Complainant

Respondent

Parties

Izabela  Duszkiewicz

Gategourmet Dublin

Representatives

Des Courtney SIPTU

Tiernan Lowey B.L.   instructed by Leman Solicitors

Act

Complaint Reference No.

Date of Receipt

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

CA-00041777-001

04/01/2021

The complainant commenced employment with the respondent on  February 4th 2008 as a General Assistant.

At the time of her dismissal, she had over twelve years’ service. In late March 2020, due to the escalating Covid-19 crisis and its effect on the aviation sector, the company placed employees  on what was then expected to be a period of temporary, unpaid, lay-off.

However, it became clear that the sector would not recover in the short term  and the company identified all workers as being ‘at risk of redundancy’ on May 29th 2020.  A consultation process took place, following which approximately forty employees were made redundant; a number of whom left voluntarily.

The remainder to be made redundant were chosen using a selection matrix system with which employees were assessed under various headings using a weighting/score system. Ms Duszkiewicz fell into this category and was advised of her proposed dismissal by reason of redundancy.

A copy of the matrix used was submitted to the hearing.

A score of 3, 6, or 9 was applied under the headings of Attendance, Timekeeping, Disciplinary Record, Knowledge, Relevant Qualifications/Training, Breadth and Depth of Relevant Experience, Versatility. Of the eight headings, Ms Duszkiewicz received 9 in four.

In  total she was awarded 57 points, or 78%, of a possible total of 72. These were disciplinary record, knowledge, relevant qualifications/training, experience.

For attendance, she was awarded the lowest possible score, i.e., 3, whilst for Timekeeping, Versatility and Job Performance, she was awarded 6, The complainant disagrees with management’s assessments under these  four headings.

An employer is obliged to use fair selection criteria implemented in a proper, objective and impartial manner in selecting candidates for redundancy.

‘Once a decision is taken by the employer as to the precise reason for the dismissal of employees with the statutory definition of redundancy, the next hurdle is that of selection. There is a distinction to be made here. It is that redundancy applies to jobs; selection applies to people. An employer must be able to justify why that employee was selected for redundancy – and it must do so, in so far as possible, on objective grounds’.

(“Dismissal Law in  Ireland”, Second Edition, Mary Redmond, Paragraph 20.34, Page 421)

‘In sum, criteria to avoid are unreasonable criteria, subjective criteria and directly or indirectly discriminatory criteria……Selection criteria to consider might be length of service, skills, technical competency, qualifications or training, occupation, experience, future business needs (and to be used on an entirely objective basis), capability and flexibility’.

(Ibid Paragraph 20.66, Page 431).

Two of the four headings used by the respondent in the selection criteria, under which Ms Duszkiewicz was marked lower i.e. Versatility and Job Performance, were vague, ambiguous and subjective.

Another, Timekeeping, is an area in which the complainant excelled and for which she should have received a top score. Management has never produced any records to support their allocated score of 6.

The fourth area, Attendance, was applied upon the basis of the previous twelve months only. This had the effect of discarding an excellent attendance   record in eleven of Ms Duszkiewicz’s twelve years’ service. Also, she disputes the figures used by management in the previous twelve-month period.

This was unfair. Ms Duszkiewicz was given no credit for her service, her attendance had never been raised as an issue as an issue, before being used as a criterion for her dismissal.

More importantly, very early in the process the parties agreed that  certified absence should be excluded. Yet at least one of the three ‘gaps’ included in the complainant’s assessment was certified. She believes there were more. They should have been excluded as agreed.

Likewise, the Versatilitycriterion is subjective and relates purely to the opinion of the complainant’s line manager, who, incidentally, has not indicated a single incident of her refusing to undertake any work requested  . She has never refused to carry out requests of her management.

Throughout her employment Ms Duszkiewicz has worked across all of the areas which make up the Production department and has always covered for absent colleagues whenever, and wherever, she was requested to do so. These are not the actions of an employee with versatility issues and she should have been awarded a score of 9 under the ‘Versatility’ heading.

At various times throughout her employment Ms Duszkiewicz worked in two of the nine departments (i.e., Production and Operations) and had experience across, and significant knowledge of, both. Had she been required, at any time, to work in either of those company departments she had the necessary skills to transfer and was completely interchangeable.

This is a hugely significant factor. The complainant was made redundant while other employees, with significantly less service and experience, were  retained in which, given her level of experience and service, she could reasonably have been expected to redeploy, yet absolutely no efforts were made to identify possible alternative work for this long serving and dedicated employee.

Also, any training requirements which may have been necessary would have been minimal to such an experienced employee but were never offered.

