Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00018720-001

25/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00018720-002

25/04/2018

Complaint seeking adjudication by the Workplace Relations Commission under Section 11 of the Minimum Notice & Terms of Employment Act, 1973

CA-00018720-003

25/04/2018

The complainant maintains that she was dismissed on the basis of a sham redundancy.

She commenced employment with the respondent on 15 April 2016.

Her salary was €€11,083 per month.

The complainant reported difficulties which she was experiencing with Ms L, Financial Controller to the CEO in June 2017 and later in October.

On 7 December 2017 the Complainant's employment was terminated for the alleged reason of redundancy.

She submitted her complaints under the Unfair Dismissals Act, 1977, the Safety Health and Welfare at Work Act, 2005 and the Minimum Notice and Terms of Employment Act, 1973 to the WRC on 25/4/2018.

CA-00018720-001.Complaint under Section 8 of the Unfair Dismissals Act, 1977

The complainant maintains that she was unfairly dismissed on the basis of a sham redundancy.

Complainant’s evidence

She was asked to join the company and commenced employment with the respondent on 15 April 2016. Her role encompassed regulatory reporting, corporate governance and HR. Initially she was engaged with supporting the commercial negotiations on the sub-marine installations. She had prior experience in this. She took on the IT function and developed software solutions.

In the interregnum between losing one Chief Financial Officer and appointing a replacement, she had a lot of financial responsibilities with reporting to the Board. When the new Chief Financial Officer (CFO) was appointed in April 2017, he removed those functions from her. In April 2017 it was suggested that a solicitor could do the legal work.

The Complainant informed the employer, of bullying and harassment by Ms L, Financial Controller, in July 2017 and again on 6 October. By September 2017, she believed that her position was being negatively impacted as follows:

She was advised not to email Board members without going through her line manager, removed from the circulation list for Board documents, excluded from the appointment process for a new member of staff despite being in charge of Human Resources not consulted about changes in annual leave procedures, rebuked by Chief Financial Officer (CFO), Mr F for not affording Ms L access to the respondent’s legal systems shouted at by the CEO in front of other staff on 9 September

The Complainant set out her complaints of bullying, in an email on 17 October 2017 to the CFO, detailing the undermining comments about the complainant’s salary and role which Ms L had put into circulation. The complainant called a Board member after being advised that she would be made redundant and he disclaimed all knowledge of same.

The CFO put a restructuring proposal to the board on 11 October 2017. The decision to make her redundant was taken ahead of any consultation process.

On 18 October 2017 the Complainant was invited to a meeting with the Chief Financial Officer, which eventually took place on 23 October 2017. The invite referred to a “reorganisation” and to discuss a” HR” issue. At this meeting the complainant's complaint of bullying was discussed. She asked that mediation would proceed immediately. The CFO discussed the difference between a formal and an informal process. He suggested a few people who might mediate. The complainant and the CFO agreed that an informal approach would be followed. The respondent made no offer to investigate the complaints. The CFO undertook to speak to the CEO about engaging a mediator.

Then having concluded the discussion on her written complaint of 17 /10 /17, they moved on the second matter. The CFO advised the complainant that they were going to outsource the HR function. She asked the CFO if her job was at risk. He said yes. The complainant enquired if alternative roles were being considered for her. The respondent replied that they would consider this but never identified any alternative roles. The complainant disputes that the respondent asked her to consider and propose alternatives to redundancy She asked him if the company would consider redundancy. He said they would.

From 23 October to 6 December she was working from home on the upcoming project.

On 7 December 2017 the Complainant's employment was terminated for the alleged reason of redundancy. No exploration of alternatives suggested.

Unfairness of respondent’s procedures.

The complainant submits that the employer did not consider any alternatives to redundancy and did not engage in a meaningful consultation process in any attempt to avoid redundancy. The complainant asserts that her job description would have allowed for a different role for her within the company. If explored, there would have been room within the company for an operational role which includes provisioning. The complainant asserts that she should have been retained as she had extensive experience in the business of developing sub- marine cables the area to which the respondent was changing. No alternatives were considered by the respondent.

