ADJUDICATION OFFICER DECISION

Adjudication Decision Reference: ADJ-00000020

Complaint for Resolution:      

Date of Adjudication Hearing: 07/01/2016 and 08/03/2016

Workplace Relations Commission Adjudication Officer: Patsy Doyle

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and Section 8(1B) of the Unfair Dismissals Act, 1977, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.

Attendance at Hearing: This was a two day hearing over 7 January, 2016 and 8 March, 2016. 

Pre-amble: This case was first set for hearing on 7 January, 2016. On that date, the complainant and his representatives were the sole attendees. The hearing progressed one hour after the agreed time to facilitate the respondent late entry. However, the respondent contacted me mid hearing to confirm that they had not been on notice of the hearing.

The WRC received submissions from the respondent seeking an accommodation for their attendance, given their previously submitted lengthy submission on the defence of the case. This was agreed to in the context of a resumed hearing on March 8, 2016. All parties were in attendance on that date.

Complainant’s Submission and Presentation:

The complainant commenced work as a Development Manager in February, 2010 at the respondent business. He worked on a contracting basis up until April 1, 2013 when he became a direct employee. His work involved building up a customer base in addition to support and maintenance of this group. His salary was 64,000 euro per annum. The complainant described a very unsettled time at the company as it was involved in a series of acquisitions prior to his departure.

On 31 March, 2015, @ 18.30hrs, the complainant received an email from the Managing Director of the company, which he considered offensive. The email sought to comment on the Managing Directors’ perception that he had missed an important meeting with a client. In addition, it raised an objection to signing off some expenses and the prospect of a forthcoming appraisal .He responded to the email in stark terms on April 1 @ 12.04, taking issue with the entire contents of the earlier email. The complainant contended that he was being unfairly treated at the company, by being denied his bonus, insufficient recognition for his work contribution, and lack of clarity surrounding his performance appraisal. He concluded the email by inserting the following:

“It is clear to me by your actions and comments that you no longer see me as part of the team. If so, prepare an honourable exit package for me “

The company agreed to explore an exit package on April 3^rd. The complainant was clear that things weren’t working out for him at work and he engaged in the process of preparation for his departure, knowing that the terms of the offer were being worked on between the US Human Resource Department and the company in Ireland. He had been working long hours of 50 hr weeks and the company had been subjected to a number of acquisitions which caused him to feel uncertain. In addition, he had not been given his bonus award, which was long overdue .There was no employment contract and there was a clear void in human resource function at the company.

The complainant asked for details of his severance package on three occasions and didn’t get a response. He was told by the company to prepare his account base of customers for handover. He took issue with the respondent’s submission that there had been a series of meetings between the respondent and the complainant to prepare forhis departure. He said there were no meetings. On the 8^th April, the complainant submitted a handover document to the Managing Director, while at the same time requesting sight of “letter of offer for my exit”. Nothing followed.

On 14^th April, he received a series of documents from Mr T.H, the Financial Controller for the first time. These constituted

1 Copies of consultation documents dated 7^th April.

2 RP 50 dated 14 April.

3 Letter outlining the terms of the redundancy package. The Terms of the Redundancy were:

(1) Statutory Redundancy of         3,095 euro

(2)   Payment in lieu of notice     5,333 euros

(3)   Ex gratia Payment                 10,333   euro

(4.)   17 days of annual leave untaken.

4   Post Contractual Restrictive Covenant

He had received a text from MN to confirm that the papers were ready for signing and he met with T.H, Financial Controller in the Boardroom in the early afternoon and was informed that in order to get his redundancy, he was obliged to sign the documents. He signed the documents and left the building. Funds were transferred the next day and he did not return to the workplace. The complainant made a copy of the documents received. The complainant was clear that he was obligated to sign all documents; otherwise his cheque would be retained by the company. He did not receive legal advice and MN was the sole person he dealt with in the company in preparation for his departure

Afterwards, he considered appealing the decision as provided for in the April 14 letter, but decided against it as the Appeals Manager was viewed by the complainant as being too close to the M.D. The complainant then initiated a complaint regarding the behaviour of the M.D to Mr MJ in the United States. This was resolved via conference call on May 1^st, where agreement was reached on the complainant’s retention of some company items and a repayment plan for outstanding expenses and fines.

