Complainant

Respondent

Parties

Tomislav  Vrckovic

Menzies Aviation (Ireland) Limited

Representatives

  Self-represented

Emma Davey BL instructed by Hayley Maher DLA Piper

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-00039330-002

24/08/2020

The complainant was employed as a ramp agent at Dublin airport.  He commenced employment on 10 September 2018.  He worked 30 hours per week for the first year.  On 01 September 2019 his working hours were increased to 37.5 hours per week.  His monthly wages were €1920 gross.  The complainant was made redundant in 2020.  He submitted a complaint to the Workplace Relations Commission on 24 August 2020.  The complainant contends that he was unfairly dismissed when selected for redundancy.

The respondent asserts that the complainant was not unfairly dismissed from his employment but was instead fairly selected for redundancy after consultation with employee representatives and the complainant himself. 

The respondent raised two preliminary issues concerning jurisdiction to hear the complaint and the correct respondent.  These issues are set out in detail below.

Preliminary Issues

Premature Application to the Workplace Relations Commission

The respondent submitted his complainant to the Workplace Relations Commission on 24 August 2020.  The respondent submits that the termination date provided on the complaint form, 19 August 2020, is incorrect.  The correct date it is submitted was 02 September 2020.

The complainant attended an individual consultation meeting on 19 August 2020 where it was confirmed that his position was redundant.  Subsequently he was sent a Redundancy Confirmation letter in which it was stated that his employment would end on 02 September 2020.

The respondent submitted that the claim had not been validly lodged with the Workplace Relations Commission in accordance with section 8(2) of the Unfair Dismissals Act, 1977 (as amended).  The respondent asserts that no dismissal had taken place at the date the complainant’s complaint form was received by the Workplace Relations Commission.  It was submitted that because no dismissal had taken place when the complaint was received the Adjudication Officer did not have jurisdiction to determine the complainant’s substantive case.

In support of the above submission the respondent cited the decision of the Employment Appeals Tribunal in Neeson v O’Rourke & O’Rourke Chartered Accountants UD2049/2011.  A complaint of constructive unfair dismissal where the Tribunal considered section 8(2) of the Act which provides for the lodging of a claim within the period of 6 months beginning on the date of the relevant dismissal.  The Tribunal held the intention in this subsection “demonstrated a manifest intention by the legislature to preclude claims being lodged before the dismissal date”. 

The Tribunal in Neeson also considered the High Court decision in Brady v Employment Appeals Tribunal [2015} 26 E.L.R. 1 a case where the complainant had submitted his complaint one week before the date of his dismissal on redundancy grounds.  The Tribunal distinguished the decision in Brady on two grounds.  The respondent in the Brady case had told Mr Brady that his dismissal was effective “now” on the date he was told his position was redundant.  The Court held this was a clear an unequivocal oral representation that his dismissal was effective immediately rather than the actual termination date following the notice period.  In those circumstances the Court decided it would be inequitable to hold the complainant’s dismissal occurred some two weeks later.  Second, the Tribunal considered the amended wording of section 8(2) where the statutory notice stipulation was amended from “within 6 months of the date of the relevant dismissal” to “within the period of 6 months beginning on the date of the relevant dismissal”.  The Tribunal interpreted the amendment to mean that a claim must be lodged after the dismissal.

The respondent submitted that the complainant’s complaint form was received by the Workplace Relations Commission on 24 August 2020 and his date of termination was 02 September 2020 therefore the complaint was not validly lodged in compliance with section 8(2) of the Act.  Consequently, the Adjudication Officer did not have jurisdiction to determine the complainant’s case.

Incorrect Respondent

The complainant had named his employer as Menzies Aviation on the complaint form submitted on 24 August 2020.  The complainant was employed by Menzies Aviation (Ireland) Limited, which is not a party to this complaint as it was not named on the complaint form. 

The respondent asserted that the correct title was included in the complainant’s contract of employment, the statement of terms and conditions and on each payslip.  Further, the employer’s correct title was included in the Risk of Redundancy letter provided to the complainant on 16 June 2020.  The notice of Proposed Collective Redundancy sent to the Minister for Employment Affairs and Social Protection on 22 June 2020 also included the respondent’s correct title.

The respondent asserts that Menzies Aviation is not a legal entity.  The respondent submits that the complainant is statute-barred from adding Menzies Aviation (Ireland) Limited as a party to these proceedings in respect of his unfair dismissal as no reasonable cause prevented the complainant from correctly naming the respondent.

The respondent cited the decision of the Supreme Court in Sandy Lane Hotel Limited v Times Newspapers Limited [2011] 2 ILRM 139 in support of the submission that the complainant was statute-barred from joining the respondent in his unfair dismissal case.  In Sandy Lane the Court did not allow the amendment of the defendant from Sandy Lane Hotel Limited to Sandy Lane Hotel Co Ltd based on the “long established principle that a court will not add a defendant … if the action against that party is quite clearly statute barred.”

The respondent also cited the decision of the Labour Court in Wach v Travelodge Management Ltd EDA 1511 in support of its submission.  The respondent noted there was no application to amend the name of the respondent.

Substantive Case

The respondent is a global provider of passenger, ramp and cargo handling services.  It commenced operations at Dublin airport on 01 May 2018.  It employed 103 staff of which 39 were ramp agents. 

The complainant commenced employment as a ramp agent with the respondent on 10 September 2018.  His duties included baggage handling, driving a baggage trolley to load and unload aircraft and carrying out safety checks. As part of the recruitment criteria the complainant was required to have a professional level of working English for safe airside work. 

Due to the Covid-19 pandemic and Government mandated travel restrictions the respondent laid-off all its ramp agents on 24 March 2020.  The complainant was put on lay-off and subsequently placed on the Temporary Wage Subsidy Scheme (TWSS) from 27 April until 19 August 2020.

In or around June 2020 the respondent carried out a redundancy exercise.  A similar redundancy exercise was carried out at UK stations.  A second redundancy exercise was carried out in Dublin in March 2021.  The respondent ceased operations at the end of March 2021 and no longer provides services at Dublin Airport.

Timeline of the Redundancy Process

16 June 2020 – Business Announcement – The respondent set out the impact of Covid-19 on the aviation industry.  Due to the significant reduction in the respondent’s operations arising from the pandemic restrictions there was a need to reduce employee numbers.  The respondent concluded it needed to reduce employee headcount at Dublin by 47 across 10 job categories. 

In addition to the Business Announcement letter the complainant was sent a second letter, headed Risk of Redundancy.  This was to inform the complainant that his job was at risk and a formal collective redundancy consultation process would commence.  The 30-day consultation period was intended to provide an opportunity for all parties to explore full ways of avoiding, reducing and mitigating compulsory redundancy.

The respondent engaged with a trade union on behalf of a group of employees who had transferred into the respondent company by TUPE, in 2018.  All other employees were to be represented at the consultation process by four elected employee representatives.

