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-00015065-001

17/10/2017

The Complainant commenced work with the Respondent, a Multi-National company, in January 2013, as a Customer Experience Manager.

The Respondent underwent a global restructuring in 2016. Arising from this restructure, certain changes took place in the Complainant’s role and reporting relationship. These changes came into effect in January 2017.

In May 2017, the Complainant raised issues, with HR, pertaining to her working relationship with her new manager. As a result, an informal mediation process, involving the Complainant, her manager and HR took place. During this process, the Complainant made reference to her role being different to that which she held prior to the 2016 restructuring. Based on this, the Respondent then conducted a review of the two roles and concluded that they were different.

On the back of this finding and based on comments made by the Complainant to the effect that she did not wish to continue in the role, the Respondent conducted a consultation process with the Complainant commencing 20 June 2017. The outcome of this process was that the Complainant’s 2016 role was classified as redundant and, as a result, she was made redundant in August 2017.

The Complainant is claiming that her selection for redundancy, in the manner in which it occurred, represents an unfair dismissal.

The Complainant commenced working with the Respondent on 21 January 2013 as a Customer Experience Manager, a position she held until her unfair dismissal in August 2017. The Complainant enjoyed working with the Respondent and its employees and customers and had a good relationship with all concerned. Issues only arose for the Complainant when a new manager (Ms S) was appointed over the Complainant at the beginning of January 2017.

The new manager was very difficult to work with from the outset. The Complainant found that she was the subject of relentless, unwarranted and excessive criticism which placed her under an enormous amount of stress. The Complainant was subjected to unnecessary micromanagement to the extent that she began to doubt herself; feel anxious while at work; and was continuously preoccupied and stressed the thought of having to go to work. This was something that the Complainant had never experienced prior to Ms S becoming her manager.

As the working relationship between the Complainant and Ms S continue to deteriorate, this culminated in the Complainant requesting help and assistance from the Respondent’s Human Resource Department. It was pointed out by the Complainant’s representative that, while she did make a formal complaint to the HR Department, the Complainant indicated that she was happy to have the matter dealt with informally by way of mediation. The Complainant wanted to resolve matters so that her work life could return to normal. It was stated on the Complainant’s behalf that her desire for an informal process did not mean that she was not making the complaint and it in no way diminished the seriousness of the complaint.

The Complainant’s approach to the HR Department on 23 May 2017 was formal and she expected her complaint to be addressed properly and in a robust and professional manner, in accordance with the Respondent’s policies and procedures. It was stated on behalf of the Complainant that her complaint related to her relationship with Ms S and the manner in which she (Ms S) treated her. It was stated that the Complainant made a complaint in good faith and in the hope that her life would return to the way it had been before Ms S became her manager.

However, it was stated on behalf of the Complainant that this did not occur and, apart from an early meeting involving the Complainant, the person in HR to whom she had made the complaint (Ms K), and Ms S, no proper workplace mediation was arranged or took place prior to the Complainant being unfairly dismissed. It was submitted on behalf of the Complainant that her numerous meetings with Ms K were not intended to resolve a complaint, as she believed, but were to artificially orchestrate her dismissal in the guise of redundancy.

It was further stated on behalf of the Complainant that her issue was not with her job, or the work that she was required to, but was with the manner in which she was treated by Ms S with respect to her work. The Complainant’s legal representative strongly rejected what was claimed to be the Respondent’s attempt to portray the Complainant as a petulant employee who didn’t want to do her job. It was further submitted, in this regard, that this was not only disingenuous and insulting to the Complainant but a continuation of the undignified treatment that she was subjected to under Ms S.

It was submitted on behalf of the Complainant that the issue of her post-January 2017 position being different to her alleged previous position was, at all times, pushed by the Respondent and it was the Respondent that initiated a separate procedure to investigate this matter. It was further submitted on behalf of the Complainant that, this separate procedure was the main focus of the Respondent to the detriment of the Complainant’s actual complaint with respect to her relationship with Ms S. It was submitted that the separate procedure in relation to the Complainant’s position was done for the sole purpose of terminating her employment by way of a sham redundancy.

The Complainant’s representative submitted that her focus was to improve her working environment and compelled Ms S to treat her with dignity and respect at work. It was submitted that the Complainant met with Ms K on 20 June 2017 for a pre-consultation meeting. Three further consultation meetings were held on 19 and 31 July 2017 and 8 August 2017 respectively. It was submitted on behalf of the Complainant that during these meetings she believed that Ms K was genuinely attempting to address a complaint.

