Complainant

Respondent

Parties

Matthew  Spiller

Demesne Electrical Sales Limited,

Representatives

Kieran McCarthy, Kieran McCarthy & Co., Solicitors

David Pearson ,J W O'Donovan LLP

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-00041323-001

30/11/2020

This matter was heard by way of Remote Hearings 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.

On the first day of hearing, I canvassed both parties on how they viewed the impact of the Supreme Court case of Zalewski v Adjudication Officer and WRC.

Both parties expressed their satisfaction to commence the case as they did not envisage a serious or direct conflict in evidence.

During the Complainants clarification of evidence on the first day of hearing, he referenced “an animus “in the relationship with his direct line Manager. He attributed this animus as a direct contributory factor for his selection for redundancy.

Solicitor for the Respondent sought to call this Manager to give evidence to the hearing. I agreed to this, and the case was relisted for 15 September 2021.

In the interim, the Workplace Relations Miscellaneous Provisions Act had commenced on 29 July 2021. This gave a legislative framework for tendering of evidence under oath / affirmation at hearings before the Workplace Relations Commission.

In line with the WRC Policy on Part heard hearings, I canvassed the parties on how they evaluated the passing of passing of the Miscellaneous Provisions Legislation on the case?

Solicitor for the Complainant confirmed that he did not have difficulty with the evidence already tendered by Mr A.  He submitted that perhaps Ms B should give evidence under oath on the circulation of a certain letter in the case. He also submitted that given that Mr C, the complainants direct line Manager was due to give evidence under oath/affirmation, the complainant should give his evidence under oath. He concluded that he held a certain regret that he experienced a delay in ascertaining the identity of the respondent’s legal representative in the case. He argued that   an earlier notification may have presented him with an earlier opportunity to explore a resolution which incorporated the letter referred to.

Solicitor for the Respondent expressed a satisfaction to proceed with the case on Mr C giving evidence under oath /affirmation.

I took a break to consider the best way forward.

I resumed and explained that the case was at a crossroads. I had heard evidence which had been subject to cross examination from Mr A, Ms C and the Complainant himself. The case was resumed at the request of the Respondent Representative, and I wished to accommodate that request whilst presiding over fair procedures.

I make a proposal for what I considered to be a workable way forward to conclude the case.

I accepted Ms Cs evidence.

I proposed that I would recount from my own records the Complainants evidence in chief, cross examination and my clarifications from the July 9 hearing day in the presence of the parties now assembled. I would then hear from Mr C and the parties closing statements.

Both parties accepted this as a way forward and reserved the right to tender corrections if the need arose.

I accepted their positions and proceeded to read from my notes of July 9. My account was accepted by both parties. I had not identified a serious and direct conflict in evidence, therefore, I proceeded to conclude the hearing in the case on that day.

On that day, I also offered the parties an opportunity to explore a mutually acceptable resolution to the case, but the opportunity was declined.

I requested some additional documentation regarding mitigation from the complainant and records of meetings and Appraisal from the Respondent. Once received, these were shared with the parties for comment, but did not generate a further response.  

The Respondent operates an Electrical Sales service founded in 1977 and operational across a few sites on the Island of Ireland. It currents employs 30 employees across the Commercial and Technical strands and has operated in the current site since 1985.

It was common case that the complainant was employed in the successive roles of Internal Commercial Sales Manager and Inter salesperson between the timelines of 16 April 2016 and 28 September 2020. The Respondent Solicitor outlined that the Complainant had been identified for Redundancy on a LIFO basis, one of two in the Cork branch and another in the North. 

Business in Cork had struggled significantly in achieving its sales targets and the objective was to

“Stem losses “via strengthening of the technical wing of the business. Previous technical advisors had either retired or left the business. Historically, these technical advisors had carried an electrician qualification.

The Respondent reviewed the business model operational in Cork and found.

1.      Surplus of staff to support existing level of business

2.      Need to employ qualified electricians for technical expertise

3.      Need to introduce greater flexibility in work practices

Two Sales roles, one internal and one external were identified as surplus, and the Respondent made the decision to carry on the business with fewer employees.

The Company had previously relied on the LIFO determinant in 2007 and relied on it in this instance also. The Respondent exhibited an Organisational chart which reflected service record considered for redundancy.

