ADJUDICATION OFFICER DECISION
CORRECTION ORDER ISSUED PURSUANT TO SECTION 39 OF THE ORGANISATION OF WORKING TIME ACT 1997
This Order corrects the original Decision issued on 26/07/21 and should be read in conjunction with that Decision.
Adjudication Reference: ADJ-00029055
Parties:
| Complainant | Respondent |
Anonymised Parties | An Associate Production Support Specialist | A Technology Company |
Representatives | Mr E. Shanahan, BL instructed by Leo Murphy & Co Solicitors | John Doyle, Dillon Eustace Solicitors |
Complaint:
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-00038790-001 | 17/07/2020 |
Date of Adjudication Hearing: 01/02/2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. This is a claim for Unfair Dismissal (unfair selection for redundancy) submitted on behalf of the complainant on 17 July 2020. The Claim is contested by the Respondent, a Technology company. The Complainant was represented by Mr E Shanahan BL instructed by Leo Murphy Solicitors. The Respondent was represented by John Doyle of Dillon Eustace Solicitors. An earlier claim, for Discriminatory Dismissal on grounds of race was deemed withdrawn in accordance with Section 104 of the Employment Equality Act, 1998 on October 30, 2020. The Complainant was the sole witness in his case. The Respondent also introduced 1 witness, Mr A, On cessation of his employment, the complainant received a statutory redundancy payment of € 5,717.20. At the end of the hearing, the Respondent was requested to furnish copies of the two final Performance Management Reviews pertaining to the complainant. The Complainant was requested to provide details on efforts at mitigation. I am grateful to the parties, who both agreed to stay late to conclude the hearing. Details of the Complainants requested mitigation of loss were received on February 12, 2021. Performance Reviews were received on March 3, 2021. |
Summary of Respondent’s Case:
The Respondent solicitor opened the case by confirmation that the complainant had been lawfully terminated through a bone fide Redundancy situation justified within the provisions of section 6(4) (c) of the Unfair Dismissals Act. He argued that Redundancy was a justified action through Business case necessity, selection had been fairly applied and had nothing to do with the complainant’s race. While acknowledging that the claim linked to discriminatory grounds had been deemed withdrawn, the Respondent denied discrimination and was very hurt by the claim of dismissal linked to race, given the multi-cultural composition of staff. The Respondent operates in Ireland as part of a World-wide Industry. The economic challenges of Covid prompted an Organisational review. It followed that the Customer Support Team in Ireland, of which the complainant was a member was earmarked for restructuring. This resulted in a plan to reduce the number of associate Production Support Specialist roles by two, where work was to be redistributed across colleagues in Manila. All employees in this grade in Ireland, bar 3 who supported a more complex product were included in the selection pool (referred to as A-H) and scored against a selection criterion. 2 Irish Nationals and 6 Non-Irish National, 1 French, 2 British, 1 Belgian, 2 German Nationals. The complainant scored 33 out of a possible 55 and was confirmed as at “risk of redundancy” and following a 15-day consultation period, was made redundant on 12 June 2020. The Respondent offered the Complainant an opportunity to clarify any issues and his queries were answered. They also considered alternatives to Redundancy, but none existed. The Complainant did not raise the exclusion of Irish Nationals from the process, nor did he avail of the pro-offered appeal of the decision. The Respondent followed an in-depth process in preparation for a decision to make two staff redundant. This included a warning letter, a series of at-risk meetings, a conclusion meeting and right of appeal. Criteria relied on by the company were fairly and objectively applied. In his response to the complainant’s submission, Solicitor for the respondent referred to the “personal relationship difficulties” assigned by the complainant to a named senior manager at the company as “outrageous “. Summary of Evidence, Mr A. Mr A had commenced as Manager in August 2019. He told the hearing that the respondent had 15,000 employees globally and were involved in data/fax/SMS Information sector in Acquisitions. In February 2020, an opportunity arose to address a case back log in Finland from the Irish base. There were 8 Associate Product Support Personnel and 1 Senior. These were front line staff. Mr A outlined that it was usual for his Team to offer a cross site support. Three of the pool of 9 were re-aligned to this work. 1. Senior Position, two levels up from complainant. 2. One Support Personnel who had a Training background and was expected to bring back further training experience 3. A Support Personnel who had experienced personal trauma. The plan was to get this “cross fertilisation “up and running within 8 weeks of training. A higher level of management along with Human Resources had signalled that 800-1000 redundancies were earmarked globally in May 2020. Mr A learned of this development via Human Resources on 18 May 2020. There had been a 55% decrease in the volume of calls relating to a product and the Respondent projected that some work would stratify to South East Asia and some work would need to stay in EU. Two positions were earmarked for Redundancy on his Team. Overall, 8 to 10 Redundancies were sought at the Plant. These were not collective redundancies. Mr A submitted that he was offended to be accused of discriminatory treatment towards the complainant. He explained that he had personal awareness of disability in his everyday life which made him ultra-aware of “difference” In his team of 16, 60% were non-Irish and 40% Irish. Mr A was notified of the Matrix to be applied in the selection criteria, which consisted of productivity focus 1. Functional and Technical Depth. The complainant was mentioned as H on the scoring matrix 2. Performance, Financial year 2020 3. Skills/qualification /relevant experience 4. Core Competencies Eight Customer Supports were assessed under this criterion 1 Person B 52/55 German National 2 Person A 48/55 Irish National 3 Person F 48/55 Irish National 4 Person G 45/55 British National 5 Person C 42/55 French National 6 Person E 40/55 German National 7 Person D 38/55 British 8 Person H, the Complainant, Belgian National, 33/55 He undertook a 7-day analysis and scoring and was guided by the Human Resources. He was impartial and wished to protect his Team. He was not influenced by external factors and the decision to identify redundancies was his alone. that he had engaged with the complainant. He denied that the redundancy had been a “sham”. Mr A outlined that he was aware that the complainant had previously been involved in incidence of assault and racial abuse, where the protagonist had been dismissed for gross misconduct before August 2019. Mr A met with the complainant on 26 May and confirmed that he had a two-hour meeting to communicate the outcome of the application of the assessment criteria and where he gave a detailed explanation. The