ADJ-00030876

Complainant

Respondent

Parties

Colin Dominic  Kearns

Ata Tools

Representatives

Louise O'Byrne Arthur Cox

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00041131-001

18/11/2020

As a result of slump in business arising from the Pandemic; sales declined significantly. The Irish business  sales in the 2nd  quarter were down 43%; the US business was down 52% and the UK business was down 53%. In the 3rd quarter sales continued to be much lower than would normally be the case.

The business had to adapt to these tough business conditions and introduced a number of cost cutting measures such as pay cuts, no overtime and redundancies.  Inevitably this meant that shifts were dropped, and crews adjusted based on the much lower volumes.

The company selected the employee based on an objective and impersonal matrix that evaluated the employee fairly. He was selected because of his scores relative to others.

The employee argues that the process was not impersonal, and he was chosen because he was outspoken. He had much longer service than those who were retained. There was little or no consultation regarding the matrix used to rate employees and select for redundancy. The employee was willing to be redeployed and to take a part-time role. The company used the downturn as an opportunity to target him for a sham redundancy. No alternatives were considered, even though he was more skilled than others and could have been redeployed into another work area. The whole process was completed in days and could not be objectively viewed as meaningful or reasonable.

The employee stated that the process was unfair and that the company had in fact targeted him because he was outspoken and sometimes critical of management decisions.

The company followed a very fair and objective process, it was impersonal, and the decision arose solely because a genuine redundancy situation arose, and the selection of the employee was made without subjective bias.

There is no evidence of any meaningful consultation with the employee concerning the scoring system or any alternatives explored such as redeployment having regard to the size of the workforce and the number of employees in comparable grades with significantly lower service.   The facts also support the complainant’s contention that he was skilled on several different operations that could have facilitated redeployment and he was willing to accept a different role that would attract lower remuneration if that meant saving his job.

The last performance review had rated him highly on similar measures listed in the matrix; however, it did note that he could be outspoken.

Under oath, the marking manager stated that she marked the complainant lower because he was outspoken and was critical of certain management decisions.

The matrix scoring framework used by the company marked the employee low for the level of management intervention required, receiving a score of 5 when the highest score was 20, which was a decisive factor in moving him to the bottom of the list. This is a measure prone to subjectivity.

His flexibility score was 20 when the highest score was 40. Again this is a subjective measure prone to opinion in the absence of some measure that is independent of the marker’s perception.

The definition of objective in the Collins Dictionary 6th edition is:

“existing independently of perception or an individual’s conceptions”

The definition of subjective is:

“proceeding from the mind, or relating to the mind of the thinking subject and not the nature of the object being considered”

The company view the process as objective based on the fact that a group of managers reviewed the scores. However, again based on evidence one line manager completed the marking that was subsequently reviewed by others; however, that manager had the most say on the final scores.

The following case from Arthur Cox Employment Law Yearbook 2011 is a useful reference in assessing how fair the process applied in this case has been:

Cronin v RPS Group, Tallaght 27 – Unfair Dismissals Acts 1977–2007 – Employment Appeals Tribunal – redundancy – selection for redundancy – employer using points system for selection – employee given no opportunity to comment on selection criteria

The respondent was an engineering consultancy firm concerned with large projects such as water facilities and roads. Following a number of previous redundancies, in 2009 the respondent decided to make eight people redundant in its Cork office. The claimant was one of those selected for redundancy. The respondent decided not to apply the ‘last in first out’ approach to selection. A methodology was developed to determine the value of the individual staff members to the respondent and a points system, or matrix, was established for the assessment of employees. The matrix assessed individual staff members with reference to six criteria:

qualifications and technical skills;

other relevant training;

areas of expertise or knowledge;

years of experience;

business critical role;

team balance.

The claimant gave evidence that she was given no prior notice of the meeting at which she was told she was being made redundant. She felt that the real reason she was selected for redundancy was because she was married with five children and had requested parental leave.

