ADJ-00004662

Complainant

Respondent

Anonymised Parties

A General Operative

An Engineering Company

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-00006334-001

28/07/2016

The complainant was employed by the respondent on a number occasions between 2010 and 2016. He was employed as a General Operative/Cleaner on a certain production line within the respondent organisation. The complainant was paid a gross rate of pay of €10.76 per hour. The complainant was made redundant on 29th January 2016. The complainant contends he was unfairly selected for redundancy and is seeking compensation in that regard.

The complainant contends that he was unfairly selected for redundancy by the respondent on the basis that he had suffered an injury at work and had initiated a personal injury claim against the employer. The complainant does not accept the validity of the respondent’s selection criteria skills matrix as he contends that he possessed certain skills and attributes that he had not been deemed proficient in on the matrix and that the compilation of the matrix had not been discussed with him at the time. Specifically, the complainant stated that he was deemed proficient at Manual Handling, Abrasive Wheel and Material Cleaning and had been considered not to be proficient in Fabrication, Painting, Welding, Yard/Stores, Site, Saw and Drill and Machinery. The complainant stated that he had a formal qualification in Welding and was also proficient in Painting. He stated that he also had other skills and attributes that were excluded from the matrix by the respondent and that there was no objective standard by which the respondent measured proficiency on its selection criteria. The complainant contends that despite the respondent holding a meeting with him on 14th January 2016, the decision had already been made to terminate his employment, no alternatives to redundancy were put to him, no opportunity to seek legal advice was offered and no opportunity to appeal the decision was offered by the respondent. The complainant is seeking compensation in relation to the unfair selection for redundancy.

The complainant relied on Sections 6((1), 6(2)(c) and 6(3)of the Unfair Dismissals Act, in support of his complaint.

The respondent contends that the complainant was not unfairly selected for redundancy. The respondent contends that the complainant was employed on a number of occasions since 2010 on a certain production line within the organisation. A client of the respondent had indicated its intention to move the manufacturing of fabricated parts to Eastern Europe towards the end of 2012 for competitive reasons. The complainant was made redundant at that time. The respondent contends that its client began to experience difficulties with its new suppliers and approached the respondent with a view to placing some orders with it in early 2013. This resulted in the complainant being re-hired from January 2013 until March 2013. This situation re-occurred and the complainant was again re-hired in August 2013 and remained in the employment until 29th January 2016.

The respondent contends that its client ceased its orders completely in January 2016 which resulted in the review of a redundancy selection criteria skills matrix. The respondent contends that it complied the selection criteria based on staff who were of the lower skill set to ascertain who would be made redundant as a result of the expected reduction in business.

The respondent contends that the selection criteria was reviewed on 6th January 2016 by three members of management and the two staff members with the least skills and attributes as per the selection criteria were identified as possible redundancies. The respondent contends that its skills matrix had 10 skills and attributes listed and that the complainant was considered proficient in only three of them. The respondent contends that another employee who was proficient in only four of the 10 criteria was also made redundant.

The respondent contends that it then began a consultation process with the complainant and explored alternatives to redundancy with him at a meeting held on 14th January 2016. The respondent contends that unfortunately it had no alternatives to redundancy and that the complainant himself had no alternatives to suggest at the meeting. The respondent contends that the complainant was notified of his redundancy on 18th January 2016 with the redundancy taking effect from 29th January 2016.

Having carefully considered the submissions of both parties to this complaint, I find as follows:

The complainant was employed by the respondent on a number of occasions and the reason for his previous redundancy in December 2012 was a reduction in orders from a client of the respondent after the client decided to move its manufacturing to Eastern Europe for competitive reasons. There were issues that subsequently arose and the complainant was re-hired on two further occasions, the most recent period of employment being from August 2013 until January 2016.

The respondent reviewed its redundancy selection criteria matrix in January 2016 and the complainant was found to be proficient in only three of 10 skills and attributes. Another colleague of the complainant was found to be proficient in only four of 10 skills and attributes. It was these two employees who were deemed to be less qualified than the other 20 members of staff who were being assessed on the criteria and it was these two employees who were ultimately made redundant or in the case of the other employee, simply let go.

I asked the respondent at the adjudication hearing if the complainant, as a non-national, was aware of the process that was in place in relation to the selection criteria at the time and if it had been explained to him in his own language when assessments were being made. The respondent stated that the complainant would not have been aware of the selection criteria that was used at the time as it was a review that was carried out solely by management. The complainant gave evidence that he never saw the selection criteria template and that he did not agree with the areas where he was deemed to be lacking certain skills and attributes. The complainant confirmed in evidence that he was capable of carrying out all of the tasks on the form yet the respondent had decided that he was proficient in only three of 10 areas. The respondent stated in evidence that the requirement to be considered proficient in each of the specific areas was to have achieved some level of formal qualification in each one as opposed to simply being skilled at a particular job.

