Complainant

Respondent

Anonymised Parties

An Operations Manager

A Services 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-00011414-001

18/05/2017

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011414-002

18/05/2017

The case concerns an Operations Manager who alleged that he had been Unfairly Dismissed from his employment on the grounds of an alleged spurious and sham Redundancy.

CA-00011414-001 - Unfair Dismissals Claim

The Complainant alleged

The selection for Redundancy was unfair.

1.       The outcome of the process was known even before it commenced.

2.       Natural Justice was denied as the chosen representative of the employee was not allowed attend the proceedings by the Company.

3.       Being denied a chosen Representative, the Complainant alleged that he was left very disadvantaged and to fend for himself in a very stressful and intimidating process.

4.       The “Scoring System” used in the redundancy process was not fair or utilised in a proper manner.

5.       The Company Managers were not properly qualified to run the Selection process. Their decisions were dictated by others not present.

6.       The minutes of meetings were not fair or accurate

7.       No suitable alternative roles were offered as a means of avoiding redundancy.

In summary the process was a sham and the Respondent Company had a clearly predetermined outcome.

CA-00011414-002=Terms of Employment (Information) complaint

The Complainant alleged that he had never received a written statement of his terms and conditions of employment.

CA-00011414-001 - Unfair Dismissals Claim

The Complainant’s allegations were resolutely denied.

The Respondent had undergone a business reorganisation and the Complainants position was among those chosen not to continue. There was no longer a valid business reason for them.

His position was one of three Operations Mangers positions being replaced by two Project Managers positions with a more expanded role.

The reduction and replacement of roles was purely business driven as the Division was very significantly reduced in size and operational scope.

The Selection Process, an Independent Interview process by skilled Mangers, was fair and objective.

The Complainant scored the lowest score of the three applicants for the two positions and was them a candidate for redundancy.

A detailed Consultation process followed involving four formal meetings and a considerable exchange of telephone calls and e mails.

A list of available alternative positions was provided but none were to the satisfaction of the Complainant.

Following the final consultation meeting in early April 2017 the Complainant was made redundant.

A formal Appeal of the decision was offered. The Complainant choose not to avail of this appeal process. It was proceeded with in his absence and the Redundancy decision was confirmed by an Appeal Outcome letter of the 12th May 2017.

The Complainant made considerable reference to being denied Natural Justice as regards the selection of a representative. The Complainant was afforded the same opportunities as all other staff to have a Trade Union Official or a Work Colleague attend at all meetings. The Respondent was perfectly within their rights not to allow the Complainant deviate from this process and utilise another Representative not provided for in the Agreed procedures.

CA-00011414-002=Terms of Employment (Information) complaint

The Complainant was provided with a full Contract of Employment. A signed and dated copy was supplied to the Adjudication.

The claim has no basis whatsoever.

3:1     The Law

Section 6(4) (-c) of the Unfair Dismissal Act,1977 applies.

(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.

Considerable legal precedent applies in these circumstances. A dismissal will not be deemed Unfair if it arises from a fair, transparent and legitimate Redundancy situation.

Natural justice must be seen to apply in principle and to apply in actuality. The Employee concerned has to be afforded full consultation rights, the Redundancy decision has to be clearly objectively based in a well demonstrated business decision and all reasonable alternatives to redundancy have to be fairly considered in conjunction with the Employee. Only when all reasonable alternatives have been explored and exhausted is the Dismissal on grounds of Redundancy deemed to be “fair”.

The matter is considered at length in Chapter 17 of Redmond Dismissal Law in Ireland 2nd Edition 2007 – Tottel Publishing.

3:2       Consideration of the Evidence Presented.

Very detailed written records were presented by the Parties outlining a considerable series of correspondence, minutes of meetings and consultations. Having studied them closely I could see no procedural faults or manifest Unfairness in these.

The Redundancy clearly arose from a Business reorganisation process which ultimately lead to the final closure of the Business Unit. There was nothing, as far as I could discern, contrived about the business decision.

It was worthy of note that the former Head of the Business Unit was the Complainant’s brother whose earlier departure from the overall business group was allegedly marked by a degree of disagreement with the Respondent. However, there was no manifest evidence presented that this earlier episode had cast a negative and unfair shadow on the decisions surrounding the Complainant’s eventual redundancy.

The Interview Process whereby the Complainant was marked third of three Applicants for Two jobs was the subject of considerable evidence. Detailed Interview notes were supplied. The Qualifications of the Interviewers were stated as being Postgrad in HR and Senior in Q Surveying.

