Complainant

Respondent

Parties

Adrian  Maciarz

Reynolds Logistics Limited

Complainant

Respondent

Anonymised Parties

Representatives

Cian Conboy

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-00040683-001

29/10/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00040683-002

29/10/2020

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 and has submitted that he was unfairly selected for redundancy (CA-00040683-001);

The Complainant is seeking adjudication by the Workplace Relations Commission under Section 6 of the Payment of Wages Act, 1991, and has submitted the he did not receive payment in lieu of notice of termination of his employment (CA-00040683-002). The Respondent confirmed at the outset of the hearing of this matter that this Complaint will be settled on or before the 21st July 2023.

The Complainant was employed by the Respondent on the 28th May 2018 as a Heavy Goods Vehicle (HGV) driver. The Complainant was dismissed on the 1st October 2020 by reason redundancy and his employment ceased on the 11th October 2020.

The Complainant submitted that he was unfairly selected for redundancy where no genuine redundancy situation existed.  The Complainant took up alternative employment on the 12th October 2020.

This Complaint was received by the Workplace Relations Commission on the 29th October 2020.

The Respondent disputes that the Complainant has been unfairly dismissed and submits that he was dismissed as a genuine redundancy situation existed.

Due to the impact of the Covid-19 pandemic on the aviation sector, the Respondents client had to greatly scale back their operations, which in turn resulted in a significant drop off in the work available for the Respondent.

On 17 September 2020, a letter was issued to the Complainant and twenty-two other drivers who were working on the aviation contract to inform them that their roles were at risk of redundancy as a result of an 80% decrease in the volume of work available for them.

On 23 September, the Complainant attended a consultation meeting with the Respondent and other drivers who were placed at risk of redundancy, along with Mr. C their Siptu rep.    At this meeting, the Respondent outlined the process that would be followed and informed those in attendance that a Last in First Out (LIFO) selection process would be used.

On 25 September, the Complainant attended a second formal group consultation meeting with the Respondent and a member of SIPTU also in attendance. At this meeting, the proposed redundancies were discussed, and the employees present were informed that the Respondent would rehire employees in the future should they be in a position to do so.

On 30 September, there was a  third formal group consultation meeting with the Respondent. The Complainant said he did not attend.

On 1 October, the Complainant attended a one-to-one formal consultation meeting with the Respondent. After the meeting the Complainant received a letter from the Respondent outlining that he was to be made redundant.

It is the Respondents position that the in the circumstances there was a legitimate redundancy situation by virtue of which the role of the Complainant was no longer sustainable.

In the circumstances of this matter, I have carefully listened to the evidence tendered in the course of the hearing by both parties.

It is necessary to examine the facts giving rise to this Complaint in light of the relative legislative provisions. The statutory definition of redundancy is located in the Redundancy Payments Act 1967, Section 7 (2) as amended which provides that:

An employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

a) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b) the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c) the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or

(d) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e) the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained

The lawful reasons for dismissal are set out in Section 6 (4) of the Unfair Dismissals Act 1977 which provides:

“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) the capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do,

(b) the conduct of the employee,

(c) the redundancy of the employee, and

(d) the employee being unable to work or continue to work in the position which he held without contravention (by him or by his employer) of a duty or restriction imposed by or under any statute or instrument made under statute.”

Under Section 6(3) of the 1977 Act there may be a finding of unfair selection for redundancy where an employee is dismissed but the circumstances constituting the redundancy applied equally to one or more other employees in similar employment with the same employer who have 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.”

Further, an onus is placed on the employer by Section 6 (6) of the Unfair Dismissals Act 1977 which provides

“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”.

Under Section 6(4) redundancy is a substantial ground and once the redundancy is established the employer has discharged the onus. However, an employee may meet a redundancy defence by claiming the unfair selection under Section 6 (3).

In Williams –v- Comp Air (1982) 1 ICR 156, Browne-Wilkinson J in considering the issue of fair selection, identified the following as generally accepted principles governing how reasonable employers will typically act:

1. The employer will seek to give as much warning as possible of impending redundancies so as to enable the union and employees who may be affected to take early steps to inform themselves of the relevant facts, consider possible alternative solutions and, if necessary, find alternative employment in the undertaking or elsewhere.

2. The employer will consult the union as to the best means by which the desired management result can be achieved fairly and with as little hardship to the employees as possible. In particular, the employer will seek to agree with the union the criteria to be applied in selecting the employees to be made redundant. When a selection has been made, the employer will consider with the union whether the selection has been made in accordance with those criteria.

