Impersonality and the Redundancy Process

Introduction

In this article, we review a recent decision of Workplace Relations Commission (WRC) which examines a key characteristic of redundancy, impersonality. 

Through Crushell & Co Solicitors, Martin Bowling (the Complainant) brought a claim against Indaver (the Respondent) under Section 8 of the Unfair Dismissals Act, 1977 (Martin Bowling v. Indaver Ireland ADJ-00037117). 

The redundancy proposal arose as a result of a change in business needs, with a company representative required in the Leinster region. The complainant alone was put at risk of redundancy, due to his residing in Sligo, despite expressing a willingness to work anywhere he was required.

The WRC decided that the Complainant was unfairly dismissed, and the Respondent was to pay compensation of €3,000 to the Complainant. The WRC found that the location of the worker determined his selection for redundancy, that the date of dismissal was unilaterally changed by the employer after the effective date, and that there was no genuine appeals process, only being offered when Crushell & Co Solicitors wrote to the company, expressing their concerns. 

Employee Position

The Complainant suffered a heart attack in February 2018 and was subsequently offered a demotion by the Respondent company twice. In 2019, the Complainant wrote to his HR manager to tell her he was considering resigning due to several issue he was experiencing at the hands of the Respondent company. In late November a meeting was held where the topic to be discussed was the Complainant’s redundancy. The Complainant was told by the Respondent company that his role was becoming redundant and subsequently the role would be readvertised. The Complainant felt that this meeting was very rushed. The Complainant received a letter from the Respondent outlining what had been discussed in the meeting, which included a description of the new role that would be advertised. The only difference between the Complainant’s job description and the new job description was that this new job would be based in Leinster, while the Complainant was based and lived in Sligo. At the start of December, the Complainant received a termination letter. The Complainant asked his Line Manager for clarification around his termination, but his Line Manager stopped responding to him. The Complainant believed this was to induce him to quit. The Complainant was told that if he wished to appeal his termination, he should send a letter to the Managing Director. The Complainant wrote and explained how the fact that he lived in Sligo had no effect on his role. After the Complainant sent the letter, it was rejected for being too long. The Complainant argued that since this was his first chance to communicate his feelings on the redundancy, he could not shorten it. The Complainant contends he was aggressively questioned about his letter in a meeting that only lasted 6 minutes. The Complainant was invited to a second appeal meeting which he decided not to attend due to the hostile treatment he had received. After this, the Complainant was informed that the decision to terminate him was upheld.

Barry Crushell, acting for the Complainant, made specific reference to the decision of Dermot McCarthy S.C. in St. Ledger v. Frontline Distributors Ireland Ltd. [1995] ELR 160 at 161. In this case, the Complainant was dismissed from work and replaced with someone who could better handle the increasing volume of work within the company. However, the tribunal found that this was not a dismissal within the meaning of the Redundancy Act. A key characteristic of Redundancy is impersonality, i.e., the job is no longer available or viable.

The redundancy should not concern factors that are subjective to the person being dismissed. The individual should only lose their job as a result of the redundancy. This was reaffirmed in JVC Europe Ltd v. Panisi ([2012] ELR 70). The Complainant in the present case stated that his personal circumstances were the motivating factor in his selection for redundancy, which conflicts with the Redundancy Act, as set out above.

The Complainant’s representative also referenced the definition of redundancy as set out in section 7(2) of the Redundancy Payments Act 1976, as amended: ―(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to—

• the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or
• the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or
• the fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee had been employed (or had been doing before his dismissal) to be done by other employees or otherwise, or
• the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or
• the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained. 

This definition reinforces the importance of the key characteristic of redundancy, impersonality.

Employer Position

The Respondent stated that the Complainant resided in Sligo and co-ordinated operations mainly in Connacht. The Respondent further stated that he was the only Connacht based coordinator and that there were also Leinster and Munster based coordinators.

The Respondent affirmed the Complainant also attended sites in Leinster to cover the Leinster based coordinator at times where there was increased demand. The Respondent argued that his arrangement was not suitable long term as the Complainant resided up to three hours away from the Leinster site.

