Complainant

Respondent

Anonymised Parties

Grouter/Painter

Construction Company

Representatives

Jacek Krawczyk Lay Representative and Interpreter

 Self

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-00035357-001

20/03/2020

Complaint seeking adjudication by the Workplace Relations Commission under Section 12 of the Minimum Notice & Terms of Employment Act, 1973

CA-00035357-002

20/03/2020

The matters to be decided are concerned with a complaint of unfair dismissal related to alleged unfair selection for redundancy and insufficient payment of minimum notice following the giving of notice of termination of employment.

Complainant Details

Date of commencement 03.12.2018. Date of notice received 20.01.2020. Date employment ended 22.01.2020. He was employed as grouter/painter. Gross pay was 857.50 per fortnight. The foregoing are the details provided by the Complainant.

This was a virtual hearing, held remotely.

The position of the Respondent is that on Friday the 17th of January 2020 a named manager approached the Complainant and informed him that the reason for his termination was a consolidation and downsize of his department due to technological improvements. On Monday the 20th of January, a termination notice giving one week’s notice to be worked was provided in writing. The Complainant’s position has not since been replaced. At the hearing, the Respondent stated that the person who replaced him was in fact paid more than the Complainant. It was submitted that the Complainant was initially employed as a grouter that after a short period it was found that he could not perform the role satisfactorily and he was moved to painting. New equipment was purchased in the form of a spray-painting machine which it was stated the Complainant refused to use. Asked at the hearing about the selection process, the Respondent stated that this was a matter of selection between two people for the position of painter, they did not use last in first out; and they had used a consultative process in previous redundancies but found it caused disagreement. The Complainant was given his full statutory entitlement. In relation to the complaint regarding notice pay, it was accepted at the hearing that given the date on which the letter of notice was given to the Complainant he would be entitled to one day’s additional pay. However, he was to work the week and the Complainant sought time off to attend for an interview and took leave for this purpose. His daughter sent a text on Wednesday the 22nd saying that the Complainant was not coming back to work, that he got a new job and has to start straightaway. On Thursday the 23rd of January they received another text requesting the Complainant’s P45 ‘as soon as it’s possible he needed for a new job’ On the same day the Respondent confirmed when the P45 would be online to which the Complainant’s daughter replied thank you and a happy 2020. The Complainant did not return to work and any payment over and above one day is rejected.

The Complainant rejected the Respondent’s position that there was a meeting informing him of a redundancy on Friday the 17th of January claiming that the only discussion took place on the Monday the 20th of January when he was informed that his employment was to be terminated on grounds of redundancy and he received a letter of termination. It was submitted on his behalf that the Complainant received no explanations or reasons why he was selected for termination; there was no consultation or selection process preceding the termination in respect of the alleged redundancy; there were no advance announcements or notice posted or meetings held that would constitute consultation regarding a redundancy. The Complainant was completely shocked and taken aback by the Respondent’s decision and conduct which it was contended amounted to no less than a “fire on the spot, no questions asked” (dismissal). He was not provided with any written reasons or an appeal process.

The representative of the Complainant referenced the Unfair Dismissals Act section 6(3) and section 7(2)(c) of the Redundancy Payments Act 1967 in referring to a selection process to take account of the capability, competence, or qualifications of the employee for performing work of the kind for which he was employed by the employer to do or the conduct of the employee. Further reference was made to section 6(4) of the Unfair Dismissals Act where the Respondent employer failed to consider genuinely and fairly or at all any alternatives of time reorganisation to attempt to prevent redundancy or any reasonable redeployment alternatives within the business. It was submitted that the Respondent failed completely to conduct a fair selection process.

In relation to certain specifics cited by the Respondent, it was contended on behalf of the Complainant that there was no meeting on the Friday, that he was handed his notice on the Monday, that his daughter was mistaken when she assumed that the Complainant had obtained alternative employment in the same week adding that the Complainant obtained alternative employment on the 2nd of March 2020. Regarding his failure to return to work after the 22nd of January and to complete the working of his notice, the Complainant contended that this was because of the way he had been treated. In relation to the alleged refusal to operate the spray-painting machine, it was submitted that the Complainant had refused to work the machine without training and said that he was not trained to operate that machine and denied that he had refused to operate the machine at all. The redress sought was compensation of four weeks’ pay as the Complainant had obtained alternative employment. The Respondent agreed that in the event of redress compensation would be the appropriate payment. 

Unfair Dismissals Act 1977-2016

Extracts from legislation considered in arriving at a decision this case:

Section 7(2) of the Redundancy Payments Act 1967-2014

(1)    For the purposes of subsection (1) an employee who is dismissed shall be taken to have been 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 –

(b) the fact that the requirements of the 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

Unfair Dismissals Act, Section 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.

