ADJUDICATION OFFICER DECISION
Adjudication Reference:
Parties:
| Complainant | Respondent |
Anonymised Parties | A Senior Technician | A Charity |
Representatives |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
CA-00023193-001 | ||
CA-00023193-002 | ||
CA-00023193-003 | ||
CA-00023193-004 | ||
CA-00023193-005 |
Date of Adjudication Hearing:
Workplace Relations Commission Adjudication Officer:
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Summary of Respondents Case:
The respondent has been going through a process of re-structuring since 2017, in large measure attributable to the requirements of improved governance standards in the wake of a number of scandals in the charity sector. The respondent receives state funding and its governance model must be one of best practise. Prior to 2017 it employed ninety-three staff, and this has now fallen to eighty-five which was part of parallel reorganisation of its regional centres and its management team. In December 2016 the respondent began its company wide consultation process to get staff input on how best to improve the organisation’s efficiency. This involved a number of workshops, committees and working groups, and while not explicitly discussed the possibility that there might be redundancies was known, including to the complainant. On April 8th, 2017, following the consultation process, the Board of the respondent was presented with a proposed implementation strategy. The complainant attended this meeting with other senior managers and attended other meetings such as one on September 22nd, 2017 at which detailed proposals were set out by the CEO. By January 2018 the respondent’s financial situation was of concern as it had a significant six figure deficit for 2016 and on January 16th a meeting took place with its volunteers to outline cost saving measures and the proposed restructuring of the management team. The respondent believed that on the basis of a similar deficit in 2017 it would run out of funds by the end of the year. A detailed proposal was put to the Board in January 2018, which included re-structuring of the management team, including the redundancy of the complainant’s post. Evidence was given of the different responsibilities of the posts in the new structure to that occupied by the complainant. Regarding the consultation process, the CEO discussed the proposals with the complainant at monthly meetings in early 2018. The Board was updated on April 17th about the restructuring plan and told that the complainant (and another employee) had been told of the proposals. A meeting took place on May 9th at which the complainant was told that his position was ‘at significant risk’ of redundancy, but that the decision was at that stage provisional and the consultation process had been undertaken to establish alternatives to redundancy. The complainant objected to the proposals on May 24th and set out his reasons, and expressing the view that it has he, personally who was being made redundant and not the post. He expressed dissatisfaction at having to apply for the alternative positions. There was a further consultative meeting on June 5th following which there were no additional submissions from the complainant. A final meeting took place on June 21st at which the complainant was advised of the outcome of the consultation process and that his position was redundant. He was invited to apply for one of the newly created roles and told of his right to appeal the decision. He did appeal on the basis that his role was not redundant and that the outcome had been predetermined. In due course, on July 23rd the appeal was heard but the decision was affirmed, and the appeal dismissed. |
Summary of Complainant ’s Case:
The complainant is a very specialised and experienced technician who has worked at a high level in his field in the UK and in Ireland. He initially moved to Ireland in March 2015 to embark on a private enterprise and subsequently went to work for the respondent which is a public funded charity with a view to developing its services on a national basis. There had been some discussion of a joint venture with the respondent, but nothing came of this. The complainant was offered a fixed term contract for one year commencing in June 2015 on a salary of €80,000.00, and this was increased in September to €99,000.00. In March 2016 he was also told that he would be entitled to notice of termination of his contract of a minimum of three months. Details were also provided of other terms of employment. There was a clear commercial element to the complainant’s role and he increased relevant turnover from €300,000 to just under one million euros, and profitability from €80,000 to €450,000. In April 2016 the respondent appointed a new CEO who the complainant says was told by his predecessor that the complainant’s written contract included a commitment to three months’ notice, which were among other things that he (the predecessor CEO) had orally agreed with the complainant. Discussions continued between the parties as the new CEO said he wished to streamline contracts in the organisation, but the complainant made it clear that he would not accept changes which would represent any worsening of what he had orally agreed previously. In due course the CEO issued a letter purporting to amend the complainant’s contract and which did worsen his terms, as he understood them to have been agreed. On November 15th, 2017 the complainant wrote outlining his objection to the proposed changes, a change in his job title, the notice provision, and his annual leave entitlement. A Meeting on November 21st at which the CEO demonstrated impatience with the complainant failed to resolve the matter and the complainant persisted with his view that the disputed terms had been agreed by the previous CEO. Despite this the CEO proceeded to issue a statutory statement of Terms of Employment which was the disputed document of June 15th, further clarified by the letter of September 7th. Relations between the parties deteriorated from then on. On May 9th, 2018 the CEO met the complainant to advise him of a restructuring of the organisation in which the complainant’s post would become redundant. This was confirmed in correspondence on May 10th. The complainant says that one of the posts in the new structure was substantially the job he then did and that such a position was a vital necessity in the organisation. Despite this he was told that he would have to go through an interview process to be considered for a position in the new structure. A meeting on June 5th at which the complainant sought greater detail on the proposal was not productive and the CEO wrote to him on June 21st saying that the consultation process had concluded and advising him of his redundancy entitlements. The complainant says that the process failed to meet the requirements of a ‘fair, transparent and genuine consultation process’ as required by the EAT in Sheehan and O’Brien v The Irish Vintners Federation [2009] 20 ELR 155. The complainant appealed against the redundancy, but this was unsuccessful. There was no genuine redundancy situation and the complainant’s skills and services continued to be required. This was a dismissal ‘under the cloak of redundancy’ and reference was made to case law which emphasised the need for procedural fairness, for example meaningful engagement and a search for alternatives in coming to a decision on a redundancy. These were absent in this case and accordingly the termination of the complainant’s employment is an unfair dismissal. |