22 June 2020 – The respondent notified the Minister for Employment Affairs and Social Protection of its proposals to reduce its number of employees at Dublin airport by means of redundancy.  The Minister was informed that a consultation process had commenced, and no redundancies would take place before 22 July 2020.

Four employee representatives were elected by secret ballot.  It was agreed the 30-day consultation period would begin on 01 July 2020.

01 July 2020 – First collective redundancy consultation meeting.  Meeting took place remotely via Microsoft Teams.  The respondent intended to save as many jobs as possible but given the changed business environment it proposed to reduce the number of employees from 103 to 56. 

The respondent proposed a redundancy selection matrix based on:

·       Employee skill and training

·       Absence reports

·       Disciplinary (Live disciplinary records)

·       Time keeping reports

·       Length of service

The employee representatives were asked to review the selection criteria and to respond by the next meeting.

06 July 2020 – Second consultation meeting.  A change to the length of service element was agreed.  A maximum of five years’ service would be considered.  The maximum points for length of service would be five.   Employee suggestions for alternatives to redundancy such as career breaks, and reduced working hours were to be considered by the respondent. 

Voluntary redundancy expressions of interest letters were emailed to all staff.   Expressions of interest were to be registered by 17 July 2020.

20 July 2020 – The complainant returned to work on an ad hoc basis.

29 July 2020 – The complainant attended a meeting via Teams with the Operations Manager and the HR Advisor.  The was the complainant’s first formal consultation meeting.  The complainant had the option to be accompanied but he chose not to be accompanied at this meeting.  The reasons for the redundancy process were explained.  The complainant had no questions about the reasons for the redundancy process. The selection matrix was explained and the individual scores on the matrix were provided to the complainant.  The complainant was invited to challenge any part of his score.  He chose not to challenge the scores allocated and he confirmed his acceptance of the matrix score.

The respondent used a positive scoring system in the selection matrix.  The complainant was awarded 1 point for service, 10 points for a clear disciplinary record, 25 points for skills and minus 6 points for punctuality, giving a score of 30.  Subsequently the decision was made to change the scoring system for punctuality and the complainant was awarded 6 points bringing his final score on the matrix to 36.

14 August 2020 – Employee and union representatives were informed of the final number of compulsory redundancies.  The overall reduction in headcount remained at 47 but due to resignations, voluntary redundancy applications and end of probation periods the number of compulsory redundancies would be 33.

19 August 2020 – The complainant attended a meeting via Teams with the Operations Manager and the HR Advisor.  The complainant indicated he was happy to attend the meeting without a representative present.  He had no outstanding challenges or issues to discuss.  Other than the suggestion of part-time hours raised at the meeting on 29 July the complainant had no other suggestions to mitigate redundancy.  The respondent, through the Operations Manager, confirmed the complainant’s contract would be terminated by reason of redundancy.  This decision would be confirmed by letter.  The complainant was told he had a right to appeal the decision to make him redundant.

21 August 2020 – The HR Advisor emailed a Redundancy Confirmation letter to the complainant confirming that his position as ramp agent was being made redundant.  The notice period would be two weeks and the last day of employment would be recorded as 02 September 2020.  As the complainant did not have two years’ continuous service, he was not entitled to statutory redundancy pay.  He was to be paid two weeks’ notice pay plus any outstanding annual leave. The complainant was informed he had a right to appeal the decision within 7 days of receipt of the letter.

Complainant’s Complaints

The complainant contacted the HR Advisor on 24 August 2020 and requested a copy of his redundancy matrix selection scores and his ramp sign-in sheets with all his late attendances.  The following day the respondent provided a copy of the breakdown of the points awarded for the complainant’s skills portion of his redundancy selection matrix score.  The HR Advisor explained that biometric hand scan records were used for all employees in the redundancy selection process and not the sign-in sheet.  The biometric hand scan system was considered to be the most reliable source of information for employee attendance.

The complainant contacted the HR Advisor on 28 August 2020 querying his final payment.  Between 24 August and 23 September 2020, the complainant and the HR Advisor exchanged emails about the final payment, the TWSS entitlement and the deductions.  The complainant informed the respondent that he had been told by Revenue that his date of termination was 28 August 2020. The complainant did not respond to the email sent at 15.40 on 23 September by the HR Advisor.

Unfair Selection for Redundancy

The complainant stated on the complaint form that he was unfairly selected for redundancy “as I fall just 8 days short of 2 years service. I have spoken to fellow colleges [sic] in the same position as me and we 11 fall under the 2yr mark”. 

The respondent denies the complainant was selected for redundancy so that the respondent would not have to pay him a statutory redundancy payment.  Of the 13 ramp agents who were made redundant four had over 2 years’ service. 

Lack of Training

The respondent denies the complainant did not receive adequate training during his employment.  The training records show the various training courses provided and the complainant was awarded 25 points for his skills in his matrix score.

Contract Hours and Shift Changes

The complainant stated on the complaint form that there were “several last minute changes to my roster and I believe these were recorded as late and not changes of shift.”  The complainant stated the systems used were not reliable and could be changed by supervisors and management.

The respondent refutes this allegation.  Copies of the complainant’s time cards are submitted to show his lates were not recorded as re-rostered shifts.

The respondent used paper sign-in sheets for all ground staff which were manually uploaded by HR staff onto it work allocation system.  The allocation system, “Workbridge” was used to create employee rosters.  The respondent asserts that changes to shifts, at the request of employee or duty manager, required an accompanying comment to record the change and the signature of the duty manager to confirm the change.  The respondent retained its pay sign-in sheets for 3 months after their creation.  The complainant never raised any concern or grievance about roster changes during his employment.

Workplace Incident

The complainant refers to an undated workplace incident on his complaint form.  In 2019 the complainant was involved in an airside ramp incident.  This was investigated by the Ramp Manager.  To allow for a fair and objective investigation the complainant was moved to the baggage dock for four weeks.  The investigation found there was no case for the complainant to answer.  The complainant was returned to his ramp agent position and no further action was taken.  He was not suspended or penalised because of this incident or at any time during his employment.

The complainant received full marks on the redundancy selection matrix in respect of disciplinary issues, meaning there were no disciplinary issues to be considered.  The 2019 incident had no impact on the redundancy selection process.  This allegation is denied by the respondent.

Legal Submission

The respondent referred to section 6 (4)(c) of the Unfair Dismissals Act, 1977 (as amended) which provides:

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) …

(b) …

(c) the redundancy of the employee,

The respondent also referred to section 7(2) of the Redundancy Payments Act, 1967 which provides that a person who is dismissed shall be deemed to be dismissed by reason of redundancy if the dismissal results “wholly or mainly” from on of the situations set out in in paragraphs (a) to (e). 

The burden of proof to demonstrate the redundancy of an employee was fair lies with the employer.  JVC Europe v Panisi [2011] IEHC 279 cited.

The respondent contends that it entered into a redundancy exercise in June 2020 due to the diminution of its business needs, directly correlated with the impact of the Covid-19 pandemic on its clients.  The respondent’s clients either drastically reduced the number of flights operated or completely ceased their flight operations.

