Complainant

Respondent

Anonymised Parties

A Repair Processor

An aircraft repair company

Representatives

  Self Represented

Sinead Mullins 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-00032019-001

01/11/2019

The Complainant was made redundant and claimed that his selection for redundancy was unfair and his dismissal was therefore unfair.

The Complainant relied heavily on his claim form as his submission at the Hearing and made no further written submission. He made limited further verbal submissions.

The Complainant was employed from February 18th 2018 to October 4th 2019. On November 1st2019 he submitted a claim to the WRC for unfair dismissal following his redundancy.

The Complainant worked as part of a Service Team. He commenced employment on a 11 month temporary contract which expired on January 18th 2019. Over 80 employees were hired after the Complainant was hired.

The Complainant was one of three Repair Processors to receive training on a specific robotic blaster, an important new technology introduced into the plant.

On September 29th 2019,  the Complainant was informed by his Supervisor that he was being let go with immediate effect and his notice would be paid. His employment was terminated on October 4th 2019, by letter received on September 30th 2019 stating downsizing as the reason for his termination. This letter stated his contract was being terminated although his contract had expired since January 2019, nine months previously.

The Complainant accepted that there was a reduction in his areas work orders in the weeks previous to his dismissal and one team in the company were put on short time. The Complainant advised the Services Team, which he was part of, was a job shop and had not been put on short time. The Complainant worked overtime in the previous four weeks to his dismissal and the Services Team worked overtime on each Saturday in the weeks prior to his dismissal and this continued after his dismissal.

The Complainant stated two employees had joined the Services Team from other parts of the Plant and who had approximately 10 to 12 months less service than the Complainant and these were brought in to fulfil a long term need in the Services area. Both were still in the area when the Complainant was dismissed.

The Complainant maintained he was a full time employee and questioned why he was not allowed take one of the roles undertaken by the two employees with less service.

The Complainant maintained there were about 40 staff with less service than the Complainant still employed when he was dismissed.

The Complainant had requested additional training by email and he felt this was used against him in the decision to terminate his employment.

The Complainant was not a member of the Trade Union at the Company.

 The Respondent is a leading independent provider of maintenance, repair, overhaul and modification services for civil aircraft and engines.

The company has been significantly impacted by the Covid-19 crisis. Year to date, they have reduced their head count by 24 people and on 6 August 2020 they commenced a collective redundancy process which is expected to result in up to a further 52 redundancies, with the introduction of other cost saving measures and changes to work practices.

The Complainant commenced employment with the Respondent on 18 February 2018, initially employed on an 11-month fixed-term contract under the title of Repair Processor, working within the Services Team. The Complainant’s contract was due to expire on 18 January 2019 and his contract was extended to 18 December 2019.  The Respondent experienced a downturn in business and as a result of the subsequent downsizing, the Complainant was made redundant and his employment ended on 04 October 2018, some 10 weeks before the natural expiry of the contract was due to end.

The Respondent rejects the assertions made by the Complainant in his submission regarding his contract extension. The Complainant’s contract was due to expire on 18 January 2019. On 4 January 2019, the HR Manager, emailed the Complainant’s Supervisor advising that the Complainant’s contract was due to expire and also copied her colleague in HR, who was responsible for the administration of both contracts and contract extensions. On 15 January 2019, Operational Supervision asked for ‘another fixed term contract here as per our previous discussions’, referring to the renewal of the Complainant’s contract. Operational Management responded within 2 hours stating that they had signed off on the extension earlier that morning.

The Complainant was aware his contract was being extended. The Complainant had been advised by a Supervisor that he was being issued with a contract extension and not being made permanent. During the conversation with the Supervisor, the Complainant raised the issue of another employee being made permanent previously and why he was not being made permanent. Therefore, the Complainant was fully aware that he was not being made permanent.

The HR Administrator, then prepared the standard contract extension letter. There were a number of other contracts extended in December and January. The other staff members received their letters. The Complainant is again incorrect in his submission when he states that he was the only one to receive a contract extension letter, when the rest received contracts. A sample of the other letters sent, with names redacted, where submitted.

The Respondent was not aware that the Complainant had not received his extension letter, despite knowing one was to be issued as he accepts himself in the submission. The Complainant never brought this issue to the attention of his Supervisor or HR. When the Respondent became aware of the issue, they reviewed the Complainant’s HR file and found an envelope with two unsigned extension letters on file. It is believed that the envelope with the letters were drafted to be issued to the Supervisor to give to the Complainant. However, in a filing error the ended up back with HR and the envelope was filled in the belief that the letter had been signed and returned. The Respondent has since changed its practice in this regard.  This was all confirmed by HR to the Complainant in a letter dated 2 October 2019.

