Complainant

Respondent

Parties

Bartosz  Pawlikowski

Viva Sure Medical Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

John Fahy BL instructed by Glenn Kearney Geraghty & Co Solicitors LLP

 Frank Drumm BL Martin Farrelley  Martin Farrelley HR Consulting Ltd

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-00045935-001

03/09/2021

The complainant submits he was unfairly dismissed and the respondent submits that the complainant’s position was made redundant.

Preliminary Issue:

The respondent requested that the decision be anonymised on the grounds of sensitive commercial information.

Substantive Issue:

It was submitted that the complaint was unfounded.  The respondent after 11 years of development commercially launched its product in November 2019.  The Complainant held the position of Associate Research and Development Engineer and not R&D Engineer as recorded on the Complaint Form. The Complainant commenced employment with the Respondent company on 29/06/2011 as a Senior Product Builder, followed by role of Technician from 28/11/2012 until 2015 when the Complainant was then employed in the role of Associate Research and Development Engineer reporting to the Research and Development Manager. In the company there was only one Associate Research and Development Engineer, and this position was filled by the Complainant.

The Respondent submitted they have developed and manufactures a vascular medical device which saw nominal revenues in November and December 2019 and commercial activity was severely impacted almost immediately by Covid19 with all commercial revenues ceasing at the end of February 2020. Commercial activity has continued to be severely impacted to date and during Covid19 the Respondent embarked on a cost reduction program which included amongst other initiatives the elimination of batch release, a costly destructive testing process which was a major part of the Complainant’s role.

The Respondent manages costs very tightly and did so throughout the Covid19 period and beyond. In response to the Covid19 Pandemic the respondent introduced a range of cost saving measures. The Respondent availed of the Government Sustainable Enterprise Fund set up to assist companies during Covid19 along with utilising both the Temporary Covid19 Wage Subsidy Scheme and Employment Wage Subsidy Scheme. As a result, the salary of the Complainant and that of 10 other employees was substantially unaffected while all other staff endured salary reduction for part of 2020.  The Respondent undertook a review of its manufacturing process to reduce Cost of Goods (COGS). The company changed a critical supplier yielding approximately a 17% reduction in COGS. The company also eliminated a Batch Release testing process, a destructive testing process, at the end of the production cycle yielding another 17% reduction in COGS (33.3% in total). Batch release testing was one of the Complainant’s main functions. Capital expenditure was restricted to essential spend only, and all other overheads were restricted as tightly as possible.

The respondent submitted that the Complainant’s primary role was batch release destructive testing for products and supporting the commercial team operations at medical conferences. The work involved primarily providing international conference support, managing the preparation, distribution and rebuilds of commercial demonstration units for the commercial team. The impact of the Covid19 virus restrictions on travel, access to customer hospitals, and in person conferences resulted in a dramatic reduction in the work needed to support the commercial team along with a change in work practices which eliminated batch release for commercial product. Therefore, commercial conference activity at the Respondent fell by more than 80%.

In relation to conferences, there was one conference attended by the commercial team in January 2020 and none planned in 2021.  With Covid19 having a devastating and ongoing effect on the commercial launch of the product, the spend on commercial activity and team was significantly reduced. Of the commercial team of 6 at the end of March 2020 the company has only managed to retain 2 of the original commercial team including the loss of 2 Heads of Commercial in the period 2021 to date. All conference activities were moved online for 2020 and 2021.

The Complainants’ role was to support extensive medical conferences program attendance where the Respondent would attend up to 20 conferences a year with stands in up to 6 of these conferences. The Complainant would prepare demonstration models and demonstration of product along with marketing material for these conferences. All these conferences ceased operating in person during Covid19 and the Respondent stopped attending such conferences as they went virtual. Consequently, the company could not provide continued work for the Complainant.

In this context on 02/03/2021 the Respondent met with the Complainant to outline the situation and the implications for the Complainants role. The Complainant was offered reasonable alternative employment as a Product Builder which was declined. On 04/03/2021 the Respondent wrote to the Complainant confirming that the role of Associate Research and Development Engineer was to be made redundant and the business reasons for this decision. On 31/03/21 the Complainant’s employment terminated by reason of redundancy and the Complainant was paid his Statutory entitlements.

