ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00036429
Parties:
| Complainant | Respondent |
Parties | Kevin Barry | Parish Life Limited trading as Premier Insurances |
| Complainant | Respondent |
Anonymised Parties |
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Representatives | John Fitzgerald JJ Fitzgerald & Co. Solicitors | Owen Keaney BL Rhona Murphy Solr. Byrne Wallace Solicitors |
Complaint(s):
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-00047642-001 | 14/12/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00047642-002 | 14/12/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 | CA-00047642-003 | 14/12/2021 |
Date of Adjudication Hearing: 07/12/2022 and 08/02/2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Procedure:
In accordance with Section 8 (1)(a) of the Unfair Dismissals Act of 1977 (as substituted) and where a claim for redress under the Unfair Dismissals legislation is being made, the claim is referred to the Director General of the Workplace Relations Commission who in turn refers any such claim to an Adjudication Officer, so appointed, for the purpose of having the said claim heard in the manner prescribed in Section 41 of the Workplace Relations Act, 2015. In particular, the said Adjudication Officer is obliged to make all relevant inquiries into the complaint. The Adjudication Officer will additionally and where appropriate hear all relevant oral evidence of the parties and their witnesses and will take into account any and all documentary or other evidence which may be tendered in the course of the hearing.
In circumstances where the fact of dismissal/termination is not in issue, the evidential burden of truth (the onus) rests with the Respondent/Employer to establish it has acted fairly and appropriately. Per Section 6(1) of the Unfair Dismissals Act 1977:
“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”
The Act suggests circumstances which might be relied on by an Employer to establish the Dismissal was not Unfair. Section 6(4) of the Unfair Dismissals Act 1977 reads:
“Without prejudice to the generality of Subsection (1) of this section the dismissal of an employee shall be deemed for the purposes of the 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 for which he was employed by the employer to do,
(b) The conduct of the employee,
(c) the redundancy of the employee, and
(d)….”
Lastly, Per Section 6(6) of the 1977 Act in determining for the purposes of the Acts whether or not a 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 other of the specified grounds (as outlined in Sect 6(4) of the Act – conduct, redundancy etc.), or that there were other substantial reasons justifying the dismissal.
An Adjudication Officer should, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal (per Section 6 (7) of the Unfair Dismissal Act of 1977).
In the case before me, the Employer seeks to establish that the dismissal is not an Unfair Dismissal as the Dismissal results wholly or mainly from the Redundancy of the Employee (as provided for in Section 6(4) of the 1977 Act aforesaid). In making this assertion, the Respondent will have to establish that the Redundancy is a genuine one (and not a sham or ruse to get rid of an employee). Under Section 7(2) of the Redundancy Payments Act of1967 the Employer will have to demonstrate (in general terms) that the dismissal (by reason of Redundancy) is attributable wholly or mainly to the fact that the Employer is ceasing to trade, or proposes trading with fewer employees or that the work is to be done differently and that the Employee has not the requisite training or qualification to continue.
Further, even if there is a Redundancy situation there is an onus on the Employer to show that the selection of an individual (over and above other potential candidates) is fair and reasonable and that the selection process is fair and transparent. The Adjudication Officer must, in determining if a dismissal is unfair, have regard to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the said dismissal (per Section 7).
It is further noted that in the case before me the Complainant herein has referred a complaint of having been unfairly dismissed by reason of his Unfair selection for Redundancy from his employment wherein he had worked for in excess of one year. Because the Workplace Relations Complaint Form (dated the 14th of December 2021) issued within six months of his dismissal, I am satisfied that I (an Adjudication Officer so appointed) have jurisdiction to hear the within matter.
Where an employee has been dismissed and the dismissal is found to be unfair the employee shall be entitled to redress pursuant to Section 7 of the 1977 Act. Such redress might include re-instatement, re-engagement or compensation for any financial loss attributable to the dismissal where compensation for such loss does not exceed 104 weeks remuneration. The acts, omissions and conduct of both parties will be taken into account when considering the extent of the financial loss and there is an onus on a Complainant to adopt measures to mitigate the financial/ remunerative loss (which includes actual loss as well as estimated prospective loss).
In addition to the foregoing, the Complainant made complaints of contraventions by the Employer of certain relevant provisions of the Organisation of Working Time Act of 1997. These complaints were withdrawn at the first date of hearing.