The EAT accepted that a genuine redundancy situation existed, but concluded that the employer did not act reasonably when it came to selecting the claimant for redundancy. It cited the following grounds for upholding the claim:

failure to advise the claimant of the criteria to be applied for redundancy;

failure to give her the opportunity to make representations on her own behalf in respect of those criteria;

failure to provide an appeal mechanism for the claimant;

the company adhered rigidly to a system of selection that did not provide for any consideration of redeployment;

failure to have regard to the claimant’s length of service.

The company states that the process it followed was fair, a proper consultation process had occurred, alternatives considered and an objective matrix applied consistently and fairly. However, the evidence doesn’t support that conclusion based on the weighting given to subjective measures on the matrix. Also under oath the marking manager stated that the complainant was marked low because he was outspoken and was critical at times of management decisions. That account is consistent with what the complainant also states and is further corroborated by his last performance review where he was marked highly other than for been outspoken at times.

The complainant is the longest serving member in the shift team other than his supervisor.

There were temporary staff who continued to be employed on comparable grades.

The first meeting occurred on the 3rd of September 2020 where he was informed his role was at risk. A final meeting was held on the 7th of September and the complainant states that he was told a further meeting would be held.

While self-isolating and on sick leave, he was told on the 11th of September 2020 that he would be made redundant with immediate effect.

This short period of consultation to the point of deciding to select the complainant to be made redundant and how he was informed, does not strongly suggest that too many alternatives were considered as the process lasted from the 3rd of September to the 11th of September 2020

The company relies upon Kohinoor Limited v Ali (UDD 1629) where it was held that the matrix was applied fairly. Also, the UK case of Williams v Compare Maxam Ltd [1982] I.C.R. 156 is held to be applicable also to the facts of this case as the decision did not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience or length of service. I find that the matrix was not objective and was biased towards marking the complainant lower than others; based on a perception of being less acquiescent. On oath the marking manager stated that the complainant’s outspoken criticism of certain management decisions and/or company policies was a fact in marking the complainant lower than others. By any standard that is a subjective assessment.

 Redmond on Dismissal Law  refers to the test of impersonality and cites from the leading case Panisi v JVC Europe Ltd [ 2012] ELR 70:

To satisfy the Workplace Relations Commission or the Labour Court that an employee was dismissed by reason of redundancy under s 6(3) there must be a redundancy situation and redundancy must be the main reason for dismissal. If the employer cannot prove both, and cannot prove one of the other potentially fair reasons, dismissal will be unfair. Redundancy has become a common justification for dismissal. For this reason strict proof is required. 5 The importance of this point was memorably captured by the High Court (Charleton J) in the leading case of Panisi: 6

‘In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal

There is clearly a redundancy situation having regard to the downturn in business and several employees had been made redundant prior to this process commencing; however, redundancy cannot be used as cloak to weed out individuals. The burden is on the employer to show that is the case, the evidence in this case shows that the complainant was selected for reasons related to that employee. The burden is placed on the employer to show that they in fact acted as provided by section 7(2) of the Redundancy Payments Act 1967 as amended:

(2) 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—

(a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

 (b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,

I must conclude that the employee was dismissed and was not lawfully made redundant and that the matrix was used as a cloak based on the perception that he was outspoken and critical of management.

The Unfair Dismissal Act 1977 as amended at 6(6) requires:

(6) 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 (4) of this section or that there were other substantial grounds justifying the dismissal.

Subsection 4 states:

(4) 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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Section 7 provides that:

(7) 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 adjudication officer or the Labour 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, and

The employer has not demonstrated that the complainant was made redundant. I also have had regard to the reasonableness of the conduct of the employer and I have concluded that the matrix was used to unfairly target the complainant.

There are no other substantial grounds for justifying the dismissal.

 I determine that the complainant was unfairly dismissed.

The Act provides for the following redress:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

The employee did mitigate his loss and gained employment on a higher rate of pay several weeks after being dismissed.

The employee has not pursued this claim for financial gain rather to exercise a right for his complaint of unfair dismissal to be adjudicated upon.

The Act does provide for a number of remedies.

