Categories
Redundancy Unfair Dismissal

Disciplinary Record and Attitude Cannot Be Used in an Objective Selection for Redundancy

redundancy claims
Redundancy selection criteria must be objective

This case involved a man who brought a claim for unfair dismissal arising from his redundancy. His claim was founded on his contention that he was unfairly selected for redundancy and subjective criteria, which are personal to the employee, should not have been considered.

Background

The employer in this case was funded by a Government Department but funding was only going to continue to be available for 7 supervisors, from 9, into the future. One supervisor took voluntary redundancy and one further redundancy was needed.

A redundancy selection matrix and procedure was adopted but the Complainant was sceptical about the criteria being used. An interview panel was set up and interview meetings, along with an application form which had been completed by all supervisors, was used to arrive at the choice of who would be made redundant.

The Complainant was chosen for redundancy and he appealed this decision. His appeal was unsuccessful and the employer’s position was that the Complainant was chosen for redundancy because he had the lowest score of all the applicants.

He received a redundancy payment of €9,336.

The employer defended the redundancy procedure adopted and pointed out that it involved an external HR consultant and a matrix of criteria which would allow scores to be given to the employees.

The employer argued that the function of the WRC was not to look behind the matrix and procedure adopted unless there was manifest unfairness.

The Complainant argued that he had unfairly received a verbal warning in the course of employment and it was unfair, and that the matrix adopted by the employer was unfair and unbalanced. He also argued that last in first out should have been used,which would have saved his employment.

Moreover, he argued that it was improper to use attendance, disciplinary record and attitude towards colleagues in the matrix because these criteria were linked to the person, not the position that was being cut.

He relied on JBC Europe Limited –v- Jerome Ponisi [2012] 23 E.L.R 70 as authority for the proposition that redundancy cannot be used as a cloak for weeding out employees who are perceived to have competence or health or age-related issues.

The complainant also pointed out that a supervisor with 5 years less service scored higher than him in the matrix adopted, and he disagreed with this.

Findings of the WRC adjudication

The adjudicator pointed out that the redundancy must involve a genuinely fair selection process and the termination must arise from a real redundancy. The burden of proof was on the employer to prove it was genuinely redundancy related and must be able to justify the selection process.

The WRC adjudicator was satisfied that a genuine redundancy existed and this was the reason for dismissal. Regarding selection for redundancy she referred to Boucher v Irish Productivity Centre R92/1992 which held:

“to establish that he acted fairly in the selection of each individual employee for redundancy and that where assessments are clearly involved and used as a means for selection that reasonable criteria are applied to all the employees concerned and that any selection for redundancy of the individual employee in the context of such criteria is fairly made”.

The adjudicator held that selection criteria cannot be based on subjective assessments of employees. The assessment must have independent, objective and verifiable criteria.

She held: In Bunyan v United Dominions Trust (Ireland) Ltd [1982] I.L.R.M. 404 the EAT endorsed and applied the following view quoted from NC Watling Co Ltd v Richardson [1978] IRLR 225 EAT (ICR 1049)

“the fairness or unfairness of dismissal is to be judged by the objective standard of the way in which a reasonable employer in those circumstances in that line of business, would have behaved. The tribunal therefore does not decide the question whether, on the evidence before it, the employee should be dismissed. The decision to dismiss has been taken, and our function is to test such decision against what we consider the reasonable employer would have done and/or concluded.”

The adjudicator held that the Complainant was unfairly dismissed because he was unfairly selected by reason of the use of subjective criteria of disciplinary history, attitude towards his managers and not being a cooperative colleague were taken into consideration and should not have been.

She held that a “fair scoring system” was not in place for selection.

The adjudicator noted that he had not suffered any financial losses because he had received a redundancy payment and had secured new employment but awarded him 4 weeks gross remuneration-that is, €2,688.00-to reflect the finding that he was unfairly selected and therefore unfairly dismissed.
Read the full decision of the Workplace Relations Commission here.

Categories
Unfair Dismissal

Data Access Request Uncovers “Smoking Gun” Evidence to Win €50,000 Constructive Dismissal Case

This employee was awarded €50,000 in a constructive dismissal claim and what won the case for her was the emails she discovered between certain of her employer’s management.

There are a number of unusual and noteworthy features in this case.

