Complainant

Respondent

Parties

Eamon Colman  Killilea

Galway Metal Company Limited

Representatives

Terry  Killilea

 Ronan Daly Jermyn Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00038968-001

30/07/2020

Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994

CA-00038968-002

30/07/2020

The Complainant commenced employment with the Respondent on the 27/5/2010.  The Complainant was employed as a truck driver.  The Complainant worked with the Respondent on a full-time basis until 23/6/2020 when the Complainant was dismissed on the grounds of redundancy with six weeks’ notice. The Complainant received a weekly wage of €688.28 gross.

On the 30/07/2020 the Complainant referred two complaints to the Director General of the Workplace Relations Commission (WRC) pursuant to Section 8 of the Unfair Dismissals Act 1977 as amended, and Section 41 of the Workplace Relations Act, 2015 concerning a claim under Section 7 of the Terms of Employment (Information) Act 1994. The complaints were heard at adjudication hearing over two days on the 17/1/2023 and 28/2/2023. 

Preliminary Issue

The Complainant included in his submission purported transcripts of various telephone conversations that occurred between the Complainant, the Complainant’s wife Mrs. Killilea, Mr. Bride HR Manager and Mr. Casserly General Manager in June 2020 as part of the Respondent’s redundancy consultation process.  By way of letter dated 10/1/2023 the Respondent’s representative objected to the inclusion of the purported transcripts on the basis that the recordings were made without the consent of the parties being recorded which, it was submitted, amounts to a significant breach of the Data Protection Act 2018 and GDPR, accordingly it was argued, it was illegal to include the transcripts. It was further submitted that minutes were taken and furnished to the Complainant, therefore, he had an opportunity to comment on the minutes. The Respondent also objected to the added references in the purported transcripts seeking to impute commentary as to the “tone” applied.

It was further submitted by the Respondent’s representative that the Respondent objected to the inclusion of the purported transcripts on the basis that it was unnecessary, deceiving illegal and, therefore, they were inadmissible as evidence. These points were reemphasised at the hearing of the case. 

CA-00038968-001 complaint under the Unfair Dismissal Acts 1977

It is submitted on behalf of the Respondent that it has 50 years’ experience in the business of scrap metal recycling, de-pollution, the management of end-of-life vehicles, scrap metal collection and processing and other off site commercial services.

The Respondent denies any allegation and/or insinuation that the Complainant was unfairly dismissed.  In response to the allegation set out in the complaint form regarding the use of an “unfair selection matrix” and that the” selection process was predetermined subjective unfair and unlawful “ the Respondent strongly denies the Complainant’s claim that he was unfairly dismissed.

Genuine Redundancy Situation

It is submitted by the Respondent that the Complainant was fairly dismissed arising from the genuine redundancy of the Complainant’s role. The redundancy arose within the context of the impact of the Covid-19 pandemic upon the Respondent’s business.  It is submitted that the restrictive measures remained in place until the early summer in 2020 and that was the backdrop that gave rise to the need for the Respondent to restructure its business.

It is submitted that the Respondent’s business like most others, was deeply impacted by the effect of the Covid-19 pandemic. Exceptional measures had to be put in place to protect staff from a safety perspective, with reduction in attending staff and the implementation of social distancing. At the same time the Respondent had to function as a business which was still very much required (albeit at a lesser demand level) as a legitimate essential service, including as an essential service for health care and utility clients.

It is submitted that, by letter of the 23/3/2020, the Respondent communicated the potential impact of Covid-19 for staff regarding reductions in overtime, the implementation of short time, lay-offs, and the potential transfer between yards for some staff.  The Respondent was forced to avail of the support provided under the Revenue Commissioners’ Temporary Wage Subsidy Scheme (“TWSS”) which was applied to all of its staff upon its introduction on the 24/3/2020, together with a full top-up payment as encouraged under the scheme. As a further necessary step to secure staff employment a range of staff (for whom there was no work) were placed on temporary lay-off. The Complainant was notified of this in writing by letter of the 14/4/2020.

It is submitted that by the end of the second quarter of 2020 the Respondent’s turnover had fallen by 49%. It is submitted that the drop from the first quarter to the second quarter of 2020 alone amounted to a 29% fall.  It is further submitted that the position was not sustainable and the impact on operations was such that the Respondent was forced to consider proposals around the current roles, the required roles based on the projected level of business going forward and thus a resultant need to consider proposals for the redundancies.

It is submitted that the Complainant was one of a number of truck drivers whose role was made redundant following fair selection between the Complainant and other driver employees from amongst a pool of 13 truck drivers. It is submitted that the grounds of redundancy followed on from a full and fair consultation process, where the Complainant took the opportunity to robustly challenge and provide input into the process, both directly and via his legal advisors.

Application of selection criteria

It is submitted in regard to the process, that the Respondent’s HR Team and Management met to devise a method of selecting appropriate employees within the Complainant’s team of truck drivers who would be identified as at risk of redundancy. The Respondent determined that the fairest method of selection would be to put each employee in the selection pool through a matrix based on objective factual selection criteria where a total of 750 points was available.

It is submitted that as these were driver roles, the matrix was weighted heaviest in terms of the category of licences held (250 points). To ensure the future roles could meet the more flexible requirement of a site staffed by fewer employees, consideration was to be given to the experience gained by each of the truck drivers from job rotations within other roles within the Respondent’s other operations (200 points). The Respondent’s operations being absolutely safety critical in terms of the type of work, product and heavy machinery in use, consideration was to be given to the drivers’ health and safety compliance record (200 points). Finally, it was submitted that it felt only fair that some credit would also be attributed for length of service (100 points).

It is further submitted that the selection categories were objective and were based on the information factually available to the Respondent about the employees. Moreover, it is submitted that the selection matrix takes into account the requirements of the Respondent to retain employees within the truck driver pool with the necessary skills, licences, knowledge and experience required for the remaining roles.

Consultation Process 

It is submitted that the Respondent engaged with the Complainant in a full and fair consultation process which, arising from the circumstances of the pandemic, had to take place remotely.

The consultation undertaken consisted of the following: - the Respondent undertook a preliminary application of the 750 point selection criteria to identify the four at risk posts. By letter of 28 May 2020 the Respondent wrote to each of the four drivers confirming proposals which envisaged a reduction in the number of truck driver positions from 13 to 9 which included the Complainant.

It is submitted that the letter of the 28/5/2020 laid out the consultation process confirming that its purpose was to allow the Complainant an opportunity to provide his own input into the proposal, including the proposed selection criteria, so that same could be considered and inform any decision made. The Respondent committed within that correspondence to a 7-10-day meaningful consultation process.

It is further submitted that the Complainant’s then solicitors engaged in much correspondence with the Respondent regarding the proposed redundancies and selection criteria used.

It is submitted that the first consultation meeting went ahead between the parties on 4/6/2020. In attendance were the Complainant together with Mr Finbarr Bride and Mr Mark Casserly for the Respondent. The Respondent furnished the Complainant with the minutes of that meeting. Correspondence then issued from the Respondent to the Complainant dated the 4/6/2020 outlining in detail the selection matrix that had been applied in respect of the proposed redundancy for driver posts and the Complainant’s scoring under each heading which amounted to a scoring of 591 points placing the Complainant in the bottom 3rd position.

A second consultation took place on the 12/6/2020 and the notes of same were furnished to the Complainant. By letter of 15/6/2020, it is submitted by the Respondent, that the Complainant’s solicitors issued further correspondence providing further comment, input and challenge around the proposed selection matrix and underlying criteria and scoring of the Complainant. 

