ADJ-00031068

ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00031068

Parties:

Complaint:

Date of Adjudication Hearing:  12/01/2022 & other dates

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Procedure:

This complaint was referred under Section 8 of the Unfair Dismissals Acts 1977-2015 to the Workplace Relations Commission (hereinafter ‘WRC’) on 30th November 2020.  Following delegation to me by the Director, I inquired into this complaint and gave the Parties an opportunity to be heard and to present any relevant evidence.  This matter was initially adjourned pending the introduction of the Workplace Relations (Miscellaneous Provisions) Act 2021 following the Supreme Court Judgement in Zalewski 2021 IESC 24.  Following same, I heard this complaint by remote hearing over several dates pursuant to the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 and S.I. 359/2020. The matter had to be further adjourned to facilitate the Respondent in providing additional evidence.  The Complainant was represented by Richard Grogan & Associates whilst the Respondent was represented by IBEC.  A number of Human Resources witnesses were present at the hearings and gave evidence of behalf of the Respondent.

Written submissions and booklets of documentation were furnished on behalf of both Parties.  The changes to hearing procedure under the Workplace Relations (Miscellaneous Provisions) Act 2021 were outlined.  The hearing was held in public and the Parties were made aware that their names would be published within this decision.  All of the evidence was heard under oath/affirmation.  As the Respondent bore the onus/burden of proof to show that the dismissal was fair, evidence was led on its behalf first followed by that of the Complainant.  All of the evidence, documentation and submissions received have been fully considered.  A further period was afforded to the Parties to explore alternative means of resolution.

Background:

The Complainant was employed by the Respondent as a Security Supervisor (under a contract with a client which had transferred under TUPE) until his dismissal on 29th June 2020.  He contends that his dismissal was unfair and seeks compensation in respect of same.  The Respondent maintains that the Complainant was properly and fairly made redundant owing to its client cutting two Security Supervisor roles including his role in a cost-cutting measure for economic reasons and accordingly, this complaint should fail. 

Summary of Respondent’s Case:

The written submissions on behalf of the Respondent outlined the factual background giving rise to this complaint as confirmed by its witnesses in evidence.  The Complainant had commenced employment with a Security Services Company on 8th March 2017.  This Company provided security services for third parties who were its clients, and the Complainant was assigned to work as a Security Supervisor for a large Retailer in Dundrum Town Centre (‘the Retailer’).  Whilst this was his main base, on occasion, he worked at the Retailer’s store at Liffey Valley Shopping Centre.  On 1st July 2019, the Complainant’s employment transferred to the Respondent under a transfer of undertakings (TUPE) and he remained working in the same role for the same Retailer.  The Respondent is a total facilities management company which forms part of the Mitie Group who provide staff for electrical, mechanical, asset management, cleaning, security, project management, service desk and consulting services and has a large number of staff on its books.

Whilst a contract of employment could not be produced for the Complainant, a ‘Staff transfer – staff consultation form’ with the Respondent was furnished recording the basic terms of his employment.  In particular, his start-date with his former employer was noted along with his working hours and rate of pay.  A ‘New Starter Form’ completed by his Line Manager upon his transfer included his personal and bank details and under the heading: ‘Job title:’ recorded ‘Security Supervisor’, under ‘Contract:’, ‘the name of the client (the Retailer)’ and under ‘Work site Location:’, ‘Dundrum’.  It was agreed between the Parties that at the time of dismissal, the Complainant earned €34,000 gross per annum or €2,833 gross per month.

On 29th June 2020, the Complainant was dismissed by reason of redundancy and received €4,385.36 in statutory redundancy payment.  The Respondent contends that it was acting under the verbal instructions of the Retailer to remove the Complainant’s role from its contract along with another Security Supervisor role based in Liffey Valley Shopping Centre as they were no longer required in a cost-cutting measure.  Other Security Supervisor roles filled on behalf of the Retailer by the Respondent were unaffected.  It is common-case that the Complainant had gone on sick-leave on 3rd April 2020 and raised a grievance in relation to his working conditions which the Respondent maintains had no bearing on this decision.

Evidence-in-Chief of Ms A, HR People Partner

Ms A, a HR People Partner with the Respondent outlined her investigation of a grievance raised by the Complainant on 3rd April 2020.  As confirmed in their email exchange, the Complainant had opted to have his grievance dealt with informally.  The grievance related to his working conditions and specifically: (1) his line manager discussing his Sick Cert with another colleague; (2) his contractual entitlement to the sick-pay scheme being suspended owing to the Covid-19 Pandemic; (3) the fact that he had been required to work in the Retailer’s store in Liffey Valley Shopping Centre; (4) the fact that he had not received a requested pay increase on a par with other security supervisors and (5) interpersonal difficulties with various security officers whom he believed were not undertaking their duties properly and his numerous complaints to management about same going unaddressed.  Having fully discussed his grievances by telephone and investigated them, Ms A upheld only the first complaint as confirmed in an email outcome on 7th May 2020.  The email also informed the Complainant of his right to have his grievance dealt with through a formal process if he was dissatisfied with the outcome.  He had not pursued this and returned to his employment.