It is further submitted on behalf of the Complainant that the Respondent placed an over emphasis on the alleged different position held by the Complainant after January 2017, in what appeared to be a conscious plan to terminate the Complainant’s employment by way of a sham redundancy. According to the submissions on behalf of the Complainant, the issue of a potential redundancy was first raised by the Respondent at the pre-consultation meeting held on 20 June 2017 as part of the “three R’s” i.e. redeployment; relocation; and redundancy.

According to the Complainant’s evidence, it was the Respondent who introduced the idea of potential redeployment as a solution to her difficulties with Ms S. The Complainant stated that she never sought to change jobs prior to this, as her sole concern was establishing better relations with Ms S. According to the Complainant’s evidence she was assured from the outset that redundancy would be a last resort; that the Respondent was “not anywhere near” that option; and that redundancy “would only come into the question if there was no alternative and suitable role available”. It was submitted on behalf of the Complainant that this was not true and the entire consultation process had been predetermined and was designed solely to result in the termination of the Complainant’s employment in the guise of a sham redundancy.

In this regard, the Complainant submitted that, in an email entitled “possible redundancy situation” she was described as an underperformer. It was further stated that the email, which was dated 19 June 2017, the day before the consultation process commenced, also referred to the fact that the cost that would be incurred, should the Complainant take stress-related sick leave, was higher than the cost of making her redundant. The email concluded as follows: “my proposal is that we make a decision to consider implementing redundancy as it is the more cost-effective solution”.

It was further submitted that the email received in reply to the above stated as follows: “Given the situation, I would support early exit.   Before proceeding, we need to ensure that we have the redundancy budget. Even if the amount is not high the person is going to be replaced”.   It was further stated on behalf of the Complainant that this chain of email correspondence concluded with an email dated 21 June 2017, which gave approval to manage an exit process and advertise a new role, to be filled ASAP.

According to the Complainant, she was formally advised on 28 August 2017 that her position was being made redundant. However, it was submitted on behalf of the Complainant that the position being made redundant was not the position that she then held but was apparently the position that she allegedly held prior to January 2017 and which the Respondent had not realised had been made redundant until after the Complainant made her complaint about Ms S.

It was submitted on behalf of the Complainant that this added greatly to the stress already caused to her as a result of her Line Manager’s actions. It was further stated that the matter was compounded by the fact that the Complainant’s position was almost immediately advertised internally in the organisation.

Legal Submissions on behalf of the Complainant:

It was submitted by the Complainant’s legal representative that Section 7 (2) of the Redundancy Payments Act 1967 emphasises that, where a redundancy exists it must be the position, as opposed to the person, that is made redundant. It was further stated that the impersonal nature of redundancy is essential for redundancy validity.

It was further submitted on behalf of the Complainant that a redundancy that is not impersonal is not a legitimate redundancy and amounts to an unfair dismissal for the purpose of the Unfair Dismissal Acts 1997 – 2007. The Complainant’s legal representative stated that, in order to demonstrated that the Complainant was dismissed by reason of redundancy under Section 6 (3) of the Unfair Dismissal of the Act, there must have been a redundancy situation in accordance with Section 7 (2a) of the Redundancy Payments Act 1967 and that redundancy must, at the very least, be the main reason for the dismissal.

It was submitted on behalf of the Complainant that her dismissal was not a genuine redundancy situation as, despite the best endeavours of the Respondent to artificially and retrospectively establish otherwise, no extant position was made redundant. The position held by the Complainant at the date of termination, i.e. the position of Customer Experience Manager, was not significantly different from the position she had always held throughout her employment with the Respondent and that position still exists.

Further reference was made to the email correspondence of 19 June 2017 which, it was claimed on behalf of the Respondent, showed that the reason for the termination was that she was perceived as underperforming and a sham redundancy was adjudged to be cheaper than covering the cost of sick leave.

It was further submitted on behalf of the Complainant that, at no stage during her employment with the Respondent was a contract of employment amended or superseded as a result of an alteration in her position or otherwise. It was stated that the role the Complainant held at the date of termination was not substantially different from the role she had prior to January 2017 as claimed by the Respondent. It was stated that the work which the applicant was required to carry out remained the same, with some alterations with respect to the geographical areas she was responsible for and some of the processes used. It was submitted that this was not sufficient to warrant referring to the position as different or as a higher-grade role, as the Respondent was now claiming, particularly when this does not appear to have become apparent to the Respondent until late July 2017.

