Complainant

Respondent

Parties

Shane Bennett

Westrock

Representatives

Barry Crushell, Crushell & Co Solicitors

Peter Flood ,Ibec

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00044161-001

18/05/2021

The complainant was employed by the respondent as a Quality Supervisor.  He commenced employment on 07/12/2015.  He was paid a salary of €38,978.16.  The complainant was absent from work from 13/10/2016 to 25/05/2020.  This was due to a road traffic accident.  Shortly after his return the respondent announced a redundancy package.  The complainant submits that he was treated unlawfully by the respondent in that he was discriminated by dismissing him for discriminatory reasons.  The dismissal by reason of redundancy took place on 27/11/2020. The respondent denies that he was discriminated against and submits that the complainant was fairly and transparently selected for redundancy.  The complainant submitted his complaint under the Employment Equality Act, 1998 to the Workplace Relations Commission on 18/05/2021.

The complainant was employed as a Quality Supervisor. He commenced employment on 07/12/2015 and was paid a salary of €38,978.16.  The complainant was involved in a serious road traffic accident in December 2015.  He was absent for a period of four days immediately after this accident. In October 2016 the complainant was out of work, on certified sick leave, as a result of the injuries he sustained in that accident.  This absence commenced on 13/10/2016 and he remained out of work until 25/05/2020.  During his absence he regularly engaged with the respondent’s Occupational Health Physician and on his advice, he resumed duty on a phased basis.  This commenced on a four hours per day over five days (20 hours pw) and this was later increased to 30 hours per week.  On 24/09/2020 the Occupational Health Physician determined that the complainant was not medically fit to increase his hours beyond the 30 hours.    In October 2020 the complainant was informed that his role was as risk of being made redundant.  Following a redundancy process the complainant was made redundant.  The complainant submits that this process was discriminatory as his attendance over the previous twelve months was a determining factor. The complainant was being penalised due to his long-term absence as a result of his disability.  As the complainant was unable to work full time his was immediately disadvantaged in the application of the respondent’s matrix.

The complainant gave evidence in relation to his professional background and his employment history with the respondent.  He also gave evidence in relation to the accident which occurred on 14/12/20125 and the injuries he sustained which ultimately resulted in him requiring major surgery involving spinal fusion.

On his return to work on 25/05/2022 the complainant was introduced to a new colleague who had the same title as him.  He gave evidence in relation to the structure of the quality department and the duties he undertook prior to his absence and the changes which were in place on his return.  The complainant gave evidence that the main objective on his return to the workplace was to reintegrate both physically and psychologically.  Although he was incapacitated, he was making progress and the respondent’s Occupational Health Physician advised him that it would take some time for him to get back to normal in terms of his work.

The complainant gave evidence that he was advised on 13/10/2020 that his role was at risk of redundancy.  He did not consider the option of voluntary redundancy due to his personal circumstances.  The complainant outlined that he was given a copy of the scoring matrix to be used by the respondent.  He noted that there was an absence category, and because of an immediate concern he went to the respondent’s HR department and outlined that this category meant that there was an explicit bias against him due to his circumstances.  He did not receive any assurances from HR in relation to this issue.  The complainant confirmed that he did not have any difficulty with absence being used as a category provided it differentiated between long-term absence and what he referred to as “serial absences”.  The complainant explained that the absence scoring would result in him obtaining a score of 2 in that category and it was impossible for him to make up the points lost in any of the other categories.  The complainant also had an issue with the “Skills and Competencies” category.  His concern arose because he was not in a position to obtain a score in the “Exceeds Expectations” area.  This was because he was only back at work for a period of 14 weeks and would have worked a total of 460 hours during that time.  He was in a similar position in relation to the “Goals and Objectives” category.  This did not take into account the fact that he was being assessed over a three-month period whereas colleagues were being assessed over a 12-month period.

