ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00020966
Parties:
| Complainant | Respondent |
Anonymised Parties | A Pre-Press Manager | A Printing Company |
Complaint(s):
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-00027531-001 | 05/04/2019 |
Date of Adjudication Hearing: 22/08/2019
Workplace Relations Commission Adjudication Officer: Michael McEntee
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).
Full cross examination of all parties and witnesses was allowed.
Background:
The issues in contention concern the alleged Unfair Dismissal, on a spurious Redundancy basis , of a Pre-Press Manger by a Printing Company. |
1: Summary of Complainant’s Case:
A written submission supported by an Oral presentation was made. The Complainant commenced employment in 1990 and all went well until 2018 when the business experienced considerable financial difficulty. During the Summer months there were various discussions with the staff regarding wage reductions /different working hours and other ways of reducing costs. The staff found that they could not agree to these proposals. SIPTU at Liberty Hall level became involved in June. As no agreement could be reached the Respondent employer proceeded to implement forced Redundancies -one of which was the Complainant. He was notified of his selection on the 20th August. It was his strong contention that the reasoning behind his selection – he was the only Pre-Press person in the business was false. The Respondent had never been fully transparent with the staff regarding extra work being done at the weekend by the Owner and his son. This “Ghost” work was completely “off the books” and should have been discussed with all staff. Lack of Transparency here made any attempts at discussions with the staff almost impossible. The reasoning that he was the only Pre-Press person , while technically correct , completely ignored his vast expertise built up over some 27/28 years of all aspects of the business . He could undertake a broad range of duties, but this opportunity was never afforded to him. It was never discussed properly prior to his selection. The role of the Complainant’s son in taking over duties in the business further complicated the lack of transparency. The selection process, if there was any at all, was completely unfair and lacked all transparency and fairness. The Representative for the Complainant , Mr. D of SIPTU, quoted extensive case law in support of the Complainant’s position.
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2: Summary of Respondent’s Case:
A written submission supported by an Oral presentation was made. The Respondent Company is a small ( 8 employee) family run Printing business in North Dublin. The business was founded in 1973. Business difficulties facing this type of business are well known but the Respondent had managed to survive. However, by 2018 the business was loss making and its survival was very questionable. The Respondent was left with no realistic option but to address the Wage bill which was now approaching more than 40% of all revenues. He had numerous discussions with the staff beginning in late May 2018 and continuing over the Summer. The assistance of SIPTU at official level was sought. Various suggestions of Wage reductions, changes to working times etc all proved unacceptable to the Staff. In late August the Respondent had to take action and decided to make two staff Redundant – one printer and the Complainant. The selection of the Complainant was impersonal . He was the only person in the re Press Department and this was a function that could be absorbed by the remaining staff members. This was the basis for his selection. The decision to make the Complainant Redundant was regrettable after such a long period of service but the need was for the business to survive. Clearly implied suggestions regarding the Weekend work and the role of the Respondent’s son were not in any way relevant in what was a clear-cut business decision. The selection was fair and no grounds for an Unfair Dismissal action can exist. The Respondent Representative made a detailed Legal submission of case law in support of the Respondent. |
3: Findings and Conclusions:
3:1 The Legal position. In a situation such as in this case where the key issue is a disputed Redundancy selection there is a considerable body of case law to draw upon. The Representatives for both parties drew on numerous previous decisions to support their arguments. Redmond on Dismissal Law 3rd Edition Bloomsbury 2017 by Ryan was cited extensively. Suffice to say in summary that in a Redundancy situation the key principles are transparency in all factual/financial matters , consultation with the employee or employees and overall reasonableness & fairness especially in a selection process by the Employer. By extension also the Employee must act reasonably in the process. It is not the function of an Adjudicator to substitute himself/herself for an Employer in decision making once these principles are seen to have been observed. In all cases the evidence advanced must be evaluated carefully.
3:2 Consideration of the Evidence. The oral evidence in this case was offered in support of extensive Written submissions. A key issue that arose was the question of extra weekend work being carried out in the Respondent premises allegedly on an “off the books basis” by the Respondent principal and his son. The Complainant alleged that this was work that should have been factored into any discussion with the staff. It made a clear picture of the exact economic situation of the Company very difficult to ascertain. The Respondent clearly implied that this was work bring done by himself and his son to keep the Company afloat. The Complainant and his colleagues alleged that when they came in on Monday there was clear evidence of the printing machinery having been used over the weekend . The role of the Respondent’s son , a Director of the Company, in daily operational work was, I had to conclude, a further complication. Reviewing all the oral evidence I had to conclude that ,effectively these issues made any realistic discussion with the Complainant and his colleagues regarding the exact financial state of the business and the true economic rationale for Redundancies/Cost Cutting measures very difficult to achieve. In the evidence it was clear that the business was going through a very hard time and that ,as a consequence drastic steps were going to be required. The meetings with the SIPTU Officials clearly confirmed this. In such a small employment (10 employees at that time) choosing candidates for Redundancies was always going to be difficult. The Respondent clearly explained that as well as a Printer (who was given LIFO) he reviewed the business and came to the conclusion that the Pre-Press function could be stood down as a stand-alone unit and the work redistributed among the remaining staff. On first glance this is a perfectly reasonable position and the Redundancy can be justified. Countered against this is the question of the “Ghost” weekend work and the operational day to day role of the Respondent’s son. It must be remembered that the son was a Director of the Company and as such not a direct employee but had a very definite operational role. Redundancies were going to happen regardless of who was selected . The issue was a lack of transparency with the employees. It was quite probably that the arguments regarding the closure of the Pre-Press function would be crucial and hard to counter by the Complainant and his Colleagues. However, no such “all cards on the table” discussions ever really seemed to have taken palce. 3:3 Conclusions In such a small Company as this with very long service histories across all staff Redundancy selection was going to be a very difficult personal situation for all involved . None the less having reviewed all the evidence , both written and especially the Oral evidence I felt that the case for an Unfair Dismissal was achieved on the basis that full transparency was never achieved with the Complainant and his colleagues. The case for Unfair Dismissal of the Complainant is well founded. |
4: Decision and Redress
4:1 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.
The case for an Unfair Dismissal is accepted to be well founded.
4:2 Redress
The Complainant secured immediate alternative work even before his notice had expired. In evidence his only economic loss was the projected lower rate of pay in the new employment – an estimated annual loss figure of €15,000 per annum.
Taking in mind that a substantial Redundancy payment was made ( after 27 years’ service) and full notice pay of 8 weeks was paid ( all stated in Oral evidence) I felt that an additional award for a what was largely a Technical /Procedural issue in Redundancy selection was not warranted.
Any Redress is required by Section 7 of the Unfair Dismissals Act ,1977 to be “Just and equitable”.
Having carefully considered all the evidence and the local contexts of this case I have decided that no award for Redress in this case is warranted.
No Redress is awarded.
Act | Complaint/Dispute Reference No. | Summary Decision. Please refer to Section Three above for reasoning. |
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 | CA-00027531-001 | Unfair Dismissal complaint is well founded. No Redress is deemed appropriate.
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Dated: 11th October 2019
Workplace Relations Commission Adjudication Officer: Michael McEntee