Complainant

Respondent

Parties

Lukasz  Cegielski

Vgl Support Services Ireland Limited Viagogo

Representatives

Gary Keogh & Company Solicitors

 LK Shields. Mr.  Owen Keany, BL.

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-00036410-001

29/05/2020

The complainant submits that he was unfairly dismissed by way of unfair selection for redundancy on 13 may 2020.

He had been employed in different branches of the respondent’s company from 16 October 2017 up to the date of his dismissal providing administrative support and oversight of sales activities on the respondent’s secondary selling platform.

His gross monthly salary was €2375.

He submitted his complaint to the WRC on 29 May 2020.

The complainant started employment with the respondent on 16/10/2017 as a customer facing agent.  In mid-October 2018 he was promoted to the position of senior agent in Special Operations, for what he was told was his outstanding performance. There he remained until the termination of his contract on 13/05/2020. There are five agents in Special Operations, – 1 in Geneva, 1 in Taiwan and two others beside himself in Limerick, Ireland.

His work entailed providing customer support and administrative back up for the Viagogo website which is a secondary online sales site for live sport, music and entertainment tickets. They deal with large case scenarios, in either the buying or selling of tickets for concerts and sporting events and deal with accounts management and general problem solving,

The net issue for the complainant is that he was unfairly selected for redundancy. The scoring used to select him was unfair on the basis of a matrix which he believes was designed to dismiss him.

His duties were very vague. His three person team was assigned to spot all the red flags in sales and purchases and to raise those red flags with the team leader in good time and to make no mistakes.

Unfairness of criteria used to select him for redundancy.

 The criteria used to select staff for redundancy were Productivity (measured by the amount of missed deadlines) and Quality (the number of red flags not raised). It was subjective and drawn from the poor score awarded to the complaint under these very headings by the team leader at the February 2020 performance review. He did not challenge the result formally as he was concerned that if he did, he would not get a bonus. He did not receive a bonus or pay rise.

Witness 1: Evidence of Complainant.

The complainant progressed, successfully, through two roles to take on a role in special operations in October 2018. The team leader had invited him to join the team. His job description specified dealing with problematic markets and large sales or purchases. The definition of a red flag varied. So for example a seller might sell 200 tickets in 2020, then 2000 a year later. This showed he didn’t have to capacity to manage sales or sell. The complainant would then have to ring the seller and advise him to sell the 200 tickets first and then revert after that to see If a further 1500 were required. Any sudden change in the number of tickets bought or sold would be a red flag. However, no rule existed preventing one from selling more than x tickets for one event. The instructions as to what circumstances should prompt the raising of a red flag were very vague.

The team leader told him that he had missed red flags at the February 2020 performance review.  It was not a warning just a conversation. The complainant told the team leader that the absence of clarity as to when a red flag should be raised, and the difficulty of meeting deadlines made his job more difficult. The team leader’s evaluation of him in February 2020 shocked him as he had not advised him in the previous 11 months of any serious concerns. The team leader told him that he was one of his strongest agents in Limerick. He was never told of any adverse consequences awaiting him if red flags or deadlines should be missed. He told the team leader that he was unhappy with his evaluation. He decided to accept the team leader’s criticisms as constructive and vowed to improve. He was never told how many emails he should issue or respond to per day. So, he operated in the dark.

The complainant notified the respondent on the 7 May about what he believes was the team leader’s unfair assessment of him and he never heard anything further.

He does not accept that the criteria used were objective.

Cross examination of the witness.

The complainant accepted that there was a need for redundancies.  He attended all the collective meetings in his capacity of an elected employee representative. He influenced the identification of which criteria should be used in the selection process. He did not challenge the criteria. He accepts that he received notes of the meetings, input was invited and submitted by the complainant on the criteria to be used. He accepted that many of his amendments -a measurement period of six months as opposed to three, more measurable criteria -were accepted. He had two meetings concerning his own redundancy. As to why he did not appeal his selection for redundancy, he stated that he believed it would be conducted by a person who had decided on the criteria for selection. He accepted that he made no enquiries about the identity of the appeal officer.

He was verbally advised of his marks.

Mitigation.

Following the hearing, the complainant submitted copies of fifty eight applications for positions. He undertook remote education courses in July 2020. He took up employment on 14/8/2021 on an annual salary of €40,000 as a cross data analyst.

Conclusion.

