Complainant

Respondent

Parties

Graham  Hopkins

Kirby Group

Complainant

Respondent

Anonymised Parties

Representatives

Darren Erangey Connect Trade Union

Paul O'Brien Stratus Consulting

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-00035132-001

10/03/2020

The company name was clarified by the Head of HR on behalf of the Respondent and he confirmed agreement to update this on the claim form.  I updated same accordingly.

The Complainant commenced employment on 23 May 2016 and ended employment on 19 December 2019.  He held the position as General Worker.

The Respondent stated the nature of work is that of “jobbing” and moving to alternative site. The Respondent stated the Complainant was dismissed due to contract completing and redundancy being the only option. The Respondent representative stated that this was a genuine redundancy as a result.

The Complainant’s representative stated in 2015 the Complainant was hired by a recruitment agency used by the Respondent and commenced work on a site in Oranmore Co Galway. During his time on this site the Complainant conducted the duties of a Teleporter Driver. This job lasted for approximately 4 months. Upon completion the Complainant was approached by the Project Manager for the Respondent who expressed his admiration for the Complainant’s work ethic. The Project Manager asked the Complainant to keep in touch with him directly every few weeks as he was confident the Respondent would have more work commencing soon in Athenry.

The Complainant’s representative stated that unfortunately, this project never materialised, but true to his word the Project Manager secured alternative work for the Complaint directly employed with the Respondent on a site in Limerick.

The Complainant’s representative stated in 2016 the Complainant commenced work as a full time General Operative employee with the Respondent. Not long after the Complainant’s arrival on site, approximately 2 months, his role and duties changed while working on a site. He went from working as a GO on site to primarily working as a Teleporter driver.

The Complainant’s representative stated as per the Sectoral Employment Order for the Construction Industry, the role of a teleporter is paid a higher basic hourly rate. The Complainant brought this to the attention of his Project Manager and without hesitation the appropriate adjustments were made. The Complainant continued in the role of Teleporter driver for a further 12 months and remained on the correct rate of pay.

The Complainant’s representative stated in 2018 management informed the Complainant that his Teleporter operational skillset was required on a new site in Athlone, and that he would be working as the Teleporter driver on same. The Complainant was happy to oblige and moved to the Athlone site as requested.

The Complainant’s representative stated on his arrival the Complainant found himself demoted back to a General Operative and Storeman which in turn imposed a pay cut.  The Respondent had employed a temporary agency worker on the site to conduct the teleporter duties. This agency worker was unable to operate the 360 teleporter on site. Since the Complainant possessed the required skillset to operate a 360 teleporter, he was asked by management to take on this role as his primary role on this site.  A role he was happy to accept.

The Complainant’s representative stated despite working in the role as Teleporter Driver’ which attracts a higher basic hourly rate of pay, the Respondent failed to make the relevant adjustment to the Complainant’s pay as per the legal binding rates of pay contained within the Construction Sectoral Employment Order. The Complainant raised the issue with his Electrical site manager.

The Complainant’s representative stated that the Electrical site manager was not very impressed by the Complainant’s request to say the least and quickly reminded the Complainant in a mocking and demeaning manner, that given his personal history he is lucky to have a job and to leave things as they are, and he kept reiterating “sure who else would hire you”. This was deeply upsetting for the Complainant and he left this meeting feeling belittled and demoralised.

The Complainant’s representative stated upon reflection of his ordeal with the Electrical Site Manager and following some consultation with his colleagues on site, the Complainant again raised the issue of pay with the Electrical Site Manager. The Electrical Site Manager was again aggressively dismissive of his request and instead he insisted that the Complainant prove he deserves a basic pay increase. This was said to the Complainant despite the fact the basic pay increase sought by him was his entitlement under the Construction Sectoral Employment Order.

The Complainant’s representative stated for a further 6 months while the Complaint remained in the position of Teleporter driver the Respondent knowingly and purposely continued to operate outside the terms of the legal binding Construction Sectoral Employment Order by refusing to pay the Complainant the appropriate rate of pay.

