Complainant

Respondent

Anonymised Parties

An Employee

A Telecommunications Company

Representatives

Represented by Niall Beirne SC instructed by Crowley Millar Solicitors

Represented by Marcus Dowling BL, instructed by Meagher Solicitors

Act

Complaint Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977

CA-00020929-001

01/08/2018

The complainant, an office manager, was hired by the respondent company in July 2013. She formerly worked for the Group company for 12 years. The complainant submits that she was dismissed on grounds of redundancy. She asserts that she was unfairly dismissed while the respondent maintains her dismissal was as a result of a genuine redundancy.

The complainant alleges that she was dismissed on foot of a sham redundancy process engineered by the respondent in order to achieve a pre-determined outcome. The complainant submits that on two occasions, the first in April 2018 and the second in May 2018, she was subjected to vociferous hostile treatment from a work colleague, Ms. P (formerly personal assistant to CEO and currently Head of Business Relations). Immediately after the second incident, the complainant contacted Mr. C, the respondent’s then (Global HR Advisor) and informed him of what had occurred. The complainant asserts that Mr. C enjoyed a particularly close working relationship with Ms. P and this fact made it difficult for the complainant to broach Ms. P’s conduct with him. Over the course of the weekend of 19/20 May 2018, the complainant made contact with Mr. S (Group HR Director) to complain about both of the said incidents at the hands of Ms. P. Mr. S listened and assured the complainant that he would speak to Mr. C about the matter.

The complainant states that Mr. C contacted her by telephone the following Tuesday 22 May 2018 stating that Mr. L (Chief Financial Officer) wanted to meet her before leaving for London that evening. At the meeting, Mr. L informed the complainant that due to changes in the Dublin office and in the number of executives working there, the complainant’s role was being made redundant. He then got up and left the meeting saying “sorry it has come to this”. Mr. C continued the meeting by outlining the figures comprising the termination payment proposed and handed a letter to the complainant. The complainant asserts that Mr. C told the complainant if she could identify another position within the organisation, it would be considered.

A further meeting between the complainant and Mr. C took place the following day on 23 May at which an increased offer of termination payment was made. The complainant voiced her concerns that she was being let go because of her complaints about Ms. P the previous Friday but Mr. C denied this stating that the redundancy had been planned for some time. The complainant states that she informed Mr. C that on 23 April, one month previous, she had been asked in London by Mr. S (Group Chief Operations Officer) to work for him from Dublin as he would be based in Dublin. The complainant submits that she requested that the option of working for Mr. S in Dublin was an alternative. The complainant states that Mr. C went through the charade of exploring this option by sending an e-mail on 23 May to Mr. S and Mr. L which stated “We have commenced redundancy discussions with A and it is very difficult for her. I expect her to reach out to both of you particularly H [Mr. S] with regard to an alternative role. This is not something I think we should pursue”. The complainant submits that Mr. L replied stating that he had given Mr. S the “heads up” stating that he could not accommodate the complainant. The complainant asserts that it is clear therefore that the respondent did not wish to pursue the possibility of suitable alternative employment for the complainant whilst falsely giving the complainant to believe otherwise.

The complainant outlines that on 24 May, Mr. C informed the complainant that Mr. S was unable to accommodate her that there were no other jobs available and that her redundancy would proceed. The complainant submits that this fact establishes that the one week consultation process referred to in the respondent letter and the assurance given to the complainant in the letter that “no decision will be made to terminate your employment until this meaningful redundancy consultation process has occurred during this consultation period” were both shams concocted by the respondent to give the false appearance of a genuine consultation process. Discussions followed in relation to the amount of the termination payment to be paid to the complainant. The complainant states that the respondent ultimately made an offer comprising her contractual and statutory entitlements with an additional sum which she was very dissatisfied with.    

The complainant states that in Mr. C’s letter of 22 May 2018 to the complainant informing her that her position was at risk of redundancy, it states “This situation has arisen through no fault of your own, as the Company has recently undertaken an efficiency review across our central functions with a view to achieving cost reduction and maximising resources in line with Digital Transformation and vision for Company A (my emphasis)”. The complainant submits that no evidence was given by the respondent of such an efficiency review across the respondent’s central functions or of either Digital Transformation or Company A {my emphasis) and Mr. C admitted that he had no documentary evidence of any such matters. The complainant asserts that the reasons given by the respondent for the alleged redundancy at the hearing differed starkly from reasons given by it in its letter to the complainant.

