Complainant

Respondent

Anonymised Parties

A Production Manager

A Printing Company

Representatives

Solicitors

 Solicitors

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-00011865-001

13/06/2017

The Complainant commenced employment with the Respondent, a Printing Company, on 23 July 1997 and remained in their employment until 16 January 2017 when he was made redundant. The Complainant was employed as a printer.

Background:

It was submitted on behalf of the Complainant that all employees of the Respondent were informed at the end of 2016 that the company was experiencing difficulties. Staff were informed that payroll would need to be reduced and that the Respondent was looking at different options to achieve this. According to the Complainant’s evidence, redundancies were never mentioned at that stage.

The Complainant stated that, along with all staff, he received an email on 4 January 2017 informing them that a meeting would take place on 6 January to discuss how to reduce the Respondent’s cost base. It was again submitted that there was no mention of redundancies in this correspondence. The Complainant stated that, at the meeting on 6 January, the Respondent emphasised they would do everything in their power, including three-day weeks, shorter hours etc, to ensure everyone remained in their jobs. The Complainant submitted that there was no mention of redundancies, nor was there any mention of any job being at risk at this meeting. It was stated that staff made a number of suggestions to save costs. The Complainant claims that he never received a copy of the minutes of this meeting.

It was submitted on behalf of the Complainant that alternative cost saving measures were never properly explored by the Respondent. However, five working days later, the Respondent unfairly made the Complainant redundant. It was further submitted that the Respondent’s aim was to reduce the payroll costs by 8/10%. However, it was submitted that in fact they reduced it by double that, 16% according to their (the Respondent’s) own submission.

It was further submitted on behalf of the Complainant that the Respondent never explored voluntary redundancies, three-day working weeks, reduced working week, or temporary layoffs. It was submitted that the closure of one of the Respondent’s shops was discussed but that this did not occur until March 2017, after the Complainant had been dismissed. It was further suggested that sale of machinery could also have occurred, but this was not explored in any meaningful way at that stage.

According to the Complainant’s evidence, the Respondent stated, in an email dated 11 January 2017, that they had decided to dismiss the Complainant as it “will have a large impact [on] the business”. It was submitted on behalf of the Complainant that the Respondent had not, at that stage, considered any skills matrix. It was further stated that the skill matrix was completed in February 2016 as the “Training Matrix” to improve the working of the company, not to determine redundancy. It was also pointed out that this exercise highlighted the machines the operators were best at.

It was submitted that the Complainant, in his role as Production Manager had trained the majority of the operatives, so to imply he was the least competent machine operator or had the least experienced skills was entirely inaccurate. It was submitted that the Complainant had worked for the Respondent for over 19 years, far longer than any of the operators employed by the Respondent. It was further stated that the Complainant also had 10 years’ experience prior to working with the Respondent. It was submitted that the Complainant was no longer an operator but would all step in when necessary. It was further submitted that the Complainant would never agree that the skills matrix applied to his job as he was not working as an operator and his role, as production manager, extended far beyond the content of the skills matrix.

According to the Complainant’s evidence, he took annually 12/13 January 2017, which he was claimed could be confirmed by documentary evidence including flight details and emails. Consequently, it was submitted that any alleged meetings with the Complainant and/or any notes of such meetings relating to those dates were completely fabricated.

The Complainant submitted that he did meet with two members of management in the morning of 16 January, when he was informed that he was being made redundant with immediate effect. It was further stated that the Complainant was not offered any alternative to redundancy. However, it was submitted on behalf of the Complainant that he offered to take a pay cut, but this was refused immediately. It was further submitted that he was not offered any opportunity to discuss the matter or to appeal the decision. According to the Complainant’s evidence this meeting was very distressing for him as he had never been informed his position was at risk or that redundancies were an option. Rather, it was submitted that, the Respondent had led the Complainant to believe that redundancies would be a last resort and all other options will be explored first. However, it was submitted that this did not turn out to be the case.

Legal Submissions:

The Complainant’s legal representative made submissions under a number of different headings in this regard. Firstly, it was submitted that the relevant legislation in this regard was Section 6 of the Unfair Dismissals Act, 1977 to 2015 and, Section 7 (2) of the Redundancy Payments Act 1967.