The Complainant’s representative stated in 2018 the Complainant’s teleporter skillset was again required on a new site in Westport. Once again during the early stages of this job the Complainants role fluctuated between GO and Teleporter Driver.  This fluctuation was so frequent the Complainant did not request the basic pay increase, however once his role on site became primarily Teleporter Driver, the Complainant arranged to meet with the Site Manager to outline the discrepancy in his pay. During this meeting the Complainant was told by the Site Manager that he would look into it and will send his request to the relevant Project Manager.

The Complainant’s representative stated coincidentally the same time the Complainant made his request for a pay increase; the Mechanical Foreman began a relentless pursuit of the Complainant. He demanded to always know the Complainant’s whereabouts at all times and he needed to oversee, control and man manage all aspects of the Complainant’s day to day activities, workload and insisted every job the Mechanical Foreman requests of the Complainant must be made a priority over anything or anyone else. This led to several verbal assaults from the Mechanical Foreman toward the Complainant both publicly and in private. The Mechanical Foreman’s actions led to the Complainant having to leave the site early in a very emotional and distressed state. The Complainant remained off work the next day in an attempt to re-compose himself for his return to work and the expected treatment to follow.

The Complainant’s representative stated upon the Complainant’s return to work, the Mechanical Foreman approached the Complainant and apologised. The Complainant accepted his apology and got on with his job.

The Complainant’s representative stated upon the Complainant’s return from his scheduled annual leave, the Respondent had hired a temporary agency worker to conduct the Complainant’s duties. The Complainant in turn was sent to help set up a newly rented warehouse in Athlone. Two weeks into this job the Complainant met with the now Associate Director. The Associate Director informed the Complainant that the Respondent had a job in Galway and would like to send him close to home as a form of reward for working away for so long. This was very much appreciated by the Complainant and he welcomed the offer.

The Complainant’s representative stated it is worth noting at this time, despite the Complainant’s attempts to address his pay on the Westport site, the Respondent never adjusted his basic pay for the 12 months+ he remained on this site. Once again, the Respondent knowingly and willingly disregarded the legal binding rates contained within the Construction Sectoral Employment Order.

The Complainant’s representative stated furthermore, the requirement for the Complainant’s Teleporter skillset was still required on the Westport site. The Respondent hired a temporary agency worker to backfill the void left by the Complainant while he was on annual leave and kept this agency worker employed despite the Complainant’s dismissal.

The Complainant’s representative stated in November 2019 the Complainant moved to a site in Galway as a Teleporter driver. When the Complainant arrived on site, the Respondent had a GO and a Storeman employed on site. Soon after the Complainant’s arrival this Storeman was laid off.

The Complainant’s representative stated the Electrical Site Manager, the same person who previously belittled and degraded the Complainant on the Athlone site, approached the Complainant and informed him that since the storeman was gone, he will be conducting the combined duties of the Teleporter Driver, Storeman and General Operative. The Complainant explained this is not a reasonable request and will most definitely impact on his duties. The Complainant accommodated the Electrical Site Manager’s request but sought this imposed working arrangement be revisited sooner rather than later.

The Complainant’s representative stated on the 2 December the Complainant received a call from the Mechanical Foreman requesting him to go clean out the mechanical container when he got the chance to do it. Since the implementation of the Electrical Site Manager’s changes to the Complainant’s workload he was unable to complete this task on the same day. The following morning the Complainant received a call from the Mechanical Foreman yelling and cursing at him over the container not been cleaned out. The Mechanical Foreman was not interested in hearing from the Complainant in how back logged his workload had become.

The Complainant’s representative stated on the 3 December 2019 the Electrical Site Manager sent a WhatsApp message to the Complainant titled “Roles and Responsibilities“ which included he only did for the Respondent.