The Respondent consulted with employees collectively on 8 September 2020 and individually on 25 September 2020.

Notification of Redundancy was issued to the Complainant on 28 September 2020.

The Respondent subsequently hired an employee with electrical qualifications. The Complainant did not hold these qualifications.

The Respondent went on to re-advertise the Counter role. The Complainant was alerted to this vacancy by email on April 30, 2021. This did not prompt an application from the complainant and the position was subsequently filled.

The Respondent disputed the complainants claim for unfair dismissal and submitted that the Complainant was fairly selected for Redundancy in response to market forces and that he had been paid €5,988.00 in statutory redundancy, €3473.15 in ex-gratia payment and €1, 287.88 payment in lieu of notice. The Respondent added that the job of Sales Representative known by the complainant had gone.

Evidence of Mr A. Operational Director.

Mr A, who had a background in Electronics joined the Company in 1989. Commercial Sales had not required an electrical qualification, but Industrial sales did. Five people had filled technical roles since 1989.

Mr A took over as Managing Director in 2018. There were subsequent changes in technical advisors through retirement and attrition.

Dublin had 800 customers whereas Cork served 150 customers which actually amounted to 70 -75. Sales had begun to decline in Cork. Efforts over 12 months to arrest that decline had not succeeded and the situation was not sustainable.

The Business had relied on the Temporary Wage Subsidy over April, May and June 2020 and the Complainant had benefitted from this subsidy.

There were three counter positions in Cork. Complainant

                                                                                 Mr X                       26 years

                                                                                 Mr Y                       16 years

 A Sales Manager role, Mr C. had 16 years’ experience.

Mr A outlined that he met with staff in Cork in early September 2020 and explained that the current formation of staff was not sustainable.

Time followed for reflection and discussion

He went on to meet with two individuals separately who were then selected for Redundancy.

The Complainant was selected for redundancy on market forces alone and it was not linked to him as an individual. There were no issues with the complainant’s work performance as he was professional and very pleasant.

The Area was found to be understaffed in March / April 2021. The Business went on to invite the complainant for interview when the Electrical role became vacant from February 2021. He did not acknowledge this invitation.

During cross examination, Mr A rejected the Complainants Solicitors assertion that the company relied on a social media site to verify the new hires qualifications. Redundancy, he argued had not been an easy decision and had been a long and hard decision. He denied that he had not had regard for the complainant and his family in the process. He countered that he had handed the complainants name to other businesses to assist in his relaunch.  He recounted the extensive training and chronology of electrical experience from 1989 onwards held by the incumbent to the new position

He rejected that he ought to have picked up the phone with the position became available in April 2021 and spoken to the complainant directly. He answered that the protocol adopted by Human Resources was sufficient to communicate the business notification of vacancy. The Company had received 5 applications for the role.

Mr A was not aware if the complainant had found work. He confirmed that the Business had hired Mr Cs brother on his 18 years’ experience.

In redirect, Mr A confirmed that the position recruited after the complainant left was filled by a qualified Electrician. The job had been described as having an Electrical focus with the Employment Agencies.

The impact of the Covid Pandemic had resulted in a reduction in business of 65% April, 55% May and 40% June.

The Company had not provided an appeal mechanism to the decision to make the complainant redundant. The Company had not put forward alternatives to redundancy.

The Complainant demonstrated a dissatisfied demeanour during the confirmation of redundancy.

Evidence of Ms B, Human Resources

Ms B confirmed that the Company had made two redundancies around the 2007/8-time frame and the mechanism used was LIFO. In 2020, the Company made two redundancies in the south of the country and one in the North. LIFO applied.

She confirmed that the incumbent to the counter role commenced in June 2021.

Ms B confirmed that the company had pursued the position with technical knowledge from February 17.

She could not recall the timeline when the company decided to advertise this position.

Evidence of Mr C, Branch Manager

Mr C worked as Branch Manager . He had been 16 years in employment. He was aware of the Business trading climate where six consecutive quarters had demonstrated a “non-performing “outcome. 2020 had indicated that the business was below target up to the 3rd quarter.

