FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : MAYBIN SUPPORT SERVICES (IRELAND) LIMITED T/A MOMENTUM SUPPORT (REPRESENTED BY ALPHA EMPLOYMENT REPRESENTATIVE SERVICES) - AND - MR ALAN CAMERON (REPRESENTED BY PETER MC KENNA B.L., INSTRUCTED BY DANIEL SPRING & COMPANY, SOLICITORS) DIVISION :
SUBJECT: 1.Appeal Of Adjudication Officer Decision No. ADJ-00030499 CA-00040429-001 This is an appeal by Mr Alan Cameron (‘the Complainant’) from a decision of an Adjudication Officer (ADJ-00030499, dated 13 September 2021) under the Unfair Dismissals Act 1977 (‘the Act’). Notice of Appeal was received on 21 October 2021. The Court heard the appeal in Dublin on 1 September 2022. The Factual Matrix The salient facts in this case are undisputed and can be summarised succinctly as follows. The Complainant was employed by Maybin Support Services (Ireland) Ltd T/A Momentum Support (‘the Respondent’) between December 2017 and 17 August 2020, the date on which his employment terminated by reason of redundancy. The Complainant’s job title was ‘Industrial Team Manager’. He managed a team of approximately fifteen employees who carried out industrial cleaning for clients around the country. The Complainant initially reported to the Respondent’s Financial Controller. However, at some point in 2018 an additional layer of management was created such that the Complainant thereafter reported to the newly appointed Operations Manager who in turn reported to the Operations Director. The Complainant’s annual salary as of the date of his redundancy was €50,000.00 gross. Following the advent of the Covid-19 pandemic, many of the businesses to which the Respondent provided facilities support ceased or drastically reduced their operations. This impacted significantly on the Respondent’s revenues. The Respondent, therefore, engaged in a restructuring process in order to reduce its headcount and associated costs. All employees were notified in writing of the Respondent’s restructuring proposals by letter dated 6 May 2020. The Respondent called for voluntary redundancies, initially, (by letter dated 29 May 2020), but received only a small number of expressions of interest in response. Two employees were ultimately offered and accepted voluntary redundancy. The Respondent then proceeded to implement three phases of compulsory redundancies in the course of which five employees, including the Complainant, were made redundant. The Complainant was put on notice by letter dated 22 June 2020 that the division of the business in which he was employed – the Operations function – would be considered in the first of four planned restructuring phases. This phase was scheduled to take place between 22 June and 17 July 2020. The Complainant was subsequently informed that his position was at risk of redundancy. However, the Respondent also informed the Complainant that it had made the decision to combine the Complainant’s role and that of his line manager into one new amalgamated role of Industrial Operations Manager and invited him to apply and interview for the new position. The Respondent then ran both the redundancy consultation process and the interview process in tandem. Mr Peter Brogan, Operations Director, and Ms Alana Dunican, HR Director, held a first consultation meeting with the Complainant on 29 June 2020. The Complainant was interviewed for the proposed new role by Mr Brogan and Mr Richard Tighe, HR Business Partner, on 6 July 2020. A second redundancy consultation meeting with the Complainant took place on 13 July 2020. It too was led by Mr Brogan. The Complainant was given feedback from his initial redundancy selection interview and provided with details of how he was scored on the selection matrix. The Complainant was then invited to a final Risk of Dismissal / Consultation and also for the selection for the new post of Industrial Operations Manager meeting which took place on 21 July 2020. On that date, Mr Brogan informed the Complainant that his position was to be made redundant on the expiry of his four-week notice period on 17 August 2020. The Respondent advised the Complainant of the outcome in writing by letter dated 23 July 2020 and advised him of his right to appeal within five working days. The Complainant availed himself of the right of appeal and submitted his grounds of appeal in writing on 30 July 2020. The appeal hearing, chaired by Mr David Ferguson, took place on 12 August 2020. On 20 August 2020, Mr Ferguson communicated his decision to the Complainant to uphold the original decision to terminate his employment by reason of redundancy. The Complainant’s dismissal by reason of redundancy had, meanwhile, taken effect on 17 August 2020. Witness Evidence The Court heard sworn evidence from the Complainant and from four witnesses on behalf of the Respondent: Ms Alana Dunican, Mr Peter Brogan, Mr David Ferguson and Mr Richard Tighe. Evidence of Ms Alana Dunican Ms Dunican gave evidence in relation to the genesis of the Respondent’s decision to reduce headcount due to the reduction in business that occurred across a number of the Respondent’s business units following the commencement of the pandemic. She told the Court that the Respondent’s revenues had declined by between 20% and 40% during the period March to September 2020 and that it was owed considerable outstanding payments from clients. She said that the total workforce was approximately 2,000 in the Republic of Ireland and 400 in Northern Ireland and about 10% of the