In the case of JVC Europe Limited v Jerome Panisi [2012] 23E.L.R. 70  Charlton, J held

“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 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 the employee rights. Redundancy is impersonal. Instead, it must result from, as s.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 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”.

Where redundancy is unavoidable the employer is required to establish reasonable and objective criteria for selection and must apply those fairly. The case of Boucher –v- Irish Productivity Centre UD882/1992 is one where the EAT in holding a dismissal unfair stated;

 “that employees had a right to natural justice in the selection procedures for redundancy and that this right includes being informed of the selection criteria and invited to make submission in respect of these criteria.

“It is not for the tribunal to consider whether input would have made a difference, but its denial is a denial of the right of the natural and constitutional right to defend oneself which is not at the gift of the employer or of this tribunal but is vested in every citizen no less in any enquiry affecting their employment, than when the enquiry might affect their liberty”

The EAT reiterated that any fair assessment would “have the characteristics      of an inquiry with the right to the threatened person to make a contribution in defence of any allegation against him or…..any unfair or unbalanced view being held by the [employer]”.

In this case Ms Duszkiewicz was not given an opportunity to make submissions on the selection criteria. Accordingly, the redundancy was not in line with the principles established in the case cited above.

In fact, at no time during the assessment process were employees given any opportunity to see, or question, the scores being awarded or defend their position with relevant facts. Only after she was dismissed did she receive her matrix scores and then only upon request.

In the case of an Employee -v- Employer UD1523/2008the EAT, found that ‘the Claimant was unfairly dismissed due to his unfair selection for redundancy. The selection criteria used to effect the claimant’s dismissal was not in accordance with the principles of natural justice. Accordingly, the claim under the Unfair Dismissals Acts, 1977 to 2007 succeeds….’

In the case of an Employee -v- Employer UD1574/2009the EAT held that ‘there was no adequate justification for the claimant’s selection for redundancy. Therefore, the Tribunal finds that pursuant to s.6(1) of the Unfair Dismissals Act, 1997 as amended, the Respondent has not shown substantial grounds justifying the dismissal’.

Having determined that there may be a genuine redundancy situation, what is required of the employer in this respect is that it be able to objectively justify why a particular employee was selected for redundancy as opposed to another employee.

Specifically, the employer must be able to demonstrate that a particular employee has been compared to others who might have been made redundant and has been selected fairly based on independent, objective and verifiable criteria.

Also, the scores of employees were not made available, even in a confidential  format, to enable employees to compare their respective records. They required to apply for a copy of their matrix and allowed to appeal against their own scores, with no comparable information on the assessments of their peers.

Selection criteria based on an employee’s personal characteristics, but which are overly subjective are unfair. For example, in Graham v ABF Ltd, ‘attitude to work’ was considered to be a highly relative term involving personal and subjective judgments and to be dangerously ambiguous and vague.

Similarly, in Williams v CompAir Maxam Ltd, the employees selected were those ‘who in the opinion of the managers concerned would be able to keep the company viable’. This failed to meet the objectivity requirement as it depended solely on the opinion of the person making the selection and was not capable of independent verification.

The complainant’s scores under both Job Performance and Versatility reflect the subjective views of her line manager with absolutely no basis in fact and could not reasonably be considered to meet the objectivity requirement.

Ms Duszkiewicz’s matrix is dated 24th August 2020 and was approved by  management on 28th August. On the same date she was advised of her dismissal through a telephone call from a member of the company’s HR Department in the UK. On Thursday, 3rd September 2020, she received email confirmation of her dismissal.

However, she was not provided with a copy of the matrix upon which this decision was based.

On 4th September Ms Duszkiewicz requested a copy of the matrix from the , HR Business Partner, and again on 7th September, but without reply. Later she made a third attempt, by email, to secure a copy of the matrix, which she eventually received later that day

Finally, on  March 1st 2019, twelve months prior to the commencement of the redundancy process, Ms Duszkiewicz sought to transfer from the Production department to a Customer Service role within the Transport department. Her application was assessed by the same line manager who, twelve months later, would assess her for the purposes of redundancy.

Her reply is instructive and is quoted below verbatim:

‘Unfortunate as the production Manager I cannot agree to support the application for Izabela Duszkiewicz to move to the customer service roll in the Transport Department due production been so busy and the lack of experience staff in this department at the moment.

Izabela’s role in my department is very important and the expertise and knowledge that Izabela brings to my department is very important and much needed at this time’.

Within a short period, the expertise and knowledge that Ms Duszkiewicz brought to her department would be overlooked in favour of many of those same inexperienced staff referred to previously.

In light of the above, we contend that Ms Duszkiewicz’s dismissal from  employment was unfair having regard to all the circumstances.

