Complainant

Respondent

Parties

Niall  Egan

Exterion Media Ireland Ltd

Complainant

Respondent

Anonymised Parties

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Representatives

Brian Doyle Bernadette Barry & Co

Ciaran Loughran IBEC

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-00045616-001

10/08/2021

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act, 2020 and S.I. No. 359/2020 which designates the WRC as a body empowered to hold remote hearings.  The complaint relates to an unfair dismissal.

The complainant and another witness for the complainant gave their evidence under affirmation. Three witnesses for the respondent gave their evidence under affirmation.  All witnesses were cross examined.

The respondent submitted that there was a clear redundancy requirement and that the process was conducted in a fair, reasonable and transparent fashion.  The respondent refuted the allegation of unfair dismissal in its entirety noting that the complainants employment was terminated on 12 March 2021 by reason of genuine redundancy in accordance with section 6(4)(c) of the Unfair Dismissals Acts (1977 - 2015), - the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following: (c) the redundancy of the employee.

The respondent submitted that it is a long-established outdoor media company, who develop, manage and operate advertising networks, sites and formats across bus, rail, retail, and roadside environments. It submitted that it has a staff of 50 people.

The respondent submitted that as a consequence of the prolonged social and economic restrictions due to Covid-19, and their continuing adverse effect on business throughout 2020, in January 2021, it completed a review of its overall business and its resource requirements. The review assessed the requirements of the business in the context of an envisaged business recovery and the resources required at the beginning, during, and particularly at the end of that recovery. With these considerations in mind, it made the decision to restructure the operations department with a focus on field operations.

The respondent submitted that on 19 February the complainant along with all the field operatives were informed at a ‘town hall’ meeting that a restructure was being proposed which would result in two roles being made redundant. In total 16 employees were put at risk of redundancy. On 22 February, the respondent met with the complainant and informed him that he was at risk of redundancy.  He was informed of the process and selection criteria that would be used. He was also provided with a letter setting out this information.

The respondent submitted that the complainant was invited to and attended at a consultation meeting held on 2 March 2021 with the Operations Manager and a HR Manager. He was advised of his right to be accompanied by a work colleague. At this meeting the complainant was informed that based on the scoring applied to the selection criteria he remained at risk of redundancy. A letter summarising this meeting was given to him on 2 March. On the 10 March 2021 the complainant attended a further consultation meeting with the Operations Manager and HR Manager. At this meeting there was further discussion regarding the scoring on the selection process, and any alternative work or other options to avoid redundancy. A letter summarising the meeting was given to him on 10 March.

On 12 March 2021, the complainant attended a meeting with the Operations Manager, HR Manager and the Franchise & Operations Director. He was informed that as no alternative to redundancy had been identified that the decision had been made to proceed with the redundancy.  He was informed that he would be paid in lieu of notice and was provided with a letter confirming this decision. In this letter he was also advised of his right to appeal that decision.

The respondent submitted that on 15 March 2021 the complainant e-mailed the HR Manager appealing the redundancy decision to the Managing Director. In this e mail he requested the right to bring a legal representative and not to schedule a hearing date until he had received information requested on 5 March and agreed minutes of meetings. On 16 March 2021 the Managing Director e-mailed the complainant requesting that he outline the grounds for the appeal. He also e mailed to state that they would allow a legal representative at the appeal hearing.

The respondent submitted that on 26 March 2021 the complainant e-mailed setting out the grounds for the appeal. This appeal meeting took place on 13 April 2021 and was attended by the Managing Director, and a member of the Finance Team (as note taker). The complainant attended accompanied by a colleague. This meeting was recorded as agreed and sent to a third party to have the minutes transcribed.   On 17 May 2021 the outcome of the appeal was sent to the complainant upholding the redundancy decision.

Oral evidence:

The operations manager gave evidence that he was the Direct Line manager for the complainant and the complainant's witness. He noted that they provided advertisements for advertising space within a short time frame. He noted that at the time of the redundancy 50 or 51 employees were employed in the company.

When talking about the need to make staff redundant he noted that the pandemic had a drastic effect on business and that the effect was seismic resulting in a decline in their bookings. It led to a full review of the business operation. As a result of the pandemic, they had previously cancelled all capital plans and moved agreements so as to minimise costs and maximise savings. He stated that they were not looking at the short term but rather at a two to three-year plan.

He said that he was looking at changing the format of the business and only needed two redundancies to fulfil their recovery plan. He noted that there has been no increase in the operations team since the redundancies were affected. He noted that 16 people were put in the ‘at-risk’ category. He looked at things such as skills, behaviour and attitude, understanding of the sector, and reliability. He noted that some small changes were made to the matrix as a result of inputs from various operatives. He noted that the complainant did not raise any issues with the way the matrix was formatted and noted that there was no turbulent relationship with the complainant or the witness.

He noted that the complainant had taken a personal injuries claim against the company but this had no bearing upon the process.  He noted that there was no bias or ill will towards the complainant's family, as suggested.