In relation to the Complainant’s complaint about having to work in the Retailer’s Liffey Valley Shopping Centre store, Ms A noted within her findings: “your manager advised that due to the COVID-19 pandemic, our client, (the Retailer) had instructed Mitie to reduce its hours across their stores on a temporary (basis), which included Dundrum…  As such, your manager made the decision to move you to Liffey Valley on a 5 days basis, which you were notified on your return to work following annual leave, on April 1st 2020.”  She also advised that in line with the Respondent’s policies and procedures “… it is a condition of your employment that you are prepared to accept changes to your employment, up to and including an amendment to your duties, hours of work and/or place of work.  Mitie would only ever insist on such changes if there is a genuine business reason, and if it is a reasonable request.”  In not upholding the Complainant’s complaint about the temporary suspension of the Respondent’s sick-pay scheme, Ms A had noted: “…with the closure of so many of our client sites, unfortunately our revenues are drastically falling.  As such, Mitie has had to take some difficult decisions which involved laying some of our teams off, reducing hours, imposing pay cuts and reviewing our company benefits which included suspending its sick pay scheme for all employees across the business on a temporary basis.”  In not upholding the Complainant’s complaint regarding his requested increase in salary, Ms A repeated the last finding also adding: “Unfortunately, Mitie cannot escape the commercial and financial reality of the COVID-19 pandemic, and as such the company will not be in a position to give you a salary increase at this stage.  Mitie’s priority right now is to ensure the health and safety of our people and to save as many jobs as possible.”

Ms A confirmed that whilst she was not involved in the decision to make the Complainant’s role redundant or the redundancy process, Mr B, the Operations Manager had come to her for advice in relation to the redundancy and consultation process after the decision to make the two roles redundant had been made.

Cross-examination of Ms A, HR People Partner

Under cross-examination, Ms A outlined her HR role and experience.  She also outlined the consultation process followed when an employee’s job is at risk of redundancy including a 30-day consultation period. 

Evidence-in-Chief of Mr B, Operations Manager

Mr B confirmed that he is the Operations Manager for security in the Republic of Ireland.  He confirmed that the Respondent held a contract with the Retailer (its client) to provide security services for its stores.  He also confirmed that the Complainant’s employment as a Security Supervisor had transferred to the Respondent under its contract with that Retailer and he had only ever worked in that role based at the Dundrum Town Centre and Liffey Valley Shopping Centre stores.  He had been aware of the existence of his workplace grievance.  In relation to the circumstances giving rise to the Complainant’s position becoming at risk of redundancy, a manager on behalf of the Retailer had telephoned the Respondent’s Account Director instructing him that the Security Supervisor roles in its Dundrum Town Centre and Liffey Valley Shopping Centre stores were to be removed from their contract as a cost-reduction measure due to economic and financial pressures.  These instructions had been relayed to him on 5th May 2020.  There was nothing in writing from the Retailer confirming the decision to remove these roles from the contract and basis for same.  In this respect, a statement from the Head of Corporate Security for the Retailer made in October 2021, retrospectively confirming the verbal instructions to the Respondent in May 2020 to remove the two Security Supervisor roles was submitted.  It stated that following a review of the Security Department, it was found that as“… the company were paying a significantly advanced rate for a supervisor role for relatively the same result and service as an officer role“, it was decided to remove that role from some of its stores including the Liffey Valley and Dundrum Stores, where the overall size of the teams had been reduced and as a result the supervisor roles had diminished and were equivalent to the officer roles.”  The Complainant’s Representative did not take issue with the contents of same without formal evidence.

Mr B further confirmed that he had sent the Complainant a letter by email on 14th May 2020 commencing a 30-day consultation period and informing him that he was entitled to have a support person accompany him to any meetings.  In particular, the letter confirmed that “…after a full review of the structure of the (Retailer’s)contract, and due to organisation and economic reasons, a number of Security Supervisor roles across the (Retailer’s) contract, including your role at (the Retailer) Dundrum, will no longer be required.  It is with regret, therefore, that your role has been placed at risk of redundancy.  As such we are now in a 30-day consultation period.  During this time we will look for suitable alternative roles for you within the Mitie Group of companies as a whole.  We will hold meetings with you and the team in the coming days and weeks to ensure you have all the information and support you require during the period of consultation.” 

On 18th May 2020, Mr B had emailed the Complainant inviting him to a consultation meeting on 20th May 2020 by Skype “to discuss his possible redundancy including the reasons for this and any ways to avoid it.”  He was also invited to bring a representative to the meeting and a Union Representative attended on his behalf.  His Line Manager was in attendance as the notetaker.  Mr B went through the minutes of the meeting.  The Union Representative had questioned the basis upon which the Complainant had been selected for redundancy and Mr B had explained that: “…the client (the Retailer) has made the decisionto remove the supervisors from Liffey Valley and Dundrum and unfortunately that is where AT has worked all of his shifts.”  The Union Representative had asked if it was possible for security to be reassigned within their contract and Mr B had explained that: “…AT is a security supervisor and there are no other supervisor roles in the Dublin region.”  The Union Representative then asked whether there were any other options.  Mr B replied that there was a possibility of reverting to a security officer, but this would entail a reduction in pay.  He explained the difference between a security supervisor and security officer role and agreed to send a proposal in this respect.  Mr B confirmed that the Complainant had the least service of all the security supervisors across the entire Respondent’s portfolio.  He further confirmed that if an alternative role was not found by the end of the consultation period and the Complainant was made redundant, he could still apply for jobs with the Respondent in the future without affecting his redundancy pay. 