A final consultation meeting took place between the Complainant and the Respondent on 19/6/2020 and a copy of those notes were furnished to the Complainant. It is submitted by the Respondent that the issues raised by the Complainant with regard to the selection criteria and the matrix calculations were discussed and addressed in detail as can be seen from the notes of the meeting.

It is submitted that the Respondent gave consideration to all of the input of the Complainant and duly reached its decision to make the Complainant’s position redundant which was communicated by way of letter dated 23/6/2020.  Within that correspondence the Complainant was notified that as the Respondent could not identify any alternative positions available, the Complainant was notified of the redundancy arrangements and payments arising, and he was granted a right to appeal the decision within 5 days. The appeal process was outlined which consisted of outlining in writing the grounds of the appeal within 5 days.

Appeals Process 

The Complainant lodged his appeal by letter of 1/7/2020.  The appeal was determined by Mr Patrick Walsh, Managing Director. It is submitted by the Respondent that Mr. Walsh took the time to review all of the documentation and the Complainant’s various appeal grounds before issuing his determination by letter of 10/7/ 2020. It is submitted by the Respondent that each of the grounds of appeal were addressed in full by Mr Walsh who concluded, based upon his review of all the grounds of appeal, that “ A change to your scores must stand on its merits when assessed against the scores granted to other drivers. I am satisfied that the scores settled on were fairly and objectively assessed.” Mr Walsh therefore concluded that the appeal was not upheld.

Legal Submissions

The following is a summary of the Respondent’s legal position set out in their written submissions and put forward by the Respondent’s representative at the hearing.

It is submitted by the Respondent that the Complainant was fairly dismissed arising from the genuine redundancy of the Complainant’s role, in accordance with Section 6(4)(c) of the 1977 Act. In that regard, it is submitted that there are statutory grounds for genuine redundancy in this case, pursuant to Section 7(2)(b) and (c) of the Redundancy Payments Act, 1967. It is further submitted by the Respondent that there were 13 truck drivers, with 4 such posts proposed to be made redundant and reference was made to Section 6(3) of the 1977 Act.

It is submitted by the Respondent that in addressing the above subsections, the following is noted:-

a. None of the provisions at Section 6(2) of the 1977 Act (referred to at Sc 6(3) (a)) applied in the Complainant’s instance and that the Complainant did not put forward any evidence  to support any such claim.

b. There was no procedure relating to redundancy in place (as referred to at Sc 6 (3) (b)).

c. The Complainant was properly assessed in line with the selection criteria, in the same manner as all 13 truck drivers. The correspondence from the Respondent amply demonstrates the fair and objective assessment undertaken.

d. There was no unfair selection within the meaning of Section 6(3) of the 1977 Acts and the Complainant was accordingly fairly dismissed due to his position being redundant.

It is the Respondent’s position that the Complainant’s redundancy was carried out in compliance with best practice and in accordance with fair procedures. In this regard, Section 6(7) of the 1977 Act was referred to.

It is submitted that the Respondent acted reasonably and applied fair procedures in effecting the Complainant’s redundancy. The Complainant was afforded the opportunity to input and was also facilitated with the consideration of input furnished by his legal advisors at the time. It is further submitted by the Respondent that alternatives to termination of employment were considered by the Respondent, but the reality was that a number of truck driving roles were made redundant and there were therefore no vacancies.

It is further submitted by the Respondent that, subsequent to this process, later processes resulted in the redundancy of four other roles across the Respondent’s business. Accordingly, it is submitted that this fact, supports both the genuineness of the redundancy and the lack of alternative positions. The Complainant was afforded an opportunity to influence and participate in the decision, prior to the decision being made as to the termination of his employment.

In summary, it is the Respondent’s position that the Complainant was fairly dismissed in accordance with section 6(4)(c) of the 1977 Act, that the dismissal of the Complainant was a genuine redundancy and effected fairly. The Complainant was paid statutory redundancy payment, 6 weeks’ notice payment and a payment for all outstanding annual leave.

Summary of Evidence and cross examination of Michelle Kelly, Financial Controller 

Ms. Kelly gave evidence regarding the background to the Respondent’s business in metal recycling and described the customers as both domestic from farmers to semi state businesses.  Ms. Kelly stated that the business was deeply impacted by the effects of Covid-19. She stated that from mid-March 2020 there was a decrease in footfall to the yards. She further stated that the business was deemed an essential service, however the yards were closed to the public and could only collect from essential services.

Ms. Kelly stated in terms of a decrease in revenue that the Respondent’s turnover for Quarter 2 (Q2) fell by 49% in comparison to the figures for 2019 for the same period. Ms. Kelly stated that it was a very anxious time for the business and in March 2020 the Respondent availed of the TWSS for all employees. When asked what triggered the lay-offs in April 2020, she stated that they realised that the lockdown would now be longer than first anticipated. Ms. Kelly referred to an email dated 23/4/2020 which was produced at the hearing from herself to the DEASP stating that various employees (including the Complainant) had been advised to reapply themselves for the Covid-19 payment. Ms. Kelly stated that in order for the employees to get the Covid-19 payment they had to be off the books so they could claim it themselves.  In relation to a printout from the Complainant’s documents which had a cessation date for the Complainant of 13/04/2020, it was put to Ms. Kelly that the Complainant was asserting that this was evidence of a predetermined dismissal, she stated that it was a “temporary” finish date which applied to all 13 truck drivers.

Ms. Kelly stated that she was not directly involved in the redundancy process, but she did give Mr Bride and Mr Casserly details regarding length of service of all employees. Ms. Kelly confirmed that the Complainant would not have access to information relating to other employees start dates.

It was put to Ms. Kelly that in regard to the Complainant’s document (contained in the Complainant’s booklet where the names of employees were allotted to initials representing their names) according to their understanding of the length of service of the 13 employees where the first employee was identified as “Employee A” and was allotted the initials “PB”  and “Employee E” was allocated the initials “PC” and the length of service allocated to these two employees was incorrect.  Ms. Kelly replied that “Employee A” is “PC” and “Employee E” is “PB” based on her knowledge of their respective length of service. She further confirmed that a document prepared by the Respondent for the purposes of the hearing dated 22/5/2020 had named all employees correctly.

It was put to Ms. Kelly that one of the flaws identified by the Complainant was that the pool of workers should have been broader to include the Limerick site. In reply she stated that the Limerick yard was a separate legal entity and there were no alternative roles available there as  lay-offs had to be made at that yard also.

It was put to Ms. Kelly in cross examination that during a conversation she had with the Mrs. Killilea at that time regarding a Revenue Online Record (ROS) statement that Ms. Kelly stated that on their internal system an employee could be recorded as having a temporary or permanent finish date as either box could be ticked. Ms Kelly disputed this and stated that she had no recollection of stating that. It was put to Ms. Kelly why were the Complainant’s start and finish dates the same on the printout and she stated this was to facilitate a once off payment in July 2020 of the redundancy payment.

In relation to the Limerick yard Ms. Kelly confirmed that it was always a different entity, no drivers were laid-off there. She confirmed that a yard operative was let go and that there were no alternative positions available in Limerick. She further stated that the Limerick yard had a separate set of accounts and payroll system.

Ms. Kelly confirmed in cross examination that in relation to the Complainant’s representative document where all the names of employees were allotted to initials representing their names based on their understanding of the 13 employees’ length of service that all names are correct apart from two “Employee A” and “Employee E”.

Ms. Kelly confirmed, in reply to a question from the Adjudication Officer that she had never witnessed such a dramatic downturn of 49% in the revenue of the business in Q2 2020 nor had she witnessed such a dramatic reduction in the supply of materials coming into the yard. 

