Complainant

Respondent

Parties

Michael  Hutchinson

Schivo Medical Limited

Representatives

Allan Crann BL, instructed by   Sean Ormonde & Co. Solicitors

KIwana Ennis BL, instructed by Shannon & O'Connor Solicitors LLP

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-00036481-001

02/06/2020

The complainant waked as a Manufacturing Quality Engineer with the respondent.  He commenced employment on 03/01/2019 and was dismissed by reason of redundancy on 27/03/2020.  He was paid €923.07 gross per week.  He submitted his claim for unfair dismissal to the Workplace Relations Commission on 02/06/2020.

The complainant was informed on 20/02/2020 that his job was at risk of being made redundant.  The reasons given were due to financial constraints and a limited budget for the Quality Control Department.  He worked as a Quality Engineer and reported to the Quality and Validation Manger of the respondent.  The complainant submits that his role was not made redundant, but his contract of employment was terminated using the cover of redundancy.  The context of this was that his manager (Mr A), who was responsible for recruiting him, left the company in January 2020 and the respondent then used this opportunity to terminate his employment.  When he was informed that his position was at risk of redundancy he was told that because of the restructuring of the Quality and Validation would move to the Lead Engineering Department this would have an affect on three engineering positions one of which was occupied by the complainant.  The complainant’s role was the only one made redundant.  When he was notified of the risk of redundancy he raised a concern that this was not a genuine redundancy and he made a proposal that if one of the engineering positions was upskilled then a quality engineering role could fulfil the Regulatory Affairs and Quality Systems role.  This would result in the complainant remain in the Manufacturing Quality Engineer and Quality Lead role.

The redundancy was confirmed on 25/02/2020 and he was being dismissed with effect from 27/03/2020.  He was invited to apply for other positions within the company.  He applied for one position but was not called for interview.

It was submitted on behalf of the complainant that the context of this redundancy arose when the previous manager and the complainant raised a number of quality issues.  The complainant was approached by a member of the senior management team while attending a meeting and was asked why he was attending for training while on annual leave.  The complainant described the negative interaction that occurred in front of other colleagues. He did not raise a formal grievance but did request the HR department to make a note of this incident.  The issues in the quality department arose from the lack of staff. It is the complainant’s position that there were no financial challenges on the respondent that would justify redundancy.  There were a significant number of clients and contracts in place which put the respondent in a sound financial footing.

The complainant was informed that the basis for selection for redundancy would be based on tenure with the respondent.  The complainant was automatically disadvantaged given his short service with the respondent and notwithstanding the fact that he has been an engineer for 25 years and over 20 years working in quality assurance.  The respondent did not seek any suggestions regarding alternatives to redundancy but was told to apply for other roles and in the event that he did not apply he would be made redundant.  The complainant did offer an alternative, but this was not considered by the respondent.  It was submitted on behalf of the complainant that the Unfair Dismissals Acts places an onus on the respondent to prove that a redundancy situation arose and that the redundancy was the primary reason for the complainant’s dismissal.  The respondent’s representative made reference to a number of cases in this regard.  Charlton J in Pansi v JVC Europe Ltd [2021] ELR 70 and subsequently followed in Employee v Adrian Lee Services Ltd, UD2073/2009 and A Housing Aid Manger v A Local Partnership Development Company, ADJ-0004929 (11/07/2917) noted:

“in an unfair dismissal claim, where the answer is asserted to be redundancy, the employer 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.  Redundancy is impersonal.  Instead, it must result from, as s.7(2) of the Redundancy Payments Act, 1967, as amended, provides, “reasons not related to the employee concerned.”  Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues.  If that is the reason for letting an employee go, then there is not a redundancy, but a dismissal”.

It was submitted on behalf of the complainant that the proposed restructure of the respondent’s quality department was not explained or addressed by the respondent when notifying the complainant of his redundancy.  The complainant does not know why a redundancy situation arose.  In these circumstances the questions to be addressed by the WRC are (a) was the redundancy genuine or did the dismissal take place under the cloak of redundancy or (b) was there a cause-and-effect relationship between the redundancy and the dismissal.  If there is a finding that a redundancy situation arose then this cannot be looked at in isolation and the background factors such as the resignation of the complainant’s manager and the issues regarding the resourcing of the quality control department must be considered.