During the scoring process the complainant felt that it lacked transparency.  He would have expected a qualitative approach whereas there was a subjective process utilised and this did not take into account the fact that he had a limited assessment period due to his absence as a result of his disability.  The complainant gave evidence that he requested that the data be substantiated but this was never forthcoming. 

The complainant gave extensive evidence in relation to his attempts to make the respondent aware of the fact that the scoring matric was discriminatory towards him and the respondent failed to take account of his situation.  The respondent eventually removed the absence criteria on 23/10/2020.   However, it failed to remove a single day which was also due to issues associated with the accident associated absence.

The complainant also gave evidence that he had significant concerns about the manner in which his self-assessment document was interpreted by the respondent as part of the scoring matrix.  He was asked to list his accomplishments as part of an annual performance review.  This process was introduced by the respondent while the complainant was on sick leave.  He had a limited period of time in which he could have attained any significant accomplishments.  He completed this form in good faith and his manager made a limited input of one sentence on the final document.  The complainant was given a copy of this document two days before his redundancy took place.  The complainant submitted that the document lacked transparency, was not dated and the respondent based its score on the one sentence inserted by his manager in that document.  The complainant submitted that if his performance was to be measured as part of the scoring mechanism this could only be fair if it was measured against agreed outcomes and backed up with relevant data.  There were no agreed outcomes in place.

It was the complainant’s evidence that the entire process contained an “underbelly of unfairness” and in that context his long-term absence “trickled into all elements of the process”.   

The complainant gave evidence that his redundancy was confirmed on 5/11/2020 and he submitted an appeal which was heard by Chris Dears who is the General Manager Ireland Cartons.  His appeal was not upheld.

The complainant accepted that a redundancy situation existed, and he had no issue with the colleague who remained in post.  His concerns are that redundancy was used by the respondent  as “a veil to dismiss me” and that the process, and in particular the scoring matrix, was designed to achieve that outcome.

During cross-examination it was put to the complainant that he had two issues with the scoring matrix initially – absence and service.  There was no mention of skills and competencies.  The complainant explained that he took the criteria of skills and competencies at face value and felt that it would be scored accordingly.  On reviewing this it became clear that he highlighted one accomplishment in a three-week window and in the absence of any goal or objective setting process he was then put at a disadvantage.

It was put to the complainant that absence was a fair metric to use in a redundancy matrix.  He agreed that it was but only if unsubstantiated absences were used.

In relation to his score in skills and competencies the complainant was asked if it was his position that he should have scored “Exceeds Expectations”.  The complainant said that he was not looking for that score, but he was seeking the data behind the score so that it could be “substantiated qualitatively”.  The complainant was asked how his score in terms of service was linked to an issue with his disability.  He confirmed that this was not linked to his disability but was a procedural issue.

It was put to the complainant that if the attendance criteria was not removed he would have been 8 marks behind his colleagues but as it was removed he was then on equal points going into the skills and competency criteria.  The complainant said that it was his view that “my fate was sealed” as the respondent knew that he had no outcomes to be measured against under skills and competencies.

It was put to the complainant that Mr Dears, in the appeal process, made a special case that the complainant was reviewed over a four-month period while his colleagues were measured over a twelve-month period.

The complainant was asked to outline how he was discriminated against.  He said that the scores he was given on the matrix were not substantiated.  The complainant was then asked to explain his view that the redundancy was a veil to terminate his employment.  The complainant said that this was because he was unable to work full time the respondent had a desired outcome and the process utilised put in place then worked backwards to achieve that outcome.  It was his view that it was “palpably unfair” throughout the entire process.  The complainant said that he wished to state again that he had no issue with his colleague who remained in post. 

It was put to the complainant that he actually got preferential treatment.  In the disciplinary score was equal to his colleagues and as they were reviewed over a 12-month period as opposed to his four-month period and therefore he had an advantage.  He also benefited in the skills and competencies in that regard as his colleagues had a longer period of measurement.