Complainant had marked in the two lowest scored employees. Mr A met with the Complainant on May 29 and explained that a hiring freeze was in place and there was no opportunity for the complainant to laterally transfer within the company. There was one vacancy at Engineer level, which was not a match for the complainant. The Complainant communicated that he was unhappy with his Matrix scoring but did not reach out to Mr A. Another HR Manager tried to engage with the complainant, but he refused to speak to her. Mr A confirmed that the complainant engaged in positive work in “Inclusiveness”, where he had nominated him for a recognition award in February 2020. Mr A acknowledged that the complainant had a strong potential to succeed at the company, but something changed in early 2020 when he began to send nasty emails regarding other staff and demonstrated an inconsistency in his work performance. He was found to be missing in action at work during February, March and April 2020. Mr A confirmed that these issues had been the topic of two conversations with the complainant but were not advanced through Disciplinary. He had been paid for days where he had not been present at his desk. He denied that the complainant had longer service than Mr B, who was retained. Mr A engaged in an extensive explanation of how the scoring matrix had been applied through cross examination with the complainants Counsel. He stood over the scoring recorded in the complainant’s case. He submitted that the changes experienced by the company were not solely attributed to Covid. There had been a reduction in larger clients. Headcount in the named team remained the same as on date of the redundancies in June 2020. He reaffirmed the circumstances which led to the stratification of the team in February 2020. He confirmed that he had made the decision to select the trio with three Directors from the Liaison site. It was a blended team, so the need for competition did not arise. 60 offices globally had since closed during the Pandemic. Mr A rejected that he had deliberately moved Language specialists to English language only positions. Mr A disputed that his own absence through sick leave or the complainants noted absences had impacted on his matrix scorings. He was unaware of any other mechanism applied to Redundancy at the plant. There was no provision for “Temporary Lay Off “at the Company. He was aware that the UK had practiced leave through Furlough around the Pandemic. Mr A re-affirmed that the complainant was provided with input into the respondent’s observations on matrix. The Respondent submitted copies of the Complainants completed Performance reviews for years 2018 and 2019. The partly completed 2020 review was attached but had not been completed as the complainant had ceased work in June 2020. In conclusion, the Respondent representative concluded that the Company was standing over the process, which had led to the complainant being fairly selected for redundancy. He denied that the Company was engaged in a conspiracy against the complainant. He asked for Mr as evidence to be heard and considered and that the decision to identify two positions was neither tainted by discrimination or external influence. The complainant had not engaged in seeking a spreadsheet relied on by the company in arriving at decision to dismiss him through redundancy. The screen had been shared at meeting on May 29. He pointed to direct conflict where Mr A had disputed that the complainant had asked for unpaid leave. He disputed the reasons advanced by the complainant for forfeiting the pro-offered appeal and affirmed that the appointed HR Manager, assigned to hear any appeal. did not have a negative history with the complainant. |
Summary of Complainant’s Case:
The Complainant worked for the Respondent from 2 November 2015 to the date of dismissal through Redundancy on 12 June 2020. His position was subject of a Transfer of Undertakings in July 2016. His salary amounted to €2490.00 gross monthly which incorporated payment of bonus, over time and on call. The Complainant submitted that he had been aware that redundancies were imminent in his work. He contended that the process of selection had favoured Irish workers and his Belgian nationality had resulted in him being discriminated in the decision taken to dismiss him on 12 June 2020. He sought the remedy of compensation in his claim for unfair dismissal. He had lined up another job commencing the week after the hearing without differential in tenure or pay. The complainant undertook to provide details on his loss and mitigation. Counsel for the complainant opened the case by disputing that he was dismissed by reason of redundancy. At first, Counsel for the complainant disputed that a genuine redundancy had occurred in the case, only to eventually accept over the course of the hearing that a genuine redundancy situation had unfolded at the Company. The Complainant argued that staff mobility in increased hiring was visible at the company prior to the complainant’s dismissal and after he had left. The Respondent hired approximately 30 staff for similar positions around October 2020. The Respondent concurred that some new hirers had commenced at the company since the complainant left, but headcount had remained static. Counsel for the complainant advanced several reasons to counter the Respondents affirmations on Redundancy. 1. Three Irish Colleagues, in very similar roles to the complainant were afforded different positions and saved from redundancy in or around the time that the complainant and others were advised that they were at risk of redundancy in May 2020.All 9 team members had attended training and can access these positions. 2. On 15 May the three Irish colleagues were confirmed as moving, without recourse to advertisement to “support a specific product” which did not require any more qualifications/skills than that possessed by the complainant. 3. The Respondent did not consider alternatives to redundancy. At the first” at risk of redundancy “meeting on 26 May, the Complainant was advised of the amount of the redundancy package. Criteria for selection followed later. At the follow up meeting, 3 days later, when the complainant sought a lateral transfer within the company to what he understood was an actively hiring unit, he was informed that transfer was not a viable option due to an employment freeze. 4. The Selection criteria was grossly unfair and did not “accurately measure or assess the value of the complainants work, where he had been consistently one of the best performers on the team. He had received an award in respect of “new projects and trends “on 24 February 2020. The complainant had raised an objection as the selection criteria applied did not reflect his value. 