The complainant contended that he was a top performer, who brought an impressive portfolio of business to the respondents company. He fully accepted that he had initiated discussions on a Voluntary severance package but on reflection found that there were serious flaws with his treatment by the respondent and the quantum of his exit package. He alleged that there was no selection process for redundancy, which was in sharp contrast to other redundancies which had occurred at the respondents company, inclusive of the M.Ds brother, where everyone knew in advance that he was going.

He contended that he should have been permitted to have independent legal advice and that the speed attached to his departure was onerous and one of undue haste. That the date of 31 March on the RP 50 predated the process. He argued that the dismissal was cloaked in redundancy, yet the redundancy was not real and he was in essence “managed out “. He argued that this constituted an unfair dismissal. There was no grievance procedure open to him. He told the initial hearing that he had no earnings from April 30 2015 to the date of the hearing of January 7^th 2016. He had been involved in a Bar project which had yet to yield a dividend. During the second hearing, he confirmed that he had earned 15-16, 000 euro to date and was expecting the additional sum of 25,000 euro if plans for the refurbished project came off. The complainant made a subsequent declaration on April 1.2016 to the respondent solicitors that he had earned the sum of 37,519 euros from April 1 2015 to 31 March 2016.

Case relied on in support of the case:

JVC Europe Ltd v Jerome Panisi     [2011] IEHC 299

Shortt v Data Packaging ltd [1996] E.L.R.7

Employee v Employer         UD 207/2011 Employment Appeals Tribunal.

In Cross examination:

The complainant confirmed that he had requested an exit package. He had no recollection of being at a meeting in the pub on April 1^st. He disputed that he was being melodramatic in the “2 page diatribe” to the CEO. He did not sign the letter dated 7 April until 14^th April. There was no meeting on April 7^th and there were no minutes. He reaffirmed that he signed all the documents on the 14^th as “he wanted to get out the door”

He did not ask about alternatives to redundancy, nor was he informed regarding an appeal. He didn’t know why he didn’t appeal. He was dissatisfied with the terms of the settlement and that the package should have been modelled on his 2010 service and should have incorporated his two bonuses which had been forfeited. There was no bonus in the first year post acquisition. He understood that the offer of April 14 was a final offer and that if he didn’t sign his acceptance, it would be withheld.

The complainant stated that he was unhappy at the company and was happy “to get out the door”

He recalled signing the documents on one occasion only.

When challenged on the complaint of Bullying to the President of the Company in US, the complainant stated that he honestly believed that he was bullied. When pressed why he continued to socialise with the CEO he replied “That’s the way it is “.

The complainant contended that he had been dismissed without proper processes on an involuntary basis in a short period of time of two weeks.

Respondent’s Submission and Presentation: 

The respondent refuted the claim of unfair dismissal in its entirety. At all times, the complainant accepted that he left the company through a lawful voluntary redundancy. He was not pressurise to leave He could not now seek to waiver what was agreed. The complainant did not prove loss or mitigation .He did not exercise the pro offered appeal.

PRELIMINARY ISSUE:

As a preliminary issue, the respondent contended that the complainant was stopped from pursuing the complaint.

The respondent contended that as the complainant had requested the exit package and accepted an ex-gratia redundancy payment, that he is estopped by his actions from asserting that he was unfairly dismissed. The cases of FAI v Hand FTD 143, Barge Inns v Quinn Hospitality Ireland Operations 3 ltd [2013] IEHC 397 were submitted for consideration by the Adjudicator

.In addition, the respondent relied on S 6(4) of the Unfair Dismissals Act which recognises that “redundancy of an employee” does not constitute an unfair dismissal.

The respondent cited Nigrell v Graham UD 690/2013 as precedent from the EAT on the standard of fairness applicable to a redundancy dismissal as distinct from other dismissals.

The Case:

The respondent is a subsidiary of a multi national supplier of global management services to manufacturing companies .In November, 2013, the company previously owned by the CEO was acquired by the present company and thereafter followed a period of integration into this NAS DAQ quoted Company. This constituted a major change in operational management. There were 19 employees in Ireland; the parent company was based in the US.

