UDD2263

1.Appeal Of Adjudication Officer Decision No(S) ADJ-00031980, CA-00042512-001.


BACKGROUND:

2. This is an appeal by Mr Martin Power (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00031980, dated 10 January 2022) under the Unfair Dismissals Act 1977 (‘the Act’). Notice of Appeal was received on 15 February 2022. The Court heard the appeal in Dublin on 16 November 2022. The Complainant gave sworn evidence as did Ms Christina Kenny and Mr Brian Kenny.




DETERMINATION:

The Complainant was employed by Architectural Aluminium Limited (‘the Respondent’) as a fabricator from 1 February 1995 until he was dismissed by reason of redundancy on 6 November 2020. He received a statutory redundancy payment of €31,000.00 calculated in accordance with his salary at the time of €721.12 per week. Three other fabricators were made redundant at the same time as the Complainant. It is common case that the Respondent used a selection matrix that combined an individual’s scoring from its Performance Management System with an assessment of the individual’s relevant skills in order to select workers for redundancy.

Evidence of Ms Christina Kenny

The witness told the Court that she had been HR Business Partner with the Respondent up until August 2022. It was her evidence that the company had experienced financial difficulties throughout her time there. She told the Court that a new management team was appointed in January 2018 as the situation facing the company at the time was ‘dire’; there was very little projected work at that stage and the production staff had been placed on a three-day week. Shortly afterwards a new Performance Management System and a new tendering system were introduced.

According to the witness, each production operative was required to complete a written sheet on a daily basis detailing the work he had completed that day. The sheet was then signed by the relevant supervisor. The information on the handwritten sheets was subsequently transcribed onto an Excel sheet.

The witness told the Court that the Respondent company had started to turn a corner in terms of its financial position in early 2020 just before the pandemic struck. The construction sector was shut down between 27 March and 18 May 2020 with the result that all workers (other than a small number of managers) were laid off. Initially, a small cohort of staff who could work remotely and who could generate or collect payments were brought back to work. At the time, the Respondent had one contract underway that was classified as an essential project and this permitted the company to call back a small team of fabricators also.

The witness referred to a grievance raised by the Complainant on 26 June 2020 regarding his ongoing lay-off. The Complainant sought to challenge the basis on which the Respondent had selected which fabricators to recall from lay-off. His grievance was not upheld and, although he initiated an appeal of the decision, he subsequently withdrew that appeal.

The witness said that as the summer of 2020 progressed, several projects that had been planned by the Respondent’s clients were put on hold indefinitely or cancelled altogether. The Respondent, therefore, undertook a forecast of labour needs for the nine-month period from June 2020 and determined that it had an insufficient pipeline of work to sustain the entire group of fabricators that were employed by it at that time. The Respondent also undertook a number of cost-cutting measures: it reduced the number of premises from which it operated; it outsourced its payroll function; it sold and leased back a range of assets and negotiated price reductions from its suppliers.

The witness told the Court that an ‘at-risk’ meeting took place with the group of fabricators on 25 August 2020. The Complainant declined to attend this meeting although he could have done so via Zoom. The witness sent a letter to all fabricators after the meeting re-iterating the reasons for initiating the ‘at-risk’ process. The witness then told the Court that a first individual consultation meeting took place with each fabricator, including the Complainant, on 7 September 2020. The Complainant was accompanied by an official from the Unite trade union on the day. The Complainant, she said, sought to challenge both his data from the Performance Management System (alleging the information on his daily production sheets had been falsified) and the scores assigned to him for his relevant skills. The witness told the Court a second individual consultation meeting was held on 9 September 2020 with each fabricator. The Respondent’s decision to make the Complainant redundant was communicated to him on 11 September 2020 and he was advised of his right to appeal the decision but did not do so.

Evidence of Mr Brian Kenny

The witness is the Respondent’s General Manager. He told the Court that he had combined the data from the Performance Management System and the skills assessment in order to produce the final scores for each of the fabricators. The skills assessment had been conducted by the Factory Managers and the Production Managers.

The Witness said he had not been present at the ‘at-risk’ meeting on 26 August 2020 but had attended all of the first and second individual consultation meetings. He told the Court that he had outlined various alternatives to redundancy at those meetings including week-on/week-off working patterns; shorter working week and reduction in basic pay but there was no appetite for any of these measures amongst the workers.

His evidence was that the business is still struggling financially notwithstanding the redundancies. He said two fabricators had left the Respondent voluntarily in the meantime and had been replaced. The four fabricators who had been made redundant in 2020 have not been replaced.

The Complainant’s Evidence

The Complainant told the Court that there had never been an issue raised with him regarding either his conduct or his performance. He said that he performed an acting-up role in 2017 and received additional pay for that. He also told the Court that he had had no issue with the introduction of the daily productivity sheets and had completed them as instructed.

The Complainant said that he didn’t attend the ‘at-risk’ meeting on 26 August 2020 because he had been told beforehand that he was the worst performer in his group. He told the Court that he didn’t appeal the Respondent’s decision to make him redundant because he became unwell in or around that time. He gave evidence in relation to his efforts to mitigate his loss. He told the Court that he secured alternative employment as a fabricator with an aluminium window and door company in February 2021. His earnings with that company were initially €41.12 per week less than he had been earning with the Respondent but had since increased to the same level.

Under cross-examination, the Complainant said that he hadn’t appeal the decision to make him redundant because his representative told him that the Respondent didn’t want him back.

Discussion and Decision

It is not the Court’s function to second-guess an employer’s choice of selection criterion in a redundancy situation once the criterion chosen is rational and objective and has been applied consistently.

The Court is satisfied that the selection matrix employed by the Respondent in this case was both rational and objective. There is nothing before the Court to suggest that it was applied by the Respondent other than in a rational, objective and fair manner to the Complainant.

It follows that the Complainant’s appeal fails and the decision of the Adjudication Officer is affirmed.

The Court so determines.

	Signed on behalf of the Labour Court
	Alan Haugh
IK	______________________
23 November 2022	Deputy Chairman