It was stated that the core requirements and duties of the Complainant’s job remains the same as did her salary and entitlements. It was further stated that the Complainant simply had to report to a new manager. In addition, it was pointed out that even if the position was different, the fact is that the position held by the Complainant at the date of dismissal was not made redundant and was immediately advertised after her termination.

According to the Complainant, the evidence available supports her position that her role pre-January 2017 was not significantly different from that post January 2017. It was further stated that it was only after she made a complaint with respect to treatment by a manager that this issue was put to the fore and actively pursued by the Respondent.

The Complainant describes the Respondent’s statement that all changed after January 2017 and that they endeavoured to facilitate her is a fiction with no basis in fact or law.   It is contended that it was retrospectively formulated to excuse what is clearly a sham redundancy, concocted for the sole purpose of terminating the Complainant’s employment. In this regard, the Complainant points specifically to the email correspondence dated 19/21 June 2017 which was sent prior to the consultation process taking place.

Submission was also made on behalf of the Complainant in relation to the fairness of her selection for redundancy. It was stated that an employer must use and be able to demonstrate the use of a fair and transparent selection process in circumstances of redundancy. It is contended that the reasonableness of the employer’s conduct must be examined and fair procedure must have been employed, as a lack of transparency around it on the part of the employer. The selection process can, in and of itself, raise questions as to the genuineness of the alleged redundancy.

It was submitted on behalf of the Complainant that the reason she was selected for termination was that she made a complaint, was incorrectly classified as underperforming; and it was cheaper to terminate on the basis of a sham redundancy than risk the Complainant going on extended work-related stress leave. It was further submitted that, instead of properly addressing the Complainant’s legitimate complaint with respect to the behaviour of her manager, the Respondent decided to unlawfully terminate her employment by way of a sham redundancy.

The Complainant’s legal representative supported the above arguments by reference to various legal cases and determinations.

Conclusion:

In conclusion, it was stated on behalf of the Complainant that the alleged redundancy was a sham. It was further stated that the redundancy was clumsily concocted to retrospectively apply to a position that continues to exist and was immediately re-advertised after the Complainant’s employment was unlawfully terminated. It is contended that the actions of the Respondent from 20 June 2017 onwards was nothing more than a cynical attempt to give the sheen of legitimacy to a decision, that have already been made on 19 June 2017 i.e. to invent a redundancy situation to terminate the Complainant’s employment, as the cheapest alternative.

It is further submitted that this is a flagrant and deliberate breach of employment law and that the Complainant was unfairly dismissed by the Respondent.

Background:

It was submitted that the Respondent underwent a global restructuring in 2016. Arising from this restructure the Complainant was transferred to a new team. It was submitted that, after a period of about three months, the Complainant voiced concerns that she felt that her role had changed beyond recognition. It was stated that these concerns were initially raised with her line manager and subsequently with HR.

As a result of the concerns raised by the Complainant, HR initiated a series of meetings with her in an effort to resolve the issues. It was stated that, during the course of these meetings, it was outlined by the Complainant that she felt the new role was not a suitable alternative. It was also stated that it was outlined to the Complainant that, should there be no alternative suitable position available, the outcome could be redundancy.

The Respondent stated that on 20 June 2017, the Senior HR Business Partner, Ms K, met with the Complainant to discuss concerns about the change in her role. The Respondent stated that it was outlined to the Complainant that she had, on numerous occasions, stated that her new role was completely different to her old role. It was further stated that the HR Senior Business partner, Ms K, informed the Complainant that if the role had changed, the normal process would be to look at redeployment, relocation and finally redundancy, if the first two options were unsuccessful.

The Respondent submitted that, during the course of the meeting on 20 June 2017, Ms K informed the Complainant that she would confirm whether the role had changed. It was further stated that Ms K informed the Complainant that she would provide her with the job description of the current role if that role was different from a previous role. However, the Respondent stated that the Complainant confirmed to Ms K that she was not interested in her current role. The Respondent also stated that, when queried as to her interest in relocation, the Complainant confirmed that she was not interested. According to the Respondent, the Complainant was then advised that redundancy was the final option, but they were nowhere near that.