The complainant submits that Mr. C in his evidence at hearing stated that he was informed by Mr. M that the redundancy arose from two factors; the proposed move from the respondent’s office premises on Shelbourne Rd. to smaller premises and the decreased number of management staff to operate from the new premises would obviate the need for an office manager. The complainant states that three e-mails or strings of e-mails were put into evidence by Mr. C and these constitute the extent of the documentary evidence of the respondent’s decision making process concerning the complainant’s dismissal. The first, dated 13 April 2018, from Mr. C to Mr. S refers to a break in the lease for the Dublin office and states “redundancy of AP (the complainant, my emphasis) should not be a problem”.   The complainant submits that her fate was sealed as of 13 April 2018. The second consists of a string of three e-mails, two of which are not dated, culminating in an e-mail of 1 May from Mr. C to Mr. S and Mr. L in which the proposed office move is discussed and reference is made to the complainant’s redundancy and the likely cost of same. The final thread of e-mails is dated 17 May and it concerns the communication of the decision to move office to staff and the decision to make the complainant redundant to her. Reference to the cost of her redundancy is made in this thread. The complainant submits that none of the e-mails substantiate the contention that the move would result in the elimination of the need for the complainant’s job of Office Manager and Administrator. They merely focus on headcount and the accommodation of staff in a smaller office environment. The complainant argues that consequently the respondent has failed to discharge the burden of proving that the complainant’s position was rendered redundant by reason of the move.

The complainant states that without prejudice to the foregoing if, which the complainant vigorously disputes, it is accepted that the respondent has adduced sufficient evidence to discharge the onus, it is submitted that there was no evidence whatsoever that the alleged redundancy situation existed at the time of the dismissal, or immediately thereafter. The complainant states that she was first notified of her proposed redundancy on 22 May 2018 and ultimately her employment terminated on 29 June 2018. The complainant submits that no evidence was given as to when the office move actually took place. The complainant states that at paragraph 8 of the respondent’s submissions dated 23 August 2018, it stated that it was “in the process of relocating to a much smaller office space, a process that is expected to be completed on 1 October 2018”. The complainant submits that the respondent chose not to inform the WRC as to the date of the move or of the date on which it reached agreement with its landlord to break the lease of the Shelbourne Road premises but it is clear that the move did not take place on 29th June 2018 or immediately thereafter. The complainant asserts that the respondent clearly intended to move office in the future at the time of the complainant’s dismissal but it had not ascertained the date of such move and it is submitted that the purported redundancy situation had not yet arisen at the time of the dismissal. The complainant submits that at best, the decision was a premature one and ought not to have been made until the move occurred or immediately before.

The complainant contends that the process of dismissal adopted by the respondent was unfair and unreasonable. It is submitted that the respondent did not have an agreed redundancy procedure and that no custom or practice in that regard applied. The complainant states that at paragraph 21.45 of Redmond on Dismissal Law (2017), Desmond Ryan, referring to Watling & Co. v Richardson (1978) EAT 774/77 and to Boucher v Irish Productivity Centre (1992) states :

“Where there is no agreed procedure or custom or practice relating to an employment, and selection for redundancy does not result wholly or mainly from one of the grounds deemed unfair in s.6(2) of the Unfair Dismissals Act as amended, the WRC or Labour Court will ask whether the employer acted reasonably in all of the circumstances. Two aspects are likely to be considered: the reasonableness of the selection and the reasonableness of the manner of the dismissal. Clearly, the WRC should not be hasty to substitute another view for that of the employer. At the same time, the WRC is required to apply a reasonableness analysis, that is, one that should be judged by the objective standard of the way in which a reasonable employer, in these circumstances, in that line of business would have behaved.”

The complainant submits that the process followed by the respondent was grossly deficient and unreasonable in the following instances;

(a ) At no stage in the process was she ever given the opportunity to be accompanied by a colleague or other support at any meeting at which her employment was under discussion. Mr. C’s explanation for such was that the respondent does not suggest to staff that they bring somebody with them and that the complainant never asked. This demonstrates an unreasonable disregard on the part of the employer for the welfare of an employee in an extremely difficult situation. A reasonable employer would ensure that the employee would be afforded the opportunity of the support and solace of a companion at such meetings.