Following on from his commitment to look at finding a standard security officer position within the business, by email dated 29th May 2020, Mr B wrote to the Complainant: “I have over the last week, along with the security management team, looked at all contracts we have to see if there are any positions.  Unfortunately, we do not have a full time security position available at an officer level in the Dublin or Midlands area, in fact the only current security vacancy we have available is Cork.  Of course this is subject to change and if a suitable alternative security supervisor role or a security officer role becomes available between now and the end of your redundancy consultation period of June 13th 2020, I will of course let you know.”  On 8th June 2020, Mr B emailed the Complainant inviting him to apply with his CV by 10th June 2020 for a part-time store detective position (24 hours per week at €13 per hour) that had just been added to its contract with the Retailer.  Whilst the position was mainly located in Dublin it was noted to be a national role requiring travel.  The email further stated: “This is not a supervisor role however is the only live role we currently have within Mitie Security and if this does not suit the redundancy will be confirmed at the end of the consultation process on the 13th June 2020.”  Mr B confirmed that this invitation to apply for the position had been made to both the Complainant and the other Security Supervisor who had been made redundant.  The Complainant responded by return email stating: “Your offer is not reasonable and I am not interested in it.”  Mr B replied acknowledging his response and stating: “Just to be clear this was an offer for you to apply for a vacancy Mitie Security currently have, it wasn’t an offer for the role.  I will keep you updated on any other roles that may come up between now and the end of your redundancy consultation period.”  Mr B said that there were no other roles available at that time because “…we were in the height of lockdown.”  He confirmed that the Covid-19 pandemic had a big impact across the Respondent’s whole portfolio including corporate, retail and security.  There had been reduced hours, pay cuts and three hundred temporary lay-offs in Ireland including three lay-offs and pay reductions on the Retailer’s contract at that time.  It had been a challenging time and an understatement to say that available alternative roles were limited.  On 15th June 2020, Mr B phoned the Complainant confirming his redundancy on 29th June 2020 followed up with an emailed letter on the same date confirming same and payment of €4,385.36 in statutory redundancy.  There was a further exchange of emails regarding other outstanding monies. 

Following the Complainant’s appeal against redundancy, Mr B had answered a list of questions about the process sent to him by Ms D, People Partner, assigned to hear the appeal.  He had confirmed that the Retailer had asked him to remove the two Security Supervisor roles in question as a cost saving measure.  The same roles filled by the Respondent in the other stores had remained.  In relation to the criteria used, he replied: “It was decided that due to the fact that Alin Teodor and (the other Security Supervisor)… have only ever worked at these 2 stores for Mitie, and indeed (its Predecessor) before Mitie won the contract, that they were the two officers at threat of redundancy… likewise the other supervisors have only ever worked at their respective stores.”  He confirmed that they were the only two employees made redundant.  He confirmed that he had invited the Complainant to apply for the part-time store detective position with the Retailer, being the only available role during the consultation period and the Complainant had declined. 

Cross-examination of Mr B, Operations Manager

Under cross-examination, Mr B confirmed that he had run the redundancy process based on Ms A’s advice.  He also confirmed that the Respondent provided security staff for ten of the Retailer’s stores.  The only role available with the Respondent at the time was the part-time store detective position.  He had not provided any further information to the Complainant on the security vacancy in Cork as he had not enquired about it and was also based in Dublin.  He confirmed that no new security staff had been taken on in the Retailer’s Dundrum Town Centre or Liffey Valley Shopping Centre stores since the Complainant’s redundancy.  His review of the availability of alternative roles with the Respondent was not documented.  He contended that the roles in question were standalone particular to those stores and not interchangeable and hence they did not affect anyone or anywhere else.  It was put to him that on the one hand the Respondent required its employees to move location when required but when it came to selection for redundancy they were pigeon-holed to their location.  Mr B replied that whilst a move of location is required by its employees when there is a vacancy or an employee goes sick, there were no other vacancies available at the time.

Mr B confirmed to the Adjudication Officer that he had also looked at other security roles within all other security contracts held with the Respondent but owing to the level of lay-offs due to the Pandemic, there were no available roles.  He also confirmed that the other Security Supervisor made redundant from Liffey Valley Shopping Centre had 14 years’ service, had received statutory redundancy and did not contest same.

Evidence-in-Chief of Mr C, People Director

By way of background, Mr C, People Director confirmed that the Respondent is a facilities management company providing a wide range of services to clients in Ireland across a number of disciplines including security services with 1,800 employees.  He explained that the Respondent tenders for contracts to provide these services.  Once the Respondent wins a contract, a legal contract is entered with the new client to provide the requisite staff/labour to undertake the particular service and the Respondent bills accordingly.  A contractual margin enables clients to increase or reduce staff/labour at their discretion.  Day to day instructions from clients are usually received verbally and may be followed up in writing depending upon the nature and scale of the change to the contract.  When staff are no longer required by a client, they are redeployed into other contracts where positions are available but occasionally have to be made redundant.