He was aware that the Board of Management were considering redundancies, but he was not involved in these deliberations. He said that employment matters were addressed by the Board. He was aware of LIFO as the chosen determinant for redundancies.

Mr C participated in the Group Meeting. This was followed by individual meetings with the complainant on 25 and 28 September ,2020.

Solicitor for the Respondent had clarified that the letter dated 28 September had in fact been presented to the complainant on September 25. The letter of September 25 was presented on September 28 and Mr C agreed with that sequencing.

On 25 September, the trading figures were discussed alongside an identification of the potential for redundancies. The Complainant was permitted to ask questions but did not pose any.

The parties met again on September 28 when the Complainant was presented with the Redundancy Payment to which he responded: “Is that all? “

Mr C denied the suggested animus and qualified this by stating that they had a very good relationship. The Complainant had improved and excelled at his most recent July 2020 appraisal. He did not hear him raise any concerns at work.

He confirmed that he had discussed the LIFO matrix to the complainant and denied masquerading or dressing up the redundancy as a means of getting rid of the complainant.

During cross examination:

Mr C confirmed that he had not chatted directly with the complainant about his redundancy. The discussions were held in Group. He denied the complainant’s assertion where he was meant to have assured him that he would “always have a job “.

He did not agree that the lead in time to the redundancy was short. Mr C confirmed that he had pointed out the wrong sequencing of the letters by Monday 28 September. He said that the 25th Meeting lasted 10 to 15 mins and 28th Meeting, 10 mins.

Mr C gave evidence that the new job contained a broader technical component. He said that it was a different job to the complainant’s role.

He denied speaking to the incumbent to new role at that point. That role had been advertised in the Canteen and had been vacant a long time.

He confirmed that the business had sustained a decrease in sales prior to the redundancy. These sales had then increased by April 2021.

Mr C said that he wished turnover had been sustained to negate the need for redundancies.

Mr C confirmed that he was aware of the complainants impending case at WRC, but it was not his job to contact him directly or to offer him a return to the role as employment matters are dealt with by the company Board. He was aware that Human Resources had sent out the opportunity to the apply for the position in April and added that it “was the decent thing to do “ He confirmed that his brother had been appointed to the role .

Mr C clarified that the April job was similar to the position vacated by the Complainant. Sales figures were presented globally at the staff meeting. Neither party presented alternatives to redundancy at the individual meetings. The Company had not hosted a ceremonial end to the position.

In conclusion, the Company Solicitor insisted that what occurred in the case had been a genuine redundancy. LIFO, as a determinant had not been challenged. This was a decision at Board level. It was of note that the complainant began applying for new work from Sept 25, 2020, the day of the first Individual meeting. This demonstrated an awareness of his reality.

The Company realised that the sequencing of the letters associated with the redundancy was incorrect and this was unfortunate.

There was no antagonism directed towards the complainant in his role, this was further supported in Mr Cs evidence.

He was critical of the complainant’s approach to the bona fide invitation for him to consider the April 2021 vacancy. His lack of engagement was unacceptable.

He did not accept the parallel existence of his claim before WRC as an acceptable or legitimate reason for not following up.

He flagged that the complainant had already received a payment of €10,750, nett in cumulative payments from the respondents. He had failed to mitigate his loss and had failed to respond to the invitation to apply for work back with the respondent in April 2021.

The claim for unfair dismissal could not succeed as this was a genuine redundancy in accordance with Section 6 (4) of the Unfair Dismissals Act.

The Complainant worked in a combination of roles at the Respondent business from 16 April 2016 to his termination through redundancy on 28 September 2020. His gross pay was €2916.66 per month. The Complainant accepted the respondent stated figures paid on his termination of employment

He has claimed that he was unfairly dismissed and had not found new work post his dismissal.

The Complainants Solicitor, in response to the Respondent submission, outlined that 5 people had been employed in sales at the business, prior to the assessment of need for redundancy.

He was dubious about the new role of technical support/salesperson and submitted that the successful incumbent did not have such electrical expertise. In referring to a Social Media extract, he maintained that this employee had given a record of his time with the respondent to February 2021 as “internal and external sales “October 2020 to February 2021. This mirrored the complainant’s role.