The HR Interviewer gave direct oral evidence as to how the Interview decision was arrived at. The question of Outside Influences was considered in questioning. This was resolutely denied. On balance and having seen and heard her Oral evidence and that of the Complainant I was sufficiently persuaded that the Interview Process had been fair.

It is a well-established precedent that the role of the EAT or latterly the Adjudication officer is not to re run Interviews to come up with an alternative outcome. The process has to be fair and transparent and once this point is satisfied to the Adjudicator the matter is closed.

Likewise, the suggestion of Alternative Positions was reasonably fair. Naturally these covered a broad range of hierarchical levels and geographical locations but the, I thought, rather peremptory dismissal of them by the Complainant was not reasonable. At least they merited some detailed exploration which did not appear to have taken place.

The argument advanced by the Complainant that the practice of LIFO should have applied here – there were three positions at Risk and two alternative jobs. The Respondent chose to have an Interview process among the three At Risk staff. There is nothing outside of normal procedures in this – there was no specific agreement to have a LIFO situation in every context and the Interview mechanism was not unreasonable for the Respondent to employ.

Regarding Natural Justice the main issue in this case was then the question of Representation.

The Complainant elected to have his Brother represent him. Leaving aside the very pertinent fact that his Brother was a former Director of the Division who would have had, to any reasonable observer serious “Baggage” with Respondent Management (He gave brief oral evidence to the Hearing) the Company Rules and procedures provide only for a Fellow Employee or a Trade Union official.

Recent Legal decisions in the area of Representation have raised important questions and it is not a sine qua non or legal given that a Company handbook’s provisions on Representation can be taken as an absolute.

In this case the Complainant based much of his arguments on the grounds that he was denied fair Representation and thereby Natural justice by the Respondent effectively excluding his brother as his chosen Representative.

In the landmark Supreme Court case of Burns v Governor of Castlerea Prison - IESC April 2009 the Supreme court gave six guidleines as to whether or not a Legal Representative (not provided for in a House Agreement) would be required in “Exceptional Circumstances”

There was no question of a legal representative sought in this case but a fair guideline can be applied as to the rights of the Employee to have his own chosen Representative outside of agreed Procedures.

The Six points from the Supreme Court were

1.       The Seriousness of the Charges and the potential outcome

2.       If Detailed points of Law are likely to arise

3.       The Capacity of the Individual to represent himself

4.       Procedural issues

5.       The need for Reasonable Speed in making a decision

6.       The need for fairness

In other words, these guidelines help us to see if “Exceptional Circumstances” can be said to exist of such seriousness as to justify going outside of normal Representational procedures.

In the case in hand there was no doubt that the issue of redundancy was of the upmost seriousness for the Complainant.

However, from observing his oral evidence and reading all the correspondence I was not convinced that he was incapable of making his own case or indeed of making arrangements to secure adequate Representation within the Respondent procedures.

The case in itself was procedurally reasonably straightforward and no great points of procedure or Law arose.

Having considered the evidence both oral and written I was not convinced that the strongly implied suggestion by the Complainant that Respondent had “an agenda of unfairness against the Complainant” allied to the earlier difficulties with his brother had any evidential substance.

The “need for fairness” in relation to the Complainant was not in my view compromised by the Complainant having the same Representational rights as all other Employees.

Accordingly, in the light of the above discussion and the guidelines from the Supreme Court I was satisfied that the Respondent’s position in this instance as regards Representational rights was not Unreasonable.

The Representation issue coloured the approach of the Complainant, it appeared, strongly to the Appeal Process. He chose not to participate. In any consideration of EAT or Adjudication precedents the non-participation in a final stage Appeal process must be based on very exceptional grounds. I could not see any exceptional grounds to justify the Complainant not participating in the Appeal process -particularly after he submitted a detailed Appeal letter to the Chairperson of the Appeal.

3:3       Conclusions.

Having carefully considered all the evidence, both oral and written, I came to the conclusion that a genuine Redundancy situation existed, reasonable and fair procedures were employed and the process was transparent and as far as I could ascertain free from “External” influences.

The non-participation by the Complainant in the Appeal process was a negative procedural factor in his case.

Accordingly, in view of all the above I did not find the dismissal on redundancy grounds to be Unfair.

The Unfair Dismissals claim is dismissed.

CA-00011414-002=Terms of Employment (Information) complaint

While accepting some difficulty with the Job title the Contract presented in evidence satisfies the basic requirements of the Act.

The claim under the Terms of Employment (Information) Act, 1994 is accordingly not well founded and is dismissed.

Act

Complaint/Dispute Reference No.

Summary Decision /refer to Section 3 above for detailed reasoning.

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

CA-00011414-001

Claim dismissed

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00011414-002

Claim dismissed