Background:
This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way. In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Affirmation as appropriate. It is noted that the giving of a false statement or evidence is an offence. The complaints to be considered in the course of this hearing were lodged with the Workplace relations Commission by way of Complaint Form dated the 14th of December 2021.
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Summary of Complainant’s Case:
The Complainant was fully represented by his Solicitor. At the outset, the Complainant was happy to make an Affirmation to tell the truth. In addition to hearing the Complainant’s evidence on Affirmation I was provided with a comprehensive submission dated the 5th day of December 2022. The Complainant additionally relied on the submission outlined in the Workplace Relations Complaint Form. I was provided with supplemental documentary evidence in support of the Complainant’s case. The Evidence adduced by the complainant was challenged as appropriate by the Respondent’s Representative. The Complainant alleges that he was Unfairly dismissed when he selected for redundancy in a manner that which he claims was neither transparent nor fair. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. It is noted that the Complainant withdrew his two claims under the Organisation of Working Time Act 1997. |
Summary of Respondent’s Case:
The Respondent entity had legal representation at this hearing. One of the Respondent Directors gave evidence on Affirmation concerning the Respondent defence to the claim. The Respondent provided me with a written submission dated 18th of November 2021. The Respondent witness was cross examined by the Complainant representative. The Respondent rejects that there has been an Unfair Dismissal. The Company asserts a legitimate and lawful redundancy situation occurred. The Respondent asserts a downturn in business coupled with a move away from the Complainant’s area of expertise brought about this redundancy. The company does not accept any contravention of Employment Rights as protected by statute. Where I deemed it necessary, I made my own inquiries so as to better understand the facts of the case and in fulfilment of my duties as prescribed by Statute. |
Findings and Conclusions:
I have carefully listened to the evidence adduced in the course of two days of hearing. The fact of dismissal is not denied and the onus rests with the employer to demonstrate that the dismissal was fair and reasonable. The Complainant has worked in Insurance and Insurance Brokerage since leaving school at the age of eighteen. He has a wealth of experience and 30 years of contacts and industry knowledge. The Complainant has worked for many insurance companies in many parts of the country. In 2015 it suited him to come and work for the Respondent company as he was pleased to be working back in Thurles, a town he had happily worked in for some six years in an earlier part of his career. It speaks to his ability and high standing in this industry that the Complainant never had to have a job interview but was instead headhunted from one position to the next. The Respondent company was not that long established but was ambitious in what it wanted to achieve. There were two company Directors (PH and KB) one of whom gave evidence on behalf of the entity. The Company was eager to have the Complainant join them especially, it has to be said, when the complainant came with such a rewarding client base. The Complainant estimated that the income generated from his clients might have accounted for 25% of the income generated in the company when he first came to work there in 2015/2016. The Complainant had good contacts in all the big insurance agencies, and it was not long before their products were available through the Respondent. I would generally accept that the Respondent acquired some considerable value in taking the Complainant on as an employee. It is an unfortunate fact that the Complainant was prone to sporadic and debilitating bouts of depression. He was out of work for extensive period of time as a result of this. For example, he was out of work for three months in 2017 and was again out of work in the course of 2020 (from the February). The Complainant gave evidence that he felt very let down by the attitude of his employer and believed that there was a resentment on their part at having to carry the Complainant as an employee suffering from recurrent bouts of depression. The Complainant felt he had to point out that he was not paid sick leave or in any way supported by his place of work and that the loans that his Employer gave him only ever arose as he was financially decimated when he was out sick. The loans, I note, had to be paid back in full. There were I believe tensions between the complainant and the two Directors. In his evidence the Complainant described them as the worst of Employers, though I think that this might primarily have stemmed from how things subsequently unfolded. The Complainant had been out sick when the Covid pandemic started in 2020 and was declared fit to return to work which he proposed doing in August of 2020. The Complainant was obliged to meet with the two directors at their invitation in a local hotel on the 31st of August 2020. At this meeting the Complainant was advised that owing to the downturn in business he would be laid off for a period of time and that the Company was availing of the Government payment options which allowed the Complainant to go on to the PUP payment. The Complainant was shocked at this development as he had never been advised that there was any programme of lay off in operation in the workplace. Whilst he accepted in general term a downturn in business was likely he felt he was a senior employee and should not have been on lay off before others. I understand of 29 employees, 6 were laid off.