It was put to the complainant that his attempt to delay the ex-gratia redundancy was tactical.  He agreed that he was trying to prolong the process as he knew his fate was sealed and he was trying to get another job as he was the only breadwinner in the household which had a young family.  He believes the maxim that “it’s easier to get a gob when you have a job”.

The complainant’s representative made a number of legal submissions as part of his overall submission.  In particular he noted that the definition of redundancy in section 7(2) of the 1967 Act as amended and, in that context, the operative reason for the dismissal must be the redundancy, or at least that it must be the central reason for the termination of the employment.    In this case the complainant was selected for redundancy using a process that was inherently discriminatory due to the number of days the complainant attended work in the previous 12 months. He was penalised for being out on long-term sick leave because of his disability in the 12 months prior to the scoring matrix which then resulted in the termination of his employment.  His dismissal was due to his disability.  It was submitted on behalf of the complainant “but for his accident he would not have been made redundant”.  The respondent had a right to consider redundancies, but the criteria used were not objectively fair and it is clear that the respondent failed to recognise the complainant’s disability.  A clear example is the skills and competencies criteria.  The question that must arise is was it fair to compare an able bodied individual with 12 months service against an employee with a disability who had four-months service.

The complainant had an unblemished record with the respondent.

The respondent is the second largest Global Paper packaging company with over 50,000 employees and 320 locations.  The site where the complainant was employed focuses on the production of pharmaceutical packaging for the Healthcare and Medical Device sector within Ireland.  The complainant was employed form 7/12/2015 as a Quality Supervisor.

On 02/10/2020 the respondent announced a redundancy package.  Eight employees volunteered for redundancy.  As it was necessary to reduce the headcount in the complainant’s department a consultation meeting took place on 16/10/2020.    This was followed by a second consultation meeting on 19/10/2020 at which the proposed Selection Scoring Matrix was shared.  The complainant raised issues with the absence criteria as he was on long-term certified absence following a road traffic accident.  A third consultation meeting took place on 20/10/2020 and the complainant again outlined his concerns about the inclusion of the absence criteria.  On 23/10/2020 a fourth consultation meeting took place.  At this meeting the complainant outlined that he had submitted a written letter of appeal in relation to the inclusion of absence as a selection criterion.  The respondent confirmed that the complainant’s “block absence can be discounted for the purposes of the evaluation and your points score adjusted accordingly only taking into account your most recent absence on the 29th September”.

The complainant made further representations in relation to the inclusion of the single day as this was also related to his accident.  The respondent by way of letter dated 3/11/2020 agreed to also discount the single day.  The respondent also outlined its rationale for the other criteria.

A fifth consultation meeting took place on 5/11/2020 and details of the revised selection matrix and updated scores were provided to the complainant.  It was confirmed that he had been selected for redundancy which took place on 27/11/2020.

The respondent accepts that the complainant’s injuries following the road traffic accident come within the definition of a disability as contained in section 2(1) of the Acts.  It is the respondent’s position that it is well established practice that a complainant is required to present, in the first instance, facts from which it can be inferred that they were treated less favourably than another person is, has been or would be treated, on the basis of the discriminatory ground cited.  The respondent noted the relevant jurisprudence which stems from Southern Health Board v Mitchell, DEE011, [2001] ELR 201 and Arturs Valpeters v Melbury Developments Ltd [2010] ELR 64.  The respondent believes that the complainant has not adduced facts from which it may be inferred that an act of discriminatory has occurred.

Mr Morgan Fogarty gave evidence on behalf of the respondent.  He was the Operations Director with the respondent at the relevant time.    Mr Fogarty gave evidence that at the time of the redundancies the respondent was in a challenging situation.  They had lost two of their major customers at the same time and this amounted for a 20% loss of business, and this was equal to about 50% of their total volume.  These were two of the higher margin accounts and in order to reduce costs a redundancy programme was out in place.   Eight employees took voluntary redundancy.  There was a need to reduce the number of employees in the quality department.  The team consisted of a manager and two quality supervisors.  One of those was aligned to the product release which would involve more of a shop floor presence and the other role was more aligned to a quality control role and was more desk based.   It was the latter role that the complainant was employed.