He disputes the integrity of the process. He believes that irrespective of any objections he might have submitted, the company would still have proceeded to make him redundant. He believes that he and other employees had no real choice and influence.

The respondent’s behaviour was not reasonable. Therefore, in accordance with section 7 of the Act, this renders his dismissal to be unfair.

The respondent denies that the complainant was unfairly dismissed. He was dismissed due to redundancy on the 13 May 2020 in circumstances where the respondent was required to significantly reduce its work force and scale back its operations in Ireland, following the unprecedented downturn in its business by reason of the Covid-19 pandemic.

The respondent operates a service which facilitates the sale and purchase of tickets for concerts and sporting events. They provide online support for a website, Viagogo. The complainant worked with the special operation team. They were a screening service for customers of the web site providing support and oversight in respect of purchases and sales of tickets.

Redundancy is a defence to a claim of unfair dismissal.

It is well established that in considering an employer’s defence, consideration will be given to the following factors:

- Whether a genuine redundancy situation arose

- Whether the employee was fairly selected for redundancy

- Whether the employer carried out a fair and proper consultation process prior to taking the decision to terminate by reason of redundancy.

It was a genuine redundancy. Due to the Covid-19 pandemic, the respondent’s revenue declined (year on year) in March 2020 by 86% and in April 2020 by 99%. Prior to May 2020, the respondent employed approximately 230 customer service and support staff in Ireland. After May 2020, 104 were made redundant with 125 remaining. There were three agents in the special operations team in Limerick where the complainant worked.

The complainant was the elected worker representative. He represented staff on his special operations team plus employees in sub- groups.

The selection of the complainant for redundancy was itself the product of a rigorous matrix / scoring system which was applied objectively by the respondent’s management under the headings “Productivity”, “Quality”, “Technical Skills” and “Language”. These criteria used to select persons in the pool at risk were agreed to by the complainant. Productivity crystallised into the number of deadlines given to an agent by a manager but not met. Quality referred to the number of red flags missed or issued by an agent. They used this metric so that they could track the percentage of red flags raised or missed by an agent.

The complainant was invited and indeed encouraged to provide input on the scoring matrix prior to it being finalised. Changes were made to that matrix on the basis of feedback provided by the complainant, as the employee representative for his team.

Once the complainant’s score had been calculated by the respondent’s management, he was provided with a full and meaningful opportunity to give his own comments and feedback in relation to the scores applied under each category. The complainant received the following scores under the scoring criteria:

Productivity 1

Quality 1

Technical Skills 3

Language 3.

These marks were lower than his two colleagues in the special operation team.

The respondent notified a group of employees who had been made redundant (including the complainant) of internal and external job opportunities. The complainant did not apply for any of these roles.

Witness 2.  Head of Customer Service Product and Analytics.

The complainant worked on the special operation team, a sub group of the customer service team which operates a red flag process which monitors sales to see they are legitimate and to identify risks.

The three employees in the special operations team in Limerick were identified at risk of redundancy. The respondent decided that one of them would have to be made redundant.

Consultation Process.

The respondent engaged in a collective consultation with ‘town hall’ meetings for employees and an individual consultation process.

The complainant’s input was invited on the selection criteria. The complainant made suggestions about measurable criteria and these were accepted by the respondent and agreed to by the complainant until after he was selected for redundancy on 11 May 2020 at which point he objected to the criteria. The respondent did take on board the complainant’s suggestions and amendments– qua worker representative to extend the period from three to six months during which red flags missed and deadlines not met would be measured.

The process of coming up with the marks to be awarded under each criterion resulted in multiple meetings.

On the 11 of May the respondent notified the complainant of his provisional selection for redundancy.

The respondent stated that he made everything as objective as possible; only data which could be measured and tracked was used. He did consider alternative to redundancy such as layoffs, transfer, short time but due to the downturn of ticket sales, such options were not considered practicable for the special operation team.

Special operations did not resume until July 2021. The remaining two staff were laid off: one returned and one left.

Cross examination of Witness 2.

The witness confirmed that he was based in New York. He had some familiarity with the complainant’s work from having worked with him. He was inconsistent- sometimes his work was satisfactory, sometimes not.

He disputed the suggestion that the period during which the complainant was measured under the criteria 6 December 2019 –6 June 2020 was unfair as Covid-19 did not impact until after 14 March.

The data on red flags, missed deadlines etc., used to provide the scores, was extracted from the respondent’s data base. The team leader inputted the data.