Summary of Evidence and cross examination of Finbarr Bride, HR Manager 

Mr Bride confirmed that he is the HR Manger for the Respondent and was in the role during Q1 and Q2 of 2020. He confirmed that this was not the only redundancy process undertaken by the Respondent as 8 employees in total were made redundant, four drivers, two general operatives one machine driver and an account assistant.  

Mr. Bride confirmed that the letter of 4/6/2020 from himself, on behalf of the Respondent, to the Complainant was the first explanation of the selection criteria matrix.  He further stated that he identified the 4 drivers who were placed at risk of redundancy by calculating their scores on the basis of using the marks from the selection matrix. 

He confirmed that they ran the scores for all 13 drivers and then identified the bottom four drivers based on their matrix scores and only engaged in the consultation process with those four drivers.  Mr Bride confirmed that the process started by way of letter dated 28/5/2020 which was sent to the Complainant and read into evidence.  He confirmed that the process was undertaken by himself and Mr Casserly, General Manager. He confirmed that he received two letters from the Complainant’s solicitor dated 3/6/2020 and 4/6/2020. 

In relation to the minutes of the meeting dated 4/6/202, it was put to Mr. Bride that the Complainant is claiming that the minutes are incorrect in relation to a comment allegedly made by the Complainant which is recorded in the minutes as “Collie also asked that we forward a copy of redundancy package available”. Mr. Bride replied that the Complainant asked for redundancy details, and he replied at that time that no details were available then. 

Mr. Bride gave evidence dealing in detail with each separate criterion of the selection matrix which included the following; - length of service (100 points) licence type (250 points) health and safety compliance (200 points), job rotation to operations (200 points) out of a maximum 750 points.

Mr Bride made the following points in relation to the above criteria: -

·       Re: job rotation to operations - this allowed points to be allocated to those who had a licence to drive machines and trucks.

·       Re: length of service - only 100 points allocated if greater points awarded, or this criterion alone was applied this would not fulfil the business needs of the Respondent.

·       Re: licence type – this was confirmed as the most important criteria as 250 points awarded for both a rigid and artic licence as drivers were needed who could drive both. 

·       Re: health and safety compliance - he stated that, as the public are in the yard and the Respondent deals with heavy machinery, the Respondent needs to be very health and safety conscious. He confirmed that the Respondent keeps records of all health and safety incidents as required by law, the Respondent has a health and safety department and must report all incidents.

Mr. Bride confirmed that the Complainant lost 50 points under the heading of health and safety not as a result of a disciplinary sanction which he had received for a health and safety incident but due to the fact that he had a health and safety incident/record. Mr Bride confirmed that even though the heading on the column refers to “H&S Disciplinary” the Respondent only scored on the basis of health and safety incidents/record and did not consider disciplinary sanctions. He confirmed that other employees lost marks here, for example Employee M lost marks for a health and safety incident but he was not subject to a disciplinary sanction for that incident and the same applied to Employee L.  

It was put to Mr. Bride that the Complainant alleges that the matrix criteria were titled against him which he denied. He stated if that was the case the Respondent could have given greater weighting to length of service as a result of which the Complainant’s score under this heading would have been lower.

M. Bride confirmed that the Complainant lost 50 points under health and safety as a result of a very serious health and safety incident which could have resulted in the loss of life. He described the incident in question when the Complainant drove out of a yard in 2016 with his crane still up for several miles knocking telephone poles, crashed into a bridge as a result the truck fell onto van parked nearby. He stated that the person in the van just got out in time before the truck fell on to it.  He stated that he understood that criminal charges were taken against the Complainant for dangerous driving.

Mr. Bride confirmed that the Complainant lost most of his points in relation to the criterion of length of service. In relation to the criteria of job rotation to operations he confirmed that the Complainant had a licence to drive bigger machines, but it was out of date. He confirmed that there were no available alternative positions in the Limerick yard and one machine driver was let go there. He further confirmed that the Respondent needed to design the matrix relevant to the business needs and aimed to designate the remaining jobs to those most suitable to the positions.

Mr. Bride confirmed in relation to the criteria of job rotation to operations those employees with a valid licence for using machines and who had experience doing that work got 200 points. Mr Bride stated that he was satisfied that the minutes of the meeting of 19/6/2020 were an accurate record of the meeting. Mr Bride confirmed again that there were no other positions available as alternatives to redundancy.

Mr. Bride confirmed that the only person who had access to work records was Ms. Kelly and that she provided the information for all the employees regarding their length of service. Based on the table of information provided in the Complainant’s documents Mr Bride confirmed that the Complainant’s representative had incorrectly identified two employees “Employee A” and “Employee E”, based on their knowledge of the points awarded under length of service.  Mr. Bride stated that he stood over the points awarded under the selection matrix to each employee and confirmed points were awarded based on the Respondent’s records.

In reply to a question from the Adjudication Officer, Mr. Bride stated that the use of the word “disciplinary” in the heading of the column in the matrix was a mistake and that points were only considered from a health and safety compliance perspective and deductions were made for non-compliance in this regard.  

In cross examination Mrs. Killilea put it to the witness that the reference at the end of the minutes dated 4/6/2020 is incorrect as the Complainant had referred to a redundancy proposal not “package” as stated, which he understood to mean alternatives to redundancy. Mr. Bride replied that his understanding from what the Complainant said at the meeting was that the Complainant was seeking details of a redundancy proposal and that wasn’t prepared yet. Mrs. Killilea put to the witness that the reference at the 2nd paragraph in the minutes dated 4/6/2020 where it is stated that there were 4 truck drivers positions surplus was incorrect as there was no mention of truck drivers during the meeting. Mr. Bride replied that he disagreed with Mrs. Killilea’s recollection and that he stood over the minutes which he stated were accurate.

Mrs. Killilea put various other alleged inaccuracies in both sets of minutes dated 4/6/2020 and 12/6/2020 to Mr. Bride who replied that the minutes were a summary not a transcript of both meetings and that he stood over the minutes and refuted any alleged inaccuracies. In relation to a question regarding the Complainant’s score of 150 under job rotation to operations, Mr. Bride confirmed that the mark was based on relevant experience and a valid licence and that information was provided to him by Mr. Casserly.

Mrs. Killilea put it to the witness that the Complainant lost 50 marks under the heading of “H&S Disciplinary” and that at the time of the Complainant’s incident no one warned him that this incident would be brought up again as a health and safety issue. In reply Mr. Bride confirmed that the Complainant lost marks for a health and safety incident/record and not for a disciplinary matter. As health and safety matters were considered very important, therefore where noncompliance was found, marks were deducted accordingly. This system also credited those who had a clean health and safety record. 

Mrs. Killilea put it to Mr. Bride that in relation to two other employees listed as Employee D and H that it was common knowledge in the yard that both employees had serious health and safety incidents who were given full marks under this heading. Mr. Bride stated in response that he based the marks on records shown to him and he was satisfied that that neither employee had a health and safety record.

Mrs. Killilea put it to Mr. Bride that the Complainant will say that he was not the subject of a criminal charge as alleged by Mr. Bride. 

Summary of Evidence and cross examination of Mark Casserly, General Manager

In reply to a question regarding what alternative positions were considered Mr. Casserly stated that all three yards were impacted by the pandemic by less work, and they had the same number of employees. Therefore, it would not be appropriate to place a worker from one yard into another yard as there were no vacancies between yards. Mr. Casserly further stated that it was not common practice for drivers to move between yards and there were 9 drivers in the Limerick yard.