5. The selection of the complainant for redundancy was” a sham “and had arisen from a residual “personal animus “by a Senior Manager towards the Complainant, following an earlier complainant of assault and racial abuse at work. There were also other personal difficulties, shared at hearing, between the two men. 6. The Complainant had lost faith in the Human Resources Dept and determined that the Appeal was not suitable for him. Complainants Evidence: The Complainant told the hearing that he held a PhD in Management and International Relations. He had worked in Ireland previously in 2007-2009 and 2010-2012. He submitted that he had a close working relationship with the company CEO, to whom he had forwarded a book he had written. He was the first Customer support role to be allowed to work from home. His role in this company centred on first level technical support where issues were then escalated to the Engineers. May 2020 was the first time he heard of the prospect for a potential for 5% pay deduction for all the Company or a possible redundancy. At a Team Meeting on 15 May, he learned that 3 members of his team had been re-aligned to “Liaison” for a new team coming from Finland, effective, one week later. The remainder of the team were exposed to possible redundancy. He was aware that 2 Language Support Posts were to be made redundant. He submitted that the trio now aligned to liaison were immune from redundancy The Complainant submitted that he had exceeded his Performance Review and was one of 3 top performers on the team. He had developed an irritation that other staff were watching You tube at work and the Engineer had said that he had missed some calls, which he denied. He acknowledged that he had complained about employees, but he understood that it had been a secret process. He acknowledged that he “was a little bit absent” at work as he had financial issues. He contended that 2 French speakers could have been taken for the Liaison roles, as they had been saved from Redundancy. The Complainant submitted that he had not been consulted around the redundancy .He said that it was a “ done deal “ and he did not have the appetite for an appeal .He suggested 6 months unpaid leave, which was refused and all that was offered was assistance with CV preparation .He told the hearing that he had applied for several jobs on line and felt displaced by the company as he felt he had potential to be saved from redundancy . He did not apply for any of the 30 jobs the company advertised in November 2020. The complainant accepted that a redundancy situation existed at the company but contended that it was tainted by discrimination when the Irish trio was relocated and thus shielded from the process. He submitted that all 9 team members had attended training in the product. He believed it unfair that he had been dismissed. He gave an example that he had 339 completed cases vs one of his colleagues who was retained who had 140. He acknowledged that he had not requested a copy of the Spreadsheet of criteria which had been applied. The feedback had been presented electronically and he couldn’t read it as it was scrolling up and down. The Complainant submitted that he believed that the decision to dismiss him had been completed at that stage. In normal circumstances, he would have considered an appeal, but this was a “done deal” He described that his reference to contacting media around the circumstances of his dismissal was a misunderstanding. He did attempt to canvas higher management, but found doors closed and he decided to advance his case on the legal route. He acknowledged that he did consider changing his mind around 27 June but had been put off by what he observed as preferential treatment shown to a colleague. The Complainant denied that he wanted a higher settlement in his email correspondence with the company. He had no prior understanding of how Redundancy worked at the company. He confirmed that he had not appealed the reported refusal to grant him temporary layoff. Voluntary redundancy was not an option. The Complainant forwarded emails on positions he had applied for via linked in post hearing. In Conclusion, The Complainants Counsel stated that the complainant had been unfairly selected for Redundancy. He acknowledged that a Redundancy had existed, but the process was entirely unfair. The Complainant shared a similar background to the trio who were deliberately saved from redundancy. This was not a credible action and was tainted by the complainant’s race. Counsel concluded that the complainant had in effect entered a disciplinary setting in the run up to the selection of two positions for redundancy and this was the real issue at play. The criteria for identification of the two redundant posts was overly subjective and disputed by the complainant as it had not reflected his real time contribution. By the time of his dismissal, the complainant had lost faith in the Human Resource Dept and elected not to appeal as a result. |
Findings and Conclusions:
I have been asked to consider the facts of this case and decide whether the Complainants dismissal dated June 12, 2020 constituted an Unfair Dismissal. In arriving at my decision, I have carefully considered all written submissions, inclusive of the presiding contract of employment, oral evidence adduced and supplementary documentation post hearing. The Law on Unfair Dismissal is contained in Section 6 of the Unfair Dismissals Act, 1977, as amended. The burden of proof in this case rests on the Respondent. Unfair dismissal. 6 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. (2) 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, to be an unfair dismissal if it results wholly or mainly from one or more of the following:
……….. (e) the race, colour or sexual orientation of the employee, A Dismissal is automatically unfair under Section 6 (2) of the Act if it results wholly or mainly from a number of considerations included in this section e.g. trade union activity, religious or political opinions, ageism, reasons connected with maternity or parental leave or as been argued in this case, race. Section 6(3) of the Act provides (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 either— ( a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or ( 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. In the instant case, 8 Customer Support Employees were entered the Pool of Consideration for Redundancy. There was no agreed mechanism in which redundancy should take place, or any visible memory in how any historical redundancies had occurred, nor was there a particular provision in the contract of employment. In such a situation, the employer is required to act fairly and reasonably. I note that the contract presented was accompanied by a note from the Transferor in 2016, without a replicate from the transferee governing the joining period. A dismissal is deemed to be fair if it results wholly or mainly from one or more of the provisions of Section 6(4) of the Act. (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. The Respondent has submitted that the dismissal came squarely within the remit of section 6(4) (c) of the Act and as a result was fair. In the High Court case of JVC Europe ltd and Jerome Panisi [2011] IEHC 279, Justice Charleton gave a prosaic introduction to a Redundancy situation which has a place of reference in this case. Redundancy can be a devastating blow. Where economic conditions are difficult, or where the employee who is let go has aged or is experiencing health difficulties, finding alternative employment may be impossible. Years of devotion to an employer count for nothing where technology overtakes the workforce, rendering the labour