The complainant was not offered the option to appeal the redundancy.

The complainant never accepted that it was a genuine redundancy, nor did she agree to it.

The exit process was entirely different to that employed for a previous employee who was made redundant. That employee was allowed to work from home. She was offered an alternative role; she rejected it. She was notified on the same day of her redundancy. She was given a right of appeal. She asked for the appeal to be done by a Board member. She then came to a settlement.

The complainant was unfairly selected for redundancy as a result of making her complaint about a colleague, Ms L to the CFO who was prone to suggest to other staff members that the complainant’s job was at risk. She spoke to the CEO on 3 occasions, late June, late July on the phone and 6 October. The CEO on that day said he would hire a mediator about a colleague.

The Board member with whom she had been in contact advised her that the company would pay for her legal costs and that she would be getting an improved offer.

The Company followed no, or no fair, procedures in the dismissal of the complainant and there appears to be no fair and rational reasoning for the complainant’s dismissal. The complainant argues that she was unfairly dismissed by her employer, in breach of fair and proper procedures and contrary to, and without due regard for, natural justice, equity and her rights and entitlements under contract, statute, equity and common law.

The Law

The complainant submits that for a redundancy-based dismissal to be fair, the selection process must be fair, and the employer’s conduct must be reasonable. Then complainant refers to the specifications in the Redundancy Payments Acts 1967-2014 that the redundancy” must be for one or more reasons not related to the employee concerned” in order to escape a finding of unfair dismissal. The reasons are set out in section 7(2). The complainant refers to Panisi v JVC Europe Ltd (2012) E.L.R 70 where at page 5 Charlton J stated that” the respondent bears the burden of establishing redundancy……….it must result from 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”

The complainant submits that it is not a genuine redundancy as required by the Acts. Neither did the respondent adopt transparent, objective or fair procedures or conduct themselves reasonably in relation the complainant’s dismissal.

There is no legal authority to support the contention that the onus rests with the complaint to put forward alternatives to redundancy.

The complainant relies on the following decisions /determinations:

ADJ 4428, where the respondent failed to give sufficient warning, did not set out objective selection criteria and chose not to explore alternatives to redundancy, and was found to have unfairly dismissed the complainant.

Daly v Hanson Industries Ltd UD719/1986. Here the EAT found that there was a redundancy element but that the dismissal did not result mainly from the redundancy element and it came immediately after the complaint had given evidence against her employer in another hearing at the Tribunal,

Edwards v Aerials and Electronics (Ireland) Ltd UD 236/1985 where the Tribunal held that while the full-time position held by the complainant no longer was viable, the redundancy was not genuine.

In Hart v Zed Candy Ltd UD 9/2003, the EAT held that the complainant had been unfairly selected for redundancy because of the lack of an explanation of the redundancy process and a lack of fair procedures

Loss.

The complainant took up a new 3-month position on 1 March 2018, earning €21,000. She took up a permanent position in 1 June earning €90.000 as opposed to €133,000 with the respondent

The complainant set out her loss in more detail after the hearing and identified her loss to date at €41,374. The complainant identifies her ongoing losses of €67,000 based on the difference in the base salary, a smaller bonus and a lower pension contribution.

CA-00018720-002.Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The Complainant withdrew this complaint. Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

CA-00018720-003.Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

The Complainant's complaint is that the termination of her employment was an unfair dismissal based on a sham redundancy. The Complainant did not receive her full contractual entitlement to notice (or payment in lieu thereof). The Complainant was entitled to six months' notice but was only provided with 4 months and 3 weeks' payment in lieu of notice which resulted in a shortfall of €13,585. The Respondent has failed to make the pension contributions for the benefit of the Complainant for the full notice period.

