Complainant

Respondent

Anonymised Parties

Van Driver/Sales Assistant

An Electrical Company

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-00039048-001

06/08/2020

The Complainant claims that he was employed as a Sales Assistant/Driver with the Respondent since 28 August 2009 and his employment ended by way of redundancy on 1 July 2020.

He said that he was unfairly selected for redundancy.

The Respondent said due to a substantial reduction in turnover and having made other cost saving measures it had no choice but to make a number of positions redundant throughout its nationwide branches and that included where the Complainant worked. It claims that it carried out a fair and transparent redundancy process and the Complainant was selected based on objective selection criteria.

The following is a summary of the Respondent’s case.

The Respondent said that the Complainant was dismissed by reason of redundancy after a fair and reasonable process whereby the Complainant, along with three of his colleagues was put at risk of redundancy. Thereafter the Respondent applied objective selection criteria to all of those who were at risk. The Complainant had the lowest score and therefore his employment was terminated by reason of redundancy. The Complainant was informed in relation to each step of the process.

The Respondent said that it is a private limited company with 13 branches throughout Ireland with 77 employees across the 13 branches. The Complainant worked as a Sales Assistant / Van Driver in a southeast branch. It said that the COVID-19 pandemic created huge financial and business difficulties for it and from April 2020 most of its staff were on temporary leave and it performed the bare minimum functions with a minimum number of employees.

It said between April and June 2020 there was a reduction in turnover of over 40% in the Complainant’s branch, and it was clear that redundancies across the Respondent's business would be necessary in order to ensure ongoing viability. At this time, the Respondent employed 84 people. It said after conducting a comprehensive review of its operations it decided that the business must implement seven redundancies in total, and one of which would be in the Complainant’s branch.

The Respondent said that before making the decision to implement redundancies, the Respondent’s business underwent a number of cost-saving measures including a 20% pay cut for managerial employees; availing of the temporary wage subsidy scheme; and putting a number of its employees on a period of lay-off. In the meeting dated 16 June 2020 the Respondent explained to the Complainant that the potential redundancies arose as a result of the Covid-19 pandemic.

The Respondent engaged in consultation with the affected employees in relation to the proposed redundancies. The Complainant and four others who held the same role were put at risk of redundancy. The basis for the redundancies was set out in a letter to them on 10 June 2020, where they were advised on the current trends and anticipated business and the associated level of staffing required. They were informed that the Respondent wanted to act fairly and objectively, a period of consultation and meetings were arranged to allow the staff to ask any questions and explore options. At this meeting, it was explained to the Complainant that a scoring matrix would be used to decide who would be made redundant. Mr A, Group Manager, and Mr B, the Branch Manager, asked whether the Complainant had any questions at a number of stages and the Complainant suggested another alternative i.e., whether he could job share with another employee.

The Respondent said that this was considered after the meeting however, it had tried a job-sharing system in 2010-2011 and it was unsuccessful, and a number of valued employees ended up leaving their post with the Respondent and it was deemed inappropriate.

The Respondent said that each of the individual employees were scored according to the selection matrix on an individual scoring sheet which was divided into specific criteria under the following headings: (a) skills, qualifications, aptitudes; (b) performance; (c) attendance; (d) disciplinary / capability record. The Complainant scored 64 out of 100 marks in the individual scoring sheet, which was the lowest of the four in the redundancy pool. The exact same matrix was used for each of the other employees.

On 25 June 2020 the Complainant met with Mr A and Mr B to discuss the results of the scoring matrix and to inform the Complainant that, due to having the lowest score when the scoring matrix was applied, he was being made redundant. The Respondent said it offered to go through the scoring matrix and the Complainant refused. The Respondent said that the Complainant cannot now imply that the Respondent is at fault for not providing explanations when he refused to allow the Respondent to provide same. The Complainant scored zero in respect of aspects of the role of Van Driver/Sales Assistant that he did not perform. Other colleagues also scored zero in respect of certain skills, qualifications and aptitudes.