The Complainant’s legal representative also submitted relevant case law on a number of different aspects of the case. With regard to the issue of “Alternative Employment” the Complainant’s legal representative made reference to a number of cases including:

Jeffers v DDC Ireland Ltd [UD169/2000], was referenced in the context of the onus placed on the employer in relation to alternative employment. The Complainant submitted that the Respondent accepts that there were at least three positions within the company which were vacant at that time. However, it was stated, on behalf of the Complainant, that he was never offered any of these jobs or given an opportunity to apply for these or to retrain.

With respect to Kelly v Langarth Properties Ltd [UD 742/1993], it was pointed out that the Complainant in that case was a long serving employee, with no issues with his work and that he could have done the job of those who were kept on in employment. It was submitted that the circumstances of the within case were identical to the Kelly case.

The Scully v Laragan Developments Ltd [UD 10/2007] case was referenced on the grounds that it referred to selection for redundancy in circumstances where other workers with less service were retained to perform duties which an individual who was made redundant was able and willing to perform. It was submitted that the within Complainant’s circumstances were such that he was prepared to take on such duties but was never given the option.

Crawford v Modern Plant [UD 123/19998] and Dowling v Whole Foods Wholesale Ltd [UD 95/2006] were submitted as further cases which are analogous to the within Complainant’s position.

Finally, in this regard, the case Cullen v Masterlift [ UD 753/2003] was reference because the EAT found the dismissal to be unfair on the basis that the company had failed to conduct a real analysis is between that Complainant and his natural competitors, both of less seniority than he. It was submitted that this occurred in the within case as well.

With regard to setting criteria for redundancy, it was submitted, on behalf of the Complainant, that the Respondent must have clear criteria, which the Complainant is aware of. It was submitted that the Respondent decided to dismiss the Complainant before looking at any criteria. It was further submitted that the Respondent never informed the Complainant of the possibility of redundancies, nor of the selection criteria for same.

It was submitted that, normally, in a redundancy situation, an employer will wish to retain their best staff and the question inevitably arises as to the extent to which an employer is entitled to take the personal characteristics of individual staff members into account when selecting for redundancy. It was submitted that, based on case law, it appears that while an employer may take account of such characteristics, the assessment must be done in an objective manner.

In this regard, it was submitted, on behalf of the Complainant, that case law had determined that the elements of selection criteria include, but are not limited to:

       i.          Qualifications and training / relevant education qualification;

      ii.          Relevant experience;

     iii.          Punctuality;

     iv.          Job technical/skill requirements;

      v.          Criticality to organisation;

     vi.          Quality of work;

   vii.          Length of service.

The cases referenced in relation to the above list included: Kelly v Weller Ltd, [UD 657/2006], Balmer v E Casey Bonding Co Ltd [UD 550/2006] and Duffy v John Sisk & Sons Ltd [UD 870/2002].

In the within the case it was submitted, on behalf of the Complainant, that, taking all of the criteria set out above, it is unbelievable that he would be made redundant. Reference was made to his last performance review which took place on 8 September 2016, which found that he was doing a “great job managing a are very difficult area” and that he had “super print knowledge”. It was further submitted that, having regard to his length of service, making him redundant seems entirely unfair. It was stated that the Complainant was found to be excellent in all of the criteria listed above.

In further submission in relation to the criteria for redundancy, the Complainant’s legal representative made reference to Moran v Ernst & Young Ireland [UD12/2011] as representing comparable circumstances to those pertaining to the Complainant in the within case. In the reported case, the employee was selected for redundancy on the basis of selection criteria which were not discussed with him and which included reliance on the performance review of the employee which he disputed aspects of. It was submitted that the employer did not warn any of the employees of the capacity review which identified the employee’s team as being overcapacity when the employee was informed that this position was at risk (following the application of the selection criteria), the other members of his team who had been the subject of the selection process were not similarly informed. It was submitted that this indicated to the EAT that the employee was identified for redundancy as opposed to his role.

