ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00014447

Parties:

	Complainant	Respondent
Anonymised Parties	A Technical Consultant	A Software Support Company

Representatives

Self-Represented

Mason Hayes & Curran

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00018793-001	29/04/2018
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00018793-002	29/04/2018

Date of Adjudication Hearing: 03/10/2018

Workplace Relations Commission Adjudication Officer: Michael McEntee

Procedure:

In accordance with Section 41 of the Workplace Relations Act, 2015; Section 39 of the Redundancy Payments Acts 1967 - 2014 and Section 8 of the Unfair Dismissals Acts, 1977 - 2015, following the referral of the complaint(s)/dispute(s) to me by the Director General, I inquired into the complaint(s)/dispute(s) and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint(s)/dispute(s).

Background:

The issues concern a Technical Consultant and his alleged unfair Dismissal and concomitant loss of a Redundancy entitlement from a Software Management and Support Company.

(Initially it should be noted that extensive written evidence and copies of numerous e mails were presented by both parties -the summaries below are a brief precis of this evidence, focussing on the main points, prepared by the Adjudication Officer).

1: Brief summary of Complainant’s Case:

1:1 Redundancy Payments Act ,1967 Claim - CA-00018793-001

The Complainant had commenced employment with the Respondent, a major Software Multinational, in October 2011. Things had gone well until February 14th, 2018 when the Respondent had announced a series of staff measures relating to a Global Restructuring of its business. The Complainant was employed in a function with two other colleagues. The Relocation of this element of the business to India was announced and all three colleagues were lead to believe that they were being made redundant. However, while the other two colleagues were made Redundant the Complainant was not. He was offered redeployment to another division of the business in Ireland. Despite his best efforts in numerous emails and verbal meetings to establish the exact nature of the re deployment position this was not forthcoming. A high degree of confusion and cross purposes among his superiors was immediately evident. Extensive copy e mails and correspondence in support was exhibited by the Complainant in written evidence and supporting oral testimony.

This most unsatisfactory situation continued for a considerable period. The activities of the Respondent HR Department during this period were unprofessional and openly hostile. The Complainant referred to an earlier Internal recruitment incident that had been handled badly by the Respondent -This had undermined his trust in the Organisation and in the HR function. The situation regarding the Redundancy was further confirmation of his firmly held belief that the Respondent had a negative “Agenda” regarding him.

All things considered the Complainant was placed in a very stressful situation during February/March 2018 which ultimately lead to his resignation on the 16th April 2018.

1:2 Unfair Dismissals Act,1977 Claim CA 00018793-002

Arising from the manner in which the Redundancy claim referred to above was treated by the Respondent a complete breach of trust and confidence took place with the Respondent employer.

Numerous meetings took place supported by extensive email traffic all of which failed to clarify the Redundancy and alternative job offer details. It was clear that the Respondent had adopted a hostile attitude towards the Complainant. The approach of the HR Department was particular so. The Complainant had raised a formal HR case via internal procedures but the HR Representatives had behaved most unprofessionally in regard to this complaint.

All things considered and all the negative matters in February and March taken into account the Complainant was left with no reasonable option but to resign.

2: Brief summary of Respondent’s Case:

It was acknowledged that a meeting with the Complainant’s Section had taken place on the 14th February 2018. It was made clear that the function was being relocated to India. However crucially and most importantly the Complainant had been notified by a telephone call before the meetings that his individual personal employment with the Respondent was not in any danger and that he was going to be redeployed to a similar function in Ireland. This message was confirmed in numerous meetings and email traffic in February and March.

The Respondent is a major Multi National with well-developed HR procedures and practices. The Redundancy procedures were exhibited in evidence. The Complainant never received an “At Risk” formal letter which is the standard practice in Redundancy situations. Accordingly, he was never being considered for Redundancy.

Suggestions by the Complainant that he had been show an “At Risk” letter addressed to him by a Respondent Manager in a pub during a staff outing were vigorously denied. Even if a letter had been in existence, which was denied, Managers do not have access to this type of correspondence on their mobile phones.

The details of the alternative position were, to be fair, initially somewhat vague but these solidified as time progressed. The Company was in the process of a major reorganisation and Mangers involved were pressurised on many fronts during February and March.

Ultimately the Complainant had a conversation, supported by E mail traffic, with a senior Respondent Manger (Mr. XS) on or about the 6th March. It is clear from this traffic that the Complainant was a valued member of staff in Ireland and that any concerns he might be having, including a salary revision, would be addressed.

All the other meetings with more junior Local Mangers and indeed the HR representatives all lead to the same conclusion.

The Complainant was never being considered for Redundancy and a very suitable redeployment job offer was being formulated. The was no suggestion of a Redundancy lump sum being on offer and this had been emphasised on many occasions.

The Complainant acted unreasonably in his approach to the entire situation which culminated in a completely unwarranted resignation in April 2018.

