This week we look at a recent Workplace Relations Commission (WRC) case in which the Adjudication Officer was asked to find that a supposed "redundancy" was actually an unfair dismissal. Our Adrian Twomey highlights the key points to note in the case of Barry v Parish Life Limited t/a Premier Insurances, ADJ-00041456.
The Complainant, Mr. Kevin Barry, commenced employment with the Respondent insurance brokers in Thurles in 2015. He had many years of experience in the insurance industry. He was prone to "sporadic and debilitating bouts of depression" and that resulted in his being out of work on sick leave for significant periods.
Mr. Barry had been out sick when the COVID-19 pandemic hit Ireland in the first quarter of 2020. He was subsequently declared fit to return to work and he wanted to do so in August of that year. However, the two directors of the company asked him to meet them at a local hotel first. At that meeting he was told that there had been a downturn in business, that he was to be temporarily laid off and that he was to avail of the Pandemic Unemployment Payment (PUP). It appears that 6 out of the company's 29 employees were laid off at around that time.
Mr. Barry remained laid off and on the PUP Payment for well over a year. During that time, his solicitors and those acting for the company engaged in correspondence. The company's solicitors raised the prospect of redundancy for the first time in communications during October and November 2021. The company wrote directly to Mr. Barry on 22 November 2021, stating that it was moving away from commercial insurance activities (in which field Mr. Barry was most competent) and towards agricultural insurance.
The company purported to rely on a redundancy selection matrix in which the Complainant and another employee were scored against three criteria (knowledge, skill and experience). The lowest scores were attributed to Mr. Barry and he was subsequently dismissed on the basis of redundancy. He challenged that dismissal, filing a claim with the WRC under the Unfair Dismissals Acts. His case was heard on 7 December 2022 and 8 February 2023 and a decision issued on 20 February 2023.
The Adjudication Officer had significant concerns regarding the selection process. She noted that the criteria against which Mr. Barry and his colleague were scored were vaguely defined. She accepted the Complainant's contention that his length of service and experience in the field did not appear to have been reflected in the scores awarded to him. She stated that "any Employer must devise a Redundancy selection Matrix which ensures that every effected employee is to be evaluated against a key set of relevant criteria which are to be applied fairly and consistently." She noted that the redundancy selection matrix did not compare favourably with a lay-off selection matrix previously used by the company in which employees had been scored against thirteen different criteria. She went on to conclude as follows:
"I have some sympathy for the Complainant. He has found this place of employment to be unsympathetic to a mental health condition that he has sporadically had to deal with. On his own evidence this does not, in the past, appear to have been a particularly happy workplace for him. By November 2021 there is an undeniable sense that the Respondent is now using the circumstance of the pandemic to rid itself of an employee perceived to be difficult or undeserving. It is against this backdrop that the Complainant did not meaningfully engage with the Employer to see if there was any way to prevent his Redundancy.
On balance, I am finding that the facts amount to an Unfair Selection for Redundancy and therefore to an Unfair Dismissal. The Respondent has not been able to demonstrate that it has acted fairly and reasonably. The process for redundancy selection is not transparent. It was operated so as to reduce the numbers against whom the Complainant was competing down to one other person. The process also attributed scores which made no sense, under headings which were vague. I am inclined to accept the contention that the outcome was a fait accompli. The Complainant was never a good fit with the Respondent Directors and an opportunity to have him not return to the workplace was exploited.
Whilst I accept that there was some natural attrition within the workplace, I have to note that the Complainant was the only person to be made redundant out of this workplace. This, to my mind, does not lend support to the argument that the company was struggling. Also, while the business might have taken a significant downturn in the depths of Covid there is no evidence to suggest that by the time of this hearing the enterprise has not achieved its pre-pandemic turnover."
Mr. Barry was awarded compensation in the sum of €10,000.
Employers should note that dismissals by reason of redundancy are open to challenge under the Unfair Dismissals Acts. It is important that any redundancies are genuine, that fair selection methods are used and that real efforts are made to explore alternatives to redundancy. They should also take case, when using selection matrices, to ensure that those matrices are relatively comprehensive and result in objective decisions being made.
Those who require advice in relation to redundancies or who need representation before the WRC or Labour Court can contact our Adrian Twomey.