Mr C outlined the background to the transfer of the Complainant’s employment to the Respondent.  The Respondent had successfully bid for the contract with the Retailer with the consequence that the Complainant’s previous employer had lost the contract.  Under the Transfer of Undertakings Regulations, the Respondent was bound to take over its employees including the Complainant on their existing terms and conditions.  As the Complainant’s role was a Security Supervisor for the Retailer’s store in Dundrum Town Centre as specified on the Employer Liability Information (ELI), the Respondent retained him in that role in that location.  He had only ever worked in that role for the Retailer and occasionally worked in Liffey Valley Shopping Centre.  Mr C confirmed that there was no written contract for the Complainant and his terms and conditions were confirmed in the ‘Staff transfer – staff consultation form’ as outlined above.  The Respondent also had a Handbook which did not include a redundancy / selection process.  Finally, Mr C confirmed that he had delegated the Complainant’s appeal against his redundancy to Ms D, People Partner.

Evidence-in-Chief of Ms D, People Partner

Ms D, People Partner with the Respondent confirmed that she was assigned to hear and determine the Complainant’s appeal against redundancy raised on 24th June 2020 via the Grievance Procedure.  Following a number of postponements to facilitate the attendance of the Complainant’s Union Representative, a hearing was held on 16th July 2020 with a notetaker present.  The Complainant had raised five grounds of appeal against his redundancy contending that it was unfair which were discussed in detail at the meeting.  Afterwards, he was sent the minutes and responded with proposed modifications which were accepted.  As part of her investigation, Ms D sent a list of questions to Mr B and Ms C in relation to the process adopted, both of whom confirmed their positions as set out above.  The Complainant had also been afforded an opportunity to comment on their responses.  He had responded confirming that he did not agree with certain statements without specifying which.  Ms D issued her detailed outcome to the Complainant on 27th August 2020, confirming that his appeal/grievance in relation to his redundancy was not upheld.  She went through her findings in relation to each of the five grounds.  The Complainant had questioned why only two Security Supervisor positions on the Retailer’s contract were placed at risk of redundancy and made redundant.  Ms D found that this was because it was a client-led decision and they were the only two standalone roles affected.  The Complainant had considered the redundancy unfair as the selection process had not taken into account any potential competencies or qualifications, any disciplinary or attendance record and no redundancy selection policy or criteria was published.  Ms D found that as the removal of the Security Supervisor roles in question was a client-led request as a cost-cutting measure and as these were standalone roles “… no selection process was required therefore the use of a selection scoring matrix including competence, qualification etc was not required.”  The Complainant had also complained that the remote meeting with Mr B on 20th May 2020 was a box-ticking exercise and no redundancy avoidance measures were explored, information provided, or questions answered and the minutes did not represent the meeting.  In this respect, Ms D found that Mr B had corresponded with the Complainant and addressed all the issues raised with the minutes.  The Complainant had further contended that as the redundancy process had been led by the same managers involved in his grievance, they had a direct interest in removing him.  On this issue, Ms D found that because the redundancy was a client-led decision and as another person had been made redundant, it was not a personal decision and in no way linked to the grievance raised.  Finally, in relation to the Complainant’s complaint about not being furnished with a formal written redundancy policy, Ms D found that whilst the Respondent does not have a formal redundancy policy, the process followed was similar to processes adopted in the past.  Having reviewed the evidence, she found that a genuine redundancy situation occurred and that the process adopted was fair.  Finally, she noted that on 8th June 2020: “…, alternative employment was offered to AT, although this was not a like for like role, the role was for a Store Detective, working 30 hours per week on €13 per hour thus trying to seek alternative work for AT and keep him employed with the company and avoiding redundancy.”  Ms D also furnished the Complainant with documentation in line with his subsequent data access request. 

Cross-examination of Ms D

Under cross-examination, Ms D outlined her extensive HR experience including dealing with other redundancies.  She also confirmed that she had accepted Mr B’s word that two alternative roles had been offered to the Complainant, but she had not sought or examined the paperwork underlying these positions. 

This Adjudication Officer questioned Ms D as to why given that these redundancies arose for economic reasons at the height of the Pandemic, lay-off had not been considered as an alternative given the provision of financial supports and freeze on redundancies for the emergency period.  Ms D replied that the Complainant had been offered the alternative role as a part-time store detective which he had declined. 

Submissions on behalf of the Respondent

The Respondent refutes the Complainant’s complaint of unfair dismissal and contends that he was fairly dismissed by reason of a genuine redundancy under Section 6(4)(c) of the Unfair Dismissals Act 1977.  The Respondent refutes the Complainant’s contention that he was unfairly selected for redundancy and maintains that his position along with the other Security Supervisor positions were stand-alone roles with the Retailer.  The Respondent further contends that it adhered to fair procedures and engaged in a meaningful consultation process offering the Complainant all available suitable alternative employment.

Specifically, the two Security Supervisor roles in question were identified and placed at risk of redundancy as both roles were no longer required in their respective locations by its client, the Retailer.  This was due to cost-saving measures in circumstances where security supervisors are paid at a higher rate than security officers.  Accordingly, the Respondent had no choice but to place the Complainant’s role at risk of redundancy.  The Complainant and the other Security Supervisor made redundant had only ever worked at the two identified Stores, hence the reason why they were placed at risk of redundancy and ultimately selected.  Likewise, the two other Security Supervisors had only ever worked in their respective Stores.

