Complainant

Respondent

Anonymised Parties

An Employee

A Limited 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-00028031-001

29/04/2019

The Complainant was employed by the respondent from 8 June 2015 to 15 March 2019. The Complainant was employed as a Software Engineer. The Respondent is a large electronic software company providing electronic medical records software to large international and domestic healthcare providers. Its website states the following: “we are looking to recruit people who are passionate, creative and want to work in one of the fastest growing technology companies in Europe. The complainant worked in a team of 6 software developers. A further team provided technical support to the software developers, the Dev Ops Team. There are also 6 people employed in this team. Mr S is responsible for all software engineering activities within the Respondent and reports to Mr D, the Chief Executive Officer.

The complainant worked in this role until he was dismissed by Mr S after a short meeting on the 15 March 2019. The reason provided for his dismissal was redundancy. There was no notice provided regarding this meeting and the dismissal came as a complete surprise to the Complainant. The Complainant made the following notes after the meeting:

“The meeting began by Mr S mentioning that he had some bad news and he was noticeably upset by what news he had to deliver; He told me he thought the decision was completely wrong and that he has no idea what the company (the CEO etc.) are doing; He told me I was a good engineer and person who would have no issue finding a job elsewhere; Asked me not to discuss anything after I left the meeting room because he still had to deliver news to two other colleagues – I was asked to pack up and go; and At no point did he mention in any detail why I was selected for redundancy”

Following his dismissal, the Complainant wrote to the Respondent on the 27 March 2019, expressing his upset and distress regarding the manner in which he was dismissed. He raised the fact that no selection criteria were provided and that no formal process was followed. In the absence of

any reply, the Complainant sought legal advice. The complainant’s solicitors wrote to the Respondent on the 10 April 2019, confirming that in their opinion the Complainant had been unfairly dismissed. On the same day, the Complainant received a one

paragraph letter from the Respondent (referencing the Complainant’s letter of 27 March) stating that “The selection criteria that was used during your recent redundancy process was to focus on retaining revenue and cash generating capabilities within the Company.”

The above paragraph is clearly not anything do with redundancy selection criteria. It is the Respondent’s business reason why a decision was made to make redundancies. This submission is further evidence that no redundancy process or selection criteria were used.

Unfair dismissal.

There was no attempt to consult with the Complainant, look at alternatives to his redundancy or explain the reason why he was selected for redundancy as opposed to the remaining employees. The Complainant should have been consulted prior to his dismissal and should have been provided with the following:

·         reasonable notice of a meeting to discuss the end of his employment;

·         information that he was entitled to be accompanied to any meeting regarding his dismissal by a work colleague or trade union official;

·         an opportunity to put forward suggestions regarding ways to avoid his redundancy;

·         the chance to apply for alternative roles, for example in the DevOps Team;

·         an opportunity to discuss the basis of his selection.

·         This should have included details of the selection pool and criteria, and the manner in which those criteria would be applied;

·         the right to appeal any decision to dismiss him.

Claims and remedies

It is submitted the Complainant was unfairly dismissed. The Complainant seeks compensation for financial loss.

The complainant sought and secured employment with a new employer within one month of the dismissal. He did not work his notice period, he was paid in lieu.

The Respondent is a leading international technology company that provide software & services that drive efficiencies and quality for businesses. The bulk of the work carried out by the respondent is the analysis, development, deployment and support of Apps.

The business model is to take on projects that deliver a range of Apps when hospitals covert their paper forms to electronic form. These projects drive the Company’s revenue. Failure to deliver on these would have significant and immediate financial impact. As you will see below the impact of reducing the number of platform developers would have a less immediate commercial impact on the Company.

Staff reductions have impacted right across the organisation. A year ago, there were 51 people working for the respondent. That number is now down to 25.

Just prior to the complainant’s role being made redundant, Mr. NC VP of Engineering was directly responsible for 5 teams in The respondent. These were: Platform, DevOps, Quality Assurance, Business Analysis and Product Management. Since then, two of these teams have ceased to exist (Business Analysis and Product Management). Two are reduced in size (DevOps and Platform) and one remains unchanged (QA - 2 members).