It was further pointed out that the EAT, in its determination, highlighted, in particular, the lack of “material effort” on the part of the employer to locate an alternative position for the employee and this is evident from the four-day window for the employee to locate suitable alternative employment to avoid redundancy as being a factor of relevance to its finding that the employee had been unfairly selected for redundancy.

According to the Complainant’s legal representative, the above decision emphasises the requirement placed on employers to apply a clear and transparent selection process, including the application of criteria which an employee has the opportunity to influence, prior to any selection for redundancy.

The Complainant’s legal representative identified the case Boucher v Irish Productivity Centre [1994 ELR 205] as the leading Irish case law in relation to selection for redundancy and the obligations on employers in that regard. In particular, reference was drawn to the Tribunal’s finding in that case where the stated: “to establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made”.

In the context of the above finding, the Complainant’s representative submitted that the Respondent in the within case failed to set fair criteria, to inform the Complainant of it or to have a proper consultation process.

Finally, with regard to selection for redundancy, the Complainant’s representative referred to the case of Mulqueen v Prometric Ireland [UD1259/2012], where the EAT criticised the fact that the impacted employee being made redundant had no prior knowledge of the criteria (matrix) use for selection for redundancy, nor the significance of implications of the matrix. The Tribunal also found that the employee had no opportunity to examine, query or object to the matrix. According to his representative, the Complainant, in the within case, found himself in a similar position to that referred to in the above case.

With regard to the matter of consultation, it was submitted on behalf of the Complainant that, while the form and timing of individual consultation will vary depending on the circumstances, the employer should, as a minimum, inform the employee in advance of the proposal to make the position redundant, giving the reasons for the changes and the proposed process for affecting it. It was further submitted that the employer should also seek the employees’ feedback on the proposals, particularly as to any alternative to redundancy and/or option for redeployment. In pursuing this point, the Complainant’s representative referred to the case of Air 2000 Ltd v Mallam [EAT 0773/2003]

The Complainant’s representative also referred to the case of Cahill v SDL Global Solutions Ireland Ltd [UD292/2003], when submitting the point that an employee must be given an opportunity to suggest ways to improve the situation and thereby avoid the necessity of redundancy. It was submitted that in the within case no such opportunity was provided to the Complainant.

The case of Sheehan & O’Brien v Vintners Federation of Ireland Limited [92009) 20 E.L.R. 155] was also referred to as the decision in that case highlights the importance both of engaging with employees in a meaningful manner as part of the consultation process and allowing employees to apply for alternative positions, which may be available. The Complainant’s representative submitted that no such opportunity was ever given in the within case. It was further stated that the consultation should be real and substantial and, if there is a new position available, the employee should be allowed to compete for that alternative role.

Finally, in relation to consultation, the Complainant’s representative referred to Fennell v Resource Facilities Support Limited [UD57/2009], where the Tribunal held that the employer was unfair and unreasonable in the manner in which they implemented the restructuring process as it:

a)     “failed to properly consult with the claimant on the procedures that it adopted.

b)     implemented these procedures without giving the claimant a reasonable opportunity or time period to consider them.

c)      completed redundancy process without informing the claimant of his right to appeal the decision.

It was submitted on behalf of the Complainant, in the within case, that, whilst all of the above are applicable in his situation, it was crucial that the Respondent never gave him an opportunity to appeal the decision. It was further submitted that the Labour Court, in their decision in Tolerance Technologies Ltd v Foran [UD 38/2016] followed the same approach as the EAT in the Fennell case.

Finally, with regards to the issue of notice, it was submitted on behalf of the Complainant that an employer who proposes to dismiss an employee by reason of redundancy must give that employee notice in writing of the proposed dismissal on the requisite form (Part A of Form RP50). It is further submitted that this statutory notice must be given at least two weeks before the date of dismissal as per the Redundancy Payments Act 1967.

It was submitted on behalf of the Complainant that he never received his RP50, nor was he provided with Part B of the Form.

Conclusion:

It was submitted on behalf of the Complainant that, in the light of the foregoing, he was seeking a finding that he was unfairly dismissed and, in such circumstances, it was submitted that the only appropriate redress where there is such a fundamental breach of the employer employee relationship is compensation, as reinstatement is not appropriate.

