ADJ-00020033

Complainant

Respondent

Anonymised Parties

TUS Community Supervisor

Local Development Company

Representatives

Marie O Connor SIPTU

Philip O'Gorman Ibec

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-00026519-001

25/02/2019

The Complainant gave evidence on his efforts to find replacement work since his date of dismissal.

On the complaint form he listed that he had found alternative work on the 18th of February 2019. However, in his submissions he stated that the date he started work was the 26th of March 2019.

He clarified that on the 26th of March 2019 he obtained a replacement job of nineteen hours per week. On the 1st of August 2019 he obtained further replacement work for twenty-four hours per week.

He gave examples of applying to the local County Council and for other jobs including a manufacturing role. He stated he would have looked for work every day however he lives in a rural area with high unemployment and wanted to find something closer to home.

The Complainant explained that at the end of February 2019 he knew he had secured both part time roles however it took some time for the first part time role to be up and running and likewise the second role.

Under cross examination the Complainant admitted that on the 21st January 2019 he started a manufacturing job which he worked in for a short number of weeks. It was a full-time role of thirty-nine hours a week however the pay was very low.   His net pay was €370.00 per week which was 60% of the net pay he received from the Respondent.

The Complainant explained that he did resign from this manufacturing role however there was a delay in commencing the first part time role because he had received an unsatisfactory reference from the Respondent. The CEO of the Respondent confirmed that the Complainant’s new employer did ask if there was a legal case pending. His reply to this new employer was that he was not able to confirm or to deny it.

It later transpired in evidence during the hearing that the Complainant had not given the Respondent as a referee and that he had given an earlier employer as a referee. The Complainant had advised his new employer to only in exceptional circumstances request a reference from the Respondent.

In his written submissions on his loss of earnings the Complainant made no reference of commencing employment in the manufacturing role from which he resigned after two to three weeks.

The Respondent’s case is that the programme operated by the Respondent was fully funded by a Government Department.

The Department by way of letter to the Respondent dated the 22nd of October 2018 provided details of the future operation of the programme.   It required the Respondent to reduce its number of supervisors from nine to seven before the 11th of January 2019.

The Department confirmed it would no longer provide funding above and beyond the seven supervisors on the 11th January 2019.

The Respondent provided a copy of this letter by way of email 24th of October 2018 to the supervisors in the selection pool which included the Complainant.

One supervisor voluntarily agreed to being made redundant. None of the other supervisors took up the offer of voluntary redundancy.

The redundancy selection process was initiated on the 5th of November 2018. An email was sent to all supervisors with an application form and detailed redundancy scoring matrix attached. Application forms were to be returned by the 9th of November 2018.

An email of protest was received from the Complainant on the 9th of November 2018 following the submission of his application. He felt the process was rushed and he was sceptical about the method of selection being utilised. The Respondent replied to this email and addressed his concerns on the 12th of November 2018.

Interview meetings took place on the 13th of November 2018. The interview meeting was conducted by a three-person panel. The panel and questions asked was consistent across all interviews conducted.   The completed application form was also considered as part of the process.

At a meeting on the 14th of November 2018 the Complainant was informed of the outcome of the redundancy selection process. The Complainant was informed of his right of appeal.

The Complainant appealed the outcome of the redundancy selection process.   He reiterated his issues about the selection methodology. He found the process irrational, unfair, failing to have sufficient regard to the experiences of supervisors, failing to have enough regard to the capability of supervisors to fulfil the role. He took issue with the fact that in his opinion the scores given to him were inaccurate. He felt he was selected because of his membership of a trade union.

The Complainant’s appeal was heard on the 10th of December 2018.   He was represented by a union representative at the meeting.

The outcome of the appeal was given at a meeting 14th of December 2018. A written report was provided on the day. The decision maker found that the redundancy process and the marking matrix applied was consistent. The Complainant was selected for redundancy based on receiving the lowest score.

The Complainant was assisted into finding a new role. His employment ended on the 21st of January 2019.   The Complainant received a redundancy payment of €9,336.00.

The Respondent relied on the ground of redundancy as the reason for the Complainant’s dismissal. It relied on the definition of redundancy set out in Section 7 (2) of the Redundancy Payments Act 1967 as amended.

