ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00030023

Parties:

	Complainant	Respondent
Parties	Gerard Buston	Duggan Systems Limited

Representatives

Glenn Cooper Solicitor

John Duggan

Complaint:

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00040016-001	23/09/2020

Date of Adjudication Hearing: 03/02/2022

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 andSection 8 of the UnfairDismissals Acts, 1977 - 2015,following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint. The matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020, which designated the WRC as a body empowered to hold remote hearings. The parties were advised at the outset that following the delivery of a judgement of the Supreme Court in Zalewski v Adjudication Officer on 06/04/2021 that hearings before the Workplace Relations Commission are now held in public. That may result in decisions no longer being anonymised. Both parties were advised that an Adjudication Officer may take evidence on oath or affirmation.

Background:

The Complainant contends that he was unfairly dismissed in that the reason given of redundancy was not valid. He contends that he was made redundant following an altercation with one of the Managers.

Summary of Respondent’s Case:

The Respondent rejects the claim that the Complainant was dismissed unfairly. It is submitted that the Company has had considerable reduced turnover to approximately 35% of its pre Covid turnover during 2020 causing it to make hard and unwanted decisions. On 27th March 2020 the government issued a lockdown that included construction companies. The following day staff were written to informing them of the circumstances. On 30th March 2020 the Company secured two rapid build hospitals and after a break of one week, a limited number of staff were brought back in including the Complainant. Some financial information was submitted to show the deteriorating situation in the company during March, April and May 2020. The company had to reduce the workforce and made 10 staff redundant, including the Complainant. In relation to the Complainant’s claim that a member of management was abusive to him, it was the other way around and a statement was produced by this manager. That statement outlined the sequence of events and interactions between the Complainant and Manager M. A meeting was held with all staff on the factory floor on 20th April 2020 at which Manager M tried to clarify the situation about the Covid payments as there were a lot of rumours circulating. When the meeting was over, the Complainant passed a remark saying who did the Manager think he was speaking to them like that. He brought the Complainant into his office and tried to explain to him that everything was legal and he expected more of the Complainant as he was a Line Leader. The Complainant showed no interest and just kept going on about the Covid payment and at that point the Manager told him to go back to his line. This statement was backed up by another statement from Assistant Manager Q who confirmed in his statement that the Complainant was the aggressor who shouted at Manager M and was very angry over what he saw as not getting paid correctly. The Respondent notes the transcript of the meeting which the Complainant produced and strongly objects to it being allowed in evidence as the Manager M was recorded without his knowledge or permission.

Evidence of Managing Director

Sworn evidence following the administration of an Affirmation was given by the Managing Director of the Respondent Company. He stated that, as contained in the submission, business was very adversely affected by Covid 19, resulting in reduced revenues in March, April and May 2020. All production staff were laid off on 30 March 2020 and then following securing two rapid build hospitals some were returned including the Complainant. On 30 April the factory manager asked those who wished to come back in the following week to put their names down. The numbers required were oversubscribed by around 5 people. There was a cut in the workforce of around 10 people including the Complainant. The decision on who to make redundant had to be made on the various requirements of the business, e.g. some were skilled at making doors, some Line Leaders and Line workers had to be retained or let go. The general criteria involved those with 2 years service and under.

Summary of Complainant’s Case:

The Complainant was unfairly dismissed purportedly on the grounds of redundancy on 11 May 2020. In particular:

a) His selection for redundancy was made on extraneous grounds

b) There were no fair selection process or criteria discussed with him or at all

c) There was no consultation with him prior to the redundancy

d) No alternatives to redundancy were properly considered by the employer and/or discussed with the Complainant.

e) No proper notice was given under the Protection of Employment Act 1977 or otherwise.