The Respondent said they provided him with the details of the payments to which he was entitled to, which included Statutory Redundancy Pay, holiday pay, a bonus payment in respect of 2019 and payment notice period.

The Respondent, in reaction to the Complainant’s suggestion that the Respondent should have unilaterally decided to relocate him to its Dublin branch by virtue of clause 4 of the Complainant’s contract of employment, said that there were no vacancies in any of the Respondent’s branches at the time that the Complainant was made redundant. The Complainant would have been notified of any reasonable alternatives to redundancy as part of the consultation process. Additionally, any relocation clause contained in a contract of employment must be exercised reasonably - 200 kilometres by virtue of the relocation clause in the Complainant’s contract would have been excessive. The headcount in the branch remains unchanged from the date of the Complainant’s redundancy. Since the termination of the Complainant’s employment, vacancies for the position of Sales Assistant/Van Driver have arisen within the Respondent’s other branches as a result of employees leaving employment but these did not coincide with him leaving employment.

In reaction to the Complainant’s suggestion that the Respondent should have pooled all employees who held the same role across the entire country, regardless of the branch, the Respondent said that its approach in treating individual branches separately for the purposes of pooling is both fair and reasonable, particularly given the distances between the branches. It would have been wholly illogical and unreasonable for the Respondent to pool employees across the entire country.

In reaction to the Complainant’s suggestion that he was selected for redundancy as penalisation for bringing a Personal Injuries claim, the Respondent disputed that, saying the redundancy process was not unique to the Complainant, and seven employees were ultimately made redundant. There was an unprecedented global pandemic which resulted in a 40% reduction in the Respondent's turnover and required that the business processes be streamlined in order to ensure ongoing viability; Objective selection criteria were applied to all employees who were at risk of redundancy in order to determine who would be selected for redundancy. It mentioned that other employees have brought personal injury claims against the Respondent, who were not made redundant. The Respondent said that it is fully insured for personal injury complaints so to the extent a financial and/or administrative burden arises, it is incurred by the insurance company. The Respondent’s decision to implement redundancies was completely unrelated to the Complainant’s personal injury claim.

Legal Submission

The Respondent said that the decision in Kohinoor Limited v Ali (UDD1629) is relevant here with regard to the application of a ‘fair’ selection process for redundancy, where the Court cited Gillian Free v Oxigen Environmental in which it was noted, “when an employer is making an employee redundant while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy … the employer must act fairly and reasonably”. In that case, the Court held that the Respondent relied on an objective selection matrix to select those to be made redundant and such selection matrix applied equally to all affected employees.

The Respondent said in terms of the reasonableness on selection criteria it relies on the UK case of Williams v Comp Air Maxam Ltd [1982] 1 ICR 156as instructive and said its objective selection matrix was wide reaching as it considered (a) skills, qualifications, aptitudes; (b) performance; (c) attendance; (d) disciplinary / capability record.

The Respondent also relied on the decision in Boucher v Irish Productivity Centre UD 882/1992 where the EAT reiterated that any fair selection for redundancy would provide for the threatened person to make a contribution in defence of any allegation against their selection for redundancy. The Respondent said that in the present case the Complainant attended two meetings with the Respondent in relation to the redundancy process, where he was given the opportunity to go through his scoring matrix in the meeting on 25 June 2020, but he refused that opportunity. The Respondent said that it facilitated a consultation process, which therefore discharges its obligations in terms of the fairness of the redundancy process and reasonableness of selection. It said that the Complainant was selected for redundancy based on objective selection criteria, which were applied equally to other at-risk employees with the same role. 

The Complainant claims that he was a Sales Assistant/Van Driver with the Respondent from 28 August 2009 until he was made redundant by the Respondent as of 1 July 2020.

The Complainant said that he does not accept the basis of the redundancy. He claims that he had brought a personal injuries claim against the Respondent, and he feels that this is the true basis of the Redundancy.