of those displaced unnecessary, where new methods of work are demanded from those who do not have the skills to respond, or where the product is deemed obsolete. All these are examples of a genuine redundancy. As ordinarily understood, redundancy means that a worker is no longer needed. He goes on to qualify that there are times when it is a legal response. Redundancy is not, however, a personal choice. It is the external or internal economic or technological reorienting of an enterprise, whereby the work of employees needs to be shed or to be carried out in an entirely different manner. As such, redundancy is entirely impersonal. This is reflective of St Leger V Frontline Distributors Ireland ltd [1995] ELR 160, where Dermot Mc Carthy SC stressed that impersonality runs through the 5 definitions of Redundancy in Section 7(2) of the Redundancy Payments Act, 1967, as amended. Staying with Justice Charleton, another moment when he went on to set the scene in Panisi, In an Unfair Dismissal claim, where the answer is asserted to be redundancy, the employers 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. He said that redundancy must stand true to principles outlined in the Redundancy Payments Act and not serve “as a cloak “to filter out the unwanted. The Respondent has argued that the dismissal through redundancy in this case took place in accordance with section 7(2) (c) of the Act. 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 The Complainant disagrees with this assertion and has argued that but for his race, Belgian nationality, he would not have been selected for redundancy. I will now seek to analyse the facts, as presented in the case. The Respondent opened by signalling that the company was facing global and corporate change in head-count. I would have liked to have seen a specific document to that effect or to have met with a Senior Representative from the Company. As redundancy is linked to “impersonality and change” the presence of a document signalling the evolution of that change would, in my opinion, go some way to interpreting the facts as raised. I can appreciate that the Covid 19 Pandemic was by May 2020, having a monumental impact world wide and many companies were challenged. However, I am not certain of the real time qualitative analysis undertaken where the company arrived at the projected 8-10 loss of head count at this company. I found it unusual that a Company of this size did not have a Policy or Organisational knowledge on how past redundancies occurred. Conclusion of any employee’s employment is a major life altering event and ought to be accompanied by a Standard Operating Protocol in a Company of this size, who is faced with ongoing anticipative corporate and world-wide changes. I say this as I accept that the complainant in this case was shocked to the core to be selected for redundancy. Up to May 2020, I accept that he had no idea that his tenure was under threat. His contract from 2015 indicated a mutual clause on notice requirements in the event of cessation by either party, but there was no mention of redundancy. The file reflects a sole contract and letter from the Transferor in 2016. I accept, in the absence of an agreed mechanism, that I am obliged to consider the case through the following prism. 1 Did a genuine redundancy situation prevail? 2 If so, was selection applied fairly? 3 Did the Employer conduct the dismissal fairly and reasonably? The Respondents Mr A was new to the Customer service team from Autumn 2019. He was a coherent and sincere witness. He was charged with a very difficult task, that of selection of two posts for redundancy from a team he was expected to continue to manage post redundancy. I found this to be a heavy load for one pair of shoulders. I appreciate that Human Resource advice was available remotely. I listened carefully as he described the evolution of the “trio “onto the Liaison Team in May 2020. I also listened to the complainant’s perceptions that this was a deliberate act designed to shroud them from Redundancy and an incorrect allocation of resources. He attributes this siphoning to a racially motivated act. I have reflected on both party’s evidence. While, I can clearly identify a lack of transparency in the selection of the “trio” for assignment to Liaison. The Complainant did not alert me to any existing policy surrounding internal appointments at the company. In terms of team dynamics, motivation and leadership, it would have been preferable to have advertised these posts, albeit that they may not have been any more financially advantageous. However, in considering Mr A’s stated rationale for each appointment, I am satisfied that he followed a selection process of “what he believed best for his team” I cannot establish that these were racially motivated appointments undertaken to eclipse the complainant. It is of cardinal importance that I record that the complainant did not appeal these appointments following his perceived exclusion through the agreed grievance procedure. I believe his hesitancy in that regard may well have caused his dissatisfaction with the company to fester. I have carefully considered the Complainants oral and written submissions on dismissal being linked to race and I cannot establish this link. From the documentary submissions, I can see that the complainant was seeking to diversify at the company and this was being fostered and encouraged up to his considering a new role in Spring 2020, until eventually deciding against it. By his own admission, he had made positive connections with Senior Managers at the Company, one of whom he had passed a book which he had authored. He added in evidence that relationships had since soured at the company. However, in considering the respondent evidence on a notable change in the complainants work performance in Spring 2020 coupled by his own portfolio of emails where he acknowledges this “lost track “himself, I find that the complainant was drifting in the business in the run up to the announcement of two Redundancies in May 2020. I note that the complainant told the hearing that he had excelled at his Performance reviews. The last relevant review was signed by the complainant in July 2019 and while it was a positive review. It did record an excellent outcome. The Complainant had reached out to a Director to act as Mentor for him. He had also developed an intolerance with workmates whom he viewed less productive than he was. He sought to flag this with the company and was taken aback when he was viewed as being linked to these complaints. While I find that the complainant was “drifting “in his role by Spring 2020, which I accept may have been linked to his personal life, I cannot establish that his dismissal arose wholly or mainly due to his race. From Mr As’ evidence, The Company was beginning to grapple with the challenges of Covid 19 in addition to the loss of some large customers. I accept that the Company was entering a period of change. I find that a genuine redundancy situation prevailed at the Business from 19 May 2020, where two positions were identified as potentially redundant from a possible selection pool of 7 of the complainant’s peers. The Senior post was exempted from the process. Two