In compliance with legislation, Irish and European, concerning collective redundancies the respondent carried out all the requirements of notification, consultation and engagement with employees.  The respondent engaged in the 30-day consultation with trade union representatives and employee elected representatives.

The selection of employees for redundancy must be fair as provided for in section 6(3) of the Act.  In this case there was no prior customary procedure.  Therefore, the reasonableness of the respondent’s selection criteria must be objectively considered.  The respondent cited the decision in British Aerospace Ltd v Green [1995] IRLR 433 “it is sufficient for the employer to show that he set up a good system of selection and that it was fairly administered, and that ordinarily there is no need for the employer to justify all the assessments on which the selection for redundancy was based.”

The respondent cited the decision of the Labour Court in Employee v Employer UD206/2011 where the Court set out the appropriate test to determine the validity of the redundancy selection.  The respondent refers to the decision of the Employment Appeals Tribunal in Hyland v Templeville Developments UD 1515/2009 where it was determined that it is for the employer to decide on reasonable selection criteria for redundancy unless an agreed procedure is in place.

The respondent submits that it consulted with the complainant through his employee representative regarding the redundancy selection matrix and criteria used.  The scoring was objective and transparent.  The selection matrix was applied to a pool of ramp agents in fair manner.  The complainant did not challenge his selection by appeal or other means during the redundancy process.

The respondent submits that it acted in a reasonable manner in compliance with section 6(7) of the Act.  The respondent referred to TUS Community Supervisor v A Local Development Company ADJ-00020033, Bunyan v United Dominion Trust (Ireland) Limited [1982] ILRM 404 and NC Watling Co. Limited v Richardson [1978] IRLR 225.

The respondent submits that it was left with little or no alternative options to redundancy due to the global impact of the Covid-19 on the aviation industry.  The respondent submits it acted reasonably by engaging in an objective and impersonal redundancy selection process for all its employees.

Conclusion

The respondent submits the complainant was not unfairly dismissed from his employment but was instead fairly selected for redundancy after consultation with employee representatives and the complainant himself.

The respondent submits that a genuine redundancy situation existed in 2020.  In such circumstances the respondent used an objective, impersonal and transparent selection matrix to make a fair selection.  Alternatives to redundancy were considered but were not viable.

The complainant was fully informed about the need to reduce the number of employees, was consulted with and given the opportunity to make suggestions about alternatives to redundancy. 

The complainant was informed that he had a right to appeal the decision to terminate his employment due to redundancy.  The complainant chose not to appeal the decision.

The respondent regrets the unfortunate circumstances that led to the necessary dismissal of the complainant due to redundancy.  Despite the changes made in 2020 the respondent had to cease all services at Dublin airport in March 2021.

Premature Application to the Workplace Relations Commission

The complainant stated that he submitted his complaint to the Workplace Relations Commission after his final meeting because he knew then he was being made redundant.  The meeting was held remotely on 19 August 2020.  He received a letter by email on 21 August 2020 confirming that he was being made redundant.  The complaint was submitted on 24 August 2020, just over one week before the date of termination given in the letter received from his employer. 

The complainant also referred to a series of emails with management about a payment of wages claim.  This issue was separate to the unfair dismissal complaint.

Incorrect Respondent

The complainant understood his employer to be Menzies Aviation and he had included the name of HR Advisor on the complaint form.  The HR Advisor’s email address for @menziesaviation.com.  The emails from HR included Menzies Aviation at the end.  The name Menzies Aviation was printed at the top of each letter with the company logo. 

Substantive Case

The complainant asserts, on his complaint form, that he was unfairly selected for redundancy because his length of service was 8 days short of 2 years and therefor, he did not qualify for a statutory redundancy payment.

The selection criteria included skills set and training, absence, disciplinary record, time-keeping and length of service.

The complainant claims that a lack of training was a key factor as in the selection matrix points were awarded for skills and training.

The complainant was originally employed on a 30 hour per week contract.  He was then moved to a 37.5 hour per week contract but was not given an updated contract.  The complainant asserts that he worked several last-minute changes to his roster and he believed these were incorrectly recorded as lates and not changes of shift.  Again, this was key as time-keeping was part of the selection matrix.

The complainant stated he was put in another department for 4 weeks as a punishment for an error.  He states that there was no conversation with management about this or disciplinary action, he was just punished.  Disciplinary record was also part of the selection matrix.

The complainant submits he was unfairly dismissed.

Premature Application to the Workplace Relations Commission

Legislation

Section 8(2) of the Act provides the following concerning the determination of claims for unfair dismissal:

8 (2) A claim for redress under this Act shall be initiated by giving a notice in writing (containing such particulars (if any) as may be specified in regulations under subsection (17) of section 41 of the Act of 2015 to the Director General—

(a)    within the period of 6 months beginning on the date of the relevant dismissal, or

(b)    within such period not exceeding 12 months from the date of the relevant dismissal as the adjudication officer considers appropriate, in circumstances where the adjudication officer is satisfied that the giving of the notice within the period referred to in paragraph (a) was prevented due to reasonable cause,

and a copy of the notice shall be given by the Director General to the employer concerned as soon as may be after the receipt of the notice by the Director General.

The respondent contends that the claim for redress for unfair dismissal may only be given to the Director General of the Workplace Relations Commission within the period of 6 months beginning on the date of the relevant dismissal.  The plain meaning of the words used in section 8(2) is that a complainant may not submit a complaint to the Workplace Relations Commission before one is dismissed.  However, the date of the relevant dismissal may not always be clear cut. 

In this case the respondent contends that the date of dismissal, as set out in the Redundancy Confirmation letter is 02 September 2020.  The complaint to the Workplace Relations Commission was received on 24 August 2020.  The complainant in his testimony stated he knew he was being made redundant from the meeting he attended on 19 August 2020.  The complainant believed he had been dismissed when he submitted his complaint to the Workplace Relations Commission on 24 August 2020.

In considering this preliminary point I note the following circumstances which are relevant.  The complainant is self-represented, and his first language is not English.  The complainant has a reasonable standard of English but I note he was not provided with an interpreter for his meetings about redundancy with his employer. 

The complainant attended a meeting on 19 August 2020 at which, according to the respondent’s note of the meeting, it was confirmed that there was no alternative other than to confirm that the contract would be terminated by reason of redundancy.  The note also states that the respondent would write following the meeting to confirm the commencement date of the notice period and the termination date.  Although the complainant stated that he understood at that meeting he was being made redundant he did not immediately submit his complaint to the Workplace Relations Commission.  He only submitted his complaint after he receive a Redundancy Confirmation letter.

On 21 August 2020 the respondent sent a letter by email to the complainant.  The letter, headed Redundancy Confirmation, was dated 19 August 2020, the date the meeting had taken place.  In paragraph two of the letter, it states “This letter is formal notice of the termination of your employment by reason of redundancy.”  There is no doubt that as of 21 August 2020 the complainant had written confirmation that his employment was being terminated.