It was submitted that the Complainant was not unfairly dismissed and that the Respondent acted reasonably in the circumstances. The respondent submitted that the complainant was only paid a discretionary bonus as provided for in his contract of employment as follows: -

”You are eligible to participate in such bonus scheme as the Company may implement from time to time for employees at your level (up to 7.5% of salary) which will be based on the achievement of Company and/or individual performance objectives as may be established by the Company in its sole discretion. The terms and conditions of such plan will be determined by the Company in its absolute discretion and such a scheme may be amended or terminated by it at any time. The payment of any bonus to you is subject to you being in the employment of the Company and there being no notice of termination in effect on the date the bonus payment is due.

The Complainant’s employment terminated on 31/03/2021 and as he was no longer in employment, and in line with the contract of employment no bonus was due to be paid to the Complainant.

In response to whether the complainant was suitably qualified for the role of Clinical Research Associate it was submitted that the Complainant was not considered for this role as he did not have a medical qualification and the role specifically required a candidate with clinical experience. In addition, the rate of pay was lower than the Complainant earned. The Complainant made it clear that he would not work for a lower rate of pay than he was earning at the date of his termination, as seen by his refusal to take up the role of Product Builder.

The evidence of Mr Keating, CFO, was that the respondent is a medical device company and that the company produced a patch-based system which is a game changer in the industry.  He said that the company is funded by venture capitalists and when covid hit Europe in February 2020 the hospitals shut down to non-hospital staff and that to the date of the hearings it can still be difficult to return to the hospital.  The company had projected revenues that it did not have and had to raise money from external shareholders.  All spending was restricted and batch release is expensive and one of the suppliers was expensive and they changed suppliers.  It was submitted that the role of Associate Engineer is something which the complainant developed into, and the evidence of Mr Keating was that the complainant is not an engineer.  It was said that the complainant could do more than a product builder including batches and preparing the commercial stands and that the impact of Covid was felt as early as February 2020 in Italy at the hospitals and that conferences were no longer possible, and that the complainant was spending his time doing nothing.  Following a review, it was determined that there was no other role that the complainant could fill apart from that of Product Builder and that the complainant was informed of this and the minutes of the meeting were shared with the complainant, and he never disagreed with the minutes. It was submitted that the complainant did not adequately look for alternative work and did not look for non-engineering roles.

Mr Keating confirmed that afterwards a Clinical engineer was recruited who handles preparation of clinical studies and animal studies and that they had medical training which was an advantage.  Mr Keating said they also hired a senior engineer, and the complainant did not have the experience for that role and the role of Associate engineer has not been replaced.  Mr Keating said the complainant was good at his job and there were no performance issues.

Under cross examination Mr Keating said not all tasks in the complainant’s job description were given to him.  He said that he typed up the minutes of the meeting with the complainant either on 02/03/2021 or 03/03/2021 and that 30-40% of the complainant’s work was supporting batch release and that the decision to terminate the complainant was taken before they met the complainant.  Mr Keating said that as Chief Financial Officer he made the decision, and it does not have to go to a board meeting and that the decision to cease batch release was made in January 2021 and had been a decision reached 6 months before that and that a final decision was taken in January 2021.  He confirmed that the position of Clinical Associate Engineer was not offered to the complainant as the complainant did not have medical experience and said that the complainant was not an engineer.  He said that he asked the complainant for his reaction as he did not seem upset, and that the complainant admitted that he had little to do.  He said the main business is research for commercialisation and that shareholders want return on their investment. 

Preliminary Issue:

The complainant objected to anonymising the decision.

Substantive Issue:

The complainant submitted that on 02/03/2021 he was called to a meeting and told his position was redundant and was asked for his reaction.  He disputes that it did not come as a shock and that he had just secured a mortgage and was asked to take on the role of a Product Builder.  It was submitted that the complainant was unfairly selected for redundancy.  It was submitted that the company made a decision that batch release would be removed and by the end of March 2021 they had recruited another engineer for a position that the complainant could have done.  There were never performance issues, and it was not a redundancy and there were no efforts made to accommodate the complainant with alternative roles.

