Complainant

Respondent

Parties

Gráinne  O' Hara

Zeus Packaging Group

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-00040515-001

21/10/2020

The complainant was employed by Zeus from May 8th, 2017, to July 24th 2020 as a Business Sales Executive. 

Due to the COVID-19 outbreak, there was considerable change within the respondent business with six redundancies directly arising from this since March 2020, one of which was the complainant’s role.

The first lockdown had a major impact on the respondent’s business because the main sectors in which its clients operate were badly affected by the pandemic; in turn impacting the respondent’s income.

The respondent had to effect twenty-three temporary layoffs in office based and sales roles and twenty-five in warehouse and logistics. Of the twenty-three in the office and sales, six were made redundant, and four were in the complainant’s department.

All four received redundancy payments, six left the business, two remain on lay off and nine were brought back to work.

We also had to avail of the refund scheme for employees that remained. Some of those employees were on reduced hours and different working patterns than before due to downturn.

The complainant was one of the employees who was be laid off. (Details of the correspondence were submitted in evidence by both parties).

The first correspondence was on March 24th, 2020, in which the complainant was advised of temporary lay-off.

Further correspondence followed seeking savings and providing other information. There was some confusion about the complainant being sent certain information and an offer was made to remove her from the distribution list which she declined.

On May 1st, 2020, an e-mail was sent advising of the extension of temporary lay-off to which the complainant did not reply and on May 6th a letter was sent by registered post informing her of the extension of temporary lay-off which again went unanswered.

On May 27th she was emailed with two letters; the first advised her of operational changes to her role and the second was in relation to the return of her company car. We did not receive any reply or engagement in relation to this correspondence.

On June 8th an e-mail was sent drawing attention to the fact that there had been no response to letters sent by email on 27.05.20 and attaching by mail again. On June 12th and 15th attempts were made to make contact by text message and by telephone. All calls went unanswered.

On June 19th the complainant was emailed about the need to make contact in relation to the return of the company car and a second letter advised of a three-day period to get in touch or the respondent would have to locate and pick up the vehicle.

On June 23rd the complainant was advised that the company car had been located outside of the restricted area for travel, which would have necessitated a breach of public health guidelines if they sought to pick it up. The car rental company advised that the vehicle be reported stolen to the Garda Síochána.

The complainant was informed and given twenty-four hours to make contact to avoid this happening.

On June 26th the complainant was sent an e-mail sent confirming contact and notification of the first redundancy consultation meeting taking place and a reminder included that it was very important to keep in touch with the company during the consultation period as Zeus were now aware the complainant was experiencing      difficulty with WI-FI signal.

The complainant agreed to return the car to Dublin on July 1st, 2020

The second consultation meeting took place on July 10th and the complainant was informed that her role was now considered redundant and that attempts would be made to secure alternative employment.

On July 16th the complainant raised a number of questions which were answered the following day.

On July 22nd the third redundancy meeting was confirmed and on July 24th an email confirming final redundancy consultation meeting taking place.  On July 31st the redundancy payment was made.

This confirms the efforts made to keep in touch with the complainant to update her in relation to her temporary lay-off and of anychanges in relation to her role.

This was the same process used with all of employees on lay off as respect that they were in a very tough situation.

However, we also feel that there is an expectation of an employee on lay off to keep in contact when it is known that the approved contact methods held by the company are not operational. We made every effort to contact the complainant every way we could.

The complainant has stated that there were only two consultation meetings. In fact, there were three on June 26th and on July 10th and 24th.

These were all conducted by phone due to Covid -19 restrictions. All redundancies in the company during the emergency period have been effected in the same manner.

The complainant has said she was unfairly selected. The company carried out a skills selection matrix and selected for redundancy using the same criteria for all employees.

This was based on the critical skills needed for the business to survive in the current climate. Unfortunately, the complainant’s account had suffered so badly we had to effect four redundancies in that department  and the same criteria were applied to all of those.

It has also been stated that Zeus did not give any chance to appeal the redundancy. At every stage in the consultation the documentation shows that there was opportunity to raise questions, queries or suggestions throughout. The complainant chose to engage in this very process on 16.07.2020 and we responded to all her queries on 17.07.2020 offering extra information in the hope of providing clarity on why the redundancy was essential.