Mr. Casserly stated that the Respondent had three yards in Limerick, Galway and Mountmellick and all yards were in the same position. He stated that he considered a three day week as an alternative but it was not feasible. It was put to Mr. Casserly that the Complainant had suggested that he could be used as a machine driver. He replied that there were no machine driver positions available. Mr. Casserly stated that all alternative options were considered.

In reply to a question from the Adjudication Officer, Mr Casserly stated that his belief was that health and safety records are held for a period of 7 years.

Mr. Casserly stated regarding the assertion that the Complainant should have received 200 points on job rotation on the basis that he had yard experience in Limerick and his licence was just out of date, that he was credited for his machine experience in the yard.

Mr. Casserly clarified, regarding the Complainant’s scoring under job rotation, that credit was given to machine experience in the yard and in the docks reflecting the different experience in both areas. He stated that the Complainant had lost 50 points in this regard as he had no machine experience in the docks and that he did not lose points because his licence was out of date.

Summary of evidence and cross examination of Patrick Walsh, Managing Director

Mr. Walsh confirmed that he is the Managing Director and owner of the business. He referred to the Complainant’s health and safety incident which he lost 50 marks as a result of,  as a serious incident, and the sanction he received was one week’s unpaid suspension.

Mr. Walsh confirmed that he dealt with the Complainant’s appeal and read into evidence the Complainant’s grounds of appeal set out in a letter dated 1/7/2020. He confirmed that it was an appeal based on the papers and a five-day extension was granted to the Complainant. He stated that he considered all evidence prior to issuing his outcome which was set out in a letter dated 10/7/2020. This detailed five-page letter was read into evidence by Mr. Walsh. It was put to Mr. Walsh that, if the Respondent wanted to remove the Complainant from his position, it could have used length of service as the sole criterion. Mr Walsh agreed with this and stated, “yes, he would have been gone”. He confirmed that he did not receive any challenge to the appeal decision.

In cross examination Mrs. Killilea put to Mr. Walsh that the Complainant will say that it was common knowledge within the yard that Employee H and D that both had serious health and safety incidents and they were not deducted marks on this basis. Mr Walsh disagreed with this. It was put to Mr. Walsh that the Respondent hired a truck driver after the Complainant’s redundancy and that he was doing the same job as the Complainant. Mr Walsh confirmed that a truck driver was hired on the 8/2/2021 as a grab truck driver which, he stated, was a different role as this driver drives grab trucks predominantly and occasionally drives other trucks. He further confirmed that a grab truck is a different truck to what the Complainant used to drive and after the incident in 2016 the Complainant did not drive a grab truck again.

Mr. Walsh confirmed other positions were made redundant and that two labourers left, and their positions were not filled.  It was put to Mr Walsh that the Complainant could have worked as a labourer as an alternative position in reply he stated that no labourers were hired after the redundancy. 

In reply to a question from the Adjudication Officer regarding what appeal procedure was followed and whether this process was set out in the employee handbook, the Respondent’s representative agreed to forward the appeal process applicable at the time of the redundancy. Mr Walsh stated that he had no prior involvement with the case before receiving the appeal, and the appeal was on the papers in accordance with normal practice.

Closing remarks

The Respondent’s representative stated in summing up his case that a genuine redundancy situation arose due to the downturn in business as a result of the pandemic. The Respondent took the first step in identifying the number of positions to be made redundant and the correct pool of workers. The Respondent then engaged in a consultation process involving three meetings. He stated it is accepted by Mr. Bride that the minutes are not a verbatim note of each meeting but a summary of the meetings referring to the main issues. Throughout the process the Complainant received extensive legal advice and the appeal process was instigated by the Complainant’s solicitor.

The Respondent’s representative stated that the evidence presented by the various witnesses shows that the dismissal related wholly and mainly to a redundancy situation and, therefore, the Respondent has rebutted any presumption of an unfair dismissal. In relation to the requirement set out in Section 6(3) of the Act of 1977, he stated that there was no evidence provided by the Complainant linking the selection criteria to any ground set out under Section 6 (2) of the Act as required.

The Respondent’s representative stated in relation to the allegation that the decision was predetermined that, if that was the case the Respondent could have just operated the LIFO criterion alone and the Complainant would have been made redundant on that criterion. He further stated that, in relation to alternative positions, there were no other positions available and three further roles were made redundant. 

CA-00038968-001 complaint under Section 7 Terms of Employment (information) Act 1994

The Respondent on the first day of the hearing conceded this claim and admitted that the Complainant was not provided with a statement setting out his terms and conditions of employment either at the start or at any time during his employment.

Preliminary Issue

Mrs. Killilea on behalf of the Complainant sent a letter dated 16/1/2023 defending the inclusion  of the purported transcripts of the meetings on the basis that per the provisions of the Postal Packets and Telecommunication (Regulation) Act 1993 if one party consents to the recording it is not illegal to record a telephone conversation, therefore the transcripts are admissible as evidence. At the hearing Mrs. Killilea submitted that it was necessary to admit the purported transcripts into evidence on the basis that the minutes from the various meetings were subjective and that there were significant discrepancies and inaccuracies between the minutes and the Complainant’s recollection of what was said at the meetings.  

CA-00038968-001 complaint under the Unfair Dismissal Acts 1977

The Complainant in his complaint form outlines that he was “unfairly selected for redundancy in circumstances where an unfair selection matrix was prepared by my employer that was prejudicial to me. I believe that the selection process was predetermined, subjective, unfair and unlawful”. The Complainant submits that the four categories of criteria relied upon for the selection matrix were unfair and the process that the Respondent utilised in effecting his redundancy was predetermined.

The Complainant expanded upon this argument in his submission and stated that his greatest concern was the score of 150 points he received under the heading of “H&S Disciplinary”. The Complainant submits that he lost 50 points in relation to an accident that happened in 2016 where he received a disciplinary sanction and was told at the time that it would be wiped off his record after a year. It is submitted by the Complainant in his submission that “Finbarr said it was dropped off the records, but for the purposes of the matrix they used it because the matrix was what they went by. These 50 points should not be taken and it is extremely discriminatory towards Colie, besides the fact that they blatantly used an incident in 2016 which was supposed to be removed from his file in 2017 and should never have been put into consideration in the first place.”

It was further submitted in relation to the “Length of service” heading in the selection matrix that “as it is common knowledge within Galway Metal which employee has the longest service and which employee has the shortest, we can safely presume their identity – irrelevant of how the scoring system was devised – for now.”  Accordingly, the Complainant’s representative included  new tables “Tables 4 &5” in his submission and inferred the identity of those employees based on his knowledge of length of service and, therefore, allocated different points to various employees under the heading “Job Rotation to Operations” based on their knowledge of those employees’ experience under this heading.  It is stated, therefore, that “If we also highlight (green) Employee F in the same category, it is commonly known that this employee has indeed NO machine experience in Galway Metal and should not be allocated 150 scoring points at all.”   Accordingly at Table 5 in the submission the points are recalculated with 50 points deducted from Employee F thus reducing his overall score to 576 and with the 50 points allocated to the Complainant under the “H&S Disciplinary” heading giving him a total of 641 thus placing him higher than Employee F and out of the bottom 4 employees.