In early 2018 the Respondent anticipated that there may be an increase in order intake for a number of products. The names of these products have not been included in this Decision for commercial reasons.  There was also a requirement to reduce turnaround time on product. 

As the Respondent is not a manufacturing but in fact a repair business, there is never a guarantee that expected levels of work will materialise.  However, if there is a belief that an increase in volume may arise, the Respondent must decide in advance to size up the Product Teams and Services areas.  This allows for adequate time to train people in anticipation for a future increase in workload.  It was not clear if this increase in intake would materialise and be sustainable, therefore the Respondent increased headcount through the utilisation of fixed term contracts. 

One of the measures taken at this time of ramp up was to implement a night shift in the Services Area for the first time.   The Complainant was one of two people hired to work on the night shift and to be trained in both Chemical Cleaning and Plating. 

The circumstances giving rise to the Complainant’s eventual redundancy emanated from a downturn in business and reduction in order intake.  To provide perspective, the reductions across relevant product lines are detailed below:

·       (A)  capacity reduced from 220 parts per month (ppm) to 120 ppm;

·       (B)  capacity reduced from 440 ppm to 170 ppm;

·       ( C ) forecasted intake did not materialise.

(Note Departments redacted her and afterwards by the Adjudicator for commercial reasons).

The function of the Service Team, where the Complainant worked, is to provide services/processes to each of the Production Teams. Therefore, if a Production Team increases its volumes this in turn will increase the volume of work in the Service Team. Consequently, when there is a decrease in the Production Team, there is less work available for the Service Team.

This reduction in the facility’s overall workload meant that the Respondent needed to reduce their headcount across the teams by a total of 6 people, broken down as follows:

·       Team A  – Reduce headcount by 3

·       Team B  – Reduce headcount by 2

·       Services Team – Reduce headcount by 1 (The Complainant’s team)

The established redundancy selection method on site is determined by where the reduction in headcount is required (effected area) and applying LIFO subject to the retention of key skills. This method has been in place since a 2003 Labour Court recommendation. Therefore, it can occur that those with shorter service are not selected for redundancy if they are in an unaffected area of the business or where they have key skills.  

The Services Team is broken down further across a number of specialised functions: Chemical Cleaning; Coating; Vacuum Furnaces and DFIC Cleaning.  The Respondent outlined its operational requirements in the Services Team and in line with the anticipated increase in volume detailed above, the Respondent sought to increase the headcount in ‘Chemical Cleaning’ by two people, one of whom was the Complainant.  This was done through the introduction of a night shift and hiring two staff on fixed term contracts initially, the second employee was made permanent in November 2018 and had longer service than the Complainant.

The subsequent downturn saw a reduced loading for two areas which resulted in the Respondent having to reduce their headcount on the Chemical Cleaning night shift from two people to one person. The Complainant, who worked in ‘Chemical Cleaning’, was selected for redundancy as the other employee was a permanent member of staff who had longer service than the Complainant.

There was another colleague on a fixed term contract within the Services Team, this employee worked in the ‘Coating Area’ on night shift, he had longer service than the Complainant and his role was not identified for redundancy and there was no requirement to reduce headcount in the ‘Coating Area’.

In his submission, the Complainant alleges that two other colleagues moved to the Services Team, two weeks before he was made redundant. These two colleagues were not headcount associated with the ‘Services Team’, rather they were members of another Team, who were brought in to train up in ‘Vacuum Furnaces’ as additional cover in emergencies. Following completion of this training which was 8 months in duration, the two employees moved back to their own Teams when work became available but the completion of the training aligned to the Covid –19 crisis. At no point was the headcount for the two individuals transferred from their cost centre to the ‘Services Team’ cost centre. However, their volume of work was also subsequently impacted, and they were both made redundant in July 2020.

On 27 September 2019, the Services Team Supervisor met with the Complainant advising that as a consequence of the significant downturn in order intake, the company was required to reduce headcount. The Complainant was aware and has accepted in his submission that the order intake was quite low. The Complainant was paid in lieu of notice. The decision was later confirmed in writing to the Complainant.

The Respondent followed its established redundancy selection process per the Labour Court Recommendation.

Both an Operations Manager and HR Manager spoke with the Complainant regarding his selection for redundancy. The reasons for selection were outlined to the Complainant and HR responded to questions which the Complainant had pertaining to his contract of employment and wrote to him on same.  Regrettably, the Complainant was not accepting of these responses.

Notwithstanding same, it remains the case that the Respondent followed its established redundancy selection process at a time where is faced significant business challenges and where they were required to reduce headcount.

Between August and December 2019, the company reduced its workforce across those areas from 178 to 165. Those with longer service than the Complainant were also made redundant during this period.

