Complainant

Respondent

Parties

Tim  Ross

Gerflor Flooring Uk Limited Gerflor

Complainant

Respondent

Anonymised Parties

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Representatives

Wendy Doyle WENDY DOYLE SOLICITORS

Tina Ochelle Deasy 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-00060856-001

05/01/2024

Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991

CA-00060856-002

05/01/2024

The Complainant alleges that the process in relation to his redundancy was so flawed that it rendered his termination unfair. The Respondent contests the allegations.

Tim Ross – Affirmation.

The Complainant alleges that he was out of work from 31.08.2023 to 26.02.2024. When he was made redundant, he immediately signed up to all of the sites to try very hard to get work. He wanted to get a job as soon as possible but he tried to keep his salary as similar as possible. As time went on, he lowered his expectations. He did several interviews but wasn’t successful. Some of those interviews were very long, drawn-out processes.

After the decision to make him redundant was made known to him, he filed an appeal. He felt that the appeal was just a box ticking exercise. He had to set out his reasons for the appeal and during the hearing he was made stick to those reasons even though he had more to say.

Jean Turner and David Gill hosted the redundancy consultation meetings. The Respondent has stated many times that the Complainant refused the ASM role. He did not. He did say he thought it was a step down, but he did not turn it down. It was suggested at the meetings that he should apply for the ASM role. At the second meeting he was told that he would have to apply for the role but at the third meeting he was told that he didn’t have the skill set for that role. He wasn’t actually offered any alternative roles. He was asked to look at the HR Hub. Any roles advertised would have required him to move to the UK. He couldn’t do that.

The 31.08 2023 was his final day working. He came into that meeting thinking there was going to be a discussion about applying for the ASM role. That didn’t happen. After that he was told his employment was over. His e-mails were cut off almost immediately and he was told he had to give back the car.

He appealed. At the appeal hearing he was present along with David Gill and Jean Turner.

The Complainant took issue with how the redundancy situation arose. He felt that the company  was mishandling certain matters which lead to the decline in the business and/or the loss of the business to competitors.  He felt he wasn’t given an opportunity to retrieve the situation for them.

CA-00060856-002 The complaint was withdrawn.

David Gill affirmation:

Mr. Gill is the sale manager for the Irish business. The consolidated business case is that the business has migrated, almost organically, to a distribution led sales and pipeline. The business went for 60 % of all sales in Ireland being channelled through distribution to 72 %, and it went upwards from there in the last year.  From the Respondent’s perspective, they were not able to influence that sales pipeline and their distribution partners were carrying that function out for them. Their distribution partners had sale resources that could represented their products in the market for them. Whilst the Complainant’s role was specialised in retail and because now their distributors were carrying out that function, his role had become redundant.  The business model they migrated to was similar to that of their two main competitors where they had two people in Ireland representing their sales business. In relation to the Complainant, it was not a performance issue with the Complainant. He was a good employee and a good worker. It was specially in relation to how the market was evolving.

From January 1st 2023 retail in Ireland became “retails Ireland”. Thereafter the UK and Irish teams were separate.

The Complainant had a quantitative and qualitative aspect to the role in relation to his bonus. The quantitative was in relation to the physical sales achieved. They were paid quarterly.

Quantitative:- He had a retail sale target of €1.3m ( 20 % of overall bonus)he also had a sub sale category in relation to technical tile product called GTI and the target was €720,000.00 ( 40 % of overall bonus).  The matting sale target was €100,000.00 ( 20 % of his overall bonus).

Qualitative:- He was to have clean CRM system. ( 10 % of his overall bonus) 

The final 10% was in relation to road map follow up.

The bonus is discretionary and is paid quarterly.  The contract sets out the bonus scheme. It states that the bonus is paid annually. However, the staff stated that they would prefer to be paid quarterly so in 2023 the payment was paid quarterly and not annually.