The Act goes on to provide at Section 6(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:

(c)the redundancy of the employee,

It is accepted that the Respondent intended that the painting work previously performed by two employees would be performed by one employee and the terms of Section 7 (1)(b) applied in this employment. Furthermore, it is accepted that the ability of  the Respondent  to reduce the number of painters was enabled by the introduction of new equipment i.e. a spray-painting machine. From these conclusions it follows that there was a genuine redundancy in the employment directly related to a diminished need for painters.

What followed the decision to reduce the number of employees was a selection process conducted by the Employer without the knowledge of, or consultation with any employees and in particular for the purposes of this decision, the Complainant. The absence of a consultation process is particularly noteworthy where the Complainant in this case was employed as a grouter and had skills in that area which was continuing after his redundancy without any reduction in the numbers engaged in that work. Furthermore, another painter, apparently paid more than the Complainant was retained by exercise of the same selection process. Thus, there was a redundancy, not the redundancy  and so it follows that the conduct of the selection process becomes central to deciding the complaint.

Evidence was given that the Complainant was moved from grouting to painting on grounds of competency. Further evidence was given that the Complainant had refused to operate the spray painter. No evidence was presented of any disciplinary processes or documented meetings related to either of the assertions which amount to elements of poor and, or, uncooperative performance. This informal approach to addressing alleged performance issues lead to the finding that what was applied to the Complainant in respect of his selection for redundancy was a class of a disciplinary process ,where his performance and suitability were assessed behind closed doors by unnamed people and without his knowledge. This is always the danger of a hidden or superficial selection process, this to say that redundancy is a form of dismissal is exercised in a manner which is overtly and usually about change or reduction in costs. In a secretive or hidden selection process it is or becomes, a subjective process which does not allow for the type of process which must be used in any other type of dismissal. Such secrecy can allow for any manner of factors to come into play, be they discrimination or personal dislikes or indeed any form of subjective reasoning.  Allowing for the fact that even properly conducted and soundly based  selection processes can be cumbersome, time consuming and disputatious-the employee faced with redundancy is not only far more likely to accept a properly notified,  soundly based methodology for selection. If the outcome is disputed, a fair well managed process provides a sound basis for defending any subsequent complaints of unfair selection. No such basis exists in this case. To allow the standard and method of decision in this case to pass the standard and well-established tests and reasoning used in countless decisions by the relevant authorities would be a travesty.

One example of decisions where the principles under review were the same as in this case, is Labour Court Determination UDD219 Dublin Tech Summit F5 Digital Media Communications and Krissie Lundy:

The Court cannot accept that what amounted to a selection process designed to identify as between two employees who should be retained in the business, can be considered fair or transparent in circumstances where ,as is accepted by the Respondent, neither employee was made aware that such a process was being conducted. It is the dismissal which is at issue in this appeal. It is not disputed that the role carried out by the Claimant was made redundant and that the various elements of that role were assigned to other staff through a re-alignment of responsibilities in the company.

And

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 otherwise to make a coherent case for her retention in employment.

In those circumstances  the Court concludes that the procedures adopted by the Respondent to identify as between two employees which employee was to be dismissed were so lacking in transparency and fairness as to mean that the Court cannot accept that the dismissal of the employee arose through ‘the  redundancy of the employee’. This is so because the Respondent has been unable to demonstrate a fair process of decision making leading to the dismissal of the employee as against another employee arising from the redundancy of the Claimants previous role. In those circumstances the Court must conclude that the Respondent has failed to discharge the burden resting upon it to establish that the dismissal of the Claimant was unfair.’

The reasoning adopted in the forgoing  Court Determination is entirely apt as a precedent to be cited in support of the finding in this case, that the  Complainant was unfairly selected for redundancy and it follows therefore that he was unfairly dismissed.

Regarding redress, it is agreed with the parties that compensation is the appropriate redress in this case. Given the circumstances of the case, the maximum available monetary redress is for weeks pay and that is the amount of the award in the Decision under the Unfair Dismissals Act.

Minimum Notice and Terms of Employment Act 1973-2015.

Written notice of termination was provided to the Complainant on the Monday of his final week of work. As the Respondent has conceded, this leave a shortfall of one days pay to complete a full weeks wages and he has therefore a valid complaint regarding that one day. In relation to the remainder of the week, the Respondent was informed the Complainant had left the employment and he did not return after January  22nd. There was no agreement to pay in lieu of notice and there is no valid claim for payment of the remainder of the week as claimed by the Complainant.

Unfair Dismissals Act 1977-2016-CA00035357-001

The Complaint is well founded. The Respondent is to pay the Complainant €1715 compensation.

Minimum Notice and Terms of Employment Act 1973-CA-00035357-002

This complaint is well founded. The Respondent  is to pay  the Complainant 85.75.

Selection for Redundancy/Payment of Notice Pay