The Complainant submits that this process highlights his concern that the selection matrix and process was predetermined as it was designed to allocate points to some employees in order to place specific employees in the bottom four places. The Complainant’s representative further set out another table “Table 6” with the identities disclosed by way of the initials of all 13 employees provided in the matrix based on their knowledge of their length of service “As everyone knows pretty much the length of service for everyone else, this leads to then aligning the scoring in the other categories to each of the 13 truck drivers. “

It is submitted by the Complainant that “There was no fairness or transparency shown during the process and we had to break down the matrix ourselves.” It is stated in the submission that the Complainant rejects in its entirety the matrix as “It is biased, discriminatory and unjust. “

In relation to the consultation process, it is submitted that there was no meaningful engagement with the Complainant.  Further it is submitted that no possible solutions, or other options were provided by the Respondent. In this regard it is submitted that a three day week or a “a week on week off” could have been considered and also letting someone go in the Limerick yard based on the Complainant’s seniority and job rotation experience.

It is further submitted that the “matrix is supposed to be designed with input from employees” and then it is determined which employees fall low in scoring. It is submitted that the Respondent reviewed all the employees first and then designed the matrix.

It is further submitted that the category of “H&S Disciplinary” was unfair and the category was put in “to trap Colie”. It is submitted that he was told that the disciplinary letter was taken off his file but for the purposes of the matrix it wasn’t and was added back in.

Summary of evidence and cross examination of Mr Eamon Killilea, the Complainant

Mr. Killilea stated that he started with the Respondent in 2010 as a truck driver. He also stated that he worked on the machines/metal handlers. Mr. Killilea stated that he was transferred to the  Limerick yard in 2012 not due to a shortage of work but as a result of a  driver in Limerick leaving, he drove trucks and machines in the yard.

Mr. Killilea stated that he returned to the Galway yard in 2015 and was driving grab trucks. He described how the accident occurred in 2016 as a result of which he obtained a health and safety record. He stated that as it was dark when he left the yard with his crane up high and consequently hit a bridge which caused the truck to fall over onto a van.  He got concussion as a result of the accident and reported it to Mr. Casserly.

Mr. Killilea stated that he was charged with careless driving and received a €250 fine from the District Court. He confirmed that he did not receive a criminal conviction for the charge.  Mr. Killilea read into evidence a letter from Mr  Bride dated 25/11/2016 regarding the sanction he received as a result of the incident. Mr. Killilea stated that he was told by Mr. Casserly that the final written warning would be wiped from his file after a year and stated no one told him it would be removed as a disciplinary but would remain as a health and safety issue.

Mr. Killilea stated that in relation to the minutes of the 4/6/2020 that he never asked about a redundancy package but referred to what the proposal was. His understanding of proposal was in relation to alternatives such as changing yards or other work. He stated the phone call lasted about three minutes.  Mr. Killilea stated that at the meeting of the 12/6/2020 there was no mention of health and safety issues and he understood this heading to mean disciplinary issues. He confirmed that Mrs. Killilea was also on this call.

When asked did he believe there had been a genuine discussion about alternative positions, Mr. Killilea stated “no I was just told this is it”. Mr. Killilea stated that at the meeting of 19/6/2020 that this was the first time that a clear distinction was made between disciplinary and health and safety issues. He also stated that parts of the conversations were not reflected in the minutes. He was told by Mr. Bride that “the matrix is the matrix” and that he would not be changing his points under the matrix heading of “disciplinary and health and safety”.

In reply to a question about his conclusions regarding the consultation process he stated that it didn’t matter what he said as “their mind was made up”.

Mr. Killilea stated that he was transferred to Limerick because a driver left in Limerick not because there was no work for him in Galway. The Complainant’s representative referred him to “ Table 1” of their documents regarding the driver selection matrix and put it to Mr. Killilea that the allocation of points was incorrect in relation to the headings of length of service and health and safety of various employees as listed which he agreed with based on his common knowledge of events in the yard.   

Mr.Killilea stated that, in relation to the evidence of Mr. Walsh regarding alternative positions, that two truck drivers were hired after the Complainant was made redundant. He also stated that Mr Walsh was incorrect when he stated that he didn’t drive a grab truck again after 2016 as he did drive a grab truck for a while after the accident in 2016. Mr. Killilea stated that the selection process was predetermined as any truck driver whose truck was brought back to the yard while they were on lay-off were in the bottom four of the matrix which happened before the matrix selection process was designed.

In cross examination it was put to Mr. Killilea that the points awarded for length of service for the purposes of the matrix were  based on the HR records of each of the employees and therefore Mr. Killilea’s recalculation of the points based on his knowledge of the relevant employees was incorrect, which Mr. Killilea disagreed with. It was put to Mr. Killilea that the most points were awarded under the heading of “Licence” where he scored 250 points, the maximum, which was a prejudice in his favour. Mr .Killilea did not comment. In relation to the points awarded under the heading of “Job Rotation to Operations”, Mr. Killilea confirmed that he did not have experience of working in the docks.

Mitigation   

Mr. Killilea stated that he commenced in another job on the 14/12/2021 and is earning €600 gross per week. He stated that he applied for jobs on jobs.ie. He also called a number of places looking for work. In total he stated he made 4 phone calls to various companies seeking work.

Summary of evidence and cross examination of Mrs. Killilea

Mrs. Killilea stated in evidence that she was on all the calls with her husband during the consultation process. In relation to the meeting of the 4/12/20 she stated it was very short and at that meeting Mr. Killilea referred to a redundancy proposal not a package as stated in the minutes. Mrs. Killilea stated that she objected to the minutes of the meeting of 4/12/20 at the meeting of  12/6/20 and the inference to a redundancy “package” as noted in the minutes. Mrs. Killilea stated that she objected to this reference as it gave the impression that Mr. Killilea was looking for a redundancy package when he wasn’t.

Mrs. Killilea stated that the first time that they fully realised that under the heading “Disciplinary and Health and Safety” related to health and safety and not disciplinary was at the third meeting on the 19/6/20. She further stated that all the time it was referred to as disciplinary and not health and safety and at no time was Mr. Killilea told that his health and safety record would be used against him. Mrs. Killilea stated that she wanted the 50 points deducted under this heading put back to him as he was never warned that the health and safety incident would remain and that Mr. Killilea should have been awarded 200 points. 

When Mr. Bride stated that “the matrix is the matrix”, her interpretation was that it can’t be changed. At the meeting of the 19/6/20 she challenged the minutes of the previous meeting as inaccurate and not reflecting what was fully said.

Closing remarks

Mrs. Killilea on behalf of the Complainant in her summing up stated that the redundancy was used as a “guise” and that the Complainant was unfairly dismissed.  It was further submitted that the matrix was devised to retain certain employees who were not there as long as other employees. It was argued by Mrs. Killilea that in regard to two employees in particular who it was submitted were excellent workers which the Respondent didn’t want to lose, therefore this is the reason why LIFO was not used as the sole criterion. It was further stated that the selection matrix was used as a “guise” to get the last four employees on the selection matrix out of the company.  In conclusion it was stated that the consultation process was rushed, and very little time was provided for it.

Mrs. Killilea, on behalf of the Complainant, also stated that the reference to the Complainant being subject to a criminal charge was misleading and a slander on his character.

CA-00038968-002 Complaint under Section 7 of the Terms of Employment (Information) Act 1994 

It was submitted that when the Complainant started his employment in 2010, he was never given a statement of his terms and conditions nor subsequently provided with such a statement.

Preliminary Issue

Mrs. Killilea on behalf of the Complainant submitted that it was necessary to admit the purported transcripts of three telephone conversations that occurred between the Complainant, Mrs. Killilea  Mr.  Bride and Mr. Casserly during June 2020 based on significant discrepancies between the minutes as furnished by the Respondent and her recollection and that of the Complainant of what occurred at the meetings. Reliance was placed on the provisions of the Postal Packets and Telecommunication (Regulation) Act 1993 which, it was submitted allows the recording of such telephone conversations once one party (the Complainant) consents to the recording.  The Respondent’s representative strongly objected to the admissibility of the transcripts for the reasons set out above.