of” the trio” were placed at risk of redundancy and were subjected to the application of the matrix. Due to the complainants reported sense of unease with the business in May 2020, coupled with a reported unease expressed by Mr A, I took some time to analyse the selection criteria applied in the matrix which resulted in the complainant’s dismissal on June 12, 2020. I probed this to check for reasonableness and fairness in how the selection was applied and managed. In this, I have taken some guidance from the Labour Court case of Kohinoor ltd and Hussain Ali UDD 1629, where Deputy Chair Jenkinson in assessing a redundancy situation, held the following were important determinants in reaching a decision that a Redundancy was justified in the case. 1 Respondent decided to carry on with fewer employees 2 Qualitative changes 34 reduced to 31 employees 3 Matrix developed on external advice to include essential elements required to meet the future needs of the business 4 Consultation and given an opportunity to have input into the scoring 5 Availability of an appeal 6 No knowledge of prior grievances 2008-2014 7. Selection criteria applied equally In the instant case, the Template letter issued by the Company dated May 26, 2020 has caused me some concern as it failed to allow the complainant any input into the scoring. He did not get an opportunity at that early juncture to shape the outcome of his job and livelihood. He did not receive expanded details of the criteria relied on until his meeting with Mr A on May 29. I found that the early notification of the scoring and severance was handled insensitively. During cross examination of Mr, A, Counsel for the Complainant tested the perceived subjectivity of the application of the criteria and I found the criteria of projections over Financial year 2020 to be intangible and overly subjective. However, I was quite taken aback to the complainant’s lack of engagement at the follow up meeting on May 29 which was expressly dedicated to 1. discuss the scores. 2. avoidance of redundancy The Complainant submitted that he was overwhelmed by the electronic exhibition, which hindered his full participation. I note Mr A’s evidence that the complainant did not seek access to the spread sheet relied on for decision making purposes. I was also taken aback at the 26 May email which the complainant forwarded to the respondent where he recorded his disagreement with the scores he had been afforded. “the result of the criteria calculation mentioned in this print screen table defy our team realities, please review as we can all miss tangible data. Other important elements will be disclosed and discussed in due time based on possible outcome “ I find that he was provided with an opportunity to advance this text with representation on May 29 but did not avail of this opportunity. I cannot establish at what point the complainant asked for 6 months leave without pay and on the balance of probabilities, I must resolve this in favour of the respondent. The Complainant engaged in a twin track approach to Senior Management and Mr A/ HR from early June 2020. These emails were heavy on criticism of his experience at the company and once again ended in a cryptic conclusion that the complainant was intent on retaining certain information until the final moments of the process. Despite an extended hearing time in this case, I have not found the basis of the cryptic comments in the case. I can appreciate that the details of the complainant’s private life shared privately at hearing must have been upsetting and challenging, however, I am clear that these issues were not held against him by Mr A, whose decision it was to release two headcounts through redundancy. I find that the Respondent offered the complainant a structured platform to tease out alternatives to redundancy on May 29, but the complainant did not really engage, and he refused to engage with the follow up from Human Resources. I have found that he diversified and escalated his communication with Senior Managers without really engaging with the Operational Management charged with effecting the redundancy. I can appreciate that complainant had engaged in high level strategies during 2019 for expansions to Africa. However, I felt that he did not maintain a strong presence in addressing his “at risk “status for Redundancy in real time. I can accept his incredulity at being selected, however, I have found that he failed to meaningfully engage in the Communication meeting of May 29 to influence a different outcome. For my part, I found a fault line in the meeting of May 29. The Respondent operates globally, and it is fair to remark that Covid 19 challenged all markets worldwide. Each country had its own contingency and survival measures. Ireland was no different. From 13 March 2020, Redundancy post lay off due to Covid 19 was prohibited in Ireland. This continues to be the case until 30 June 2021 in accordance with Section 29 of the Emergency Measures in the Public Interest Act, 2020. Concurrent with this, the Government had set in train several wage subsidy schemes and Covid 19 support payments to persevere the linkage to work, clearly in the hope that stimulation will save these jobs. I have found that the Respondent did not tease out any alternative to Redundancy which incorporated any of the above measures. I understand completely that they did not have an alternative posting in the company for the complainant on June 12, 2020 and that headcount has remained constant. However, I have found that based on the unique statutory supports available, that consideration should have been given to at least exploring whether these supports were viable options in this case to save the employment during a Pandemic. I am strengthened in my views of this as the company clearly followed these mechanisms in the UK, through the Furlough scheme. I found this inconsistency to be unfair and unreasonable in the management of a redundancy. I am satisfied that the Respondent offered the complainant a full appeal of the decision to make him redundant. I am satisfied that the Human Resource Manager associated with the appeal had no history with the complainant. As I have considered the respondents procedural pathway in this case, I must conclude that the complainant erred significantly in not exhausting all internal avenues prior to externalising this case to WRC. I have reviewed the twin track communication to both the Operational Managers responsible for the Redundancy and the Senior Managers in the case and find that the complainant had clearly formed a strategy to by pass the lower level managers. In my opinion, he did this to his detriment. SI 146/2000 on Grievance and Disciplinary Code of Practice emphasises the importance of engaging in all steps of a grievance and disciplinary process. I have found that the complainant acted unreasonably in refusing to engage in the pro-offered appeal. By then, he had collated several points where he had expressed dissatisfaction with the company. I find that it was in his gift to take those points and address them locally in the first instance and I find it very difficult to excuse him from this responsibility in accordance with fair procedures. Finally, while I have found