Evidence of the Complainant

The Complainant confirmed that he worked alongside Mr C and was aware of a reduction in sales but not of impending redundancies.

On September 26, 2020, he met with Mr A and Mr C. He learned that “things were bad “and 2 redundancies were to follow. He was clear that he heard Mr C state that he, the complainant, would always have a job.

He was handed a letter dated 23 September on 28 September Which confirmed “your role … has been declared redundant ….

On Monday 28, September 2020, he was asked to sign for his acceptance of redundancy with immediate effect.

He couldn’t understand this development as he knew how valuable he was to business. He interpreted that he held security of tenure. He didn’t receive any further information or options and was shocked.

He was not required to work his notice period.

He subsequently learned that a new employee had come in and this precipitated “a state of shock”

He was unable to turn his job leads into new work. He gave evidence of mitigation and of a period of acute illness in the aftermath of leaving.

He felt that the April letter should have emanated from Mr A or Mr C.

During cross examination, the Complainant confirmed that he was first hired as a Branch Manager but was more suited to sales and moved sideways.

He confirmed that he was handed a letter at 09.10 hrs on September 28 dated September 25.

The other letter had been given to him at 09.50 hrs on September 25.

The Complainant indicated that he had been a previous participant in a collective redundancy but not a single redundancy. He confirmed that he attended Hospital for two months from mid-December -January 2021.

He reflected finding the April notification of vacancy to be unnerving. He did not feel he could trust the letter. He felt his case at WRC was outstanding and was uncomfortable.

He confirmed that as an employee, he was not aware of weekly sales figures and was not met by records. His evidence was that he and the staff carried on processing and shipping orders.

The Complainant confirmed the group meeting occurred on September 8. He had not considered an appeal. He was not permitted a platform to pitch alternatives to his dismissal, nor was he given time off to find new work.

He was overwhelmed at being replaced so quickly at the business.

He had not signed a new contract when he changed roles.

The Complainant expressed his desire to return to the business as he regarded it as progressive, and he enjoyed it.

The Complainant maintained that he had become a target for Mr Cs dislike of him. He said that he felt pressurised to work harder and Mr C was “on my case “and calling him away more and more from his duties. He formed the view that that it would be easier if he was no longer there.

He considered his redundancy and internal and external masquerade. It was a done deal to get rid of him.

In conclusion, Solicitor for the Complainant contended that the facts of the case amounted to an unfair dismissal. With reference to Finlay Geoghan J, he asked the “surrounding matrices of events “be considered.

He carried a strongly expressed view that this issue could have been resolved much earlier between the parties.

He concluded that the exposure to redundancy had had a defeating impact on the Complainant, who understood that his relationships and ratings were good in the job. His redundancy did not make sense.

The Company went on to hire a new employee in the aftermath of the redundancy, yet this was not on the horizon or incorporated into the discussions at the redundancy stage. Six months later, this position was vacant.

 The position alluded to in the April 2021 letter should have been given to the complainant. He argued that Mr C was unable to articulate that this job was in fact the same job vacated by the complainant. This vacancy did not warrant a letter of invitation to the complainant.  This job was eventually filled by Mr Cs brother.

He pointed to deficits in the duration of the consultation prior to redundancy. This was not meaningful and did not constitute a proper consultation.  

This same lack of thought or obligation carried over to the incorrect sequencing of the 25 and 28 September letters to the complainant.

The Solicitor maintained that if he had received details earlier in the case, it could have been resolved.

An order for unfair dismissal was sought.

I have been asked to consider the facts of this case and decide whether the Complainants dismissal as a result of a Redundancy, dated September 28, 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 from both the Complainant (Mitigation) and Respondent (requested notes and appraisal)

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

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.

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 firmly within the remit of section 6(4) (c) of the Act and as a result was fair.

A common thread throughout this case was the Complainants Solicitors submissions that the delay in notifying him of the respondent documentation came against him in seeking to resolve the case. Notwithstanding, that I allowed the parties time to seek a mutual resolution in the case which did not yield that outcome, I undertook to review the file to satisfy myself that parties had been notified of each other’s presence in the case. The claim was first lodged on 30 November 2020. The Complainants Solicitor has been aligned with the case since that time. The Respondent submission has been on file since 11 January 2021 and was shared with the Complainant Solicitor prior to hearing. I am satisfied that the complainant has not been disadvantaged in any way through the exchange of documentation in the case.