The complainant was employed as a Software Engineer on the Platform team of V..on 15th June 2015. This team developed what is referred to as the V.. Platform.

Platform Team A broad but specific set of skills is required to function as a Software Engineer on the Platform team. As well as developing the core functionality of the V.. Platform, the Platform team were also its sole source of technical support, which they provided to all customers.

Defects are raised as tickets and assigned to the team for investigation and resolution and released in future versions for the product. The team also directly investigated live Platform related issues being experienced by customers, in real-time, on an ongoing basis.

The Complainant in discussions following his redundancy has referred to the DevOps Team.

The DevOps Team has a second team of developers called the DevOps team. They provide a very different function to the Platform team, and require a different skill set to do so.

DevOps build what are referred to as Apps. They are small self-contained modules of functionality. Many of these Apps represent electronic versions of forms you would typically find in hospitals. These apps utilise the Platform, and the functionality therein, but are quite separate.   The DevOps team also deploy the V..Platform along with the Apps to provide a solution to customers.

They also carry out the configuration of the customer systems, once deployed. They then provide support for all the Apps (not Platform) that have been deployed across our customer base.

Finally, the DevOps team is also responsible for all integration work. Getting different computer systems within a hospital environment to talk to each other and share information. Much of the above is specialised work that only the DevOps team carry out.

Platform Vs Dev Ops Teams the complainant has argued that he should be considered for a position on the Dev Ops team as an alternative to redundancy. This is a different skillset. This is readily accepted by the complainant who has sought that the team not be described as Software Engineers. The Company’s position is that the roles have some overlap of technical skills, but they do require very different technical and personal skills, to successfully carry out their respective duties.

The roles are different. The skills required are different. This is reflected in the salaries where there is a difference of €15K in the average salaries in favour of the Platform Team.

Meeting with the complainant 15th March 2019 Mr. S (line manager) met with the complainant on 15th March 2019. As referred to in the complainant’s referral, Mr. S had some difficult news to discuss which he himself found difficult. The complainant was one of a number of meetings Mr. S was having that day for that purpose which he communicated to the complainant.

During the meeting the reasoning behind the Platform team being so heavily impacted was explained to the complainant. An explanation was inescapable - it was not possible to have the meeting without such a discussion with the complainant.

The decision related to the financial position of the Company which was forcing it to retain revenue and cash generating capabilities but to cut its costs elsewhere. The repercussions for the Company of this decision was discussed. The Company had hoped to get the R Account in Australia but failed to do so which resulted in the need for immediate redundancies.

The Platform team do not carry out direct revenue generating activity. The decision was taken to reduce the size of the team. The impact of this was that the Platform itself in support mode with a focus on delivery. The customer impact on this would not have been immediate. The sole purpose of this to help safeguard as many jobs as possible in the Company. The Company appreciates that this was unwelcome to the complainant, but it was unavoidable in the circumstances.

Mr. S also discussed the overall decision making with the complainant, at his prompting. It was made clear that Mr. S took the decision on who would should be made redundant, from within the teams under his control and responsibility. The complainant knew he was having a discussion with the decision maker. At no time did Mr. S suggest that he believed it was the wrong decision. Mr. S did state that it was a challenging and difficult decision.

It is therefore strongly disputed that the redundancy rationale was not discussed with him. The complainant acknowledged that it was a difficult decision and he understood the financial imperatives which the Company was facing.

The complainant was paid his statutory redundancy, 8 days’ holidays plus notice of one month. The Company seems to have made an overpayment to the complainant as his notice seems to have been inadvertently paid tax free. This was discovered this morning and we are seeking to verify the matter.

According to his LinkedIn profile the complainant began work with HS less than a month after he was made redundant from the respondent which would have been within his months’ notice period which he was not asked to work.  

Consultation to ensure its survival the Company was forced to reduce in numbers and cut costs. The reason for this was that it did not achieve the projected sales. Its finances could not support the number of people working in the respondent.