The Complainant alleges that he was made redundant as a consequence of an email sent in August 2019, this is denied. The Complainant’s email and the company response is wholly unconnected with the Complainant’s selection for redundancy, which is based on a tangible reduction in work and a transparent process for selection. For context to the email, training is a core element of the work carried out within the Respondent. Owing to the safety critical nature of the work, it can be a lengthy process especially where there is an inconsistent supply of particular parts to allow training to take place. Training is often subject to part availability but also the availability of colleagues to train other colleagues, as the training must be signed off by the appropriately qualified trainer. This can be impacted by sick leave, annual leave or production demands.

The Respondent had provided specialised training to the Complainant in the form of Auto Blaster training, which not many colleagues had been trained and the machine used is a very expensive piece of machinery. However, it is not always possible to meet the training demands or requests of employees for the reasons outlined above. The typical periods for training within the Services Team vary in each skill set from 8 to 12 months.

On 23 January 2019, the Complainant emailed his Manager, querying his training schedule. His Manager responded explaining that the Complainant’s training had been delayed as a colleague  needed further plating exposure, had to sit a written exam, attend an external course and number of APU’s were insufficient to allow training to be completed. Unfortunately, minimal training took place between January and March 2019, due to the necessary employees being out on sick leave, extended leave and attending training in the UK.

The Respondent on advice from their training facilitator (POFA) ceased the practice of the 8 week training cycles as they didn’t find the time frame effective as the time gaps were too large and the ad-hoc nature of the necessary parts to complete the training.

On 22 August 2019, the Complainant emailed his Manager, querying when he would be trained on the chemical clean process. On 30 August 2019, the Manager responded outlining, in some detail, why the Complainants training was not happening.  The Complainant responded to the Manager, thanking him for his response. The Complainant raised no further issue at this juncture. The engagement was in line with normal standard practice and had no impact or relevance to the Complainant’s subsequent redundancy.  The Complainants reply was as follows “Thanks for the information. I appreciate the reply and the update on the plans."

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides: 

"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 one or more of the following: 

…. (c)   the redundancy of the employee... “ 

The five definitions of Redundancy set out at Section 7 (2) of the Redundancy Payments Act 1967, as amended by Section 4 of The Redundancy Payments Act 1971 and Section 5 of The Redundancy Payments Act 2003, provides: 

"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- ...... 

(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) or to be done by other employees or otherwise...”

The Respondent suffered a significant downturn in order-intake prior to the arising of the redundancy situation in question.  A consequence of this downturn meant that the Respondent was thereafter forced to reduce its labour requirement.

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

“(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 . . .

. . . (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.

Therefore, it can be said that an employer and thus the Respondent must abide by its existing redundancy process.  The Respondent has a long-established practice of operating a “Last in, First out” (“LIFO”) subject to the retention of key skills selection method when faced with an unavoidable redundancy situation and accordingly, saw it as reasonable to again abide by this practice in the instant case.  This practice of selection is well established and has been upheld in case before the EAT, WRC and Labour Court. In support of its position the Respondent refers to the case of Maloney v Comans Wholesale, UD195/2010, wherein the Tribunal found in favour of the company stating

“The Tribunal notes that the process and procedures were lacking and the financial position of the respondent was not opened to the Tribunal. However, the ultimate decision for the Tribunal is identifying the relevant sub function to which the redundancy applied. The Tribunal feels the appellant did not establish that GC did not belong to the accounts receivable department. LIFO was applied within the sub function and because the appellant had the least service the selection for redundancy was fair in all the circumstances.”

In this instant case, the Respondent was required to reduce its headcount within the Chemical Cleaning Team, it had previously introduced a night shift for Chemical Cleaning to meet demand and they hired two additional resources, the Complainant and a colleague. The colleague had longer service than the Complainant. The subsequent downturn in work meant the Respondent had to reduce their headcount on the Chemical Cleaning night shift from two people to one person. The Complainant, who worked in ‘Chemical Cleaning’, was selected for redundancy using he established method  as the other employee  had longer service than the Complainant.

Whilst the Act makes specific provision for fair selection in a context of established custom and practice it could also be said, as a matter of common sense, that an obvious means by which an employer can demonstrate the fairness of a dismissal is by reference to the application of a transparent and sound selection process.  The Respondent submits that the method applied was not only established by way of custom and practice, but also represents an objective, transparent and sound selection process

The Respondent was reasonable in all of the circumstance, while the decision to make the Complainant redundant was difficult for the Complainant, the decision was clearly made as a result of economic necessity and there was no ulterior motive in the selection. The Respondent refutes that the Complainant was selected for redundancy due to the email of August 2019 and contends that the redundancy was solely a cost-cutting measure and the Complainant’s enquires around training formed no operative consideration in formulating the decision to make the Complainant redundant. It was the role, and not the person, that was made redundant.

In light of all of the above, the respondent asserts that it is clear that the redundancy of the complainant was procedurally fair in all respects.