3. Whether or not an agreement as to the criteria to be adopted has been agreed with the union, the employer will seek to establish criteria for selection which so far as possible do not depend solely upon the opinion of the person making the selection but can be objectively checked against such things as attendance record, efficiency at the job, experience, or length of service.

4. The employer will seek to ensure that the selection is made fairly in accordance with these criteria and will consider any representations the union may make as to such selection.

5. The employer will seek to see whether instead of dismissing an employee he could offer him alternative employment.

In Boucher –v- Irish Productivity Centre (1994) ELR 2005, this was an illustration of an unfair selection process. In this case, no agreement was reached as to the method of selection for redundancy. The selection process was carried out by without any consultation or interviews In describing this selection procedure as unfair and holding that the claimants has been unfairly dismissed the Employment Appeals Tribunal emphasized that those in the group likely to be dismissed should be made aware that such assessment is being made and they should be given an opportunity to give their views which should be considered.

InMulligan –v- J2 Global (Ireland) Ltd (UD/993/2009), in respect of redundancy the tribunal stated:

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

In JVC Europe v Panasi (2011) IEHC 279, Charleton J stated:

“ It is made abundantly clear by that legislation that redundancy, while it is dismissal, is not unfair. A dismissal, however, can be disguised as redundancy; that is not lawful. Upon dismissal an employer can simply say that the employee was not dismissed for a reason specific to that person but that, instead, his or her services were no longer required, pointing to apparently genuine reasons for dispensing with the services of the employee. 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.”

“The comment on the nature of redundancy made inSt. Leger v. Frontline Distributors Ireland Ltd., [1995] E.L.R. 160 at 161 to 162 by Dermot MacCarthy S.C., as chairman of the Employment Appeals Tribunal, is apposite:-

“Impersonality runs throughout the five definitions in the Act. Redundancy impacts on the job and only as a consequence of the redundancy does the person involved lose his job. It is worthy of note that the E.C. Directive on Collective Redundancies uses a shorter and simpler definition: ‘one or more reasons not related to the individual workers concerned'.

Change also runs through all five definitions. This means change in the workplace. The most dramatic change of all is a complete close down. Change may also mean a reduction in needs for employees, or a reduction in numbers. Definition (d) and (e) involve change in the way the work is done or some other form of change in the nature of the job. Under these two definitions change in the job must mean qualitative change. Definition (e) must involve, partly at least, work of a different kind, and that is the only meaning we can put on the words ‘other work'. More work or less work of the same kind does not mean ‘other work' and is only quantitative change.”

Justice Charleton also remarks that “It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go, should be examined”.

He also comments

“As a matter of contract, where selection procedures for redundancy, or a consultation process to seek to discover alternatives to redundancy, are laid down in the conditions of employment of an employee, whether by collective agreement or individual employment contract, these should be followed. Following what is on the surface a fair procedure does not necessarily demonstrate that the decision maker is taking an honest approach to a decision.

As with much else, an apparently fair procedure can be used as a cloak for deceptive conduct. It may be followed in form only so as to mask an ulterior motive or with no intention of fulfilling its purpose, even should the best of reasons for not proceeding to redundancy arise during its course.

In the circumstances of this case and in consideration of the above, I accept on behalf of the Respondent Company that from a business and operational point of view and in light of the pandemic and the associated economic downturn that there was evidence of a genuine redundancy situation. However, this does not absolve the Respondent from affording the Complainant fair procedures in relation to consultations or exploring alternatives.

In that respect, it is noted that there were four consultation meetings and the Complainant was part of a pool of 22 employees, 9 of which were made redundant. The Respondent used a Last In First Out (LIFO) method in line with custom and practice which the Respondent previously used in 2017. Accordingly, I am satisfied there was an adequate consultation process.

In the circumstances of this complaint, I am satisfied from the totality of the evidence adduced that a genuine redundancy situation existed, that the complainant was fairly selected for redundancy and that the employer acted reasonably in all the circumstances.  Having concluded that a genuine redundancy situation existed in this case, I am satisfied that redundancy was the main reason for the dismissal of the Complainant. Accordingly, I am satisfied that the complainant was not unfairly dismissed.

I find that the Complaint (CA-00040683-001) made pursuant to Section 8 of the Unfair Dismissals Act, 1977, is not well founded.