Q 1 in 2023 he was paid €2,440.00 bonus. GTI and Traction, he was 121% of bonus. Total retail sale he was at 87% however he was paid €479.00 . That was because he was over 85 %. Matting sale, the target was 24 and he achieved 1. CMI is subjective from each of the managers. It was deemed he wasn’t achieving the levels required.

Q2 and Q3 there were no sales made, so no bonus was paid.  The annual target was €1.3m. That was assessed on a pro rata basis up to October. The figure was €1.08m. His sales were €609,000.00. He was at 56% of his target went he finished.

The GTI and traction, the pro rata target was €600,000.00. He was at €432,000.00.  That was 72% of his target.

Matting the target pro rate was €83,000.00. His sales were €17,000.00.  That was 20.48% of his target.

The CRM was not clean and was not up to date. There he didn’t achieve his goal.

The road map follow up was also not achieved.

 The business case document is dated 04.08.2023. The Complainant was fully aware of the migration to distribution. The Complainant states that he wasn’t happy with the process. He says it wasn’t right, accurate or fair. He also took issue with the figures set out in the redundancy letter dated 27.09.2023. The Respondent states that the Complainant was correct in relation to the original statutory figures outlined. That was rectified. The Respondent is in no doubt that the Complainant was fully aware at all times of the reasons for the redundancy. He would have been aware of the shift in the business model even in the absence of the redundancy process. 

The Complainant states that did highlight his issues with the process in the appeal notes. The Respondent stated that he did do that, but it was in relation to the payment amounts. It is accepted that the entire process was not absolutely perfect, but it was fair and transparent.

The Complainant was formally made Redundancy by letter dated the 27.09.2023. His final date working was the 29.09.2023. He was on garden level until the 29.10.2023 but was paid until the 17.11.2023.  The letter does state that garden leave will commence with immediate effect “from our meeting”. The Complainant states that the meeting was on the 31.08.2023 and his garden level ended on the 29.09.2023. The Respondent states that that was extended to the 29.10.2023 and he was paid up to that date. That letter set out that a statutory redundancy payment of €7,800.00 would be made. However, that figure was incorrect. He was paid € 8,604.00 and a ex gratia payment of € 5,000.00. He was also paid €7,820.00 in lieu of notice.

 He lodged an appeal. It was heard on the 02.11.2024. Mr Burtrand heard the appeal, and he rejected it. Mr. Gill was called as a witness via teams because he and Ms. Turner attended at the redundancy meetings in August. It was Mr Gill who issued the redundancy notice.

The letter of appeal outcome is contained in appendix 7 of the Respondent’s submisions.

04.08.2023 a letter was sent to the Complainant. This was the beginning of the consultation process. “we have commenced a period of consultation with you and the time scale will be no longer than one month” Mr. Gill was prepared to extend that time schedule if necessary. He explained to Mr Ross about the key points in the business case and the path the business was organically moving towards. There was an understanding what was happening with the business and it wasn’t challenged by the Complainant. Other roles were discussed with the Complainant, but he didn’t want to take a step backwards. He was also offered roles in other territories, and he didn’t want that either.

The Complainant stated that Mr. Gill encourage him to apply for Mr. Murphy’s  ASM position from the start of the process. The Respondent did state that it was discussed but it was clear from the outset that he was not interested in taking a step back into that role.

 Jean Turner – affirmation

Ms. Turner works in the HR department. There has been some confusion in relation to the Complainant’s end date. The Complainant finished his employment on the 29.10.23. He was paid until the 17.11.2023.

Ms Turner requested a copy of the business rational so that she could ensure that the redundancy situation was genuine and necessary. The Complainant was invited to a meeting to discuss the issue of the redundancy. The business rational was discussed with him. The issue of alternative employment was not discussed with him at the first meeting. It was discussed at the second meeting. The ASM role was €15,000.00 less per annum and it was accepted that it probably was not a like for like role and probably not a satisfactory alternative. When they met again the Complainant stated that he did not want to take a step backwards and he did not want to work outside of this jurisdiction. There was no role available for him in this jurisdiction. It was clarified to the complainant several times it was the role that was being made redundancy and not him personally.

