Warehouse Operator and the Employer reflected a strong endorsement of his work. I am satisfied that the Respondent initiated a consultation with both warehouse staff and Mr CM where the prospect of managing the warehouse single handily was discussed in advance of the interview on May 18,2016. I also note that the Complainant sought alternatives within the company, but was unsuccessful.
The Selection procedure runs to the root of this case. The Respondent submitted that there was no prior procedure for redundancy at the company and contended that an interview was fair in pursuance of who was to deemed most efficient in a changing environment. where there is no agreed procedure in relation to selection, as in this case, then the employer must act fairly and reasonably.
I was struck by the complainant acquiescence to interview and probed this only to find that he had no desire to be confrontational by not attending. I accept that this was an act of good faith that he inadvertently acted to his detriment.
The Respondent submitted that the retained candidate had additional suggestions based on his experience over the complainant. Mr CM contended that the complainant had accepted that one of the operators was to go but was not in a position to correlate this in the minutes. He denied that the retained candidate was emerging in the retention stakes in advance of the interview.
I accept that the Respondent relied on several variable templates in correspondence with the employees, but it is best practice to compile and retain notes in these matters.
I found that the Respondent took the matter of selection for Redundancy very seriously and I accept that it proved challenging. I have considered the discussions relating to the criteria used for selecting the complainant for redundancy.
During cross examination, Mr CM confirmed that his decision was based on the contents of the 4 meetings with the complainant plus the interview. The Complainants Representative indicated that his client was in the dark on that and had a strong sense of dissatisfaction that the new procedures and practices were not developed for him in advance of the interview. He stated that he had not been appraised of the criteria on which a decision was to be made. However, I found that he was made await that he would be tested on the “suitability and adaptability “for the new work practices.
The Respondent referred to caselaw of British Aero Space and Greene 1995 IRLR 433, where if a good system of selection is fairly administered, there is ordinarily no need for the employer to justify all the assessments on which the selection is based. I have formed the view that Section 6(7) requires more from the respondent than this low threshold. The system of selection in this case was not a good system.
The system of selection here was an interview rather than LIFO or an agreed Matrix. While I accept that the Complainant did not agree to the rationalisation of posts, his undisputed presence at interview signalled an acquiescence to the system.
The Complainant was the longer server and was not represented through the process. The Respondent was in an active state of financial difficulty. This made the complainant vulnerable in the face of an impending redundancy and the Respondent ought to have handled the process more sensitively.
In the EAT case of David Curtin and Kevin O Keefe/ Mallow Golf Club UD 964/2014, the EAT found that the claimant had not been unfairly dismissed but his treatment was not ideal. I found some overlaps in this case.
I note that the Respondent sought to make some documents on the Complainants identification of redundancy available to the complainant post hearing and these were not picked up.
I have given consideration to the points raised on the comments attributed between Mr and Ms M. I found that Ms Ms evidence lacked context and I did not establish a connection with the dismissal. I also considered the Appeal hearing conducted by Mr HOF, which caused him some upset. I found that he reached out for detail on the alleged procedural deficits in the dismissal but none were forthcoming from the complainant.
I wish to revert to Charleston J’s earlier comments on the devastation caused by Redundancy. I found that relevant in this case. The Complainant would have benefitted from a representative throughout the process. He acknowledged that it was his first brush with Redundancy and it is by nature complex. He participated fully in the consultative process and submitted possible alternatives. I am satisfied that alternative were not available to the Respondent now of dismissal.
The Respondent chose the candidate who they believed would benefit the company through an agreed interview process which incorporated an assessment of comparative performance in relation to the planned changes. I found it unfortunate that the complainant adopted the position of retaining the status euomphalid the retained colleague argued for the power of one. The dearth of documentation cast some doubt on the transparency of the process but I found that this was remedied somewhat in the evidence of Mr CM.
I have found that The Respondent has satisfied the Reasonableness test by a very narrow margin. The Redundancy procedure was random and ad-hoc but was in fact present and the selection criteria were applied in the absence of any other agreed procedure. There was clear agreement surrounding the Interview process but this process did not enable the complainant to be retained.
I did not establish any ill will directed towards the complainant during his work. His age or work performance were not held against him. I found that the Complainant was out manoeuvred at interview and there was no revision available to him.
I have found that Redundancy was the sole reason for dismissal and the Complainant was not unfairly selected for Redundancy. I recommend that the Respondent benefit from incorporating a Redundancy Policy in the Staff Handbook to be underpinned by a much longer lead in period.
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. I have found that the Complainant was subject to a genuine redundancy situation. I have also found that the Complainant was not unfairly selected for Redundancy. The claim for Unfair Dismissal cannot succeed.
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Dated: 27 March 2018
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Unfair Dismissal (Selection for Redundancy) |