It was further submitted that the Complainant had been afforded a fair and transparent process including a 30-day consultation period with representation from a Union Representative.  Alternative security roles were discussed but none were available and he had declined to apply for the part-time store detective role.

The relevant statutory provisions governing dismissal by reason of redundancy under Section 6 of the Unfair Dismissals Acts 1977-2015 and Section 7 of the Redundancy Payments Acts 1967-2014 were set out as per the findings and conclusions hereunder.  The Respondent submits that the Complainant’s dismissal resulted wholly from the “redundancy of an employee” as expressly provided for by Section 6(4)(c) of the Unfair Dismissals Act 1977.  The Respondent maintains that this was by reason of a genuine redundancy and in this respect relies upon Section 7(2)(a) and (b) of the Redundancy Payments Act 1967 in circumstances where the Complainant’s employment had permanently ceased in the locations where he was employed, both contractually and historically by custom and practice where he had only ever been employed in those locations.  Specific reliance was placed upon the following highlighted portions:

“(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 concernedthe 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…”

In this respect, reliance was placed upon the Labour Court determination in Component Distributers (CD Ireland) Ltd -v- Burns (2018) UDD 1854 where it was held that: “… the Court is satisfied that the termination of the Complainant’s employment was directly related to the fact that her job no longer existed and no alternative positions were suitable/available to her.”  The Respondent submits that in a similar fashion to that case, the termination of the Complainant’s employment on the ground of redundancy was directly related to the fact that his job no longer existed, and no alternative positions were suitable or available. 

Without prejudice to the aforesaid, the Respondent took issue with the Complainant’s efforts to mitigate any financial loss arising.  It was pointed out that he had been in receipt of PUP for most of his period of unemployment.  It was submitted that there was plenty of suitable work including security work with the Respondent available to the Complainant notwithstanding the Pandemic.  It was further submitted that the vouching of his efforts to avail of alternative employment relating to a one-week period was insufficient. 

Overall, and on behalf of the Respondent, it was submitted that the Complainant’s dismissal on the ground of redundancy was objectively justified and procedurally sound and hence this complaint should fail.

Summary of Complainant’s Case:

Evidence-in-Chief of the Complainant

The Complainant gave brief evidence outlining his work history with the Respondent as a Security Supervisor between 8th March 2017 and 29th June 2020.  He confirmed that he had lodged a grievance and had just returned from a month-long period of related sick-leave on 11th May 2020 prior to being advised of his impending redundancy.  He contended that his redundancy was unfair and he had not been offered suitable alternative employment.  He had never been made aware of the Cork position and he was required to apply for the part-time store detective position which was on lesser terms and was not Dublin-based.

In terms of mitigation, the Complainant had undertaken fast-food deliveries for a period as there were no available positions within the security industry.  He had also applied for other work in the security and construction industries and looked at self-employment.  The Complainant had been in receipt of PUP (Pandemic Unemployment Payment) following the termination of his employment until 9th August 2021 as confirmed with records from the Department of Social Protection.  He commenced new employment on 15th October 2021 earning a similar wage which was due to increase after successful completion of a six-month probation period.  He claimed compensation reflecting a loss of earnings for a fifteen-month period.

Cross-examination of the Complainant

The Complainant was asked whether his grievance related to anybody involved in the redundancy process.  At this juncture, the Complainant’s Solicitor confirmed that it was no longer being contended that the Complainant’s redundancy was related to his raising of a grievance to the Respondent beforehand.

The Complainant was asked why he had not considered the alternative store detective position.  He replied that it had never been offered to him as he was required to apply for the position.  He agreed that he had replied: “Your offer is not reasonable and I am not interested in it.” and he had not applied for the position.

The Complainant was asked about his efforts to mitigate his losses.  He was asked to explain why the job applications furnished all related to the last week of May 2021 and/or were undated.  He replied that the jobs came in waves, and he had searched for work within the construction and security industries.  He confirmed that he had received no response to his job applications made via by a Jobs website.  He was asked why he had not applied for other suitable jobs.  He replied that as he had made door-to-door enquiries with fast-food companies there was no documentation of same.  He maintained there were no suitable security jobs during the Covid-19 Pandemic.  He was also medically unable to work as a factory operative.  He had not applied for delivery jobs as he would have been required to have his own van.  The Complainant maintained that notwithstanding that he was unable to provide details of making any specific job applications, he had made efforts to apply for alternative employment during the period in question.