The Respondent submitted that Ms K then explained the Complainant that there were two different processes in train: firstly, consultation in relation to her role and secondly, the concerns that she had raised regarding her working relationship with her manager, which led to the mediation process. It was further submitted that the mediation process had closed but there was ongoing monitoring taking place. However, the Respondent stated that the Complainant was advised that the consultation process was completely separate and that she (the Complainant) confirmed that she understood this.

According to the Respondent’s evidence, the Complainant stated that she was not really considering redundancy and that she might not work again if she left the Respondent. It was further submitted that the Complainant stated that while she could do her current job, she did not want to do it. In that context, the Respondent stated that the Complainant indicated that she was absolutely interested in other redeployments. In addition, it is submitted that the Complainant stated that she would never have applied for the role in its current format. The Respondent further submitted that when asked what she meant by “current format”, the Complainant indicated that she meant with Ms S as her manager.

According to the Respondent, the meeting concluded with Ms K asking the Complainant if she was clear on what they had discussed in relation to relocation, redeployment and redundancy. The Respondent submitted that it was again stated that redundancy would only come into the question if there was no alternative suitable role available. According to the Respondent, the Complainant confirmed that she was clear on this and asked if there was a chance of getting another job. Is further stated that, in response, Ms K confirmed that getting another job would depend on what jobs were open and suitable.

According to the Respondent’s evidence, the action points arising from the meeting of 20 June 2017 were that: Ms K would obtain the current job description from Ms S; the Complainant would send Ms K the job description from her old role and that Ms K would then invite the Complainant to a meeting if they needed to open a conversation on the elimination the Complainant’s previous role following a review of the job descriptions. It was further submitted that these action points were agreed between Ms K and the Complainant.

The Respondent submitted that following this meeting and during late June/early July, the Complainant’s roles were reviewed and it was found that the 2017 role was significantly different and was also a higher grade role. The Respondent stated that as a result, it was confirmed to the Complainant, on 12 July 2017, that the role had changed. As a result, the Complainant was informed that the Respondent would open a consultation process, with the first meeting scheduled for 19 July 2017.

According to Respondent’s evidence, the first consultation meeting was attended by Ms H, HR Business Partner, and Ms S, the Complainant’s manager. The Respondent stated that Ms S elaborated on the difference between the 2016 and 2017 roles and confirmed that they were different. It is further submitted that the Complainant was then asked if there were any specific roles she was interested in as she had previously indicated that relocation was not an option. The Respondent’s evidence further suggests that the Complainant indicated that she was interested in roles in Logistics and Supply Chain. It is stated that, in particular, the Respondent referred to a role in Supply Chain, as there was greater flexibility to work from home rather than to commute to the office. The evidence suggests it was agreed that the Complainant would review open positions and that another consultation meeting will be scheduled.

The Respondent stated that the second consultation meeting took place on 31 July 2017 and was conducted by Ms K, with Ms S also in attendance. According to the Respondent’s evidence, having reconfirmed that the roles were different, the Complainant was again asked whether she was interested in the current role and she confirmed she was not. The evidence suggests that Ms K then discussed redeployment opportunities to be explored and the various departments to be contacted were discussed and agreed upon. The evidence suggested Ms K informed the Complainant that redeployment options would be explored through her own network, her line manager’s network or through the Respondent’s internal database. It was further stated that, in addition, Ms K would explore options within Supply Chain and with the members of the Site Leadership Team with respect to any potential redeployment options in any of these areas. It was stated that the meeting concluded with Ms K confirming that they would meet again in two weeks’ time.

The Respondent submitted that the third consultation meeting took place on 8 August 2017 and, in addition to the Complainant, was attended by Ms K and Ms S. It is submitted that Ms K and the Complainant discuss the outcome of the redeployment enquiries and it was confirmed that no suitable alternative rules had been identified.

According to the Respondent’s evidence, the Complainant indicated that she had raised an issue about a working relationship with the manager and now she was facing redundancy. The Respondent submitted that Ms K denied that there was any connection and recapped how the separate process had been dealt with through mediation and had been closed out.

In addition, the Respondent submitted that Ms K noted that it had been confirmed during the review process that the Complainant’s old role no longer existed. It is stated that Ms K further noted that the Complainant was not interested in the current role nor in redeployment. According to Respondent’s evidence, Ms K then informed the Complainant that they were exhausting options and they may need to discuss redundancy. According to the evidence, the Complainant confirmed at this point that she wanted the meeting to finish.