We feel it is also important to point out that the complainant was not the only employee affected by the return of company car. We had three other employees in the same situation. All these employees engaged with us from the beginning and returned their vehicles very quickly and it was a much smoother and easier process for all involved.

The complainant’s post has not been replaced and there have been no new recruits to the department in which she worked. Other cost saving measures were also applied including week on, week off rostering and a 10% pay cut.

Consideration was given to extending the lay off period, but it was felt that this would have been unfair to the complainant.

 On 10th July 2020 the complainant was informed that her role as Business Development Manager was redundant and that was the first time, she was told of the existence of a selection skills matrix. She sought further information on it, and this was provided on July 17th.

On 24th July 2020 she was permanently laid off.

 Zeus went through a selection process to decide who was to remain in the company and while the complainant accepts that the company was experiencing financial pressures, she says that they unfairly dismissed her which she attributes to defects in this selection process.

She disputes the number of consultation meeting claimed by the company. The final meeting on July 24th simply confirmed the fact that she would be made redundant and there was no element of consultation.

She also questions how the selection skills matrix was applied and disputes that any such exercise was carried out. They had a choice of more than one employee to select from and they did not do this in a fair way.

Others who had much poorer performance than she had were not selected.

She was not considered for alternative employment and was not given the opportunity to appeal the redundancy decision.

Both parties submitted a detailed narrative of the events, specifically related to the correspondence that passed between them, and they were in agreement on that narrative.

This is another unfortunate case with its roots in the pandemic and the impact it had on a great many businesses and their employees.

The first correspondence was on March 24th, 2020, as the pandemic began to have an impact and in the course of which the complainant was placed on temporary lay-off. This lay off period was extended on May 1st, 2020, and on May 27th she was told of ‘operational changes to her role’.

Somewhat separate to the matters at issue here there was also a problem about the return of the complainant’s company car which became contentious and eventually involved the Garda Síochána.

It appears the complainant did not reply or engage in relation to this correspondence and there may have been an issue with her WIFI connection.

Throughout the month of June there were further attempts made to reach the complainant and again all attempts to get a response from her failed. The respondent observed that it was unusual that she did not seek to contact her employers and indeed it is hard to believe that she did not receive any of these communications.

On June 19th the complainant was emailed about the need to make contact in relation to the return of the company car and a second letter advised of a three-day period to get in touch or the respondent would have to locate and pick up the vehicle.

On June 23rd there as further correspondence about the car. While the issue of the return of the car features in both parties’ accounts it is (on the facts of the case) of little relevance to the complaint.

What is relevant is the selection process that led to her redundancy.

The first notice of a redundancy consultation was sent to the complainant on June 26th, and she was told that it was important to keep in touch with the company during the consultation period as it was now aware she had problems with her WI-FI signal.

The second consultation meeting (online) took place on July 10th at which she was told that her position was now considered to be redundant and that attempts would be made to secure alternative employment.

On July 14th the complainant made a robust case for the retention of her position based on previous performance and other factors which was answered two days later day.

The key extract from that letter is as follows.

After considerable review we have deemed the requirement for a Sales/ Business Development Executive team of our current size no longer justifiable. Over the last number of months and indeed more importantly in the immediate future we have concluded that all aspects of the work which is carried out in your role will in future be covered by changes to geographical layout and account distribution to meet the current business needs. We can also confirm that your role was selected for redundancy using a skills matrix in line with the skills needed in the business in the current climate.

The complainant has questioned whether a skills selection matrix was used. The criteria the respondent says were used were set out in that same correspondence and the respondent has claimed that the matrix was not the only basis on which the decision was made.

But herein also is evidence of confusion on the part of the respondent about the nature of the redundancy process. This specifically arises in relation to the identification of a post (or role) which is redundant and the separate selection of the employee for redundancy; these are conflated in the quoted statement.

A skills matrix has no role in determining whether or not a particular post in the business should be made redundant. People have skills, not posts.

