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 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.

Categories
Unfair Dismissal

Part Time Bus Driver Wins Reinstatement and Full Salary Retrospection

Labour Court Appeals

Are you an employer? How would you feel about having to pay a dismissed employee’s salary from the date of dismissal to the date of the hearing? Or even to the date of the decision of the adjudication officer?

And how would you feel about accepting the employee back into his old job?

That is what happened in the case involving a part time school bus driver (ADJ-00013201 An Employee v a Bus Company).

In this case the employee who was dismissed for alleged theft not only won his claim for unfair dismissal, but it was ordered by the adjudicator that he be reinstated in his previous job and paid all his salary from the time of dismissal (August 2017).

Background

The back story to the case is the part time bus driver was accused of theft in the workplace; he allegedly removed used wheel rims from the employer’s premises. The employee’s position was that he had permission from the Garage Foreman.

The employer’s services manager carried out an investigation and following this investigation the employee received a letter telling him that his employment was being terminated.

The Employee’s Case

The employee’s case was the investigation and disciplinary parts of the procedure which led to his dismissal were carried out by the same person, the Services Manager, and this rendered the termination unfair by reason of the absence of fair procedures-that is, the same person carried out the investigation and disciplinary parts of the process.

The employee also relied on the letter he received which stated that “following an investigation” he was being terminated as evidence of the 2 stage (investigation and disciplinary) procedure.

He also argued that his appeal was never heard.

The Employer’s Case

The employer’s case was that the employee was brought to a disciplinary meeting concerning the alleged theft of property-in excess of 20 wheel rims-and admitted taking the property but claimed to have permission. The employer found that this was not the case and decided he would be dismissed within 7 days and given the right to appeal.

The employer did concede that his appeal had not been heard up to the day of the WRC hearing due to the large volume of appeals to be dealt with by the appeals board and the illness of some members.

The Adjudicator’s Decision

The Workplace Relations Commission Adjudicator stated that his job was not to assess the innocence or guilt of the employee in respect of any allegations against him; the job of the adjudicator was to decide whether the decision of the employer was reasonable. In this context he stated the employer must prove the dismissal was fair.

In this regard he held that the involvement of the Services Manager in both the investigation stage and disciplinary/decision making stage of the procedure was lacking in fair procedures.

He stated,

“Having purportedly conducted a preliminary investigation, I find it inappropriate that the Services Manager would have then participated as the disciplining officer, on whose decision the Complainant was dismissed.”

He also referred to a Labour Court finding on this issue of separating the investigative stage from the decision making stage in the case Joseph Brennan Bakeries v Rogers (UDD1821). In that case the Labour Court held:

“The Court considers that the multiplicity of roles undertaken by TG [ the General Manager] in the process calls into question the fairness of the procedure. TG was the person who initiated the investigatory procedure and he oversaw the procedure himself. That procedure resulted in a disciplinary procedure which TG also oversaw. The Court is satisfied that the within enterprise is of a nature which afforded the Respondent the opportunity to ensure a clear separation of investigation and disciplinary processes by selection of available management level personnel to carry out the different stages of the procedure.”

He also found that there was a lack of objectivity and pre-judgment as he accepted the statement of the employee as follows:

“According to the Complainant, the Services manager stated, inter alia, that he (the Complainant) had been “caught stealing rims” and that “they are looking for your head upstairs”.”

The adjudicator also found that there was no written note of he investigation carried out and none had been given to the employee prior to the disciplinary hearing. This was fundamentally lacking in fair procedures.

In summary, the Adjudicator found:

“Taking all of the issues into consideration, I find there to be a distinct lack of objectivity and independence in the carrying out of the investigation and disciplinary processes which ultimately led to the Complainant’s dismissal. In this regard, I find that, in the circumstances, the Respondent’s decision to dismiss the Complainant must be considered as unfair.

This view is further undermined by the fact that the Complainant’s appeal of the dismissal decision has not been heard. While I note the rationale presented by the Respondent in relation to the delays with regard to the conducting of the Appeal Hearing, I find that it has compounded the shortcomings of the disciplinary process up to that point.

I find that the Respondent’s decision to dismiss the Complainant is unfair. In that context and taking into consideration the fact that an Appeal Hearing has not been conducted, I direct that the Complainant be reinstated, with effect from the date of dismissal, 25 August 2017, with full salary retrospection to apply.”

Read the full decision here.

Note: this hearing was held on the 24th July, 2018 and the decision is dated 28th December, 2018. I do not know whether the salary retrospection is from the day of the hearing or the day of the decision. Nor do I know whether the employer has appealed to the Labour Court.

Categories
Redundancy

Unfair Dismissal Claims Arising from Redundancy-Employer’s Conduct Must Be Reasonable

redundancy procedure
Redundancy procedure must be fair and reasonable

Any decision to make an employee redundant runs the risk of being challenged by the employee with a claim to the Workplace Relations Commission for unfair dismissal.

In a non collective redundancy the employer needs to be absolutely satisfied that

    1. The redundancy is a genuine one, not a sham or a ruse to terminate the employment of an employee who has been targeted
    2. The selection process has been fair with “the selection criteria being used should be objectively applied in a fair manner.”
    3. The procedure in carrying out the redundancy is fair.