The lack of any consultation is also a feature of this case.  There was none.  In any event it may have been a futile exercise as the complainant had expressed concerns about the role and resourcing of the quality control department. 

The complainant obtained alternative employment on 18/11/2020 and was therefore out of work for eight and a half months.  He is currently earning approximately €50,000 per annum and his loss for the period 27/03/2020 to 18/11/2020 is €26,500.

The complainant gave evidence and confirmed the dates of his employment with the respondent.  He outlined the roles he performed and outlined that he was a Manufacturing Quality Engineer who had FDA [Food and Drugs Administration] device experience.  As the Quality Engineer he had some supervisory experience over the Quality Control room which involved five to six employees.  He confirmed that there were legacy issues issued in the department.  It was his view that the Quality Control manager left due to the pressure he was under.  There were two serious legacy issues.  One related to a product validation and the respondent took this back in-house to sort out the errors.  The second was an issue in relation to what he described as the “surge of product in the de-burring area”.  This resulted in some foreign matter in the product.  The impact of this was that the Quality Department would be seen as delaying the product.  The focus was on quantity over quality.

The complainant was asked to outline the impact of the incident involving a member of the senior management team.  He was attending a meeting with colleagues and this manager queried his attendance at training while on annual leave.  He was not pleased with the way this happened and he decided to cool off and explain to the manager.  Following this he reported the incident to the HR Manager, Ms G, and confirmed that he did not wish to make a formal complaint at that time but would do so if there was a reoccurrence.   The complainant outlined some of the changes he noted after the manger left.  Some of the operations team took over some of the quality issues.  There was no discussion with him in relation to this or his role.  He also had no knowledge that his role was being considered for redundancy prior to the meeting on 20/02/2020.  He was aware that the business was in a healthy position.  He outlined his recollection of the various meetings he attended in relation to the redundancy process.  He thought that one of the new roles, the validation position, was already there and the regulatory affairs was merely a realigned role.  He could not understand why the respondent decided to use the criteria of last-in-first-out as they were not operating in a unionised environment where such a criteria might have been agreed.

The complainant confirmed that he looked at all the positions he was notified of.  The regulatory affairs role was not suitable for his skill set and the project engineer would incur a pay drop.  He was informed that any role he would be offered would be subject to a renegotiation of his terms and conditions.  He was not offered any alternative to redundancy.  He was simply told that he if wanted any role he had to apply.  The complainant was asked if he was encouraged to apply for these posts and he could not understand why he was not considered for the Quality Engineering Role as the respondent had his CV, knew his skills and that he could have been a good fit for this role.  He confirmed that he applied for the Quality lead role as he had worked as a quality engineer with the respondent and also with his previous employer.  He had FDA experience and also Quality Control supervisory experience.  He outlined his experience of working in an FDA controlled environment and his awareness of FDA requirements.

The complainant outlined that he was surprised at the respondent’s failure to shortlist him for the post of Quality Engineering role.  He felt that this was related to the fact that he was the person who was responsible for highlighting any non-confirming products and that meant “my cards were well marked”.  The only follow up he had in relation to this application was a call from Mr R.  He felt that he had relevant experience such as having direct reports, hosting audits and previous Quality Control Room experience. 

The complainant was asked to explain why he did not apply for other roles and he outlined that there were too many points in the job description that he could not cover.  He had no faith in the respondent as they were aware that he had left a full-time permanent position to work for them.

The complainant confirmed details of his attempts to mitigate his loss and that he registered on job websites, contacted recruitment agencies, applied weekly for various jobs.  He gave a list of the various companies he applied to and on two occasions he undertook a medical.  He obtained employment on 18/11/2020 which was a period of eight and a half months from his dismissal. 

