ADJ-00013398

Complainant

Respondent

Anonymised Parties

A Computer Programmer

A Software company

Representatives

Unite

A&L Goodbody Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00017621-001

23/02/2018

The complainant had been employed by the respondent since 2000 and was made redundant in April 2017. He had earned a salary of €64,000 per annum.

The respondent identified eight roles as being at risk of redundancy and set about a process of consultation with the respondent and those of his co-workers who were affected.

It was a bona fide redundancy situation which was a direct consequence of adverse trading conditions and a decline in the demand for the product on which the complainant was working.

An initial meeting for those ‘at risk’ (and separately for others) was held on July 31st 2017.

Evidence was submitted by way of minutes of this meeting.

A redundancy selection skills matrix was prepared.

On August 4th correspondence was received from Unite on the proposed redundancies.

On August 9th the respondent company replied to say that employees could be represented on an individual basis by the union but it could not attend with the nominated employee representative for collective discussions as the respondent did not recognise the union.

On that same day, the employee representative declared that he was not in a position to carry out the role.

In between, on August 8th, the complainant had written to say that he would not attend a meeting unless his trade union representative was present.

Three days later, on August 11th, the respondent confirmed that collective consultation could only proceed with the nominated representative, and sought nominations to replace the previous representative.

It also set out that, should there be no one willing to act, the company would proceed with individual consultations only at which an employee could be represented by either a work colleague or a trade union representative.

In the event, no nominations were received and the respondent wrote again to the ‘at risk’ group indicating its intention to proceed with individual consultations.

On August 22nd a detailed letter was sent to the complainant re-stating his right to be represented by his union on an individual basis, and advising of the consultation period, possible alternative employment and other details.

A consultation meeting as part of the process was arranged for September 28th but the complainant did not attend (on advice from his union). The following day the complainant was told that he was being made redundant.

He appealed on October 12th but this was not successful and notice of this, with reasons was sent to him on November 14th.

The union says it was approached by the complainant and others for representation in relation to the redundancy. It wished to engage with the company and see whether there were alternatives to the proposed redundancies.

It wrote to the company on three occasions seeking engagement but without success.

It sought the intervention of the WRC.

It asked the respondent to suspend the thirty-day redundancy notice period and in due course brought this to the Labour Court under section 20 (1) of the Industrial Relations Act 1969. The respondent did not attend.

The Court recommended a process of engagement to pursue possible alternatives, including voluntary redundancies. It also recommended that five and half weeks’ pay should be the multiplier in any compulsory redundancy.

The union seeks a recommendation that the Labour Court terms i.e. five and a half weeks should be paid.

This is a complaint under the Unfair Dismissal Acts.

A redundancy is a dismissal, and where it can be shown to be by reason of redundancy only then it will generally be fair.

An example of when it may not be can be found in the case of JVC Europe v Jerome Panisi [2011] IEHC 279).

In that case the Court described the dismissal of an employee as having happened ‘under the cloak of redundancy’.

“redundancy cannot be used as a cloak for weeding out those who are regarded as less competent than others ... if that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”       Charleton J.

When is a redundancy a valid and fair termination of employment?

Initially there must be a genuine business reasons for contemplating the redundancy.

Also, as with terminations of employment of any sort, all of the processes associated with the redundancy must be fair and transparent; the definition of the need for redundancy, the reasons for selection and the selection process itself, consultation and the search for alternatives, the right to representation, an appeal.

Overarching all of this is the concept of ‘impersonality’ which means that it is the post or job which is being made redundant; the question of who loses their employment may be a direct outcome of this, but there must be clear water between the two for the selection process.

In this case, the first test; the business need for redundancies is well made and was not really the focus of the complainant’s case in this hearing. 

In the Labour Court, the issues raised by the complainant concerned the extension of the consultation period, alternatives including voluntary redundancy and redeployment, and the level of redundancy to be paid.

It is very clear, that the real objective for the union was to secure a position to negotiate collectively for the members it represented, even though it was fully aware that it did not have recognition for such purposes.

To bring it within the jurisdiction of this complaint, that essentially would mean making out a case that the failure to grant collective bargaining rights renders the redundancy process unfair.

In its submission, the union summarised the case as being that, as the ‘prerequisite consultation process’ did not take place the redundancy was not valid, and that ‘the standards set out in the redundancy legislation’ had not been properly adhered to.

Unfortunately, the Union did not identify which standards set out in the redundancy legislation it was referring to in this regard.

Elsewhere, it states that the complainant believed that ‘the total lack of effective consultation and engagement or fair procedures resulting in no meaningful consideration of alternatives’ should be deemed to be unfair.

This conveniently overlooks the failure of the complainant, on the advice of his union, to attend the meeting on August 8th.   This is bad enough for the complainant’s case but what might be regarded as bizarre is his stated reason for not doing so; that he wished his union representative to be present.

The reason it is bizarre is that the respondent made it clear from a very early stage that he could be represented by his union official, but on an individual basis only.

The complainant is in a poor position to complain about ‘the total lack of effective consultation’ in these circumstances, added to which the failure to retain, or replace one of their own number to represent them collectively strongly suggests that that both the complainant and his union had another agenda.

That agenda is perfectly valid, if it was a gambit to secure representation rights with the company, but it is a high stakes gambit that potentially exposed the complainant to adverse outcomes. The advice to him not to attend the August 8th meeting was particularly ill-considered, and even bewildering as the respondent told him several times he. could have been represented by his union official.

Given all of this, the union’s submission regarding the consultation process lacks any credibility. In fact, the processes followed by the respondent were at a very high level, and the only criticism of them by the complainant’s representative is without any merit.

I find as a matter of fact that the respondent fully complied with consultation requirements. I agree with the finding of the internal appeal decision maker that;

‘Your decision to rely upon a union that was not recognized by the Company and could not therefore reasonably represent your interests in any consultations must be deemed a significant factor’

I add in passing that declining to participate in consultation processes for any reason is potentially hazardous. 

It will certainly rob a litigant of any credibility in a subsequent complaint about the quality of those consultation processes. More importantly, as long as there are such processes underway they represent an opportunity to lessen the severity of an outcome such as redundancy. (One ‘at risk’ employee was, in fact, redeployed as a result of the process, according to the Appeal Findings in the complainant’s case).

The further request by the complainant’s representative for a ‘recommendation’ from this tribunal for the redundancy terms recommended by the Labour Court indicates a very poor understanding of the remedies available under the Unfair Dismissals Act and its provisions for compensation for loss attributable to an unfair dismissal. It is totally outside the jurisdiction of this Adjudication.

For these reasons, I find that this was a dismissal by reason of redundancy and does not contravene the Unfair Dismissals Acts 1977-2015.

For the reasons set out above I do not uphold complaint CA-00017621-001 and it is dismissed.

Redundancy, Unfair dismissal.