Complainant

Respondent

Anonymised Parties

Driver

Food Distributer

Representatives

  Self

Anthony Slein BL Daniel McLaughlin William J Brennan & Co Solicitors

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-00035122-001

09/03/2020

The Complainant was employed mainly as a driver from the 5th of November 2007 to the 31st of December 2019. His rate of pay on termination was €1,707.89 monthly. The complaint is concerned with dismissal by way of redundancy. Witnesses for the Respondent were the managing director and the depot manager. There was an opportunity for questioning witnesses as well as the Complainant. A complaint was previously referred to the WRC under the ADJ 00026308.A Decision was issued in that case under the European Communities (Protection of Employment Regulations 2000) that the claim was without foundation under that legislation. The Complainant subsequently submitted a complaint under the Unfair Dismissals Act on 9th March 2020 which referral is the subject of this Decision.

The Complainant stated that he received a telephone call from the managing director on the 26th of November 2019. He was informed that an objective review of current employees and needs by departments experience levels and specific skillsets had been completed due to the difficult economic climate. A decision was taken to make a number of employees redundant. He said that when he received the telephone call, he thought it was to offer him the position in the back stores which he knew was coming vacant because the previous postholder was retiring or due to retire. In the telephone call he said that he was informed that the person in the back stores had retired and that the managing director said that he wanted someone who could do the full range of duties, office work, stores, computer work and ordering of stock and was local. The Complainant contended that he had covered the back stores position since 2011 during periods of annual leave and was fully aware of all aspects of the role. At the hearing he spoke about courses which he had attended in order to improve his computer skills explaining that these were related to his part-time work/unemployment status and he was required to complete these courses by the Department of Social Protection. He referred to work which he had performed when the branch manager was out sick, but it was that manager who would not allow him to do the administration work because he said at the time that when he was at home that he wanted to do it himself. It was not a case that he could not do the work but rather that the manager decided he would do it himself. He stated that a couple of weeks after he had agreed a severance package with the managing director, he heard that a new person was to be employed in the back stores. In the telephone conversation with the managing director, he maintained that he was asked how many more years he had to go to retirement and reference was made to the distance he had to travel for work. He could not understand why either of these issues were being raised when he travelled on a regular basis for the company, and it had never been a problem for him. In relation to the acceptance of the redundancy and ex gratia payment he felt that he had no choice, that he felt he had to accept the payment on the day on which it was offered, or he would lose the ex-gratia part of the payment.

The Respondent accepted that the Complainant was dismissed on grounds of redundancy in December 2019. It was submitted that the Complainant’s role as a relief van driver was redundant. The decision was made for business reasons due to a reduction in work. The Complainant had been employed for some years and arrangements had been made with him previously to accommodate his personal situation. These were outlined in a document of the 25th of March 2011. The role was based in the West of Ireland and was part-time three days a week. On the 26th of November 2019, the managing director for the Respondent had contacted the Complainant and told him of the difficult economic circumstances facing the Company and of the intention to make his position redundant. An offer was made of a fulltime van sales representative position which would be based in Dublin. This offer was refused by the Complainant. There followed some discussions with the Complainant regarding a payment in addition to his statutory redundancy. It was agreed between them that the Complainant would receive a final payment of €15,000 inclusive of statutory redundancy and pay for December and that he would not be required to attend for work during the month of December. The position was outlined by the Respondent in a letter dated 26th November 2019 and confirmed further in an email of 27th November 2019. This was an agreed termination arrangement including the ex-gratia payment. This followed from telephone conversations with the Complainant in which he sought a higher ex gratia but settled for the amount paid to him. There was no further contact from the Complainant concerning his redundancy situation until his complaint was submitted to the WRC. The Respondent agreed that another position at the same depot was filled by the employer in December 2019 following the retirement of another named employee. It is the position of the Respondent supported by witness testimony from the depot manager that the Complainant was unable to perform many of the duties of the other post and did not have the necessary skills. The skills deficit was in the area of administration which the Complainant was unwilling to perform in the past. The driver duties previously performed by the Complainant were absorbed into the role of the depot manager. The Respondent submitted that once the Complainant conceded at the hearing that his role was redundant then the matter needed to go no further.

The first matter to be considered is whether the settlement terms agreed between the Respondent and the Complainant represent a waiver such that the Complainant would not be entitled to pursue complaints against the Respondent arising out of their employment relationship. The document of the 27th of November 2019 at 18:54 is the document which refers to “a final payment of €15,000 with December’s wages as agreed”. The letter refers to the cessation of the telephone arrangements and an offer to contact the Respondent if there was any need to do so and thanking him for his service. The letter indicates a friendly cooperative ending to the employment relationship and no ill will between the parties. However, the circumstances of the arrangement were that the Complainant received a telephone call and negotiated a severance arrangement within a few hours with little opportunity to consider the matter; the only matter for debate was the ex gratia payment which he sought; he was removed from the workplace with immediate effect. There is no correspondence issued by the Respondent which explained clearly to the Complainant the implications of the acceptance of the offer such that it could be regarded as a waiver of his rights to present any complaint related to the employment relationship. The agreement reached could not be regarded as one which meets the threshold of a waiver.