The Complainant’s representative stated around 5pm that evening the Electrical Site Manager came to the stores and asked the Complainant did he receive the WhatsApp message and to hear his thoughts on same. The Complainant informed him that the workload was excessive and totally unfair to expect one man to do the work of three. The Complainant mentioned the existing workload was already causing issues for him and mentioned the issue with him. The Complainant asked the Electrical Site Manager what would he (Electrical Site Manager) say to such a request if he was in the Complainant’s position. The Electrical Site Manager responded in a mocking manner, given your personal history, you won’t find a job easy so just get on with it.

The Complainant’s representative stated the Electrical Site Manager’s reaction did not surprise the Complainant as it was not the first time the Electrical Site Manager used these kinds of threats against the Complainant.

The Complainant’s representative stated the Complainant’s response to this latest attack on his character was, if you want me to conduct all these extra duties as well as operating the teleporter going forward, then this needs to be reflective in my pay. The Mechanical Site Manager simply laughed and told the Complainant if he has an issue regarding pay to bring it up with the Project Manager.

The Complainant’s representative stated as instructed the Complainant proceeded to the site office to discuss same with the Project Manager. The Mechanical Foreman was also present in the office at this time. The Complainant explained his situation to them both, they in turn simply told him that they will look into it and revert back to him.

The Complainant’s representative confirmed the following morning the Complainant was asked by the Castle Ceilings foreman to lift a delivery of slabs for them which up until recently was the normal practice. The Complainant explained the directive he received from the Electrical Site Manager. The (Castle Ceilings foreman) approached the Electrical Site Manager on this issue as Castle Ceilings do a lot of lifting for the Respondent within the building. Following the clarification sought on the matter, the Castle Ceilings foreman informed the Complainant the response he got from the Electrical Site Manager was that he was showing the Complainant who’s boss.

The Complainant’s representative confirmed on the 18 December the Complainant asked the Mechanical Foreman was there any update on his request for his pay to be adjusted to the correct rate. The Forman explained he had forgotten and promised to have word by the weekend.

The Complainant’s representative confirmed the following day the 19 December the Mechanical Foreman called the Complainant to meet him in the meeting room. The Complainant assumed this was in relation to his pay. The Foreman explained to the Complainant the budget for the teleporter was spent and going off hire the same day and that they were letting him go with immediate effect. As expected, this came as a total shock to the Complainant given the fact there was plenty of work for him. The Complainant asked about the teleporter position in Westport, the Foreman told him it is also going off hire today.

The Complainant’s representative stated that evening the Complainant attempted to log onto Bamboo HR App (internal process) to check what holidays he had left etc but found he was unable to access same. The Complainant rang HR regarding this and explained to her he was let go earlier in the day. She could not believe he was removed so quickly. The Complainant asked HR for the reason why he was made redundant, she said she would get back to him. The following day HR issued the Complainant with his calculation of redundancy and final figures.

The Complainant’s representative confirmed on the 7 January the Complainant received his formal notice of termination.  The Complainant contacted his Union regarding the manner in which he was treated on site and his unfair selection for redundancy. The Union sought to meet with management on this matter.

The Complainant’s representative confirmed a meeting was held on 25 February 2020 between Head of Human Resources, Regional Secretary Connect Trade Union and Connect Trade Union member.  During this meeting the Union sought clarity on how the Connect Trade Union member was selected for redundancy and the events which led to his selection. The Union also asked of Head of Human Resources to clarify why the Complainant was informed he was let go because the teleporter budget was spent, but the letter dated the 7 January states he was let go due to his role as a General Operative was no longer needed.

The Complainant’s representative stated the Head of PR was to revert back with clarity on this. That clarity was never provided.

The Complainant’s representative stated the Union raised the issue relating to the rate of pay the Complainant was kept on and the fact that Connect Trade Union member should have been in receipt a higher rate for conducting the duties of a teleporter. When he attempted to address this issue, he was subsequently dismissed. Furthermore, should the Respondent have paid the Complainant the correct rate of pay he would have received more in his redundancy payments.