(b ) It is clear from both the evidence of Mr. C and from the e-mails referred to above that the die was cast in relation to the complainant’s employment in mid-April and a firm decision had been made at this stage to terminate her employment. The “process” that occurred after 22 May 2018 was a sham and it is clear that the respondent was going through the motions of a redundancy consultation when it always intended to proceed with the dismissal.

(c ) The letter of 22 May 2018 is replete with untruths and misrepresentations and the letter was designed to lull the complainant into believing that the respondent would act in good faith in exploring alternatives to her dismissal. In particular, the letter falsely stated:

(i)                  that her job was “at risk of redundancy” when in fact the decision to dismiss her had been made by Mr. M in April 2018

(ii)                as outlined above, the respondent did not undertake “an efficiency review across [its] central functions with a view to achieving cost reduction and maximising resources in line with Digicel Transformation and vision for Company A”, it merely proposed moving office at some undetermined time in the future;

(iii)               the process would be of one-week duration. In fact, by 24 May 2018, 2 days later, any remaining doubt about the complainant’s fate was eliminated when Mr. C says he heard back from Mr. W and Ms. P and after he had communicated to Mr. S his wish that he should not purse an alternative role for the complainant. It is noted that none of these three individuals were called to give evidence. The process, such as it was, lasted a mere two days;

(iv)               “the purpose of the redundancy consultation is to avoid a redundancy situation where possible”, at no stage was it ever contemplated by the respondent that the redundancy would be avoided;

(v)                Mr. C “would be in touch with [the complainant] on…..the selection criteria” This never occurred and Mr. C in evidence explained this by stating that as only one job was under consideration, no selection criteria applied;

(vi)               “Please note that no decision to terminate your employment will be made until this meaningful redundancy consultation process has occurred during this consultation period”. As already outlined, the decision had been made a month before by Mr. M and no evidence was given of any further decision in relation to the complainant’s employment being made thereafter and, in particular, upon completion of the purported process.     

(d) as conceded by Mr. C in evidence, the respondent applied no selection criteria. When the complainant suggested that a selection criteria that encompassed Ms. P be applied, Mr. C dismissed this out of hand without giving it any consideration. It is clear that Mr. C considers Ms. P’s role to be of a different type to the complainant’s former role but his and the respondent’s outright refusal to give any thought to the complainant’s request that Ms. P’s role be considered for selection was unreasonable and unfair. The complainant maintains that at the very least the respondent ought to have applied selection criteria encompassing Ms. P’s role. Such selection, if properly performed, would have resulted in an unfavourable result for either the complainant or Ms. P. The refusal to even contemplate such a selection was an unreasonable one.

(e ) Mr. C’s actions in effectively torpedoing the complainant’s request that consideration be given to her assuming a role with Mr. S, as he had requested her to do on 21 April 2018, a month previously, were grossly unfair. His e-mail of 23 May 2018 to Mr. S and Mr. L is stark:

“We have commenced redundancy discussions with A and it is very difficult for her. I expect her to reach out to both of you particularly H [Mr. S] with regard to an alternative role. This is not something I think we should pursue.”

Mr. L replied stating that he had given Mr. S the “heads up” and Mr. S duly complied with Mr. C’s requirement by stating that he could not accommodate the complainant. It is submitted therefore that the respondent not only did not wish to pursue the possibility of suitable alternative employment for the complainant, it actively discouraged Mr. S from so doing. The complainant asserts that the respondent falsely led her to believe that it was actively pursuing that opportunity on her behalf. The complainant states that Mr. C’s attempt to explain his actions in this regard are not credible and his attempt to explain the position of Mr. S must be disregarded as hearsay. The complainant submits that the respondent could have called Mr. S to give evidence and chose not to do so.

(f) It is clear that the office move was not imminent at the time of the dismissal. The break in the lease had not yet been negotiated and it subsequently transpired that the move did not take place until some undetermined date in October 2018, almost 5 months later.

(g)The complainant submits that the above matters are evidence that the respondent was particularly anxious to accelerate the complainant’s dismissal after she had raised her issues concerning the conduct of Ms. P with Mr. C and Mr. S and Mr. C had contacted Mr. L in that regard over the weekend of 19/20 May 2018. It is submitted that the respondent decided that it did not wish to embark upon a consideration of the complainant’s complaints in relation to Ms. P and that the sham process that followed achieved that end. In particular, the complainant submits that Mr. C’s actions in sabotaging her efforts to explore Mr. S’s suggestion of her working for him, made on 21 April 2018, were grounded in the desire to protect Ms. P from such complaints. The complainant submits that it is clear from paragraph 11 of the respondent’s submission of 12 February 2019 that the respondent continues to protect Ms. P and by so doing to disparage the complainant.