The respondent is a medical devices company which specialises in producing live science systems and outsource solution to medical device and life science companies.  The respondent was employed as a Quality Engineer from 03/01/2019 until his employment was terminated by reason of redundancy on 27/03/2020. 

When the manager of the Quality Department resigned his role was not replaced. Another manager Mr R took over the role on an interim basis.  He formed the view that the department was not functioning correctly or to the required standard.  There was also an increase in customer dissatisfaction which resulted in the department being put on several quality improvement plans.  With the resignation of the manager there was a skills gap in regulatory affairs and this needed to be filled with someone who had both the regulatory qualifications and experience.  Mr R conducted a review of the department and arising from that a decision was made to restructure the department.  In simple terms the changes can be summarised as follows:  prior to the review there were six employees consisting of a Quality Assurance Manager, a Validation Engineer, 3 Quality Engineers and a Documentation Controller.  The new structure would consist of; a Quality Assurance Manager, a new role of Quality Engineering Lead, a Regulatory Affairs and Quality System Engineer and one Quality Engineer.  The complainant was one of the three Quality Engineers.  The new structure would see three roles become redundant.  Two Quality Engineers and the Documentation Controller roles.

The respondent’s custom and practice is that the selection of redundancy was based on length of service.  In relation to the Quality Engineers the two with the shortest length of service were selected.  The process involved was that the complainant was advised on 20/02/2020 that his role was being made redundant and to identify other roles for which he could apply in order to avoid redundancy.  The rationale behind the decision was outlined and that was that a skills gap arose from the resignation of the Quality Assurance Manager and in order to meet the needs of the business a decision was made to made two of the Quality Engineers redundant and create two new roles consisting of a Quality Engineering Lead and a Regulatory Affairs and Quality Systems Engineer. The complainant was assured that his selection was based on the fact that he was recruited by the previous manager was not correct and the decision was not personal and was based purely on his role.

The complainant was advised that he could apply for the two new roles and he was given copies of the new structure.  Details of other roles were also provided to the complainant.  A further meeting took place on 26/02/2020 at which the respondent’s position was again reiterated, and the complainant advised that if he was unsuccessful in obtaining an alternative role with the respondent then, his employment would be terminated by reason of redundancy.  This was confirmed in writing and along with notice that the redundancy would take effect on 27/03/2020.

While the respondent continued to engage with the complainant he only applied for one of the roles, the Quality Engineering Lead and he was not shortlisted as there were candidates with significantly more qualifications and experience.  The complainant submitted a query in relation to another role but applications for this role had closed about ten days earlier.    The respondent confirmed the termination date and entitlements on 25/03/2020 and as he had less than two years’ service he did not have an entitlement to statutory redundancy.

The respondent contacted the complainant on 06/07/2020 to notify him of a vacancy for a Cleanroom Engineer position which was a role equivalent to his previous role with the respondent. The complainant did not respond to this.

The respondent’s representative submitted that the complainant’s selection for redundancy was not related to his recruitment by the former Quality Assurance manager.  The complainant’s selection was “based on the entirely objective criterion of length of service”.   The complainant did not raise issues in relation to the lack of resourcing and other issued in the Quality Department.  He had sought the recruitment of a full-time role in the calibration area, but the respondent did not see merit in this.  The respondent also denies that there was any interaction of an abusive nature with a member of the senior management team.  The complainant did not make any formal complaint in relation to such an allegation.  The respondent also wished to clarify that it was not correct to say that the complainant had some of his duties and responsibilities taken from him when the Manager resigned.  What happened was that when Mr R took over on an interim basis some of the supervisory functions which the complainant “partly performed” were moved to the Operations Team so as to facilitate the complainant to focus on quality assurance issues.  The respondent also submits that the complainant was not the only Quality Engineer to be made redundant.  There were two such posts made redundant.

The respondent submits that the complainant’s dismissal was fair as it arose by reason of redundancy and the process was carried out in accordance with fair procedures.  The respondent encouraged the complainant to apply for other roles and was informed of all open roles at that that time.  However, he only applied for one role.