The complainant's employment was terminated by reason of redundancy as the respondent had to reduce its work force and scale back its operations, following the unprecedented downturn in its business following the Covid19 pandemic.

This necessitated collective redundancies and the decision to make the complainant's job redundant took effect from August 31st, 2020, following a comprehensive consultation process with the complainant's trade union SIPTU, and other elected staff representatives.

This consultation process commenced in May 2020. It is denied that the complainant was unfairly dismissed and, in particular, that the matrix system used was unfair.

Before Covid 19, the respondent 's level of business in Dublin had dropped significantly over the preceding two years. Since 2018, the respondent 's service volumes and revenues had reduced by 26%. Over this period, and in ongoing consultation and engagement with SIPTU, the respondent managed to reduce its labour costs to reflect this. Along with the introduction of short hour working, this enabled the respondent to avoid any redundancy of permanent staff with the respondent carrying the cost of excess employees throughout the winter period.

The situation significantly deteriorated. Airlines and airports continued to assess how Covid 19 would affect operations in the months ahead, likely flight frequency, passenger volumes as well as new protocols and safety processes that would have to be introduced. In order to protect the respondent's Dublin operation into the future and to ensure longer term job security it was required to make decisions and take the necessary steps to maintain financial viability.

With falling revenues and an inability to change the respondent 's many 'fixed costs' (such as property rentals and leases), the respondent had to restructure its employment numbers.

Against the backdrop of these difficulties (which were likely to remain unresolved in the medium term), the respondent took the difficult decision that longer-term measures would need to be implemented to ensure the continuing viability of its operations. Regrettably, it was necessary to implement a number of redundancies.

On May 11th, 2020, the Managing Director announced the restructure of the business and on May 29th, a general meeting took place to which all employees were invited. There were further consultation with employee representatives on May 29th, 2020. A full presentation was given detailing, amongst other matters, the matrix/selection criteria, which would be applied.

The anticipated selection criteria to be used (which was subject to change as part of the ongoing consultation process) were: Knowledge, Skills, Breadth and depth of relevant experience, Versatility (in terms of ability/willingness to perform different functions/duties), Relevant qualifications/training, Job performance, Attendance, Timekeeping and Disciplinary record.

The initial consultation meeting with SIPTU representatives etc was followed up by the issuing of an FAQ document which provided further details of what the process would entail and, indeed, what affected employees could expect to happen in the event of their role being identified as at risk of redundancy.

A second consultation meeting was held with the complainant's SIPTU representative and employee representatives on June 4th, 2020, during which the proposed selection criteria were discussed.

The respondent set out the reasons for the redundancy consultation process and addressed questions raised. SIPTU sought clarification that certified absences and defunct disciplinaries would not be taken into account. On foot of this, the respondent confirmed that they would not be included in the process.

A third collective consultation meeting between members of the respondent's management team and the SIPTU representatives and the Employee Representatives took place on 9 June 2020.

It was noted that if the respondent did not meet the number needed voluntarily, the selection process would apply, whilst still seeking to maintain the necessary skill sets for the business. During this meeting, SIPTU queried whether absences due to protective leave for maternity/sickness were covered. The respondent confirmed that such periods of absence were excluded.

A fourth consultation meeting took place on June 16th, 2020, with the respondent 's management team, SIPTU representatives and employee representatives. At all times the complainant was fully represented by her union.

The measures to date can be summarised as follows.

 Total Employees: 123, Original Figure at Risk 76,

After Initial Mitigation and T&C Proposals 59

Further Mitigation (short working week & Voluntary Redundancies 22

Proposed Compulsory Redundancies 17

On August 17th, 2020, SIPTU was sent the Redundancy Selection Matrix - Individual Scoring Form and on August 24th, the complainant was assessed in accordance with the selection matrix by her manager and approved by the senior manager.

At a meeting on August 28th, the complainant was provided with full details of how she scored under each of the applicable headings in the matrix. She received the highest score of 9 in respect of "Disciplinary Record" {25%) "Knowledge" {10%) "Relevant qualifications and training" {10%) "Breadth and depth of relevant experience" {5%).

She received a score of 6 in respect of timekeeping which was weighted at 25% of the total score. The complainant also received a score of 6 in respect of "Versatility" and "Job performance" which were each weighted at 10 %.  

Finally, she received a score of 3 in respect of "Attendance" which was weighted at 10%. The breakdown and rationale for each of the scores was explained to the complainant. At that meeting she was also informed that her employment would be terminated by way of redundancy, with effect from August 31st.