that a genuine redundancy existed at the respondent business on June 12, 2020. I have found that the selective criteria were overly subjective in the case of Year 2020 projections. I have also found that the complainant was not permitted an identified input in the initial scoring. I appreciate that he was permitted an opportunity to shape his outcome on May 29 ,2020 and he was underwhelmed by this offer. I have also identified that the complainant acted to his own detriment in not pursuing a local appeal when his points of dissatisfaction were partly ventilated to the company. I also note that he did not complete the respondent settlement agreement which accompanied his severance payment. However, I have found a significant unfairness in the lack of consideration for alternatives to dismissal, set against the much-heralded state supports to seek to persevere jobs in the State. I appreciate that it may not have reversed or altered the outcome, but it is a conversation/exercise which ought to have been adopted by the respondent and engaged in by the complainant to seek to save the position. Taken together with the other frailties in the process, I find that the respondent acted unreasonably in conducting this redundancy which resulted in the complainant’s dismissal. While, I have also found that the complainant has contributed to his dismissal, in the circumstances outlined, I find that he was unfairly dismissed. |
Decision:
CA-00035182-001 Claim for Unfair Dismissal Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the complainant was unfairly dismissed. I have also found that he contributed to his dismissal. I find that compensation is the only practical remedy open to me in this case. The Complainant has found new work. I have considered his submitted evidence and documentation on his loss and mitigation. I order the Respondent to pay the Complainant €7, 470.00 in compensation in respect of the Unfair Dismissal. This amounts to three months gross pay and is distinct from the amount already received on termination. |
Dated: 26th July 2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for Unfair selection for Redundancy |
ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00029055
Parties:
| Complainant | Respondent |
Anonymised Parties | An Associate Production Support Specialist | A Technology Company |
Representatives | Mr E. Shanahan, BL instructed by Leo Murphy & Co Solicitors | John Doyle, Dillon Eustace Solicitors |
Complaint:
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-00038790-001 | 17/07/2020 |
Date of Adjudication Hearing: 01/02/2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Procedure:
In accordance with Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
This matter was heard by way of remote hearing pursuant to Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and SI 359/2020, which designates the WRC as a body empowered to hold remote hearings. This is a claim for Unfair Dismissal (unfair selection for redundancy) submitted on behalf of the complainant on 17 July 2020. The Claim is contested by the Respondent, a Technology company. The Complainant was represented by Mr E Shanahan BL instructed by Leo Murphy Solicitors. The Respondent was represented by John Doyle of Dillon Eustace Solicitors. An earlier claim, for Discriminatory Dismissal on grounds of race was deemed withdrawn in accordance with Section 104 of the Employment Equality Act, 1998 on October 30, 2020. The Complainant was the sole witness in his case. The Respondent also introduced 1 witness, Mr A, On cessation of his employment, the complainant received a statutory redundancy payment of € 5,717.20. At the end of the hearing, the Respondent was requested to furnish copies of the two final Performance Management Reviews pertaining to the complainant. The Complainant was requested to provide details on efforts at mitigation. I am grateful to the parties, who both agreed to stay late to conclude the hearing. Details of the Complainants requested mitigation of loss were received on February 12, 2021. Performance Reviews were received on March 3, 2021. |
Summary of Respondent’s Case:
The Respondent solicitor opened the case by confirmation that the complainant had been lawfully terminated through a bone fide Redundancy situation justified within the provisions of section 6(4) (c) of the Unfair Dismissals Act. He argued that Redundancy was a justified action through Business case necessity, selection had been fairly applied and had nothing to do with the complainant’s race. While acknowledging that the claim linked to discriminatory grounds had been deemed withdrawn, the Respondent denied discrimination and was very hurt by the claim of dismissal linked to race, given the multi-cultural composition of staff. The Respondent operates in Ireland as part of a World-wide Industry. The economic challenges of Covid prompted an Organisational review. It followed that the Customer Support Team in Ireland, of which the complainant was a member was earmarked for restructuring. This resulted in a plan to reduce the number of associate Production Support Specialist roles by two, where work was to be redistributed across colleagues in Manila. All employees in this grade in Ireland, bar 3 who supported a more complex product were included in the selection pool (referred to as A-H) and scored against a selection criterion. 2 Irish Nationals and 6 Non-Irish National, 1 French, 2 British, 1 Belgian, 2 German Nationals. The complainant scored 33 out of a possible 55 and was confirmed as at “risk of redundancy” and following a 15-day consultation period, was made redundant on 12 June 2020. The Respondent offered the Complainant an opportunity to clarify any issues and his queries were answered. They also considered alternatives to Redundancy, but none existed. The Complainant did not raise the exclusion of Irish Nationals from the process, nor did he avail of the pro-offered appeal of the decision. The Respondent followed an in-depth process in preparation for a decision to make two staff redundant. This included a warning letter, a series of at-risk meetings, a conclusion meeting and right of appeal. Criteria relied on by the company were fairly and objectively applied. In his response to the complainant’s submission, Solicitor for the respondent referred to the “personal relationship difficulties” assigned by the complainant to a named senior manager at the company as “outrageous “. Summary of Evidence, Mr A. Mr A had commenced as Manager in August 2019. He told the hearing that the respondent had 15,000 employees globally and were involved in data/fax/SMS Information sector in Acquisitions. In February 2020, an opportunity arose to address a case back log in Finland from the Irish base. There were 8 Associate Product Support Personnel and 1 Senior. These were front line staff. Mr A outlined that it was usual for his Team to offer a cross site support. Three of the pool of 9 were re-aligned to this work. 1. Senior Position, two levels up from complainant. 