The acting Quality Assurance Manager, Mr R, gave evidence.  He confirmed that there was a gap in the regulatory affairs area when the previous manager resigned in January 2020.  He conducted a review of the department and as a result of the new structure three existing roles would be made redundant.  The selection criteria used by the respondent in redundancy situations was always based on tenure. He confirmed details of the complainant’s role with the respondent.  In relation to the review he conducted he outlined that he met with all members of the team and completed a gap assessment.  He looked at how these gaps could be addressed and decided that it would require the recruitment of two new roles – a Quality Engineering Lead and a Regulatory and Quality Systems Engineer.  He gave evidence in relation to the rationale behind these roles and that none of the Quality Engineers who were in post had the relevant experience for these roles.  He explained that the three Quality Engineers had different roles. One had a validation engineer role which had a wide skill set and would remain with the business. The other two roles were Supplier Quality Engineer and an Engineer Role, and both of these roles were made redundant.

Mr R gave evidence in relation to the various roles and the skills required for the two newly created roles.  The role of Validation and Quality Engineer was a niche role and one which would be difficult to train in house.  Mr R also denied that there was any link between the complainant’s redundancy and his relationship with the previous manager.  Mr R also confirmed details of the process undertaken by the respondent in relation to the redundancies.

Mr R gave further evidence in relation to the complainant’s application for the Quality Engineering Role and confirmed that on reviewing the complainant’s CV he did not have as much experience as some of the other candidates and therefore was not shortlisted for interview.  He confirmed that the complainant had the skills and experience for other roles.

Under cross examination Mr R confirmed that he never had any issues with the complainant’s performance of his duties.  He confirmed that the departure of the Quality Assurance manager in January 2020 was the catalyst for the changes.  He acknowledged that the complainant and the manager worked closely and as far as he was aware the manager left for personal reasons.  He could not recall he complainant raising any issues in relation to the department.  It was put to him that the complainant raised an issue in relation to the Validation Management division which was sub-contracted out and then taken back.  Mr R confirmed that the work was taken back when a product needed to be recalibrated.  Mr R also confirmed that he was not present when the complainant had an issue with a member of the senior management team and he was not aware of this.  Mr R was taken through the various roles on the respondent’s organisational chart and he outlined the rationale and differences in these roles compared to what existed prior to the redundancies.  Mr R confirmed that there were two meetings with the complainant in relation to the redundancy.  He denied that the redundancy of the complainant was linked to the fact that he was on €10,000 more than other engineers.  He confirmed that the salary was not looked at.  He also confirmed that the respondent always used the last-in-first-out criteria in a redundancy situation. 

The Respondent’s HR manager, Ms G, also gave evidence.  She confirmed her role and that she was not involved in the review process of the Quality Department.  She became aware of the review when Mr R contacted her about the proposed restructuring.  She advised him of the company’s process and she was involved from that point. She confirmed that since 2016 there were approximately six redundancy situations involving approximately twenty people and the last-in-first-out criteria was used consistently as this was the embedded practice.  Ms G provided an overview of the various roles which were notified to the complainant.  She also confirmed that the redundancy was not used as a mechanism to get rid of the complainant.  The last-in-first-out was the criteria they were bound to.  Ms G also confirmed that she contacted the complainant to advise him of another role in July 2020, but he did not respond to this.  Any decision in relation to the filling of such posts would be made by the relevant hiring manager 

Under cross examination it was put to Ms G that the dismissal of the complainant was linked to previous issues and this was done under the cover of redundancy.  The sole criteria used clearly put the complainant at a disadvantage.  The fact is that the complainant was presented with a redundancy situation from day one.  Ms R reiterated that the criteria used was consistent with the company’s practice.  There was no link that she was aware of to anything but the reorganisation of the Quality Department.