On September 3rd    the respondent followed up in writing confirming that the complainant's role had been made redundant. It was explained to her that the respondent did "not expect the situation to improve significantly in the short to medium term, and the longer-term industry forecast indicates that our client requirements will be substantially different and reduced. These changes in the market required the Company to consider making collective redundancies, and necessitated changes to be made to the terms and conditions of employment, to stabilise the business and assist toward being competitive, given the current market and airline industry market situation."

The email detailed the termination payments to the complainant and provided the name of the person to contact if the complainant wished to appeal the decision who she contacted on September 7th requesting a copy of her scores and these were provided by email that same day.

The complainant did not lodge an appeal.

For a fair redundancy the following criteria must be met:

A genuine redundancy situation must have arisen

Fair selection criteria applied

Consult and explore alternatives to the redundancy

Each of the above requirements are fully satisfied in the case of the complainant's termination.

There can be no doubt whatsoever that a genuine redundancy situation arose in this case, the respondent experienced a downturn in business which was hugely exacerbated by Covid 19 and its impact on the airline industry.

A respondent must show that another person has not been taken on to replace the complainant who has been dismissed by reason of redundancy. In circumstances where it is necessary to select one or more out of a number of employees who may be classified as being "in similar employment with the same employer", it is submitted that an employer should apply an objective basis for selecting which employee is to be made redundant.

The leading Irish case in relation to selection is Boucher v Irish Productivity Centre R492/1992. In that case the EAT stated that in addition to proving the genuineness of a redundancy, the employer had:

"To establish that he acted fairly in the selection of each individual employee for redundancy and that where assessments are clearly involved and used as a means for selection that reasonable criteria are applied to all the employees concerned and that   anyselection for redundancy of the individual employee in the context of such criteria  is  fairly made"

In this case, the process of selecting staff followed as an automatic consequence of an agreed strategy which included the restructuring of the respondent 's workforce. While a redundancy applies to a specific job, by definition, selection applies to specific people. It is submitted that an employer must justify the selection of a particular employee for redundancy in as objective a manner as possible.

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. The complainant's union was invited and indeed encouraged to provide input on the scoring matrix prior to it being finalised. No changes were sought on behalf of its members. It is submitted that the process which led to the selection of the complainant was both fair and reasonable.

Section 6(7) of the Unfair Dismissals Acts provides generally that "in determining if a dismissal is an unfair dismissal, regard may be had... to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

In O'Kelly v Exsil Limitedthe EAT held that the claimant had been unfairly dismissed in circumstances where the employer did not act fairly or reasonably. The Tribunal had particular regard to the fact that there was no meeting with the claimant, no prior indication of the company's financial difficulty, no discussion in relation to the criteria used for selecting the claimant, nor was there any discussion with him regarding an alternative position within the company.

In Fennell v Resource Facilities Support Limited4, the EAT accepted the respondent's contention that there was a redundancy situation but was critical of the company's failure "to consult or engage with the claimant prior to a restructuring of the company." The Tribunal held that the respondent was "unfair and unreasonable" in the way it implemented the restructuring process as it did not meet the consultation and appeal requirements:

These cases point to the principles that should be met by employer in implementing a fair redundancy and set out what employers have previously been punished for failing to do. Conversely, where an employer implements these guiding principles a claim for an unfair dismissal is unsustainable.

In this case, the decision to terminate the complainant’s employment by reason of redundancy followed an extensive and lengthy collective consultation process, during which the complainant's representatives were invited to put forward their own alternatives to redundancy and raise questions, all of which were given full consideration by the respondent.

As a result of the detailed and considered collective consultation process, the initial figure of 76 redundancies was reduced significantly to 39 of which 17 were compulsory redundancies.

An application of the law to the relevant facts set out above demonstrates that the complainant's claim is misconceived and without merit. It is submitted that the respondent carried out all its necessary duties and obligations by showing that the redundancy was genuine, that the selection process was fair, and that the complainant was afforded all reasonable fair procedure.

Specifically, it is submitted, that the respondent conducted an objective, fair and uniform redundancy selection process which identified a number of jobs as at risk; subsequently, engaged in meaningful and detailed consultation process with the  complainant and her union and all other affected employees; Informed her of the reason(s) her job was being provisionally selected for redundancy; Gave her a reasonable period of time to consider the proposed restructuring plan and the selection criteria; Gave the complainant and her union the opportunity to respond to the proposed restructuring plan and to influence its implementation;

She was also given an opportunity to suggest alternatives to redundancy; alternatives were explored, and she was given a right of appeal to the decision to make her job redundant.

It will be easy to understand from the submissions and the nature of the respondent’s business how the public health crisis arising from the pandemic could impact on its business. It provides catering services to the airline industry, a foot in either of which would have resulted in a significant adverse impact on a business.