This matter was raised as a preliminary issue at the start of the hearing. It was confirmed by both representatives that all parties who were privy to the three telephone conversations were present at the hearing and would be giving evidence under oath.  At the outset of the hearing, I informed the parties that I was reserving my position regarding the inclusion of the purported transcripts based upon my understanding of the laws of evidence whereby oral testimony under oath is regarded as the best and most credible form of evidence. I noted the limited evidential value of the purported transcripts and that all parties who were privy to the telephone conversations would be giving evidence under oath at the hearing. Accordingly, I informed Mrs. Killilea and the  Complainant that all alleged inaccuracies in the minutes could be put to the relevant witness by way of cross examination.  I further stated that in the event a conflict arose regarding what was said at the meetings which could not be resolved by oral evidence or by reference to the minutes that I would review the matter once I had heard the evidence of the parties.

Having the benefit of the sworn evidence of all parties who attended the meetings and the cross examination of Mr. Bride, and Mr. Casserly, taking into account the limited evidential value of the transcript recordings, I do not consider it necessary to review the transcripts.

CA-00038968-001 complaint under the Unfair Dismissal Acts 1977

In reaching my decision in this case I have had regard for the evidence adduced at the hearing and both written and oral submissions tendered by the parties.

Mrs. Killilea, on behalf of the Complainant,  submits that the Complainant was unfairly dismissed by the Respondent on the basis that the redundancy and selection process was a “guise” to unfairly dismiss the Complainant. The Respondent firmly rejects this assertion.

The relevant law 

Section 6(1) of the Unfair Dismissal Act 1977 as amended (the Act) provides that ‘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 6(3) of the Act provides in the relevant part:

“(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 [as amended by the Industrial Relations Act 1990], 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.”

Section 6(4) of the Act provides that a dismissal shall be deemed not to be unfair ‘if it results wholly or mainly from one or more of the following:

… (c) the redundancy of the employee.’

Section 6(6) of the Act places a strict burden of proof on the Respondent to prove compliance with Section 6(4).

Redundancy is deemed for the purposes of the Act to be fair ground to dismiss an employee if the Respondent can demonstrate that the situation giving rise to the dismissal complies with one of the scenarios provided for at Section 7(2) of the Redundancy Payments Act, 1967 as amended (the 1967 Act) .

Section 7(2) of the 1967 Act provides in the relevant parts as follows:-

S.7(2) 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) 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 hence forward be done in a different manner for which the employee is not sufficiently qualified or trained, and/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 henceforth be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained.’

In Panisi v JVC (Europe) [2011] IEHC 297, Mr Justice Charleton in the High Court held:

‘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 … In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as s.7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned.” Redundancy, cannot, therefore be used as cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age-related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.’

Further the High Court in Panisi held:

‘It may be prudent, and a mark of a genuine redundancy, that alternatives to letting an employee go should be examined… Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer.’

In respect of fair assessment for selection, the EAT in Boucher v Irish Productivity Centre [1994] ELR 205 held:

‘The Tribunal determined: a) the onus is on the employer to justify the selection of the claimants and each of them for redundancy and b) that in the absence of section 6(3)(b) applying that the dismissals must be considered under section 6(1) and c) that the general redundancy situation in the absence of section 6(3)(b) applying does not deny the individual employee the right to be fairly assessed for selection. “

Relying on the above decision, Ryan in Redmond on Dismissal Law 2nd Edition 2017, states that “Even if s 6(3) does not apply, the onus is on the employer to justify selection of employees for redundancy and the dismissals will be considered under s 6(1) of the 1977 Act. “

I refer to the comments of an Adjudication Officer who stated in the case ofJane Burton v Knights of Old Group ADJ 00030358 “It is established that once an employer can show that a redundancy situation arose, any selection criteria applied should not be second-guessed so long as they are rational and objective (and in compliance with section 6(3) of the Unfair Dismissals Act).”

I heard a substantial volume of evidence during the hearing days and was provided with a considerable quantity of documents and submissions. I have taken time to review all the submissions and evidence both written and oral.  I am not required to provide a line for line rebuttal of the evidence and submissions that I have rejected or found superfluous to the main findings. 

In this case I am required to examine the facts to address the following key questions; -

1)      Did a genuine redundancy situation exist?

2)      Did the Respondent fairly assess the Complainant for selection for redundancy? 

3)      Was the redundancy conducted in a fair and reasonable manner?

Genuine Redundancy Situation

The Respondent has submitted that four driver roles out of a pool of 13 were required to be made redundant as a result of a significant downturn in revenue caused by the impact of the Covid-19 pandemic on the Respondent’s business. 

Ms. Kelly, the Financial Controller with the Respondent gave cogent evidence regarding the significant impact upon the Respondent’s business as a result of the restrictive measures introduced due to the Covid-19 pandemic. I accept the evidence of Ms. Kelly who stated that the Respondent’s turnover for Q2 2020 fell by 49% in comparison to the figure for 2019 for the same period and that she had not witnessed such a dramatic reduction in the supply of materials coming into the yard.  I accept the evidence of Ms. Kelly who stated that in March 2020 the Respondent availed of the TWSS for all employees and that a significant number of staff were required to be placed on lay-off (including the Complainant) in April 2020.

I note that the Complainant’s representative at the hearing asserted that this was not a genuine redundancy situation. However, no evidence was relied upon to support this assertion.

I am satisfied, based on the submission of the Respondent and evidence of Ms. Kelly regarding the downturn in revenue in Q2 2020, that a genuine redundancy situation existed in June 2020 requiring four driver roles to be made redundant.

Fair selection process / fair and objective selection criteria

It was submitted by the Respondent that the fairest method of selection would be to put each employee in the selection pool (identified as the truck driver team comprising 13 truck drivers) through a matrix based on objective factual selection criteria. As a result, the Respondent devised the selection matrix specific to the driver group under four different headings where a total of 750 points was available. 

In regard to the correct pool of employees, I note that one of the alleged flaws identified by the Complainant’s representative was that the pool of workers should have been broader to include the Limerick yard. I accept the evidence of Ms. Kelly who stated that the Limerick yard was a separate legal entity, with a separate payroll system and accounts. Accordingly, I find that the correct pool of employees, comprising 13 truck drivers from the Galway yard were correctly identified.

It is submitted by the Respondent that, as these were driver roles, the matrix was weighted heaviest in terms of the category of licences held (250 points) and I note the rationale and points for each heading in the selection matrix as set out above.

I note that the Respondent sent a letter to the Complainant dated 4/6/2020 after the first consultation meeting setting out each heading with maximum available points and an explanation of each heading in addition to the “Driver selection Matrix” table with the Complainant’s scoring and all other 12 employees identified by way of notation “Employee A -  Employee M”. I note that in this letter under the heading of “Health and Safety Compliance” this was explained as “(200 for a satisfactory H&S compliance record, points deducted accordingly for serious H&S breaches) “. However, in regard to the “Driver selection Matrix” table the same heading is stated as “H&S Disciplinary” where the Complainant received 150 points.  

I note the evidence of Mr. Bride who confirmed that the Respondent keeps records of all health and safety incidents as required by law, that it has a health and safety department, and all incidents must be reported. I accept the evidence of Mr. Bride when he stated that the Complainant lost 50 points under the heading of “H&S Disciplinary “ as a result of a health and safety incident which occurred in 2016 which resulted in a record,  and not as a result of a disciplinary sanction which he had received for the same incident.  I accept the evidence of Mr. Bride who confirmed that, even though the heading on the column refers to “H&S Disciplinary”, points were only deducted on the basis of health and safety incidents/record, as explained in the letter dated 4/6/2020, and that no employee lost points due to a disciplinary sanction. I further accept the evidence of Mr. Bride that other employees lost marks under this heading, for example Employee M lost marks for a health and safety incident but he was not subject to a disciplinary sanction as was Employee L.

