FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES: ZEUS PACKAGING GROUP (REPRESENTED BY HR SPACE) - AND - MS GRÁINNE O'HARA DIVISION:
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00030274, CA-00040515-001. In line with the normal practice of the Court, the parties are referred to in this Determination as they were at first instance. Hence, Ms O’ Hara is referred to as the Complainant and Zeus Packaging Group are referred to as the Respondent. Summary of Complainant’s submission The Complainant commenced employment with the Respondent on the 8th of May 2017 as a Business Development Executive and Sales Representative. Her role involved providing support to clients and selling merchandise. Arising from the Covid Pandemic the Complainant was placed on temporary layoff with effect from 24th March 2020. On the 1st April 2020 she received correspondence from the Respondent advising that they would not be paying her wages and that she should apply on line towww.mywelfare.iefor payment. The Complainant submitted that she continued to work with clients as requested by the Respondent until 22nd April 2020 when her computer access was blocked. On the 1st May 2020 she received a letter advising that her temporary lay-off was being extended. On the 18th May she received a letter informing her of changes to the sales role and on the 26th May 2020 she received a letter advising her of operational changes to her role. By letter of the 27th May 2020 she was asked to return the company car. Following a phone call on the 26th June 2020 she received a letter from the Respondent advising her that as per the telephone conversation earlier that day, there was a potential that her role might be made redundant. A further telephone conversation took place on the 10th July 2020 where she was informed that she was being made redundant. The Complainant submitted that in the course of the conversation on the 10th July 2020 the Respondent was unable to identify the selection criteria used in coming to the decision. The Complainant asked for an opportunity to meet and engage with them as she had some thoughts around changes to her role which might mitigate the need to make it redundant. On the 14th of July 2022 the Complainant emailed the respondent setting out a list of reasons why she should be kept in employment. A response was received by email of 16th July 2022 advising that due to Covid a meeting could not be arranged and that two consultation meetings had taken place and she had been provided with all relevant documents. The letter went on to say that the Respondent would continue to search for alternative employment for her within the company. The Complainant responded seeking details of the skills matrix used and by letter of 17 July 2022 was given a list of headings and told that the matrix was filled in for all employees. The Complainant sought further information in respect of the matrix, but this was not provided. By email of the 24 July 2022 the Complainant was informed that her employment had been terminated by way of redundancy. The Complainant submitted that the process engaged in by the employer was not a fair, open and transparent procedure and that she had more skills than some staff who were retained. The Complainant also identified a number of posts that were filled in and around the time she was made redundant which she possessed the skills for. The Complainant stated that she was never provide with the weightings in terms of the matrix, was offered no opportunity to input into the matrix and was not told who had applied the matrix and made the decision to make her redundant. Nobody engaged with her concerning her skill set and or the jobs that were advertised. The Complainant opened a number of cases to the Court in particular Boucher v Irish productivity Centre R92/1992, Gillian free v Oxigen Environmental UD/206/2011 and Sales Representative v packaging Company ADJ 00020846-2019 all of which highlighted the importance of having a selection process that was fair, transparent and objective. The cases also indicate that where an assessment or matrix is being used the worker should be told it is being used and given an opportunity to input to same. None of which happened in this case. The Complainant submitted that she had been actively seeking alternative employment and had taken up a new job in September 2021. The Complainant supplied a booklet containing all the job applications she had made. She submitted that her earning with the Respondent were €43,00 per annum plus bonus and the use of a company car. Her earning with her new employer is approximately €5000 a year less. The Complainant calculated her loss to the date of her submission as being €40,318 with an ongoing loss of about €50 a week net. Summary of Respondent’ arguments Ms Powney representative for the Respondent submitted that the Covid related lockdown hit the Respondent hard. In total they had to place 23 people on lay off. Of the 23 people that were laid off, six people were made redundant and of the six people made redundant four were from the department that the Complainant worked in. The Respondent also had to take a number of other steps to stabilise the business. The Respondent disputes that the Complainant was unfairly selected for redundancy and or that the procedure followed was not a fair procedure. The Respondent sought to engage with the Complainant and keep her updated on all developments but for periods of time the Complainant did not respond or engage with the Respondent. The Respondent referenced various letters and emails it had sent as well as the ones identified by the Complainant all of which were opened to the Court. The Respondent disputes that the Complainant only had two consultation meetings, it is their submission that there were three meetings, 26th June 2020, 10th July 2020 and the 24th July 2020. They were all conducted