The Complainant cannot recall being told that the Respondent had compiled a Matrix to evaluate employees for the purpose of lay off selection though one has subsequently been provided. The Complainant remained on PUP payments for well over a year without it seems much if any communication from his Employer. It is a curious feature of this case that the Solicitors herein were communicating with one another more than the Employer and Employee were and it seems to me that the complainant must first have heard about the potential of Redundancy through the Solicitors communications through the months of October and November of 2021. Indeed, in the letter directly to the Employee from the Employer the impression is given that the Employer is only now addressing the issue of the Complainant’s future by reason of the exchange of Solicitors letters back and forth. In this letter dated the 22nd of November 2021, Mr. B states that the company is moving in a different direction towards Agricultural insurance and away, it seems from the commercial insurance – being the Complainant’s area of expertise. The Employer purports to attach a Redundancy selection Matrix for the Commercial Department which shows the competition (within the commercial department) lay between two individuals. As the Complainant scored 8 points and his opponent 10 he was put on notice of his role being on risk of redundancy. In his evidence the Complainant said that the process, if there was one, seemed to have a pre-determined outcome. He felt this was fait accompli and that it would never have withstood independent oversight. There were only three criteria – knowledge, skill and experience all of which, I do note, were vaguely defined. The marking he asserts made no sense and does not stand up to scrutiny. An obvious example of this – which I am bound to accept - is that the Complainant’s length of service and indeed experience in the field, does not appear to have to have given him an enhanced score against his co-worker. I am of the view that any Employer must devise a Redundancy selection Matrix which ensures that every effected employee is to be evaluated against a key set of relevant criteria which are to be applied fairly and consistently. I understand that the Respondent outsourced some of this work (preparation of a Matrix) which is why it seems surprising that the Matrix used seems so irrelevant. It is particularly notable when this Matrix is compared to the Lay off Matrix which had a full thirteen criteria against which employees were scored. I also find it telling that as the company was purportedly moving away from the area of work wherein the Complainant was most competent, the Complainant was not previously advised of that fact. The Complainant was left languishing on lay off for well over a year when he might usefully have used that time to upskill himself to be ready to return to his newly-focused workplace. I have some sympathy for the Complainant. He has found this place of employment to be unsympathetic to a mental health condition that he has sporadically had to deal with. On his own evidence this does not, in the past, appear to have been a particularly happy workplace for him. By November 2021 there is an undeniable sense that the Respondent is now using the circumstance of the pandemic to rid itself of an employee perceived to be difficult or undeserving. It is against this backdrop that the Complainant did not meaningfully engage with the Employer to see if there was any way to prevent his Redundancy. On balance, I am finding that the facts amount to an Unfair Selection for Redundancy and therefore to an Unfair Dismissal. The Respondent has not been able to demonstrate that it has acted fairly and reasonably. The process for redundancy selection is not transparent. It was operated so as to reduce the numbers against whom the Complainant was competing down to one other person. The process also attributed scores which made no sense, under headings which were vague. I am inclined to accept the contention that the outcome was a fait accompli. The Complainant was never a good fit with the Respondent Directors and an opportunity to have him not return to the workplace was exploited. Whilst I accept that there was some natural attrition within the workplace, I have to note that the Complainant was the only person to be made redundant out of this workplace. This, to my mind, does not lend support to the argument that the company was struggling. Also, while the business might have taken a significant downturn in the depths of Covid there is no evidence to suggest that by the time of this hearing the enterprise has not achieved its pre-pandemic turnover. The Complainant has given evidence that he has not sought (in any meaningful way) alternative employment. Whilst I understand that there is a period of recovery after the blow of being made Redundant, the onus is on the individual to demonstrate a concerted effort has been made to find alternative employment so as to mitigate any loss which arises. The Complainant continues to have a skillset, experience and knowledge which must give rise to employment opportunities.
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Decision:
Section 8 of the Unfair Dismissals Acts, 1977 – 2015 requires that I make a decision in relation to the unfair dismissal claim consisting of a grant of redress in accordance with section 7 of the 1977 Act.
Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977 CA-00047642-001 – The Complainant was Unfairly Dismissed, and I direct that compensation for financial loss in the amount of €10,000.00 be paid.
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00047642-002 - Withdrawn by the Complainant
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997 CA-00047642-003 – Withdrawn by the Complainant
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Dated: 20th February 2023
Workplace Relations Commission Adjudication Officer: Penelope McGrath
Key Words:
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