Two useful decisions in this connection are ADJ-00001516, a decision issued on 6th December, 2016 in which the employee was awarded €21,750 for unfair dismissal arising from a redundancy and a Labour Court decision, UDD 1638 in which the employee was awarded €35,000 in consequence of the way the employer carried out the redundancy.

The adjudication officer in ADJ-00001516 referred to a previous decision of the Employment Appeals Tribunal in Case No. UD206 / 2011. In that case the EAT held

“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.”

The EAT also held that any consultation must be real and substantial, not merely a going through the motions or box ticking exercise.

Right to Appeal

IN the ADJ-00001516 case the adjudication officer also noted that

“I also note that the complainant was not advised of any process by which he could appeal the decision on the termination of his employment.”

The adjudication officer also referred to the following extract from the 2011 EAT case in which the EAT held that

“There was no serious or worthwhile consultation with the claimant prior to making her redundant. The consultation should be real and substantial.

No suitable or substantial consideration was given to alternatives to dismissing the claimant by reason of redundancy.

There was no worthwhile discussion in relation to the criteria used for selecting the claimant. The selection criteria should apply to all employees working in the same area as the claimant but should also consider other positions which the claimant is capable of doing.”

It is reasonable to assume that WRC adjudication officers will judge these types of case applying the above criteria. Therefore if you are an employer you would need to pay attention to this decision.

Labour Court

In a separate case, the Labour Court had to deal with an appeal by an employer against the decision of the WRC in which the employee was awarded €35,000 for unfair dismissal in a ‘redundancy’ situation.

The Labour Court held that there was a genuine redundancy but the conduct of the employer in carrying out the redundancy was not reasonable and varied the award from €35,000 to €20,000. The full decision of the Labour Court in this case ( UDD 1638) can be read here.

The Labour Court held,

It is clear to the Court that the Appellant, in the manner in which it executed the dismissal of the Respondent, engaged in the minimum of consultation and in effect put a decision rather than a proposal to the Respondent at a meeting on 27th and 28th October. The Court notes that some engagement took place as regards alternatives which might exist on 28th October.

It is clear to the Court also that the Appellant made no avenue of appeal available to the Respondent in a situation where the Respondent was dissatisfied with the decision to terminate his employment with the Appellant.

In its decision it also stated

The Court, while finding that the Respondent’s position was redundant also finds that the manner of his dismissal as result was procedurally unfair. The Respondent was not consulted adequately, he was not afforded representation at the meeting on 27th October 2015 and he was denied the opportunity to engage with the Company Board when he requested that facility in a situation where he was not satisfied with the termination of his employment which had been communicated to him at a meeting on 27th and 28th October 2015.

Takeaway for employers

You will note from both of these cases that the WRC and the Labour Court accepted that the redundancies were genuine in each case.

Where things went against the employer and substantial awards to the employee arose, however, were as a consequence of the procedures adopted to give effect to the redundancy.

In short, the conduct of the employer was not held to be reasonable in both cases. Thus, it is not enough that a genuine redundancy situation exists-the procedure used to carry out the termination must be fair and reasonable at each step.

And from the cases referred to above we can assume that the following steps are strongly advisable:

  • Real and substantive consultation
  • Right of representation
  • Right to appeal the decision.
Categories
Unfair Dismissal

Exceptions to the 12 Months’ Service Requirement in Unfair Dismissal Claims

fair-dismissal-procedures

If you are unfairly dismissed and wish to bring a claim under the Unfair Dismissals Act 1977 you will need to have been employed continuously for 12 months.

If you do not have 12 months’ service you cannot bring a claim for unfair dismissal or constructive dismissal if you cannot clear this hurdle.

That is the bad news; the good news is there are some important exceptions to this 12 months’ service requirement. Let’s take a look at them, shall we?

Exceptions to 12 Months’ Service Requirement

  1. Protected disclosure-if you are dismissed for having made a protected disclosure under the Protected Disclosures act 2014 you do not need 12 months’ service
  2. Discrimination-if you were dismissed on a discriminatory ground you will be able to bring a claim under the Employment Equality Acts without 12 months’ service
  3. Trade union-an employee who is dismissed for trade union membership or activity does not require 12 months’ service
  4. Pregnancy, birth, breastfeeding-any dismissal connected with these issues can be brought without 12 months’ service
  5. Maternity protection-any dismissal arising from the exercise of a maternity right does not need 12 months’ service
  6. Adoptive leave-any dismissal arising from the exercise of an adoptive leave right does not need 12 months’ service
  7. Parental leave and force majeure leave-12 months’ service is not required for unfair dismissal claims arising from these rights
  8. National Minimum Wage Act, 2000-any dismissal arising from the employee seeking to exercise rights under this act can be brought without 12 months’ service
  9. Carer’s Leave act-12 months’ continuous service is not required.

It is inevitable that if you bring a claim the employer may well argue that you do not have the necessary 12 months’ service and will deny that you were dismissed arising from any of the exceptions set out above.

Clearly, each case will be dealt with on its own facts and circumstances but you will need to be prepared for this argument and ready to put forward facts from which it can be inferred that your dismissal did arise from the exercise of one of the categories listed above.