The Respondent’s case is that it had no history or custom and practice with compulsory redundancy and it contended that the method selected was the most reasonable process in the circumstances. It explained that the selection matrix was created in 2012 but was never used. It had a three-pronged approach and was a thorough review. It provided all the supervisors with a breakdown of the scoring matrix to include how and by whom the scores would be assigned. The interview panel was made up by three panellists included an external HR consultant.

The CEO, the HR/Finance manager and the Complainant’s supervisor all gave evidence. The supervisor/line manger confirmed that there was no annual review in the Respondent’s organisation. The review was deemed on a continuous basis.

The Respondent’s submission was that it was not my function in the absence of manifest unfairness to look behind the Respondent’s evidence as to the operation of the matrix and the ultimate outcome.

The Respondent submitted the Complainant was always afforded the benefit of fair procedures. Its case was that a genuine redundancy situation existed. All employees were fully appraised of the situation and were consulted in respect of potential redundancies. The Complainant was provided with and utilised the opportunity to appeal.

The Complainant’s case is that he was aware since the 5th of March 2018 that two supervisor roles would be redundant. He was notified of the redundancy situation on the 10th of April 2018.

He received a verbal warning on the 30th of July 2018. The Complainant’s case was that this was completely unwarranted. He appealed the verbal warning but did not accept that it was binding as no procedures were followed.

The redundancy process commenced on the 24th of October 2018.   On the 25th of October 2018 the Complainant’s union wrote to the Respondent and set out their proposals as to how the process should take place. No response was received from the Respondent.

On the 9th of November 2018 the Complainant’s union again wrote to the Respondent and set out its concern that one of the remaining supervisors who operated as a mechanic within the company for the past four years has only recently taken on the role of supervisory duties which were heretofore carried out by the individual who accepted a voluntary redundancy. It set out that the selection matrix was not fair and balanced.

The Complainant wrote himself to the Respondent on the 9th of November 2018.   He stated he was not given enough time to fill out the application form, but he had completed it due to fear of losing his job. He stated that he was participating under duress and felt the selection process was unfair.  

The Complainant was unhappy with the response received from the Respondent’s HR manager.

The Complainant and his union representative attended the meeting of the 14th of November 2018 when the Complainant was informed that he was selected for redundancy as he had the lowest score on the matrix.

The Complainant was represented by his union again at the appeal hearing on the 10th of December 2018 and at the outcome hearing on the 14th of December 2018.

The Complainant submitted that the selection criteria used by the Respondent was vague, unambiguous and subjective. His argued that the last in first out (LIFO) process should apply.   His case was that there was no agreement with his union in relation to the selection process.

The Complainant explained that he was not afforded the opportunity to make submissions on the selection criteria. He argued that the verbal warning issued in mid-2018 was issued only to discredit the Complainant.

The Complainant was not happy that he effectively had to apply for his own position and go through an interview process.

The Complainant submitted that attendance, disciplinary record and attitude towards others used in the matrix was not a proper matter for selection for redundancies as it was linked to the applicant /person. He argued that the Respondent must justify why the Complainant was selected for redundancy and it must do so in so far as possible on objective grounds. His case was that the selection criteria applied in his case was not appropriate.  

He submitted that “Attitude towards others” which was one of the criteria was a subjective matter. He also submitted that it was unreasonable to use “Attendance and disciplinary records”.  

The Complainant’s representative relied on the case of JBC Europe Limited –v- Jerome Ponisi [2012] 23 E.L.R 70 wherein it was held that redundancy cannot be used as a cloak for weeding out those employees who are regarded as less competent than others or who appear to have health or age-related issues.   If that’s the reason for letting an employee go then it is not a redundancy but a dismissal.

The Complainant found it difficult to accept how an employee with five years less service than he had could have scored higher than him on the matrix.

He also had an issue with the fact that the HR manager was involved throughout the process. She was a note taker at both hearings. He asked that she be replaced at the appeal hearing.

Dismissal as a fact is not in dispute and therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair.

Section 1 of the Unfair Dismissal Act defines dismissal in the following manner

“dismissal”, in relation to an employee, means—

(a)the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee,

Section 6(1) of the Unfair Dismissals Act 1977 provides 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 were substantial grounds justifying the dismissal.

Section 6(3) of the Unfair Dismissals Act 1977 provides that

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 [as amended by the Industrial Relations Act 1990], 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.

Section 6(4)(c) of the 1977 Act provides 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 1977 Act provides that: -

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 rights commissioner, 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...

The dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy. The burden of proof rests with the Respondent to establish that the dismissal was wholly redundancy connected and must justify the selection process whereby the Complainant was selected for redundancy. Redundancy is defined in Section 7(2) of the Redundancy Payments Act 1967 – 2014. An employee who has been dismissed is taken to be dismissed by reason of redundancy if 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 hence forward be done in a different manner for which the employee is not sufficiently qualified or trained, and/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 henceforth be done by a person who is also capable of going other work for which the employee is not sufficiently qualified or trained.

Where an employee is dismissed by reason of redundancy, I must be satisfied that a genuine redundancy situation existed, and that redundancy was the main reason for the dismissal. Having considered the evidence presented to me at the hearing and in written submissions, I am satisfied that a genuine redundancy situation existed and that no one has replaced the Complainant in the role which he formerly held. The Complainant received a redundancy payment.

Having decided that a genuine redundancy existed I must now consider if the Complainant was unfairly selected for redundancy.

In relation to selection for redundancy, the case of Boucher v Irish Productivity Centre R92/1992 is instructive. In Boucher, the Tribunal stated that in addition to proving the genuineness of a redundancy, the employer had:

“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 for 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”.

Generally, selection criteria should not be based on subjective assessments of the employee. The employer must be able to establish that an employee was fairly selected for redundancy based on independent, objective and verifiable criteria. In essence, what is required of the employer in this respect is that it be able to objectively justify why a particular employee was selected for redundancy as opposed to another employee. Specifically, the employer must be able to demonstrate that a particular employee has been compared to others who might have been made redundant. Where redundancy arises, and no agreed procedure or custom is in place, the reasonableness of the selection criteria is usually focused on and tends to be assessed by the objective standard of the way in which a reasonable employer in these circumstances in that line of business, at that time would have behaved.

In Bunyan v United Dominions Trust (Ireland) Ltd [1982] I.L.R.M. 404 the EAT endorsed and applied the following view quoted from NC Watling Co Ltd v Richardson [1978] IRLR 225 EAT (ICR 1049)

“the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

I have considered the evidence of both sides presented to me.   I note that the Complainant was advised of and understood the process that was being undertaken and the business needs for same.

On a balanced assessment of the interactions between the parties surrounding the redundancy process, I find that while the Respondent went to the effort of a detailed selection process, the selection of the Complainant for redundancy was unfair for the following reasons:

The evidence before me was that the Complainant had a disciplinary history with the Respondent. Evidence was presented that the Complainant had an attitude towards his managers and he was not a cooperative colleague to work with. This was personal to him and considered in the scoring matrix.

I note that that the Complainant’s submissions via his Union on the selection process were not considered by the Respondent. His input on the process was not considered or responded to.   I note that the Respondent didn’t recognise his union, however they could have reverted to him directly on that matter and his proposals.

I also accept the Complainants submission that some of the criteria for assessment was not appropriate for scoring such as “attitude towards others”.

I also note the evidence presented to me of the supervisor who was responsible for the induction of workers and who dealt with the equipment on the sites received a higher score than the Complainant. This evidence did not indicate a fair scoring system was in place.

I was provided with no evidence to link the Complainants dismissal with his union membership.

As the Complainant is in employment I am of the view that compensation is the appropriate remedy for his dismissal. In determining the level of this, I am mindful of the need to take account of both the extent of the loss that is attributable to the ‘act, omission or conduct by or on behalf of the employee’ and the extent of the actions taken to mitigate any loss. Section 7 (2) (c) of the Unfair Dismissals Act 1977.

The evidence presented at the hearing was that the Complainant did source replacement work by the end of January 2019, but he was not happy with this work or its payment. Section 7 (1) (c) refers to the Complainant incurring financial loss attributable to the dismissal as is just and equitable having regard to all the circumstances. In view of same, a pro-active approach to mitigation of loss is required especially in this time of low unemployment.

I note that the Complainant received a redundancy payment of €9,336.00. Based on same the Complainant did not incur a financial loss arising from his dismissal.   He had sourced replacement work by the end of January which paid 60% of his net salary with the Respondent.   He chose to resign from that employment and wait for his other employment to commence.

The Complaint is well founded.   I award the Complainant 4 weeks gross remuneration which amounts to a gross payment of €2,688.00.

Unfair selection for Redundancy. Objective criteria. Fair selection