The respondent first hired the complainant as a Sales Development Manager, which changed to “Global Business Development Manager “in May 2013, when he became a direct employee. There was little variance in the roles.

It was common case that the respondents CEO sent the complainant an email relating to his attendance at work on 31 March, 2015 which in turn prompted a two page response, which crystallised into a request for an “honourable exit package” by the complainant. On April 1, the CEO met with the complainant in a Bar in the company of DC, the National Business Development Manager. This meeting concluded with a commitment from the respondent to put a “formal exit offer to him in the following days” and that the complainant would commence his preparation to handover his client portfolio. There was also some joint discussion on the complainant’s plans to manage refurbished nightclub and bar premises as his next venture.

The company sought HR advice from an external HR company, who advised on the complainants stated desire to exit through the avenue of a “Voluntary Redundancy “. The company met with the complainant to advise him of the process of consultation and a review of roles to be undertaken. They recall that the complainant did not raise any issue regarding the process, but was keen to establish the extent of the offer.

Once the US had agreed the terms on offer, the company met with the complainant on April 7, 2015, wherein, the rationale for redundancy was outlined to the complainant along with the terms on offer. The process of redundancy commenced by way of notification of the obligatory consultation period and options for redeployment on April 7^th.

On April 8, the respondent received an action plan for handover prepared by the complainant .This consisted of requests concerning:

1 Financial Exit costing

2 Exit document to be prepared by United States Human Resource Team.

3 Letter of Redundancy

4 Resolution of speeding fine.

5 Status Report on accounts.

It was common case that the meeting of 14^th April occurred between the CEO, Financial Controller and the complainant. The Respondent confirmed that the complainant was aware of the terms of the offer in advance and signed for acceptance without a query on 14 April. The company sought to follow up the return of company property on 17April an 20 April, unsuccessfully.

It came as a surprise to the respondent when the complainant then raised a complaint with the President of the Company in US, stating that the CEOs behaviour was the reason for him leaving the company. There was a series of discussions which culminated in an email from the Hr Manager, WB based in the US to the complainant on May 11^th. This email finalised the details outstanding on company property to be retained and returned.

“ In relation to your redundancy, I appreciate you are disappointed at the decision to make your role redundant, however, I am satisfied that the redundancy process followed in your case was consistent with other redundancy processes previously run by the company .I note you queried your redundancy calculation but I can assure you that your redundancy payments were correctly calculated ………… I am satisfied that the company has treated you fairly.”

This concluded communication between the parties until the complaint form was lodged with the WRC on 2 October, 2015.

The respondent drew my attention to the turn of events whereby the respondent was obliged to pay two outstanding speeding fines obtained by the complainant in the company car.

EVIDENCE OF RESPONDENT

1 CEO /Managing Director:

Mr MN acknowledged knowing the complainant for 16-17 years. They had previously worked together and were friends, frequently socialising together. The company had been previously privately owned by MN, but was now part of the NAS DAQ stock exchange, where the management structure was imposed and transition had been readily accepted as difficult.

MN confirmed having issues regarding the complainant’s performance, his reluctance to participate in appraisals (A NAS DAQ Company imperative) and his astonishment at the contents of the 1 April email headlined under Appraisal   where an exit was requested. MN was clear that this had never been mentioned before and he advises the complainant to “think about it “. He met the complainant at the Bar later in the company of DC and agreed an approach would be made to the US parent company to explore an exit package. MN confirmed that he understood the complainant was relieved at this development and that he was looking forward to returning to his previous role of overseeing a refurbishment project.

Every effort was made to “ get as much as possible “ into the package for the complainant and in the absence of a HR function in the company , an external HR consulting Company advised the road map to lay the ground work for a redundancy and seamless transition . Special emphasis was placed on an effective handover as there were no plans to replace the complainant. MN made it very clear that the documents accompanying the road map on redundancy were drafted by the external HR function, i.e. letters of 7^th and 14^th April. During this period MN found the complainant to be amicable.

The meeting of 14^th April went well and the complainant had no complaints. He was asked to return company property but did not engage with this. MN spoke about his shock of his behaviour being complained of to the US Company President by the complainant and how he struggled to be professional while denying the allegation. He contended that the complainant was seeking to “set him up “and that the two page email on 31 March, where the complainant’s wife was mentioned was totally unnecessary in a work context.