The Respondent submitted that a further meeting took place on 28 August 2017 which again was attended by Ms K and Ms S. It is submitted that having recapped on all meetings to date and noted that a suitable alternative role had not been identified, Ms K informed the Complainant that her role was being made redundant. According to Respondent’s evidence, Ms K then provided the Complainant with the redundancy notice letter, redundancy estimate document and a compromise agreement, which she went through with the Complainant.

According to the Respondent’s evidence, the Complainant became upset during this meeting and made some comments about Ms S. When Ms S left the room at Ms K’s request, the Complainant asserted that she was only in the situation because she have raised concerns. It is submitted that this assertion was denied by Ms K.

The Respondent stated that, on 6 October 2017, the Complainant, through her solicitor, indicated that she would be bringing a claim against the Respondent under the Unfair Dismissal is Acts and separate proceedings for an alleged failure to prevent bullying of her in the workplace.

Allegations of Bullying:

The Respondent denies the Complainant was subject to bullying in the workplace by her manager. It was submitted that the Complainant raised concerns regarding her working relationship with her manager. These concerns are brought to the attention of Ms K who subsequently held a meeting with the Complainant to discuss these concerns.

The Respondent submitted that, during the meeting with Ms Kay, the Complainant confirmed that she did not want to make a complaint of bullying and she confirmed that she would like her concerns dealt with by way of mediation between her and her manager. The Respondent submitted that the Complainant’s suggestion of a connection between her raising a concern over difficulties in her working relationship with the manager and her redundancy is strenuously denied. The Respondent contends that the two issues are entirely separate.

Conclusion:

The Respondent denies that the Complainant was unfairly dismissed as alleged or at all. It is submitted that, following the consultation process, the Complainant’s role was made redundant. It is further submitted that the Respondent followed a balanced, comprehensive and fair procedure over a number of months.

The Respondent submits that there is no connection between the concerns the Complainant raised over working relationship with the manager and the decision that the Complainant’s role was redundant. It is further submitted that the only position the Complainant was made redundant from was her pre-January 2017 role as the other role is ongoing, but the Complainant repeatedly indicated that she was not interested in that role.

According to the Respondent’s evidence, the organisation underwent a global restructuring in 2016. As a result of this restructure, the Complainant was transferred to a new team where she was reporting to a new boss. In addition to some changes in the geographical areas the Complainant was responsible for, she was also required to take on some extra projects.

Having carefully considered the evidence adduced, it would appear that the major and most significant change for the Complainant was the change in reporting relationship.   Consequently, the Complainant took on her role in January 2017 without any major concerns that her role had changed significantly.

From reviewing the evidence, I am also satisfied that this view was shared by the Respondent.   There is no evidence of any communication and/or correspondence from the Respondent, at any level, in late 2016 or early 2017, that would have suggested to the Complainant that the role she had held down for the previous three years had been eliminated and that she was now in a new role.

The Respondent’s evidence is that it was only in June/July 2017, when the Complainant made references to her job being “different”, that they realised the job she was doing post restructure was completely different to that which she previously held. I am strongly of the view that it stretches credibility to suggest that an organisation like the Respondent’s, with all of the organisational expertise and experience that would have been engaged in carrying out the 2016 restructure, would have failed to recognise that the Complainant’s 2016 role no longer existed.

Given that some changes did take place to the Complainant’s role, it is clear that her previous role must have to have been given some consideration as part of the restructure. Consequently, I find it difficult to understand how, if the changes to the role that were identified in June/July 2017 were such that it was classified as a redundant role, that this was not identified during the 2016 restructuring process when limited changes were made to the Complainant’s role.

In submission at the Hearing, the Complainant’s legal representative suggested that the classification, in 2017, of her 2016 role as redundant was a convenient and easy solution for dealing with the Complainant’s issues. In the context of the evidence adduced and the conclusion set out in the previous paragraphs, I find there to be significant validity to this argument.

Firstly, during the Hearing, a difference emerged with regard to the percentage by which the Complainant’s previous geographical area of responsibility had changed as a result of the 2016 restructure. Evidence presented on behalf of the Respondent suggested that the reduction was in the order of 60%, while the Complainant indicated that it was 30% at most.   Which of the accounts is the more accurate is not the key issue here. What is significant is the fact that somewhere between 40 and 70% of the role carried out by the Respondent, prior to the 2016 restructure, was still included in the post restructure role.