The Respondent raises the issue whether the Complainant has effectively mitigate as per Section 7(2) (c).

The Respondent refers to Sheehan Continental Administration Co, in which the EAT held that

“a claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work. It is not enough to inform agencies that you are available for work, nor merely to post an application to various companies seeking work. The time that a claimant finds of his hands is not his own, unless he chooses it to be, but rather to be profitably employed in seeking to mitigate his loss”.  

In line with Burke v Superior Express Ltd , the Complainant also has a responsibility to expand his job search beyond her field of expertise, and the standard in demonstrating same in a high one.

It is the position of the Respondent that they have acted fairly and reasonable in selecting the Complainant for redundancy and we would ask that you find in favour of the Respondent.

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 Law.

“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.

A number of judgements were considered by the Adjudicator in arriving at my decision.

Mainly, the Looney v Looney, UD83/1984 in which the Eat referred to its role as “to consider, against the facts, what a reasonable employer would have done”.

Secondly, Bunyan v United Dominions Trust (1982) ILRM 404 that states “the fairness or unfairness of a 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”.

 It is clear in this case that the Complainant was dismissed as a result of redundancy but his primary case was that he was treated unfairly in the selection for redundancy and therefore he claimed his dismissal was unfair.  He also alleged that as he requested additional training by email that this email was used against him in the redundancy selection process.

At the outset of the Hearing the Respondent objected to any recordings being introduced that the Complainant made covertly with Respondent staff. The Complainant agreed to this objection.

The Respondent, on questioning, stated no one with less service than the Complainant was made redundant in the Complainants area of work. They also stated that the provision of the renewal of the Complainants contract was an administrative error and in no way disadvantaged the Complainant and had no material effect on the redundancy selection process. They stated that had the letter been issued the Complainants fixed term contract would have elapsed in a number of weeks thus negating the reason for a redundancy. Again, on questioning, the Respondent stated that the emails the Complainant referred to as being prejudicial to his selection for redundancy had no influence on the redundancy selection and the evidence showed that the Respondents Line Manager responded favourably to the email and that there were significant operational reasons why the additional training could not be given to the Complainant at the requested time. It should be noted the training time periods at the Respondents business are quite significant. The Complainant also questioned why one particular employee had been given more training than the Complainant but the email evidence presented showed the Respondent had sound operational reasons for these decisions.

The Complainant alleged that the Respondent has hired people since he was made redundant but the Respondent denied this stating no one has been hired since the Complainant was made redundant and that further significant redundancies have been implemented since the Complainant was made redundant due to the downturn in the aviation industry.

At the Hearing the Complainant introduced a number of named staff who were trained instead of him, thus he stated diminishing his skill set growth opportunity. In all instances mentioned the Respondent provided sound business reasons for their decision making. The training is highly complex and skilled and the placement of an employee on specific training seemed dependent on a number of factors, in particular, business need, existence of the skills in other staff, making an employee available for the training, availability of Trainers, absence and sickness and ensuring cover for the employee commencing training was available etc. The Respondent stated the Complainants emails questioning the selection for training were just seen as an ordinary day to day operational email and had no role in the redundancy decision making process and was not prejudicial to his selection for redundancy.

The Respondent presented a Labour Court Recommendation, dated November 24th 2003, to the Hearing which governs how the Respondent has selected for compulsory redundancy since that date. The Complainant was not a member of SIPTU but the Recommendation was accepted by SIPTU and applied since that date. The Labour Court Recommendation stated that selection for redundancy should be based not solely on the last in first out principle but that skill retention in key skills/areas should also a key determining factor in selection for redundancy. The process of redundancy selection used by the Respondent clearly complies with Section 6 (3) b above and “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,”

In this case the Respondent had an agreed redundancy process with the largest Trade Union in the company, one which was the outcome of an industrial relations process culminating in a Labour Court Recommendation and the Respondent made the redundancy selection based on the criteria in that Recommendation.  The Complainants case that he was a permanent employee has no basis in law and indeed his fixed term contract would have ended shortly after he was made redundant thus allowing the Respondent to terminate the Complainants employment on that basis alone.  The Complainants rationale that if the Complainant had been trained in another area, which could have taken up to a year, and therefore he would have been in a different Department of the company that did not experience the need for redundancy is moot as that training was neither required by the Respondent or capable of being provided for operational or time reasons. The claim that staff with shorter service in the Department was also not valid as the two staff mentioned were only temporarily transferred to the Complainants Department and indeed, unfortunately, have also been made redundant a number of months after the Complainant was made redundant. The claim that other people were getting preferential treatment in training was also not supported by the evidence supplied to the Hearing.

For the reasons outlined above, I find that the Complainants dismissal was fair and his claim fails.