Complainant

Respondent

Parties

Daniel  Duggan

IC Plus Ltd

Complainant

Respondent

Anonymised Parties

Warehouse Lead

Distribution Company

Representatives

Kevin Byrne Sound Advice Consultancy, Denis Hynes SIPTU

Ciaran Loughran & Paul Crowley Ibec, Martin Griffin, Sinead Griffin, Barry Estran

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-00041317-001

30/11/2020

The Complainant was employed as a Warehouse Lead from 23rd March 2015 to 21st July 2020. He was paid €634.62 per week. He has claimed that he was unfairly selected for redundancy, rendering the dismissal unfair. He has sought compensation. The Respondent has rejected this claim.

The Complainant was placed on temporary lay-off due to the impact of Covid on 23rd March 2020. On 10th April 2020 the Respondent wrote to the Complainant to advise that matters had deteriorated and that his lay-off would be extended a further eight weeks. In May 2020 the Respondent conducted a review of its business with forecasts of a 50 % drop in its business.  On 29th May 2020 he and another employee’s positions were placed at risk of redundancy. A consultation meeting took place remotely on 8th June and he was accompanied by his union official. On 16th June the Respondent wrote to him regarding any queries or questions he might have and invited him to submit any further ones. He did not submit any queries or questions.  On 19th June 2020 he was informed in writing by the Warehouse Manager that his position would be made redundant with effect from 21st July 202. He was given the right to appeal that decision to the Financial Controller. On 3rd July 2020 the Complainant emailed the Warehouse Manager setting out his concerns about the redundancy and strongly appealed the decision. On 8th July the Warehouse Manager emailed him to state that as no appeal had been made to the Financial Controller the redundancy was confirmed and advised him that he would receive a reference. On 10th July 2020 the Complainant’s representative emailed the Financial Controller with the same email as was sent to the Warehouse Manager pointing out that the delay in submitting the appeal was due to the representative being absent. On 13th July 2020 the Financial Controller replied that as the Complainant had not made the appeal within the time frame allowed it was denied. The Complainant’s employment ended on 21st July 2020 and he was paid all outstanding monies due. He was advised of the Respondent’s inability to pay the statutory redundancy he was advised to apply to the Department of Social Protection.

The Respondent has rejected the claim of unfair selection for redundancy. The Complainant was employed in a stand - alone position as Warehouse Lead. His position was put at risk and he was given the opportunity to engage on the process. Ultimately his position was made redundant on 19th July 2020.The Complainant was employed in a stand-alone position. He cannot claim that there were one or more persons doing like work to him who have not been made redundant.  They cited Barton v Newsfast Freight Ltd UD 1269/2005 in support. The Respondent utilised an external HR Consultant to ensure that the process was conducted in a fair and open manner. The Complainant was given the right to representation and the right of appeal. It was only when all alternatives to redundancy were explored, including an extended lay-off, that the decision to make the position redundant was confirmed. On 1st May 2020 while he was on lay-off he was invited to apply for a technical support role. The role itself did not qualify as a suitable alternative role, as he did not have the requisite skills or experience. It is clear that the circumstances which led to his position becoming redundant satisfy the criteria set out in the Act. The redundancy occurred solely because of a need for a cost cutting measure. The warehouse was targeted rather than other departments due to the drop off in business. It was decided that the reduced workload in the warehouse could be absorbed by the Warehouse Manager. It was decided that certain persons with specialist expertise had to be retained in the business. This redundancy cannot be deemed unfair as no selection criteria are relevant for the singular role in the company. The Complainant was made redundant due to a legitimate redundancy situation. The process was fair and reasonable in line with the legislative requirements.

1) Was the redundancy genuine

I note that the business suffered from the effects of the pandemic.

I note that the Complainant accepted that the business struggled financially.

I note that this was a stand-alone position and the position that the Complainant held was backfilled by the Warehouse Manager and other team members.

I note that this position was not filled for a period of 9 months at least.

I find that the business had experienced significant downturn as a result of the pandemic.

I find that the business was obliged to address its financial difficulties.

 I find that one other position was made redundant as well as the Complainant’s.

On the balance of probability, I find that this was a genuine redundancy.

2) Procedural Fairness

I note that the Complainant was placed on lay-off on 23rd March 2020 and that this was extended by a further eight weeks.

I note that his position was then placed at risk of redundancy.

I note that a consultation meeting was arranged and he was asked to make suggestions on alternatives to redundancy but that he didn’t.

I find that there was no evidence presented to this hearing of a meaningful examination of alternatives to redundancy.

I find that the wages subsidy did not have the desired effect of keeping him in his position.

I note that he was offered the right to representation throughout the process.

I note that he was offered the right of appeal, but it was denied because it was not made within the set time limit.

However, I find that he presented his appeal which the Respondent referred to as a “strong appeal” to the Warehouse Manager not the Financial Controller.

I find that this was an error on the Complainant’s part given the fact that he was represented.

However, I do not accept that he didn’t make the appeal on time. He appealed to the Warehouse Manager who could easily have handed the appeal to the Financial Controller.

I find that this was unacceptable and in doing so denied the Complainant his right to an appeal on a strictly technical point which was unacceptable given this set of circumstances here with his position was in danger.

I find that inviting the Complainant to apply for a technical role that he was clearly unsuited for to be a meaningless act and unacceptable.

Given those circumstances I find that the process lacked fair procedure and natural justice, which renders the dismissal by reason of redundancy unfair from a procedural point of view.

3) Grievance

I note that he raised a grievance and this was investigated by the Chief Executive and was not upheld.

I note that the Complainant was unhappy with the outcome and mediation was arranged but it didn’t take place due to the inability for face-to-face interaction.

I found no evidence that this grievance influenced the decision to make the Complainant’s position redundant.

Unfair selection for redundancy