In cross examination, MN confirmed that the complainant’s management of expenses caused him frustration as he felt disrespected by the complainant. He was clear that he didn’t want the complainant to leave and it was the complainants express wish to leave. MN knew the company would be down a manager. He did not put pressure on him to leave. He was disappointed by the mixed messages from the complainant in response to the viability of a customer base which was subsequently pulled. He reaffirmed that he had not prepared any of the exit documentation. He had not seen the complainant since April 15, 2015.

MR H

Mr H was the Financial Controller of the company .He confirmed that the Bonus system was linked to an Appraisal system post transition to the NAS DAQ Company in October 2013. The complainant had not engaged with the appraisal system by the time of his departure, nor had he signed a contract of employment.

He recalled the CEO informing him on April 1 that the complainant was leaving and that the company would try and “quantify the best package “while working with the US parent company and the external HR provider. The last redundancy at the company had been imposed.

Mr H was involved in the consultation period and in preparing a package for the complainant’s departure. He recalled that he was a “go between” between the CEO and the complainant. DC and FOL were due to pick up on the complainant’s case load as there was no plan to replace him. Mr H did not recall the complainant ever raising an issue with the letter of April 7^th on consultation.

He recalled the CEO seeking to maximise the package for the complainant .On 14 April, he recalled handing the complainant a set of documents to review:

RP 50

Restrictive Covenant

Exit letter dated 14 April 2015

When he came into the finance office at lunchtime. There were two signings by the complainant. One at lunchtime, while he was on his own and once witnessed by Mr H . There were two discrepancies which had to be rectified. He confirmed that the date of March 31 on the RP 50 was a mistake. The form was completed on line and compels an entry of a specific month.

The restrictive covenant was prepared by the external Hr Group. The complainant returned the company car with the computer on April 30^th.

In cross examination:

Mr H confirmed that the complainant’s departure was advised and structured by the external Hr group in the UK and the US Human resource group.

He confirmed that the complainant was “as happy as I have seen him” in the run up to the 14 April.

Mr DC

DC was the National business development manager. He knew the complainant through the CEOs family charity .They socialised together .On the evening of April 1^st, he met with the complainant and the CEO in a Bar where the complainant told him he was leaving. He understood that the complainant had difficulty with the constraints of a Multi National company and that a deal was to be worked out. The atmosphere of the social outing was not acrimonious.

He met with the complainant during the course of their work on a daily basis after that and he knew that he was preparing for acting as a Consultant on a bar project .He never mentioned not going. The handover followed and DC took over some of the accounts.

He knew that the complainant was looking forward to getting a maximum pay out and couldn’t put what happened subsequently i.e. claim for Unfair Dismissal with his recollection of the complainant before he left employment.

In cross examination:

He confirmed that the night of April 1^st was not exactly a meeting but a social outing.

Mr F O L

Mr F OL was a Sales manager at the company .He knew the complainant but was not as friendly as the other lads. He had coffee with him twice a day in the canteen. The CEO told him that the complainant was leaving and there would be a handover plan where he would take on an account .There was no mention of a package and no reference to being bullied by the CEO.

He was very surprised when he learned of the instant claim as if the complainant was forced out , it didn’t fit as the complainant was known by him to be forthright and the CEO was “ not that type of person “

In cross examination:

Mr FO L confirmed that he first learned of an impending exit package for the complainant while the handover was underway.

Decision:

Section 41(4) of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under Schedule 6 of that Act.

Section 8(1B) of the Unfair Dismissals Act, 1977 requires that I make a decision in relation to the Unfair Dismissal claim consisting of a grant of redress in accordance with section 7 of the Act.

Issues for Decision:

Preliminary Issue of Promissory estoppel:

The respondent submitted that the complainant is estopped from claiming Unfair Dismissal on the grounds of his prior acceptance of both a voluntary redundancy package in addition to an ex-gratia redundancy payment.

