Complainant

Respondent

Anonymised Parties

A Former Employee

An Automotive Business

Representatives

Conor Quinn JOHN J QUINN AND CO

Conor Hannaway SHRC Limited

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-00031508-001

10/10/2019

The Complainant stated that she was unfairly dismissed with effect from the 28thJune 2019 in that she was notified on that date that her fixed term contract was not being renewed and subsequently, that she made redundant as a result of an unfair selection process. The Respondent disputes the complaint and maintains there was a genuine redundancy. The Complaint Form was received by the WRC on the 10th October, 2019.

In accordance with Section 6 (1) of the Unfair Dismissals Act [1977-2017], the Respondent outlined its position that it had not unfairly dismissed the Complainant. The Respondent stated that it designs components for the automotive industry and that it employs 370 people. There was a change of ownership in October 2018. In June 2019, the Respondent stated there was a downturn in business which required action to control costs. In that regard the Respondent stated that it was aware of the need to take a cautious approach to effect a medium to long term reduction on costs. The Respondent commenced a process of communication with staff so as to effect a reduction in labour costs which planned measures included cessation of recruitment of direct staff, re-alignment of shifts, elimination of overtime working and a limited number of redundancies were also planned.

Whilst initially the intention was not to renew the contracts of fixed term employees, the Respondent stated that policy decision was changed so as to ensure that permanent employees and fixed term employees were treated the same. In that regard short-term extensions of fixed term contracts – including that of the Complainant’s – were granted so that the employees would remain in employment until a redundancy selection process was completed. The Respondent stated that objective criteria were established to ensure all employees were treated the same.

The Respondent outlined that the Complainant had commenced employment in April 2017 as a fixed term employee and that her contract was renewed on a number of occasions up until July 2019. The Respondent stated that the Complainant was not given a Contract of Indefinite Duration (CID) because of the uncertainty in the business. The Complainant’s fixed term contract was due to expire on 5 July 2019. The Respondent’s HR manager outlined the following sequence of events:

·       On 28 June 2019, the Respondent’s HR Manager wrote to the Complainant and advised that her fixed term contract would not be renewed when it expired on 5 July 2019 “due to current business needs”. The letter also offered the Complainant a shortfixed term extension of her contract until 19 July 2019 when her final pay would be processed;

·       A town hall meeting of all staff was held on 5 July 2019, where staff were advised that there would be a small number of redundancies, that the decision not to renew fixed term contracts was being revoked and that objective criteria/an objective evaluation process would be used to determine the redundancy selection process;

·       On 9 July 2019, the Respondent invited the Complainant to a meeting with its HR manager and the Director of Operations wherein she was advised that as a result of the objective evaluation process her employment would cease effective from Friday, 19 July 2019. The Complainant was also advised that she could receive a copy of the evaluation documentation. The Respondent stated that the Complainant was offered and accepted garden leave from then/9 July until her notice expired on 19 July 2019.

The Respondent stated that following the town hall meeting of 5 July 2019, objective criteria were determined by its team leaders for redundancy selection purposes. The Respondent provided a copy of the criteria and the results of the Complainant’s evaluation. Based on the criteria, the Respondent outlined that the Complainant’s scores were broken down as follows: 2/5 for work performance which represented 40% of total marks; 4/5 for skills and competencies which represented 30% of total marks; 4/5 for disciplinary record which represented 10% of total marks; 5/5 for attendance record which represented 10% of total marks; and 3/5 length of service which represented 10% of total marks. The Respondent applied a weighting to the Complainant’s score of 1-4 to reflect its relative importance, the company’s requirement to meet its primary business needs and targets and maintain a balanced workforce. Following the application of the weighting, the Complainant was awarded a final score of 32. The score sheet was dated 9 July 2019.

The Respondent stated that an on-going contract advertising vacancies online was an error and should have been cancelled. It stated there were no new general operatives recruited during that period. The Respondent also stated that were no alternative opportunities in the business for the Complainant to take up and that any proposed consultation in that regard would have been just a box ticking exercise. The Respondent stated that the Complainant did not have an unblemished disciplinary record and that her work performance didn’t meet the requirements which was reflected in a 2 out of 5 score in the evaluation criteria.