It is submitted that a reasonable employer would not have behaved in the manner in which the respondent in this case carried out the dismissal. The complainant states that the redundancy consultation process was a bogus one with an outcome that had been predetermined a month earlier. Such was its eagerness to affect a swift dismissal. It is submitted that the respondent failed to comply with its own process as described in its letter of 22 May 2018. It is submitted that the respondent intentionally sabotaged an opportunity of alternative employment for the complainant and concealed this fact from her whilst falsely giving her to believe that it was actively pursuing such an opportunity on her behalf.

The complainant submits that the respondent must prove that the dismissal resulted wholly or mainly from redundancy. The complainant states that the dismissal resulted wholly or mainly from the anxiety of the respondent and of Mr. C to protect Ms. P from the fallout of the complaints voiced by the complainant over the days from 18 – 20 May 2018. In this regard, the complainant relies upon Daly v Hanson Industries Ltd. UD 719/86 in which, Ms. Daly was dismissed from her position as personnel manager by reason of redundancy in circumstances in which there had been a considerable decrease in staff numbers. The complainant outlines that Ms. Daly was dismissed on the morning after she had given evidence adverse to her employer at an EAT hearing involving another former employee. Both the EAT and the Circuit Court, on appeal, found that although there was a redundancy element to her dismissal, the immediate or proximate cause of the dismissal was her evidence. The complainant submits that in the instant claim, she made complaints concerning Ms. P on 18 May to Mr. C and on 19 – 20 May to Mr. S and the aftermath of the incident of 18 May was reported to Mr. L that day. The complainant submits that on 22 May, both Mr. L and Mr. C informed the complainant that she was at risk of redundancy and by 24 May, the decision to dismiss her had been finalised. The complainant asserts that whilst there may have been a redundancy element to the dismissal, the immediate or proximate cause was her communication of her complaints concerning Ms. P to the respondent.

The complainant contends that the respondent applied an unfair process and unfairly selected the complainant for dismissal. The complainant outlines that at no stage was she ever given the opportunity to be accompanied by a representative at the various meetings with Mr. C. She states that at no stage did the respondent consider whether any other employee and in particular Ms. P might be considered for redundancy. The complainant contends that Mr. C vociferously prevented the complainant from arguing that Ms. P should be considered with her. The complainant submits that the process which was meant to last for at least a week actually concluded on 24 May when Mr. C informed the complainant that she would be dismissed. It is submitted that the respondent failed in its duty to consider options other than redundancy and by Mr. C’s e-mail of 23 May, it actively ensured that a realistic opportunity of alternative employment for the complainant was extinguished. The complainant submits that the respondent acted unfairly in deceiving the complainant by dishonestly representing to her that it had explored on her behalf the opportunity with Mr. S when in fact it had actively discouraged Mr. S from considering the complainant for employment. It is therefore submitted that the entire redundancy process was a bogus one designed to give the false appearance of a fair process when in fact the predetermined outcome was always the dismissal of the complainant.

In conclusion, the complainant submits that her dismissal was unfair and her preferred remedy is re-instatement.  

The respondent submits that the reason for the complainant’s dismissal was on the ground of redundancy.

The respondent submits that it has been impacted by the well-documented restructuring of Company A [my emphasis] that has seen its global number of employees reduced by 2,200. The respondent stated that over the last 18 months, it has seen the number of people operating from its Dublin office reduced from 11 to 5 (including the complainant), a reduction of 50% and the Company secretary departed her role at the end of 2018. The respondent maintains that the departures from the Dublin office have included all of the senior management executives who are now based across Germany, the UK, Singapore and Jamaica. The respondent contends that as a direct consequence of the reduction in the number of senior management executives based in its Dublin office, the respondent was relocating to a much smaller office space. It was submitted that this decision was taken against a backdrop of group-wide rationalisation and while the respondent is a separate legal entity in its own right, it submits that this background information provides insight and context into the rationale behind the decision to make the complainant’s role redundant and supports the company position that it was a genuine redundancy.