I have examined carefully the four documents cited by the respondent as grounding this assertion and the circumstances surrounding them. These are:

1 Letter of April 7^th 2015, notification of possible redundancy.

2 Letter of April 14 2015, notification of actual dismissal due to redundancy (incorporating right of appeal)

3 RP 50

4 Restrictive Covenants 14 April 2015.

The doctrine of promissory estoppel was commented on by Denning J in Central London Properties Trust and High Trees House Ltd [1947]K.B 130

Where the parties enter into an agreement intending to create legally binding relations and in that agreement one party makes a promise to another that he knows will be acted on and is in fact acted upon, the promise must be honoured in so far as prevents the promisor from acting contrary to it .

Laffoy j set the test criteria for promissory estoppel in Barge Inns ltd v Quinn Hospitality Ireland Operations 3 Ltd.{2013} IEHC 387

(A)   Pre existing legal relations between the parties

(B)   Unambiguous representation

(C)   Reliance by the promissee and ( possible detriment)

(D)   That the estoppel is being used not as a cause of action but as a defence

(E)    Remedy is a matter for the court .

(F)    Some element of unfairness and unconscionability.

In the instant case, the complainant did not sign a contract of employment when he made the transition from self employed to direct employment in 2013. The complainant was very clear in his evidence that he was actively pursuing an exit package from April 1-14^th 2015. The respondent reaffirmed this fact. Evidence was adduced on the fact that the Human resource function was supported via the UK and the US as there was no localised HR Office in Ireland. The case is distinguished from Hand v FAI in this regard as it appears to me, at least, that the complainant had locus standi in the case as a direct employee and this was never disputed by the company.

All exit documents were drawn up by the external Hr provider and the complainant was not represented throughout the exit process. It seems to me that the agreement reached on 14^th April 2015 between the parties rested on

1 Statutory redundancy

2 Ex gratia redundancy for compliance with the terms of the restrictive covenant. This established ground rules for interfacing with business contacts and covered rules for returning company property.

3 Annual Leave and Salary paid up to April 30^th.

4 A Restrictive Covenant.

None of the documents listed that the exit agreement was in full and final settlement of all claims against the company. None of the documents served as an impediment to pursuing the instant case. Indeed, the provision of an appeal in the letter of April 14^th serves as adequate testament to that fact. I accept that the complainant did not exercise an appeal at that time. The facts are clear, that not withstanding the decision of the complainant on the appeal mechanism, payment of the exit package was not made in consideration of the complainant forfeiting his right to progress a subsequent cause of action against the company. The matter had not been placed before a third party forum prior to the date of the first hearing, Maynooth v Ann Buckley (Labour Court FTD 1015) distinguished.

The EAT has commented in Healy v Bia Ganbreise Teoranta, RP493/2012 that it is well established that statutory provisions in employment Legislation prohibiting the contracting out of the statutory protections, do not preclude severance agreements or compromise of claims . Talbot v Minister for Labour (unreported High Court) Barron, J. 12 December 1984, Sunday World Newspapers Ltd v Kinsella and Brady [2008] ELR 53 and Minister for Labour v O Connor unreported H.C Kenny J 6, March 1973

There was no reference in any of the documents where the complainant was expected to agree that he did not intend to enforce his legal rights. Therefore, I see no change in the circumstances surrounding the core of the agreement. I appreciate that the respondent is disappointed having to defend a claim that they had not anticipated, however, I find that the preparatory exit documentation did seem to be lacking in a localised HR emphasis and / or the influence Irish Jurisprudence. References to” attorneys” in the restrictive covenant document may have been misleading. However, clause 9 is somewhat illuminating:

“By mutual agreement of Company an the Employee, legal proceedings may be commenced in the country of employment, namely in accordance with the Law of the Republic of Ireland “

Promissory estoppel was recognised as a “shield and not a sword “in Combe V Combe [1951]2KB 215.

In Hurley v Royal Yacht Club [1997] ELR 225, the Circuit Court set a two tier test to be associated with the viability of reliance on a compromise agreement Vis a Vis pursuance of individual rights

1 All relevant employment legislation should be delineated.

2 Recourse to Legal advice

In Kerrigan v Smurfit Kappa Ltd UD 1921/2011, The EAT was critical of the fatality of failure to obtain Legal advice prior to signing an exit agreement. I find the instant case to have parallels in that regard.

I find therefore, that the complainant is entitled to proceed with his claim for unfair dismissal unimpeded by the doctrine of promissory estoppel.

