Case Number: ADJ-00018534. Workplace Relations Commission

• Docket Number: ADJ-00018534
• Hearing Date: 14 November 2019
• Date: 09 April 2020
• Court: Workplace Relations Commission

Procedure:

In accordance with Section 8 of the Unfair Dismissals Acts, 1977 – 2015following 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 was employed by the respondent as a Principal Consultant from January 2008 until his redundancy on or about 26th July 2018. The complaint was referred to the Workplace Relations Commission on 7th December 2018 and relates to alleged unfair dismissal.

Summary of Respondent’s Case:

The respondent refutes the complaint of Unfair Dismissal and contends that the complainant was dismissed fairly by reason of redundancy. The respondent stated that the redundancy selection criteria used was based on transparent, impersonal and objective grounds. The respondent stated that due to unfavourable economic circumstances and unsustainable financial losses, it had no option but to reduce its staff numbers by way of redundancies. The respondent confirmed that there was a total of twenty consultants employed in 2018 and currently only nine consultants remain employed. The respondent outlined that a meeting took place with all consultants on 18th May 2018 and it was clarified that three consultant positions would be made redundant. The respondent stated that the selection criteria was based on the fee income and sales figures of the previous 12-month period. The respondent stated that the complainant raised concerns in relation to the selection criteria and two meetings took place on 6th June and 14th June 2018 between the Managing Director of the respondent, the Operations Manager, the HR Manager and the complainant and his representative. The respondent contends that the redundancy selection criteria was applied consistently to the Consultants employed at that time. The respondent stated that as the complainant was in the bottom three in relation to fee income and sales in the previous 12 months, he was one of the three consultants chosen to be made redundant. The respondent stated that the complainant was a competent employee but that his high levels of unavailability for projects resulted in him being in the bottom three performers which ultimately brought him into the space where he was made redundant based on the selection criteria. The respondent confirmed that the complainant appealed the redundancy on 21st June 2018 and an appeal was conducted by the Vice President of a related Company from within the group. The redundancy was upheld and was notified to the complainant on 6th September 2018. Summary of Respondent’s Evidence The Managing Director/Vice President (MD) and the Operations Manager (OM) of the Respondent gave evidence in relation to the complaint. The MD stated that the business was incurring significant losses at the time and was being kept afloat by its Parent Company. The MD outlined that no bonuses had been paid in 2017/2018 and that a reduction in the cost structure was necessary in an attempt to ensure the future viability of the Company. As Salaries were the largest cost, it was deemed necessary to reduce the number of consultants. The MD stated that this was done as a last resort having previously made significant efforts to improve sales figures and avoid redundancies. The OM gave evidence in relation to the complainant’s unavailability in relation to two projects as well as issues relating to other unavailability due to periods of annual leave. The OM stated that the complainant had made himself unavailable for a project that required between 40 and 60 days beginning in March 2018 and also made himself unavailable for 20 days of annual leave in April 2018. The OM stated that the annual leave was removed from the online availability planner in April 2018 and 20 days were added to a project from January 2018 that had only initially required between six and eight days. The OM stated that the complainant’s unavailability was unhelpful as it could have resulted in a loss of much needed business at that time. Legal Submissions Counsel for the respondent stated that it acted fairly in relation to the application of the selection criteria and cited the EAT decision in Boucher v Irish Productivity Centre 1994 EAT ELR205 in support of its position in that regard. The respondent quoted the following excerpt from the EAT Decision: “In these circumstances and in the absence of any guidelines or precedent the employer is obliged to act fairly in relation to the criteria applicable in selecting who is to go and who is to stay and to apply such criteria fairly to each individual in order to bring about a fair assessment and decision. The assessment is to apply to all in the group and not just to some.” Counsel also cited the decision in Hickey v Eastern Health Board 1991 SC9 ILT DIG24 in support of the respondent’s position that the complainant had the benefit of a lengthy consultation process, two individual consultation meetings prior to the redundancy being affected, was represented at all times and was provided with an independent appeal of the redundancy decision. Counsel stated that the survival of the Company required a number of redundancies and the process applied by the respondent was fair and objective and applied equally to all within the Consultant group. Counsel concluded by stating that the complainant was fairly dismissed by reason of redundancy and that the complaint of alleged unfair dismissal should fail.

Summary of Complainant’s Case:

The complainant contends that he was unfairly dismissed on the basis that the redundancy was not genuine and that the selection criteria used by the respondent was grossly unfair and was simply a box ticking exercise to achieve a pre-determined outcome. The complainant also asserts that the person who dismissed him was not an employee and therefore had no entitlement to dismiss him from his employment. The complainant cites the case of Grenet v Electronic Arts Ireland Limited [2018] IEHC 786 in support of its position in that regard. The complainant stated that he had in excess of ten years’ unblemished service with the respondent and there had been no negative performance appraisals during his employment. The complainant stated that until the redundancy selection criteria was announced, he had no reason to believe his performance over the previous 12 months would be used against him to dismiss him from his employment. The complainant contends that the consultation meetings that were subsequently arranged were merely information sessions as there was no opportunity for the complainant, or his colleagues to influence the redundancy selection criteria that was being used by the respondent. The complainant does not accept the respondent’s assertions that it “effected a fair and transparent redundancy selection process on transparent, impersonal and objective grounds”. The complainant stated that there was no transparency whatsoever in the...