The Complainant submits that the selection criteria used by the Respondent were unfair and prejudicial and the selection process was predetermined. The Complainant submits that his greatest concern was the score of 150 points he received under the heading of “H&S Disciplinary”. The Complainant submits that he lost 50 points in relation to an accident that happened in 2016 when he received a disciplinary sanction and was told at the time that it would be wiped off his record after a year. It was stated by the Complainant that he was never advised that this matter would be used against him in relation to a health and safety issue and these points should not have been deducted.

I note the Complainant’s evidence that at the meeting of the 12/6/2020 there was no mention of health and safety issues and he understood this heading to relate to disciplinary issues. I accept the evidence of the Complainant when he stated that he was told by Mr. Casserly that the final written warning that he had received in 2016 would be wiped from his file after a year and that no one told him it would be removed as a disciplinary warning but would remain as a health and safety issue. I accept the evidence of Mrs. Killilea, which was confirmed by the Complainant, who stated that the first time herself and the Complainant fully realised that the heading “H&S Disciplinary” related to health and safety issues not disciplinary issues was at the third meeting on the 19/6/20. Albeit I note the minutes of the second meeting dated 12/6/2020 which suggest that it was explained at this meeting that the heading related to health and safety issues only.

I can appreciate how the Complainant and Mrs Killilea had some level of misunderstanding regarding the 50 points deducted from the Complainant under the heading “H&S Disciplinary” and how they misunderstood the nature of this category given the use of the word “Disciplinary” in the title. I note the evidence of Mr. Bride who stated that the use of the word “Disciplinary” in the title was a mistake and that points were only considered from a health and safety compliance perspective. 

Notwithstanding this misunderstanding, I accept the evidence of Mr. Bride who stated that the Complainant lost 50 points in this category because he had a serious health and safety incident in 2016 which resulted in a health and safety record and not as a result of the disciplinary sanction he received stemming from this incident.  The evidence of Mr. Bride is supported by the minutes of the 2nd meeting dated 12/6/2020 when this was stated clearly to the Complainant: -

“ECK queried his score on the H&S area, FB confirmed that it was to reflect a serious incident that Colie had been involved in. ECK asked why it had not come off his record after 1 year as agreed at the time. FB explained that it did come off his record with regard to any further disciplinary procedures, however when the company were devising their selection matrix it considered H&S compliance to be critical and therefore ECK cannot receive the same points as an employee with an excellent record of H&S compliance.”   

I accept the evidence of Mr. Bride that the Respondent is required by law to document and report all health and safety incidents and that, given the nature of the Respondent’s work, health and safety compliance is of critical importance. Accordingly, I am satisfied that given the nature of the Respondent’s work, this selection criterion was fair and reasonable, and points were deducted from the Complainant on a reasonable basis for non-compliance stemming from a serious accident in 2016. I am further satisfied that all the employees who lost points in this category including the Complainant, Employees L and M, did so on the basis of a health and safety incident/record and not on the basis of a disciplinary sanction.  

In regard to the Complainant’s challenge to the points awarded to other employees under the heading “Job Rotation to Operations”, in particular “Employee F” who was awarded 150 points under the heading “Job Rotation to Operations” I do not accept the Complainant’s argument that “Employee F” should have been awarded less points based upon the fact that “ it is commonly known that this employee has indeed NO machine experience in Galway Metal and should not be allocated 150 scoring points”. Considering the limited evidential value of hearsay evidence, I accept the cogent evidence of Mr. Bride who stated that he stood over the points awarded under the matrix selection to each employee which were awarded based on the Respondent’s employment records where possible.

The Complainant also challenged the fact that he was deducted 50 points under the heading “Job Rotation to Operations”. I accept the evidence of Mr. Casserly who stated that he was deducted 50 points on the basis that he did not have machine experience in the docks, which was also confirmed by the Complainant, as both yard and docks experience was required under this heading.

I accept the evidence of Mr Bride who confirmed that the only person who had access to work records was Ms. Kelly and that she provided the information for all the employees regarding their length of service. I accept the evidence of Mr. Bride who confirmed that Mrs Killilea, on behalf of the Complainant, had wrongly identified two employees, Employee A and E.  

I am satisfied that the alternative tables provided by Mrs Killilea on behalf of the Complainant are incorrect in relation to the above-mentioned employees based on the evidence of Mr. Bride and the limited evidential value of hearsay evidence relied upon by the Complainant.  I am satisfied based on the evidence of Mr. Bride and Mr. Casserly that the points awarded to the Complainant under the heading “Job Rotation to Operations” are correct and points were deducted on a reasonable basis.

I accept the submission of the Respondent that there was no unfair selection within the meaning of Section 6(3) of the 1977 Acts on the basis that the Complainant has not put forward any evidence to support the argument that any of the grounds referred to Section 6(2) of the 1977 Act are engaged by the Complainant in accordance with Section 6(3) (a).

I accept the Respondent’s submission that there was no procedure relating to redundancy in place by the Respondent (as referred to at Sc 6 (3) (b)). In this regard it is argued that the Complainant was properly assessed in line with the selection criteria, in the same manner as all 13 truck drivers. In addition, it is argued that the correspondence from the Respondent amply demonstrates the fair and objective assessment undertaken.

Section 6 (3) of the 1977 Act requires that either element under Section 6(3) (a) or (b) is engaged to require  the Respondent to ensure a fair selection process takes place.  Notwithstanding this, the EAT in Boucher v Irish Productivity Centre [1994] ELR 205 held in the absence of Section 6 (3) (b) applying the onus remained upon the employer to justify a fair selection process to discharge the onus of proof in accordance with Section 6 (1). I also refer to the case of Jane Burton v Knights of Old Group ADJ 00030358  where it was stated that “ ….any selection criteria applied should not be second-guessed so long as they are rational and objective …”.  Therefore, I am satisfied that in the absence of reliance by the Complainant on any ground set out under Section 6(2) of the 1977 Act, I am required to determine the fairness or otherwise of the redundancy selection process. 

I am satisfied that the Respondent identified the correct pool of employees, namely the truck driver team in the Galway yard comprising of 13 employees. I am of the view that the Respondent was entitled to design selection criteria for the driver matrix so long as they were fair and reasonable. I note that the four selection criteria were used to ensure the remaining employees within the truck driver pool had the necessary skills, licences, knowledge and experience required for the remaining roles, amounting to a reasonable and legitimate aim of the Respondent.

I am satisfied that the selection matrix used by the Respondent was based upon fair and objective criteria and that the points awarded to each employee were based where possible, upon factual evidence such as employee records and health and safety incident reports. I have noted the misunderstanding caused as a result of the wording of the title of one of the selection criteria namely the “H&S Disciplinary” category and I am satisfied that the points awarded to the Complainant under this heading which were based on a health and safety incident report from 2016 are correct.  While I have identified this frailty regarding the selection criteria matrix, I do not consider it determinative of a flawed process.   

Further to the evidence of the Complainant and Mrs Killilea, I note that both had a correct understanding of this heading from at least the date of the third meeting and during the appeal process.  

Consultation process / conducted in a fair and reasonable manner

It is submitted by the Respondent that they engaged with the Complainant in a full and fair consultation process which, arising from the circumstances of the pandemic, had to take place remotely.