He confirmed that the matrix was not designed to target any individuals comment as it was too broad for that, and he confirmed that no one sought voluntary redundancy from the company.

Under cross examination, he confirmed that there is still one member of staff who is from the complainant's extended family, the witnesses nephew.

The witness noted that he developed the matrix and had input into it as he was the as he was the person best placed as line manager to complete the matrix. He noted that normally with such a matrix you would consider 12 months but given that 2020 occurred (and Covid), he considered that this was not fair and included an additional 12 months.

In relation to the complainant’s scores on the matrix, he said that although it was a very strong team he openly admitted that he had a bad attitude and that there was no secret that he could come across as difficult. He noted that there were no performance issues, and nothing needed to be assessed under the disciplinary procedure.

As regards the institutional and operational knowledge of the complainant he said that he didn't believe that his score warranted a higher score

When asked about alternatives, the witness said he considered layoff, short time, and job share but that he considered that these were more short-term options. He said that he considered last-in, first-out but discounted it as, in the circumstances of the pandemic, he felt it was unfair and wanted to retain the best people. He did note that he had a fear of seeking voluntary redundancies as the company could have lost some of its best people but noted that it wasn't an option that considered at that time.

The second witness was the franchise and operations director.  He noted that he maintained a monthly watch on the business figures revenues were going to fall for the next two to three years auntie noted that certain areas would see lower levels of activity. When looking at how to address the challenges business faced, he noted that long term layoff was not a possibility. They also looked at taking subcontractor work back in house but that was not possible as this really related to operations outside their geographical area.

He noted he was directly involved in the business assessment and conclusion that redundancy would be involved. He was involved in the ‘town hall’ style meetings. He also noted that he was involved in reviewing the scoring once it was completed. He noted that he attended the final meeting when the complainants were informed that they were to be made redundant. He noted that he amended some of the scores upwards for three individuals including one of the complainants. He noted that he had no grievance towards the complainant's extended family as suggested and noted that the complainant witnesses brother had his back on a number of occasions. He also noted that another family member had been a key subcontractor since 2014 and he noted that one of the extended family members continued to be employed in the company.

Under cross examination he confirmed that he reviewed the matrix and found that the structure of the process was more than fair. He confirmed he was more than happy with the process that it was the fairest most balanced way to assess people. He noted that everyone has a primary function, and that certain people move when they're not busy. He noted that the first respondent witness was really the person who had the first hand knowledge of the competences of all workers. He noted that it was the case that people who worked in all areas got more points than people who didn't work in every area.

It was put to the witness that his opinions were simply based on the options provided to him by the 1st witness. He denied this.

The third witness was the managing director. The witness noted that they had to cut their spending when the COVID pandemic hit. The advertising business was badly hit as companies put a halt on their discretionary spending. By the end of 2021 they had identified that there was no quick fix, they were still almost 30% of their 2019 figures and accordingly they looked at layoffs, voluntary redundancy, reduced hours, shorter working week and reduced outsourcing. They also looked at redundancies on a mandatory basis.

The witness noted his involvement was only at a strategic or high-level overview. He noted that he was involved in an overview of selection criteria and the town hall meetings but was not involved in the selection meetings or review. He noted that he became aware of who was selected after the selection process completed and just before the individuals were informed. He noted that he was involved in the appeal meetings and the complainant sought recordings which were granted, transcribed and circulated.

As regards the argument that the complainant was targeted because of his extended family connections, he said that this was not true as a number of the extended family members were still key subcontractors and employees. He also noted that the redundancy selection had no connection to personal injuries claim of the complainant as other employees had taken personal injury claims and remained employees.

As regards the question that the complainant should have been given more recognition for experience, he noted that this didn't come into it as the average length of employment of employees was between 6 and 24 years so all employees for longer term employees.

As regards the selection matrix, he noted that the business skills matrix was independently audited as part of a quality process. He noted that there was definite evidence that there was a long-term business requirement to make some employees redundant and as part of the appeals process, he found that alternatives were considered. He did not consider the allegation of bias to be valid and he noted that every effort was made to include employee contributions into the process. He confirmed that there was no voluntary redundancy, none was considered nor sought.

Under cross examination he was asked about custom and practise but noted that he didn't know how previous redundancies were conducted as there had been a series of buyouts and transfer of undertakings since any previous redundancies in 2009. He confirmed that he reviewed what the human resources provider submitted and was advised that they were using best practise using objective data only. He concluded that the process was objective although the objectivity of the process was called into question and was put to him as such. He noted that a detailed investigation happened during the appeal process: he reviewed the letter given by the complainant.  He reviewed all the scores and was satisfied they were fair and that there was a factual basis for the scoring.

Under redirection he confirmed that all candidates were given the opportunity to contribute and that both the complainant and his witness were happy with the person who was completing their scores.