The respondent is a company involved in the wholesale telecoms market. It operates a fibre optic network and is a provider of bandwidth infrastructure services including dark fibre and wavelengths. It specialises in sub-sea cabling and specifically the building and operating of sub-marine cable systems. They have 17 employees/contractors in total, 9 of whom work from the Company's Dublin offices.

The Claimant commenced employment with the Company on 15 April 2016. The Claimant was engaged as Vice President, Legal and Compliance. She reported to the Chief Financial Officer of the Company. On commencement of her employment, the Claimant was paid a salary of €110,000. She received a retention bonus of €7,500 in December 2016 and a further retention bonus in June 2017 of €7,500. Her salary increased to €133,000 with effect from 1 July 2017 but this increase was made as part of a buy-out of the payment of future retention bonus payments and was made to other employees also. She received a discretionary bonus payment of €20,000 in March 2017

The Claimant’s role was to provide HR, Legal, and IT support. The main objectives of her role were to reduce legal, insurance and IT costs, develop legal templates, assist with compliance matters and implement HR policies as is confirmed in her KPIs. The Claimant does not hold a legal qualification. She engaged external legal counsel to work on various matters.

Throughout 2016 and 2017, the respondent faced a number of significant challenges. They lost 3 senior personnel one of them through a redundancy. Throughout 2017, the Company's sales revenue was significantly lower than expected. By the end of the third quarter of 2017, sales revenue was only 37.9% of target.

The meeting to which she was invited by way of email on 19 Oct was billed “future of the organisation”.

Case for redundancy

There was a reduced demand for the type of work undertaken by the complainant.

At the time the complainant joined the company in early 2016, the respondent’s main business was selling bandwidth off the existing sub- sea cable. This predominantly entailed putting Master Services Agreements in place and processing Order Forms with clients. These were largely template documents which required tailoring for some specific arrangements. The complainant assisted with this, together with external legal input as necessary, and did whatever adjustments were required for these new contracts

The respondent’s business changed. This came about due to the offer to the respondent in August 2017 to join a consortium with other 3 multinational data providers to develop more bandwidth / information channels between the USA and the EU. This was the X project. Throughout August and September 2017 highly confidential negotiations in relation to this potential consortium arrangement continued, which were led, on behalf of the Company by the CEO. On 22 September 2017, the CEO delivered a highly confidential briefing to the senior management team, including the complainant, to inform them of the Company’s involvement in the consortium. This was a very significant change in the Company's operations and strategy. The Company was moving back to being involved in a very significant new sub-sea cable building venture. This was going to entail the Company getting involved in very complex and specialised legal contracts with the consortium - including construction contracts, consortium contracts, permits and licencing agreements, landing party agreements, wayleaves etc., most of which, due to the nature of the project, have multi-jurisdictional application. In late September 2017, the Company engaged the services of a specialist law firm to negotiate and draft the Consortium and Supply contracts. In addition to this, by October 2017, there was strong market interest in two other cable building projects. The respondent needed immediately available, on – site legal expertise so as to reduce costs, to input into the negotiations for a consortium, to draft complex agreements.

The complainant did not have a legal qualification to deal with these upcoming responsibilities.   This development arose after the complainant had commenced employment with the respondent.

The respondent also decided that with a small team if 11 staff, they could outsource the IT and HR functions which comprised 10% of the complainant’s role as a cost cutting measure.

Evidence of Chief Financial Officer.