2. One Support Personnel who had a Training background and was expected to bring back further training experience 3. A Support Personnel who had experienced personal trauma. The plan was to get this “cross fertilisation “up and running within 8 weeks of training. A higher level of management along with Human Resources had signalled that 800-1000 redundancies were earmarked globally in May 2020. Mr A learned of this development via Human Resources on 18 May 2020. There had been a 55% decrease in the volume of calls relating to a product and the Respondent projected that some work would stratify to South East Asia and some work would need to stay in EU. Two positions were earmarked for Redundancy on his Team. Overall, 8 to 10 Redundancies were sought at the Plant. These were not collective redundancies. Mr A submitted that he was offended to be accused of discriminatory treatment towards the complainant. He explained that he had personal awareness of disability in his everyday life which made him ultra-aware of “difference” In his team of 16, 60% were non-Irish and 40% Irish. Mr A was notified of the Matrix to be applied in the selection criteria, which consisted of productivity focus 1. Functional and Technical Depth. The complainant was mentioned as H on the scoring matrix 2. Performance, Financial year 2020 3. Skills/qualification /relevant experience 4. Core Competencies Eight Customer Supports were assessed under this criterion 1 Person B 52/55 German National 2 Person A 48/55 Irish National 3 Person F 48/55 Irish National 4 Person G 45/55 British National 5 Person C 42/55 French National 6 Person E 40/55 German National 7 Person D 38/55 British 8 Person H, the Complainant, Belgian National, 33/55 He undertook a 7-day analysis and scoring and was guided by the Human Resources. He was impartial and wished to protect his Team. He was not influenced by external factors and the decision to identify redundancies was his alone. that he had engaged with the complainant. He denied that the redundancy had been a “sham”. Mr A outlined that he was aware that the complainant had previously been involved in incidence of assault and racial abuse, where the protagonist had been dismissed for gross misconduct before August 2019. Mr A met with the complainant on 26 May and confirmed that he had a two-hour meeting to communicate the outcome of the application of the assessment criteria and where he gave a detailed explanation. The Complainant had marked in the two lowest scored employees. Mr A met with the Complainant on May 29 and explained that a hiring freeze was in place and there was no opportunity for the complainant to laterally transfer within the company. There was one vacancy at Engineer level, which was not a match for the complainant. The Complainant communicated that he was unhappy with his Matrix scoring but did not reach out to Mr A. Another HR Manager tried to engage with the complainant, but he refused to speak to her. Mr A confirmed that the complainant engaged in positive work in “Inclusiveness”, where he had nominated him for a recognition award in February 2020. Mr A acknowledged that the complainant had a strong potential to succeed at the company, but something changed in early 2020 when he began to send nasty emails regarding other staff and demonstrated an inconsistency in his work performance. He was found to be missing in action at work during February, March and April 2020. Mr A confirmed that these issues had been the topic of two conversations with the complainant but were not advanced through Disciplinary. He had been paid for days where he had not been present at his desk. He denied that the complainant had longer service than Mr B, who was retained. Mr A engaged in an extensive explanation of how the scoring matrix had been applied through cross examination with the complainants Counsel. He stood over the scoring recorded in the complainant’s case. He submitted that the changes experienced by the company were not solely attributed to Covid. There had been a reduction in larger clients. Headcount in the named team remained the same as on date of the redundancies in June 2020. He reaffirmed the circumstances which led to the stratification of the team in February 2020. He confirmed that he had made the decision to select the trio with three Directors from the Liaison site. It was a blended team, so the need for competition did not arise. 60 offices globally had since closed during the Pandemic. Mr A rejected that he had deliberately moved Language specialists to English language only positions. Mr A disputed that his own absence through sick leave or the complainants noted absences had impacted on his matrix scorings. He was unaware of any other mechanism applied to Redundancy at the plant. There was no provision for “Temporary Lay Off “at the Company. He was aware that the UK had practiced leave through Furlough around the Pandemic. Mr A re-affirmed that the complainant was provided with input into the respondent’s observations on matrix. The Respondent submitted copies of the Complainants completed Performance reviews for years 2018 and 2019. The partly completed 2020 review was attached but had not been completed as the complainant had ceased work in June 2020. In conclusion, the Respondent representative concluded that the Company was standing over the process, which had led to the complainant being fairly selected for redundancy. He denied that the Company was engaged in a conspiracy against the complainant. He asked for Mr as evidence to be heard and considered and that the decision to identify two positions was neither tainted by discrimination or external influence. The complainant had not engaged in seeking a spreadsheet relied on by the company in arriving at decision to dismiss him through redundancy. The screen had been shared at meeting on May 29. He pointed to direct conflict where Mr A had disputed that the complainant had asked for unpaid leave. He disputed the reasons advanced by the complainant for forfeiting the pro-offered appeal and affirmed that the appointed HR Manager, assigned to hear any appeal. did not have a negative history with the complainant. |
Summary of Complainant’s Case:
The Complainant worked for the Respondent from 2 November 2015 to the date of dismissal through Redundancy on 12 June 2020. His position was subject of a Transfer of Undertakings in July 2016. His salary amounted to €2490.00 gross monthly which incorporated payment of bonus, over time and on call. The Complainant submitted that he had been aware that redundancies were imminent in his work. He contended that the process of selection had favoured Irish workers and his Belgian nationality had resulted in him being discriminated in the decision taken to dismiss him on 12 June 2020. He sought the remedy of compensation in his claim for unfair dismissal. He had lined up another job commencing the week after the hearing without differential in tenure or pay. The complainant undertook to provide details on his loss and mitigation. Counsel for the complainant opened the case by disputing that he was dismissed by reason of redundancy. At first, Counsel for the complainant disputed that a genuine redundancy had occurred in the case, only to eventually accept over the course of the hearing that a genuine redundancy situation had unfolded at the Company. The Complainant argued that staff mobility in increased hiring was visible at the company prior to the complainant’s dismissal and after he had left. The Respondent hired approximately 30 staff for similar positions around October 2020. The Respondent concurred that some new hirers had commenced at the company since the complainant left, but headcount had remained static. Counsel for the complainant advanced several reasons to counter the Respondents affirmations on Redundancy. 