On July 22nd the third redundancy meeting was confirmed and on July 24th an email confirming what is described somewhat creatively as the final redundancy ‘consultation’ meeting took place.  In fact, there was no consultation at that meeting, simply the communication of the fact of the complainant’s redundancy. In that regard it resembled the previous consultation meeting.

On July 31st the redundancy payment was made.

Based on these facts, there is no doubt that the respondent, in common with much of the business sector was experiencing acute trading difficulties arising from the public health crisis and that redundancy was within the range of options it needed to consider, and it did so.

It made six redundancies in total, including the complainant, and included three of her colleagues in the same department. Indeed, of twenty-three employees initially laid off only nine have returned to work.

The difficulty in contacting the complainant is hard to understand in the circumstances and it seems likely that she was deliberately putting herself beyond the reach of the company once she had been laid off.  This lasted for almost two months.

In a redundancy situation there are two main issues to be considered.

The first is whether a genuine redundancy situation exists as set out in section 7 of the Act and which requires the loss of one or more posts in the company. I have no doubt on the basis of the respondent’s submissions that a genuine redundancy situation did exist.

The second concerns the selection process, and the application of the ‘impersonality’ principle which must be central to it.

The respondent asserted that the consultation was ‘real and substantial’.

The correspondence does not entirely bear this out, to the extent that it tends to indicate that almost whatever the complainant might say in the course of the consultation, the decision to effect redundancies, and specifically to make her post redundant would be near impossible to overturn.

This, of itself does not necessarily invalidate the decision to effect redundancies. Where the trading circumstances are such that a reduction in job numbers is unavoidable, then it will require very persuasive, indeed unusual arguments to emerge from any consultation process to overturn the economic calculations which gave rise to it.

It is not impossible; wage reductions, or other efficiencies offered by a workforce may contribute to a solution (and did in this case). They did not, however contribute to the point where redundancy could be avoided, such was the extent of the loss of the business in the complainant’s department.

However, when we turn to the process of selecting which employee will lose their job, things are less clear. In this regard there are more significant questions about how ‘real and substantial’ the consultation process was.

The complainant says in her submission, regarding a letter to her manager.

 I asked him why I was been laid off. He told me that the size of a sales team of our current size was no longer justifiable, and he had used a Skills Matrix as the selection criteria to decide who was to remain in the company. I did not have the necessary skills matrix for the role. When I queried Adrian on the Skills Matrix, he told me that HR would answer that question as he did not know.

She sent an email to him on July 14th requesting information on the skillsmatrix.

She continues (some re-formatting of original for ease of reading).

Adrian replied to my email on July 16th and there was no reference to the skills necessary in the Skills Matrix.

 I sent another on the 16th of July requesting information on the skills matrix used for selection of staff.

On July 17th he sent me the skills matrix used and was based on Customer Focus, Problem Solving, Strategic Prospective, Teamwork, Influencing and winning commitment, Interpersonal Skills, Oral and written communication.

There was no reference on this email as to who decided on the skills that I did or did not possess.

On 20th July I emailed him requesting that he let me know who had been the decision makers on the skills matrix and also created a box for him to tick off the skills I did or didnot have

She says she resent the email on 24th July the day she was permanently laid off and received noreply and critically concludes.

‘To this date I have no idea who in Zeus decided on my skill set or how I rated’.

She submits that therearepeopleemployedafter herstartdateonhigher salarieswhohave similar or lower salesfiguresthan her but who arestillemployedbyZeus.

The respondent has stated as follows regarding the selection process.

The complainant was given information contained within the skills matrix during the redundancy consultation which provided an opportunity for feedback and we engaged with the complainant in line with this.

In this case the matrix was not only one factor in the process, it did not operate in isolation in the redundancy selection. The complainant was informed that her role was firstly considered as it has been so badly affected that she had to be laid off for a period of three months prior to entering the redundancy consultation process.

Impersonality test was used as due to Covid-19 hugely impacting our business overnight we were forced to assess job roles for survival of the business in its current form.  There was no personal aspect to the process and it was purely objective. 

The first of these statements, while it may be partially true is sufficiently untrue to give rise to a problem.