At the June 2017 board meeting there was a discussion about the need to have an in- house lawyer. On 11 October 2017, the board considered an agenda item ‘Examination of Legal/HR structure’. The witness submitted a proposal to outsource the HR and IT function and to employ an in -house Counsel. He was tasked with implementing these changes insofar as they related to the complainant. No staff members or issues were discussed at that meeting or at any Board meeting

He met the complainant on the 23 October to consider two items. The first was the complaint of bullying against Ms L. He explained to her that any allegations are taken seriously, and she was reminded that there were a number of options for her under the Company's Employee Handbook. He offered to investigate her allegations, or to have an independent department head investigate the issues or that the CEO would investigate the matters. The complainant refused all three proposals. When asked how she wished to proceed, her response was to the effect that she did not wish to pursue the matter. She stated that she just wanted to work from home. He explained to her that her allegations were serious and that it was not possible to leave such issues unaddressed or unsubstantiated. She could not provide any evidence to substantiate any of the allegations that she had raised. She said that she did not wish to pursue her complaint. The complainant was steadfast in her decision.

It was the complainant however who prevented mediation taking place or an investigation in to those matters progressing when she informed him that she did not wish to pursue the matter.

He offered her a break before they would proceed to item 2, but she insisted that they should proceed. He explained that the company was no longer merely an operating company that they were now in the business of developing and building cables. He referred to the X project and 2 further upcoming projects to do with building sub – marine cables. He advised that they needed in house legal expertise to develop new contracts for the proposed consortium. He informed the complainant that external legal costs now often exceeded profits from sales. He advised the complainant that this could impact on her role to the extent that there was a risk to her position. He advised that the company look at alternatives that would work for both the complainant and the company. The complainant asked him about a package. He stated that he understood that the news must be a shock. He dissuaded her from fastening on redundancy before considering alternatives. He invited her to indicate alternative roles or solutions. The complainant suggested a package. The CFO advised her that nothing was final, to look at alternatives and to revert to him. The complainant requested time to consider these developments and this was agreed.

A few hours late on the 23 October the complainant emailed 8 requests to one of the Directors, Mr J, as part of an exit package. She recalled that when they had exited a previous employee she had asked and had been assured that if the same situation ever arose for her, it would be done quickly. She asked Mr. J if he could ensure the necessary paperwork was sent to her as she did not want to ever have to back to the office. She wanted the exit package to be concluded speedily. She advised Mr. J if the package was agreed she would withdraw her grievances.

On 25 October, Mr J agreed to the complainant’s terms by email. On the same day the complainant stated by text message that her notice was 6 months and not the three which she had stated in her email of 23 October. The complainant agreed to Mr J’s suggestion that the company would prepare a draft agreement. The complainant enquired about the draft agreement on the 31 October.

In the week following the 23 October, the witness discussed possible alternatives for the complaint with the CEO, but they were unable to identify an alternative role.

On 1 November the CFO wrote to the complainant stating that they had not been able to identify an alternative position for her and set out a redundancy package for her. He further advised her to take any necessary legal advice and the company would make her a redundancy offer

The Company was agreeable to the terms she requested.

On 31 October 2017, the Claimant texted Mr J at 11.08 am saying "Today is October 31st have u something for me to read?"

Mr. J invited her to "drop [him] a line" when she wanted to chat about the revised offer which had been sent to her it. He concluded that he thought they could get it finalised very quickly if she'd like to.

In light of the specific requests from the complainant, the Company prepared a draft Agreement to reflect the terms it was prepared to offer her.

The CFO had heard nothing further from the Claimant since his meeting with her on 23 October and she had not attended in the office since that date. This was consistent with her expressed wish never to return to the office to which he was privy. Due to the size of the Company and its needs at that time, the Company had not been able to identify any alternative roles or any mechanism to avoid the redundancy. There was no alternative to redundancy in this situation. In light of this, on 1 November 2017, the CFO wrote to the Claimant by email saying:

“In follow up to our conversation Monday 23rd October. As we have not received any alternative suggested arrangements, management have decided to implement the proposed restructuring as discussed. As a result of this decision we will make you a redundancy offer as outlined in the attached document. Please review the offer, take any necessary advice and revert to us. I am available to discuss should you wish.”

The Complainant responded on the same day by initially seeking a total package which was significantly more than the request outlined in her initial email to Mr J on 23 October. The CFO explained to her that, in light of her length of service (1.6 years) she had no entitlement to a redundancy payment nor did she have any automatic entitlement to the bonus payment she was seeking.