workforce, at any one time, was laid off from March 2020 onwards. The witness told the Court that she developed the selection matrix and arranged training for the senior management team in relation to it and the redundancy process generally. She said also that she initiated the communication and consultation process with employees whose positions were at risk of redundancy. However, she told the Court, she had had no input into the selection of individual employees. Evidence of Mr Peter Brogan The witness told the Court that he is Operations Director for the Respondent with responsibility for a number of regions, including approximately 50% of the business in Northern Ireland, security and the Industrial Team. He said that there are 500 to 600 employees in the units for which he is ultimately responsible. The witness outlined the situation the Respondent found itself in, in April 2020. He said that Management carried out a forensic review of the sites on which they were operating, in conjunction with their clients, to prepare the business for what was ahead of it. Revenue had declined by 50% for the months of April, May and June 2020, according to the witness. Finally, in direct examination, the witness confirmed that he and his colleagues had received training from Ms Dunican prior to holding briefings and consultations with employees in relation to the proposed redundancies. Under cross-examination, the witness was asked if any consideration had been given to putting the Complainant on the Pandemic Unemployment Payment (‘PUP’). He replied that employees, such as the Complainant, who were being considered for an alternative role were not placed on the PUP. He said that the Respondent took the decisions that it took in order to ensure its future financial viability. Finally, it was put to him by Counsel for the Complainant that the scores which he had given to the Complainant during the redundancy consultation process had been influenced by certain unfounded assumptions on the witness’s part. The witness denied this and said that the Complainant had been scored on the basis of the answers he had given on the day and that he might have fared better had he answered the questions with the same level of detail and rigour he applied to his appeal. In answer to questions from the Court, the witness confirmed that the Complainant’s post has not been replaced and had the pandemic not occurred it was likely that the Respondent would have sought to grow the part of the business in which the Complainant had been employed and he would have remained in its employment as there had been no performance issues with him at any time. Evidence of Mr David Ferguson The witness told the Court that he has been the Respondent’s Operations Director since 2006 with responsibility for a number of divisions of the business including healthcare and operations in the West of Ireland, Munster and Northern Ireland. He said that he had heard and determined the Complainant’s appeal from the decision to make his position redundant. Under cross-examination, the witness confirmed that he had received a comprehensive file in relation to the Complainant’s appeal from HR and that he had read and considered it carefully, taking his time before making a decision. He said that he had made an administrative error in relation to the date of termination that had been notified to the Complainant in his dismissal letter and this accounted for the gap of three days following the Complainant’s dismissal date and the date on which he communicated his written decision in relation to the appeal to the Complainant. He said that there had been no malice on his part in this regard and his decision not to uphold the appeal had not been pre-determined. Evidence of Mr Richard Tighe The witness told the Court that as HR Business Partner he had assisted a number of managers, including Mr Brogan, throughout the redundancy process. He also said that, once Mr Ferguson had handed down his decision in relation to the appeal, he communicated this to the payroll section and instructed that all payments due to the Complainant be processed. He also sent an email to the Complainant to confirm that the payments would be transferred to his bank account. The Complainant’s Evidence The Complainant briefly outlined his employment history with the Respondent, the reporting structure that was initially in place and the change to it that occurred in 2018 when Mr PD became his line manager. He said that he initially got on quite well with PD but the relationship subsequently deteriorated because of PD’s alleged “niggling” which morphed later into “bullying” which the Complainant reported, he said, to Ms Alana Dunican in September 2019. The witness spoke about the consultation meeting he had with Mr Brogan and Mr Tighe on 6 July 2020. He said that he didn’t feel comfortable during the meeting and perceived Mr Brogan and Mr Tighe to have been hostile to him. He said that a number of the criteria listed in the selection matrix had been pre-marked prior to the meeting. He said, for example, that he had been given one mark for the provision of training and that this indicated an element of pre-determination on Mr Brogan’s part, in his view. He said that he pointed out to Mr Brogan that he had, in fact, been responsible for a major part of the training that had been delivered in the Industrial Division. This resulted, he said, in his mark being amended. The Complainant gave evidence in