A genuine redundancy situation arises where an employee is dismissed by an employer on grounds unrelated to the employee concerned, and the dismissal is for one of the following reasons:

1.      Where an employer ceases to carry on business in a place where the employee worked.

2.      The requirements of a business where employees of a particular category cease.

3.      The employer decides to carry on business with fewer or no employees.

4.      The work which the employee carried out can be done in a different manner and the employee is not sufficiently qualified or trained;

5.      The work which the employee carried out can be done by someone capable of doing other work for which the employee is not sufficiently qualified or trained.

From the evidence at the hearing, it is accepted that the requirement for a standalone relief van driver position, the one performed by the Complainant, ceased. It is also clear that the employer decided to carry on the business at the place where he was employed with fewer employees. On balance, it is accepted that the work which the Complainant performed previously, following his departure would be done in a different manner, that is to say through the depot manager by means of a reorganisation of his work. It is noted that the Complainant performed the back stores job only for limited periods of holiday cover and not on an ongoing basis, but he did perform the duties and was familiar with the role. The requirement for the job appeared to be more technical and computer literate in terms of skills than those of the Complainant notwithstanding his efforts to upskill himself over a period of time and his evidence in this regard is accepted as genuine. The question of whether the Complainant was not sufficiently qualified or trained to do the remaining back stores work is therefore something of an open question. The same may be said of the reorganisation of the work-as to whether a different re-organisation might have achieved the same result i.e., three roles reduced to two in the depot, but which could have included the Complainant.

Where the Respondent does not meet the test set in respect of a selection for redundancy is the failure to consult with employees, the Complainant in this case, in advance of implementing redundancies. It is evident in this case that the Respondent had conducted a review of needs and made a decision regarding the Complainant without any consultation with him. There was no process in place whereby the Complainant had an opportunity to make a contribution to the decisions about his future or even make a case as to why he could be employed in any role or how his role might continue, for example, with a reduction of hours or days worked or perhaps with some additional training. The decision to inform the Complainant of his redundancy in a telephone call simply announcing his decision is not accepted as a form of consultation or indeed a fair process for any employee and not in this case. There is an unqualified requirement to consult an employee prior to redundancy and a properly convened meeting with an opportunity to consider the position and make his views known on any alternative is the least that any employee could expect. In this particular case the Respondent referred to the good relationship and accommodation that he had provided to facilitate the Complainant previously in Dublin and in moving to the West of Ireland. His letter of termination implies a good personal relationship between them. Even more reason why a telephone call from another country informing the Complainant of his immediate redundancy is not an acceptable way to terminate, i.e., dismiss an employee. Given that the Complainant was to be paid until the end of December -his period of statutory notice-there was no other obvious justifiable reason for the haste in making the Complainant redundant with immediate effect.

Regarding the Respondents view that once the Complainant accepted that his position was redundant that is in effect the end of the matter- while the Complainant answered that question honestly at the hearing, the response does not detract from the overriding obligation on an employer, the Respondent in this case, to consult with employees before implementing compulsory redundancies. And a secretive needs analysis where the Complainant is ruled out of available job opportunities, and where his duties did remain , as occurred in this instance, is an unfair process for selection for redundancy and the consequent dismissal effected by that is, by extension, an unfair dismissal. This is particularly so when the Complainants primary role was to some extent at least, retained, albeit by another employee and he had provided cover for the retained a role for which another person was recruited.

In support of these findings I refer the parties to Labour Court Determination UDD219 in which case the parties accepted there was to be one redundancy and the consultation process came under scrutiny:

In those circumstances the Court concludes that the procedures adopted by  the Respondent to identify as between two employees which employee should be dismissed were so lacking in transparency and fairness as to mean that the Court cannot accept that the dismissal of the Claimant 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 one employee versus another arising from the redundancy of the employees previous role. In those circumstances the Respondent has failed to discharge the burden of proof  resting upon it to establish that the dismissal of the Claimant was fair.’   

Regarding redress, the Complainant remains unemployed for over 12 months since the termination of his employment. The evidence presented at the hearing regarding his efforts to obtain alternative employment do not suggest a very active approach on his part even allowing for the Covid situation which has developed in the meantime. The Complainant is an experienced van driver and none of his efforts to obtain alternative employment suggest a very active attempt to secure employment appropriate to his experience. In the circumstances of the case, the only feasible and practical redress is compensation, as indicated by the parties at the hearing. Compensation in this case takes account of the findings that there was need for a redundancy and where the case turns for the Complainant is in relation to the consultation process. The compensation below is in addition to the ex gratia payment previously paid by the Respondent.

Unfair Dismissals Act 1977 CA-00035122

The claimant was unfairly dismissed. The Respondent is to pay the Complainant compensation to the amount of €5000.

Dismissal  selection for Redundancy