The Complainant was employed by the Respondent initially as a factory operative on 30 May 2018 and then as a Line Leader from 18 November 2019. His gross pay was €633.94 per week. He was on temporary lay-off from 30 March to 10 April 2020. He recommenced work in the factory operative role from 14 April to 30 April 2020. On 29 April 2020 he had forgotten to clock out at the end of the day, and the following day 30 April when he approached Manager M to re-instate his afternoon hours, the Manager reacted aggressively and told him he was sick of the Complainant not following the rules. About 30 minutes later at approx. 9.30am Manager M addressed the staff in very aggressive terms about working arrangements and the Temporary Wage Subsidy Scheme (TWSS). He was abusive in his language and attitude to staff. The Complainant made a private comment at the end which was “that is no way to speak to anybody”. This was reported back to Manager M who called the Complainant in to his office about the comment he had made. This meeting became heated. The Complainant had put his name down as wanting to work the following week but he was not called in and told he was on temporary layoff again and would not be required for that week. The following Monday 11 May 2020 the Complainant received by email a letter from the Managing Director stating that his employment was being terminated on the grounds of redundancy. There was no prior notice of this redundancy, no consultation nor any attempt to avoid dismissal for redundancy. It is submitted that there are procedural requirements for redundancy which are well established and clear. The employer must establish proper substantive grounds for the redundancy and there must be a fair selection procedure which is objective and transparent. There must be a process of consultation with the employee. The requirements of notice and consultation are even more starkly required in cases of collective redundancy covered by the Protection of Employment Act 1977. It appears from the Employer’s submission that this was a collective redundancy, but that no attempt was made by the employer to comply with the consultation and notice provisions of the Act.

In relation to selection, it is clear from the statements of the Manager and Assistant Manager that they were dissatisfied with the Complainant and had extraneous motive to have him dismissed. Also many staff were kept on and/or put on temporary lay-off rather than being made redundant and there was no attempt to consult, discuss or explain the selection procedure under which the Complainant was one of the relatively small number of staff who were terminated on the grounds of redundancy. There were obvious alternatives to redundancy such as temporary lay-off but this option was never explored with him. In all the above circumstances, it is contended that the redundancy process was non-existent and / or fundamentally flawed and the dismissal was therefore unfair.

Evidence of the Complainant

Sworn evidence following the administration of an Affirmation was given by the Complainant. He stated that he was laid off at the end of March 2020 to 10 April 2020. The Line he was working on was temporarily closed down. He was called back in and in or around 29 and 30 April he was involved in some conversations with other staff about the TWSS. He had a heated conversation with Manager M about this on 30 April 2020. He also had put his name down to be called back in on the Tuesday following the May bank holiday. However, he was not called back and as far as he knew he was the only one who put his name down not to be called back. Manager M rang him on the Monday May bank holiday and told him “there is no work for you this week”. When the Complainant asked him for the reason and was he the only one not called in, the manager replied “yes, you’re the only one and I can’t say any more”. The following Monday he received the letter of redundancy. In relation to mitigation of his losses of earnings, the Complainant stated that due to circumstances, he was unable to seek work until October 2020 and he was promised a job then, but this did not materialise until May 2021.

Findings and Conclusions:

Section 6 (1) of the Unfair Dismissals Acts provides that a dismissal is unfair “unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.” The burden of proof rests with the Respondent to provide evidence of the substantial grounds justifying the dismissal. The Respondent in this instant case, contends that the redundancy of the Complainant’s job was as a result of deteriorating business in the context of Covid-19.

Section 6 (4) (c) of the Act provides that “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

(c) the redundancy of the employee

Section 6 (3) of the Act provides for an obligation to select employees for redundancy on the basis of fairness and adherence to an agreed procedure. It is well established that selection for redundancy must be an ‘impersonal’ act and not related to the individual employee.

In this instant case, I note the heated arguments between the Complainant and his Manager immediately prior to the redundancy and I note the evidence of the Complainant that he received a phone call from the manager the following Monday after the altercations telling him he was not being called back in for work that week. I note there was no consultation, no notice and no alternatives explored with the Complainant which might have avoided a redundancy situation.

In the circumstances, I find that the redundancy of the Complainant was a sham redundancy and the Complainant was treated in an unreasonable manner. I find the Complainant was unfairly dismissed.

Decision:

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 decided that this complaint is well founded. I note the evidence of the Complainant re mitigation of loss. I have decided that the Respondent is to pay the Complainant €12,660 in compensation, equivalent to 20 weeks gross pay.

Dated: 08th April 2022

Workplace Relations Commission Adjudication Officer: Gaye Cunningham

Key Words:

Unfair dismissal, redundancy.