The Respondent noted that in the months leading up to the Complainant’s redundancy, it became increasingly clear that the Leinster site was expanding exponentially, while the Connacht site no longer needed a permanent full time coordinator.

The Respondent argued that the Complainant was made aware of the possibility of his role being made redundant, when a short PowerPoint presentation was delivered to the Complainant illustrating the shift in business and the Complainant was informed at this time that there was a possibility of his role being made redundant.

 The Respondent argued that after the Complainant indicated that none of the other available vacancies were suitable for him, as they were located outside of the State, the Complainant was given notice that the redundancy was going ahead, and a meeting was scheduled to go over the redundancy terms.

The Respondent stated that when given the opportunity to appeal his redundancy, the Complainant submitted a letter in the format of a long legal submission that featured copy and pasted extracts from other documents. It was also stated that the Complainant was subsequently invited to a meeting to discuss his appeal and that at this meeting the Complainant refused to discuss his concerns.

A further meeting was scheduled due to the unsuccessful first meeting, which was not attended by the Complainant. The Respondent stated a letter was sent to the Complainant to discuss the appeal, but no further communication was received from the Complainant.

Due to this, the Respondent sent a letter informing the Complainant that his redundancy would be upheld.

The Respondent claimed that the Complainant was paid for the months he was retained while his appeal was being processed, the Complainant was paid his redundancy and provided a breakdown of his redundancy and the Respondent claims that the Complainant returned the company car of his own volition. 

The Respondent representative relied on Section 6(4) of the Unfair Dismissals Act 1977 which sets out the circumstances in which a dismissal will be deemed not to be an unfair dismissal: (4) Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, not to be an unfair dismissal, if it results wholly or mainly from one or more of the following:



• […]

• (c) the redundancy of the employee 

The Respondent’s representative also made reference to the Redundancy Payments Act 1967, section 7(2) which this article has already set out. The Respondent’s representative stated that where the Respondent can demonstrate that the reason for the Complainant’s dismissal was redundancy, within the meaning of redundancy set out in the Redundancy Payments Act 1967, as previously mentioned, the Complainant’s claim for unfair dismissal will fail.

The Respondent referred to the case of Willliams v Comp Air Maxam Ltd where the characteristics of a fair redundancy process were set out:

“The basic approach is that, in the unfortunate circumstances that necessary attend redundancies, as much as is reasonably possible should be done to mitigate the impact on the workforce and to satisfy them that the selection process has been made fairly and not on the basis of personal whim”. 

The Respondent representative stated that there was simply no need for a co-ordinator in Connacht. The Respondent representative stated that due to this fact, the Complainant’s redundancy was entirely geographical and based on the needs of the Respondent company. The Respondent representative also noted that, according to the authors of Employment Law in Ireland, an employer is not required to wait for a diminution of work to actually occur, it is sufficient for a diminution of work to be expected. The Respondent representative also noted that there is a positive duty on employers to explore less drastic measures than redundancy, which the Respondent’s representative stated they have more than met this requirement. 

Conclusion 

The WRC decided that the claim was well founded, and the Complainant was unfairly dismissed due to redundancy. However, the WRC awarded the Complainant €3,000 due to the Complainants lack of meaningful engagement throughout the process which the Adjudicator stated did not help his case. 

The Adjudication Officer noted that the location of the worker determined his selection for redundancy, that the date of dismissal was unilaterally changed by the employer after the effective date, and that there was no genuine appeal process, only being offered when Crushell & Co Solicitors wrote to the company, expressing their concerns.

The WRC relied on Section 6(4) of the Unfair Dismissals Act 1977. The Adjudicator stressed that impersonality is a key characteristic of redundancy and that in this case the Adjudicator stated that in this case the redundancy process was designed to target this employee.

The key takeaway for employees from this case is to engage in the redundancy process to the full extent possible in order to display an effort on their side. 

The key takeaway for employers is to understand that employees do not become redundant, positions do.