The witness disagrees that the minutes of meetings written by HR Manager, fail to reflect the differences in opinion registered at the meetings or that everything had already been decided.

He was aware that the complainant had flagged some issues about the end of year review and the team leader’s attitude towards him in February 2020. The witness is aware of the team leader’s concerns about his performance. He is aware that the team leader in doing a performance review invites the employee to score himself, so a comparison can be done with the employee’s perception for the previous twelve month period.

He did not appeal. An appeal could have been made to an independent person from another section

The vast majority of those made redundant were customer service agents.

Every team had the same criteria applied to it. Weighting of individual criteria might vary; depending on the job. For example, Language Skills earned a higher percentage of the overall marks in the customer facing agent pool than say, Quality did in the special operations section.

Witness 3: HR Manager.

In May 2020, the effects of the pandemic resulted in 104 staff being made redundant across the four departments, fifteen were placed on part time and five were placed on lay off.

The witness attended the ‘town hall’ meetings with all employees. After each meeting, minutes were sent to employee representatives to amend if they sought fit. The complainant who served as an employee representative during this period never questioned the accuracy of the minutes of the meetings called to discuss the redundancy process.

The respondent did consider short time and other options during the consultation process.

The Head of Global Support, Customer Service Operations, identified the selection criteria. Criteria for selection were then agreed within the consultative group which included the complainant. The respondent advised employees of EAP options, recruitment agency details and gave time off to avail of these options. There has been a recruitment freeze in place since May 2020.

Cross examination of witness.

The witness stated that she was not involved in the collation of data re employees picking up on red flags or missing deadlines. She was aware of the outcome of the complainant’s performance management with the team leader.

The witness did up an agenda before the meetings. The complainant got notice in advance of all meetings. A HR rep drafted the minutes of the meetings

An independent appeals process was available to employees.

The witness did attend the individual, provisional selection meeting on the 11 May.

Witness 4: Complainant’s Team Leader.

The witness was the team leader of the special operations team since 2016.

The witness addressed how the marking under the different criteria was done. For Productivity, he checked the agents’ emailed responses to time bound assignments and tasks sent to them. Clear deadlines were given with confirmation required. A response after a deadline is not considered to be a response. The complainant had 12-13 missed deadlines out of a total 25 emails sent to him and got the agreed score of 1 for this.

In terms of Quality, agents were assigned to detect red flag issues. The complainant had missed red flags and got a score of 1 for this which was the agreed score for the number of red flags missed. A red flag is a suspicious or potentially suspicious activity where a seller seeks to sell a substantially greater number of tickets than previously. The witness states that he spot checked all employees on this work.

He maintains that he conducted the performance review in February as fairly as possible. It was intended as a motivational meeting. He commended the complainant for some activities and raised concerns with his performance in other tasks. He told the complainant that the review was mixed. Reviews are conducted with all employees. There was nothing personal about it.

He went to management to make a case for more family friendly working arrangements for him.

His team was one of the hardest hit in the company. Of three agents in Limerick, one was made redundant, two were laid off one of whom did not return until July 2021. The other agent left the company.

Cross examination of Witness.

 He confirmed that he became the complainant’s team leader when he joined the Special Operations team.  He had no responsibility for him previously.

The complainant was not incapable but did not perform consistently in relation to what was expected of him.

The witness confirmed that he had a written record of the performance review dated 14 February 2020.

He rejects the complainant’s assertion that instructions were vague about the identification of red flags. It was clearly set out that a seller selling substantially more tickets for an event than previously was a red flag event. As it was unacceptable to disregard any red flags, no number was given to agents.

The witness did not attend the provisional selection meeting on the 11 May.

The witness did present performance review results of all agents in Limerick to the Head of Customer Service Product and Analytics. These notes contained intime compliance with tasks assigned. Generally, he only discussed performance review with subjects of review.

He did engage with Head of Customer Service Product and Analytics about what elements of the agents’ work would be measurable and transparent.

He was trying to save all agents’ jobs.

Legal Arguments.

 The respondent relies on the Employment Appeals Tribunal decision in St Ledger v Frontline Distributors Ireland Ltd which emphasised that there were two important characteristics in the statutory definition of redundancy, namely impersonality and change. The circumstances obtaining in May 2020 in the respondent’s company matched this definition.