The Respondent submitted much correspondence prior to the hearing as proof of the various steps taken in the context of the redundancy consultation process. I note that the Respondent wrote to the Complainant by way of letter dated 28/5/2020 putting the Complainant on notice that his position was at risk of redundancy as it outlined that four positions were required to be made redundant out of a pool of 13 positions. I note that three meetings took place starting on the 4/6/2020. By way of letter dated 4/6/2020 the Complainant was advised of the selection matrix and provided with a table with his marks and those of the other employees which were anonymised under each heading. I note that two further meetings took place on the 12/6/2020 and 19/6/2020 where the Complainant provided input and challenged the points awarded to him and alternative positions were discussed. 

I further note the Complainant was represented by a solicitor during this process who sent a total of three comprehensive letters to the Respondent challenging various issues. I note that Mrs. Killilea was present at the three remote meetings referred to above. 

I note that minutes for each meeting were provided to the Complainant. I further note that the minutes were challenged by the Complainant’s representative as inaccurate, and an application was made to include phone transcripts compiled by the Complainant’s representative at the commencement of the case. I decided not to include the phone transcripts based upon the reasons set out earlier.  

I note that the Complainant had the benefit of an appeal to Mr. Patrick Walsh, Managing Director who had no prior involvement with the process. I note that the Respondent does not have an appeal procedure in place. The Respondent wrote to the Complainant by letter dated 23/6/2020 issuing its decision to make the Complainant’s position redundant and outlining the appeal process. The Respondent’s representative wrote to the Complainant by letter dated 26/6/2020 setting out the appeal process again and providing a 5-day extension time period to lodge the grounds of appeal which was an appeal on the papers only. I note that the Complainant’s solicitor submitted a comprehensive document setting out the grounds of appeal dated 1/7/2020.  

I accept the evidence of Mr. Walsh who stated that he considered all evidence prior to issuing his outcome which was set out in a five-page letter dated 10/7/2020 where his reasons for not upholding the appeal were set out. I further accept the evidence of Mr. Walsh who stated that the Complainant was deducted 50 points under the matrix selection criteria for a health and safety incident involving the Complainant in 2016.

I note that the Complainant submits that the consultation process was rushed. I further note the time period commencing with the letter from the Respondent dated 28/5/2020 which concluded on the 23/6/20.  In light of the time frame provided and the fact that the Complainant’s solicitor had sufficient time to submit three letters on his behalf, I do not consider that the process was overly rushed. Overall, I am satisfied that the consultation process was fair and reasonable and conducted fairly.

Alternative Options

In relation to alternative positions, I note the conflict of evidence between the Complainant who stated that no genuine discussion of alternative positions took place and he was ” just told this is it.“ I accept the evidence Mr. Casserly who stated that all three yards were impacted by the pandemic and that it would not be appropriate to place a worker from one yard into another yard as there were no vacancies between yards.  I also accept the evidence of Mr. Casserly who stated he considered a three day week as an alternative but didn’t consider it was feasible and that he considered the suggestion made by the Complainant that he could be used as a machine driver however there were no machine driver positions available.  I find the evidence of Mr. Casserly more cogent and reliable and I am satisfied based upon his evidence and that of Mr. Bride that all alternative positions were considered. 

I note the evidence of the Complainant who stated that two truck drivers were hired after he was made redundant and further note that no evidence was put forward to support this assertion.  I also note his evidence when he stated that Mr Walsh was incorrect when he stated that he didn’t drive a grab truck again after 2016 as he did drive a grab truck for awhile after the accident in 2016.

I accept the evidence of Mr Walsh who stated that one truck driver was hired on the 8/2/2021. I find the evidence of Mr. Walsh more reliable in this regard on the grounds that given his role with the Respondent, I am of the view that he would have more accurate knowledge of how many truck drivers were hired.  I accept the evidence of Mr Walsh who stated that this truck driver role was a different role to the Complainant’s previous role. I find that the hiring of another truck driver eight months after the Complainant’s redundancy in a different role does not constitute evidence in the circumstances of this case of a flawed process or a sham redundancy.

I accept the Respondent’s submission and Mr Walsh’s evidence that, later processes resulted in the redundancy of four other roles across the Respondent’s business. I accept the Respondent’s submission that this fact supports both the genuineness of the redundancy and the lack of alternative positions.

Conclusion

In my consideration of the facts of this case I accept that there was a genuine redundancy situation in accordance with a blended application of Section 7(2) (b) and ( c ) of the Redundancy Payments Acts 1967 as amended.

The Respondent was faced with a significant reduction in turnover in Q2 in 2020 which consequently required it to reduce the number of truck driver positions from 13 to 9. I find that the Respondent identified the correct pool of employees affected and devised a selection matrix comprising of four criteria where a total of 750 points were available. The Complainant scored 591 and therefore was placed in the bottom four of the pool and was advised that his position was at risk of redundancy. I heard detailed evidence over two days from several witnesses regarding the selection process and I did not find any evidence to support the Complainant’s assertion that the selection process was unfair, biased, discriminatory and predetermined. 

Mrs. Killilea, on behalf of the Complainant, challenged the points awarded to the Complainant under two headings in the selection matrix which for reasons set out above I did not find merit with. Mrs. Killilea, on behalf of the Complainant, did not put forward any cogent reliable evidence to support her assertion that the selection process was unfair, biased, discriminatory and predetermined.

For the reasons set out above, I am satisfied that the selection matrix used by the Respondent was based upon fair and objective criteria and that the points awarded to each employee were based where possible, upon factual evidence.  I have noted a frailty in the selection process regarding the wording of one heading in the selection matrix criteria, notwithstanding this, I find the selection process was based on objective and reasonable criteria and was conducted fairly.

I have found that the Complainant was provided with an opportunity to challenge the proposed redundancy, he had the benefit of legal advice throughout the consultation process and also availed of the opportunity to appeal the decision making his position redundant. That decision was upheld on appeal.   

I have found that alternative options were considered however the reality of the economic situation for the Respondent required them to make four more positions redundant which in my view is evidence of a genuine redundancy and the lack of alternative options.  

I have found that the Respondent operated a reasonable and fair redundancy process. I am unable to apply the rationale set out in Panisi to the facts of this case. Therefore, I do not find any facts or evidence to support the assertion that the redundancy was a “guise” to an unfair dismissal.    

Accordingly, I find that the Complainant was dismissed fairly on the grounds of redundancy as provided for under Section 6(4) of the Act of 1977 and the redundancy was carried out in a reasonable and fair manner. While shocking and distressing for the Complainant and his family at that time, I find that the circumstances of this case do not amount to an unfair dismissal.  

CA-00038968-002 Complaint under Section 7 of the Terms of Employment (Information) Act 1994 

The Complainant submitted that he was not provided with a statement of his terms and conditions of employment at any time during his employment. The Respondent has conceded this complaint. I find that the Complainant is entitled to compensation for this breach equivalent to four weeks remuneration in accordance with Section 7 of the Terms of Employment (Information) Act 1994.   

For the reasons set out above, I find that the Complainant was not unfairly dismissed within the meaning of Section 6 of the Act 1977.  I declare this complaint to be not well founded.

For the reasons set out above I find that the Respondent did breach the Complainant’s rights under the Terms of Employment (Information) Act 1994. I declare this complaint to be well founded and I award the Complainant compensation equivalent to four weeks remuneration in the sum of €2,753.12 which I consider just and equitable.

Redundancy – selection matrix criteria- fair selection process – admissibility of phone transcripts