The complainant submitted that the redundancy process was notable by the absence of fairness and reasonableness.  This renders it biased and unreasonable.  The complainant submitted that the scoring should have been objective. No issues were raised with the complainant’s performance, and he was not allowed to address any issues, or to discuss the scores awarded in advance of the finalisation of the process.

Oral Evidence:

The complainant worked alongside his father-in-law, who is the witness to these proceedings and he stated that he was employed since 2015 when he first came into stores as a general operative. He noted that he moved around a lot and noted that at one stage he had fallen and torn ligaments in his left knee. He noted that he was often taken away from the complainant who he worked with as his helper but that when he returned, they would have to catch up the following week. He noted that he raised an issue of unfair distribution of work, but it went nowhere.

The complainant noted that he was one of the lowest paid individuals in the organisation and felt he was overlooked when at work promotions. He said other staff were surprised when he didn't get a job he was going for.

When asked how he felt about the scores he noted he was devastated, and it was mentioned to him that he didn't do various roles regularly enough. He noted that not being moved around led to him scoring less. He noted that he never had any formal reviews but would have been considered a reliable and could worker. He stated that when he received the recordings of the meetings, he felt that there were pieces missing. He also stated that he trusted that the whole redundancy process would have been done in a fair manner.

Under cross examination the complainant noted that when he began work, he had to send in his CV, but it was known he was related to one of the other employees. He was not surprised that he was recruited in the first place.

As regards the personal injuries claim, he noted that the company paid for his GP visits and that he was off work for four months.  He stated that he returned to work on light duties. He stated that he was overlooked for a driver role and that there were two of them in for the job but that the other person was successful.

Witness for the complainant:

The witness, who was the complainant’s father-in-law noted that he was employed for 24 years but for a period he was subcontractor.  He stated that when he saw the matrix, he felt very confident, perhaps overconfident that he would be OK. He agreed with what they were proposing to do. He found that being marked down in relation to critical skills was unbelievable, how could he as one of two of the most experienced workers be marked down on that basis. He noted that those who were considered more versatile or given more scores but that the respondents first witness was controlling who got what work and he was never given the opportunity to do other work. He noted that he never complained he just felt the isolation.

Under cross examination he was asked was the matrix scored by the right person, he confirmed that it was. He noted that he had an opportunity to raise concerns on the criteria in advance, but he raised none. He said the scoring was ridiculous he had done several years in most sections but felt that it was wrong that somebody of his experience should be marked down. It was put to him that the scores were based on people's current skill level. The witness noted that he didn't think that his own score was done fairly.

The witness was asked what issues were raised regarding his family but noted that there had been a coldness since he came back in 2014 but that this was just his own impression. He noted that he had no direct evidence of this but only an impression. 

He did not accept that the appeals process was conducted thoroughly, to him there was something wrong and he was disappointed with the outcome. He noted that the organisation was still operating under reduced requirements and possibly accepted that redundancies were necessary.

Under redirection, the witness noted that there was a coolness that came about when he came back, and this developed over the last few years. He said that he accepted the decision arrived at but doesn't feel that his was administered in a fair and objective manner.  He stated that he felt he was being targeted because his brother had previously been the business owner.

Section 6(1) of the Unfair Dismissals Act states that:

Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

Section 6(3) of the Act states that:

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

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

(b) he was selected for dismissal in contravention of a procedure (being a procedure that has been agreed upon by or on behalf of the employer and by the employee or a trade union, or an excepted body under the Trade Union Acts, 1941 and 1971, representing him or has been established by the custom and practice of the employment concerned) relating to redundancy and there were no special reasons justifying a departure from that procedure,

then the dismissal shall be deemed, for the purposes of this Act, to be an unfair dismissal.

Section 6(2) of the Act includes reasons such as membership of a trade union or undertaking trade union activities; religious or political opinions; having made a protected disclosure of being a witness in certain proceedings; the race, colour, sexual orientation or age of a person; membership of the travelling community; pregnancy, breast feeding, or seeking adoptive or parental leave. The section does not include being members of an extended family or having connections to a former owner of the company.

The respondent appears to have followed procedure in relation to undertaking redundancies, it made the decision to continue working with fewer employees, as provided for in Section 7(2)(c) of the Redundancy Payments Act, 1967:

(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—

(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

The complainant’s witness accepted that redundancies may have been necessary for the company’s survival, and it was submitted that both the complainant and the witness accepted that the person who drew up the redundancy matrix was the correct person to do so.  The complainant had a feeling that the company was against him based on his family ties but confirmed that members of his extended family were still employed there and another remained an important sub-contractor of the respondent.

Having regard to all the written and oral evidence presented in relation to this matter, I am not satisfied that the complainant’s dismissal on the redundancy ground amounts to anything other than a fair dismissal.  Therefore, I find that the complainant was not unfairly dismissed.

Having regard to all the written and oral evidence presented in relation to this complaint, my decision is that the complainant was not unfairly dismissed.

Unfair dismissal – procedures followed – no rationale to establish an unfair dismissal