All parties accept that the reduction in geographic responsibility was replaced by other duties, including project work. Consequently, I am not satisfied that the Complainant’s pre-2016 restructure role became redundant. Rather, I am strongly of the view that it was restructured into a combination of existing and new duties. The only other change to the Complainant’s circumstances was that, in the post restructure role, she was reporting to a different boss. Consequently, I am of the view that the Complainant, in her altered role, moved seamlessly into the post restructure scenario.

This view is further supported by the evidence presented, which shows that the Complainant’s role title, i.e. “Customer Experience Manager”, remained unchanged following the restructure. It is further noted that the Respondent’s letter of 28 August 2017, which advised the Complainant of her redundancy, clearly states: “your position as Customer Experience Manager is redundant”.

At the point in time when the Complainant was made redundant in August 2017, it is clear that the role she was carrying out at that time was not made redundant as the evidence clearly shows a replacement was required when the Complainant had departed.   This is accepted by the Respondent, whose contention is that the Complainant’s redundancy was not based on the role she was doing in August 2017 but on that which she held in 2016.

In considering the Respondent’s contention in this regard, I find it difficult to understand how a role can be retrospectively classified as being redundant. As redundancy applies to a position/job as opposed to a person, I am satisfied that no redundancy existed at the time the Respondent purported to make the Complainant redundant. Consequently, I do not accept that it was either reasonable or valid to then suggest that the Complainant’s redundancy was being linked to a role she carried out over nine months previously.

With regard to the Complainant’s legal representative’s submission that the classification of the pre-2016 restructure role as redundancy was a “convenient and easy solution for dealing with the Complainant issues”, I find that the evidence adduced tends to support this contention.

Firstly, it is clear from the evidence that the Complainant encountered significant interpersonal issues in her working relationship with her new boss post the 2016 restructure. The evidence indicates that while raising this with the Respondent’s HR department, the Complainant expressed a preference for the matter to be dealt with informally. This led to an informal mediation process between the parties, which was conducted or overseen by the Respondent’s Senior HR Business Partner (Ms K).

While the mediation process, which consisted of a number of interactions between the parties, appears to have brought some clarification to the matter and some improvements to the Complainant’s situation, I am not satisfied that it had significantly resolved matters to the extent that it could be considered to have concluded, at least not to the extent that it was relied upon by the Respondent during the subsequent consultation process.

I am strongly of the view that, given the level of distress and tension that existed for the Complainant in her working relationship with her manager, it was unreasonable and unwise of the Respondent to insist that the mediation had been successful in resolving those tensions, particularly after such a short period of time. Further, I find it unreasonable for the Respondent to have failed to consider the role the interpersonal difficulties the Complainant was experiencing with her manager played in her reluctance to continue in that role with Ms S as her boss.

Having carefully considered all of the evidence adduced, I am strongly of the view, based on the balance of probability, that had the Complainant not encountered the interpersonal difficulties in her working relationship with her manager, she would never have found yourself in a position where her contract of employment was terminated.

In addition to the above, I also find that the manner in which the Respondent conducted the consultation process was prejudicial to the Complainant’s position and failed to provide her with a fair and balanced process in relation to the termination of her employment.

The consultation process arose when, in June/July 2017, the Respondent concluded, following review, that the Complainant’s 2017 role was totally different to that which she held prior to the 2016 restructure. According to the evidence provided by the Respondent, the consultation process was initiated following the decision that the Complainant’s 2017 role was different to that which she was doing previously and as a result of the Complainant expressing the view that her 2017 role was not a suitable alternative to her old role.

The evidence presented suggests that the consultation process consists of three elements – relocation, redeployment or redundancy. In their evidence, the Respondent put significant emphasis on the fact that redundancy is normally the last option and is only considered in situations where no other option is available. In relation to the within case, the evidence shows that the Complainant was advised at the outset of the process that while redundancy was one of the three options, they were a long way from that option at that point.

However, the evidence adduced clearly suggests that the opposite was the case. On the day before the consultation process commenced, the Respondent’s Senior HR Business Partner (Ms K), who was the person responsible for conducting the consultation process, sent an email to her superiors which set out, inter alia, that (1) the Complainant was rated as an “underperformer”, (2) that the Complainant had made the case that her role had changed and (3) that her manager had unrealistic expectations of her. While the Complainant takes issue with the accuracy of some of the aforementioned comments, I find the more significant issue lies in the proposal being presented to her superiors, by Ms K, on the back of those comments and the approval she seeks as a resolution to the matter.