I understand that the Complainants representative has directed his comments towards the letter seeking an expression of interest in the Job, 30, April 2021

“… I am contacting you today to make you aware that we are recruiting currently for an Internal person with an electrical distribution trade experience…….”

I can understand that he may not have known the identity of his opposite number in the case until he received the respondent submission following invitation to hearing in June 2021, however, I am satisfied that time was made available to allow both parties to tease out a mutually acceptable resolution together throughout my management of the case. It was not to be, and a decision was requested in the case. I have now commenced that decision.

In the High Court case of JVC Europe ltd and Jerome Panisi [2011] IEHC 279, Justice Charleton identified the essence of impact of redundancy.

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 the hallmark of Redundancy.

  In St Leger V Frontline Distributors Ireland ltd [1995] ELR 160, 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 bear 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.

This was later endorsed in the EAT case of Mulligan v J2 Global (Ireland) ltd [2010]21 ELR 312, where a Sales manager who had led a High-level Acquisition, protected from redundancy, found himself to be redundant, against the backdrop of a new sales manager being appointed the same day. 

In the instant case, the Complainant has contended throughout that he was unfairly selected for Redundancy and that the Redundancy in which he participated was a “masquerade “This was wholly opposed by the Respondent who countered that their action of selecting two redundancies and a third in the North of the Country, through the established custom and practice of LIFO was wholly driven by exigencies of market forces and diminished sales. They argued that sales then increased creating a recruitment opportunity for a position “similar “to the complainant’s previous role only for the complainant to slight the offer made for him to apply for the position.

I have considered the facts adduced through the following window.

1 Was the dismissal a genuine redundancy?

2 Was the Complainant fairly selected for this Redundancy?

3 Was the manner of dismissal reasonable?

The remedies sought by the Complainant incorporated all three remedies with his stated preference in the event of his success for re-instatement. All remedies were opposed by the Responded who clearly articulated that “the job was gone “.

The Complainant has not found new work since his dismissal and the Respondent representative pointed to his curtailment in efforts at mitigation from 5 November 2020, some two weeks post dismissal. I accept that the complainant had a period of illness over the subsequent two months, but I did not ascertain what prevented him pressing on with mitigation as laid down in Sheehan v Continental Administration Co ltd UD 858/1999

Where a complainant was regarded as being obliged to spend a reasonable amount of time each weekday in seeking work and that this time is not the complainant’s own time.

I did not receive any medical reports on the Complainants condition.

I listened carefully all the witness evidence and follow-on cross examination. I accept that the Respondent business had decreased in the area at the centre of this case. I would have preferred to have seen the financial reports presented on September 8, 2020, meeting. However, I accept Mr as evidence that a Redundancy situation   prevailed at the Business in the third quarter of 2020. On reading the complainants July 2020 appraisal document, I noted that he referred to seeking extra back up staff for internal sales. This matched his evidence that the service area was, in his opinion, busy.

Mr A made a concerted submission on just where his quest for an augmented technical qualification was coming from. I accept that this was to be the engine to drive the business. I accept Mr Cs evidence that the business was seeking recruitment to this position for quite a while. I am also mindful of Mr Cs evidence as he charted the long term decrease in sales and his wish that sales had sustained to avoid redundancies.

This was in sharp contrast to the complainant’s evidence which conveyed the message that he had been purposefully and personally selected for redundancy without due cause.

I reviewed the notes of September 8 meeting shared at my request post hearing and copied to the complainant. This identified a target to improve sales and confirmed the continuum in seeking to fill “the Internal Technical Sales role”

Redundancy is built on impersonality and change. I understand Justice Charletons observations in Panisi and I would add that Redundancy amounts to a crisis in an employment relationship. It is the crisis of a sometime unforeseen eruption in the working life of an employee, and it needs to be managed through the robust tools of crisis management. I have established that this is what happened in this case.