The complainant discussed with Mr. S the rationale for the redundancy, why his team was chosen, why he among his colleagues was chosen and the fact that there were no vacancies which would be suitable for alternative redeployment. The Company suggests that this would not have been confusing to him. The Platform team is now reduced to two members. With what is now such a small team, experience is essential to retain to maintain an adequate level of support and cover.

There was further correspondence with the complainant. On 27th March The complainant’s solicitor sought further information on the redundancy. He was informed that the focus of the redundancy process was the retention of revenue and cash generating capabilities within the Company.

Further correspondence was received on 10th April questioning the selection criteria, lack of consultation, examination of alternatives and the rationale for choosing the complainant. This response set out that the complainant was informed at the meeting with Mr. S that the Company was experiencing financial difficulties. The response required from the Company in order to stay in business was to make cost saving which would enable the Company to move to a break-even position. This led to the difficult decision being made to make redundant three developer roles in the Core Development Group, one of which was occupied by the complainant. Unfortunately given the shrinking size of the Company, there were no alternative positions available to the complainant. The letter reiterates that the decision was not a reflection of the skills, abilities, capabilities or performance of the complainant in his role. It was an unfortunate consequence of the financial difficulties the Company has experienced, and which were discussed with the complainant. He was given the notice and holidays to which he was legally entitled as well as statutory redundancy payment reflecting his service with the Company.

The Company made the redundancy in good faith, engaged openly with the complainant and has answered any questions put forward by the complainant and his legal advisers. Had the Company not made the necessary redundancies at the time, it would have been in grave difficulty at this point. The decision to make the complainant and his colleagues’ roles redundant is very much regretted. The meeting was not a disciplinary meeting but one to explain and discuss the Company’s difficult financial position which the complainant acknowledged was challenging and where he understood the position. The legal advisers to the complainant were invited to seek further information. They did not.

The complainant’s role no longer exists. The responsibilities and duties that previously constituted the job have been eliminated or assigned elsewhere. There is no existing position which could reasonably be said to be analogous or equivalent to the old role of Software Developer.

The redundancy Payments Act, 1967, Section 7(2) as amended by section 4 of the Redundancy Payments Act ,1971 and section 5 of the Redundancy Payments Act 2000, provides that:

…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not relating 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,”

The respondent would point out that the redundancy in dispute arose “wholly or mainly” from circumstances described above and would further state that a genuine redundancy situation did occur or was contemplated at the time the complainant was dismissed by reason of redundancy.

The respondent accepts that there were procedural flaws in its handling of the issue but maintains that it was justified in deciding to remove, by way of redundancy, the three positions which it did.

The redundancy Payments Act, 1967, Section 7(2) as amended by section 4 of the Redundancy Payments Act ,1971 and section 5 of the Redundancy Payments Act 2000, provides that:

…an employee who is dismissed shall be taken to be dismissed by reason of redundancy if, for one or more reasons not relating 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,”

Unfair Dismissals Act 1977

Section 6 (1)

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 were substantial grounds justifying the dismissal.

Section 6 (3)

Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or  

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

I am satisfied based on the evidence of the respondent, that a redundancy situation did exist within the respondent entity at the material time. It is clear that when the company failed to secure the R contract in Australia that matters took a turn for the worse. Furthermore, I am satisfied that there was no alternative role for the complainant within the respondent entity and that the decision to make his position redundant was made in good faith. I am however, not satisfied that the respondent carried out any consultation process, meaningful or otherwise with the employees prior to making the decision to make positions redundant. No notice was given to the complainant of the pending redundancy. It seems that any discussions or explanations came after the decision had been made and the complainant was put on notice. In that regard the process was procedurally flawed.

The complainant secured new employment within four weeks. He was paid in lieu of notice. On that basis any award I make is restricted to four weeks. On a finding that the complaint before me is well founded, the complainant is obliged to return any redundancy monies he received to the respondent.

Having carefully considered the evidence of both parties together with the documentation submitted, I find that the claim is well founded. I award the complainant € 5,000.00

The complaint is well founded. I award the complainant € 5,000.00