Complainant

Respondent

Parties

David  Murphy

Kent Stainless Wexford Limited

Representatives

 Self

 Michael Holton, Operations Diector

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-00042727-001

26/02/2021

The complainant commenced employment with the respondent on 26 March 2018.  The complainant had been laid off due to the Covid-19 outbreak.  The complaint is in relation to the decision of the respondent to make the complainant redundant in February 2021.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. No. 359 / 2020, which designates the WRC as a body empowered to hold remote hearings.

The complainant was called to a meeting at short notice on 10 February 2021 and was not aware of the purpose of the meeting.

The complainant was informed at that meeting that he was being made redundant.

The complainant received a cheque from the respondent on 15 February with no break-down of the payments involved in the lump sum.

The complainant received an email on 26 February stating that his termination date was effective as of that date.

The respondent conducted a review of material flow in the factory in October / November 2020 and decided to align the operations of two yards that handled materials.

This alignment resulted in a significantly reduced overall workload.  Business had also been reduced by over 30% as a result of the Covid pandemic.

Arising from these factors the role performed by the complainant ceased to exist.

A position in the company advertised at the same time required qualifications which the complainant did not possess.

At the outset of the hearing, it was clarified by the respondent that the correct title of the respondent is Kent Stainless Wexford Limited, and it was agreed to amend the title accordingly.

The complainant commenced employment with the respondent on 26 March 2018 having been recruited through a recruitment agency and was issued with a statement of employment which gave his job title as Material Coordinator.  This statement also includes the respondent’s Grievance and Disciplinary Policy.

According to the Operations Director, the respondent company employs about 135 employees.  The respondent conducted an Operational Improvement Programme in 2020 and reviewed material flow, management and processing.  Resulting from this it was decided to re-organise and integrate certain activities including those of the carbon steel yard and stainless-steel yard.  In the meantime, the respondent suffered a reduction of around 30% in business due to the Covid pandemic.  The outlook for 2021 was also poor and therefore the requirement to implement these changes was more urgent. The evidence of the Operations Director was that one of the results arising was that the role of Material Coordinator was no longer required and was therefore redundant.

The decision was made in January 2021 to make the complainant redundant.  At that time most of the staff, including the complainant, were on lay-off.  The Operations Director contacted the complainant on 10 February and invited him to a meeting that afternoon.  According to the complainant his expectation going into the meeting was that its purpose was to discuss the re-opening of the business.  The complainant was therefore shocked to be informed that he was being made redundant.  According to the complainant the meeting lasted about five minutes.  The Operations Director felt it was somewhat longer than that.  It was accepted, however, that there was no discussion about possible other roles or about re-training nor was the complainant advised of his finishing date or of a right of appeal.  The complainant was advised that he would receive his statutory redundancy payment.

The complainant stated that he received a cheque on 15 February but that there was no breakdown of what was represented by this payment.  On 24 February the complainant sent an email to the respondent requesting a letter explaining why he was made redundant, the date of his redundancy and a breakdown of the payment received by cheque.  A reply was received to the effect that a letter would be issued to the complainant the next day and that his finishing date would be 26 February.  On 26 February the complainant received a letter by email from the Operations Director stating that the redundancy was due to “changes in business levels and a reorganisation of activities”.  The letter confirmed the date of redundancy as being 26 February and ended by thanking the complainant for his service and wishing him well in the future.

Subsequent to these events, at the instigation of the complainant, there was a discussion between the complainant and the Managing Director in which the latter explained the situation to the complainant, expressed her appreciation for his service with the respondent and wished him well.    

In his submission the complainant raised an issue regarding the fact that in late January the respondent had invited applications for the position of a light truck driver.  According to the advertisement this job included a number of duties that formed part of the complainant’s duties.  The Operations Director said in evidence that this position arose unexpectedly due to the existing driver having to resign his position on health grounds.  Amongst the qualifications required were that an applicant hold a C1 truck licence, CPC driving qualifications and would preferably have a minimum of 3 years’ truck driving experience.  The complainant did not apply for this position.  The Director also disputed that there were similarities between the driver’s role and that of Material Coordinator.  In his evidence the complainant said that he did not apply for the position as he did not hold a truck-driving licence.