Legislation involved and requirements of legislation: 

1 Redundancy Payments Act 1967(as amended)

Section 7(2) defines Redundancy and sets out the five grounds in which an employee shall be taken to be dismissed by reason of Redundancy. S.7 (2) (c) outlines that:

“The fact that his employer has decided to carry on the business with fewer or no employees, whether by requiring the work for which the employee has been employed –to be done by other employees or otherwise.”

2 Unfair Dismissals Acts 1977 -2007

The lawful reasons for dismissal are set out in Section 6(4) of the Act of 1977.

“Without prejudice to the generality of subsection (1) of this section, the dismissal of an employee shall be deemed not to be an unfair dismissal, if it results wholly or mainly from one of more of the following:

(a) Capability, competence or qualifications of the employee for performing work of the kind which he was employed by the employer to do.

(b) The conduct of the employee

(c) Redundancy

………. “

Section 6(7) of the Act permits

In order for an employer to justify a redundancy, an employer must show that there was:

1 A genuine Redundancy as provided for in S 7(2) of the Acts.

2 There was a fair selection.

3 Employer acted reasonably in all the circumstances.

I must now move to decision in this case. 

Decision:

This case is multi faceted. On one level, there was a backdrop of friends who worked and socialised together set against the background of acquisition by a NAS DAQ company and the inevitable operational change that followed. In addition, there is the most unusual scenario whereby an employee initiated a claim for his own exit followed by a management team who endeavoured to satisfy that claim.

Recent case law has provided varying circumstances surrounding challenges to Unfair Dismissal through unfair selection for redundancy , JVC Europe Ltd and Jerome Panisi [2011] IEHC 299, Shortt v Data Packaging Ltd [1996]E.LR 7 Tom Mulligan v J2 Global ( IRL) ( UD 1369-2008) Nigrell v Graham UD 690/2013.

In all of these cases the change agenda which culminated in redundancy was initiated by the Management Teams and applied to the employees with varying consequences. The reverse of this has happened on this occasion. I am satisfied from the evidence adduced from the company that up to March 31, 2015 the company was not in active consideration of any redundancies. They confirmed that there had been some earlier redundancies, inclusive of a family member of the Managing Director.

By making this statement, I do not wish to criticise the company, whose representatives presented a very cogent and open case to me, I just wish to state that the antecedent event which lead to the exit of the complainant on April 14^th 2015 emanated from his request in the last paragraph of his email to the Managing Director on April 1^st. Perhaps , an opportunity was lost for both parties ,when neither “ grasped the nettle “ to enter a dialogue to resolve the contents of the emails of March 31 and April 1^st which may have influenced an alternative road map to an exit package? . However, this did not happen.

I have considered the period of March 31 –April 14^th carefully as described by both parties. I have found a number of inconsistencies:

1 There is an inconsistency in both parties recollection of the consultancy period and redeployment options opened to the complainant. The respondent saw it as a continuous informal process, augmented by three meetings on April 1, 7 and 14. The complainant had a recall of just one meeting on April 14^th. I am struck by the consistent evidence of the complainant’s positive demeanour during the “preparation for exit “period and I accept this evidence from the respondent. I find that the complainant may not have paid due attention to the formalities as they flowed. However, I accept that April 14^th was indeed the first time that he had access to the details of the full extent of the package. On 14 April @ 10.51 hrs, the company confirmed that the “paperwork is ready “by text. At 14.02, the company confirmed that “On top of redundancy payment, you will be paid in full for April “. This demonstrated fluidity to proceedings.

I do, however accept that the entire situation suffered from the lack of on site HR presence, with an adequate expertise in Irish employment Law. The company acted in good faith to secure an exit package for the complainant but the documentation prepared by the external HR company points to an indirect process lacking in human contact. Regardless of the circumstances, the prospect of losing a job is by its very nature traumatic and unsettling and the lead in period, for that very reason should be couched with 1:1 support. I appreciate that the complainant did not present to any of the company representatives as requiring assistance. I do not accept that the letter of April 7^th was seen by the complainant before April 14^th. This is a stark omission.

On examination, I was struck by the void in the section on “Personal Action Plan” and I view this as a missed opportunity by both parties, given the latter day contention by the complainant that the quantum of the settlement was his core dissatisfaction with the company.