The Respondent’s MD gave evidence in relation to his role in the development of the business, exit from the company in 2013 and involvement post the takeover in 2018. The MD outlined how the business was dependent on various projects and therefore subject to change or the impact of the market at any particular time. The MD referred to a previous re-structuring and stated that the same evaluation criteria had been used in 2008/2009 which he stated were fair, objective and not arbitrary. The MD stated that in 2019 he could see there would be significant over staffing after the summer vacation period shut down. He stated that he did not wish to let employees go given their training and product knowledge but that he also had to have regard for efficiency. The MD confirmed the Respondent did not operate a Last In First Out policy (LIFO) for selection. He stated that about ten people were informed on 9 July 2019 that they were being made redundant. In relation to the town hall meeting of 5 July 2019, the MD stated that he addressed the meeting himself, that he was determined to be open and transparent with the employees and use the same objective criteria for all employees. He stated that there was a positive reaction at the meeting and that he got a round of applause for the approach outlined. The MD stated that it was a difficult time but that since then, the business has continued successfully, that it was awarded new business contracts and has started recruiting again. The MD clarified that the Respondent also continues to recruit persons to professional roles such as engineering and management roles. He stated that the Respondent also uses agency staff.

The MD was cross examined by the Complainant’s representative on the Respondent’s redundancy policy, and he referred to the pre-transfer employee handbook. The MD was also questioned on his statement that he knew there would be over staffing and redundancies coming and on the continued advertising of positions.  In response the MD referred to the ebbs and flows of the business and the ending of particular contracts on which the business was dependent. The MD stated that he could not understand why the Complainant was not at the meeting of the 5th July 2019 or why she wouldn’t have heard from her colleagues about the prospect of redundancies. In response to questioning, the MD clarified that staff were notified of the meeting of the 5th July by the team leaders. In relation to the evaluation process, the MD clarified that the process was conducted between the 5th and 9th July 2019, that during that time approximately 200 evaluations were done and that the twenty persons with the lowest scores were made redundant. The MD also clarified in response to questioning that the Complainant was not issued with a termination letter at the time.

The MD stated that he did not know the Complainant personally and that her evaluation was completed by two shift managers. The MD was also questioned on the Complainant’s production line and the particular job she did, to which he explained that up to fourteen persons could be working on a production line and that the general operatives received training and are interchangeable and transferable in terms of the allocation of work. The MD stated that he did not know who took over the Complainant’s role, that employees worked in teams/cells and generally rotated. In relation to the Complainant’s disciplinary record, the MD clarified in response to questions that she had been spoken to “informally” in relation to her work performance and that this discussion would have taken place with her cell leader.

The HR Manager gave evidence. In relation to the rolling advertisements for general operatives during the summer of 2019. The HR Manager clarified that any responses to these ads were lodged with the adverting portal and that the Respondent would have to log in to receive them. The HR Manager stated that recruitment of general operatives commenced from the end of September 2019.

The Respondent was questioned on why the Complainant was not contacted when recruitment of general operatives began in September 2019 to which the MD replied that the Complainant could have applied for a position. 

It is the Respondent position that it had no alternative but to engage in a reduction of labour costs including a small number of redundancies in the interests of the viability of the business. The Respondent maintained there was a genuine redundancy and provided statistics demonstrating that its employee numbers were reduced on a month by month basis from 390 in May 2019 to 335 in October 2019. The Respondent stated that its redundancy policy was communicated to all staff at the town hall meeting of 5 July 2019 and that it represented a fair and transparent redundancy selection process and had been successfully utilised on a previous occasion.  Further, no differentiation was made between fixed term and permanent employees. The Respondent took issue with the Complainant’s credibility in relation to her purported lack of knowledge of the employee handbook,  the meeting of the 5th July 2019 and/or her being aware of what took place at that meeting and submitted that the Complainant’s explanations and account of developments was neither fair nor accurate.  Accordingly, the Respondent disputes and rejects there was an unfair dismissal.