3: Findings and Conclusions:

3:1 The Relevant Law:

3:1:1 Redundancy Payments Act ,1967 Claim - CA-00018793-001

For a Redundancy Payment claim to succeed it is first necessary to establish whether on not a Redundancy took place. Establishing a valid Redundancy is the first issue in the case in hand.

3:1:2 Unfair Dismissals Act, 1977 Claim - CA 00018793-002

The claim in hand is a Constructive Dismissal claim – to succeed here it is necessary for the Complainant to satisfy the well accepted Two Stage Legal tests of (1) Fundamental breach of employment Contact and (2) Unreasonable Behaviour by the Respondent so serious that the Complainant has no “reasonable” option but to resign.

Notwithstanding the Legal principles all claims rest on their own evidence and particular facts and I will consider these below.

3:2 Consideration of Evidence (both oral and written) presented

Extensive written material and considerable oral evidence from the Complainant and Respondent Mangers was presented to the Hearing.

From this I drew the following conclusions

3:2:1 Redundancy

From a careful review of all the evidence the only reasonable conclusion was that the Complainant was never made redundant.

He was continually informed that his employment was secure albeit that he might have to change Superiors and some formal job Titles. It was clear that the Respondent Management Team in February was in some slight disarray following on from the Global reorganisations but nowhere in any evidence was there any suggestion that the Complainant was to be made redundant. The meeting of the 14th February 2018 where the Global reorganisation was announce and changes to the future of the Complainants’ Section were detailed might have been handled better but it would be completely unreasonable for the Complainant to come to the conclusion that he was being made redundant. He was informed of this in advance of the meeting. This was further clarified on a number of occasions in February. The conversations with Mr. XS, a very high-ranking Manager, on the 6th March 2018 as recorded in the copy e mails take this beyond any reasonable doubt.

A claim for Redundancy has, accordingly, no basis.

3:2:2 Unfair Dismissal – Constructive Claim

The two standard legal tests of (a) Fundamental Breach of Contract and (b) Unreasonable Behaviour were applied to the evidence.

(a) Fundamental Breach of Contract

The Complainant made his case here on a breach of trust and a lack of faith in the Respondent employer. Reference was made to an earlier Internal employment /recruitment situation which it was admitted by the Respondent had not been handled well. However, in the context of the Redundancy claim and the Unfair Dismissal claim this earlier situation could not reasonably, in any manner, be built upon as the basis to support a Constructive Dismissal claim.

All the e-mail traffic and the numerous meetings display an engaged employer and no contractual malice could be discerned.

(b) Unreasonable Behaviours.

Reviewing all the evidence and in particular the oral evidence I could not see any Unreasonable Behaviours of such a seriousness as to justify a Constructive Dismissal. The clear message from the Respondent that a Redundancy Lump Sum was not on offer to the Complainant was not an unreasonable employer position. The Handling of the formal HR Complaint was in keeping with normal procedures.

All told I did not consider that either Test had been satisfied to a degree required to support an Constructive Dismissals claim

3:3 Observations on Complainant evidence

The Complainant gave evidence that he had secured alternative employment -a job offer having been made dated the 22nd March - well before he had resigned from the Respondent. There was no suggestion of any dis-improvements in earnings, indeed depending on how extra payments bonus etc are allowed for the Complainant could well be deemed to have improved, possibly substantially, his earnings potential.

From his direct oral evidence and in response to inquiries from the Respondent’s Legal Advisor I could not escape the conclusion that the Complainant was a very valued IT/Technical employee. He had highly valued technical skills and had quickly secured an alternative position outside of the Respondent Organisation. He was considerably disappointed that the Respondent had not made him Redundant (and eligible for a substantial lump sum) as was his apparent wish, it clearly seemed to me, from an early stage.

3:4 Summary Conclusions Redundancy - CA-00018793-001 & - Unfair Dismissal - CA 00018793-002

Having reviewed all the evidence, both oral and written, I did not find these claims of Redundancy & Unfair Dismissal to be well founded and dismissed both.

4: Decision:

Section 41 of the Workplace Relations Act 2015 Act; [Section 39 of the Redundancy Payments Acts 1967 – 2012 & Section 8 of the Unfair Dismissals Acts, 1977 – 2015 require that I make a decision in relation to the complaint in accordance with the relevant redress provisions of the cited Acts.

Act	Complaint/Dispute Reference No.	Summary Decision /Please refer to Section Three above for detailed reasoning.
Complaint seeking adjudication by the Workplace Relations Commission under Section 39 of the Redundancy Payments Act, 1967	CA-00018793-001	Claim Dismissed – not well founded.
Complaint seeking adjudication by the Workplace Relations Commission under Section 8 of the Unfair Dismissals Act, 1977	CA-00018793-002	Claim Dismissed – not well founded.

Dated: 11th January 2019

Workplace Relations Commission Adjudication Officer: Michael McEntee