The Complainant’s representative confirmed Head of HR was to revert back to the Union on these points also. That clarity was never provided.

The Complainant’s representative stated due to the lack of clarity and engagement from the Respondent on this matter coupled with the events leading to the Complainant dismissal, the Union referred the matter into the WRC.

The Complainant’s representative confirmed this case was initially heard on the 19 January 2021.  Following this hearing the adjudicator sought from the Union events the Complainant took to seek alternative employment since his dismissal.  

The Complainant’s representative confirmed the Union sought this case to proceed as normal given the error in dates outlined by the Respondent representative was not of the Complainants doing but in fact a typo on behalf of the Local Enterprise Services Co-ordinator.  

The Complainant’s representative in conclusion stated seeking reinstatement or re-engagement was not possible for our member based on the events that have transpired which have been outlined in this submission, coupled with the manner in which the Complainant was unfairly dismissed for seeking his correct rate of pay under the terms of the legal binding Construction Sectoral Employment Order. 

The Complainant’s representative stated there was no justification around the selection for the Complainant for redundancy.  The Respondent made the Complainant redundant despite alternative work on other sites and did not offer the Complainant the option of availing of this alternative work. The Respondent had temporary agency workers working on other sites including the Westport site conducting duties equal to the Complainant. The Respondent did not operate the last in first out rule of thumb when the decision was made to make the Complainant redundant, nor did they consider all options other than termination of employment.  The Respondent chose to make the Complainant redundant not his position. 

The Complainant’s representative stated therefore, we have lodged this claim on behalf of our member seeking compensation as the form of redress. With that in mind we would respectfully request the WRC to award the Complainant the maximum amount allowed for under the Unfair Dismissal Act 1977 to 2005 “where financial loss has been sustained by the employee, financial compensation in respect of such loss subject to the maximum of two years renumeration.”

Complainant Evident

The Complainant gave evidence and stated he was brought into the office to say the budget was spent for the teleporter and they replaced him when he returned from holidays by an agency driver who remained there until August 2020 and he was replaced by agency driver to January 2021 and the general operative started in 2018 and remained on that site until July 2021.  He was rehired in October 2021.

The Complainant stated the project he was dismissed from was in December; the new project was starting in January there so he stated there was work there for him. The GO Working with the teleporter was the agency’s position and he would drive the teleporter and do GO role if a teleporter was not required.

The Complainant stated he was employed via Limerick office initially so he could have worked through Ireland and worked in many locations.  The Respondent was impressed with his work and that is how he got the job.

Under cross examination the Respondent representative stated he was employed as a general operative.

The Complainant stated he didn’t raise grievance issue with HR as the last time he did he was taunted and was afraid of losing his job.  He didn’t raise it via the union as he wasn’t a union rep at the time and he said he felt by raising it to the foreman would be sufficient.

The Complaint stated he rang HR in late 2017 about same issue and HR told him to get his foreman to deal with it and to contact them about the rate but he got snide comments from the foreman about getting it.

Regarding the Complainant’s CV – he submitted his CV to the Indeed job website after leaving the company. He stated he tried to keep his CV full and leave no gaps. He stated this was not accurate but he did this to try to get another job.

The Complainant stated he had on his CV January 2020 he was dump truck to June 2020, he never did this role and he put the information in to get another role.  In July 2020 he obtained another job so was unemployed for 6 months after the dismissal and redundancy occurred.

The Complainant is currently working as a teleporter driver as a casual agency worker.

The Respondent stated the case before you was initially heard on the 19 January 2021 and a second hearing took place on the 22 April 2021 which was adjourned due to the judgement of the Supreme Court in Zalewski v. Adjudication Officer and WRC, Ireland and the Attorney General (2021) ISEC 24 on 6 April 2021. A further hearing took place on the 30 September 2021.  The arising decision of the Adjudicator was to recuse herself and reschedule a new hearing which was communicated by the WRC to the Respondent on the 13 October 2021.  This is a new WRC hearing as a result.