The Complainant stated that she commenced employment as a general operative on 10 April 2017 on a three-month fixed term contract. She stated she received a further six-month contract and that no further contracts were issued to her. Accordingly, it is the Complainant’s position that she became a full-time employee by operation of law. The Complainant maintains that she never received the company employee handbook or redundancy policy. The Complainant stated that she did not receive any further contract from the Respondent after the transfer of undertakings which took place in October 2018. 

The Complainant stated that her employment was terminated by way of letter dated 28 June 2019 from the Respondent and that she was shocked to receive that letter in relation to the non-renewal of her fixed term contract.

The Complainant described her work and stated that she worked with another employee at a specific machine. The Complainant stated that she had been trained to operate this machine and thought she was being kept on in the company as no one else was trained on this machine. The Complainant maintained that this other employee had only 12 month service but yet was kept on by the Respondent and remains working in the company. The Complainant stated that the Respondent did not operate a last in, first out policy.

The Complainant stated that she requested copy of the Respondent’s redundancy policy including the criteria for redundancy selection, but this was not provided. The Complainant stated that she could not attend the staff meeting which took place on the 5th July 2019 due to a family commitment and that she informed her cell leader of this. The Complainant stated however, that she heard that the Respondent was keeping some employees and letting others go. 

The Complainant stated that the only meeting she attended was on the 9th July 2019. The Complainant recalled that on that day she was putting parts into trays when she was told to get her stuff and attend the meeting, that she did not know the purpose of the meeting in advance nor was she advised to bring any person with her.  The Complainant stated that there were no minutes of that meeting. The Complainant stated that she could not “really remember” what was said to her at the meeting but she said she was not told about redundancy but rather that her contract was not being renewed and that she could go home. She stated that there was no mention of “garden leave” or severance payment. In that regard, the Complainant’s representative stated that “It seems the Respondent made (Complainant) redundant as she was paid a severance payment of €2506.23 in her final payslip on the 18 July 2019. She was never advised about any redundancy situation. The word redundancy was never mentioned verbally or in any correspondence’’. The Complainant also stated that she thought the severance payment was in lieu of holidays payment.

The Complainant also maintained that she was not informed about the evaluation process at the meeting on the 9th July and that the first she knew about the evaluation process was when she received documentation from the Respondent on the 17th August 2019 in response to her data protection request. The Complainant disputed the application of the evaluation criteria and her score of 32. In particular, the Complainant disputed she had a disciplinary record. In this regard, the Complainant stated that she had not been “pulled up on anything”, that she had never received a disciplinary warning and that she did not know what “informal disciplinary record” meant as recorded in the evaluation criteria. In relation to some absences, the Complainant provided evidence of attendance at medical appointments. The Complainant stated that she was never informed that her job performance would be used as a criteria in a redundancy selection process. She also stated that she was not told that she could appeal the outcome of the evaluation process.

The Complainant stated that the only letter she received in relation to the termination of her employment was dated the 5th September 2019 which was sent in response to correspondence of the 29th August 2019 from her Solicitor to the Respondent.

The Complainant maintained there was no redundancy situation as the Respondent continued to advertise for new general operatives on 20 June and 22nd of September 2019 – the Complainant provided copies of advertisements in that regard.

The Complainant was cross examined on her evidence by the Respondent’s representative including in relation to the following:

·       The reason why she considered she was made permanent in the absence of any contract to that effect;

·       The Employee’s Handbook and a document signed by the Complainant on the 10th April 2017 which stated at the top “I WISH TO CONFIRM THAT I RECEIVED A COPY OF THE CONDITIONS OF EMPLOYMENT HANDBOOK”;

·       Why the Complainant considered a LIFO policy would apply when this was not utilised prior to the transfer of the business in 2018;

·       The Complainant’s view of the transfer in 2018 in response to which she stated that staff who were worried about their jobs saw it as a “good news story”;

·       That it was not credible the Complainant did not know of the Respondent’s redundancy proposals following the town hall meeting with staff on the 5th July, 2019 and probable discussion with her colleagues;

·       That details of the evaluation process was placed on the Respondent’s notice board – in response to which the Complainant stated that she had not seen the document.