The Complainant said that although he was made redundant, the Respondent is again advertising for the Sales Assistant/Van Driver positions in the Dublin branch. He said that he has noted variations of the same role that he held, were advertised in other regions since his dismissal. He said that “Clause 4 of his contract of employment” states that the Respondent reserves the right to relocate and transfer him to another department, subsidiary or place of work, without compensation. However, the Respondent never approached him or considered him for those positions.

The Complainant maintains that the Respondent did not have any regard to fair procedures in the selection of the pool of candidates for redundancy. He said that “Clause 4” in employees contracts meant that the pool of employees selected for redundancy should have not been limited to local geographical regions – 4 people selected in his branch- but instead should have extended out to all Ireland.

The Complainant claims that in the consultation on 16 June 2020, he asked Mr. A if someone was going to be made redundant and that was not answered truthfully. The Complainant claims that therefore it would appear that the Respondent did not consider any other options and just made the redundancies without regard to other possible options. The Complainant said that the consideration of job sharing was not given due regards, the example of it not working out was from over 10 years previously, which is not comparable to this different time and circumstances.

The Complainant said that the scoring matrix used by the Respondent was neither fair nor valid. The Respondent said that the matrix was used to select him over the others, he said he refused the opportunity to go through the results of the scoring matrix applied as he was not surprised that he was selected. He said that there was no explanation as to how he scored zero in some categories.

He maintained that the redundancy was not genuine that the true reasons for his redundancy was penalisation for him taking a Personal Injuries claim against his employer. No consideration was given to alternatives to redundancy, or indeed the pool of employees he was selected from for redundancy. He maintains that he was not dismissed for reason of redundancy but instead he was unfairly dismissed.

Legal Submission

The Complainant relies in the decision in Boucher v Irish Productivity Centre UD R92/1992, where the onus is on the employer to establish that the dismissal was necessary by way of redundancy, and he claims that they have failed to do so.

The Complainant makes out that the true reason for his dismissal was described by Charleton J in Panisi v JVC Europe Ltd [2012] ELR 70 where “redundancy cannot therefore be used as a cloak for the weeding out of employees who are regarded as less competent… if that is the true reason …[not] a redundancy but a dismissal.”

The Complainant cites the decision in Daly v. Hanson Industries Limited UD 719/1986, where a causal link between the actions of the Respondent in making an employee redundant for giving evidence at a hearing against the Respondent was deemed on the balance of probabilities as the reason for the employee being selected for redundancy. The Complainant said the same situation applies here because he took a Personal injuries case against his employer.

The Complainant cited the decision in Sheehan and O’Brien v. Vintners Federation of Ireland [2009] ELR 155, where it was found that although that the redundancy may have been genuine, alternatives to redundancy were not considered and the Complainant maintains that this is similar to the case that applies to him here.

The Law

Section 6 of the Unfair Dismissals Act, 1977

“(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.”

Subsection (4) (b) provides that:

“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 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 facts in this case are not in dispute. The Complainant commenced employment with the Respondent on 28 August 2009 until he was made redundant by the Respondent as of 1 July 2020. Therefore, it was for the respondent to establish that in the circumstances of this case the dismissal was fair.  In that context I note the decision of Barry v Precision Software Ltd. (UD 624/2005) [2006] JIEC1801 the Tribunal said:

“In determining whether the dismissal was unfair or not, section 6(6) of the Unfair Dismissals Act 1977 provides that it will be for the employer to ensure that there were substantial grounds justifying the dismissal … It is not for the Tribunal to intrude into the Respondent’s managerial decisions.  The Tribunal has to look at what a reasonable employer would do in the circumstances.  Neither is it for the Tribunal to consider what sanction it would impose.  The Tribunal’s function is to decide whether the employer’s reaction and sanction came within the range of responses, which a reasonable employer might make.”