The Respondent confirmed the company was founded in 1964, is a leading mechanical and electrical engineering contractor operating across Ireland, the UK and mainland Europe, and directly employing over 1,200 highly-skilled professionals.

The Respondent confirmed it provides full mechanical and electrical contracting services as well as specialist high voltage (HV) and medium voltage (MV) design and construction services to a range of clients across a number of different sectors including Data Centres, Life Sciences, Industrial, Commercial, and Substations and Renewables.

The Respondent stated the Complainant commenced employment with them on the 23 May 2016 as a General Operative initially on a 4-month fixed purpose contract of employment.

The Respondent stated as outlined below the Complainant had continuous employment for the period May 2016 to December 2019 in which he moved site locations on four separate occasions. Each move was due to the wind down of the construction project and the requirement for the Complainants skill set on another project.  Each move was also in accordance with the Complainants wishes. 

                Construction Site location           Period                                                  Reason for move

No.1      Wet Limerick Hotel Site                 May 20016 - June 2017                  Wind down of project

No.2      Pharma Site – Athlone                   June 2017 - July 2018                      Wind down of project

No.3      Life Science Site – Mayo                July 2018 – Nov 2019                      Wind down of project

No.4      Pharma Site – Galway                    Nov 2019 – Dec 2019                      Wind down of project / role redundant

The Respondent stated in December 2019, due to the Pharma site in Galway reaching completion, the requirement for the Complainant’s skillset / role was no longer required and the Complainant was given notice by the Site Project Manager that he was been made redundant.  The Complainant sought a transfer to another project but at that time there were no other suitable projects to transfer the Complainant.  Consequently, his employment was terminated by way of redundancy. This was confirmed to the Complainant by a letter from HR dated 7 January 2020.  The letter also confirmed that his final payment, paid on the 2 January 2020, included all accrued leave, statutory notice and redundancy entitlements.

Respondent’s Position

Construction sector (normal practise)

The Respondent stated it is important to note that the Construction sector by its nature is project based and that the average time of a large project for the Respondent is circa 8-12 months.  The Complainant was fortunate that the timing of the Respondents projects, within local geography, facilitated his specific skillset which allowed for continuity of employment across a number of projects between 2016-2019.  The established practise in the sector is to make employees redundant on completion of projects where alternative redeployments (based on skillset) are not available.

Extract from Company Handbook  

Page 13 of handbook states

“In the event of termination due to redundancy or wind down on any particular site, it is the prerogative of the employer to make a decision in any particular case. All things being equal, relative to skill, experience, flexibility, attendance, time-keeping, value to the organisation and disciplinary record, all things being equal, service will be the main criteria”.

It is submitted by the Respondent that the Complainant was made redundant in accordance with this clause in the company handbook.

Section 7 Subsection 2 (b) of the Redundancy Payments Act 1967 (The Principal Act) states:

“the fact that the requirements of that business for employees to carry out work of a particular kind, or 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”.

It is submitted by the Respondent that the circumstances of the wind down of the Galway site due to the completion of the construction project resulting in the redundancy of the Complainant was fully in accordance with Section 7 of the Redundancy Payments Act 1967. 

Section 6 (7) of the Unfair Dismissals Acts, 1977-2015 states;

“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.”

It is submitted by the Respondent that it behaved reasonably in dismissing the employee by way of redundancy and that it satisfied Section 6(7) of the Unfair Dismissals Act.

Mitigation of loss

Section 7 (2) (c) of the Unfair Dismissals Acts, 1977-2015 states;

“(c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid”

The Respondent stated in February 2021, it came to their attention that the Complainant had his CV posted on the ‘Indeed’ jobs website. The CV states that the Complainant was employed with Coolturk Quarries for the period January 2020 to July 2020. On becoming aware of this matter the Respondent wrote to Connect Trade Union, on the 2 March 2021 expressing their concern as the Complainant, at the Adjudication hearing on the 19 January 2021, gave the impression in his evidence to the Adjudicator that he only worked from July 2020. Connect replied on the same day confirming that the Complainant never worked for Coolturk Quarries and only stated that he did in order to help him secure employment. These deliberate acts of misinformation and deception by the Complainant questions the trust and credibility of any information or evidence provided by the Complainant.