The Company had no established procedure in redundancy situations. There was no trade union agreement and there was no custom and practice in relation to redundancy. In an effort to reach an agreement, the CFO increased the offer to the Claimant on 1 November at 18.35. The Claimant did not respond to this offer.

Having heard nothing, the CFO contacted her again on 21 November 2017 querying if she had reached a decision. The following day, on 22 November 2017 the complainant responded to Mr Foley informing him that her solicitors were now handling the matter and that she had instructed them and had rejected the offer.

On 6 December 2017, the CFO wrote to the complainant confirming the arrangements relating to the termination of her employment. She was paid in lieu of the remaining 5 months balance of her notice period and her accrued holidays.

The complainant did not at any point seek to appeal the decision to make her role redundant. Her only focus, from the date on which she was informed that her role was at risk of redundancy, was to secure a package and ensure that she did not have to return to work at any time.

The respondent states that after the redundancy was notified to her, a letter from her solicitor dated 8 December 2017, and her complaint form, sought to assert that she has been dismissed for having made allegations of bullying/harassment in the workplace. That is not the case. While there had been inter-personal issues between the complainant and the Financial Controller, Ms L, the CFO had sought to address those issues on a number of occasions. The complainant refused a number of options outlined by the CFO to address the issues including a facilitated meeting and formal investigation. Those issues had nothing whatsoever to do with the redundancy decision. The decision to out-source the HR and IT support functions and to retain an in-house solicitor was made by the Board of the Company in response to the business needs at the time.

The CFO’S note of a meeting of 30 August records the fact that he informed the Claimant that he proposed bringing the complainant and Ms. L together so that they could both air their grievances and agree to move forward. Ms. L had already agreed to this. The complainant however asked for a few days to consider it. The respondent heard nothing further until her email of 17 October in which she acknowledged that she had asked that the meeting with Ms L be put on hold. This email was six days after the October Board Meeting had taken place. As part of her role, the complainant compiled the Board packs for the Board Meetings. At the outset of that email, the Claimant acknowledged that she had asked for the suggested meeting with Ms L to be put "on hold". The Complainant had not made any complaint in respect of Ms. L at this point.

On 18th October the CFO responded to the complainant and pointed out that it was Ms. L who had come to him raising issues relating to the complainant. He also pointed out that the meeting he had proposed to try to address the issues had been put on hold at the Claimant's request.

The decision to make the Claimant's role redundant and to hire an in-house Counsel was a decision of the Board.

Her position was a stand-alone position. There were no other positions in to which she could be redeployed. The VP operations which she identifies as a role that was filled in the Spring of 2017 is a position for an engineer.They looked at where her skill set could be redeployed and failed to identify an opportunity.

The entire HR function was outsourced. They employed an in-house lawyer on 1 March 2018.

The complainant never mentioned unfair dismissal when she was negotiating a package through the Board Member, Mr. J. Neither did the complainant’s solicitor ever advance the argument that it was an unfair dismissal.

Legal submission.

The respondent contends that section 6(3) of the Act of 1977 makes it clear the matter of fair selection criteria only refers to situations where there are one or more redundancies. The complainant filled a stand-alone role. The need to recruit an in-house lawyer impacted on no other employee.

The respondent relies on Kim McNally v Westwood Club Limited UD1391/2009 which found that the claimant was not unfairly selected for redundancy under the terms of the Unfair Dismissal Acts 1977 to 2007 because:

•             (1) The claimant's position was genuinely made redundant, as accepted by the claimant herself.

•             that there was no trade union agreement nor was there any custom and practice relating to redundancy which had been breached.

The respondent also relies on Dennehy v Millstreet County Park Limited (2007) 9JIEC 1804. The Tribunal found that because there was a genuine redundancy, an imperfect process could not upend the fact that it was a genuine redundancy, nor could it lead to the conclusion that the dismissal was unfair.