While admitting to having not yet reviewed the roles to determine the existence or otherwise of a redundancy situation, Ms K goes on to highlight the cost of redundancy and compares it favourably to the costs that would potentially be incurred by the Respondent were the Complainant to go on extended sick leave. Ms K then proposes that a decision should be made to consider implementing a redundancy as it would be the “most cost effective solution”.

In a context where the Complainant had only recently been rated as underperforming and where, in my view, the performance situation would, on the balance of probability, have most likely been influenced by the challenges she was experiencing in her working relationship with her manager, I find the reference to the Complainant as an “underperformer”, in the opening line of the email, to be somewhat disingenuous and lacking in appropriate contextualisation.

However, I find the representation with regard to the Complainant’s health situation and the raising of the possibility that she might go on extended sick leave, due to stress, to be even more questionable. At this point in time (19 June 2017), the Complainant’s most recent certified absence from work was in April 2017. On that occasion, the certification related to “treatment for high blood pressure”. Consequently, I find the comments in relation to the Complainant’s health situation and possible sick leave to be highly speculative and a misrepresentation of the facts as the existed at that point in time.

In response to the above email, Ms K received an immediate response, supporting “an early exit”. However, this email suggests to Ms K that she should “ensure that we have the redundancy budget. Even if the amount is not high, the person is going to be replaced”. Consequently, based on the evidence adduced, I am satisfied that prior to the consultation process commencing with the Complainant, in which it was suggested to her that the possibility of redundancy was a long way off, a decision had already been taken to exit the Complainant from the organisation.

Against this background, I find it difficult to accept the genuineness and comprehensiveness of the Respondent’s claim in relation to the identification of possible redeployment options to address the situation that had evolved with the Complainant, which I believe resulted from and continued to be influenced by her relationship difficulties with her manager. In such a context, it would be expected of an employer to make every reasonable effort to try to resolve the issue between the Complainant and her manager and, in the event that that was not possible, to make every effort to address the situation internally within the organisation. However, it appears from the outset that the Respondent had identified an exit strategy, by way of a redundancy, which in effect did not exist, as the solution to the situation.

Section 7 (2) of the Redundancy Payments Act, 1967, sets out the criteria for determining redundancy. This section of the Act states as follows:

“For the purposes of subsection (1), an employee who was dismissed shall be taken to be dismissed by reason of redundancy if 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 purpose 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, or for employees to carry of work of a particular kind in the place where he was so employed have ceased or diminished or are expected to cease or diminish.”

Having carefully considered all of the evidence adduced in relation to the Complainant’s complaint, I am satisfied that the Respondent in this case was not ceasing or intending to cease the business for which the Complainant was employed. In addition, I am satisfied that the post 2016 restructure role was so similar to that which she had previously been carrying out, that there was no significant ceasing or diminishing of the requirement for the Complainant to carry out the work she had been doing, to the extent that it would satisfy the criteria at Section (2) (b) of the Act as set out above.

Taking all of this into consideration, I find the evidence does not support the Respondent’s contention that the Complainant’s pre-restructure role became redundant as a result of the restructure. Based on the above, I am satisfied that the Complainant’s role/position at the time of redundancy clearly does not satisfy the statutory definition of redundancy.

Section 6 (1) of the Unfair Dismissals Act, 1977, states that:

“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”.

The grounds put forward by the Respondent for the termination of the Complainant’s contract of employment was that of redundancy. As has been set out above, I conclude that a redundancy did not exist in the within case. The evidence suggests that the Respondent took an early decision to exit the Complainant and the vehicle used to achieve this outcome was redundancy. Had there been serious issues with regard to the Complainant’s performance or sick leave, these should have been dealt with through the appropriate internal performance/disciplinary procedures and not by utilising a redundancy option, in a context where none existed.

Consequently, as redundancy was the only grounds presented for dismissal, I find that the Respondent has failed to satisfactorily establish substantial grounds justifying the Complainant’s dismissal. Therefore, I conclude that the Complainant has been unfairly dismissed.

Having carefully considered the situation in relation to redress, I am satisfied that an award of €60,000 represents a fair and reasonable compensation to the Complainant for her unfair dismissal.

Having carefully considered all of the evidence adduced and based on the considerations/findings as detailed above, I find that the Complainant’s complaint is well-founded.   Consequently, I find that the Complainant’s dismissal was unfair and I award an amount of €60,000 in compensation for the Respondent’s breach of the Unfair Dismissal Acts 1997-2015.