The Respondent stated on the 27 September 2021, Connect Trade Union wrote to the Adjudicator attaching a letter from the Local Employment Services (LES) Galway. The LES letter was signed by a Co-ordinator and dated 10 March 2021. The letter also confirmed that the Complainant was on the job seekers allowance from January to July 2021.The Respondents representative contacted the Co-ordinator for clarification on the 27 September 2021. The Co-ordinator confirmed she knew the Complainant and also confirmed;

the Complainants period on job seekers was actually January to July 2020 (7 months)

the Jeep Trailer Course he attended was only approx. 4 weeks duration.

The Respondent stated it is also worth noting that due to the Covid-19 pandemic, the Government closed the Construction sector from mid-March to the phased re-opening which commenced on the 11 May 2020. It is the Respondents view that the Complainant should have mitigated his loss by seeking alternative employment before the Covid-19 lockdown in mid-March 2020 and post lockdown.

The Respondent stated in conclusion, it is the Respondent’s position that the dismissal of the Complainant due to redundancy cannot be deemed to be unfair as the Respondent acted reasonably and in accordance with all legal and contractual requirements. The Respondent also contends that the process utilised was fair and reasonable and in line with the custom and practice of the construction sector. The Respondent respectfully request that this claim fails.

The Respondent stated that this was a genuine redundancy.  The nature of work is that of “jobbing” and moving to alternative sites.  The Respondent stated the Complainant was dismissed due to contract completing and redundancy being the only option.

Evidence from Employer

The Head of HR for the company who have 1,300 employees and he has been there for 6 years gave evidence.

The Head of HR stated that employees work on specific projects and between projects they usually terminate employees and close them out via redundancy.  There is full employment in the market currently.

The Head of HR stated the Complainant says he is employed as a general operative which is his category of work not as a teleporter which the Complainant uses.  This role is encapsulated in the general operative role.  These roles were outlined in their book of documents.

The Head of HR stated in November/December 2019 there was 18 redundancies at a minimum made including the Complainant as sites were closed off at the end of the year.  These roles were across projects e.g. engineers, testers, geo’s and majority electricians.  The storeman is classed as a general operative and was made redundant also.

The Head of HR stated that the Complainant submitted his CV to one of the jobs on the Indeed board and the information was not accurate and would impact the employee’s loss in this claim.

The Head of HR confirmed he met the Complainant with his union representative on 25 February regarding his rate and he said if there was any issue, he would resolve same. He accepts due to Covid he didn’t follow up on timely basis reference this and apologised for same.  He did commit to resolving any issue if there was a discrepancy.

Cross Examination by Complainant Union Representative

The Complainant’s union representative confirmed there was many active sites at the time and he asked why was the Complainant not offered alternative work.  The Head of HR responded that there wasn’t one that suited the Complainant at the time and in December they were going in quieter times.

The Complainant’s union representative stated that the Respondent said there was a position in the Westport site which was filled by an agency worker.  The Head of HR confirmed they use agency workers if they don’t see a long-term role required.

The Complainant’s union representative stated the role of teleporter received a higher rate of pay.  The pattern was the Complainant did not get the correct rate and he had to raise it each time and they say that is why the Complainant was made redundant.

The Complainant’s union representative stated he asked the Respondent what they did to find alternative work and they responded they did it by looking across the sites and considered it was coming into quiet time.  The Head of HR stated the teleporter skill wasn’t needed either so again resulted in the redundancy.

The Respondent HR Lead gave evidence and he confirmed the Complainant was working 39 hours per week and was paid €682.50 per week. There is €1.30 approximate per hour extra for the teleporter rate.  He confirmed they are categorised as general operatives.  There are two rates depending on their experience within that job category.  He confirmed they are also guided by the SEO for the sector.