I found that the Complainant may not have taken the cues of impending change on board following the September 8 meeting. Because of that he was shocked at being even associated with a decision to make him redundant. He did not have the benefit of moral support or representation at the meetings of 25 and 28 September 2020. He had formed the impression that he was “safe “from termination.

The Complainant had been the subject of an internal redundancy in September 2018. He told me that his initial contract was not revised to reflect his second role of the company in internal sales. I accept that this was a seamless transition at the time, but it should have been reflected in a newly issued contract. It is an important part of the case that the complainant did not interview for this position at that time, as he was redeployed on consent on 25 September 2018. I found it unusual that the complainant did not refer to this transition as a redundancy in his clarifications to me.

Two years later, he was approached and made redundant once more, this time without a backup position.

I have reflected on both parties stated positions in this case and I find that the Respondent was faced with a challenging sales climate, which came to a head in September 2020. I note that the company had reached out for and obtained state supports in the form of TWSS in the early three months of the pandemic but that had not persisted to Autumn 2020. The Complainant had been in receipt of this TWSS. A withdrawal from TWSS created an impression for me, that trading was no longer compromised.

Section 7(2) of the Redundancy Payments Act 1967, as amended provides that:

2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

………

(c) 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,

I have established that the decision to make the complainant redundant did not evolve from any animus between him and Mr C, nor did it arise due to his performance at work which was recorded as “excellent performance “in July 2020. This report was co signed by the complainant and classified as “meets all and exceeds some performance objectives “

I was very struck by the concern expressed by Mr C at the depth of the challenges faced by the business. I found that concern to be genuine. I found that Mr A took a more global view of the business and was firmly fixed on “securing an enabling technical skill “driver to re boot the business. This all pointed to change and impersonality.

I do not accept that the complainant was given assurances of an everlasting tenure, however, I appreciate that he believed that he was effective in his job and did not pick up that his job was at immediate risk at any time prior to September 25. I think he may have misunderstood Mr C in that regard.

However, I accept his detail on the level of incredulity he experienced on September 25. I have attributed this to the deficiencies in the messaging system adopted by the respondent. I also hold the view that the complainant would have benefitted from at the very least, the moral support of a colleague to assist him in filtering a message given by both Mr A and Mr C and at the very best, a representative to advice on how he ought to respond to the challenge he faced at that earlier meeting.

However, I find that I must accept the Respondent evidence that sales were impeded at the company and the Company had decided to operate with fewer workers. I find that the complainant     was dismissed due to a genuine redundancy and that Section 7(2) (c) of the Redundancy Payments Act came into being at that time.

I also accept that the Respondent relied on LIFO, as the established custom and practice model, for the selection mechanism for this redundancy. I accept that both employees selected for redundancy in Cork held the shortest service in their roles and I accept the Respondent Solicitors point that this mechanism was not challenged by the Complainant.

This brings me to explore the manner in which the dismissal was conducted. I have found some significant procedural shortcomings in the approach adopted by the Respondent in this regard.

A Dismissal for any reason conduct, competence, ill health or redundancy carries with it a major change in an employee lives and that of their families. If the process is not launched on strong lines of communication, information sharing and opportunity for clarification, it can worsen the impact of what is already an extensive blow. On balance, I appreciate that it is not an easy time for any employer either.

However, I am mindful of Section 6(7) of the Unfair Dismissals Act, 1977.

(7) 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, 

I founded that the conduct of the dismissal was overly rushed in this case. I could not attribute the speed of the dismissal to an economic imperative. I was re-enforced in that thinking by the cessation of TWSS scheme in the Business in June 2020.

In this I am mindful of the Labour Courts findings in Tolerance Technologies ltd v Foran UDD 38/2016, where the Court signalled a dissatisfaction with the period of consultation which prefaced a redundancy. They were also critical of a lack of representation and a lack of permission to engage with the Board, attributed with the decision to dismiss

I appreciate that the Respondent contended that the consultation period commenced on September 8, 2020, and intensified from September 25 -28 inclusive. This was a completely narrow window of time. The notes of September 8 meeting did not announce a Redundancy Programme, at best these notes signalled a warning that the company had entered a difficult period.

I can understand that the announcement of a consideration for redundancy over a 10-minute period, accompanied by a “fait accompli “letter on 25 September fell far short of best practice and constituted a pre-determined outcome. I have found that the complainant deserved a more respectful engagement in that regard.