Firstly, it is worth remembering that winning a constructive dismissal claim is extremely difficult because the bar is “very high” for an employee:

 “The contract test is more stringent than the test of reasonableness. Yet they have been provided in the form of alternatives. Whichever test is applied, as was observed by the Employment Appeals Tribunal in one of its last constructive dismissal determinations ‘[t]he bar for constructive dismissal is very high’.”(Redmond on Dismissal Law, 3rd edition)

Avail of internal procedures first

And the advice that I, and other employment lawyers, would always give an employee is you must exhaust the internal grievance procedures in the workplace in order to have any chance of succeeding with a constructive dismissal claim. For you must give the employer the chance to put right what you say is wrong and allow him to amend his unreasonable behaviour.

Yet in this case the employee did not avail of any such procedures and still won.

Background

The employee worked in sales and had been recruited in Canada to work in Ireland. Her sales figures saw her being put under pressure in the workplace as to her performance and she ultimately resigned her position and brought a claim for constructive dismissal.

The hearing went on for three days and was fully contested by both sides with the assistance of solicitors and counsel for both parties.

The difficulty the employee faced in this case was two fold, in my view:

  1. The inherent difficulty in winning a constructive dismissal claim
  2. Her failure to avails of whatever procedures were open to her prior to her resignation

Data Access Request

However, the complainant had made a data access request at some point and this request was complied with between the second and third day of the hearing. This is where the smoking gun(s) were to be found.

First, though, counsel for the employer claimed legal privilege over these emails. This argument was rejected by the adjudicator who found there was no legal context to the emails and they were merely communications about the complainant between two senior managers of the respondent.

Counsel also argued that they should be “contextualised” but the adjudicator found the meaning of the emails was clear and unambiguous and was satisfied she understood the context. Some of the emails included the following:

“I have a call scheduled tomorrow with our lawyer to discuss options with V. Remember that Irish laws are a bit more towards the employee (the EU is socialist don’t forget…)..”

On the 5th of April he states :

“But V hasnt put much effort on generating her own leads. Ive made up my mind I am letting her go in the next few weeks…”

Again:

“V is a problem that needs to be fixed”

Mr B states on April 5th:

“I am concerned that we are dismissing her without written notice, at the very least we should have a quick conversation with our accountant or a lawyer. The cost of not doing so could be very significant.”

FF writes:

“Like I said Im having our law firm come up with our options in order to avoid any wrong doing on our part.”

On the 17th of April an email between the men confirms that they are looking at a replacement:

“I don’t want to hire (her) until we are quite sure V will not be around”

The adjudicator went on to look at the two limbed test for constructive dismissal: the contract test and the reasonableness test.

As endorsed by the Labour Court in Paris Bakery & Pastry Limited v Mrzljak DWT1468, the classic formulation of the legal test in respect of constructive dismissal was set out by the UK Court of Appeal in Western Excavating (ECC) Ltd -v- Sharp [1978] 1 All E.R. 713. It comprises of two limbs, referred to as the ‘contract’ and the ‘reasonableness’ tests. It summarised the ‘contract test’ as follows:

“If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any other performance.”  

The reasonableness test assesses the conduct of the employer and whether it “…conducts himself or his affairs so unreasonably that the employee cannot fairly be expected to put up with it any longer, if so the employee is justified in leaving.”

In Ireland, it is accepted that the two tests are often used interchangeably, but it is very clear, and accepted by all, that the bar for constructive dismissal is “very high” for an employee. See “Redmond on Dismissal Law” (3rd Edition, Para 19.08) where it states:

“The contract test is more stringent than the test of reasonableness. Yet they have been provided in the form of alternatives. Whichever test is applied, as was observed by the Employment Appeals Tribunal in one of its last constructive dismissal determinations ‘[t]he bar for constructive dismissal is very high’.”

Decision

The Workplace Relations Commission adjudicator found, inter alia,

On balance I fully accept that the Complainant’s decision to tender her resignation was reasonable. The Employer herein did not engage with the Employee in a meaningful way. The Complainant had impossible targets foisted upon her. There is no suggestion that the Complainant was not performing the function she was engaged to perform. It is accepted that she was having some success and there is no evidence that the results she generated (as a competent and able salesperson) could have been improved upon by a hypothetical salesperson operating with as little support.

I accept fully that the Complainant felt that the outcome had been orchestrated because, as it happens, it was.

The Complainant did not utilise the grievance procedure and did not give the employer any notice of her intention to resign and claim constructive dismissal and I accept that this was a situation where the outcome would have been the exact same.

Read the full decision here.

Conclusion

It remains sound advice that any employee contemplating resignation should firstly avail of all internal procedures in the workplace before resigning.