Around the time he was made redundancy, there have been 13 roles not replaced when people left and one redundancy in December. There were 24 roles in total before that.

In relation to the payments, it is accepted that there was an error in the figures, and we accepted the notice period from the original decision. The Complainant was paid €8,604.00 redundancy, €7,820.00 notice, €2,111.00 holiday pay and €5,000.00 ex-gratia.

He was given a car for an extra month so he could get himself to interviews. He was also paid on garden level for an extended period of time to support him while he was looking for a job. The ex- gratia payment was also to help him while he was looking for alternative employment.

CA 60856-02.

At the end of the hearing the Complainant accepted he was paid the bonus he was entitled to, and he withdrew that claim.

CA 60856 -01.

The Complainant states that the redundancy process was flawed to the extend that it rendered the termination of his employment unfair.

Firstly, the Complainant alleges that he was not given notice of the redundancy in writing on official company headed note paper. I note however from the documentation submitted that there is official company correspondence dated 27.09.2023 which clearly set out the redundancy situation and payments due to the Complainant. It was also agreed that there were two meetings in during the process itself and it wasn’t until the third meeting that the Complainant was informed that his role was being made redundant. That was on the 31.08.2023.  That was the last day he worked. However, he remained on the payroll until the 29.10.2024. He was paid his entitlements together with an ex-gratia payment of €5,000.00. He was also allowed to keep the company car for a period of time.

Secondly, the Complainant felt that the Appeal was nothing more that a box ticking exercise. He appealed on the following grounds:

1.       I do not believe a genuine reason has been given for this dismissal.

2.       When I was assigned the Kam role the job description was Retail & Housing, you took housing from me without discussion. If I still had housing, the reasons given for this redundancy would not apply, therefore, this is an unlawful redundancy and I ask to be reinstated into my KAM role.

3.       I have not been given a specific reason for this redundancy. Weeks of my time was wasted when I was led to believe I could apply for the ASM role, this was time I should have been looking for new employment.

It is clear not only from the evidence given at the hearing today but from the documentation submitted that the reasons for the redundancy were discussed in detail with the Complainant and it was obviously to anyone working in the business what direction the business was taking. The Complainant blames the change in direction on the Respondent and how they approached the business in Ireland. He states that he addressed concerns with them many times, but those concerns were essentially ignored. How the Company is managed or mismanaged is not a matter for me.  My role is to establish whether a genuine redundancy situation existed and whether or not the process leading up to the actual redundancy was fair. The reality is that the Complainants role became redundant. That situation came about organically when through no fault of anyone the business took a different path. The Complainant was invited to engage in the process, was offered roles, albeit outside of the jurisdiction and was assessed for a ASM role but unfortunately was deemed unsuitable for it. There were only a very small number of positions in the company in Ireland and they were already filled. As the Complainant did not want to work outside of the jurisdiction the only options was to make the role redundant and terminate his employment.

In relation to the process itself I am satisfied that there was a proper consultation process. The Complainant engaged in three meetings prior to his position being made redundant. They were on the 04.08.2023, 23.08.2023 and 31.08.2023. He was afforded the opportunity to appeal the decision and he availed of that. He was invited to the Appeal hearing by letter dated the 24.10.2023. The appeal hearing was on the 02.11.2023 and the outcome was communicated to him by letter dated the 08.11.2023. He was paid up until the 17.11.2023.

In all of the circumstances I find that the process was fair and the Complainant was given every opportunity to engage in that process. Alternative positions were explored with him however as the company in Ireland was so small and he did not want to work outside of the jurisdiction, there were little or no opportunities for him with the Respondent going forward.

The complaint is not well founded and accordingly fails.    

CA- 00060856-001 The Complaint fails.

Redundancy. Redundancy process. Alternative positions. Appeals process. Notification.