ADJUDICATION OFFICER DECISION/RECOMMENDATION

Adjudication Reference: ADJ-00020363

Parties:

Complaint(s):

Date of Adjudication Hearing: 17/07/2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015 Section 8 of the Unfair Dismissals Acts, 1977 - 2015following 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

Employee

The claimant was employed from the 1st January 2006 until the 18th of June 2018 when his contract of employment was terminated. The claimant was paid his notice period and his employment ended on the 18th September 2018. The claimant was paid €150,000 gross per annum the claimant had additional incentives/benefits which are the subject matter before the High Courts.

Background

The respondent submitted that the claimant was not employed them.

The claimant’s business was purchased by the respondents parent company towards the end of 2015. The claimant remained in employment with the respondent until his contract of employment was terminated, he was furnished with 3 months’ notice of termination which expired on September 18th, 2018.

The respondent further stated that they would be opposed to, in the strongest possible terms, that the remedy of re-instatement or re-engagement, as sought by the claimant, as not suitable remedies for the following reasons:

1. Respondent purchased the claimant’s business to integrate its software technology with hardware products. However, this integration did not prove feasible or acceptable in the marketplace and a lead customer which was designated as the target purchaser for the product, ultimately refused to acquire it.

A radical re-structuring process which will have the unfortunate result of making the clear majority of the employee’s redundant. Following the conclusion of the redundancy consultation process, 15 employees were served with a notice of redundancy with a phased effect ending on September 30th, 2019.

2. Re-instatement would in effect mean the claimant would be overseeing his own redundancy in an operation that has ceased to trade. Given the seniority of the role the claimant held re-engagement would not be practical.

The respondent also submitted that the claimant's contract of employment was terminated in accordance with its terms and conditions. The respondent included Bradshaw v Murphy as a supportive argument, namely that employers have an entitlement at common law to terminate the employment of employees, without cause, in accordance with the relevant contractual provisions.

The respondent also raised a number of preliminary issues.

The claimant’s position

The claimant submitted that he received a phone call on the morning of June 18th, 2018, asking him to phone into a conference call at 9.00 am that morning and in doing so he was informed by the Chief Business officer that his contract of employment was terminated. The claimant asked several times why his contract was being terminated only to be simply told “Your contract is terminated”. The claimant stated that he was requested to leave his office immediately.

The claimant stated that no reason was ever received from the respondent, for the termination of his contract of employment. The claimant is seeking re-instatement or re-engagement.

The claimant also stated that when he took the telephone call the senior HR person from the UK walked into the room to be present during the conversation.

The claimant also submitted that he had to get someone to let him out of the building as all the security codes were changed during the telephone call.

Preliminary Issue 1:

The respondent submits that Respondent was not the employer of the claimant.

Findings:

I find that I am satisfied the claimant has identified the correct respondent, supported by the evidence as contained in the respondent's submission, i.e., Contract of Employment. Respondents headed paper and the contents contained therein clearly demonstrate that the respondent had control of the claimant's duties and responsibilities and appointment.

I also find that the claimant was to abide by the Code of Business Conduct and Ethics and all disciplinary matters are dealt with in accordance with respondent’s handbook

Preliminary issue 2:

The claimant and respondent have both indicated that an issue in relation to stock options may be considered at the High Court. The adjudicator is guided by the result in Florish V Alienvault and as such the stock options shall not form any basis in the adjudicator's assessment of the claim for Unfair Dismissal.

Findings:

I find that while the respondent did exercise its contractual right to terminate the claimant's contract of employment, it does not preclude the claimant from exercising his right to take a claim for Unfair Dismissal.

I find in reaching the decision to terminate the contract of employment the respondent should demonstrate that fair procedures were applied in reaching that conclusion.

I find that when the claimant asked why his position was being terminated he was denied his rights and procedures contained the Respondents own handbook.

I find in this instance fair procedures were totally denied to the claimant.

Remedy

I find, given the evidence, that the remedial options sought by the claimant in this instance are unpractical and given the likely prospect of further legal proceedings would certainly not be conducive to a good working relationship.

I also find that the claimant’s ability to mitigate his losses were severely restriction by a clause in his contract of employment, namely “Certain Restricted clauses”, which identifies periods of time and Certain type entities from which the claimant is precluded from seeking employment with, without first seeking specific written consent of the Executive Vice President of Global Human resources.

Recommendation

Section 8 of the Unfair Dismissals Acts, 1977 – 2015 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 1977 Act.

I find given the evidence that the claimant was unfairly dismissed, and I award him €250,000 compensation.

Dated:   4th December 2019

Workplace Relations Commission Adjudication Officer: Jim O'Connell

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