It is not disputed that the complainant was dismissed by reason of redundancy on 27/03/2020.   Having carefully considered all the evidence adduced and the respective submissions of the parties, it is clear that while the complainant contends that there was no genuine redundancy, the respondent submitted that the termination of the complainant’s employment constituted a dismissal by reason of redundancy. Directly relevant to this complaint is the creation of two new roles within the Quality Assurance Department, the Quality Engineering Lead and the Regulatory Affairs and Quality Systems Engineer roles.  This placed the existing three Quality Engineer roles at risk of redundancy.  The complainant occupied one of these roles.

I have to consider the Complainant’s claim of unfair dismissal in the context of a redundancy scenario.

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

“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 are substantial grounds justifying the dismissal.”

Section 4 (3) (c) of the Unfair Dismissals Act, 1977 further clarifies the situation in relation to redundancy by stating, inter alia, 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 ... the redundancy of the employee…”

Section 6 (7) of the Act states as follows:

“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, the Tribunal or the Circuit 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…”

On the basis of the legal position as set out above, the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy.  Arising from this, the burden of proof rests with the respondent to establish, in the first place, that the dismissal was wholly connected to redundancy, and having done so, to justify the selection process whereby the employee in question was selected for redundancy. 

There is a considerable amount of case law in relation to the reasonableness of the employer in relation to the fair and objective selection of employees for redundancy.  In Boucher v Irish Productivity Centre [1994 EL 205] the Tribunal enunciated the burden on an employer to: “establish that he acted fairly in the selection of each individual employee for redundancy and that, where assessments are clearly involved and used as a means of selection, that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made.”

In the within case the redundancy proposed by the respondent would see the complainant’s role removed and as the evidence presented indicates that this was one of three similar roles within the respondents Quality Assurance Department. 

The function of the Adjudicator is to assess what a reasonable employer, in the respondent’s position and circumstances, might have done.  This is the standard by which the respondent’s actions must be judged against.  The Act places the burden of proof on the employer to demonstrate that the dismissal was fair.  As part of exercising this burden of proof the respondent needs to show that fair process and procedures were applied when conducting the redundancy process.

I also have regard to the Employment Appeals Tribunal in the matter of Gillian Free v Oxigen Environmental UD 206/2011, where it was noted that:

“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 … and where there is no agreed procedure in relation to selection for redundancy … then the employer must act fairly and reasonably”.

I accept that the Respondent is entitled at any stage to restructure any of its departments or business model in order to maintain its position and ensure efficiencies. I am satisfied that the respondent applied the sole criteria fairly and consistently.   Accordingly, I do not consider that there was a breach of Section 6(1) and that a redundancy situation arose in relation to the role the complainant was engaged in.

I must have regard to the provisions of Section 6(7) of the Act (as amended) and consider whether the conduct of the respondent in relation to the dismissal was reasonable.  In making a decision on this, I have examined firstly the process surrounding the notification and whether or not there was a meaningful consultation process.

The complainant attended a meting on 20/02/2020 at which he was informed that his position was being considered for redundancy due to a proposed restructuring of the Quality Control Department.  Details of the proposed changes were provided and details of these along with notes of the meeting and job descriptions for other roles were provided to the complainant.  A further meeting took place on 26/02/2020 and the complainant was encouraged to apply for various roles.  Details of this meeting and notice of redundancy were confirmed in writing the following day. It is also significant that the complainant took annual leave on 28/29/02/2020 to consider these matters.  This was followed by a period of sick leave which continued up to the date of his dismissal.

I find no evidence that the complainant’s dismissal by redundancy was linked to or influenced by his close working relationship with the previous Quality Control Manger, issues he highlighted in relation to Quality Control matters or the matter of the interaction he had with a member of the Senior Management team.  I find that the redundancy process was conducted in line with the requirements of impersonality and change.  Redundancy means that a particular role is discontinued and I accept the evidence that this is the case.

In all the circumstances I am satisfied that the process was fair and in accordance with the principles of natural justice and I find no evidence which would render the dismissal by reason of redundancy unfair from a procedural perspective.

I find that the decision to dismiss the complainant on the grounds of redundancy were not unfair.

Redundancy, consultation. Procedures.