ADJUDICATION OFFICER DECISION

Adjudication Reference:  ADJ-00049897

Parties:

Complaint:

Date of Adjudication Hearing:  02/05/2024

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Background:

The Complainant contends that he was unfairly dismissed by way of redundancy and his role still existed.

Summary of Complainant’s Case:

The Complainant gave sworn evidence.  He stated that he was employed as a Marketing Executive from 12th September 2022 to 19th January 2024.  He was called in by the Operations Manager on 2nd November 2023 and told his job was at risk.  The reason given was financial restructuring.  He was laid off with immediate effect.  There were a number of meetings held with the company and he was advised that he could propose alternatives, or he could apply for a Business Development role which was advertised.  His skillset did not match that role.  As he is based in Waterford and the alternatives were in Dublin, this was not feasible.  He believed that as his role was taken over by the Operations Manager, his role was not made redundant and that he was unfairly dismissed.

Summary of Respondent’s Case:

The Respondent made a detailed written submission.  In addition, the Senior Operations Manager gave sworn evidence.  He stated that there was a financial review due to some losses being experienced in one of the Clinics.  The Complainant’s role of Marketing Executive was considered to be a luxury role and due to the financial situation, the role was transferred to his (Senior Operations Manager) role.  He advised the Complainant that his role was at risk and in discussions, told him that the Business Development role was available.  But the Complainant declined to apply for that role.

The Respondent submits that the redundancy was genuine as there was a financial restructuring which led to the Complainant’s role being subsumed into the Senior Operations Manager’s job.                        Due to financial downturn in one of its clinics, a number of roles were at risk.  The Complainant’s role was considered to be at risk, and he was advised at a number of meetings and he was encouraged to put forward alternatives.  He was asked if he would apply for a Business Development role which was advertised on the website.  It is argued that due process was afforded the Complainant and an open and transparent approach was taken to the matter.

The relevant legislation was cited.

Section 7(2) of the Redundancy Payments Acts provides:

“(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—

(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”

Findings and Conclusions:

The issue for decision in the present case is whether or not the Complainant was unfairly dismissed contrary to Section 6 of the Unfair Dismissals Acts. The fact of dismissal is not in dispute between the parties, and therefore, the burden of proof rests with the Respondent to demonstrate that the termination of employment came within a lawful reason.   The Respondent contends the Complainant was dismissed by reason of redundancy.

In the circumstances, in order to satisfy the burden of proof, it is therefore, a matter for the Respondent to establish (1) that a redundancy situation arose and (2) that it acted reasonably and fairly towards the Complainant in addressing that situation in terms of the selection process for the redundancy.

The Respondent contends that due to difficult financial circumstances resulting in financial restructuring, it was necessary to make the Complainant’s position redundant.

Section 7(2) of the Redundancy Payments Acts provides:

“(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..

In considering whether or not a redundancy situation arose in the context of the present case, I note the evidence of the Senior Operations Manager that the Complainant’s position was considered a “luxury role”.

In terms of deciding whether or not the Complainant was unfairly selected for redundancy, I am obliged to take cognisance of the following provisions of the legislation.

The contractual entitlement to a defined procedure in terms of the selection of candidates for redundancy is provided for in Section 6(3) of the Unfair Dismissals Act 1977 which 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.”

I have not been presented with any evidence to suggest that there was either any trade union agreement or any custom or practice in operation within the company in relation to the manner in which candidates should be selected for redundancy. I also find that the selection of the Complainant for redundancy did not result wholly or mainly from any of the matters specified in subsection (2) of Section 6 of the Act. In the circumstances, I find that the Respondent did not act contrary to the provisions of Section 6(3) in terms of the manner in which the Complainant’s redundancy was effected.

However, notwithstanding the foregoing, in considering the fairness or otherwise of the Complainant’s selection for redundancy, I am also obliged to take cognisance of the provisions of Section 6(7) of the Unfair Dismissals Act 1977 (as substituted by s.5(b)(a) and (b) of the Unfair Dismissals (Amendment) Act 1993), which provides that:

“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 mission) of the employer in relation to the dismissal”.

This provision provides that the reasonableness of the employer’s conduct is an essential factor to be considered in the context of deciding on the fairness or otherwise of a dismissal and it places an obligation on an employer to act reasonably in taking a decision to dismiss an employee on the grounds of redundancy.  In this regard, I note that the Employment Appeals Tribunal held in the case of Gillian Free v Oxigen Environmental UD 206/2011, the Employment Appeals Tribunal held that:

“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 the employer must act fairly and reasonably.”

It is well established that a redundancy must not be concentrated on any one individual in an employment.

In this case, I have been presented with no evidence in relation to the method by which the Complainant was chosen for redundancy.  I have taken into consideration the fact, for example that a matrix of selection for redundancies was not drawn up by the Respondent.                                        The Matrix, in particular has long been recognised as constituting best practice when effecting redundancies.  Typically this would take into account length of service, skillsets, employment record and suitability for all or many of the employees in an employment.  The Respondent has a number of outlets and could have approached the issue in a more methodical way to demonstrate transparency.

For the reasons cited, I find that the Complainant was unfairly selected for redundancy and was unfairly dismissed.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Based on the findings above, I have decided that the Complainant was unfairly dismissed by way of unfair selection for redundancy.  I consider the appropriate redress to be compensation, as neither re-engagement nor re-instatement are appropriate in the circumstances where the Complainant has secured alternative employment.  Taking into account the Complainant’s securing employment and his losses, I award the Complainant the sum of €8,076 being equivalent to 3 months salary.  

Dated:   12-06-24

Workplace Relations Commission Adjudication Officer:  Gaye Cunningham

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