Similarly, in Nigrell v Graham UD 600/2013. The complainant was made redundant in a small business due to the changing nature of the business and the resultant changes in the skills and qualifications required. In this case the tribunal held that while consultation, representation and the right of appeal are the stuff of “good and prudent practice and are probably found in larger enterprises…...However, the tribunal is not persuaded that such practices are mandatory with automatic consequences for employers who do not follow them………. but in the instant case they are not legally required to be recognised such that a failure to do so would result in a genuine redundancy being considered as an unfair dismissal”

Loss

The respondent submitted documentary evidence on the matter of loss. The complainant was paid for her notice period which ran up to 1 May 2018. The respondent transferred all employer and employee contributions to the pension provider which amounted to €21,514 in December 2017. The income which the complainant earned for the period March to May indicates that she suffered no loss and is in fact better off.

The complainant’s claim for a bonus of €30,625 is disputed by the respondent. A bonus is discretionary.

The respondent maintains that this complaint cannot be upheld as the complainant has received paid notice which is well beyond her statutory entitlement.

CA-00018720-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977

I must decide if the dismissal was based on a genuine redundancy or if it was an unfair dismissal masquerading as a dismissal due to redundancy.

Legislation involved and the obligations on the parties.

Section 6 of the Unfair Dismissals Act 1977 puts the burden of proof on the Respondent.

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.”

Section 6(4)(c) identifies redundancy as a substantial ground.

A dismissal due to redundancy must correspond with the requirements of Section 7(2) of the Redundancy Payments Act 1967 which allows for dismissal due to redundancy if the following circumstances are met:

“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.’

The Employment Appeals Tribunal in St Ledger v Frontline Distributors, 1995, E.L.R 160 held thatthe key factors in redundancy are impersonality and change.

Was it a genuine redundancy?

The role which the complainant occupied, and which was targeted for redundancy was a stand-alone position. It was made up of Legal and Compliance representing 60% of her role, IT and HR representing 20%, and Driving Down insurance costs, 20%. I accept that the respondent’s requirements had changed from the date at which the complainant commenced employment. I accept the respondent’s evidence that the nature of the business had changed from maintaining IT infrastructure and selling access to it to building and developing these sub – sea cables. I accept that they were on the threshold of creating a consortium with three other international companies for the purposes of bringing these cables from the USA to Europe. This was not disputed by the complainant. The complainant did not dispute the respondent’s argument that more sophisticated legal expertise was needed to develop the type of contracts associated with the consortium. The complainant is not a qualified lawyer. She has a B.Sc. in Chemistry, a qualification in data protection and an MBA. The type of contracts and knowledge associated with this consortium was submitted.

The company outsourced the HR function. A lawyer was appointed on the 1 March 2018.

So, the evidence points to the fact that her job had shrunk by 70 %.

The complainant’s case however is that it was the fact that she levelled complaints against a fellow employee which prompted the respondent to make her position redundant. The redundancy was not wholly or mainly due to the restructuring in the company. The complainant had raised complaints and concerns about Ms L the subject of her complaints with the CEO and the CFO. However, she declined all avenues offered to her to address, rectify and close these complaints. It is correct that the conflictual relationship between the complainant and Ms L was known to the respondent prior to it proposing redundancy but I find that these problematic relationships are overwhelmed by the evidence advanced to engage an in-house lawyer.

In relation to the evidence which the complainant advances as evidence that the respondent’s attitude had by September 2017 changed towards her, the respondent advised that hiring and firing was the business of the CFO and CEO. There was nothing improper in asking the complainant to go through her line manager as opposed to going directly to the board when seeking assistance with a task. They stated there had been problems with recording leave.