Background:

The Respondent stated that the Complainant was employed as a Production Manager from July 1997 to 13 March 2017. It was submitted that the Complainant was a well-regarded employee with the long service history and with whom the Respondent with no issues.

The Respondent submitted that, unfortunately, towards the end of 2016 the company started to experience cash flow difficulties. It was stated that, following a meeting with their accountant in December 2016, the Respondent was advised that rationalisation of the business needed to take place if the company was to continue to be able to trade.

It was further submitted that, despite the fact that the Christmas was approaching, management felt it was best to keep all its staff informed of the situation and an email was issued from the Respondents General Manager informing all employees that, due to the current financial situation, 2017 was to be a year of rationalisation with the view to significantly reviewing the company’s cost base. It was further submitted that this email specifically indicated that, as payroll was the company’s largest cost, the payroll bill would need to be reduced.

It was submitted on behalf of the Respondent that, on the staffs return to work in the New Year 2017, a further email was issued by the General Manager to all staff advising them that a meeting would be held on 6 January 2017 in order for the Respondent to detail the company’s current difficulties. It was further submitted that this email indicated that the Respondent would seek input from staff with regards to reducing the company’s cost base with a view to ensuring the company’s survival. The General Manager sought specific confirmation from the Complainant that all his production staff were aware of the meeting and this was so confirmed by the Complainant.

The Respondent submitted that, at the meeting on 6 January 2017, which was attended by the entire workforce, all staff are informed that payroll would have to be reduced and that redundancies were likely. It was submitted that staff were specifically informed at this juncture that, due to the financial situation of the company, they were to be on notice that all their jobs were currently at risk of redundancy.

According to Respondent’s legal representative, taking into account the feedback and input received from all employees at this meeting, the Managing Director and General Manager met on 9 January 2017 to further look at the needs of the business with a view to deciding how best to assist the company out of its financial dilemma. It was submitted that a further management meeting took place the following day (10 January 2017) where in the following proposals were considered:

1.      A three-day week for staff.

2.      A reduced working week (35 hours).

3.      Temporary lay off.

4.      Sale of offset machinery.

5.      Redundancy of post in areas where business was declining.

It was submitted, on behalf of the Respondent, that, following intense management discussion, options 1 – 3 above were not deemed suitable due to the needs of the business and it was decided that in addition to sale of offset machinery, certain redundancies were required.

It was submitted that following the discussions of 9 January 2017, redundancies were to be considered in certain areas. It was submitted that, as a result, the General Manager met with the Complainant, in his capacity as Production Manager, on 11 January 2017 and informed him of potential redundancies within his department.

According to Respondent’s evidence, it was decided that, in order to identify the least skilled in the department, a skills matrix, as drawn up by the Complainant, would be used. It was further submitted that the Complainant agreed, at the meeting on 11 January 2017, that the matrix, which had been drawn up previously, was still up-to-date and usable.

It was submitted on behalf of the Respondent that, following a management review of the production staff against this skills matrix, it transpired that the Complainant himself and one of the print finishers were identified as having the least experienced skill set. It was further submitted that, following this, the General Manager met with the Complainant on 12 January 2017 and informed him that he had been selected for redundancy. It was stated that the Complainant objected and made certain arguments which he asked to be taken into account.

According to the Respondent’s evidence, the General Manager and the Managing Director discussed matters again taking into account the Complainant’s objections. However, it is submitted that, on reviewing the objections, it was noted that these did not alter the position and a decision was made by management to affirm to the Complainant that his position was to be made redundant.

It was submitted by the Respondent that, at a meeting with the Complainant on, 16 January 2017, he was informed he was being made redundant. It was further submitted that, taking into account his long service and a high esteem with which he was held, the Respondent advised the Complainant that, should he so wish, he did not have to work through his notice as it could be paid in lieu. It was stated that he was offered the opportunity to leave work that day due to the upsetting nature of the announcement. However, the Complainant stated that he wanted to wait to gather his belongings and speak with staff. It is submitted that the Complainant remained on the premises until lunchtime. In addition, it was submitted, on behalf of the Respondent, that, as management were aware that the Complainant travelled to work with his partner, they offered to pay for a taxi for him if he so required. However, this offer was declined.