Section 6(1) of the Unfair Dismissals Act, 1977, states:

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.

Section 6(4) states:

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…

Section 7(2)(b) of the Redundancy Payments Act, 1967, incudes the following definition of redundancy:

the fact that the requirements of that business for employees to carry out work of a particular kind, or 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.

In the case before me the respondent has submitted that a redundancy situation such as that provided for in Section 7(2)(b) above existed in the workplace and that the dismissal of the complainant is therefore not an unfair dismissal as set out in Section 6(4) of the Unfair Dismissals Act.  The situation, however, in which an employer is making an employee redundant whilst retaining other employees has been considered in various legal forums.  In the case of Mulligan v J2 Global Ireland Limited (UD993/2009), the EAT stated:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision such as redundancy.  While in some cases there may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such lack of procedure may lead to the conclusion that an unfair selection for redundancy has taken place.”

IN the High Court, Charleton J. commented in the case of JBC Europe v Panasi (IEHC279 2011), that “it may be prudent, as a mark of genuine redundancy, that alternatives to letting the employee go should be considered.”

As a general rule, therefore, an employer should seek to give as much warning as possible of impending redundancies in order to allow employees the chance of acquiring knowledge of the relevant facts and the time to consider possible alternative solutions and / or to seek alternative employment either within the undertaking or elsewhere.  The employer should also engage in genuine consultation with the employees concerned and, in this regard, seek to establish criteria for the objective selection of the person / persons to be made redundant.  Any representations from the employees concerned should form part of this process.  The employer should also consider if the person / persons could be re-deployed within the organisation and if training could assist in that regard.

In this case there is no evidence of any such process taking place.  The evidence is that the decision to make the complainant redundant was made in January 2021.  Not only had the complainant no knowledge of this decision but when called to a meeting at short notice on 10 February he believed that the purpose was to discuss the re-opening of the workplace.  He was presented with a fait accompli as regards the decision to make him redundant and it appears from either account to have been a very short meeting for what was a such a serious matter.  There was no paperwork prepared and no date given for the date that the redundancy would become effective.  Even allowing for the unusual circumstances caused by the Covid shutdown, it was not the way to conduct such a meeting.

The complainant believed that he was the only person made redundant from the entire workforce.  The respondent subsequently clarified that 5 employees had their employment terminated but that the complainant was the only employee whose length of service qualified him for a redundancy payment.  I note that the Operations Director stated that there were 4 ordinary staff and 2 supervisory staff in the area where the complainant worked.  As regards the vacancy for a truck driver, I accept that this vacancy was co-incidental to the process of integration being undertaken by the respondent and that the complainant did not possess an essential qualification for that job.  Nevertheless, the respondent did not demonstrate that consideration was given as to whether or not the complainant could be re-trained to perform some other function.    

The respondent does not have a separate Grievance / Disciplinary Policy but includes a section dealing with these matters in the statement of employment issued to each employee.  Redundancy is not specifically referred to in that section.  As regards appeals, the relevant paragraph states that “appeals against a dismissal decision will be exercised through the procedures set out in the Unfair Dismissals Acts.”  In the case before me the complainant was not advised of any right of appeal.  The policy does state that an employee has the right at any stage of the procedure to be accompanied by a shop steward or an employee of their choice.  There is no evidence that this right was offered to the complainant.

Section 6(7) of the Unfair Dismissals Act states:

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…

Taking everything into consideration therefore I find that there was a lack of fair and transparent procedure in the decision by the respondent to choose to make the complainant redundant.  Arising from this I find that the complainant was unfairly selected for redundancy and that consequently the dismissal of the complainant was an unfair dismissal.

Complaint No. CA-00042727-001:

I find that this complaint under the Unfair Dismissals Acts, 1977 – 2015 is well founded in that the complainant was unfairly selected for redundancy and that he was therefore unfairly dismissed.  I note from his evidence that he was employed for a period of 7 weeks during May / June 2021 at a rate that was around €100.00 less than he was paid by the respondent.  Having regard to all the circumstances, I believe an award of compensation of €4,000.00 to be fair and equitable and I order the respondent to pay that amount to the complainant.

Unfair Dismissal Acts, 1977 – 2015      Unfair Selection for Redundancy