Complainant

Respondent

Parties

Gary  O Neill

R&P Credit

Representatives

  Self Represented

 Stephen O’Leary

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Regulation 6 of the European Communities (Protection of Employment) Regulations 2000

CA-00044458-001

03/06/2021

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00045115-001

09/07/2021

The Complainant contends that he was unfairly dismissed by way of redundancy.

The Complainant stated that he submitted his complaint as he was aware of the retirement of one agent and the taking on of others since he was made redundant.  He did cover for an agent when he was out sick or absent and he believes that the Respondent has unfairly selected him for redundancy.

CA-00044458-001

Regulation 6 provides for a complaint to be made where Section 9 of the Protection of Employment Act 1977  has been breached.  Section 9 provides for consultation with employees’ representatives in the event of the proposed creation of collective redundancies.

There was not a collective redundancy in this case and the complaint is not well founded.

CA-00045115-001

The issue for decision is whether or not the Complainant was unfairly dismissed contrary to Section 6 of the Unfair Dismissals Acts. The fact of dismissal is not in dispute between the parties, and therefore, the burden of proof rests with the Respondent to demonstrate that the termination of employment came within a lawful reason.

In the circumstances, in order to satisfy the burden of proof, it is therefore, a matter for the Respondent to establish (1) that a redundancy situation arose and (2) that it acted reasonably and fairly towards the Complainant in addressing that situation in terms of the selection process for the redundancy.

Having regard to the evidence adduced, I am satisfied that the following facts have been established in relation to the matter:

In 2020, the Pandemic caused trading difficulties for many businesses, including the Respondent’s.

Between December 2020 and March 2021, the Respondent took measures to mitigate or alleviate the financial challenges, including reductions for Directors and Managers.

Post the redundancy of the Complainant, some business was secured by the Respondent, and a collection agent retired.  The possibility of re-employment of the Complainant might have been considered by the Respondent at that time.  However, I am bound to consider the situation as it pertained in relation to the time the Complainant was made redundant and the applicable law.

Section 7(2) of the Redundancy Payments Acts provides:

“(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,..”

Section 7 (2) (c) applies in this case.

In considering whether or not a redundancy situation arose in the context of the present case, I am satisfied that owing to the financial situation, there was a requirement for the Respondent to restructure its operations and carry on the business with fewer employees thereafter. In the circumstances, I find that a genuine redundancy situation existed within the Respondent’s company within the meaning of Section 7(2)(c) of the Acts at the material time of the Complainant’s dismissal. 

In terms of considering and deciding whether or not the Complainant was unfairly selected for redundancy, I am obliged to take cognisance of the following provisions of the legislation. The contractual entitlement to a defined procedure in terms of the selection of candidates for redundancy is provided for in Section 6(3) of the Unfair Dismissals Act 1977 which states that:

“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) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure.

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

I have not been presented with any evidence to suggest that there was either any trade union agreement or any custom or practice in operation within the company in relation to the manner in which candidates should be selected for redundancy. I also find that the selection of the Complainant for redundancy did not result wholly or mainly from any of the matters specified in subsection (2) of Section 6 of the Act. In the circumstances, I find that the Respondent did not act contrary to the provisions of Section 6(3) in terms of the manner in which the Complainant’s redundancy was effected.

In considering the fairness or otherwise of the Complainant’s selection for redundancy, I am also obliged to take cognisance of the provisions of Section 6(7) of the Unfair Dismissals Act 1977 (as substituted by s.5(b)(a) and (b) of the Unfair Dismissals (Amendment) Act 1993), which provides 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”.

This provision provides that the reasonableness of the employer’s conduct is an essential factor to be considered in the context of deciding on the fairness or otherwise of a dismissal and it places an obligation on an employer to act reasonably in taking a decision to dismiss an employee on the grounds of redundancy. In this regard, I note that the Employment Appeals Tribunal held in the case of Gillian Free –v- Oxigen Environmental[1] that: “When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner. While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy. The employer must follow the agreed procedure when making the selection. Where there is no agreed procedure in relation to selection for redundancy, as in this case, then the employer must act fairly and reasonably.”.

In this instant case, the Respondent had taken some measures to alleviate the financial challenges before deciding to make the Complainant’s position redundant.  It was decided to distribute the Complainant’s duties and no viable alternative existed at the time of the redundancy.  The Complainant was given the opportunity to appeal the decision and did not avail of the appeal.                 Having regard to the totality of the evidence adduced in the present case, I find that the Respondent did act fairly or reasonably and did apply fair procedures in terms of the manner in which the Complainant was selected for redundancy.  I find the complaint to be not well founded.

Redundancy. Not well founded.