The evidence of the complainant was that he started in June 2011 as a senior product builder and offered a promotion as Technician and then became Associate R&D Engineer and that he did all the roles set out on the job description.  He said he never had an issue with his employment and on 02/03/2021 he went to meet Mr Keating in the conference room and was told his position was redundant.  He said that between Jan-March 2021 there had been no mention of redundancies.  He declined the position of product builder as it was two steps below in his career and that he was not expecting to be told to leave.  He knew batch release was discontinued and that in February 2021 a technician was leaving and was asked to stay on as a quality engineer.  He said in March 2021 a clinical engineer position was advertised and that he saw that in June 2021 a Clinical Research Associate Engineer position was created and that he was never offered those roles.

With regards to mitigation of loss he submitted that he was unemployed from 31/03/2021 until 11/10/2021 when he then secured a position until 31/05/2022 with no loss in earnings.  He said he was unemployed from 01/06/2022 until  03/10/2022 when he secured a position where he remains and his current salary is €43,000 as an R & D Engineer where his loss with that role is €73.00 weekly.  It was submitted that there were other losses incurred including bonus and healthcare and that his total loss was almost €52,000.

Under cross examination he confirmed that when he started work with the respondent, he was building product and when promoted to a technician he was also building devices and brainstorming and making suggested improvements for the implant to perform better and that he reported to various people and was then promoted.  He said this job included writing design histories and testing including design of related jigs and he said that he was developing test methods.  Under cross examination he was asked to go through each aspect of his job description with regards to whether he performed all the duties or some of the duties within the job description.  He confirmed that he did not do validation testing and that he did support project teams and that he was conducting research into specific areas of product and that he did design and developing of test methods and design release and that sometimes he did document concept design under instruction and his manager would review and not supervise.  He said that he supported other areas of the business including operations and said that he was very good at anything he did. 

The complainant said that he was advised the role was redundant on 02/03/2021 and that the role of Product Builder was 2 steps back in his career.  He confirmed that he did not enquire about the salary for product builder role as he knew it was €14 per hour.  He denied that he was offered an alternative job with this product builder role as it was not the same role.  He said that he talked to someone who was taken on by the respondent the day after he left and that he could have done their job of Clinical Associate and he said he was surprised when Mr Keating told him she was on a salary similar to that as a Product Builder.  The complainant’s evidence was that a job he looked for had to pay him same or similar and that he was willing to accept jobs at a lower pay and he did not tell Recruiters what minimum he would accept. He said his job searching focussed on building his career and that he ended up taking a job with a salary less than he had with the respondent.  In evidence he said that after he heard about the respondent advertised jobs, he emailed the respondent’s MD and asked about other jobs and was told there were no other jobs.

In response to questions regarding mitigation of loss and efforts to secure other jobs he said that he made contact with 39 different recruiters and confirmed that he did not contact Recruiter X and that he did not focus on any particular recruiter and that he secured 16 interviews.  He denied that this was not a lot of interviews.  In response to why the complainant did not get a job when medical devices were doing so well, the complainant said that if the industry was doing so well then why did the respondent make him redundant.  He said it took a long time to get work and he could not get anything between March 2021 – October 2021.  He said the area of the respondent is specialised and no other companies did this type of device, and this made his job search more difficult.

The complainant gave evidence in cross examination that his bonus as a technician was at 7.5% and that he got a bonus in 2019 and 2020 but not 2021.  The complainant said shares were not vested and that at this time there is no loss with the shares as they have not vested.  It was confirmed by the complainant that he has a Master’s Degree since 2007 and that he did not apply for any technician role as he wants to stay on the track of an engineer.  He confirmed that he was not advised of any technician role and that he did not apply for any other roles and that he wants the job title of Engineer.  He said that he was the only person made redundant in the organisation.

Case law cited included Kieran Murray v Sherry Garden Rooms Ltd Adj 28766.

Preliminary Issue:

The respondent requested that the decision should be anonymised on the grounds of commercial sensitive information. 

Section S8(6) provides

“Proceedings under this section before an adjudication officer shall be conducted in public unless the adjudication officer, of his or her own motion or upon the application by or on behalf of a party to the proceedings, determines that, due to the existence of special circumstances, the proceedings (or part thereof) should be conducted otherwise than in public.]in public.”

Section 8 (1B) refers to 41(14) of the Workplace Relations Act provides

“(a) Subject to paragraph (b), the Commission shall publish on the internet in such form and in such manner as it considers appropriate every decision of an adjudication officer under this section.

