FULL RECOMMENDATION
SECTION 8A, UNFAIR DISMISSAL ACTS, 1977 TO 2015 PARTIES : CASTOLIN EUTECTIC IRELAND LTD (REPRESENTED BY IRISH BUSINESS AND EMPLOYERS' CONFEDERATION) - AND - BOGDAN VASARHELI (REPRESENTED BY SERVICES INDUSTRIAL PROFESSIONAL TECHNICAL UNION) DIVISION :
SUBJECT: 1.Appeal of Adjudication Officer Decision No(s) ADJ-00035203 CA-00046375-001. The Factual Matrix The Complainant was employed by the Respondent as a Machine Operator from 2017 until 4 June 2021 when he was dismissed by reason of redundancy. His total gross weekly pay, including shift premium and incentive allowance, was €980.00. The Complainant received a redundancy payment of €12,318.00 which included his statutory lump sum entitlement and anex-gratiapayment of two weeks’ pay per year of service. He was not requested to sign a waiver agreement in consideration for theex-gratiapayment. Evidence of Mr John Dalton The witness told the Court that he had been CEO of the Respondent company up until his retirement in January 2022. According to the witness, the Complainant had worked in the Respondent’s Flux Core Department up until 2019 at which time he was relocated elsewhere in the business as his performance in Flux Core was not of a sufficiently high standard. The witness acknowledged that the work in that department is particularly demanding and many employees have been moved out of it to less demanding roles over the years. The witness’s evidence then turned to the redundancy process that resulted in the Complainant and two others being selected. He told the Court that there is Company-Union agreement in place that provides at Clause 9: “In the event of redundancy being declared, the Company will, where practical, operate a procedure based on service, all other things being equal.” According to the Witness, it became evident to Management in mid-2021 that there was a reduction in demand for the Respondent’s products such that they had insufficient work for each of the Machine Operators employed by it at that time. The witness, in consultation with the Production Manager, determined that it would be necessary to make three jobs redundant. He, therefore, contacted Mr Pat Flannery of SIPTU on 6 May 2021 to inform him of the competitive challenges facing the Company and of its decision to proceed with redundancies. There was further engagement with Mr Flannery on 10 May 2021 following which a general notice was placed on the notice board adjacent to the clock-in area. The witness’s evidence was that the Union raised no objection to the Company’s proposal to make three jobs redundant. The witness said that he and Mr Billy O’Connell, the Production Manager, selected three candidates for redundancy applying the formula set out in Clause 9 of the Company-Union Agreement i.e. on a ‘last-in, first-out’ basis, “all other things being equal”. The Complainant had the fourth shortest length of service. He was, however, selected for redundancy ahead of Mr PB, according to the witness, because PB was deemed to have a broader skillset than the Complainant. The witness told the Court that Management held two individual meetings with the affected employees – other than the Complainant who was absent on sick leave and who did not respond to any communications sent to his notified address. According to the witness the Complainant was expected to attend in the workplace on 20 May 2021 and it was the witness’sintention to meet with him on that date. However, the Complainant didn’t attend for work that day. A registered letter was sent to his address advising him of the Respondent’s decision to make him redundant. This was returned undelivered. Under cross-examination, the witness accepted that the Complainant had been trained (re-trained) to operate R4 and R6 but was deemed not sufficiently competent on the basis of the data recorded on the Respondent’s Overall Equipment Effectiveness (‘OEE’) system. He also said that Mr TB (who had shorter service than the Complainant) was retained in employment ahead of the Complainant because he was competent to operate R4, R5 and R7. When pressed by the Court, the witness said that he and Mr O’Connell had taken the final decision in relation to which employees would be made redundant on a date prior to 19 May 2021. He also confirmed that there was no appeal from the Respondent’s decision provided for and the affected employees had not been placed ‘at risk’ of redundancy prior to being notified that they were to be made redundant. Evidence of Mr Seán Ryan The witness is Operations Manager with the Respondent and has overall responsibility for training. At the material time his position was Plant Manager and Health and Safety Officer. According to the witness, it takes six to eight months to train an employee to operate machines such as R1 and R4. The latter machines are modern and controlled by a PLC. The Respondent also has older, more manual machines including R7 and R3 that are more difficult to learn to operate. The witness told the Court that he was aware that when R1 was being operated by the Complainant that it required an above average number of repairs and was subject to increased downtime due to the Complainant’s lack of competence. The Complainant’s Evidence The Complainant gave evidence in relation to loss and mitigation. He told the Court that he has been working as a self-employed driving instructor since 13 June 2022. He receives work from a well-known school of motoring. The amount of work varies considerably, depending on the time of year. He produced a letter confirming that he had been paid a total of €18,799.00 for driving lessons he provided clients of the school between 13 June 2022 and 31 December 2022. He also submitted a calculation of his accrued and ongoing losses arising from the termination of his employment with the Respondent totalling €63,284.40. A considerable amount of paperwork detailing online job applications that the Complainant submitted was opened to the Court. The Complainant accepted that there were significant periods (e.g. from June 2021 to August 2021 