Submissions on behalf of the Complainant

The relevant provisions under Section 6 of the Unfair Dismissals Acts 1977-2015 were set out as per the findings and conclusions hereunder.  On behalf of the Complainant, it was submitted that the rules of natural justice and fair procedures should be observed when taking a decision to dismiss an employee on the ground of redundancy as per the statutory provisions and caselaw.  In particular, Section 6(7) of the Unfair Dismissals Act 1977 (as amended) provides: “Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so- (a)to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and…” 

The Labour Court has confirmed that even where an employee is genuinely made redundant, the manner of dismissal may be held to be procedurally unfair.  It is also well established that there is an obligation on an employer to look for an alternative to redundancy as confirmed in Mulcahy -v- Kelly (1993) E.L.R. 35.  In Jeffers -v- DCC Ireland Ltd UD 169/2000, the Tribunal held: “When a position is being made redundant, there was an onus on the employer (i) to take reasonable steps to seek alternative employment within the company for the employee being made redundant, (ii) to know what positions, if any, are available on the relevant date, and (iii) to offer any such reasonable alternative positions to the employee whose position is becoming redundant.”  In JVC Europe Ltd -v- Ponisi (2012) E.L.R. 70, Charlton J. contended that: “It might be prudent and a mark of genuine redundancy, that alternatives to letting an employee go should be examined” and “Similarly, a fair selection procedure may indicate an honest approach to redundancy by an employer,…”  In Employee -v- Employer UD 1826/2010, the EAT held: “Objective selection criteria are needed in order to carry out a proper redundancy procedure.”  Additionally, in Employee -v- Employer UD 206/2011, the EAT held: “When an employer is making an employee redundant, while retaining other employees, the selection criteria being used should be objectively applied in a fair manner.  While there are no hard and fast rules as to what constitutes the criteria to be adopted nevertheless the criteria adopted will come under close scrutiny if an employee claims that he/she was unfairly selected for redundancy.  The employer must follow the agreed procedure when making the selection.  Where there is no agreed procedure in relation to selection for redundancy, as in this case, then then the employer must act fairly and reasonably.”  Reliance was also placed on the cases of Tolerance Technologies Ltd -v- Foran UDD 1638; Students Union Commercial Services Ltd -v- Traynor UDT 1726; Thomas and Beets Manufactures Ltd -v- Harding 1980 IRLR 255; ADJ-00020709 and Murphy’s Supervalu Rosslare Harbour -v- Devereux UDD 1967.

In relation to the instant case, it had originally been submitted that the Complainant was selected for redundancy owing to raising a grievance although this was not pursued at the hearing.  It was submitted that the Complainant’s redundancy was a guise, and no fair procedures were adopted.  It was pointed out that of the four Security Supervisor roles filled by the Respondent for the Retailer in the Dublin region, the Complainant had the shortest service whilst the other employee had the longest service.  Therefore, even if the Respondent relied upon the last in, first out rule (LIFO), it was evident that this had not been applied. 

The Respondent did not have a formal written redundancy selection policy.  The Complainant was not furnished with any selection criteria and contends that all four Security Supervisor positions should have been in the selection pool particularly as the initial email simply referred to a review of the Dublin region.  In this respect, it was pointed out that the Security Supervisors were not contracted to any particular store based upon the Respondent’s requirement for the relocation of its employees as referred to herein.

In oral submissions, it was submitted that the offer to apply for a part-time store detective position on lesser terms with the same client did not constitute an offer of alternative employment.  Furthermore, the Complainant had never been offered a position in Cork referred to for the first time during this hearing. 

Overall, it was submitted that the Respondent had not discharged the burden of proving that the Complainant was dismissed owing to a valid redundancy and appropriate fair procedures were not applied.

Findings and Conclusions:

The Complainant was employed by the Respondent as a Security Supervisor (under a contract with a client which had transferred under TUPE) until his dismissal on 29th June 2020.  He contends that his dismissal was unfair and seeks compensation in respect of same.  The Respondent maintains that he was properly and fairly made redundant owing to its client cutting two Security Supervisor roles including his role in a cost-cutting measure for economic reasons and accordingly, this complaint should fail.  I am therefore required to determine whether or not the Complainant has been fairly dismissed by reason of redundancy. 

It is firstly necessary to set out the requisite statutory provisions pertaining to this complaint of unfair dismissal.  The applicable portions of Section 6 of the Unfair Dismissals Act 1977 (as amended) provide:

“6(1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal…

(4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:..

(c) the redundancy of the employee, and…

(7) Without prejudice to the generality of subsection (1) of this section, in determining if a dismissal is an unfair dismissal, regard may be had, if the adjudication officer or the Labour Court, as the case may be, considers it appropriate to do so-

(a) to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, and…”

It is further noted that Section 6(3) provides for specific circumstances where a redundancy is deemed to be automatically unfair subject to the generality of Section 6(1), none of which apply in the instant case.

Redundancy is defined by Section 7(2) of the Redundancy Payments Act 1967 (as amended) as follows:

“(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 concernedthe 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 henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, 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 henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained,…”

Subject to the generality of Section 6(1), Section 6(4)(c) of the Unfair Dismissals Act 1977 provides that the dismissal of an employee is deemed not to be unfair if it results wholly or mainly from redundancy.  As observed by Charlton J. in JVC Europe Ltd -v- Ponisi (2012) E.L.R. 70: “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.”  The legislation and caselaw as set out aforesaid requires the employer to (1) establish that a genuine redundancy situation existed and if so, that the dismissal resulted wholly or mainly from that redundancy and (2) conduct itself reasonably throughout including adherence to fair procedures.  This includes a fair selection process and taking of reasonable steps to identify alternative employment.  In circumstances where an employer has no agreed redundancy selection policy, the various employment fora have held that the employer must act fairly and reasonably. 