It is also sound advice to bear in mind that all communications in the workplace may come under scrutiny later on in the event of a dispute or employment claim once a data access request is made by the employee.

Categories
Unfair Dismissal

Persistent Short Term Absences-Labour Court Approves Dismissal

the labour court

This dismissal involved an employee of a waste company.

The employee was employed from 2007 and had received warnings over the years about time-keeping, absenteeism, and abuse of the sick pay scheme in the workplace.

He was dismissed in December 2016 by reason of his sick leave record that year. He had 17 days of sick leave between April and October of 2016.

WRC

The employee brought a claim to the WRC who held that the dismissal was not unfair, given the circumstances and his record.

He appealed the decision to the Labour Court and made a number of arguments:

  1. The decision to fire him was excessive and disproportionate
  2. The procedure followed by the employer was flawed
  3. The employer had not discharged an alleged responsibility to direct him to an employee assistance programme to help investigate any underlying issues that were causing his absences
  4. The employer placed too much weight on prior warnings for absences
  5. All his absences were certified with medical certificates
  6. The employer should have looked at other courses of action short of dismissal
  7. His absence record compared favourably to the record of employees in the public service

The employer’s position was that fair procedure was followed, the employee had trade union representation every step of the way, and the decision to terminate was a reasonable and justified one given his record.

It also pointed out that the employer referred him for independent medical examination and to staff support services. The employee had never indicated any need for support or medical issues that would have caused his poor record.

The employer denied the decision to fire him was based on previous warnings but based on his record between April and October in 2016 and the fact that he had a live written warning on his file at this time.

Moreover, the employer argued that previous warnings, even if they had expired off his file, were relevant as they led the employer to reasonably believe the poor absence record would persist.

Labour Court

The Labour Court pointed out that its job was not to decide whether the decision of the employer was right or wrong; the Labour Court had to decide whether the decision was a reasonable one-that is, did it fall within a band of reasonable responses from an employer.

The Labour Court decided it did fall within this band and therefore the dismissal was upheld.

The factors considered by the Labour Court were:

  • The employee had representation from his trade union representative and had a right to appeal
  • The employee was given many opportunities to remedy his attendance record
  • He received many warnings and was clear that termination could follow if he did not improve
  • The level of absenteeism was unsustainable if replicated across the entire workforce of the employer
  • The disciplinary policy of the employer was clear

The Labour Court held:

The Respondent, having done all that was reasonably possible to explore the reasons for the continued absenteeism and having taken a series of progressive, measured and appropriate steps to reverse it, reasonably formed the view that it had run out of options and that no further action could reasonably have been deployed in the circumstances to secure the Complainant’s regular and efficient service. The fact that he was afforded opportunities to appeal each outcome of the disciplinary process, including the decision to dismiss, strengthens the Court’s view in this regard. Furthermore, in the circumstances of the case, the Court is satisfied that the decision to dismiss falls within the definition of a ‘band of reasonableness’.

Takeaway

There are two things I take away from this decision:

  1. If the employer takes a decision that falls within a band of reasonableness the Labour Court or WRC will not step into the shoes of the employer and decide whether a decision was right or wrong
  2. The disciplinary procedure does not have to be perfect; provided it is fair it will almost certainly be adequate and acceptable.
Categories
Unfair Dismissal

4 Things I Learned at the Employment Law CPD Yesterday

I attended CPD (continuous professional development) organised by Central Law Training yesterday and Marguerite Bolger SC gave an excellent hour-long presentation on dismissals in the employment law module I attended.

Some nuggets which I took away are

WRC or injunction?

One of the most important decisions for the employment law solicitor when advising a client is to decide whether the best course of action will be to go to the Workplace Relations Commission or to the High Court to seek an injunction. Some cases will be suitable for the WRC, some will not.

On the other hand, some cases will not be amenable to High Court injunction proceedings and the factors to consider will be the employee, employer, the circumstances of the case and whether there is a breach of contract or not. If there is no breach of contract or a constitutional right then seeking an injunction would be inadvisable.

Costs in the High Court

Lawyers are most unlikely to have their costs awarded by the High Court in judicial review proceedings. They are, however, likely to be awarded costs in a statutory appeal application. This may explain, in part at least, why some apparently small in value employment cases end up in the High Court on appeal on a point of law.

Reinstatement or reengagement

Reinstatement or reengagement are options as remedies in unfair dismissal cases. I did not know, however, until yesterday that reinstatement will be from the date of dismissal whereas reengagement will be from a specified date, not the date of dismissal.