The letter also states “Your last day of employment will be recorded as 2nd September 2020.  You will receive your final pay, along with the above referenced payment in the August 2020 payroll.”  I think this wording is unusual.  It would be more usual to state ‘your last day of employment will be 2nd September 2020’ rather than ‘will be recorded as’.  It is important to note that while the complainant was told to be available during the notice period, he was not in fact required to work during that period.  I note also that the complainant was paid his final pay in August 2020 and not on the date the respondent recorded as his last day of employment.

The respondent cited the decision of the Employment Appeals Tribunal in Neeson v O’Rourke & O’Rourke Chartered Accountants UD2049/2011 where it was held that the intention of section 8(2) of the Act “demonstrate[d] a manifest intention by the legislature to preclude claims being lodged before the dismissal date”.  I accept that the Tribunal’s statement is correct and complainants are precluded by section 8(2) from lodging a complaint before the relevant dismissal date.  However, the date of dismissal must be determined by an examination of all the circumstances. 

The Tribunal in Neeson considered the decision of the High Court (Barrett J) in Brady v Employment Appeals Tribunal [2015] 26 E.L.R. 1.  In that case the employee was dismissed by reason of redundancy on 16 December 2011.  He lodged his claim with the Tribunal on 23 December 2011, which the respondent contended was prior to the statutory date of dismissal, when the statutory notice period was taken into account, which was 30 December 2011.  The Tribunal quoted paragraph 8 of the judgment of Barrett J,

 A number of issues come into play at this point. The first is that prescribed time periods are typically intended to thwart the tardy, not punish the prompt. The second, is the longstanding principle of equity, good since at least the time of Smith v. Clay (1761) 3 Bro CC 639n, that “Equity aids the vigilant, not the indolent”. The third is the practical issue of whether a person, here the Employment Appeals Tribunal, can be said not to have received notice within a prescribed period, if it had notice immediately prior to, at the commencement of, and throughout that period. It seems to the court that in the particular circumstances of this case it would be absurd to hold that where the Employment Appeals Tribunal had notice of the claim at the commencement of, and throughout, the six-month period, that Mr. Brady should be denied to opportunity to bring his claim because the Tribunal, through no fault of Mr. Brady, may also have had notice of the claim immediately prior to the applicable six-month period. 

before going on to contrast the wording of section 8(2) with the previous wording and the insertion of the words beginning on in the amendment.  The Tribunal noted that the complaint in the Neeson case had been lodged with the Tribunal twelve weeks before the date of dismissal whereas in the Brady case and in Matthews v Sandisk International Limited UD331/2010 (which Barrett J found supported his conclusions} the complaints were respectively lodged one week and two and a half weeks before the respective dates of dismissal.

Examining the circumstances leading to the dismissal in the instant case I note the following: the complainant was told on 19 August 2020 that the respondent had no alternative other than to confirm that his contract would be terminated by reason of redundancy.  He attended that meeting remotely and did not have an interpreter.  He understood that he was being made redundant and that he would receive a letter confirming that decision.  On 21 August 2020 he received a letter from the respondent.  That letter was headed Redundancy Confirmation.  The letter contained the statement “This letter is formal notice of the termination of your employment by reason of redundancy.”   The complainant was not required to do any work for the respondent beyond that date.  The complainant received his final pay in August 2020 and not on the date the respondent recorded as the last day of his employment.  In the particular circumstances of this case, I am satisfied that the date of dismissal was 21 August 2020. 

This case, like the Brady case involves dismissal by reason of redundancy.  Following the reasoning in Brady I am satisfied it would unfair and inequitable to hold that the date of dismissal was later than 21 August 2020.  The complaint form was received by the Workplace Relations Commission on 24 August 2020.  The complaint form was therefore received within the period of 6 months beginning on the date of the relevant dismissal, in accordance with section 8(2) of the Act.  I decide that I have jurisdiction to adjudicate on this complaint.

Incorrect Respondent

On the complaint form submitted to the Workplace Relations Commission the complainant named his employer as Menzies Aviation.  The respondent asserts that the complainant was employed by Menzies Aviation (Ireland) Limited which it is claimed is not a party to this complaint.

The respondent notes that the correct title of the complainant’s employer appears on his contract of employment, the statement of Terms & Conditions of Employment and on each payslip.  Further, the Risk of Redundancy letter of 16 June 2020 was sent to the complainant on behalf of Menzies Aviation (Ireland) Limited.  On 22 June 2020 the Minister for Employment Affairs and Social Protection was notified of a proposed collective redundancy at Menzies Aviation (Ireland) Limited.

The respondent submits that the complainant is statute-barred from adding Menzies Aviation (Ireland) Limited as a party to this complaint of unfair dismissal where no reasonable cause prevented him from correctly naming the respondent. 

The complainant understood his employer to be Menzies Aviation and he named the HR Advisor as the contact person. Her email address was @menziesaviation.com.  Menzies Aviation is on the letter head of letters received from his employer.

The respondent submitted copies of the complainant’s contract of employment, pay slips, letters and notes concerning the redundancy process and the dismissal letter.  I note that the heading on the contract of employment shows Menzies Aviation with a logo and Menzies Aviation – UK.  Within the contract the employer is stated to be Menzies Aviation (Ireland) Ltd.  The pay slips all contain the words Menzies Aviation (Ireland) Limited at the bottom of each document provided.  The letter of lay-off, dated 24 March 2020, is headed Menzies Aviation with a logo and Menzies Aviation (UK) Limited, with an address at Dublin Airport.  The letter about the Covid-19 Temporary Wage Subsidy Scheme, dated 27 April 2020, is headed Menzies Aviation with logo and Menzies Aviation with the same address at Dublin Airport as the previous letter.  In this letter the employer is only referred to as Menzies Aviation.  The Business Announcement – June 2020 document is headed Menzies Aviation with a logo and within the document it states “Whilst I appreciate this is disappointing news, and creates uncertainty for you as employees of Menzies Aviation …”  The Briefing Notes from the collective consultation meeting of 01 and 06 July 2020 are headed Menzies Aviation with a logo and within the notes the employer is referred to as Menzies.  The letter concerning Expressions of Interest for Voluntary Redundancy, dated 06 July 2020, is headed Menzies Aviation with a logo and Menzies Aviation (UK) Limited with an address at Dublin Airport.  The notes of the meetings with the complainant dated 29 July and 19 August 2020 have Menzies Aviation with a logo at the top of each page but no other reference to the name of the employer.  The Redundancy Confirmation letter dated 19 August 2020 is headed Menzies Aviation with a logo and Menzies Aviation (Ireland) Limited with an address in Dublin 2.  This final letter was sent to the complainant by email on 21 August 2020 by the HR Advisor, Menzies Aviation, Dublin Airport. 

Given all the names used for the employer in the documents listed above it is not surprising that the complainant named Menzies Aviation on the complaint form.  I accept that the complainant’s employer was Menzies Aviation (Ireland) Limited.  The complainant, who did not have any legal representation, made an understandable error on the complaint form. 

