The decision of Colin Dominic Kearns v Ata Tools ADJ00030876 delivered on 4th November 2021 must again serve as timely reminder to employers to ensure that redundancies are carried out correctly. Failure to get the basics correct may result in a claim for unfair dismissal against you and an exposure of up to two year’s salary (limited to financial loss). The decision is interesting also as it focuses on the selection matrix used by the respondent and highlighted a number of flaws with this.
The Complainant in this case alleged that the redundancy was a “sham” and that it was an excuse for the company or Respondent to get rid of him because he was sometimes outspoken in relation to management decisions.
The Adjudication Officer at the Workplace Relations Commission agreed and noted:
“There is no evidence of any meaningful consultation with the employee concerning the scoring system or any alternatives explored such as redeployment having regard to the size of the workforce and the number of employees in comparable grades with significantly lower service. The facts also support the complainant’s contention that he was skilled on several different operations that could have facilitated redeployment and he was willing to accept a different role that would attract lower remuneration if that meant saving his job’“
The Adjudication officer also noted that the last performance review had rated him highly on similar measures listed in the matrix; however, it did note that he could be outspoken. Under oath, the marking manager stated that she marked the complainant lower because he was outspoken and was critical of certain management decisions.
The matrix scoring framework used by the company marked the employee low for the level of management intervention required, receiving a score of 5 when the highest score was 20, which was a decisive factor in moving him to the bottom of the list. It was noted by the Adjudicator that “this is a measure prone to subjectivity”. In addition the the Adjudication Officer noted that the flexibility score achieved by the Respondent was a “subjective measure prone to opinion in the absence of some measure that is independent of the marker’s perception”.
In this case the Complainant was reinstated to the position he held prior to the dismissal on the same terms and conditions. Reinstatement is one of three remedies which can be awarded by the Workplace Relations Commission (the others being compensation and re-engagement). Re-instatement is rarely given and usually only where there has not been a complete breakdown in the relationship between the parties. Re-instatement also allows for an employee to be paid their back pay from the date of dismissal which can be substantial if the case takes some time to come to hearing.
Employment Law Learning
Employers must be extremely careful in using selection criteria as part of a matrix for selection of employees. The criteria used must be objective and this demonstrates that the marker’s opinion did play a role in the marks awarded.