It was a genuine redundancy. There is only one person working in that section  now as opposed to three when the complainant  was there. Revenue was down 99%. The process was fair. Multiple opportunities were offered to inform staff and to allow the complainant to influence the process. It was a fair selection. He is now trying to attack the criteria which he helped to formulate.

The complainant made inadequate attempts to mitigate his loss. He did not pursue options notified to him by the respondent concerning opportunities either within the company or externally.

The respondent asks that the complaint be dismissed.

At the outset of the hearing the complainant accepted that there was genuine need for redundancy and that his complaint was wholly focussed on the non- objective nature of the scoring matrix used to identify him for redundancy.

Relevant Law.

Section 6 (4)(c) of the Unfair Dismissals Act 1977 identifies redundancy as a defence to a complaint of unfair dismissal.

However, Section 6(3) of the 1977 Act qualifies this defence and states

“(3) Without prejudice to the generality of subsection (1) of this section, if an employee was dismissed due to redundancy but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have not been dismissed, and either—

(a) the selection of that employee for dismissal resulted wholly or mainly from one or more of the matters specified in subsection (2) of this section or another matter that would not be a ground justifying dismissal, or

(b) N/A

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.”

Furthermore, the Unfair Dismissals Act 1977-2015 at section 6.7 provides

 ” 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……”

Application of the above statutory provisions to the circumstances of this complaint.

Where a complainant alleges that they have been unfairly selected for redundancy and therefore unfairly dismissed, the onus of proving fair selection and therefore a fair dismissal lies with the employer.

Fair Selection

The criteria used for selection were “Productivity”, “Quality”, “Technical Skills” and “Language”. The complainant did not make out a case that these were inherently unfair and should never have been used. It is accepted that they were the agreed product of a consultative process. He did raises issues about the difficulty in measuring an employee under these criteria, but he did not dispute the metrics used to score employees’ performances over the previous six months under each of these four criteria which included marks awarded at the February 2020 reviews. He did not contest the number of missed deadlines nor the associated mark awarded, which was the factor used in measuring productivity, nor the number of red flags missed.  He did refer to the difficulty in identifying if it was a red flag situation due to the persistent absence of clarity on the employer’s side.  He maintained that the marks awarded to him were not objective because the performance review in February 2020 in which his performance was unfairly classified as inconsistent, influenced these marks. The classification flows from a lack of clarity as to what was expected of him.  However, if there was a lack of clarity as to what constituted a red flag situation, it impacted on all three agents in the Limerick office and was not personal to him.  The complainant did not challenge the February review results which were included in the tally of marks awarded to him. The job of an adjudicator in examining a complaint of unfair selection for redundancy is not to upend a performance review done prior to his selection- which admittedly influenced his selection, but which was not formally challenged. Also, it was done at a time when the impact of Covid 10 was unknown. Responsibility rests with the complainant to initiate a correction of his review.

The respondent produced evidence underpinning his scores.

I cannot find that criteria used were inherently subjective. They were applied transparently and universally to the workforce of 230 customer service and support staff in Ireland. The marking awarded under the scoring matrix led to 104 employees being selected for redundancy. It was a comparative exercise. I do not find that the getting the lowest score out of three agents automatically renders the dismissal to be unfair. I do not find that the evidence supports the complainant’s contention that the scoring matrix was designed to target him for redundancy or that it was applied unfairly.

Reasonableness of employer’s conduct.

The complainant also relies on section 6.7 of the Act stating that the respondent acted unreasonably towards him

The adjudicator in An Employee V A Golf Club, 24960, considered how an employer might conduct a fair selection process in a redundancy exercise. The adjudicator relied on Williams –v- Comp Air (1982) 1 ICR 156, which set out the principles governing how reasonable employers will act, faced with having to choose which employees should be made redundant and which stated 

“1.The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

 3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

 4.The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

 5.The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment”.

 The evidence is that the respondent engaged in a thirty day collective consultation process, conducted a consultative process with elected employee representatives who agreed with the scoring matrix and who were given an opportunity to amend the criteria.  it is accepted that the redundancies were carried out by application of the agreed criteria. The respondent engaged in a very short-lived individual consultation process with the complainant.

The complainant was offered an appeal which he chose not to exercise, but which could have afforded him the option of identifying any flaws in how or why he was identified for redundancy.

On the basis of the authorities and the evidence, I do not find that the conduct of the respondent was unreasonable.

 I do not find this complaint to be well founded.

I do not find this complaint to be well founded.

Selection matrix for redundancy.