The Workplace Relations Commission wrote to the named HR Advisor at Menzies Aviation, Dublin Airport on 10 December 2020 to advise that a complaint had been received from the complainant.  By letter dated 04 March 2021 solicitors for Menzies Aviation (Ireland) Limited wrote to the Workplace Relations Commission stating “We act for the Respondent, Menzies Aviation (Ireland) Limited, in the above matter.  We refer to your letter dated 10 December 2020 notifying out client of the complaint(s)/dispute(s) of Mr Tomislav Vrckovic.  We are instructed to consent to communication by electronic means.  Please serve notice and documents to (named solicitor)” The letter named the Respondent as Menzies Aviation (Ireland) Limited.  No issue was raised in that letter about the correct legal title of the employer or claim that the incorrect respondent had been named.

The complainant sought to make a complaint of unfair dismissal against his employer.  The complainant’s employer was notified of the complaint and appointed solicitors to act on its behalf in this complaint.  The respondent did not raise the issue of the correct legal name of the respondent company until the written submissions were provided immediately before the first hearing.

The respondent cited the decision of the Supreme Court in Sandy Lane Hotel Limited v Times Newspapers Limited [2011] 2 ILRM 139 and the Labour Court decision in Wach v Travelodge Management Ltd EDA 1511 in support of their submission.  Circumstances like the instant case occurred in Capital Food Emporium (Holdings) Limited (Formerly Capital Food Emporium Limited and John Walsh and The Employment Appeals Tribunal and Maureen Stewart [2016] IEHC 725. Barrett J in Capital Food Emporium distinguished that case from the Sandy Lane Hotel case on a number of grounds including that the Sandy Lane Hotel Limited contended it was not the right party to the proceedings whereas Capital Food Emporium (Holdings) Limited acknowledged it was the correct respondent by appointing agents to act on its behalf.  In the instant case Menzies Aviation (Ireland) Limited acknowledged it was the respondent and appointed solicitors to act on its behalf.

I am satisfied the correct respondent was on notice of this complaint, was provided with the opportunity to attend the hearings, present their case, call witnesses, and cross examine the complainant.  The respondent will not be disadvantaged by being named correctly whereas to accept the respondent’s submission would deprive the complainant of the opportunity to have his complaint heard and decided on its merits.

Substantive Complaint

The complainant claims he was unfairly dismissed. 

The respondent asserts a genuine redundancy situation existed in the company in 2020.  The complainant was not unfairly dismissed but was dismissed by reason of redundancy following a fair selection procedure.

The issues I must decide are (1) was there a genuine redundancy situation in the respondent company in 2020 (2) If so, was there a fair selection process in place (3) was the complainant fairly selected for redundancy.

Legislation

Section 6 of the Act provides:

6.— (1) 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.

(2) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal if it results wholly or mainly from one or more of the following:

(a) …(j)

2A – 2D …

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

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

(b) 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

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:

(a) …

(b) …

(c) the redundancy of the employee,

(5) …

(6) In determining for the purposes of this Act whether the dismissal of an employee was an unfair dismissal or not, it shall be for the employer to show that the dismissal resulted wholly or mainly from one or more of the matters specified in subsection (4) of this section or that there were other substantial grounds justifying the dismissal. (Emphasis added)

(7) 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.

The Act therefore requires the respondent to establish that the dismissal of the complainant resulted wholly or mainly from the redundancy of the employee.  The respondent ceased operations at Dublin airport in March 2021.  Consequently, all the Dublin based employees who had been involved in the 2020 redundancy programme were no longer available.  The only witness who was available to give evidence was the HR Business Partner – UK & Ireland South of Menzies Aviation, Ms H.  She gave evidence on affirmation.

Testimony of Ms H:

Ms H in her testimony stated that the respondent had commenced operations at Dublin airport on 01 May 2018.  The respondent closed the Dublin operation in March 2021.  During the whole period from 2018 to 2021 the operation was loss making.  In 2020 the respondent employed 103 people at Dublin airport, of which 39 were ramp agents. 

In March 2020 the Covid-19 pandemic restrictions were introduced by the Government.  Flights were not operating between March and July 2020.  When restrictions were eased not all carriers resumed services.  In June 2020 the respondent had to review the business as there was no revenue. 

Ms H as regional HR Business Partner oversaw the redundancy process.  She provided support to the Dublin Station Manager Ms S throughout the process.  Ms H described the HR structure of the respondent company.  The HR Advisor in Dublin, Ms U, was the person in direct contact with the complainant.

The business review included Dublin and five UK airports.  The Business Announcement of 16 June 2020 covered Dublin and the five UK airports.  The announcement was to make employees aware of the difficult trading position and to alert them to the risk of a redundancy situation.  Following the Business Announcement, the respondent notified the Minister for Employment Affairs and Social Protection of the difficulties and the proposal to reduce the number of jobs by a collective redundancy process.

Ms H stated that the first consultation meeting in Dublin took place on 01 July 2020.  At that time trade union and employee representatives were informed that a reduction of 47 positions was planned, of which 17 were ramp agent positions.  The second consultation meeting took place on 06 July 2020.  The selection criteria were discussed and subsequently amended.  The union representatives wanted the selection to be on a last in first out (LIFO) basis, whilst the respondent wanted the selection to be skills based.  It was agreed to include length of service in the matrix with one point being awarded for each completed year up to a maximum of five years.  Alternatives to redundancy were discussed, such as part-time, job-sharing.  Enhanced payment over the statutory redundancy payment was discussed but the respondent was not in a financial position to provide such payments.  Voluntary redundancy was open to employees who applied before 17 July 2020. 

Ms H stated that seven employees who were on probation had their employment terminated and six employees applied for voluntary redundancy, including three ramp agents.

Ms H outlined the complainant’s position.  He was employed as a ramp agent on 10 September 2018.  Like all the respondent’s ramp agents he was put on temporary lay-off on 24 March 2020.  The lay-off period was unpaid but one week at the start was overpaid.  The respondent wrote to all ramp agents about the overpayment.  The Government introduced the Employment Wage Subsidy Scheme (EWSS) in April 2020.  The respondent wrote to each employee advising they would be put on the EWSS payment from 24 April 2020, unless they objected.  All employees on lay-off accepted the EWSS payment, including the complainant. 

Ms H stated the complainant attended an individual consultation meeting on 29 July 2020 with the Operations Manager and the HR Advisor.  Ms H was not at that meeting, but she had the notes of the meeting.  Ms H explained the points awarded to the complainant on the selection matrix.  The system used was positive scoring.  The complainant received the following: Service – one point, he had completed one year of service, Disciplinary – ten points, he had no disciplinary issue, Punctuality – minus 6 points, based on recorded lates of over six minutes each, Skills – twenty-five points, based on skills and training completed.  In total thirty points. 