2 There is a marked variance on the complainant’s description of mitigation and loss in the evidence adduced. I am struck by the inconsistent responses from the complainant on both mitigation and loss over the course of both days’ hearings. I must also give regard to the supplementary submission on the quantified earnings 2015-2016.

3 There was a lack of recourse on the complainant’s part to the pro offered appeal in the April 14^th letter. On the first date of hearing, the complainant stated that he did not have confidence in the appeals mechanism and on the second day, he had an impaired recollection on why he chose not to appeal?

The period of time April 1-April 14^th served as an impediment in this case. It was too rushed. This was not the firstRedundancy process entered into by the respondent. I accept the evidence of the complainant that previous redundancies were not executed with similar haste. However, given that the complainant himself initiated the request for this exit package, I must examine whether the respondent acted reasonably and fairly towards the complainant in his selection for redundancy?

In Kinwell V Bradley Designs ltd ( EAT 0661/02)

“Redundancy can occur where there is a successful employer with plenty of work, but who perfectly sensibly as far as commerce and economics is concerned, decides to reorganise his business because he concludes he is overstaffed. Thus, even with the same amount and the same amount of income, the decision is taken that a lesser number of employees are required to perform the same function. That too is a redundancy situation “

I see an analogy here in the instant case, however, I must examine if the employee was treated fairly?

I accept that the respondent initiated a review of his workforce between April 1 and 14 2015, which resulted in the loss of one Manager, the complainant. I find that there was a shortfall in the communication between Human Resources and the complainant prior to his departure which caused the Financial Controller to take on the self acknowledged role of intermediary. In a NAS DAQ company, this was seriously short of best practice. This was not helped by a lack of adherence to best practice in composition of the severance agreement, which, while including an appeals mechanism did not take account of offering the complainant the opportunity to seek Legal advice, or a delineation of the employment legislation in the compromise agreement.

It would seem to me that there was an over reliance by the respondent on the execution of the post contractual restrictive covenant for which the ex gratia sum was paid and insufficient weighting on the individual rights of the complainant.

I find that the complainant acted to his detriment in not activating a local appeal, (given the depth of his dissatisfaction on the quantum of the settlement) as provided for in April 14^th letter. I do not accept either of his reasons submitted as credible .It was clear that once the US Team engaged with the complainant on May 1^st, progress followed for both parties.

I find that there is an analogy between the Gerry Fennell v Resource Facilities Support Limited and the instant case. I find that there was a distinct lack of consultation or engagement with the complainant prior to the actual decision being made to terminate the employment through redundancy.

I can appreciate in part, that the positive demeanour of the complainant may have caused the respondent to form a view that he was fully consenting to all and any proposed change provided it resulted in his departure, and however, I find that change was implemented without giving the employee a reasonable opportunity to consider the proposed changes in full. St Ledger v Frontline Distribution ltd [1995] ELR 160 indelibly linked Redundancy to Impersonality and Change. In this case, due to the initiation of the exit request emanating from the complainant, it clouded the objectivity which should have accompanied a termination of employment through redundancy. Taken in tandem with the already concluded void in human resource management advice particular to the Irish State on

1 Documentation on Consultation.

2 Real times Documentation on Alternatives.

3 Template for a compromise agreement and opportunity to seek legal /Union advice.

4 Cessation of Employer Rebate in 2013

5 Statutory Timeline for Redundancy

6 Jurisprudence

I find that the Respondent did preside over a genuine redundancy situation albeit; they did not lead from the outset. The complainant was not replaced. However, I find that the respondent fell somewhat short of a fair and reasonable approach in the conduct of the redundancy. I find that the complainant made a significant contribution to his detriment in this case. On balance, based on the evidence adduced and conclusions reached, I find that the complainant was unfairly dismissed in this case.

Redress: I find that the option of compensation is the only veritable and viable option open to me at this stage. However, I must balance my deliberations on the sum already paid to the complainant with the opaqueness which emerged at the hearings on the complainants stated mitigation and loss. I award the complainant €9,840 in compensation, (8 weeks salary) without prejudice to his previous payments from the company on 15 April 2015.

Dated:   2 June 2016