This has huge implications for the employer and reinstatement, therefore, is possibly the ‘nuclear button’ from a cost perspective if you are the losing employer.

McKelvey Court of Appeal decision

The McKelvey Court of Appeal decision held that there was no general right to legal representation in a disciplinary procedure in the workplace, and this decision was later upheld by the Supreme Court.

But the Court of Appeal held that there was a right to test the evidence, implying a right to cross examine witnesses, and this was not turned over by the Supreme Court. Thus, McKelvey is authority for the proposition that you have, as an employee, the right to test the evidence against you. You will be arguing you have a right, therefore, to cross examine witnesses against you.

Conclusion

The law evolves and changes rapidly, especially in the area of employment law, as a consequence of decisions of the higher courts in various appeals and challenges to decisions of the Labour Court and Workplace Relations Commission.

If I learned only one thing yesterday it would have been worth my time on a Saturday morning coming up to Christmas. Learning four valuable nuggets of employment law wisdom from a senior counsel who specialises in employment law is a true bonus and will allow me to serve my clients better.

Categories
Unfair Dismissal Workplace Relations Commission

How to Make a Decision to Bring an Employment Claim to WRC or Not

Are you torn between bringing a claim to the Workplace Relations Commission (WRC) or walking away from the issue?

I meet employees on a weekly basis who face this decision. On the one hand they feel they have been treated unfairly, and perhaps unlawfully, in the workplace. But they face the tough decision to submit a claim to the WRC or even commence legal proceedings in the civil courts or walking away, forgetting about it, and putting the difficulty behind them.

It is not an easy decision.

Let’s take a look at some of the factors you will need to consider.

Justice

Many employees speak about getting justice and wanting to do something about what they see as the essential unfairness of how they have been treated by the employer. This appears to be a noble, principled position to adopt.

But if it involves a claim which will inevitably involve time, stress, and legal costs and the potential financial payback does not exceed the costs incurred it may be prudent to have a second think about bringing the claim.

Let me give you a simple example.

Let’s assume you have been dismissed from your job and you believe you have a strong case for unfair dismissal and you are anxious to pursue it.

Let’s assume, too, that you have been successful in getting a new job quickly after the termination of the old one and you have only been out of work for 3 weeks.

The Unfair Dismissals Act 1977 provides that if you succeed in your claim to the WRC the compensation you can be awarded is “financial loss”. Financial loss is essentially loss of pay or remuneration as a result of your sacking.

But your financial loss, assuming you start the new job 3 weeks later, is only 3 weeks’ wages.

Now, let’s assume you were taking home €500 per week, then your loss is €1,500. In these circumstances, if you are successful the WRC adjudicator can award you a maximum of 1 month’s salary which is approximately €2,000.

So, you might win €2,000 if you succeed but you will have to pay your own legal costs and it is extremely unlikely that your legal costs will not comfortably exceed €2,000. And then you must consider the stress of putting yourself through the whole process and the possibility that you will lose, in which case you are now out of pocket and your sense of unfairness and injustice has just increased significantly.

Now consider you do win but the employer has deep pockets and appeals the WRC decision to the Labour Court. You will have more legal costs and there is the possibility of your win at the WRC being overturned and you being further out of pocket.

Let me be clear: I am not trying to put you off, you may be perfectly happy to pursue your claim on a point of principle and let the cards fall where they may. There may well be an aspect of clearing or vindicating your good name and that is worth fighting for.

But you do need to think through the process from start to finish and weigh up the pros and cons and look at the potential outcomes.

For example, your case would be a completely different one if you were out of work for 6 months and had tried your best to get a new job. In this situation your financial loss will be 6 months’ wages so the financial analysis of your potential claim is radically different. To put it bluntly, it may well be worth a punt.

Justice v financial reality

You may have to weigh the justice or principle of your case against the financial reality and decide whether to pursue the matter or not. This can only be done by a cold headed analysis of the potential claims you have, the possible outcomes and remedies, and the probability of each outcome.

Conclusion

Bringing a claim to the WRC, Labour Court, or civil courts is an easy thing to do. But before you decided to do so you should consider the overall situation, what the potential outcomes might be, and the various steps along the way to the final conclusion, not just the first, easy step of submitting a claim.

You need to weigh it up like the moves in a chess game. Thinking only 1 move ahead is bound to end in disaster.

To assist with your decision, and to ensure you know what factors to consider, it’s a smart idea to get professional advice.