The Respondent HR Lead stated the Complainant didn’t raise grievance is what the Respondent says however, they said the Complainant didn’t get the opportunity as when he raised it locally, he was made redundant.

The HR Business Partner gave evidence to say she sent a letter 7 January 2020 which was their standard redundancy letter as she was notified of the redundancy due to project wind down. She confirmed similar letters were sent to other employees.

Under cross examination the HR Business Partner said she wasn’t aware of any other employees on site that were made redundant.

Head of HR confirmed that five employees from Connaught region were made redundant at that same time.

I am going to consider the allegation of Unfair Dismissal in line with Section 6(1) of the Unfair Dismissals Act 1977 which provides 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.”

The burden of proof rests with the respondent to establish the substantial grounds justifying the dismissal of the complainant in this case due to redundancy.

A redundancy is deemed to have occurred where the dismissal of an employee results “wholly or mainly” by virtue of the employees work requirements having been diminished and/or that the remaining work can be conducted by other employees or that part of a business ceases.  The Respondent presented evidence to state that his position was made redundant.

I will now consider in this case was the dismissal due to a redundancy and therefore I need to consider if this was “wholly or main” reason for his termination.

The Claimant and his representative submitted that the process adopted by the Respondent was flawed and devoid of any procedural fairness contrary to Section 6 (7) of the 1977 Act.

In particular they stated that there was no consultation and definitely not a meaningful consultation process nor was there any genuine attempt to explore alternatives to redundancy; there was no selection matrix used to demonstrate fairness and there was no analysis of the Claimant’s skillset was conducted by the Respondent when assessing whether there was any transferability of his skills even though he could do many roles within the business you would have expected this to mean his skills would have been more valuable to the business.

An important part of demonstrating a meaningful and fair approach in the redundancy procedures is that of a meaningful consultation process which did not happen in this case as the employee was terminated without any consultation or discussion.  This is emphasised in much case law including the case of Mulligan v J2 Global (Ireland) Ltd:

“In cases of redundancy, best practice is to carry out a genuine consultation process prior to reaching a decision as to redundancy. While in some cases that may be no viable alternative to the making of one or more jobs redundant, whatever consultation process is carried out, the employer who fails to carry out a consultation process risks being found in breach of the Unfair Dismissals Act as such a lack of procedure may lead to the conclusion that an unfair selection for redundancy had taken place.”.

In this case at no stage prior to the decision being taken, was the Claimant subject to a redundancy procedure as no genuine consultation process was applied by the Respondent; no selection criteria were presented nor exploration of alternatives was conducted by the Respondent. This demonstrates a key concern to the validity of this termination by reason of redundancy.

The Respondent stated that due to the sector the work depends on projects.  The Complainant had 41 months continuous work and was made redundant as they stated that work was no longer there.

The Complainant stated that it was due to the fact he raised an issue about being on the wrong rate of pay and was let go as a result.  There were temporary agency workers doing the role after him on site and a new project started shortly after he was made redundant and agency worked.

The Respondent conducted no formal review of alternative roles for the Complainant who was employed as a general operative but also was able to operate a teleporter. 

I am not satisfied based on the oral and written evidence provided that this employee’s redundancy was a fair termination as agency workers continued to do his role, therefore, the role was not redundant and I find this is an unfair dismissal as a result.

I have considered the relevant legislation, case law and oral and written evidence provided to me in relation to this case and I am not satisfied based on same this employee’s redundancy was a fair termination as no consultation occurred nor were any efforts made to avoid the redundancy nor were his skills considered in relation to alternative roles and an agency workers continued to do his role.  I therefore find his dismissal to be unfair and his case succeeds.

I therefore award him compensation based on his loss of 9 months wages and am also taking into account the full labour market industry in making this award and his efforts to mitigate his loss.   The award therefore is €682.50 which is the gross pay amount stated in his claim form which wasn’t contested by the Respondent therefore the award of compensation is €24,570.