Redmond on Dismissal Law at chapter 24 states:

Reinstatement requires an employer to treat an employee in all respects as if he had not been dismissed. The remedy is granted, as a general rule, where the employee is found not to have contributed to the dismissal in any significant way and/or where the interests of justice so require. 10 The EAT found a clear breach of the audi alteram partem made in Foley v Calview Investments Ltd. 11 The claimant was a 50 per cent shareholder and continued to be one of the directors of the employer: he stood therefore on both sides of the relationship of employer and employee. He was also a significant creditor of the respondent. Of the two primary remedies, the Tribunal considered reinstatement to be the more appropriate. It gave its reasons thus:

‘The case took almost precisely one year from the date of dismissal to reach its first hearing date. The case was one of the longest running in the history of the Tribunal and was unusually involved. Reinstatement can impose significant costs upon a respondent. However, the Tribunal is satisfied that a claimant ought not be deprived of the appropriate remedy through no fault of the claimant and further that a respondent who unfairly deprives a claimant of his employment does so at his own risk ... An employer who refuses to remedy the continuing wrong done to a unfairly dismissed employee by refusing to readmit to employment a willing employee until ordered by a Tribunal exacerbates this liability by the continuing wrong done to the employee until the order is made.’

Allowing for the circumstances of this case it would be unjust not to reinstate as the conduct of the employer in this case has created the wrong and in all the circumstances the interests of justice so require.

I determine that the complainant was unfairly dismissed and that he be reinstated by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

I determine that the complainant was unfairly dismissed.

The Act provides for the following redress:

7.— (1) Where an employee is dismissed and the dismissal is an unfair dismissal, the employee shall be entitled to redress consisting of whichever of the following the adjudication officer or the Labour Court, as the case may be, considers appropriate having regard to all the circumstances:

(a) re-instatement by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal, or

(b) re-engagement by the employer of the employee either in the position which he held immediately before his dismissal or in a different position which would be reasonably suitable for him on such terms and conditions as are reasonable having regard to all the circumstances, or

(c) (i) if the employee incurred any financial loss attributable to the dismissal, payment to him by the employer of such compensation in respect of the loss (not exceeding in amount 104 weeks remuneration in respect of the employment from which he was dismissed calculated in accordance with regulations under section 17 of this Act) as is just and equitable having regard to all the circumstances, or

The employee did mitigate his loss and gained employment on a higher rate of pay several weeks after being dismissed.

The employee has not pursued this claim for financial gain rather to exercise a right for his complaint of unfair dismissal to be adjudicated upon.

Redmond on Dismissal Law at chapter 24 states:

Reinstatement requires an employer to treat an employee in all respects as if he had not been dismissed. The remedy is granted, as a general rule, where the employee is found not to have contributed to the dismissal in any significant way and/or where the interests of justice so require. 10 The EAT found a clear breach of the audi alteram partem made in Foley v Calview Investments Ltd. 11 The claimant was a 50 per cent shareholder and continued to be one of the directors of the employer: he stood therefore on both sides of the relationship of employer and employee. He was also a significant creditor of the respondent. Of the two primary remedies, the Tribunal considered reinstatement to be the more appropriate. It gave its reasons thus:

‘The case took almost precisely one year from the date of dismissal to reach its first hearing date. The case was one of the longest running in the history of the Tribunal and was unusually involved. Reinstatement can impose significant costs upon a respondent. However, the Tribunal is satisfied that a claimant ought not be deprived of the appropriate remedy through no fault of the claimant and further that a respondent who unfairly deprives a claimant of his employment does so at his own risk ... An employer who refuses to remedy the continuing wrong done to an unfairly dismissed employee by refusing to readmit to employment a willing employee until ordered by a Tribunal exacerbates this liability by the continuing wrong done to the employee until the order is made.’

Allowing for the circumstances of this case it would be unjust not to reinstate as the conduct of the employer in this case has created the wrong and having regard to the conduct of the employer, the interests of justice so require.

I determine that the complainant was unfairly dismissed and that he be reinstated by the employer of the employee in the position which he held immediately before his dismissal on the terms and conditions on which he was employed immediately before his dismissal together with a term that the re-instatement shall be deemed to have commenced on the day of the dismissal.

Matrix-Redundancy-Impersonality-Unfair Selection-Conduct of Employer