It is important to acknowledge that the Covid-19 Pandemic was an extremely challenging time for employers and employees alike with uncertainty as to how best to manage the challenges posed by the restrictions and consequent economic pressures whilst conducting processes remotely.  Having factored this in and applied the applicable law and statutory provisions to the factual matrix herein which is not materially in dispute, I am satisfied on the balance of probabilities that the Respondent has not established that a genuine redundancy situation existed and/or adherence to fair procedures for the following reasons:

1. The Respondent did not undertake any enquiry in relation to the Retailer’s verbal instructions to remove the two Security Supervisor roles including the role held by the Complainant before making him redundant. In relation to the circumstances giving rise to his position becoming at risk of redundancy, it was Mr C’s evidence that the Respondent had acted upon a telephone call on behalf of the Retailer instructing that the Security Supervisor roles in its Dundrum Town Centre and Liffey Valley Shopping Centre stores were to be removed from their contract as a cost-reduction measure due to economic and financial pressures.  The Respondent simply accepted these ‘client-led’ verbal instructions without question, presumably because its contract with the Retailer allowed for a margin of change.  The Respondent did not probe the basis for the Retailer’s decision to cut the roles in question or seek confirmation or reasoning for same in writing to ascertain whether these cost-cutting measures arose from Covid-19, were permanent and/or other whether similar positions would become available in the future.  Given the Respondent’s limited state of knowledge it is difficult to understand why it treated the employees holding these roles differently from its three hundred other employees who had been laid-off owing to the Pandemic.  When making such a serious decision as to terminate an employee’s employment, I consider that a reasonable employer would have made such enquiries to satisfy itself as to the necessity for making the roles in question redundant. 

I consider this even more pertinent in the height of a Pandemic where a suite of Government financial supports was available to support employers in retaining employees and preventing redundancies.  Section 12 of the Redundancy Payments Act 1964 was also suspended for the duration of the emergency period in respect of an employee who has been laid off or kept on short-time due to the effects of measures required to be taken by his/her employer in order to comply with, or as consequence of, government policy to prevent, limit, minimise or slow the spread of infection of Covid-19.  Such an employee was not entitled to give notice of intention to claim redundancy during the emergency period between 13th March 2020 and 30th September 2021.  Therefore, the Complainant could have been placed on lay-off on PUP (Pandemic Unemployment Payment) until employment conditions improved.  However, there was no discussion of same during the consultation process and instead the Respondent strictly confined itself to the standard 30-day period and upon the expiration of same opted for the permanency of redundancy at a time of uncertainty.  The fact that Mr B had informed the Complainant that if an alternative role was not found by the end of the consultation period and he was made redundant, he could still apply for jobs with the Respondent in the future without affecting his redundancy pay would indicate that he did not consider the situation to be permanent.  It is not sufficient to say in hindsight that the Respondent’s decision was correct because the positions in question were permanently made redundant and/or have not been filled to date. 

2. The Respondent’s position that the Complainant was so contractually bound to the role and location in question, such that it had no alternative but to select him for and/or make him redundant is unreasonable. It is not in issue that the Respondent is a large total facilities management company in the business of providing staff to deliver services in a number of areas including security and has a large number of staff on its books.  The Complainant was one of these employees who was filling one of several Security Supervisor roles in fulfilment of the Respondent’s contract to provide security services for its client, a Retailer.  There was no written contract binding the Complainant to that role and to the contrary, the Respondent regarded him as being subject to a flexibility clause as evident from his grievance outcome where it was stated: “… it is a condition of your employment that you are prepared to accept changes to your employment, up to and including an amendment to your duties, hours of work and/or place of work.  Mitie would only ever insist on such changes if there is a genuine business reason, and if it is a reasonable request.”  I note that whilst the Respondent required the Complainant to exercise flexibility and work in another location during the early stage of the Pandemic, when it came to considering him for redundancy, it adopted a contradictory view that his role was a standalone position and he was bound to the particular role and location in question.

Nor was it the case that the Respondent itself “…has ceased or intends to cease, to carry out that business in the place where the employee was so employed” and/or “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” pursuant to Section 7(2) of the Redundancy Payments Act 1967.  It is in fact the case that one of its many clients no longer required two Security Supervisor positions to be filled under a contract to provide security services.  The Respondent has continued to provide staff for security services on behalf of its clients including the Retailer.  According to Mr C’s evidence when staff are no longer required by a client, they are redeployed into other contracts where positions are available but occasionally have to be made redundant.  However, according to Mr B’s evidence, at the material time, the Covid-19 pandemic had a big impact across the Respondent’s whole portfolio including security, leading to pay-cuts and large-scale lay-offs with the consequence that the availability of alternative roles to offer the Complainant were limited. 

I accept that a genuine redundancy situation could conceivably arise within the meaning of the Acts where the redundant role is so specialised that the skills of the employee filling it are non-transferrable to any other roles held by an employer of this nature.  It could then legitimately be said that the employer “…has ceased or intends to cease, to carry out that business in the place where the employee was so employed” and/or “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” However, it is not in issue that the Complainant in the instant case had skills that were readily transferrable to other security roles.  In this respect, the factual position pertaining to the instant case is completely different to that in Component Distributers (CD Ireland) Ltd -v Burns (2018) UDD 1854 where following a comprehensive review, the employer had closed its Finance Department in Dublin for operational reasons.  I am also cognisant that the Respondent was contractually bound to offer the Complainant a role with the same terms and conditions or as similar as possible.  However, owing to the flexibility requirement, the transferability of his skills and the temporary unavailability of suitable alternative roles, I cannot accept the Respondent’s position.  I consider that a reasonable employer in the same circumstances would have retained the Complainant on lay-off on PUP or similar with a view to finding a suitable alternative role when conditions improved / restrictions were lifted.