1. Three Irish Colleagues, in very similar roles to the complainant were afforded different positions and saved from redundancy in or around the time that the complainant and others were advised that they were at risk of redundancy in May 2020.All 9 team members had attended training and can access these positions. 2. On 15 May the three Irish colleagues were confirmed as moving, without recourse to advertisement to “support a specific product” which did not require any more qualifications/skills than that possessed by the complainant. 3. The Respondent did not consider alternatives to redundancy. At the first” at risk of redundancy “meeting on 26 May, the Complainant was advised of the amount of the redundancy package. Criteria for selection followed later. At the follow up meeting, 3 days later, when the complainant sought a lateral transfer within the company to what he understood was an actively hiring unit, he was informed that transfer was not a viable option due to an employment freeze. 4. The Selection criteria was grossly unfair and did not “accurately measure or assess the value of the complainants work, where he had been consistently one of the best performers on the team. He had received an award in respect of “new projects and trends “on 24 February 2020. The complainant had raised an objection as the selection criteria applied did not reflect his value. 5. The selection of the complainant for redundancy was” a sham “and had arisen from a residual “personal animus “by a Senior Manager towards the Complainant, following an earlier complainant of assault and racial abuse at work. There were also other personal difficulties, shared at hearing, between the two men. 6. The Complainant had lost faith in the Human Resources Dept and determined that the Appeal was not suitable for him. Complainants Evidence: The Complainant told the hearing that he held a PhD in Management and International Relations. He had worked in Ireland previously in 2007-2009 and 2010-2012. He submitted that he had a close working relationship with the company CEO, to whom he had forwarded a book he had written. He was the first Customer support role to be allowed to work from home. His role in this company centred on first level technical support where issues were then escalated to the Engineers. May 2020 was the first time he heard of the prospect for a potential for 5% pay deduction for all the Company or a possible redundancy. At a Team Meeting on 15 May, he learned that 3 members of his team had been re-aligned to “Liaison” for a new team coming from Finland, effective, one week later. The remainder of the team were exposed to possible redundancy. He was aware that 2 Language Support Posts were to be made redundant. He submitted that the trio now aligned to liaison were immune from redundancy The Complainant submitted that he had exceeded his Performance Review and was one of 3 top performers on the team. He had developed an irritation that other staff were watching You tube at work and the Engineer had said that he had missed some calls, which he denied. He acknowledged that he had complained about employees, but he understood that it had been a secret process. He acknowledged that he “was a little bit absent” at work as he had financial issues. He contended that 2 French speakers could have been taken for the Liaison roles, as they had been saved from Redundancy. The Complainant submitted that he had not been consulted around the redundancy .He said that it was a “ done deal “ and he did not have the appetite for an appeal .He suggested 6 months unpaid leave, which was refused and all that was offered was assistance with CV preparation .He told the hearing that he had applied for several jobs on line and felt displaced by the company as he felt he had potential to be saved from redundancy . He did not apply for any of the 30 jobs the company advertised in November 2020. The complainant accepted that a redundancy situation existed at the company but contended that it was tainted by discrimination when the Irish trio was relocated and thus shielded from the process. He submitted that all 9 team members had attended training in the product. He believed it unfair that he had been dismissed. He gave an example that he had 339 completed cases vs one of his colleagues who was retained who had 140. He acknowledged that he had not requested a copy of the Spreadsheet of criteria which had been applied. The feedback had been presented electronically and he couldn’t read it as it was scrolling up and down. The Complainant submitted that he believed that the decision to dismiss him had been completed at that stage. In normal circumstances, he would have considered an appeal, but this was a “done deal” He described that his reference to contacting media around the circumstances of his dismissal was a misunderstanding. He did attempt to canvas higher management, but found doors closed and he decided to advance his case on the legal route. He acknowledged that he did consider changing his mind around 27 June but had been put off by what he observed as preferential treatment shown to a colleague. The Complainant denied that he wanted a higher settlement in his email correspondence with the company. He had no prior understanding of how Redundancy worked at the company. He confirmed that he had not appealed the reported refusal to grant him temporary layoff. Voluntary redundancy was not an option. The Complainant forwarded emails on positions he had applied for via linked in post hearing. In Conclusion, The Complainants Counsel stated that the complainant had been unfairly selected for Redundancy. He acknowledged that a Redundancy had existed, but the process was entirely unfair. The Complainant shared a similar background to the trio who were deliberately saved from redundancy. This was not a credible action and was tainted by the complainant’s race. Counsel concluded that the complainant had in effect entered a disciplinary setting in the run up to the selection of two positions for redundancy and this was the real issue at play. The criteria for identification of the two redundant posts was overly subjective and disputed by the complainant as it had not reflected his real time contribution. By the time of his dismissal, the complainant had lost faith in the Human Resource Dept and elected not to appeal as a result. |
Findings and Conclusions:
Decision:
CA-00035182-001 Claim for Unfair Dismissal Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I decide in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act. I have found that the complainant was unfairly dismissed. I have also found that he contributed to his dismissal.
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Dated: 26th July 2021
Workplace Relations Commission Adjudication Officer: Patsy Doyle
Key Words:
Claim for Unfair selection for Redundancy |