In conclusion, the Respondent submitted that the Complainant subsequently received his statutory redundancy entitlement of €24,180.00, together with all other benefits accrued.

Legal Argument:

The Respondent submitted that, Section 6 (4) (c) of the Unfair Dismissal of Act, 1977, provides that a dismissal is not an unfair dismissal if it results wholly or mainly from the redundancy of the employee. It was submitted on behalf of the Respondent that the within case is clearly one of redundancy.

It was submitted, on behalf of the Respondent that, the Complainant was one of their longest serving members of staff and thus his redundancy was not only unpalatable to the company but also costly taking into account the amount of his statutory redundancy payment. It was further submitted that, in addition to the Complainant, four other members of staff were made redundant at that time and, due to the decline in the offset printing business in which the Complainant was involved, three large printing machines were sold off.

It was further submitted that, in February 2017, the Respondent closed down one of its retail shops, leaving it with only one retail premises. It was further submitted that this closure created further redundancies. According to the Respondent’s evidence, following the redundancies, they made a saving of 16% on payroll and received income from the sale of the machinery. It is submitted that this allowed the Respondent the opportunity to ease its financial difficulties and concentrate the business on the areas that are profitable such as graphic design. Based on this, the Respondent submitted that there is no doubt that the redundancy of the Complainant was genuine.

The Respondent also submitted that it is necessary for employers to show that the decision to select an employee for redundancy is impersonal. According to the Respondent this is clearly evidenced, in the within case, by the use of the skills matrix which had been drawn up by the Complainant and recommended by him for use in the determination of selection of employees.

Finally, it was submitted on behalf of the Respondent that, an employer must behave reasonably in any redundancy situation. In this regard, reference was made to the fact that the Unfair Dismissals (Amendment) Act 1993, now provides that the reasonableness of an employer is an essential factor to be considered in the context of all dismissals, including redundancy. It was submitted, on behalf of the Respondent, that, taking into the facts of the situation, as set out above, it is quite clear that the Respondent, at all stages, of this difficult process acted in a reasonable manner to all its employees, including the Complainant.

Conclusion:

In conclusion, it was submitted that the circumstances set out above clearly demonstrate that the Respondent, on becoming aware of difficult financial conditions within the business, immediately informed all staff of same and clearly informed all of the possibility of redundancies. It was further stated that, at this time, staff suggestions and input were sought and subsequently discussed by management. Following a review of all possible options, it was decided that redundancies were required and impartial selection criteria was used to identify the least experienced personnel in the printing section.

It was further submitted that the Matrix used was drawn up by the Complainant and agreed by him for use in this instance. The Respondent further submitted that, on the Complainant being identified by the matrix as one of the parties for redundancy, his objections were again noted and discussed by management prior to a final decision been made and communicated to him. According to the Respondent’s evidence, the position of Production Manager has not been backfilled and the role has instead been divided up between the Respondent’s Managing Director and the General Manager.

It was further submitted, on behalf of the Respondent, that, subsequent to the Complainant’s redundancy, three employees resigned their positions with the Respondent in: graphic design, retail and signage. The Respondent stated that they advertised to fill these positions. However, it was submitted that these positions were not within the Complainant’s area.  

In conclusion, it was submitted, on behalf of the Respondent, that, on foot of the above, they believe there to be no doubt that the Complainant’s redundancy as genuine. It is further stated that it is clear from the history set out above and indeed supporting documentation furnished, that the versions of events as set out by the Complainant in his complaint form are not correct. Consequently, the Respondent requested a decision that would acknowledge that this was a valid redundancy and to dismiss the claim made by the Complainant.

Having carefully considered all the evidence adduced by and on behalf of both the Complainant and the Respondent, it is clear that the Respondent’s consideration of their financial position and the subsequent decision to introduce redundancies took place in a very short period of time in the early weeks of 2017. Consequently, in order to conduct a thorough assessment of the Complainant’s claim, it was necessary to first give careful consideration to this timeframe and what occurred during this period.