A former employee of the Respondent appeared as a witness for the Complainant. He gave evidence that he worked in the Respondent company from April 2014 to February 2018, that he was never furnished with a company/employee handbook and that he was never advised that his conduct or performance could be considered in a redundancy selection process. He stated that he had heard in his local social welfare office that the Respondent was hiring new general operatives. The witness was questioned on his evidence and he replied that he understood the Respondent’s recruitment in the Summer of 2019 was not part of a back to work or job seekers scheme.

It is the Complainant’s position that there was no genuine redundancy, that the Respondent confirmed in its evidence that it commenced recruiting in September, 2019 and that it was not plausible that a downturn resulting in the Complainant’s redundancy occurred within a two month period. Further the Respondent did not consider voluntary redundancies. The Complainant maintained that she was unfairly dismissed and/or unfairly selected for redundancy in the absence of any procedure and the application of fair procedures. She stated that the Respondent did not act reasonably in arriving at the decision to terminate her employment by reason of redundancy. She stated that she was never given the opportunity to put forward suggestions to save her job, do alternative work, engage in other training nor was she afforded a right of appeal. In relation to the Complainant’s score of 32 on the evaluation criteria, the Complainant stated that the onus was on the Respondent to show the cut off figure and the implications of a score of 32. The Complainant referred to copies of various correspondence she had received from the Respondent in response to her data request – and she disputed that she had received a number of letters in relation to the continued renewal of her fixed term contract. The Complainant cited the case of Derek Watters V C&F Automotive Ltd T/A Iralco [UD785/2014] in support of her position.

Section 6 (1) of the Unfair Dismissals Act [1977-2017] provides that: “Subject to the provisions of this section, the dismissal of an employee shall be deemed for the purpose of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal” - ie there is a statutory presumption of unfairness unless the Respondent employer can show otherwise and that there were substantial grounds justifying the dismissal.

Section 6 (4) of the Unfair Dismissals Act [1977-2017] sets out specific circumstances where the dismissal of an employee “shall be deemed…..not to be an unfair dismissal” and states:

“Withoutprejudicetothegeneralityofsubsection(1)ofthissection,thedismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal,ifitresultswhollyormainlyfrom……

                             (c) the redundancy of the employee,….”

Section 6(6) of the Act provides that:

“In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection [6](4)….. or that there were other substantial grounds justifying the dismissal”.

Section 6(7) of the Act provides that in determining whether a dismissal is unfair, regard may be had:

·       “to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

·       to the extent (if any) of the compliance or failure to comply…..with the procedure….or with the provisions of any code of practice….”

In terms of considering whether the dismissal of the Complainant was justified on grounds of redundancy, as provided for at Section 6(4) of the Unfair Dismissals Act [1977-2017], I must first consider whether a redundancy situation applied at the time and if so, whether or not it was fair that the Complainant was selected for redundancy.

Section 1 of the Unfair Dismissals Act [1977-2017] defines the term redundancy as follows:

“redundancy” means any of the matters referred to in paragraphs ( a) to ( e) of section 7(2)of the Redundancy Payments Act, 1967, as amended by the Redundancy Payments Act, 1971”

Section 7(2) sub-sections (a)-­­(e) of the Redundancy Payments Acts [1967-2016] outlines the circumstances where dismissal for redundancy can lawfully arise (I do not consider sub-sections (d) and (e) relevant to the present case). Sections 7(2)(a), (b) and (c) state as follows:

7(2) “…… 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 concernedthe 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…….”

The combined effect of Section 6 of the Unfair Dismissals Act [1977-2017] and Section 7(2) of the   Redundancy Payments Acts [1967-2016], is to place the burden of proof on the Respondent employer to show that the redundancy of the Complainant was the operating cause of the dismissal. In this regard, the Respondent must firstly demonstrate that the reasons for the redundancy came within the circumstances set out at Section 7(2) of the Redundancy Payments Acts [1967-2016], and secondly, must demonstrate the reasons were not related to the Complainant and and were fair and reasonable in all the circumstances. 

