Complainant

Respondent

Parties

Maria  Doyle

Granby Limited

Representatives

Bebhinn Murphy B.L. instructed by  O’Hanrahan Lally D’Alton LLP Solicitors

Eoin Haverty of IBEC

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-00040218-001

02/10/2020

The complainant started working for the respondent on 26 March 2018 and was made redundant on 10 July 2020. She contends it was not a valid redundancy but an unfair dismissal.  

The respondent submits the complainant was one of a number of employees who were made redundant as a result of a rationalisation initiative to drive operational efficiencies and cost saving measures. The respondent engaged in consultation with the complainant but no suitable alternative role was found. They say the complainant was afforded fair procedures at all times and the complainant was not unfairly dismissed.

The complainant was employed by the respondent from 26 March 2018 as a General Operative and worked in the Sausage Department. The respondent suffered a 40% downturn in business when the Covid-19 pandemic first arrived in Ireland. The respondent was able to claim the TWSS payment during this period and no staff were made redundant. However, from the beginning of June 2020 the business was no longer in receipt of the TWSS as they were suffering a loss of 20-25%.

At a meeting on 29 June 2020 the complainant was told the respondent needed to implement a rationalisation initiative to drive operational efficiencies and reduce costs. As a result of this the complainant’s role was placed at risk of redundancy because the sausage department was the worst affected area. This was confirmed to the complainant by letter dated 30 June. The complainant attended a meeting on 3 July when she was issued with a formal notice of redundancy. She was given a letter dated 3 July 2020 to confirm her redundancy with a last day of employment of 10 April. The letter also contained final information on the redundancy, details of the related payment and she was advised of her right to appeal. She appealed the decision and a meeting took place on 26 August 2020. On 22 September the respondent advised the complainant by letter that her appeal was unsuccessful.

The respondent submits it was the role and not the person who was made redundant. They selected a number of people in the sausage department for redundancy based on length of service and the retention of key skillsets, along with product continuity and health and safety concerns.

They engaged in a consultation process but there were no alternative roles. In particular, they advised the complainant that the pudding department was not within scope as that department did not have a downturn in business and the skillset required is very different, a skillset the complainant did not have.

The complainant submits that there was not a valid redundancy and she was unfairly dismissed. She was told her job was at risk of redundancy on 30 June 2020 and was made redundant on 2 July 2020. She attended a meeting on 3 July but felt her views were not taken into account. She appealed the decision to make her redundant but she was unsuccessful.

She made great efforts to engage with the respondent to try and keep her position or to move to an alternative position. She was told the respondent was operating a ‘last in, first out’ policy but there were four people working as general operatives who had less service than the complainant. She was told they had more skills than the complainant, something not accepted by the complainant. She is not aware of any extra training and/or qualifications held by these general operatives. Nor was she informed that additional training or qualifications would alter the respondent’s selection policy.

Two of the general operatives who were kept on now work in the pudding department. She asked to work in this area but was told she did not have the skills required. She made another suggestion, involving a colleague moving to a particular role working on the boggie/trolley in order that a colleague with less service was made redundant but this was refused. She was also told she could not move to the boggie/trolley role for health and safety reasons, because the work was too heavy for her. The complainant submits she has carried out this role at times when other workers were not available and no issues regarding her physical capability were raised.

She contends she was singled out and unfairly selected for redundancy due to a previous incident involving one of the Directors.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company. Section 6 of the 1977 Act provides:

“6. – (1) 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.

(4) Without prejudice to the generality of subsection (1) of this section, 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 one or more of the following:

... (c ) the redundancy of the employee”

The respondent contends there was a genuine redundancy situation. Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;

“7(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to -

(a)    the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)    the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)     the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained”

The evidence of the respondent is they had a downturn in business because of the Covid-19 pandemic, which particularly affected their Sausage Department. They made 6 roles redundant in that area and their evidence is that people were selected on the basis on ‘last in, first out’. They made one exception to this policy in the Sausage Department; one person with less service than the complainant was kept on because of the skills needed for his particular role. In consultation with the complainant they looked for alternative roles but nothing was available.

Neither as part of their written submission or in direct evidence given at the hearing did the respondent provide the list of staff they used at the time to carry out the selection process and, when asked at the hearing, it became clear that no such list existed. Following the hearing they submitted a typed staff list with start dates, plus finish dates for those made redundant and a hand written note on the position of those with less service than the complainant who were not made redundant because of their specific role. The complainant contended this list had no evidential value as it “is clearly not a document used during the redundancy process”. The list shows that six people with less service than the complainant were not made redundant.

These six comprise, according to the list submitted after the hearing, a forklift driver, a truck driver, a van driver, two from the Pudding Department and one from the Sausage Department. The one from the Sausage Department had the boggie/trolley role. The respondent says they kept him because of his skills. My conclusion from the direct evidence given at the hearing is that this role was not particularly skilled, to the extent where significant training would have been needed for someone coming into the role. The main requirement for the role is the need to move significant weight of product around the workplace. The respondent told the complainant she was not considered for this role for health and safety reasons. Which means they did not consider her strong enough. She suggested if they would not move her into this role then someone else could have been moved into this role but the respondent would not consider any such movement.

In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated;

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”    

In the instant case I accept that most of those made redundant appear to have been selected on the ‘first in, last in’ basis. However, I am considering the specific case of the complainant. She started with the respondent on 26 March 2018. The person carrying out the boggie/trolley role in the Sausage Department started on 24 September 2018, nearly six months after the complainant, but he was not selected for redundancy. The respondent said it was because of his skills. But the reality is that is was because of the heavy weights involved. They decided the complainant was unsuitable for the role but said in direct evidence that no risk assessment had been carried out. Furthermore, there is no evidence they considered moving any of the longer serving staff in the Sausage Department into this role. Which would have allowed them to stay with their stated selection policy of ‘last in, first out’.

I accept the respondent was dealing with a downturn in business and decided to make a number of redundancies. However, they varied from their selection policy and this resulted in the complainant being made redundant. As set out above I do not accept the reasons for this variation. The individual in boggie/trolley role did not have particular skills such that the job could not be done by someone else not effected by the redundancies, on the basis of service.  

I do not know if the reason to make the complainant redundant was the altercation with a Director but I conclude the reasons given by the respondent are not “reasons not related to the employee concerned”. Accordingly, I find redundancy, within the definition given in the Redundancy Payments Act, was not the primary reason for the complainant leaving the respondent’s employment and the dismissal was unfair.

For the reasons given above, pursuant to section 8 of the Unfair Dismissals Act, 1977, I find that the complaint is well founded. In assessing compensation I note the complainant left the respondent’s employment on 10 July 2020. She was then in receipt of the PUP payment, arising from the pandemic. She submitted copies of a number applications dating from September 2020 and she commenced a new job in July 2021. Taking everything into account I award the complainant compensation of six month’s salary; €10,400.

Unfair redundancy selection – unfair dismissal