(b) In publishing a decision under paragraph (a), an adjudication officer may determine that, due to the existence of special circumstances, information that would identify the parties in relation to whom the decision was made should not be published by the Commission.”

I have given consideration to same and I note the WRC’s policy Workplace Relations (Miscellaneous Provisions) Act 2021 - Workplace Relations Commission, on when to anonymise a case, and when to hear a case, or part of it, in private.  I further take into consideration that Chief Justice O’Donnell in Zalewski v Adjudication Officer and WRC, Ireland and the Attorney General [2021] IESC 24 where it is noted

“The rule established under the Constitution is not an absolute one, even for court proceedings, and is not expressly required under Article 37 in respect of the adjudicative processes covered by it. There is a justification for calm, quiet, and private resolution of many disputes which may be of particular sensitivity for the participants, and it may even be permissible to have a presumption in favour of private hearings at first instance, but it is not, in my view, possible to justify the absolute ban contained in s. 41(13), particularly when, on appeal, the opposite provision is made.”

Taking into consideration all the circumstances, I find that I do not consider the circumstances put forward by the respondent to be special circumstances and advised parties that this decision would not be anonymised and would not be held in private and the hearing, therefore, proceeded.

Substantive Issue:

The dismissal of an employee shall be deemed for the purposes of the Act to be an unfair dismissal unless, having regard to all circumstances, there are substantial grounds justifying the dismissal. It is evident that the burden of proof is firmly on the Respondent.

Under Section 6 of the Unfair Dismissals Act, 1977:

“—(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”

.Section 4 of the Act provides that

“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. “

(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 complainant submits that he was brought into an office and advised by Mr Keating and the CEO that his position was redundant and this was not disputed by the respondent.  The respondent submits that owing to the impact of Covid-19 they were left with no alternative but to terminate the complainant’s position and offered the complainant the position of Product Builder.  I note that the position of product builder is two levels below the position the complainant had been employed at.  The complainant submits that other positions became available, and the respondent submits that there were other positions, but the complainant was not suitable for them.  It was not disputed that the complainant was not informed of these positions or informed why it was only his role that was selected for redundancy, nor would it appear was there any type of selection matrix used or shared with the complainant.

There was much dispute at the hearing as to whether the complainant performed all the duties of his job description, but it seems clear from the evidence that the complainant performed some of those duties to a greater extent than others.  It would appear also that the decision to terminate the complainant’s employment was made before the complainant attended the meeting and the complainant was not asked for any input into the decision.

It appears unusual that the complainant’s position was the only position made redundant and, was communicated to the complainant as a fait accompli at the meeting of 02/03/2021.  There was no consultation with the complainant and while I note the minutes of that meeting reference that the complainant said he was not surprised, the complainant had no input into these minutes and the complainant’s evidence was credible that he had only recently applied for a mortgage and would not have done so if he suspected his position was to be made redundant.

It is also noted that the complainant was not afforded the right to appeal the Respondent’s decision and that communication regarding the respondent’s decision does not meet the standard expected with no consultation and no appropriate discussions as to alternatives to redundancy.  The absence of any process or consultation preceding the decision to tell the complainant he was redundant is such that it was presented to him as a ‘done deal’. Taking all the aforementioned into consideration, such shortcomings render the dismissal of the Complainant unfair. Having considered the above, I have decided that reinstatement or re-engagement of the Complainant is not a practical option in this case and that compensation is the appropriate redress in this case.

Evidence was provided by the complainant of his efforts to mitigate his loss and I note the significant efforts made by the complainant to seek alternative engineering roles.  It is notable, however, that the complainant did not appear to make efforts to investigate other positions outside that of an engineering position, that may have allowed him to somewhat mitigate his losses. In Sheehan v Continental Administration Co Ltd. 858/1999 the tribunal held that

“A claimant who finds himself out of work should employ a reasonable amount of time each weekday in seeking work”

Taking all the aforementioned into consideration and that the complainant could have made further efforts to mitigate his loss, I award the complainant €14,400 which is an award of 16 weeks. This figure is on top of the statutory redundancy already received.

I find that the dismissal was unfair and in all the circumstances including the efforts by the complainant to mitigate his loss, I award the complainant €14,400 which is an award of 16 weeks. This figure is on top of the statutory redundancy already received.

Unfair dismissal