To have had a foot in each obviously compounded the effects and this was accepted by the complainant, who did not dispute that a bona fide redundancy situation existed.

Her complaint related to the selection process and whether the various criterial had been applied in a fair manner by the respondent.

The respondent, for its part, asserted that the process was ‘a textbook example’ of how a redundancy process should be conducted.

From an early stage there was consultation with the union representing its employees (including the complainant) and the initial search for alternatives to compulsory redundancy was relatively successful. All employees in the company were put ‘at risk’ of redundancy.

The complainant submitted that she had no opportunity to make submissions on the selection criteria but  the trade union of which she was a member had an active and intimate engagement in the preparations for the process and made a number of submission on items which should not be factored into consideration (certified absences, for example).

There has to be a working assumption that the union was acting on behalf of its members in these matters. Evidence was given to the hearing on behalf of the management by a witness who attended the meetings on its behalf and I am satisfied that there was a satisfactory level of consultation on the criteria.

The target of seventy-six compulsory redundancies was reduced initially to thirty-nine and ultimately to seventeen as part of this process.

In general, it will be insufficient to dispute various aspects of the outcomes of the a matrix based selection process to simply aver that the complainant disagreed with them, which she does on a number of occasions. Unless there is some serious and perverse conclusion the point of such an exercise is to make an independent assessment of the person by reference to some reliable, comparative system.

She also complained that that some of the criteria were vague, ambiguous, subjective etc.

For what it is worth the criteria were unexceptionable and quite logical; Knowledge, Skills, Breadth and depth of relevant experience, Versatility (in terms of ability/willingness to perform different functions/duties), Relevant qualifications/training, Job performance, Attendance, Timekeeping and Disciplinary record.

The complainant was critical of the subjective nature of the process and some greater precision is required in considering this. Essentially, the alleged subjectivity was based on the fact that decisions or judgements were made by the assessor, her line manager with which she disagreed.

Reference was made by both parties to Boucher v Irish Productivity Centre R492/1992in which the EAT saidthat in addition to proving the genuineness of a redundancy, the employer had:

"To establish that he acted fairly in the selection of each individual employee for redundancy and that where assessments are clearly involved and used as a means for selection that reasonable criteria are applied to all the employees concerned and that   anyselection for redundancy of the individual employee in the context of such criteria  is  fairly made"

This does not support the view, apparently being advanced by the complainant that in order to avoid subjectivity there can be no element of human decision making involved.

Such a system may be possible with advances in artificial intelligence (and would no doubt bring its own problems).

But in the ordinary world of today the legal requirement is that there should be fair system which removes arbitrary or discretionary decision making as much as possible. This then requires decision makers to locate their decisions within a fair framework that properly identifies the relative skill sets of those being selected.

In particular, while it is understandable that an employee who is selected for redundancy will feel aggrieved at that outcome the manager who undertook the assessment of the complainant gave evidence to the hearing that was credible and persuasive.

In particular (in response to cross examination by the complainant’s representative) she confirmed that, and gave examples of how, she had used objective data for most criteria, but that she also used her personal knowledge of the complainant who she had managed for twelve years. She is entitled to do so, again unless it results in irrational or perverse conclusions.

The rule against subjectivity is designed to eliminate whim and arbitrariness, as noted; it does not remove the need of management decision making or the reaching of conclusions on the various sources of information provided this is done systematically and within the general framework of the type of matrix used here.

This witness further gave evidence that she had a period of reflection of some two days and a review with her manager (who merely checked that she was satisfied with her work, he did not intrude into the decision) but that she was eventually satisfied that her conclusions were reliable.

A final objection raised by the complainant was to the fact that co-workers with less service than she had were retained. However, length of service was not a criterion in the selection process and such an outcome can easily result from the application of the skills-based selection approach. (It is also the case that two of the complainant’s co-workers in the same department came lower in the ranking than she did).

I conclude therefore that the process was fair. The criteria were agreed with the complainant’s union, and in any event no serious case was made against them, beyond a simple assertion that they were ‘vague, ambiguous and subjective’. I find that they were adequate for the purpose.

Secondly the conduct of the process was fair, specifically the assessment by the complainant’s manager. She was objective and diligent in her conduct of the process. (there was one minor discrepancy in the scoring but it did not affect the outcome).

Having noted that the need for redundancy was not disputed, and having regard to the submissions and evidence of the parties I find that the dismissal was fair.

For the reasons set out above I do not uphold complaint CA-00041777-001 and the dismissal was fair.

Unfair dismissal, Redundancy.