The obligation to conduct a fair procedure is not fully met by a meeting of managers carrying out an assessment of an employee’s skills without giving her some opportunity to have her views considered.

This obligation is not met either by simply telling the employee in question what the criteria are.

This was described by the respondent as the complainant being ‘given the information contained within the skill matrix during the redundancy consultation’.

This is a somewhat disingenuous characterisation of what was done. The second statement compounds this. If there were other factors being used it appears the complainant knew nothing of these either.

Similarly when the respondent describes the process as ‘offering extra information in the hope of providing clarity on why the redundancy was essential’ this too misses the point. The necessity for the redundancy and the selection of the employees to made redundant are obviously related, but entirely separateconcepts

Had the consultation process been ‘real and substantial’ as the complainant asserts, especially as part of a transparent selection process, one would expect the complainant to be aware of the answers to these questions. In truth, it appears that the consultation went no further than communicating the news of the decision to make her redundant.

So, while there was some dispute between the parties as to whether there had been two or three consultation meetings the bigger issue is not the quantity of those meetings, but their quality, and indeed more specifically, their nature.

While there was much reliance placed on the issue of consultation, and consultation is essential, the actual issue is the nature of the selection process; desirable as it is, there is no statutory requirement for consultation at all (other than in the case of collective redundancy).

The respondent appears to misunderstand the role of consultation in this regard and saw it is some sort of self-justifying end in itself. Again, the critical issue is the selection process, not simply some vague, one-way communication process dressed up as consultation.

This is because the same rules apply to any termination of employment and in this case, that of the employee’s right to be heard in respect of the possible termination of her employment.

Had they undertaken a proper and transparent selection process, it might well have led to the same conclusion.  But this complainant had a lot to say about her position and her possible contribution to the future of the company.

And yet, there was no evidence that in reaching its decision to select her for redundancy any of these views had been properly considered or that the selection process was sufficiently diligent and transparent to bring her within the parameters of a fair process.

Again, it is important to emphasise that the issue here is not the quality of the consultation but the fairness of the selection process.

It is significant that one employee remained in the complainant’s department and had there been none this decision might have been easier as it might be argued that no selection was taking place (although the company did have other departments).

Such traditional selection systems as ‘last in first out’ may be crude but they have the merit of being transparent.

But, as long as there was even one position, a need for selection arose and the complainant had the right to be considered for it and I find no evidence that this was done to the standard of fairness required.

Accordingly, I find that the dismissal was unfair for that reason.

An obligation falls on a complainant to mitigate their losses and a complainant should come to the hearing prepared to demonstrate their activity in that regard. This is not a minor administrative or housekeeping aspect of a hearing; it is specified in the statute and the subject of extensive jurisprudence.

She did not do so, thereby denying both the respondent and the Adjudicator of the opportunity of face to face engagement on this aspect of her complaint.

Nonetheless, she was facilitated with an invitation to submit evidence of her efforts to do so, and it was agreed that some anonymisation of target employers would be accepted.

She submitted a document which purported to show that she had applied for some two hundred and seven jobs.

As the respondent noted in its response this contained a large number of duplicated applications and errors (and no corroborating detail). Thirty-five of the applications were for a similar position and it is not clear whether these were all entirely distinct roles, with different employers etc, or the same position applied for on more than one occasion.

In other cases, some positions were shown as having been applied for twice on the same day (five examples).

I consider the document to be unreliable and to have extremely limited evidential value, and it does not meet the burden of proof required to establish the degree of mitigation required, for which she alone bears responsibility.

This is reflected in my award which I have reduced by approximately 50%.

(I note that the complainant received a redundancy payment. On the basis of this finding that she was unfairly dismissed the award made to her in this decision is the total amount to which she is entitled.

To be clear, she is not entitled to both payments and the parties will be required to make the necessary arrangements to ensure that the redundancy payment is repaid in whatever way is most administratively convenient.)

For the reasons set out above complaint CA-00040501-001 is well founded and I award the complainant €10,000. This is in respect of wages lost attributable to the dismissal and is subject to statutory and other lawful deductions.

Redundancy, Unfair Dismissal, selection process.