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.