The complainant compares this case to the case of Daly v Hanson Industries LTD UD719/1986 where the EAT found that there was a redundancy element but that the dismissal did not result mainly from the redundancy element and it came immediately after the complaint had given evidence against her employer in another hearing at the Tribunal. That was described by her employer as “hostile evidence”, having potential negative consequences for that employer and it was followed a day later with that complainant’s dismissal notwithstanding the fact that the respondent had known about the hearing 3 months earlier but waited to dismiss until after the” hostile evidence” had been tendered in a public forum. That is a different situation to a complaint of bullying against a fellow employee.

Based on the oral and written evidence, I find that it was a genuine redundancy wholly or mainly related to the respondent’s changing business direction and requirements and the qualifications necessary for employees to adjust to the changing environment.                                                            

Reasonableness of the employer.

Section (7) of the Unfair Dismissals Act 1977 (as amended) requires that the employer establish not only that it had substantial grounds justifying dismissal but also that it followed fair and proper procedures, and this includes dismissal on the basis of redundancy. Regard may be had as to whether the dismissal was an unfair one or not by looking   to the reasonableness or otherwise of the conduct (whether by act or omission) of the employer in relation to the dismissal, (Section 6 Unfair Dismissals Act 1977 as amended).

I find that the complainant was notified of the proposed changes on the 23 October which were detrimental to her continued employment. The complaint fastened on an exit or redundancy package to the exclusion of all other considerations. I find that the respondent suggested an alter native course which was to consider how she might survive these changes in a way that suited both the respondent and the complainant. I find this to be suggestive of the fact that the respondent had not reached the point of no return concerning the redundancy. But that’s not to say that that was a very hopeful prospect as it was a small company. I find that the complainant did not revert as requested to the respondent with alternatives.

I accept that given the highly specialised nature of the business and its requirements for specialised knowledge and skills that it would be difficult to accommodate an employee on an ongoing basis who did not possess the requisite skills and qualifications. I note that there were no issues with the complainant’s performance while the business was in pre- expansion mode. I note the respondent waited 21 days to see if she accepted the redundancy offer of 1 November. She advised that her solicitors were handling then matter.

Legal cases cited are distinguishable from the instant case.

In Edwards v Aerials Electronics Ireland Ltd, UD 279/85, there was evidence of an expressed hostility on the part of the decision maker towards the complainant when he accused him of previously trying to take the company off him. No such animus is evident in the instant case between the respondent and the complainant sufficient to suggest that the dismissal was not wholly or mainly attributable to the restructuring, changing requirements and need for different qualifications.

In Fiona O ‘Driscoll v Siebel Systems Limited 1257/2003, the tribunal found evidence that there was comparable work for the complainant and she was capable of same. The selection criteria used to offer her redundancy were very subjective. Her role and work continued after her departure. That is not the case in the instant case.

Maureen Hart v Zed Candy ltd. There was no explanation of the selection procedures, there was a lack of fair procedures. The respondent did not consider the alternative roles into which the complainant could be slotted.

These cases do not assist the complainant as they all were found to be instances of an unfair dismissal based on different circumstances to those facing the complainant. I do not consider the criteria used to select the complainant were subjective. Her role died with her departure. No evidence was put to the hearing to convince me that there was a viable alternative or that she could be absorbed into the staff.

Based on the written and oral evidence submitted I do not find that it was a sham redundancy or that the respondent acted so unreasonably or so unfairly as to render it an unfair dismissal.

The complainant withdrew this complaint.

I have only jurisdiction to uphold the complainant’s entitlement to statutory notice which is a week. The complainant has received paid notice in excess of one week.

CA-00018720-001. Complaint under Section 8 of the Unfair Dismissals Act, 1977.

I do not find this complaint to be well founded

CA-00018720-002. Complaint under Section 28 of the Safety, Health & Welfare at Work Act, 2005

The complainant withdrew this complaint.

CA-00018720-003.Complaint under Section 11 of the Minimum Notice & Terms of Employment Act, 1973.

I do not find this complaint to be well founded.

Genuine redundancy; reasonableness of employer