A maker of vaccine manufacturing equipment supplying Pfizer and Janssen has been ordered to pay €22,000 for the dismissal of a technician while it was “haemorrhaging cash” in the months before the Covid-19 inoculation drive.
The Workplace Relations Commission has upheld a complaint by quality technician Aidan McCarthy, who said he was unfairly dismissed by Abec Technologies Europe Ltd of the Cork Road, Fermoy, Co Cork.
His barrister, Byron Wade BL, had argued it was a “sham redundancy” by a company “run by remote control from America”.
Adjudicating officer Brian Dalton ruled the redundancy was genuine and the decision objective – but that the process was “devoid of consultation” which could have found him an alternative role in the company.
Abec’s solicitor, Peter McGuinness, told a hearing in February that Mr McCarthy was selected for redundancy in a “measured and balanced way” and that his role as a quality technician inspecting incoming goods in Fermoy was “no longer required” because of a downturn in its stainless steel equipment manufacturing business early in the pandemic.
Mr Wade said his client was well qualified for other work in the company and could have been transferred – but the company failed to consider alternative roles for him.
Giving evidence, the company’s global director of quality Matt Fetherman said Abec makes two main product lines: stainless steel pressure vessels, piping and filtration systems for biopharmaceutical production using live cells; and disposable polymer containers used for similar processes.
These are used to make “vaccines, insulin, any kind of medicine that’s made from a live cell,” he said. “Obviously when the pandemic hit we quickly saw that things were slowing down. Even though we’re a biopharma company, initially with Covid things started to come to a halt very quickly,” he told Mr McGuinness.
He said the company was "haemhorraging cash".
Mr Wade, for the complainant, said that Abec had started hiring quality technicians “quite quickly” – with ads posted in October 2020 after his client was made redundant that July.
Mr Fetherman said that when Covid-19 vaccine orders increased in late 2020, Abec had to “scale up very quickly” to meet demand for the polymer bioreactor bags used to make them.
Mr Wade put it to him that other staff had been retained with a 25pc pay cut and reduced working hours and that this was a time of “uncertainty” in the business.
“There were other options available to your company. You could have laid this man off,” he said.
“The directive to me is that I had to make head cuts so I really don’t have the choice to make other options,” he said.
“A headcount cut could include laying off, especially in a time of uncertainty. I’d put it to you that that’s the obvious thing to do,” counsel said.
“You’re asking something that’s above my pay grade,” Mr Fetherman said.
Mr Fetherman said McCarthy had “no experience” in the clean room work making polymer bioreactor bags and that it would take five or six months to get an employee up to speed.
In cross-examination, Byron Wade BL put it to Mr Fetherman that his client did have clean room experience and qualifications from previous roles.
“I’m not aware of that,” he replied. “He was not working in that area the entire time at Abec.”
“You didn’t look at his CV or resumé when you made that decision I presume,” counsel said.
“I don’t recall,” Mr Fetherman said.
Mr McGuinness, for Abec, said there was broad agreement between the parties about how the redundancy was communicated and that Abec accepted it was “less than it should have been”.
But he said the redundancy process was not directed at Mr McCarthy, who he called “a valued, qualified employee” and that the ending of his employment “falls squarely in terms of redundancy”.
However, Mr Wade told the Commission: “If they had taken a minute to look at [Mr McCarthy’s CV] they would have seen he was not the man to make redundant. They say he had no experience with us. That shouldn’t make a difference. They had the information on his personnel file," he said.
He said a situation of uncertainty like that produced in the early months of the pandemic was “tailor-made” for a temporary layoff and that this should have been considered, along with short-time working hours as other staff were offered.
“I’m not denying that the employer was facing problems but deal with it properly. That’s what my client was entitled to,” he said.
He suggested Abec was being “run by remote control from America” and his client had been dispensed with in “a panic, perhaps because the president of the company was breathing down the manager’s neck”.
In his decision, adjudicating officer Brian Dalton found both parties had made “compelling arguments” but that he was satisfied the redundancy was justified and had been managed “objectively and fairly”.
But he said even in these circumstances, the failure to consult could give rise to unfairness.
“It is clear on the evidence that the decision maker was not aware of the complainant’s experience and qualifications that may have made him more than suitable for other roles,” he wrote.
“That process in turn may have identified someone else to be made redundant, objectively and fairly,” he added.
He said the process had been “rigid” and “devoid of consultation” and failed to take into account both Mr McCarthy’s previous relevant experience and his clean room qualifications.
With no alternatives considered and no consultation, the selection process “must be deemed to be unfair” and therefore, so was the dismissal.
Mr McCarthy had been out of work for a year and estimated his losses at €37,000.
Mr Dalton found he had made “significant efforts” to mitigate his losses but had not pursued an opportunity to be rehired at the plant and had received the correct statutory redundancy and notice pay.
He ruled €22,000 was the “just and equitable” compensation due to Mr McCarthy.