The note of the meeting showed the complainant did not raise an issue with the scoring.  The note also recorded that the complainant was aware that a voluntary redundancy scheme had been open for applications until 17 July 2020.  He was also aware of a limited number of vacancies that were open for application.  The complainant at the meeting suggested that part-time work could mitigate the need for redundancy.  The note recorded that the complainant was informed he did not qualify for a statutory redundancy payment because he had less than two years’ service.  The notice period was confirmed as being two weeks.  No decision on redundancy was made at that time.  The complainant was told there would be another individual meeting.

Ms H stated that after the meeting of 29 July the respondent agreed with trade union and employee representatives to change the scoring relating to punctuality.  For the complainant the result was that he was not deducted six points so his total number of points on the selection matrix was then increased to thirty-six points.  The ramp agents with a score of less than 38 points were selected for redundancy.

Ms H stated a second individual meeting between the Operations Manager, the HR Advisor and the complainant took place on 19 August 2020.  The note of the meeting recorded that the complainant had no outstanding issues to be resolved, had not offered any new mitigation ideas and had not applied for any of the open posts.  The redundancy was confirmed to the complainant, and he was informed of his right to appeal that decision.  The complainant did not qualify for a statutory redundancy payment.  The complainant was informed he would be paid for two weeks’ notice and any outstanding leave due to him.  The redundancy and date of termination were to be confirmed in writing.  A letter confirming the redundancy was sent to the complainant on 21 August 2020.  His date of termination was 02 September 2020, the date that applied to all the ramp agents being made redundant.

Ms H stated she was not involved in training, but the records showed the complainant had completed 51 training modules.  Ms H stated she had no direct involvement in the time system, but she understood that changes to rosters had to be signed off by a manager.  She stated sign-in sheets were retained for only 3 months.  Ms H confirmed that the complainant had no disciplinary issue on record.  The 2019 incident referred to by the complainant had been investigated at the time and no disciplinary action was required.  The complainant had been assigned to another section during the investigation but there was no disciplinary issue.  That issue had no relevance to the selection for redundancy as the complainant was awarded full points for having no disciplinary issue on record.

Ms H confirmed that the complainant was not selected for redundancy because his service was 8 days short of two years.

Cross Examination

Ms H stated that the punctuality heading of the selection matrix was changed by agreement with the trade union and employee representatives.  The complainants score changed from minus 6 to zero bringing his total points to 36. 

In relation to timekeeping Ms H could not confirm that the manual sign-in sheets and the Workbridge (roster system) and Kronos recording systems matched.

Re-examination

Ms H stated that following the redundancies in September 2020 there were further redundancies at the end of the year and the whole operation in Dublin was closed in March 2021.  She confirmed that 13 ramp agent positions were made redundant in September 2020, 3 employees left on a voluntary basis and 10 were compulsory redundancies.  She confirmed length of service was not used to select ramp agents for redundancy.

Complainant’s Testimony

The complainant made an affirmation to tell the truth before giving evidence.  The complainant stated that he worked for Menzies and had been a cooperative employee.  His selection for redundancy had been unfair.  A manager had an issue with him and that was part of why he had been unfairly selected.  The complainant stated that others with less points had not been selected.

The complainant referred to being awarded 30 points on the selection matrix.  The Workbridge system and the Kronos system did not match because information was not uploaded.  The reason this information did not match was due to the manager.  The manager had an issue with him in a previous company.  The complainant claimed the information used in the selection was not accurate because the information on the two systems did not match.

The complainant stated he did appeal the decision to select him for redundancy by email to the HR Advisor on 23 September 2020.  The complainant stated his final pay had been unfair and he had emailed the HR Advisor.  Arising from the emails he thought he would have the opportunity to discuss the redundancy.  He stated his English was not the best and he went to the WRC because he had not received a reply from Menzies.

Cross Examination

In reply to questions from the respondent’s counsel the complainant confirmed he had been employed as a ramp agent since September 2018.  He did not know the total number of ramp agents employed but he confirmed that 13 had been made redundant in 2020.  He also confirmed that he knew all the remaining ramp agents had been made redundant or had taken voluntary redundancy or transferred under TUPE to another company in 2021 when the respondent closed its operation.

The complainant confirmed that he had received a copy of his training record with the respondent and he confirmed he received 51 training modules during his period of employment. 

The complainant confirmed he had received a letter dated 24 March 2020 from the Station Manager, Ms S, informing him of the impact on the business of Covid-19 restrictions and the actions being taken to try to ensure the team would be in a strong position when the industry picked up.  The complainant was informed that he was one of the staff selected for temporary lay-off from 23 March to 04 May 2020.  The complainant confirmed that all ramp agents were laid-off.

The complainant confirmed that from 27 April 2020 until the termination of his employment he was paid under the TWSS scheme.  He confirmed he was to return to work on an ad hoc part-time basis from 20 July 2020 but had not been required to return.  He had taken up a part-time security job in July but had not told the respondent.  He confirmed he did not ask the respondent for permission to take up other employment.  He stated he was on lay-off so why should be tell the respondent.  When asked about paragraph 21 in his contract of employment dealing with outside business activities the complainant did not comment.

The complainant confirmed that he received the Business Announcement dated 16 June 2020 and he was aware redundancies were being considered.  He confirmed that the collective redundancy consultation process had taken 49 days rather than the minimum 30-day period. 

The complainant confirmed he had attended a MS TEAMS meeting on 29 July 2020 with the Operations Manager and the HR Advisor and had been told the reason why redundancies were expected.  The complainant confirmed that his overall score on the selection matrix was 30 points.  He confirmed that he had asked if the punctuality score was based on the 6-minute late rule.  The Operations Manager confirmed to him that it was. 

The complainant confirmed he had attended a second MS TEAMS meeting on 19 August 2020 with the Operations Manager and the HR Advisor.  The complainant confirmed he was told his post was being made redundant.  He confirmed he was told at the meeting that he could appeal the redundancy decision.  The complainant also confirmed he was told he would be paid two weeks’ notice pay and that he did not qualify for statutory redundancy pay.  

The complainant confirmed he received confirmation of his redundancy in a letter dated 19 August 2020, sent to him by email on 21 August 2020.  He acknowledged that it was stated in the letter that he had a right to appeal the decision to terminate his employment.  An appeal was to be notified to David Jenkins (VP Operations Manager) by email within 7 days of receipt of the letter.

The complainant confirmed that the elected employee representative was still in place at the time the redundancy was confirmed.  The complainant did not know if the employee representative had contacted the respondent on the complainant’s behalf.  The complainant confirmed he had not asked the employee representative to contact the respondent.

The complainant disputed that he had not appealed the decision to terminate his employment.  The complainant confirmed that the email he referred to was dated 23 September 2020, over a month after he received the letter confirming his redundancy.  The complainant disputed that the work “appeal” did not appear in the emails of 23 September 2020.

The complainant confirmed that he had not asked for a translator to assist him at the two individual MS TEAMS meetings.

The complainant confirmed that the HR Advisor had sent a number of replies to him about the Revenue decision on the TWSS payment for August 2020.  He confirmed that he was dissatisfied with the payment he received.  The complainant stated he did not see anything wrong with taking a part-time job to earn an income.