The process commenced on 21 December 2016 when an email from the Respondent’s Directors issued to all staff advising them that the company was experiencing significant cash flow difficulties. The staff are further advised that the Respondent would be embarking on a rationalisation programme for 2017. This correspondence also identified payroll as the largest cost and, as a result, would need to be reduced. Staff are further informed that the Respondent was looking at different options as to how to achieve reductions in overall Payroll costs.

On 4 January 2017, email from the Directors invited all staff to a meeting on the following Friday, 6 January 2017. The email indicated that the purpose of the meeting was: “to discuss the company’s position” and “help us to identify what decisions need to be made to reduce our cost base”. The meeting was identified as an opportunity for all to figure out where cost savings could be reduced.

It appears from a Minute of the meeting of 6 January 2017, which were presented by the Respondent in evidence at the Hearing, that, at this meeting, staff were informed that payroll would have to be reduced and that redundancies were likely. However, I note, in this regard, the Complainant’s disputing of this fact. The Complainant contends that there was no reference to redundancies at this meeting on 6 January 2017 and the Minutes of the meeting were first seen when they were presented as part of the Respondent’s submission at the Hearing.

Given the conflicting nature of the evidence presented in relation to reference to redundancies at the meeting on 6 January 2017, it is difficult to definitively determine which account is the more accurate. However, in a detailed email from the Respondent’s Managing Director on Monday, 9 January 2017, there is no evidence or reference to the Minutes of the meeting of 6 January 2017 having been created nor were any minutes attached to the email. In a matter of this importance and significance it might have expected that any Minutes created would have been shared with the staff who attended the meeting.

Further, in this regard, I note that when referring to Payroll, the email goes on to state that the following options would be reviewed with regard to how their implementation might affect the business: reduced working days/companywide pay cuts/temporary layoffs. It is noted that there is no mention of potential redundancies.

In addition to the above, it is noted that the email refers to a review of “payroll and underperforming departments” would be conducted immediately in order to stabilise the current staff and reduce “the huge feeling of uncertainty”.   Once again, there is no reference to redundancies being part of this review.

Consequently, taking all of the above into consideration, I am satisfied that, on the balance of probability, it is more likely that redundancies were, contrary to the Respondent’s contention, not referred to at the meeting of 6 January 2017.

According to the Respondent’s evidence, meetings took place between the Managing Director and General Manager on 9, 10 and 11 January 2017, with a view to deciding how best to address the company’s financial situation. It is contended, by the Respondent, that, arising out of this series of meetings, the following proposals were considered:

1.      A three-day week for all staff.

2.      A reduced working week (35 hours).

3.      Temporary layoff.

4.      Sale of offset machinery.

5.      Redundancy of posts in areas where business was declining.

It was further submitted by the Respondent that, following “intense management discussions” options 1 – 3 from the list above were not deemed suitable by virtue of their potential impact on the business and the needs of the business. Consequently, it is contended by the Respondent that, in addition to the sale of machinery, certain redundancies were required.

Given the earlier finding, that it is unlikely, on the balance of probability, that redundancies were discussed at the staff meeting on 6 January 2017, it follows that the decision to introduce redundancy was made by management and had little or no input from staff.

In an email to the Managing Director, dated 11 January 2017 (10:25am), which was presented by the Respondent in evidence, the General Manager proposed reducing staff numbers by five, comprising of: 2 from offset printing (comprising of 1 printer and 1 finisher), 1 Sales Co-ordinator, 1 Graphic Designer and one from Administration. It is noted that there is no reference to the Complainant, in his role as Production manager, in this email.

In a further email, later that afternoon (at 2:16 pm), to the General Manager, the Managing Director confirmed the figure of five staff reductions. However, the Managing Director expresses the view that an immediate reduction in the offset printer complement would have a large impact on the business. Consequently, he proposes that the Offset Production Manager would take over the duties of the offset printer, who had earlier been identified by the General Manager as a candidate for redundancy and that the Production Manager (i.e. the Complainant) would be made redundant.

It appears on the evidence presented by the Respondent, that on the back of the above correspondence/interactions between senior members of management, the General Manager met with the Complainant, in his capacity as Production Manager late in the day on 11 January 2017.   The evidence suggests that this meeting took place at 3:00 pm, approximately 45 minutes after the email from the Managing Director to the General Manager, which identified the Complainant, in his role as Production Manager, as a candidate for redundancy.