I found that the complainant has not recovered from his experiences on September 25. He has carried a marked residual level of distress regarding his treatment on that day, which was not resolved by the time of hearings. I found that he is “stuck” and had not managed to move forward.

  In Kohinoor ltd and Hussain Ali UDD 1629, the Labour Court stressed consultation and the provision of an appeal as important considerations in determining the fairness of a redundancy process.

I noted that the complainant was not provided with an appeal of the decision, nor did he initiate an appeal under the contractual grievance procedure.

I can see that the complainant kept a watchful eye on happenings at the business after he left. He was aware that the technical role commenced in October after he left. He was aware that the postholder left in February 2021.

My attention was then drawn to the evolution of the invitation to apply for a “similar job “to the complainants in April 2021. I appreciate that this post-dated the dismissal, however, I found that the Complainant acted to his own detriment in not responding to this invitation.

 I note his disappointment that the expression of interest was not led by Mr A or Mr C. However, this letter carried the potential at least to bridge the gap between unemployment and employment. I find that the complainant was obliged to at least declare an interest, the question of whether the job should have been conveyed on him then could have been teased out at a later stage. I do not accept that his live WRC case proved a deterrent to this engagement.

However, I was also struck by a certain inconsistency in this case. When the complainant transferred internally from a manager to a hands-on role in 2018, he was not interviewed. It did not make sense to me, that the complainant would be expected to interview for virtually the same position some two years later. I appreciate that he had accepted a redundancy payment by that time and was no longer a staff member, however, I found this inconsistency in methods of appointment to be both unfair and unreasonable.

I have considered all the circumstances of this case and while I have found for the Respondent on both the presence of a genuine redundancy and the method of selection, I must find for the complainant in terms of the unreasonable way the redundancy was conducted. I have found that this led to significant procedural unfairness and thus amounted to an unfair dismissal.

 The Respondent did not provide for a meaningful consideration of alternatives to redundancy. In this, I am mindful of Mr Cs evidence where he was certain that neither party teased out alternatives to redundancy.

Given the National climate of emergency brought on by the National Pandemic from March 2020 , I would have expected some consideration by the respondent for public policy to save jobs through reliance on TWSS/ Temporary Lay Off or Short time . I found the lack of recourse to these levels of assistance all of which were short of dismissal to be unreasonable.

Taking everything into consideration, I find that the complainant was unfairly dismissed through the unfair selection for redundancy.

I am taken some time to consider the most appropriate remedy in this case. Justice Noonan in the seminal case of Bank of Ireland v Reilly [2015] ELR 229, pointed that the remedy “will do justice between the parties “

I have found in favour of the complainant through application of Section 6(7) of the Unfair Dismissals Acts. I was not satisfied with the complainants stated efforts at mitigation of his loss. He has already received a termination payment composed of a nett amount.

I have remarked on my unease surrounding the management of the new position in April 2021 about how both parties addressed this revitalised opportunity.

I found a stark omission in how the Respondent failed to grasp the impact of a sudden redundancy on this employee.

While I understand that the complainant seeks a return to the business, I have found that this is not a practical option given the time that has passed, and the level of distrust articulated at hearing by the complainant was pronounced and unlikely to be resolved by a return.

In a recent Labour Court case of MPSTOR ltd v Opperman UD2133, the Labour Court teased out the prospect of an order for re-instatement and found it was not viable.

 I appreciate that the complainant may want to wind the clock back to a time where his work was static and secure, but the parties’ worlds have changed somewhat since that day, and I cannot force parties together outside a mutual recognition that this synapse is viable.  This employment relationship is not redeemable. It is over.

I will now move to make an order of compensation.

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision 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 compensation is the most appropriate and viable option in this case. I have expressed my reservations at the paucity of mitigation. However, I have identified that the complainant was disadvantaged by the procedural shortcomings associated with the dismissal and the opportunity to scope out new work.

I order the Respondent to pay the Complainant €17, 496 (six months gross pay) as prospective loss in respect of the unfair dismissal. This award does not disturb the award already paid on termination in September 2020.

Claim for Unfair Selection for Redundancy