The complainant confirmed he did not raise a grievance with the respondent concerning the payment or the redundancy.  He stated he had been trying to contact the respondent.

In reply to questions about the number of points awarded on the selection matrix acknowledged that his total went from 30 points at the first meeting to 36 at the final meeting.  He acknowledged the additional six points came from a change of policy in how the punctuality section was treated.   However, he thought he missed points because the time recording could be changed and changes in rosters were not always recorded as such.  He stated he could not understand how some people that started employment after him were not made redundant.  He referred to one person who joined in November 2019 and scored 54 points.  The complainant acknowledged that his own final score was 36 points.

The respondent’s counsel asked Ms H to explain how a person with less service was not made redundant.  Ms H was still under oath.  Ms H stated that the selection was based on the combination of all the elements of the selection matrix and not on length of service.  The Four elements were Service up to 5 years (maximum 5 points, Disciplinary, maximum of 10 points for no disciplinary issue, Punctuality maximum of 10 points and Skills (based on experience and training).  The complainant scored as follows; Service 1, Disciplinary 10, Punctuality 0, Skills 25 giving a total of 36 points.  The same scoring system applied to all the staff and those selected for redundancy in 2020 had scored below 38 points.  The person with shorter service than the complainant had scored as follows: Service 0, Disciplinary 10, Punctuality 10, Skills 34 giving a total of 54 points.  Ms H stated that some employee’s had experience and skills when recruited.  The same scoring system was applied to all employees.

Testimony of Ms C for the complainant

Ms C had been a Duty Manager in Customer Services.  She stated she had been involved in training ramp agents and apron safety.  The complainant asked about time recording and the Kronos system.  Ms C stated that rosters were pre-loaded into the system.  However, Ms C was not involved directly with the time recording system so could not testify as to how the system worked.  Ms C confirmed she was not involved with the complainant’s training.

The complainant concluded his presentation and said he had nothing more to add.

The respondent’s counsel stated the respondent had implemented a fair selection process for redundancy.  It had been the intention to preserve as many jobs as possible but in the circumstances some redundancies were required in 2020.  The whole operation had closed in 2021.  In 2020 the respondent had engaged in a consultation process and complied with all the obligations required under legislation for a collective redundancy.  The complainant had a right of appeal, but he did not appeal the decision to terminate his employment.  Following a fair selection process 13 ramp agents were selected for redundancy.  The complainant had not been unfairly dismissed.

Finding

It is common knowledge that in January 2020 the World Health Organisation declared a Public Health Emergency of International Concern arising from the rapid spread of a new coronavirus.  On 11 March 2020 the Covid-19 outbreak was declared a pandemic.  Two days after the pandemic had been declared the Irish Government introduced the first restrictions is the interest of public health.  Similar restrictions were introduced across the world.  There followed an immediate impact on the aviation industry.  The respondent had been operating services for airlines at Dublin Airport since May of 2018.  In response to the impact of the pandemic on the aviation industry the respondent carried out a review of its business. 

On 22 June 2020 the respondent notified the Minister for Employment Affairs and Social Protection that it was proposing to make redundancies within their Dublin Airport operation due to the downturn in the number of flights from its customers.  The letter stated: “We have reviewed the forecasted schedule rate in line with information from our customers and opted to reduce to the number of employees required for the operation in Q1 2021, by which time it is believed flights will be at a more substantial number than initial start-up figures.  This was selected in order to attempt to minimise the number of redundancies rather than reducing to start-up numbers.”  The letter included information about the number of employees, the number of proposed redundancies, the consultation process, and the proposed selection criteria.

In her evidence Ms H stated that the operation in Dublin had been loss making from the beginning in 2018.  The intention in 2020 was to reduce employee numbers but to maintain as many jobs as possible to be able to resume operations when business increased in 2021.  Regrettably, the Covid-19 pandemic continued in the next year and the respondent closed its whole operation in Dublin Airport at the end of March 2021.  Arising from the effect of the public health restrictions the respondent had no work for ramp agents, and all were put on temporary lay-off from 24 March 2020.

Based on the evidence presented and the submissions I am satisfied that respondent’s business at Dublin Airport was in genuine difficulty in March 2020 arising mainly from the effects of the Covid-19 pandemic.  I am satisfied the respondent took action to try to maintain a viable business and that action included reducing the number of employees. 

Section 7(2) of the Redundancy Payments Act, 1967, as amended, provides

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) …

(b) …

(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, or

(d) …

(e) …

I find that a genuine redundancy situation existed in the respondent company in March 2020 and the respondent decided to try to maintain the business with fewer employees.

It is well established that redundancy is concerned with jobs and the loss of jobs rather than individuals.  The Employment Appeals Tribunal in St. Ledger v Frontline Distributors Ireland Limited [1995] E.L.R. 160 stated “Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job”.  In JVC Europe Ltd v Panisi [2011] IEHC 279 Charleton J commented on the impersonality of redundancy as comparted to dismissal: “A contract of employment can involve both personal and impersonal interaction between employer and employee.  Redundancy is not, a personal choice.   It is, in essence, the external or internal economic or technological reorienting of an enterprise whereby the work of employees needs to be shed or to be carried out in an entirely different manner.  As such, redundancy is entirely impersonal.  Dismissal, on the other hand, is a decision targeted at an individual.”

The selection of employees for dismissal arising from a redundancy situation must be fair and based on objective selection criteria.  Section 6(3) and 6(7) of the Unfair Dismissals Act requires that the selection not be based on any of the prohibited statutory grounds contained in subsection (2), must not contravene any agreed or customary selection procedure and the employer must act reasonably.  The Employment Appeals Tribunal in Boucher and Ors v Irish Productivity Centre UD882, 969,970 & 1005 /1992 in relation to fairness of a selection process, stated:

“In the absence of any guidelines or precedent the employer is obliged to act fairly in relation to the criteria applicable in selecting who is to go and who is to stay and to apply such criteria fairly to each individual in order to bring about a fair assessment and decision.  The assessment is to apply to all in the group and not just some.”

“The Tribunal considers that the onus of proof is on the employer to establish that he acted fairly in relation to the dismissal of each of the claimants.  It is not sufficient to establish an overall umbrella of “Redundancy”, within which the decision was made.  It is necessary for him 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 any selection for redundancy of the individual employee in the context of such criteria are fairly made.  This legislation establishes the right of each individual employee to be fairly treated and particularly so on matters greatly affecting his welfare such as the loss of his employment would be.”

In the instant case there was no established precedent or formal agreement on redundancy.  The respondent had only commenced operation in 2018.  In the absence of an established precedent or agreement on a redundancy procedure it is for the respondent to act as a reasonable employer in deciding the criteria to be used in a selection matrix. 

The respondent’s review of the business concluded that the number of employees should be reduced by 47 across 10 job categories.  There were 37 ramp agents employed before the pandemic and that number was to be reduced by 17.  The overall numbers involved meant the proposed reduction would be categorised as a collective redundancy.  Therefore, the respondent was required to notify the relevant Minister and engage in a collective redundancy consultation process.