The respondent submits that a large part of the complainant’s day to day duties would have been taken up by providing administrative support to and in respect of the senior management team. The respondent maintains that having regard to the reduction in the number of employees in the Dublin office, the departure of almost all of its senior manager executives to other countries and the diminished role of the Dublin office in the provision of the respondent company’s day to day business services, the complainant’s role became redundant on the grounds that

(i)                  the requirements of the respondent’s business for employees to carry out work of a particular kind in the place where the complainant was so employed have ceased or diminished or are expected to cease or diminish and

(ii)                the respondent has decided to carry out the remaining business at its Dublin office with fewer employees.

The respondent submits that the administrative support duties the complainant previously carried out to assist the senior management are no longer required given their relocation elsewhere and those personnel who remain in the Dublin office do not require like administrative support. The respondent further submits that general office management duties such as maintaining supplies and equipment will now be shared among the remaining personnel and the specific invoicing and payment function is to be carried out by a long-standing part-time accounts executive who is a consultant to the respondent. The respondent maintains that the work carried out by the complainant will either no longer be carried out where the complainant was employed and/or will be subsumed into other roles for which the complainant does not have the necessary skill or expertise. The respondent submits that following on from a telephone call between Company A’s HR Director and the respondent’s representative, Mr. C, in May 2018, the proposal to make the complainant’s role redundant was discussed and communicated to Mr. C. It was submitted that this was discussed along with another role which was also being considered for redundancy at that time. These proposals were made by the Company A’s CEO and communicated to Mr. C by Company A’s HR Director. The respondent states that while the complainant informed Mr. C that a role in Company A’s Miami office had been recently mooted with her and she expressed a possible interest in taking up a role there, the respondent had not previously been aware of this but it did make contact with the relevant office about such, unfortunately this role was not deemed suitable by the business.

The respondent submits that in in the instant proceedings, it was faced with a range of arguments in relation to not just the process that gave rise to dismissal but also in relation to the complainant’s grievances in respect of her employment over the course of a number of years. The respondent submits that the form of exercise contended for by the complainant – a wide ranging review of grievances encompassing a dispute that occurred in 2016, the complainant’s obvious dislike for Ms. P and her view that Ms. P’s qualifications were of no significance and a range of other irrelevant matters, the terms of offers made to unrelated employees in other legal entities and a range of other irrelevant issues is neither appropriate or necessary. The respondent states that in common with the position in the Nano Nagle case, the complainant’s approach emphasises a review of process over practical compliance with the provisions of the 1977 Act. It states that the role performed by the complainant ceased to exist. Given that there was no alternative role available for the complainant, her dismissal was on the ground of redundancy.

The respondent contends that without prejudice to that fundamental position, its response to the various arguments made by the complainant is as follows;

·         The complainant repeatedly asserted that her role was the same as Ms. P’s role and that Ms. P should have been dismissed instead of her. The complainant stated that she felt she should have been given Ms. P’s role as far back as July 2016. In response to those complaints she received an e-mail from the Chief Executive of the respondent company explaining that Ms. P’s role was different to her role and that, in the opinion of the respondent, Ms. P was “uniquely qualified” for the role.

·         Ms. P’s remuneration was significantly, almost 100% higher than the complainant’s remuneration, which is consistent with the role being more responsible.

·         Ms. P had longer service than the complainant.

·         Even if the respondent was somehow required to treat Ms. P’s entirely distinct and more senior role as being at risk of redundancy when it was not, the complainant did not proffer any basis for the contention that Ms. P should have been dismissed and she should have been given Ms P’s role, which would have involved a pay rise of almost 100%.

·         Insofar as the role in Miami was concerned, there was no role in Dublin in circumstances where, on the complainant’s own evidence, Mr. S recruited an employee in Miami. It was never suggested to Mr. C that the decision to recruit an employee in Miami was part of the supposed conspiracy against the complainant and it was not. Further, Mr. C gave evidence which was not seriously disputed that he understood that what the complainant was suggesting was an international role. The only person who appears to have been of the view that the role was to be performed in Dublin was the complainant.

The respondent asserts that in the case of a pool of workers where there is a reduction in the number of positions available, then an employer must follow a fair process in selecting the workers to be made redundant. However, the respondent submits that there is no basis in authority or in the 1977 Act for the argument that an employer is compelled to pool together dissimilar workers with different roles, different responsibilities, different experience and completely different remuneration. The respondent contends that the complainant made a series of baseless allegations against the respondent, in that, she alleges she was dismissed on foot of a conspiracy and sham redundancy process orchestrated in response to a dispute between the complainant and Ms. P on 18 May 2018. The respondent submits that she persisted with that claim in the face of documentary evidence that the restructuring that gave rise to her position being made redundant was discussed in April 2018 and was recorded in writing to be as a result of the “closure of the Dublin office”.