Mr Fogarty was asked to outline how the skills and competencies works for the respondent.  He explained that the manager creates goals which the employee is expected to achieve during the year.  These are then “fine-tuned and agreed”.  There is a process around all of this and at the end of the year the objectives are reviewed with your manager.  Three people scored “exceeds expectations” in the current year and this indicates how rare this score is.  Mr Fogarty gave evidence that in the scoring matrix the complainant’s scored “exceeds expectations” as a result of taking on an onerous task.  Mr Fogarty said that he wished to clarify that a “meets expectations” should not be treated as a negative score.  He confirmed that the complainant was not involved in this process prior to his accident, and it was introduced while he was on sick leave.   Mr Fogarty was asked if the complainant’s score in this area was fair.  He submitted that it was as the complainant’s manager gave the complainant an opportunity to have input into the process.

Mr Fogarty was cross examined by Mr Crushell.  He confirmed that he had known the complainant prior to the redundancy process.  He confirmed that the complainant was informed about the risk of redundancy on 02/10/2020.  He also confirmed that all meetings with the complainant took place in the presence of a HR representative.  Mr Fogarty outlined the structure in the quality department and in particular that the role of the complainant was office based.  He also confirmed that there were normally two people in that role.  Mr Fogarty was asked if the respondent looked at alternative roles.  He confirmed that at every meeting there was an onus on them to look at alternatives. 

Mr Fogarty was asked to explain why he was reluctant to change the absence criteria on the selection matrix.  He outlined that he felt that it should be included as they were using a matrix that had been previously used and he was concerned about setting a precedent.  He was also concerned that if they removed this criterion there could, potentially, be issues in relation to other employees.

Mr Fogarty was asked who made the decision in relation to removing the absence criteria.  He confirmed that he did having sought advice from their HR department.    Mr Fogarty was asked if he agreed that the complainant was assessed under the Skills and Competencies heading over a four-month period and he agreed.  It was put to him that the complainant had no opportunity “to go beyond his role” during that short timeframe and in the context of him working reduced hours.  Mr Fogarty said that the complainant achieved a scoring of “meets expectations” which was within the same band as most of the respondent’s other employees.  It was then put to Mr Fogarty that he was aware of the complainant’s condition from their own Occupational Health Physician. The complainant was not made aware that in completing his self-assessment that this would be subsequently used in a redundancy process.  Mr Fogarty confirmed that he was kept up to date on the complainant’s progress in relation to returning to work and he also confirmed that the complainant’s attendance at the Occupational Health Physician was not linked to the redundancy process.  Mr Fogarty also agreed that the complainant’s colleague had participated in the performance management process.  It was then put to Mr Fogarty that this gave the complainant a four-month window of opportunity whereas his colleague had a twelve-month window in order to achieve their scores.  Mr Fogarty submitted that there was no certainty that a colleague in a twelve-month period would achieve any particular score.  It depended on the individual and the opportunities that they availed of.  He confirmed that he believed that a four-month period for the complainant was realistic.   

It was put to Mr Fogarty that the complainant’s contribution was hampered because he only had a four-month period, and his disability also impeded his ability to achieve the exceeds expectations score.  Mr Fogarty clarified that the complainant’s colleague was the only person in the organisation at that time who achieved the exceeds expectations score.

In a closing submission the respondent’s representative outlined that the evidential burden of proof required to raise a presumption of discrimination rests with the complainant.  The respondent believes that he has not discharged this burden.  The respondent believes that if the complainant was treated the same as his colleagues, then they would have discriminated against him.  The respondent made significant and reasonable efforts to take into account his limitations due to his disability and treated him differently.  There was no discrimination on the part of the respondent and many of the issues raised by the complainant around the selection matrix are not relevant to a claim of discrimination on the grounds of disability as there is no causal link between the alleged flaws in the process and the complainant’s disability.