I find the respondent’s position to be unsatisfactory on this issue. The complainant was unaware of the required standard to be considered proficient in a particular area. The selection criteria had the heading “skills and attributes” yet the respondent in its evidence stated that a formal qualification was required. This obviously lead to confusion on the part of the complainant who considered himself skilled in many of the areas which he felt he was not given credit for.

The complainant also stated that he had formal qualifications in welding and provided certification from his native country which were shown to the respondent yet the respondent did not accept the validity of these qualifications. The complainant said he was not permitted to carry out tests in the workplace which would have proven his qualifications in welding and proficiency in other areas. The respondent did not credit the complainant on the selection criteria in respect of his qualifications in welding. Accordingly, I find that on the basis of the evidence of both sides to this complaint, that the skills matrix in place and used by the respondent in its selection criteria was inadequate. However, despite the flaws in the skills matrix used, the complainant did not provide any further evidence of formal qualifications in any other discipline apart from welding and even if credited for such qualifications on the criteria, he would still have been considered the least proficient/qualified member of staff who was being considered for redundancy.

In relation to the compilation of its skills matrix, it would be prudent of the employer to identify the objective standard by which employees are deemed to be proficient/qualified in a certain area and to make this available to staff who may be subject to a redundancy selection criteria based on a skills matrix in future. This would greatly help omit any confusion or lack of clarity that may exist in such circumstances.

Subsequent to the adjudication hearing taking place, the respondent submitted a list of staff who were employed after the complainant was made redundant. The respondent submitted a list on 15th February 2018 which was copied to the complainant’s representative for comment. The documentation identified all of those employed between 8th February 2016 and 3rd June 2017. The information submitted identified 14 new employees were taken on in that time as follows; 4 Site Engineers, 2 Mechanical Operators, 2 Fabricators, 1 Fitter, 1 Truck Driver, 1 Welding Co-Ordinator, 1 Store Manager, 1 Spray Painter and 1 Apprentice. According to the documentation submitted by the respondent there were no General Operative/Cleaners hired since the complainant was made redundant.

In relation to the personal injury claim, the respondent stated in evidence that it was irrelevant that there was such a claim in place and that it was in no way a factor in the complainant’s selection for redundancy.

Section 6 Unfair Dismissals Act, 1977.

The complainant relied on Sections 6(1), 6(2)(c) and 6(3) of the Unfair Dismissals Act, 1977 which state as follows:

6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

(2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) the employee’s membership, or proposal that he or another person become a member, of, or his engaging in activities on behalf of, a trade union or excepted body under the Trade Union Acts, 1941 and 1971, where the times at which he engages in such activities are outside his hours of work or are times during his hours of work in which he is permitted pursuant to the contract of employment between him and his employer so to engage,

(aa) without prejudice to paragraph (a), the employee—

(i) being a member of a trade union which made a request referred to in section 2(1) of the Industrial Relations (Amendment) Act 2001,

(ii) being in the employment of the employer concerned in the grade, group or category to which the trade dispute, referred to in that section, relates, and

(iii) having provided evidence or other information or assistance to any person, for the purposes of the examination of that request by the Labour Court or in respect of an investigation made by it under that Act pursuant to that request,

(b) the religious or political opinions of the employee,

(ba) the employee having made a protected disclosure,

(c) civil proceedings whether actual, threatened or proposed against the employer to which the employee is or will be a party or in which the employee was or is likely to be a witness,

(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.

The complainant stated that the dismissal occurred on the basis of the personal injury claim in place, which he claimed was an unfair dismissal in contravention of Section 6(2)(c) of the Unfair Dismissals Act, 1977. Having considered the evidence of both parties to this complaint, I do not find that the dismissal occurred wholly or mainly as a result of there being a personal injury claim in place.

In all of the circumstances of this complaint, I find that on the balance of probabilities, the reasons for the complainant’s selection for redundancy were that there was a permanent loss of production in the particular area for which he was initially and repeatedly employed, there were no alternatives that could be offered to him at his particular grade or that he could suggest and he was also deemed to be the least skilled/qualified of the 22 members of staff who were subject to the redundancy selection criteria skills matrix.

Having considered all of the written and verbal submissions of the parties to this complaint and the evidence adduced at the adjudication hearing, I find that the complainant was not unfairly selected for redundancy. Accordingly, I declare that the complaint is not well founded.