and January 2022 to April 2022) in respect of which he had no evidence of efforts to mitigate his loss. He told the Court that he had returned to his native country for a number of weeks after he had been made redundant in June 2021 to deal with family issues. He acknowledged that he did not have sufficient training or experience for many of the jobs he appears to have applied for. The Complainant told the Court that he had operated a range of machines for the Respondent including R1, R4, R5 and R6 and had done so very competently. He said he had been completed by Mr O’Connell on his performance and had received a bottle of whiskey from Mr Dalton to thank him for fulfilling a very important order within a very short period of time. The Complainant said that he had received approximately 1.5 months of training on each of the machines that he had operated. Under cross-examination, the Complainant said that he had no recollection of engaging with Mr Flannery of SIPTU in relation to the Respondent’s decision to make him redundant. An email from Mr Flannery to Mr Dalton dated 21 May 2021 and in which Mr Flannery stated he had been in touch with the Complainant on 20 May 2021 in relation to his redundancy was opened to the Court and put to the Complainant. He continued to maintain, however, that he had no recollection of engaging with Mr Flannery at that time. When asked if he had been aware of the Respondent’s proposal to make redundancies in May 2021, the Complainant again denied any knowledge of this. He said he had been out of work on sick leave for approximately three weeks. He said none of his colleagues had contacted him during that period. He accepted that he had attended work for a couple of hours on 17 May 2021 but had not seen the notice regarding redundancies posted on staff notice board adjacent to the clocking-in station. Discussion and Decision It is clear to the Court that while the Union accepted at all times that a genuine redundancy situation had come about in the Respondent company in May 2021 and that there was a need to reduce the number of machine operators by three, the Union did not accept the interpretation placed by the Respondent on the redundancy provision in the Company-Union Agreement and which it relied on to justify selecting the Complainant for dismissal ahead of Mr TB. The witnesses for the Respondent gave evidence in relation to the Complainant’s competence that is diametrically opposed to his evidence in relation to this matter. The Court, in the absence of any documentary evidence such as records of performance appraisals carried out on the Complainant’s work or printouts from the Respondent’s OEE system, is not in a position to resolve this conflict of evidence. It is, however, abundantly clear to the Court that the redundancies effected by the Respondent in May 2021 were carried out with little or no regard to fair procedures. The individuals concerned were selected for redundancy without any prior direct engagement with them and they were not afforded an opportunity to suggest alternatives to redundancy and nor were they given an opportunity to appeal the Respondent’s decision to make them redundant. The only justification offered by the Respondent for its decision to depart from a strict application of LIFO and to select the Complainant ahead of Mr TB (who had short service than he did) is the witnesses’ verbal assertions that Mr TB was a more competent machine operative than the Complainant. On the basis of the foregoing, the Court finds that the selection process was procedurally deficient and the Complainant’s dismissal was, therefore, unfair. The Court found the Complainant’s evidence in relation to mitigation and loss to be less than credible. The witness was evasive and unforthcoming when asked to explain the significant gaps in the supporting paperwork he submitted to the Court. When specifically asked to explain why, as a self-employed driving instructor since June 2022, he had not apparently made any efforts to generate work for himself outside the hours provided for him by the aforementioned school of motoring, the Complainant was unable to offer any meaningful explanation other than that he wanted to build up his business slowly. In similar vein, the Court found Complainant’s explanation for his inability to demonstrate that he has making efforts to seek alternative employment in the periods June to August 2021 and January to April 2022 lacked any credibility. Finally, the Court cannot accept that the Complainant could have believed had any realistic prospect of securing many of the jobs he says he applied for as they clearly required a level of experience and skill that he did have. Having regard to the foregoing, the Court finds that the Complainant, through a combination of inaction over protracted periods and a series of ill-advised job applications, found himself unemployed for a much longer period than could otherwise have been the case had he been more diligent in seeking alternative employment. The Respondent cannot be held liable in compensation for the Complainant’s lack of effort and/or poor judgment in this regard. The Respondent made reasonable efforts to notify the Complainant on 20 May 2021 that his position was to be made redundant from 4 June 2021 and he would not be required to work out his two-week notice period for which he would be paid in lieu. Mr Flannery’s email to Mr Dalton dated 21 May 2021 strongly suggests that the Complainant had been in touch with Mr Flannery on 20 May 2021 regarding the Respondent’s decision and was, therefore, on full notice of his situation at that point in time. The Complainant’s decision to delay making job applications until mid-August is, therefore, inexplicable. In all the circumstances, the Court finds that no further compensation – over and above what the Complainant received by way of hisex-gratiaredundancy payment – is due to the Complainant under the Act. The Court so determines.
NOTE Enquiries concerning this Determination should be addressed to Therese Hickey, Court Secretary. |
