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In the case of Jim Dowdall v Oxigen Environmental UD207/2011 the Employment Appeals Tribunal was asked to consider whether the Claimant was unfairly dismissed on the grounds of unfair selection for redundancy.

Background

The Claimant commenced employment with the Respondent in July 2000 and at the date of termination was Group Environmental Compliance and Planning Manager. Without prior warning or notice, the Claimant stated that he was called to a meeting on 28th April 2010 with the MD and HR Manager and informed that his role would cease to exist. The Claimant believed that he had been unfairly selected for redundancy and that fair procedures had not been applied.

The Respondent stated that the Claimant was made redundant as part of a company restructuring which justified the termination of the Claimant’s contract. Following an extensive review of the business, the decision was made to restructure the Compliance Department due to a decline in turnover and ongoing losses coupled with a reduction in waste tonnage processed due to lack of contracts. The Respondent stated that there was a lengthy consultation process with the Claimant which involved three meetings and and that equally the Claimant had not appealed the decision to make his role redundant.

Determination

The Employment Appeals Tribunal noted “For a redundancy defence to succeed, it must result from, as Section 7(2) of the Redundancy Payments Acts 1967, as amended, provides “reasons not related to the employee concerned. Redundancy is impersonal. Indeed impersonality runs through the five definitions of Redundancy as set out at Section 7(2) of the Redundancy Payments Act 1967 (as amended)…”.

The Tribunal commented that where an employee is dismissed by reason of redundancy, that there must be a redundancy and the redundancy must be the main reason for dismissal and referred to the decision of Charleton J in JVC Europe Limited v Jerome Panisi 2011 125CA wherein he stated “it has been abundantly clear by that legislation [unfair Dismissal Act 1977] that, redundancy, while it is a dismissal, is not unfair. A dismissal, however, can be disguised as a redundancy; that is not lawful”. Charleton J further stated “Redundancy, cannot, therefore he used as a cloak for weeding out of those employees who are regarded as less competent than others…if that is the reason for letting an employee go, then it is not a redundancy but a dismissal”

The Tribunal noted the evidence of the Operations Director who stated that the company were not happy with the effort made by the claimant to reduce numbers and commented that “This is a performance issue and should be dealt with as such, if appropriate”. The Tribunal concluded that “In this Tribunal’s view this is what Charleton J had in mind when he referred to a “dismissal being disguised as a redundancy…[which is]…not lawful”.

Determination

The Tribunal concluded that the Respondent did not act fairly and reasonably in the case for the following reasons:

1. The decision to make the Claimant redundant was taken at a meeting in a hotel in County Louth on 23rd April 2010. This meeting was attended by the chairman of the company and directors other than the claimant.
2. The Tribunal is critical of the fact that the claimant was excluded from the meeting of the board, which took the decision to make his position redundant, when he was entitled to be there as a director of the company. This was not handled in a fair and transparent way. The employee/director should have been allowed to attend the board meeting and afforded an opportunity to raise objections to the proposed redundancy. That fact that he was excluded reinforces the view of this Tribunal that the claimant was dismissed for performance rather than the redundancy of his position…
3. There was no serious or worthwhile consultation with the claimant prior to making him redundant. The consultation should have been real and substantial. The decision to make the claimant’s position redundant was taken before the consultation process commenced. This is the reverse of what should have happened;
4. No suitable or substantial consideration was given to alternatives to dismissing the claimant by reason of redundancy;
5. 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.
6. the only avenue of appeal was to the chairman of the board but since he was at the meeting which took the decision to make the claimants role redundant it would be inappropriate to appeal to him.

The Tribunal concluded that the claimant was unfairly selected for redundancy and the respondent contravened Section 693) of the Unfair Dismissal Act 1977(as amended). The Tribunal also stated that “Section 5 of the Unfair Dismissal (Amendment) Act 1993 provides that the reasonableness of the employer’s conduct is now an essential factor to be considered in the context of all dismissals. Section 5, inter alia, stipulates that:

“….in determining if a dismissal if an unfair dismissal, regard may be had……to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal”.

The Claimant was awarded €30,000 in addition to all payments made to him including his statutory redundancy.

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