According to the Employment Appeals Tribunal in St Ledger v Frontline Distributors Ireland Ltd UD 56/1994 (reported at [1995] E.L.R. 160 at 161-162), change runs through each of the five circumstances set out at Sections 7(2) (a) – (e) of the Redundancy Payments Acts [1967-2016] and that “Change may also mean a reduction in needs for employees, or a reduction in numbers”.  I accept that the Respondent was entitled to restructure its business and to reduce its workforce as it considered appropriate having regard to operational requirements and financial considerations. Nonetheless, I am concerned that the Respondent does not seem to have been in a position to foresee or anticipate the downturn at an earlier stage and that the downturn lasted for only a relatively short period of time. In that regard, the Respondent confirmed it commenced recruitment for new general operatives in September 2019. I accept the Respondent’s explanations that the advertisements for general operatives in June and August 2019 were an error.

However, the Respondent has detailed in its evidence the impact of the downturn on its business from July 2019 – in terms of a pattern of reduced numbers of employees from 390 in May 2019 to 335 in October 2019 which represents an overall reduction of approximately 14%. Taking account of all the evidence and submissions and having regard to Section 7(2)(c) of the Redundancy Payments Acts [1967-2016], I am satisfied that a genuine redundancy situation existed with regard to the Respondent’s business in July 2019. In this regard, I am of the view, that where a company is dependent on various contracts, a redundancy situation can arise over a relatively short period of time and that there is no pre-determined length of time stipulated in order to render a redundancy situation genuine. Further, I am persuaded by the MD’s evidence that evaluations in respect of approximately 200 employees were conducted between the 5th and 9th July 2019 of which ten were advised they were being made redundant on the 9th July and that “In all 29 general operatives staff were made redundant at that time”. I also accept that the status of the Complainant whether a fixed term worker or whether she was at any stage entitled to a CID, is not material to the present case.

Having decided there was a genuine redundancy situation, I must now consider whether the Respondent has discharged the burden of proving that it was fair and reasonable the Complainant was selected for redundancy. In that regard, it is well established - as evident from the following selection of cases - that there are certain general indicia of a redundancy selection process which demonstrate fairness and reasonableness.

In JVC Europe Ltd v. Panisi [2011 IEHC 279]  Charleton J. stated that “It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”. 

In the case of Students Union Commercial Services Ltd V Alan Traynor [UDD 1726], the Labour Court stated that:

“In circumstances where redundancy is unavoidable, the employer is obliged to establish reasonable and objective criteria for selection and must apply those criteria fairly…… The Court was presented with no information to demonstrate that the Respondent carried out a thorough exercise to consider alternative options/suggestions. The Court can accept that had such an exercise being carried out it may not have identified any alternative positions suitable to the Complainant, however, it seems clear that no such exercise was engaged in. On that basis the Court finds that the approach adopted by the Respondent was somewhat arbitrary and therefore by reference to Section 6(7)(a) of the Act, the dismissal of the Complainant was unfair”

The case of Trinity College V Mr Iftikhar Ahmad [UDD2030] concerned the dismissal of a fixed term employee on grounds of redundancy. The Labour Court found that whilst there was a redundancy situation “sufficient efforts were not made to seek alternative roles….” and consequently the Complainant was unfairly dismissed. The Labour cited the following paragraph from the case of Gillian Free v Oxigen Environmenta [UD 206/2011] wherein the EAT  noted that:-

“when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy….where there is no agreed procedure in relation to selection for redundancy….then the employer must act fairly and reasonably”.

Based on the foregoing, it is clear that a transparent redundancy selection procedure and/or criteria is a key indication of a fair selection process as is consideration of alternatives to redundancy.  In the present case, I have considered the Complainant’s contract of employment signed on the 18th April 2017 which includes the requirement to observe “the Company rules and regulations as set out in the company rulebook” and also provides entitlement to invoke the Respondent’s Grievance Procedure. The contract also states that the Respondent’s Disciplinary Procedure “are available in the Company Terms & Conditions Handbook, a copy of which will be provided to you”.  I note that at the adjudication hearing there was considerable dispute as to whether the Complainant was ever furnished with this employee handbook – whilst the Complainant stated she did not receive it or had no recollection of ever receiving it, the Respondent provided copy of a document signed by the Complainant on the 10th April 2017 confirming that she had received a copy of the Conditions of Employment Handbook. On balance I am of the view, that the Complainant did receive this handbook in 2017 – ie prior to the transfer of the company to the Respondent.

