Complainant

Respondent

Parties

Martin  Power

Architectural Aliumium Limited

Representatives

Cheryl Treanor Construction Industry Federation

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-00042512-001

15/02/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.

The complainant and two witnesses for the respondent gave their evidence under affirmation.  Both parties were offered and availed of the opportunity to cross examine the other party in relation to the unfair dismissal.

The complainant was employed form 1 February 1995 until 6 November 2020.

The complainant submitted that he was unfairly selected for redundancy after 26 years of service.  He submitted that colleagues who had less service were returned to work before him.

The complainant submitted that he constantly engaged with the employer for a return to work date but to no avail.

The complainant submitted that he raised a grievance with the employer but that this was also to no avail.

The complainant submitted that he was informed in September that he would be made redundant in November.  He also submitted that the company did not operate a last in/first out policy and submitted that other colleagues who requested redundancy did not receive it.

The complainant submitted that the company had a personal vendetta against him for reasons unknown and that they stated that his work in the previous six months was not up to scratch.  The complainant submitted that he had never been made aware of this.

The complainant submitted that the matrix operated by the company was unfair and resulted in a grossly unfair, unjustified and personal attack on his ability as a worker.  He submitted that this had left him with a feeling of insecurity, lacking confidence, impacted on his finances and impacted upon his mental health.

The respondent submitted that it was involved in designing facades for commercial and industrial premises.  It also submitted that the company was in financial difficulties for the past six years and had undergone some restructuring at management level.

Following this restructuring, a number of changes were introduced, including consolidating premises from three locations to one and introducing a productivity system for all staff whereby they completed daily records, and this enabled the management to compile a productivity matrix starting from 2 January 2019.  The changes resulted in positive results and contracts were secured in Cork and Dublin.

When the Covid pandemic hit, a number of steps were taken to try to survive. These included laying off those workers it could, workers who were essential to the survival of the business and who could work remotely were kept on but all retained workers and management were subject to an agreed pay reduction. Other cost saving measures taken included renegotiation with suppliers outsourcing payroll, sale and leaseback of assets and all direct debits were put on hold in an effort to stem cashflow outwards.

In the beginning of May 2020, a job arose working on a hospital.  This was deemed an essential job and certain members of staff were taken back on.  The members of staff who were taken back on were brought back on the basis of their productivity during the six months up to layoff.

The respondent submitted that during the summer it became apparent that for the future of the company it would have to make some staff redundant from its fabrication unit, as a number of projects were delayed or put on hold indefinitely.  This entailed making four workers redundant. 

In the meantime, the complainant raised a grievance as to how the respondent had brought employees back from layoff.  The grievance was heard and the complainant appealed the outcome but later withdrew his grievance.

The respondent submitted that it considered various options to redundancy, including continued layoff but the situation was no longer temporary in nature. 

The respondent issued at risk of redundancy notices to its fabrication staff and held a meeting to discuss options.  The respondent indicated that the complainant along with other could not attend but one-to-one meetings were arranged via zoom and in person with the staff who could not attend.  Some ideas were put forward such as reduced pay, week on/week off and reduced working week were put forward but there was no agreement amongst the fabricators for any one suggestion.

The idea of a reduced working week was considered but dismissed as it had been tried previously with a negative impact across the company.  The fabricators dismissed the idea of reduced pay and the week on/week off had challenges with continuity of work issues.  No official requests for voluntary redundancy were received.  Last in, first out was dismissed as a redundancy procedure as all affected staff had at least 12 years’ service and it was decided to use a skills and productivity matrix to consider redundancies as it was not considered a fair option in the circumstances.

A table of staff productivity was produced using all of the data available from 2 January 2019 and the manager and unit supervisors rated the workers skills across all of the items required (over 100 skills) and each skill was given a weighting according to its importance/regularity on project and contracts.  This matrix was compiled and the employees with the lowest scores were made redundant.

Meetings were conducted with each person, each person could appeal the decision and in the end, the employees were given eight weeks’ notice before being made redundant.  The respondent submitted that the redundancy process was not a disciplinary procedure, was conducted in an impartial manner and resulted in a fair dismissal due to redundancy.

The respondent submitted that the complainant has not tried to mitigate his losses and that this should be borne in mind when drafting the decision.

Section 7 of the Redundancy Payments Act, 1967 states that

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 respondent submitted that owing to the change in the financial fortunes of the company, the requirement for employees had diminished, this was supported by testimony and examples showing this change of fortune.  This account was not challenged.  Accordingly, I find that the complainant was dismissed by reason of redundancy.  However, Section 6(1) of the Unfair Dismissals Act, 1977 states that

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) of the Unfair Dismissals Act, 1977 goes on to state that

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:

(a) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.

Although, Section 6(1) indicates that the dismissal of an employee shall be deemed to be an unfair dismissal, Section 6(4) indicates that redundancy of the employee is one of the situations where a dismissal is not deemed to be unfair.

Section 6(7) of the Act states that

Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so —

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and

(b) to the extent (if any) of the compliance or failure to comply by the employer, in relation to the employee, with the procedure referred to in section 14(1) of this Act or with the provisions of any code of practice referred to in paragraph (d) (inserted by the Unfair Dismissals (Amendment) Act, 1993) of section 7(2) of this Act.

This Section allows an adjudication officer to consider the reasonableness or otherwise of the conduct of the employer in relation to the dismissal.

In the present case, the respondent gave testimony regarding the detail of and provided supporting documentation for its position that the dismissal by way of redundancy was fair.  Evidence was given which outlined the independent nature of the redundancy matrix, the attempts made to explore alternative options and why these were not chosen.  The complainant submitted that the respondent should have dealt with the redundancies in a different manner. The respondent explained why if believed that it could not follow such procedures.  Ultimately the respondent had to make a decision on how if effected the redundancies and while the complainant did not agree with its course of action, I can not find anything unreasonable in the manner in which the respondent proceeded with the redundancies.

Arising from the foregoing, I find that the complainant was not unfairly dismissed.

Having considered the written and oral evidence from both parties, my decision is that the complainant was not unfairly dismissed.

Unfair Dismissals Act, selection for redundancy, no unfair dismissal