It is not disputed that the complainant was dismissed by reason of redundancy on 27/11/2020.  The backdrop to this case is that the respondent was experiencing challenges as a result of the loss of two significant customers.   Having carefully considered all the evidence adduced and the respective submissions of the parties, it is clear that while the complainant contends that redundancy process was flawed and discriminated against him because of his disability while the respondent submitted that the termination of the complainant’s employment constituted a dismissal by reason of redundancy as it needed to restructure and reorganise to cope with the challenges the business was facing and there was no link with the complainant’s disability or absence record.

Section 6 of the Employment Equality Act states:

“(1) for the purposes of this Act and without prejudice to its provisions relating to discrimination occurring in particular circumstances discrimination shall be taken to occur where –

(a)    A person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘discriminatory grounds’) which –

(i)                  Exists,

(ii)                Existed by no longer exists,

(iii)               May exist in the future, or

(iv)               Is imputed to the person concerned”.

The various authorities were cited by both parties in their written submissions.  The case of Arturs Valpeters v Melbury Developments Ltd [2020] 21 ELR 64 clearly states that the provision outlined in section 865A states that “this requires that the complainant must first establish facts from which discrimination may be inferred.  What those facts are will vary from case to case and there is no closed category of facts which can be relied upon.  All that is required is that they must be of sufficient significance to raise a presumption of discrimination.  However, they must be established as facts on credible evidence.  Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn.  Section 85A places the burned of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule”.  This was also confirmed in the case of Southern Health Bard v Mitchell, DEE011, [2001] ELR 201 and in Margetts v Graham Anthony & Company Limited, EDA038.

The complainant’s representative also noted that in the case of Boucher v Irish Productivity Centre ([1994] ELR 205) where the Tribunal found that where there are assessments used as the basis for deciding on redundancy, it is for the employer to show that the employees chosen for redundancy were correctly chosen as per the selection criteria.  Specifically, the Tribunal stated that selection criteria should be assessed “by the objective standard of the way in which a reasonable employer in these circumstances, in that line of business, at that time would have behaved”.

The central question in this case is whether or not the selection criteria was a reasonable one and did the respondent discriminate against the complainant on the grounds of his disability in utilising this selection matrix.

The selection criteria were utilised to ensure a consistent approach by the respondent.  The respondent did change the absence category but only after the complainant made extensive representations which clearly showed that its inclusion meant that he was immediately disadvantaged in the application of the respondent’s matrix.   The respondent reluctantly agreed to change and discount the complainant’s period of block absence due to his accident.  The complainant was forced to make further representations when the respondent failed to include a one day’s absence which was clearly linked to his accident.

As a result of these representations the respondent then proceeded to use a revised scoring matrix.  While the complainant believes that some of the scores, he was awarded were linked to his disability.  The logical conclusion of the complainant’s proposition is that practically all the criteria used by the respondent were designed to select him has the person who was to be dismissed by reason of redundancy.  There is no evidence that the scoring matrix was not applied by the respondent in an objective and fair manner.  I find that the respondent did take the complainant’s disability into account when the scoring matrix was completed.  I accept that his scores were within the band which was consistent with the majority of the workforce.  I also find that the process was very transparent, and the respondent provided the complainant with a series of meetings in order to allow ample opportunity for a fair redundancy consultation process to be undertaken. I am satisfied that the complainant’s concerns were adequately addressed.

I find that the complainant has not discharged the burden of proof from which a prima facia case of discrimination can be established.

The complaint of discrimination brought by the complainant against the respondent is not well founded.  I find that the complainant was not discriminated against by the respondent.  

Redundancy.  Discrimination.