I was furnished with copy of the employee handbook in an email from the Respondent dated 6th January 2021. In relation to redundancy, the handbook states:

“it is recognised by all employees, that business or economic circumstances can arise which may leave the company with no alternative but to declare a redundancy situation. Prior to declaring a redundancy situation, the company will explore all other viable avenues to overcome the difficulties but, where a redundancy situation occurs the company reserves the right to retain certain employees who, carry out special operations and who are considered to be key employees by the management, required to maintain an efficient operation.

In a redundancy situation, the company has no objection to exploring the possibility of seeking volunteers for redundancy. This will be subject to the standard company right to veto any volunteer stop where a volunteer comes from a key skill area, notwithstanding the right to veto the applicant, the company reserves the right to enforce an interim period prior to the employee being made redundant, where, the applicant can pass on their skills and experience to another employee who will take their place. Once the skills have been transferred, the company will then implement the redundancy and release the applicant.

The method of selection of employees in a compulsory redundancy situation will be determined solely by management and selection for redundancy will take place on the basis of an assessment of business needs by management”

Having regard to all of the foregoing and the requirement for a transparent and fair selection process, I have come to the following conclusions:

·       The employee handbook states that management will determine the method of selection of redundancy. Whilst I accept from the evidence adduced at the adjudication hearing that the Respondent undertook cost reduction initiatives, I am not satisfied that it explored alternatives to redundancy such as re-training or voluntary redundancies  – notwithstanding that the latter is specifically mentioned in its own policy. In this regard, in its evidence, the Respondent stated that “There were no alternative opportunities in the company and a consultation process would not have been authentic and have been solely for procedural purposes”  - ie a box ticking exercise. Whilst the Respondent’s position in this regard may well have proved to be correct, I am of the view that the failure to consult the Complainant about any potential alternatives to obviate the need for her redundancy was unfair and constituted a failure to engage with the Complainant about her own redundancy;

·       In relation to the evaluation process utilised by the Respondent to determine who would be made redundant, the Respondent has stated that the same evaluation process was utilised in a previous redundancy situation, that staff were appraised at the town hall meeting on the 5th July 2019 that objective criteria were to be utilised and that a copy of the evaluation criteria was placed on the Respondent’s notice board. Notwithstanding, I am persuaded by the evidence of the Complainant that she was unaware of the criteria being utilised and that she was not consulted about any aspect of the criteria prior to the decision to terminate her employment on the 9th July 2019. Consequently, I am satisfied that the Complainant was denied the opportunity to query or dispute any of the criteria or the interpretation put on them prior to the decision to terminate her employment.  For example, the Complainant did not have the opportunity to query her score of 4 for an informal disciplinary record. In this regard, I find the Complainant’s evidence credible and persuasive that she did not even know she had a disciplinary record let alone have been alerted by the Respondent to the possibility that any such record would constitute a criteria for selection in a redundancy situation.  Whilst I note that the employee handbook includes at paragraph 35 “Normal Disciplinary Procedures” there is no reference or provision dealing with the creation of an “informal disciplinary record” as mentioned in the redundancy selection evaluation and I have not been furnished with any records in relation to this.