by phone due to the Covid restrictions. The Respondent submitted that they considered various other options before coming to the decision to implement redundancies. In respect of the positions identified by the Complainant which emerged after she was made redundant and the re-engagement of one of her colleagues, the Respondent’s position is that the Complainant did not have the skill set for this position. In respect of the colleague that was re-employed he had relevant experience in retail, which they believed they Complainant did not have. It was their position that in respect of the customer care roles, they were at a much lower salary and there was nothing to preclude her from applying for them. The Respondent also confirmed that since the Complainant’s redundancy the department she worked in had closed completely. In terms of the process the Respondent submitted that they used a matrix, but the matrix was only one factor in the process it did not operate in isolation in the redundancy process. It was submitted that Impersonality test was used and that there was no personal aspect to the process, and it was purely objective. Ms Powney stated that there had been redundancies globally in the company and she gave a breakdown of same. In terms of the Complainant’s mitigation of her loss Ms Powney submitted that two months as after the Complainant was made redundant, she only applied for two jobs in that particular month and that the Respondent believed there was a lack of information supplied by the Complainant in relation to the job roles that she applied for applied for. The law Section 1 of the Act defines dismissal in the following manner 1. “dismissal”, in relation to an employee, means— (a) the termination by his employer of the employee's contract of employment with the employer, whether prior notice of the termination was or was not given to the employee, (b)…… Section 6(1) states “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.” Section 6(4) states Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purpose of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (a)…… (b)….. (c) the redundancy of the employee and (d)………… Issue for the Court Dismissal as a fact is not in dispute therefore it is for the Respondent to establish that in the circumstances of this case the dismissal was fair. Discussion Ms Powney on behalf of the Respondent sought to assure the Court that the Respondent had followed fair procedure in coming to the decision that the Complainant fell to be made redundant. That the Respondent had considered other options but had concluded there was no other suitable job for her. No documentation was provided to the Court in terms of the matrix applied, or the weightings. In reply to a clarification sought by the Court Ms Powney initially stated that the matrix was created on the day the Complainant requested same, she later corrected herself to state that she did not know when it was created but confirmed that the matrix was not used, in coming to the decision regarding the initial layoffs. Ms Powney was unable to confirm for the Court what weightings had been given to the various headings that she had indicated formed the matrix She did confirm that staff had not been told in advance that the Respondent would be using a matrix, staff had not been given an opportunity to input into the matrix or engage with the person who was to apply the matrix. She did not dispute that when asked by the Complainant the Respondent had refused to confirm who was carrying out the process or to inform her of her scores arising from the exercise in advance of her being made redundant. In terms of looking at other jobs Ms Powney confirmed that the Respondent had not engaged with the Complainant about her skillset or even referenced her CV to determine what skills she had, they only considered the skills they were aware of from her role with the Respondent. While redundancy can be a defence to an unfair dismissals complaint the burden of proof lies with the Respondent to show that in coming to the decision to make the employee redundant fair procedure was followed. The Respondent in this case stated that there were three consultation meetings, however in the course of the hearing they confirmed that the meetings entailed a discussion about the impact of Covid and the third meeting was the meeting where they confirmed the redundancy. The Respondent sought to rely on the fact that they had used a matrix, but did not provide a copy of same, did not know when the matrix had been created, did not know what weightings were given to the various headings and confirmed that nobody had been told in advance of the commencement of the process that a matrix was being used. The Respondent also sought to rely on the fact that they had considered other positions within the company, but confirmed that they had not engaged with the Complainant in respect of the skills she possessed, or even looked at her CV. Taking all of these factors into consideration the Court finds no serious or worthwhile consultation took place with the Complainant prior to the decision to make her redundant. The process used by the Respondent was not clear and transparent the Court also finds that no substantial consideration was given to alternatives to dismissing the Complainant by way of redundancy. Determination The Court determines that the Complainant was unfairly dismissed arising from unfair selection for redundancy. Having considered the Complainants losses arising from the dismissal and her efforts to mitigate those losses, the Court deems the appropriate remedy to be compensation. The Court awards the Complainant €34,000. The Court has already factored into its calculations the statutory redundancy payment received by the Complainant The Decision of the Adjudication Officer is varied accordingly. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