The respondent’s notice to the Minister stated that a business announcement was made on 16 June 2020 to all employees within the Dublin Airport operation and that letters had been sent to each employee confirming that they were at risk of redundancy.  The notice stated that the collective consultation process with the elected employee representatives would commence on 23 June 2020.  Further, the notice stated that the criteria established for selecting employees to be made redundant would be based on length of service, skills level, possession of a full blue airside pass, active disciplinary warnings, and timekeeping.

The complainant, under cross examination, confirmed he had received the business announcement and risk of redundancy notice.  He also confirmed that he attended individual remote meetings on 29 July and 19 August 2020 with the Operations Manager and the HR Advisor.  During those meetings he did not question the reason for the redundancy programme, or the score awarded to him under each heading except for punctuality.  The note of the meeting of 29 July 2020 records that the complainant asked, “if punctuality is based on 6min below”.  The note records the punctuality score was based on the 6-minute rule and that the complainant confirmed he was “ok” with the scores.  The respondent operated a five-minute grace period for employees signing-in. There was no penalty for being up to five minutes late, thereafter a late was recorded and a deduction was made for each minute the employee was late for their duty.

I note that through agreement with the employee and trade union representatives the minus scores on punctuality were not used in the final assessment.  The complainant’s final score improved from 30 to 36 points.  The complainant was not awarded positive points under this heading as he had more than 10 lates recorded in the period from 13 October 2019 to 17 February 2020.  According to the notes of the meetings of 29 July and 19 August 2020 the complainant did not raise any issue about the number of lates recorded against him. 

I have carefully considered the evidence presented, the submissions and the documents provided.  Based on my consideration of the above I have concluded that

o   The complainant was informed of the business difficulties arising from the Covid-19 pandemic and the risk of redundancy arising. 

o   The respondent informed the relevant Minister of the business difficulties and the need to reduce employee numbers with a view to the business remaining viable in the future.  The reduction required would be a collective redundancy.  The respondent entered a consultation process with union and employee representatives, as required, and alternatives to redundancy were considered.

o   The selection procedure was proposed by the respondent, based on the skills required for the future needs of the business.  The selection procedure was discussed and amended during the consultation process.

o   The criteria used in the selection matrix were applied to all the employees in the relevant pool. The complainant was one of 37 ramp agents and all were assessed based on the same criteria – skills, length of service (up to 5 years), disciplinary record and punctuality.  Those with the lowest scores were the selected for redundancy.  Prior to selecting employees for redundancy, the respondent had offered voluntary redundancy and those on probation had their employment terminated.

o   The complainant attended an individual consultation meeting on 29 July 2020.  He was given the option to be accompanied at the meeting but he declined.  The reason redundancy was being considered was explained and he did not question that.  The complainant suggested the use of part-time work as an alternative to redundancy.  The only issue raised by the complainant was whether punctuality was based on the 6-minute rule.   The complainant was aware that his job was at risk.

o   The complainant attended a second individual consultation meeting on 19 August 2020.  He was again given the option to be accompanied at the meeting but he declined.  The complainant’s score on the selection matrix had increased from 30 to 36 due to the elimination of minus points for punctuality.  Had the complainant not had over 10 lates in the relevant period he could have had a higher score.  He had not raised any issue about inaccurate recording of late duties during his employment.  The complainant received the full 10 points for not having a live disciplinary issue.  I am satisfied the investigation in 2019 had no relevance to the redundancy process.  The redundancy was confirmed.  I am satisfied the complainant was informed he could appeal the decision to dismiss him within seven days of the written confirmation of the decision.

o   I am satisfied the complainant did not appeal the decision to dismiss him.  In his evidence the complainant claimed that he had submitted an appeal by e-mail dated 23 September 2020.  That e-mail thread does not refer to an appeal.  The subject of the emails is ‘Unfair Payment’ and relates to the final payment received by the complainant.

o   The loss of employment through redundancy is difficult for any employee.  The complainant was understandably upset at the loss of employment and the fact that he did not qualify for a statutory redundancy payment.  I find no evidence to support the complaint that he was selected for redundancy because his length of service would mean the respondent would not have to pay him a statutory redundancy payment.  The selection for redundancy was based on the points awarded across all the criteria. Four employees who were made redundant had over two years’ service and therefore qualified for a statutory redundancy payment.

o   I am satisfied the respondent’s selection criteria were based on the future needs of the business at that time.  The respondent agreed changes to the selection matrix during the consultation process.  I am satisfied that the final selection criteria were applied to all the employees in the pool in a consistent and transparent manner.

Considering all the above I find the respondent’s selection procedure was fair, included consultation and consideration of alternatives to redundancy and the selection criteria were applied to all employees in the relevant pool in an objective and transparent manner.  Each employee had an opportunity to attend individual meetings accompanied by another person.  Those selected for dismissal by reason of redundancy were given the opportunity to appeal the decision.  I find the complainant was not unfairly dismissed, he was dismissed by reason of redundancy following a fair, objective, and transparent selection procedure.

CA-00039330-002

Complaint submitted under section 8 of the Unfair Dismissals Act, 1977

Preliminary Issues

Premature Application to the Workplace Relations Commission

In the particular circumstances of this case, as set out above, I am satisfied that the date of dismissal was 21 August 2020.  I am satisfied it would unfair and inequitable to hold that the date of dismissal was later than 21 August 2020.  The complaint form was received by the Workplace Relations Commission on 24 August 2020.  The complaint form was therefore received within the period of 6 months beginning on the date of the relevant dismissal, in accordance with section 8(2) of the Act.  I decide that I have jurisdiction to adjudicate on this complaint.

Incorrect Respondent

The complainant sought to make a complaint of unfair dismissal against his employer.  The complainant’s employer was notified of the complaint and appointed solicitors to act on its behalf in this complaint.  The respondent did not raise the issue of the correct legal name of the respondent company until the written submissions were provided immediately before the first hearing.

I am satisfied the correct respondent was on notice of this complaint, was provided with the opportunity to attend the hearings, present their case, call witnesses, and cross examine the complainant.  The respondent is not disadvantaged by being named correctly whereas to accept the respondent’s submission would deprive the complainant of the opportunity to have his complaint heard and decided on its merits.

The correct respondent, Menzies Aviation (Ireland) Limited was on notice of this complaint, was represented and participated in full at the hearings.

Substantive Complaint of Unfair Dismissal

I find that a genuine redundancy situation existed in the respondent company in March 2020 and the respondent decided to try to maintain the business with fewer employees.

I find the respondent’s selection procedure was fair, included consultation and consideration of alternatives to redundancy and the selection criteria were applied to all employees in the relevant pool in an objective and transparent manner. 

I decide the complainant was not unfairly dismissed.  The complainant was dismissed by reason of redundancy following a fair, objective, and transparent selection procedure.

Collective Redundancy

Selection for Redundancy