Similarly, the Complainant has stated that she was never spoken to or taken to task about her work performance. Whilst I note from various letters extending the Complainant’s fixed term contract – (noting also that the Complaint has disputed receiving some of these letters) – the statement that “Your position and your performance will be reviewed periodically” I have not been provided with documentary evidence of any such reviews in terms of when or how they were conducted, or the outcome and the Complainant continued to be employed. In circumstances where 40% of the total mark in the evaluation process was based on work performance and that the Complainant received 2/5 in this category, I am of the view that the Complainant should have been put on notice in a very clear manner of any issues with her work performance, the potential consequences of this for her in a redundancy situation and also, she should have been afforded the opportunity to query such scoring prior to the decision to terminate her employment. The Respondent has stated that the Complainant was advised that she could receive copy of the evaluation documentation – and subsequently she did – but in my view, this did not satisfy the requirement for adequate engagement with the Complainant about the evaluation criteria prior to the decision to terminate her position.

­

From the evidence adduced in relation to the manner in which the evaluation process was conducted, I am satisfied that the evaluation process lacked transparency and fairness. A similar finding was made by the Labour Court in Tech Summit F5 Digital Media Communications Ltd V Krissie Lundy [UDD219] on the basis that:

“….In the view of the Court, this absence of knowledge on the part of the Claimant deprived her of an opportunity to properly address the matters under consideration in the selection process and deprived her of the opportunity to make proposals as regards her future role in the company or to otherwise make a coherent casefor her retention in employment. In thosecircumstances the Court concludes that the procedures adopted by the Respondent ….. were so lacking in transparency and fairness as to mean that the Court cannot accept that the dismissal of the Claimant arose through ‘the redundancy of the employee’…..”

·       I have considered the evidence from the parties in relation to the dismissal process and I am satisfied the process did not accord with fair procedures.  The Complainant stated that she could not attend the town hall meeting on the 5th July 2019 and the Respondent stated that it was not plausible she was unaware that redundancies were under consideration. I have also considered the Complainant’s evidence as to how she was notified of the meeting of the 9th July on the day of the meeting. Having considered all the evidence and submissions in relation to the 9th July 2019 meeting which purpose was to advise the Complainant that her employment was being terminated, I am satisfied that in the absence of prior written notification of the meeting to the Complainant or some form of specific prior engagement with the Complainant about the prospect of her own redundancy, she was not properly notified of the purpose of this meeting and therefore did not have an adequate opportunity to prepare for the meeting. Nor was the Complainant afforded the opportunity to obtain representation for the meeting of the 9th July 2019. From the evidence adduced I am also satisfied there are no minutes/record available for the meeting of the 9th July 2019. Further the Respondent has confirmed there was no termination letter issued to the Complainant at the time and that this was only issued on the 5th September 2019 in response to a letter from the Complainant’s Solicitor. I am also satisfied that the Complainant was not afforded an opportunity to appeal the decision to terminate her employment.

Based on the foregoing and on all the evidence and submissions, I find that the Complainant was unfairly selected for redundancy and that she was not afforded fair procedures in the course of the process of terminating her employment. Accordingly, I find that the Respondent has not discharged the burden of proving that the dismissal of the Complainant was not unfair.

CA-00031508-001

For the reasons outlined, I decide this complaint is well founded and that the Complainant was unfairly dismissed with effect from the 19th July 2019.

Section 7 of the Unfair Dismissals Act [1977-2017] provides that redress may consist of re-instatement, re-engagement or compensation. In the present circumstances, I decide that compensation is the appropriate remedy and I note the Complainant has selected this redress option also. The Complainant is required to mitigate her losses and to adopt a proactive approach in obtaining replacement employment. In that regard, I have considered the evidence of the parties in relation to the Complaint’s efforts to find new employment and I note that she commenced in a new position on the 28th October 2019.  Prior to her dismissal the Complainant was earning a gross weekly wage of €450.80 – ie 40 hours/week @€11.27/hour. The Complainant provided evidence that her new gross weekly pay was €378.75 – ie 37.5 hours/week @€10.10/hour. The Complainant has already received a severance payment from the Respondent. However, taking account of the Complainant’s financial loss between the 19th July and the 28th October 2019 and the financial loss going forward, I award the Complainant the sum of €10,000 for the unfair dismissal which I consider to be just and equitable having regard to all the circumstances. For the avoidance of doubt, this award is made in excess of the severance payment already received by the Complainant.  This award is subject to such tax and statutory deductions as may apply.

Dismissal; Redundancy; Unfair Selection