Anne O'Connell Solicitors | View firm profile
In the recent WRC decision of Colin Dominic Kearns v Ata Tools, ADJ-00030876, Adjudication Officer Brian Dalton determined that although there was a genuine redundancy situation, the Respondent used the process to target the Complainant and therefore it was deemed to be an unfair dismissal.
Facts: There was a significant slump in business for the Respondent arising from the pandemic with sales declining significantly. The Respondent therefore had to introduce a number of cost cutting measures such as pay cuts, no overtime, and redundancies. The Respondent submitted that the Complainant was selected for redundancy based on an objective and impersonal matrix that evaluated the employee fairly and was selected because of his scores relative to others.
The Complainant argued that the process was not impersonal, and he was chosen because he was outspoken and had been critical of some management decisions. The Complainant submitted that he had much longer service than those who were retained and that there was very limited consultation regarding the matrix used to rate employees selected for redundancy. The Complainant was also willing to be redeployed or take a part-time role on a reduced salary, however no alternatives were considered even though he was more skilled than others and could have been redeployed into another work area. Temporary staff continued in employment on comparable grades after the Complainant. The Complainant also submitted that the process was completed over a number of days, commencing on 3rd September and ending with him being made redundant on 11th September 2021.
The last performance review had rated the Complainant highly on similar measures listed in the matrix, however, it did not that he could be outspoken. Under oath, the marking manager stated that she marked the Complainant low for the level of management intervention required because he was outspoken and was critical of certain management decisions.
Decision: The WRC Adjudicator determined that the Complainant was unfairly dismissed. Despite the fact that the Adjudicator acknowledged that there was a redundancy situation due to the significant downturn of business for the Respondent, he was satisfied that this genuine redundancy situation was used to target the Complainant as he was outspoken and critical of management decisions.
The matrix used by the Respondent was not impersonal or objective as it determined the scores based on the marker manager’s perception of Complainant’s conduct or behaviour. The Adjudicator determined that this criteria was subjective rather than objective and he also deemed the criteria re flexibility was also subjective as it was open to interpretation of the marker. Furthermore, the Complainant never got a proper opportunity to challenge the scores of the matrix due to the speed of the process. Therefore, the Adjudicator found that the Complainant was unfairly dismissed. The Complainant had mitigated his loss and obtained a job on a higher salary. However, rather than awarding the Complainant four weeks provided for in the legislation where there is no loss, the Adjudicator concluded that in the circumstances of this case that it would be unjust not to reinstate the Complainant. The employee was re-instated into his role with the Respondent from the date of dismissal. Therefore, he was also entitled to backpay for that period regardless of the fact that he had another job.
Takeaway for the Employers: This case is a stark warning for employers to ensure that when using any type of matrix or selection criteria in a redundancy process, it is vital to ensure that you give the employees a proper opportunity to have input into the scores before they are finalised and put forward all alternatives to the employees. Despite there being a genuine redundancy situation in this case, the haste at which the Respondent went through the process, the Respondent’s failure to consider any alternatives and the lack of an objective and impersonal matrix concluded in the Adjudicator determining that the dismissal was unfair. It is, however, extraordinary that the Adjudicator awarded re-instatement due to the lack of financial loss of the Complainant. It will be interesting to see if this decision is appealed.
Authors – Eva Lindsay and Anne O’Connell