The evidence further suggests that, at this meeting, the General Manager informed the Complainant of potential redundancies within his department. However, there is no evidence to suggest that the Complainant was informed, at this point in time, that his position was potentially vulnerable from the redundancy perspective, despite the fact that he had been clearly identified, as such, less than one hour earlier, by the Managing Director.

It appears on the evidence, that the main purpose of the meeting between the General Manager and the Complainant was to identify the least competent printer, as being the second candidate from Offset Printing to be made redundant. In conducting this assessment, the Respondent stated that they relied on a Skills Matrix which had been developed, in mid-2016, as part of an IOS exercise which the Respondent was embarking on at the time, but which was subsequently shelved.

The Respondent stated in evidence that the Complainant confirmed, at the meeting on 11 January 2017, that the Skills Matrix was still a valid tool with which to assess the competency of the printers. However, I note the Complainant’s evidence in this regard, which is that there was no discussion during this meeting on using the matrix for the purposes of identifying staff for redundancy.

According to the Respondent’s evidence, as a result of using the Skills Matrix, the Complainant was identified as the least skilled person in the Department. In response to this, the Complainant stated that he was flabbergasted at being identified as the least skilled person. According to the Complainant, as the manager of the unit, he was the most skilled and had, in fact, trained all the staff to work the various machines.

Having carefully considered all of the evidence adduced, I find that there is a degree of credibility to the Complainant’s contention that finding him to be the least competent printer, based on a Skills Matrix, that had been produced for a different purpose, six months earlier, seems rather unusual. I also find it unusual that an employee who had worked as a printer, with the Respondent, for a period of 7 years prior to being promoted to the role of Production Manager in the Printing Department and who had worked for a further 13 years in that capacity, which included the training of staff, could be found to be the least competent printer and, as a result, be selected for redundancy.

According to the Respondent’s evidence, as a result of the outcome of the Skill Matrix exercise, the General Manager met with the Complainant and informed him that he had been selected for redundancy. The Respondent initially submitted in evidence that this meeting took place on 12 January 2017, however, during the submission of oral evidence at the Hearing, it was confirmed that the meeting took place on 11 January 2017. For his part, the Complainant refuted the Respondent’s evidence in this regard stating that he did not have a second meeting with the General Manager on 11 January and, in addition, he was out of the country on annual leave on 12 and 13 January 2017. In the latter regard, the Complainant provided documentary evidence which corroborated his position.

According to the Complainant’s evidence he was informed, at a meeting on 16 January 2017, which was attended by the Managing Director and the General Manager, that he was being made redundant with immediate effect. The Complainant further submitted that, on learning of his selection for redundancy, he offered to take a pay cut instead. However, the Complainant stated that this offer was immediately refused and he was not given any opportunity to discuss the matter further tor o appeal the decision.

Against the background as set out above, I now proceed to consider the Complainant’s selection for redundancy and, in that context, determine whether the termination of his employment was fair and reasonable in all the circumstances. In doing so, I first considered the applicable law that applies in such situations.

Section 6 (1) of the Unfair Dismissal Act, 1977, states that:

“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 are substantial grounds justifying the dismissal”.

Section 6 (4) (c) of the Act further states, inter alia, that:

“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 ….. the redundancy of the employee…”

Section 6 (7) of the Act states as follows:

“Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the Adjudication Officer, the Tribunal or the Circuit Court, as the case may be, considers it appropriate to do so –

(a)   to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal….”

On the basis of the legal position as set out above, the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. Arising from this, the burden of proof rests with the Respondent to establish, in the first place, that the dismissal was wholly connected to redundancy and, having done so, to justify the selection process whereby the complainant was selected for redundancy.

The Respondent’s submission, in the within case, is that the Complainant’s employment was terminated by reason of redundancy, that a reasonable and appropriate selection process was used to identify the Complainant as a candidate for redundancy and, having been so selected, was paid the appropriate payment in line with the Redundancy Payments Act, 1967 – 2014.

Section 7 of the Act deals with the general right to redundancy payment. Section 7(2) thereof states that:

“For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) 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 (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained”.