The Adjudicator’s role is to examine whether, by selecting the Complainant for redundancy, the Respondent breached section (6)1 of the Unfair Dismissals Acts. The burden of proof rests with the Respondent to set out the substantial grounds justifying the dismissal of the Complainant.  The Respondent submits that the Complainant, along with the jobs of 6 other employees, was made redundant as the Covid-19 pandemic had created a devastating damage to its business with a 40% downturn in the Complainant’s branch alone.  It applied a fair objective selection process where the Complainant scored the lowest against the pool of employees under threat of redundancy.

The Complainant’s case is that he was unfairly selected for redundancy after he had previously taken a Personal Injuries claim against the Respondent and he was being penalised for same.

Section 6(3) of the Act states:

“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 matters specified in subsection (2) of this section or another matter what would not be a ground justifying dismissal, or

(b)    He was selected for dismissal in contravention of a procedure (being a procedure that had been agreed upon by on  behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941-1971, representing him or has been established by the custom and practice of the employment concerned) relating to the 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 this case the circumstances constituting redundancy was the declining business and the need to cut costs and ensure the survival of the business.  There were a number of positions nationwide also selected for redundancy.

Section 6(7) of the Act provides that, in considering a complaint of unfair dismissal I must have regard to the following:

“(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b)  to the extend (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.”

I note that the Respondent invited the Complainant in to discuss options as an alternative to redundancy, and it said that the only option put forward by the Complainant was to consider whether a job-sharing option could be considered. I note the Respondent said that it considered that as an option but deemed that it had a negative effect from a previous job-sharing arrangement and it resulted in losing key staff at the time. Therefore, it was not pursued. I note the net effect of a job-sharing arrangement would place two employees in the branch in half a role each. I understand the number of employees in the south-eastern branch remains the same as at the point of the Complainant’s redundancy as it does at the time of the hearing.

Therefore, I have to determine whether there a genuine redundancy situation. I am satisfied that the Respondent suffered from the effects of the pandemic and has struggled financially. I find that the Respondent took measures to save costs, however, it decided it required redundancy. Seven in total across its business nationwide.

In relation to the Complainant’s claim that there were similar positions advertised and the Respondent never offered the Complainant an opportunity to avail of any of these; I have heard in evidence that two positions arose well after the Respondent made redundancies. They were locations in excess of 200km from where the Complainant was located, and they were not foreseen at the time of the redundancy, and they arose because employees left. I am satisfied they were not on the table for consideration when the Respondent was considering making cost saving measures.

On the balance of probability, I find that this was a genuine redundancy.

As regards to procedural fairness, I note a pool of employees were put on notice of redundancy where the Complainant had worked, and a scoring matrix was used to assess the various people within that pool. The Complainant maintains that he knew once he was being assessed that he would be selected for redundancy because of his previous Personal Injury claim against the Respondent as penalisation. The Respondent said that the Complainant was assessed fairly, as was everyone else, and he was selected for redundancy because he scored the lowest score. The Respondent said that other staff members who had also taken a personal injury claim against the Respondent, similar to the Complainant, were also assessed but were not selected for redundancy. Whereas other employees who were made redundant by the Respondent at the time the Complainant was made redundant had no personal injury claims against the Respondent.

Accordingly, I am not satisfied that this case is one that is similar to what was found in Panisi v JVC Europe Ltd [2012] ELR 70 where “redundancy … used as a cloak for the weeding out of employees who are regarded as less competent… if that is the true reason …[not] a redundancy but a dismissal.”

I note that consultation meetings were arranged, and the Complainant was asked to make suggestions on alternatives to redundancy. I find that there was certain evidence presented to the hearing of a meaningful examination of alternatives to redundancy. I note that the Complainant was offered the right to representation throughout the process. I note that he was offered to go through his scores and the right of appeal, but he decided against that.

Given those circumstances I find that the process was a fair procedure and in line with natural justice, which renders the dismissal by reason of redundancy fair from a procedural point of view.

I find that the Complainant was not unfairly dismissed by the Respondent contrary to Section 6 of the Unfair Dismissals Acts. I find the complaint is not well founded.

Unfair Dismissals Acts – redundancy - not well founded