The respondent states that when the complainant gave evidence of the supposed bullying of her by Ms. P on 18 May 2018, it was the complainant’s conduct rather than Ms. P’s that was unreasonable. The respondent submits that on the complainant’s own case, Ms. P had been instructed by a senior executive to co-ordinate the transfer of IT resources in order to facilitate the closure of the office. The respondent maintains that the complainant gave evidence that in her opinion, it was a matter for Ms. P to challenge that instruction and that the complainant was therefore justified in berating Ms. P for failing to do so. The respondent asserts that what occurred during the course of that meeting is like the complainant’s grievance in relation to Ms. P generally, of no relevance to the matters at issue in these proceedings.

The respondent submits that it engaged in a reasonable and appropriate redundancy process. It states that there was no animus against the complainant. The respondent states that it is common case that both Mr. C and the complainant enjoyed a very good working relationship prior to the redundancy. The respondent outlined that Mr. C gave evidence as to the efforts that he went to in order to find suitable alternative employment outside the employer and within the wider group and with related companies. The respondent submits that it was a regrettable situation but could not have been avoided and the respondent treated the complainant fairly and reasonably at all times, particularly in their offer to her of an enhanced exit package. In conclusion, the respondent submits that the complainant was fairly dismissed on the ground of redundancy. It states that there was no conspiracy. The respondent maintains that there is no legal or factual basis for the suggestion that the respondent was obliged to consider the complainant in a “pool” with Ms. P.

The issue for decision by me is whether or not the complainant was unfairly dismissed by the respondent company.

Section 6 of the 1977 Act provides:

“6. – (1) Subject to the provisions of this section, the dismissal of an employee shall be deemed, for the purposes of this Act, to be an unfair dismissal unless, having regard to all the circumstances, there were substantial grounds justifying the dismissal.

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

... (c ) the redundancy of the employee

Redundancy for the purposes of the 1977 Act is defined with reference to section 7 of the Redundancy Payments Act, 1967;

“7(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly to -

(a)    the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased or intends to cease, to carry on that business in the place where the employee was so employed, or

(b)    the fact that the requirements of that business for employees to carry out work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish, or

(c)     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 had been employed ( or had been doing before his dismissal) to be done by other employees or otherwise, or

(d)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done in a different manner for which the employee is not sufficiently qualified or trained, or

(e)    the fact that his employer has decided that the work for which the employee had been employed (or had been doing before his dismissal) should henceforward be done by a person who is also capable of doing other work for which the employee is not sufficiently qualified or trained”

In the case of JVC Europe Ltd v Panisi [2011] IEHC 279, Charleton J stated;

“In all cases of dismissal, whether by reason of redundancy or for substantial grounds justifying dismissal, the burden of proof rests on the employer to demonstrate that the termination of employment came within a lawful reason. In cases of misconduct, a fair procedure must be followed whereby an employee is given an entitlement to explain what otherwise might amount to a finding of real seriousness against his or her character. In an unfair dismissal claim, where the answer is asserted to be redundancy, the employer bears the burden of establishing redundancy and of showing which kind of redundancy is apposite. Without that requirement, vagueness would replace the precision necessary to ensure the upholding of employee rights. Redundancy is impersonal. Instead, it must result from, as section 7(2) of the Redundancy Payments Act 1967, as amended, provides, “reasons not related to the employee concerned”. Redundancy, cannot, therefore be used as a cloak for the weeding out of those employees who are regarded as less competent than others or who appear to have health or age related issues. If that is the reason for letting an employee go, then it is not a redundancy, but a dismissal.”  

Judge Charlton recited two specific legal requirements in effecting a legitimate redundancy, both of which are directly relevant to the instant case; The first is Section 7(2) of the Redundancy Payments Act 1967, as amended by Section 4 of the 1971 Act, and by the Redundancy Payments Act 2003, wherein Section 5 (2) 1 requires that “(2) For the purposes of subsection (1), an employee who is dismissed shall be taken to be dismissed by reason of redundancy if for one or more reasons not related to the employee concerned the dismissal is attributable wholly or mainly … “ five listed grounds.

Thus, highlighting the essential requirement of “impersonality” in effecting a fair dismissal on grounds of redundancy, noting later that in St. Leger v Frontline Distributors Ireland Ltd [1995] E.L.R 160 at 161 to 162, an EAT Chairman stated that “Impersonality runs throughout the five definitions in the Act.”