Findings and Conclusions:
There are five complaints in all. One relates to the failure to provide an updated statement of the statutory terms of employment, two relate to annual leave entitlements and one to contractual notice. The most significant complaint, however is that relating to the complainant’s redundancy and which is made under the Unfair Dismissals Act 1977. I refer to the summary in the respondent’s submission to the hearing which, for the purposes of its response crystallised the main points on which the complaint of unfair dismissal was based. There are twelve specific points in all, to which should be added the complainant’s overarching case that his post was not redundant at all, as one of the ‘restructured’ posts was essentially that then being discharged by the complainant. It is to this I turn first. Six of these specific points relate to the conduct of the procedures. Of these, one is a general complaint that fair procedures were not followed, four others relate to the inadequacy of the information made available to him and a final point relates to the lack of opportunity given to him to respond. Two more allege pre-judgement of the issue. Three concern the conduct of the appeal alleging breaches of fair procedure. The Redundancy Payments Acts 1967 to 2007 provide the legislative basis for assessing whether a redundancy has taken place. The statutory definition is to be found in s.7(2). A valid redundancy situation is deemed to have occurred where a dismissal occurs "wholly or mainly" from one of the following situations: Where an employer has ceased or intends to cease to carry on the business for the purposes for 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. Where the requirements of the business for an employee to carry out work of a kind, in the place where he was so employed, ceased or diminished, or are expected to cease or diminish. Where an 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. Where an employer has decided that the work for which the employee has been employed should henceforth be done in a different manner for which the employee is not sufficiently qualified or trained. Where an employer has decided that the work for which the employee has been employed (or had been doing before his dismissal) should henceforth be done by a person who is also capable of doing other work, for which the employee is not sufficiently qualified or trained. The key requirements to make a redundancy fair are ‘impersonality’ and ‘change’, and a fair selection process. Redundancy will not be a valid defence to a claim for unfair dismissal where an employee has been either unfairly selected for redundancy or selected in a manner not consistent with his contract of employment (or, if inconsistent with how redundancies had been processed in the company previously) if there is no special reason such as would justify a deviation from that previous standard practice. The respondent provided details of the financial challenges it was facing, and the extensive process of consultation which took place in the organisation starting in December 2016.
As a general proposition and leaving aside for now its ultimate consequences for the complainant, there is no doubt that there was a significant process of change underway.
The financial losses being incurred and the potential impact on the viability on the respondent of them continuing was not disputed; heading towards €600,000 over the two years 2016 and 2017. A significant bequest which had been bridging the deficit between the costs of its operations and its public funding was dwindling, according to the evidence of the CEO at the hearing.
So, it is not in dispute that a change process was underway and in total just under ten per cent of the employees have been made redundant or have left.
A new strategic plan was agreed by the Board in April 2017, following the first phase of consultation with its employees. Minutes of that meeting give an account of the outcome of the consultation process and the targets for a changing role for the organisation.
The complainant attended subsequent meetings in his capacity as a senior manager as outlined above. However, it should be noted that parallel to these events a dispute was continuing between the complainant and the CEO over aspects of his contract.
The next stage, in January 2018 began the critical countdown as far as the complainant was concerned. Proposals went to the Board which included the proposed restructuring of the management team and other changes. Reference was made to the possibility of redundancies.
I could see nothing in what happened at this meeting to support the complainant’s case regarding prejudgment or bias on the part of the person who later was the appeal adjudicator. At that stage, the outline of the new structure was discussed and adopted, and while it was noted that it would ‘give rise to the possibility’ of [the complainant] and one other ‘being made redundant this is an entirely insufficient basis to allege that being present at that meeting compromised the impartiality of the decision maker at the appeal stage.
He gave evidence at the hearing that he had not been in attendance at any meeting where the specific detail of redundancy was discussed. That meeting was invited to approve the general approach in the presentation it heard, according to the respondent’s submission, which I accept. As will be seen below it was four months later that the complainant was notified that he was ‘at risk’ of redundancy.
A further meeting of the Board took place on April 17th, 2018 at which the CEO reported that he had spoken to the complainant (and one other) about the new management structure and intended to discuss it again in the following weeks.
This meeting took place on May 9th and was followed by correspondence the following day advising the complainant that his role had been ‘provisionally selected’ for redundancy. (One of the complaints about flaws in the procedure related to the fact that the complainant had not been given an agenda for this meeting. There is no breach of fair procedure involved in failing to provide an agenda for a consultative meeting, although it would have been courteous and business like to have done so).