relation to mitigation and loss. He said that he registered with a number of on-line job sites and had applied for at least twenty positions between September 2020 and June 2021. He ceased applying for jobs thereafter and effectively regarded himself as retired. Under cross-examination, the Complainant said that he felt that the redundancy selection process applied by the Respondent had been comprehensive. He also said that he had felt uncomfortable and side-lined by PD and this had led him to consider resigning and claiming constructive dismissal. He told the Court that he had approached a director of the Respondent to enquire if any alternative post was available that would not involve him interacting with PD. In response to questions from the Court, the Complainant said that while he had issues with some of the marks given to him in the interview process, he nevertheless accepted that even if the marks had been adjusted he would not have out-performed PD whom he regarded as being more articulate than he is. Submissions The Respondent relies on section 7(2)(c) of the Redundancy Payments Act 1967 to ground its decision to dismiss the Complainant by reason of redundancy in August 2020. It submits that the downturn in business it experienced as a consequence of the restrictions imposed on the majority of its clients necessitated a reduction in its staff numbers and associated costs. Seven employees of the Respondent in total were made redundant in or around this time. The Complainant’s position was amalgamated with another existing position and the Complainant unsuccessfully applied for the newly created position. The Respondent further submits that the redundancy selection process which culminated in the decision to dismiss the Complainant was carried out methodically and in a fair and objective manner, in circumstances where no suitable alternative role within the business could be identified for the Complainant. The Complainant accepts that a genuine redundancy situation existed in the Respondent’s business in mid-2020. His representative, however, submits that the fact that Mr Ferguson delayed in finalising and issuing his decision in relation to the Complainant’s appeal of the decision to make him redundant for some three days after the dismissal had taken effect renders the process procedurally unfair and, therefore, invalid. Relying on the decision of the Supreme Court inKelly v Minister for Agriculture[2021] IESC 23, Counsel submits that a reasonable apprehension of bias arises “in circumstances where the Complainant’s employment was terminated prior to the determination of [his] appeal”. Counsel also disputes the Respondent’s reliance on section 7(2)(c) of the Redundancy Payments Act 1967 and submits that the circumstances that gave rise to the Complainant’s dismissal are comprehended by section 7(2)(b) of the 1967 Act. The Law Section 7(2)(c) Redundancy Payments Act 1967 provides:
Discussion and Decision The Respondent’s Representative unambiguously informed the Court that his client relies on section 7(2)(c) of the 1967 Act. It is not for the Complainant or his Representative to second-guess the Respondent in this regard. The Court sees no material parallel between the facts ofKelly v Minister for Agriculture[2021] IESC 23 and those of the instant appeal. No reasoning was advanced by Counsel in support of his submission that the delay in concluding the Complainant’s appeal gives rise to objective bias or that it renders the decision to dismiss him invalid in some way. The Court understands from its own experience that it is not unusual to find that an appeal process has continued beyond the date on which the original decision to dismiss the appellant took effect. If the outcome of the appeal is a decision to reverse the original decision, the effect of it will be to reinstate the appellant from the date of the dismissal. There is no material dispute between the Parties to this appeal regarding the key facts. The Complainant accepts that a genuine redundancy situation had come about in the Respondent’s business in mid-2020 as a consequence of the downturn in its business because of the Covid-19 pandemic. The Complainant further accepts that the redundancy selection process implemented by the Respondent was a comprehensive one. He does take issue with the manner in which he was scored in the competition for the new position for which he competed against PD – particularly in the light of his greater level of experience – but accepts, nevertheless, that – even allowing for an adjustment of marks – he did not outperform PD in that competition. For the reasons outlined above, the Court finds that a genuine redundancy situation applied in the Respondent’s business and that the Complainant was selected in a fair and objective manner for redundancy in that context. He was afforded an opportunity to appeal from that decision. His appeal was fully considered but unsuccessful. The fact that the outcome of the appeal process was not communicated to him for some three days after the date his dismissal took effect does not, in the Court’s judgment, in any way detract from the fairness of the Respondent’s procedures, particularly in the light of the fact that had his appeal succeeded he would have been reinstated from the date of the dismissal. The appeal, therefore, fails and the decision of the Adjudication Officer is upheld. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Orla Collender, Court Secretary. |