Based on the Respondent’s evidence, it appears that a combination of the circumstances set out at paragraphs (c) to (e) above are the most applicable to their particular situation.

The Respondent’s submission is that, in the context of their challenging financial situation, which emerged at the end of 2016, they conducted a major review of how the business was structured at the beginning of 2017. From the evidence presented by the Respondent, I accept that the need to engage in such a review appears valid and credible. In addition, I accept that it is the Respondent’s prerogative to restructure its business and to manage it in the most appropriate manner it best sees fit. However, this prerogative is not unrestrained and the rights of the employees, who may be affected by this restructure, a must also be taken into consideration.

While the Respondent contends that they carried out a comprehensive review/restructure of the business and decided on a strategy for addressing the financial situation, it is notable that all of this took place within a period of seven working days which commenced with the general staff meeting on 6 January 2017 and culminated on 16 January 2017 when the Complainant been advised that he was being made redundant. In this regard, I am further of the view that had the Complainant not been on annual leave on 12/13 January 2017 it is most likely that, on the balance of probability, the Complainant would have been informed of the decision to make him redundant on one or other of the 12th or 13th of January.

Having carefully considered the evidence in this regard, I am strongly of the view that having conducted the review process within such a short timeframe, it is difficult to see how the Respondent could contend that reasonable consideration, including the opportunity to discuss alternative options, was provided to the Complainant.

With regard to the timeframe and its impact on the Complainant, I take particular note of the email from the Managing Director on 11 January 2017 (at 2:16 pm). This email identifies, for the first time, the Complainant as a potential candidate for redundancy.   This clearly suggests that the actual timeframe within which the decision was taken to make the Complainant redundant was only four working days. As has already been stated, the Complainant, was on annual leave on 12/13 January, was informed on 16 January (the first working day he was at work following the decision having been made on 11 January) that he was being made redundant.

The evidence clearly suggests that the decision, advised to the Complainant that day, which was in effect his last day at work, was a fait accompli as there is no indication of any further discussion or consultation with regard to alternative options and there was no the provision of an appeals process.

It is clearly established that, in relation to the selection of employees for redundancy, their right to retain their employment must be taken into consideration. In this regard, the employer is obliged to look at all available options by which this could be achieved. Having carefully considered all of the evidence is adduced, I am not satisfied that the Respondent gave adequate or appropriate consideration to whether or not there were alternative roles into which the Complainant could be redeployed or whether other options, short of redundancy, existed. Consequently, I find that, in all the circumstances, the Respondent’s actions in this regard must be considered as unreasonable.

As has already been set out earlier, I find there to be serious questions around the Respondent’s use of the Skills Matrix, which identified the Complainant as one of the least competent employees in the printing area.   I am strongly of the view that the Managing Director’s identification of the Complainant as candidate for redundancy (as set out in his email of 11 January 2017), a decision which overruled the General Manager’s earlier proposals, raises a serious question marks over the validity and credibility of the subsequent Skills Matrix exercise carried out by the General Manager with the Complainant.

I accept there is a certain validity in the Respondent’s contention that the selection of the Complainant for redundancy resulted in the cost the overall redundancy figure being higher than if he was not selected. However, while the initial cost may be higher than if a less expensive employee had been selected, there was significantly greater advantage to the Respondent, in terms of higher potential savings, as a result of making the Complainant redundant. Consequently, I am satisfied that, on the balance of probability, the rationale for selecting the Complainant for redundancy had more to do with the individual than the role.

Having carefully considered all of the evidence adduced in this case I am of the view that the Respondent did not follow fair process and procedure in making the Complainant redundant.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that, while I am satisfied that, based on the requirements of the business, the Respondent was faced with having to make a number of employees redundant in early 2017, the manner in which the Complainant was chosen as one of those to be made redundant was not reasonable or fair in the circumstances.

Consequently, I find the Respondent to be in breach of Section 6 (7) of the Unfair Dismissals Act, 1977. Therefore, I find that the Complainant’s dismissal, by way of redundancy, was unfair and award him an amount of € 43,000 in compensation.

Unfair Dismissals Act

Redundancy Payments Act

Selection for Redundancy