The complainant’s contention (then and at the hearing) that one of the proposed positions was essentially the same as he was doing was the subject of considerable discussion and disagreement at the hearing.
I accept on the basis of the evidence that there were significant differences between them (set out by the CEO in correspondence on June 21st). The respondent claimed that the role being created was much broader, involved responsibility for local centres, and it was submitted that the complainant had no current responsibility for about fifty percent of the proposed role.
The consultation process continued and there were further meetings on June 5th although there was no new information at this and a second on 21st; this latter meeting represented the end of the consultation process. The complainant was told he could apply for the new roles, although this would have involved a significant salary reduction had he been successful. He did not do so.
The complainant’s submission that the matter had been predetermined requires examination.
Insofar as this related to his post, there is only an element of truth in it in that the respondent did not see that post as part of the new structure. However, the purpose of a consultation process is to examine the possibility of alternatives to redundancy for the employee, although unfortunately it may sometimes fail to do so.
Even if this is a probability, that does not establish the case that the matter was predetermined, where the impersonality and change requirements referred to above are present.
Indeed, while the complainant totally eschewed it as an option, he was offered the possibility of applying for the position. It is not clear whether he would have accepted the position even had it been offered to him directly (and given the salary disparity it would have been understandable had he not done so).
In fact, he gave evidence that he saw no point in engaging with alternative proposals as the process was a ‘tick box’ exercise. This is a hazardous presumption for any person in the complainant’s position to make. It certainly slams the door on the possible emergence of any alternatives. He also said he did not apply because he was ‘already doing the job’, which again displays an unhelpful (to him) degree of complacency given what he was facing.
In all the circumstances I feel the respondent engaged in a consultation process appropriate to the matter in hand.
The complaints about the appeal related to the independence of the appeal adjudicator (a voluntary member of the Board), the failure to permit representation and the delay in issuing the decision. The decision maker gave evidence stating that he had good previous experience of the conduct of appeals (he is a senior civil servant) and that he had not attended any meeting at which the detail of the redundancy was discussed. He said he treated the appeal with seriousness and did not see it as a ‘rubber stamping’ exercise.
Indeed, the complainant wrote on August 26th following the hearing saying to him that he felt that ‘you heard me fairly’ and proposing the possibility of a settlement arrangement. The respondent states that the complainant was afforded the opportunity of representation, but in any event his acknowledgement of the fairness of the process at the time robs this complaint of credibility.
One of the other complaints relates to the duration of the notice to which the complainant was entitled; the disputed three months’ notice.
Before addressing that specifically, these disputed issues appeared to play a part in the relationship between the complainant and the CEO. The complainant said in his evidence that it had led to ‘strained relations’.
Basically, the complainant alleged that he had an agreement with the previous CEO in relation to a number of aspects of his contract of employment, but which had never been confirmed in writing.
The previous CEO attended the hearing and confirmed that he had done so, and likewise the commitment to thirty days holidays. He says he told his successor of both commitments, but this was denied by his successor, who said he had no memory of it.
Much was made of the failure of the current CEO, to contact his predecessor to establish the true position regarding the contract. It was even strongly submitted there was an onus on him to do so.
In the absence of any documentary evidence of his assertion, and the fact that (according to the HR Manager’s evidence) no-one else in the organisation (including the CEO) had the notice period claimed by the complainant, some, perhaps the greater onus fell on the complainant to provide proof of his claimed arrangement, as would be normal in any such negotiation.
The onus falls on a person making the claim to provide evidence to support it in most workplace negotiations on pay and conditions.
The complainant managed to have the previous CEO in attendance as a witness at the hearing; it is very odd that he could not have got some documentary proof from him in late 2017 to support his claims.
In any event, such a claim is not within the jurisdiction of a complaint to the WRC under the Minimum Notice & Terms of Employment Act and will have to be pursued, if desired, elsewhere.
Complaint CA-00023193-002 is made under the Terms of Employment (information) Act and relates to the fact that his proposed contract terms were not reduced to writing. The comments above relating to the status of the purported terms apply here also. If there was no agreement there was no requirement to put them in a statutory statement.
Complaints CA-00023193-003 and 004 were claims for additional annual leave based on entitlement to time off in lieu (and some other claims for telephone expenses which are clearly not within jurisdiction) and for annual leave not taken in 2018 (twenty-two days) and 2017 (six days). However, both these claims are again based on the disputed contract terms offered by the previous CEO for benefits in excess of the statutory provisions and must fail.
In conclusion, I consider that a bona fide redundancy situation existed, and the respondent met the requirements of a fair process in its management of the matter.
The complainant was therefore dismissed due to redundancy and the dismissal was fair. |
Decision:
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
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 do not uphold any of the complaints number CA-00023193-001 to 005 inclusive and they are all dismissed. |
Dated: 2nd May 2019
Workplace Relations Commission Adjudication Officer:
Key Words:
Redundancy, unfair dismissal. |