These in brief summary are as follows; cessation or intended cessation of the business, cessation or diminished requirement for a particular kind of work in the employees place of work; the fact that an employer decides to carry on business with fewer employees whether the work performed by the employee is continued or otherwise; that the work performed by the employee be carried on in a different manner for which the employee is insufficiently qualified or trained; that the work performed by the employee be carried on another employee capable of performing it along with work for which the employee is insufficiently qualified or trained.

In this case, Judge Charelton remarked that “It may be prudent and a mark of a genuine redundancy that alternatives to letting an employee go should be examined” and that “a fair selection procedure may indicate an honest approach to redundancy by an employer”.

Having carefully considered all the evidence in the instant case, I accept the points made by the respondent in relation to the rationalisation and downsizing of Company A. However, on the balance of probabilities, I find that there were issues around the selection for redundancy and the manner and implementation of the redundancy process in relation to the complainant. In that regard, in my opinion, that process was flawed on a procedural basis and poorly handled by management. I am satisfied that a reasonable employer would not have behaved in the manner in which the respondent carried out the dismissal in this case. A reasonable employer would have treated the complainant in a more fair and considered manner given her service to the company. I find, based on the evidence heard, that the redundancy consultation process was not a genuine one in circumstances where the outcome had been predetermined one month earlier. The complainant raised issues in relation to favouritism in that Ms. P was retained over her. It would appear that the respondent acted very hastily to affect a quick dismissal following the bullying complaint made by the complainant concerning Ms. P. I conclude that that the respondent failed to comply with its own process as outlined in its letter of 22 May 2018. I am also mindful that the complainant did not have an opportunity to have representation with her at the meetings in relation to her being made redundant.

I find that the respondent whilst claiming to be actively pursuing an opportunity for alternative employment for the complainant was in fact giving his colleagues a heads up in relation to the complainant contacting them and advising them not to pursue such a course of action. Mr. C in an e-mail dated 23 May stated; “I expect her to reach out to both of you particularly H with regard to an alternative role. This is not something I think we should pursue.” There is an obligation in a situation such as the instant one on the respondent to seek out alternative employment for the complainant being made redundant. In this regard, I am cognisant of the EAT decision in Jeffers v DDC Ireland Ltd. UD 169/2000, where the EAT held that where a person was being made redundant, there was an onus on the employer “(i) to take reasonable steps to seek alternative employment within the company for the employee being made redundant, (ii) to know what positions, if any, are available on the relevant date, and (iii) to offer any such reasonable alternative positions to the employee whose position is becoming redundant.” However, given the above blunt statement by Mr. C in his e-mail dated 23 May, I find it highly implausible that Mr. C undertook such measures. It was stated at the hearing that Mr. C had a very good and close working relationship with Ms. P and that she was a favoured employee of Mr. C. I am cognisant that the complainant had made bullying complaints to management about Ms. P and in my view, this matter impacted on the respondent taking swift action to affect the complainant’s dismissal from the company and thereby nullifying the complaints of bullying. I note from the submissions that the office move was not impending at the time of the dismissal and the break in the lease had not yet been negotiated and it transpired that the move did not take place until October 2018 almost five months later.

Having adduced the totality of the evidence in the instant claim, I find that the process adopted by the respondent was unfair, unreasonable and disproportionate and coupled with this, the hastiness of the respondent in affecting a swift dismissal leads me to conclude that the dismissal was unfair.

While the complainant has requested redress in the form of reinstatement in the post, having carefully considered the matter, I find that financial compensation would be the most appropriate remedy in the circumstances. I note that since the complainant’s dismissal that while she has undertaken a number of courses, she has not been in a position to source alternative employment despite having sent her CV to numerous prospective firms. I am mindful that the complainant indicated that this may be attributable to her age which can impact on a person’s ability to get work. In the circumstances of the instant claim, taking all the relevant factors into account, I deem it appropriate to order the respondent to pay the complainant €50,000 in compensation for her unfair dismissal.  

For the reasons set out above, I find that the complaint pursuant to the Unfair Dismissals Act is well-founded. I find that the dismissal by reason of redundancy was procedurally unfair and therefore has rendered the dismissal unfair. The respondent is directed to pay the complainant €50,000 in compensation which represents a year’s salary.

Unfair dismissal, selection for redundancy,