(3)  The Respondent’s position that it offered the Complainant alternative employment is misconceived.  The Complainant was already an existing employee of the Respondent, being a large provider of services to third parties with a contractual obligation to maintain his employment on the same terms and conditions.  However, throughout this process, the Respondent appears to have distanced itself from the Complainant in terms of their employment relationship and its obligations towards him, quite possibly because his employment had transferred with the Retailer’s contract to the Respondent.  In particular, it is inexplicable that he would be required to formally apply for roles with its other clients as opposed to simply offering him any suitable roles as and when they became available.  Specifically, he was invited to apply for a part-time store detective position with the Retailer notwithstanding that he was already filling a security role for the same client.  Whilst there may well be situations where a formal application for an alternative role with the same employer in a bid to avoid redundancy would be appropriate such as where the job requirements and skills are different, the Respondent would have been well aware of the Complainant’s capabilities.  As set out in the grievance outcome and above, the Respondent also regarded it to be a condition of his employment “that you are prepared to accept changes to your employment, up to and including an amendment to your duties, hours of work and/or place of work.”  It is noted that in upholding the decision to make the Complainant redundant, Ms D considered that he had been offered the alternative role of part-time store detective when in fact he had only been invited to apply.  Had the Complainant declined any reasonable offer of alternative employment, then this Adjudication Officer may well have taken a different view but unfortunately, he was only ever invited to apply for one position during the process.

It is well established that where there is no agreed procedure in relation to selection for redundancy, as in the instant case, then the employer must act fairly and reasonably.  Whilst finding that the Respondent did not act fairly and reasonably in the instant case, the bona fides of the individual decision-makers is not in question.  They were clearly of the view that they were following proper procedures in the absence of a formal policy and were operating in very challenging circumstances.  Going forward and given the size and nature of its operations, the Respondent might consider putting a redundancy selection policy in place.

Decision:

Section 8 of the Unfair Dismissals Acts 1977-2015 requires that I make a decision in relation to a complaint of unfair dismissal.  For the aforesaid reasons, I find that the Complainant was unfairly dismissed by the Respondent.  Section 7(1) sets out the various forms of available redress including reinstatement, re-engagement and financial compensation as the Adjudication Officer “as the case may be, considers appropriate having regard to all the circumstances.”  Section 7(1)(c)(i) provides for compensation of up to 104 weeks remuneration in respect of the employment from which an employee was dismissed for “financial loss” attributable to the dismissal.  Section 7(1)(c)(ii) provides for compensation of up to four weeks remuneration if no financial loss was incurred by an employee.  Section 7(2) sets out the various factors to be considered in determining the amount of compensation payable under Section 7(1) including applicable to this case: “(a) the extent (if any) to which the financial loss referred to in that subsection was attributable to an act, omission or conduct by or on behalf of the employer, (b) the extent (if any) to which the said financial loss was attributable to an action, omission or conduct by or on behalf of the employee, (c) the measures (if any) adopted by the employee or, as the case may be, his failure to adopt measures, to mitigate the loss aforesaid,… (f) the extent (if any) to which the conduct of the employee (whether by act or omission) contributed to the dismissal.  Section 7(3) further provides that: ““financial loss”, in relation to the dismissal of an employee, includes any actual loss and any estimated prospective loss of income attributable to the dismissal and the value of any loss or diminution, attributable to the dismissal, of the rights of the employee under the Redundancy Payments Acts, 1967 to 1973, or in relation to superannuation;”

Whilst finding that the Complainant did not contribute to his dismissal, I am not satisfied that he has taken sufficient measures to mitigate his losses for his period of unemployment, the main part of which he was in receipt of PUP.  Apart from a few undated and generic applications from a one-week period, he was unable to provide any specifics of making job applications either orally or by way of vouching.  I must therefore conclude that for the most part, he was largely unavailable for employment until his PUP ceased in August 2021 and he then found similarly paid employment in October 2021.  In so finding, I have considered the lack of alternative employment to someone in the Complainant’s position during the Covid-19 Pandemic.  I have also considered that had he remained employed by the Respondent, his position would likely to have been similar on lay-off in receipt of PUP.  For these reasons, I consider his financial loss as a consequence of his dismissal to be minimal and an award of €5000 (less any lawful deductions) in compensation to be appropriate having regard to all the circumstances and direct that this sum is paid by the Respondent.  For the avoidance of doubt, this award is additional to the statutory redundancy paid to the Complainant.

Dated:   9th January 2024

Workplace Relations Commission Adjudication Officer:  Aideen Collard

Key Words:  Redundancy during Covid-19 Pandemic – Sections 6(4)(c) of the Unfair Dismissals Act 1977 - Section 7(2) of the Redundancy Payments Act 1967 – no genuine redundancy situation or fair procedures